Articles Posted in Felonies

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Abortion is legal in the state of Illinois. But as a Humboldt Park woman discovered in January of this year, if you unintentionally cause the death of an unborn child, you could go to prison.

The woman was making a U-Turn from West North Avenue when she crashed in to a pregnant woman riding a scooter. The woman was tossed from the scooter, and doctors were later unable to locate the fetus’ heartbeat. The driver was charged with one count of felony reckless homicide of an unborn child and one count of aggravated DUI causing bodily harm after a DUI kit showed she had marijuana in her system.

Reckless Homicide v. Involuntary Manslaughter of Unborn Child in Illinois.  crashed-car-1148745-m

In Illinois reckless homicide of an unborn child occurs when the driver of a motor vehicle recklessly causes the death of, or great bodily harm to, the mother, which results in the unborn child’s death. The charge applies whether the person’s actions were lawful or unlawful. Reckless homicide is a Class 3 felony, punishable by two to five years in prison and up to a $25,000 fine.

If a motor vehicle is not involved, the charge is involuntary manslaughter.

Defense Against Illinois Reckless Homicide Charge

It is undeniably sad when an unborn child dies. However, even if you were involved in an accident that allegedly caused the death of that child, it does not automatically mean the death was your fault.

Like any vehicular case, David L. Freidberg will first look at the crime scene evidence and the police report. Experts may be able to disprove the prosecution’s claim that you caused the accident, or that it happened in the manner they claim. Experts will look at evidence such as eyewitness statements, video surveillance footage, skid marks, estimated speed and driving conditions in an attempt to reconstruct the accident to determine if your actions were reckless. They will also look at the actions of the other driver or pedestrian to determine if you even caused the accident.

Medical experts may also examine the mother’s medical history related to the pregnancy. Stillbirth, which is the in utero death of a fetus past 20 weeks gestation, occurs in 1 out of every 160 pregnancies; miscarriage, which is the spontaneous loss of a fetus prior to 20 weeks gestation, occurs in 10–25% of all pregnancies. It is therefore possible that the unborn child had died prior to the accident, and it was just discovered during the hospital’s examination of the mother following the accident. Examination of the mother’s medical records will show whether the mother had experienced any complications, or if the unborn child had any abnormalities, that could have resulted in an in utero death days or weeks prior to the accident.

If the unborn child died following the accident, medical experts would review the mother’s medical records looking for the same information. If an autopsy of the unborn child was performed, that may have evidence of an underlying condition that could have resulted in the child’s death, rather than the accident. The fact that an unborn child died near the time of the accident does not automatically mean the accident was the cause of death, and David L. Freidberg can help uncover other possible causes of death. Continue reading

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A new bill introduced in the Illinois legislature would extend the statute of limitations in some rape cases. Senate Bill 2609 seeks to change when the statute of limitations in rape cases begins to run. Current law provides that the statute of limitations in rape cases begins to run on the date the alleged rape occurred, if the alleged victim reported it to police within three years. If you are being investigated for, or have been charged with, committing rape, contact an experienced sexual assault attorney immediately.  depressed-girl-1030147-m

Proposed Changes to Illinois Sexual Assault Statute of Limitations

If the new law is enacted, the statute of limitations would begin to run on the date the police processed DNA evidence from the rape kit. The new law is in response to a case in which the alleged victim submitted to a DNA rape kit. By the time the police processed it, the 10-year statute of limitations had expired, and the prosecution was unable to file charges against the alleged rapist. The bill’s sponsor argues that victims should not be denied justice due to police mistakes, whether caused by a lack of competency or a backlog of cases.

Effect of Statute of Limitations Extension in Illinois Rape Cases

If SB 2609 passes, it will likely have little effect on the prosecution of rape cases. The case that spurred on the new law is no doubt a one-time case of severe police ineptitude not likely to be repeated, even if the police do have a backlog of rape kits to process. Even though opponents of the law say it does not give the police incentive to process DNA rape kits, since they know charges can be filed no matter how much time has passed between the date the alleged rape occurred and the date they final process the kit, the embarrassment over this case should keep them honest.

Passage of SB 2609 will have no effect on how the Chicago Law Offices of David L. Freidberg, P.C., will defend against sex crimes cases. Rape kits and DNA evidence are not the bombshell evidence the prosecution and media would have you believe. The rape kit only confirms whether the alleged victim and alleged rapist had sexual intercourse. If the DNA results from the rape kit show that the alleged rapist did not have sex with the alleged victim, then the charges will be dropped. And if the DNA results show that the two did have sex? Well, that’s all it shows.

Evidence of sexual intercourse is just that – proof that two people had sex. It is not evidence that a rape occurred. If the sex was consensual and no protection was used, of course the rape kit would find the alleged rapist’s DNA on the alleged victim. If it shows scratches, abrasions or other marks on or inside the victim, that still is not evidence that a sexual assault occurred.

David L. Freidberg has an arsenal of forensic experts who can examine the results of a DNA rape kit to determine whether there’s any possibility that the sample was improperly tested or not large enough for an accurate result. They can also testify to any number of harmless, non-assault reasons why marks or abrasions on the victim could have occurred, either during consensual sex or during the victim’s normal daily activities. Continue reading

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Did you know that chasing a person in your car can get you arrested for aggravated assault in Illinois? Two Chicago-area residents recently learned this the hard way when they were arrested and charged with felony aggravated assault.

A Wilmette man was charged for allegedly trying to run over a man who chased after his vehicle. And a Hazel Crest woman was charged in downtown Chicago after an alleged attempt to slam her car into a bicycle police officer. A conviction on felony aggravated assault charges carries prison time and hefty fines, so it is important that you contact an experienced Chicago aggravated assault attorney to help build your defense.

In Illinois a person commits simple assault when he puts another person in fear of receicar-chase-937355-mving a battery. No actual harm or physical contact is required – it is enough that the other person was afraid of being harmed or touched.

Like simple assault, aggravated assault does not require physical contact between you and the alleged victim. The “aggravated” element can come in to play if a weapon was used during the assault. In Illinois, the definition of weapon includes a vehicle, if it was used in a manner that threatened to harm another person – and attempting to run somebody over is enough for the police to make an arrest, as the two individuals in the news stories above learned.

The penalties for a conviction are steep and include minimum prison terms. Felony aggravated assault with a vehicle is a Class 4 felony punishable by one to three years in prison. If the assault is against a police officer, it is a Class 3 felony, and is punishable by three to five years in prison. Both also carry the possibility of up to a $25,000 fine.

Defending Against Aggravated Assault with a Vehicle

In a case involving assault charges, the first step would be to determine whether an assault actually occurred. If the alleged victim’s fear of injury was not reasonable, then no assault occurred, and the charges might be dismissed. If the assault did occur, then the defense attorney must determine whether the aggravating factors were actually present. If they weren’t, then the charges could be reduced to simple assault.

In the case of the Wilmette man, who allegedly tried to back over the other person, an experienced criminal defense attorney would look at whether the driver could actually see the other person in his rear view mirror. If the driver did not know the man was back there, then he cannot be considered to have “used” a vehicle to threaten harm. Likewise, if there was a mechanical failure with the car that the driver was unaware of, such as faulty brakes, the driver could not be considered to have “used” the car to threaten harm, since he had no control over it backing up.  There is an intent component with regard to assault charges.

In the case of the Hazel Crest woman, the criminal defense attorney would need to determine whether she knew the officer was a peace officer. If he was a plainclothes officer who had not identified himself as the police, the charges might be dropped to a Class 4 felony. And when the driver turned and allegedly tried to run him over, did she actually know he was there, or was he in a blind spot or appear from nowhere? A person on a bicycle has more maneuverability on a city street than a car, so there is an argument to be made that the bicyclist could have quickly positioned himself in a spot where he wasn’t easily visible to the driver. Continue reading

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My client was charged with Aggravated Unlawful Use of a Weapon under 720 ILCS 5/24-1.6(a)(1) back in 2004 and was found guilty at trial in 2006.  Subsequently, in 2012, the Illinois Supreme Court, in People of the State of Illinois v. Aguilar, held that the Aggravated Unlawful Use of Weapons statute is unconstitutional.

In November of last year I filed a Motion to Vacate his 2006 conviction based on the Supreme Court’s decision arguing that since the statute has been declared unconstitutional it is void ab initio, meaning it is void at its inception and any conviction, regardless of when it was entered, should be vacated.

The State’s Attorney’s Office filed their response arguing that (a) the court has no jurisdiction to hear the matter as the motion was filed more than 30 days since the Court’s judgment and (b) that this is the incorrect venue for such a proceeding.  Argument was heard today and based on the correct motion having been filed by my office and the fact that the statute was declared unconstitutional, not only does the court have jurisdiction and venue is in fact proper, that my client’s conviction must be vacated.

Since my client has no other convictions on his record, his criminal background can now be expunged and is no longer a convicted felon!

But this is fast becoming a contested issue.  The general holding of the Aguilar decision is that the statute is unconstitutional.  Period.  The State’s Attorney’s office is now attempting to argue that the decision does NOT make the statute unconstitutional retroactively.  This makes no legal sense though.  The fact of the matter is, a law is either unconstitutional or it’s not.  It does not become unconstitutional at some point.  We have another motion pending in front of a different judge that is coming up in a few weeks.  I am expecting the State to make the argument regarding retroactivity, but am hoping it doesn’t come to that since I believe the judge may be leaning towards the State’s argument.

I would continue to advise those with prior convictions for Aggravated Unlawful Use of Weapons charges, assuming they had a valid FOID card at the time of the arrest, to contact us to file a Motion to Vacate the Conviction.  It certainly cannot hurt to try and if it is granted, it could clear your record and allow further employment advancement among other benefits. Continue reading

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My 22 year old client, with no criminal background, was charged with Armed Robbery and Aggravated Battery.  This case carried a mandatory 21 year sentence if convicted because there was an allegation that a firearm was used during the offense.

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My client was charged along with another co-defendant after they allegedly robbed a pizza delivery guy.  Even though my client did not possess the weapon, because he was “involved” the state’s attorney was attempting to use the law of accountability to charge him with the same crime as the co-defendant.  The law of accountability states that a defendant must engage in a common criminal design or agreement, any acts in furtherance of that common design committed by one party are considered to be the acts of all parties.

And I tell all of my clients, even if I believe they have a difficult case, you never know what will happen when an officer or civilian victim testifies.  In this case, the officer’s sworn report stated that my client actually took possession of the pizzas, after his co-defendant held a gun to the victim’s head, and ran into a neighboring house.  There were also allegations that not only was a gun held to the victim’s head, but that three other masked individuals were involved who attacked the victim, causing bodily harm.  At trial the victim made no mention of my client possessing a firearm or taking possession of the pizzas.  A motion was made after the state’s attorneys rested their case for a directed finding of not guilty.  The judge heard arguments from both sides and determined that my client could not be found guilty and found my client NOT GUILTY!  And my scared client did not even have to testify.  720 ILCS 5/18-2

Continue reading

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One of the worst crimes you can be charged with in Chicago is criminal sexual assault, or rape.  Not only does it create a stigma against the person charged, but often results in lengthy prison sentences and lifetime registration as a sex offender.

You may have read in the Chicago Sun Times about the case regarding Carl Chatman.   Mr. Chatman was charged with criminal sexual assault, or rape, by a woman in Chicago.  Mr. Chatman was not only convicted of the charges but sentenced to thirty years in the Illinois Department of Corrections as a result.  Another notable case regarding Edward Szymczak would have had a similar result if he had remained in Chicago for his trial.

Fortunately the prosecutors eventually reviewed the evidence in Chatman’s case and his rape conviction was thrown out, and he was released from prison after 11 years in custody.  Eleven years in custody for a crime Chatman did not commit.  At the same time, prosecutors said they were reviewing the woman’s earlier allegations of rape against Szymczak but had not yet reached a conclusion.

These cases bring up the issue of the accusers and their statements.  How is it that someone can cry rape falsely, an innocent person is charged with a crime, his reputation is ruined and he is sent to prison?  All because someone made a false claim.  And nothing happens to the accuser.

It is an abomination of justice.  The State of Illinois is currently reviewing these practices and possibly deciding what, if anything, an accuser can face.  Many people believe that the accuser should face the same penalties as the accused.  If the accused is facing up to thirty years in prison, so should the accused, that is how serious this is. Continue reading

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Have you or someone you know been arrested in Chicago?  It doesn’t matter if it’s a simple battery charge or a more serious charge of first degree murder.

Getting arrested can affect you in more ways than you can imagine.  Apparently, there are a few websites, such as mugshots.com, that post your mug shot online upon arrest.

While this initially doesn’t seem like a big deal, it is.  Let’s say someone is arrested and later released without having charges filed against them.  Your mug shot is now all over the internet for anyone to see.

This article lays out the issue:  http://www.digitaltrends.com/social-media/online-mugshots/

And let’s then go with the scenario that someone is charged and goes to trial and is found not guilty. Guess what? His or her mug shot is STILL online for anyone to see.  So, these people who were either not charged or found not guilty go about their daily lives and decide to obtain employment.  As we all know, employers now go online to check out potential employees.  What are they going to find?  Probably your Facebook and Twitter posts, which may or may not be innocuous, but also your MUG SHOT!  How are you going to explain that one?

If you want to remove your mug shot, guess what now?  You have to pay upwards of $100 PER SITE to have it removed.  And how can you be sure that once you pay this fee, the site will actually remove it?  You can’t.

Again, you have to be careful in life on how you comport yourself.  There are consequences that can be long-lasting. Continue reading

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Have you ever been stopped by the Chicago Police for no apparent reason and are now facing Chicago drug charges?  You can most likely relate to the following recent story out of New York City.

Following a $14,000 March, 2013 settlement to a Brooklyn man who claimed he was illegally stopped and frisked pursuant to the controversial “stop, question and frisk” policy in effect by New York City—a federal judge ruled on August 12th that the policy was both unconstitutional as well as racially discriminatory. As noted in the decision handed down by Judge Shira A. Scheindlin, (Floyd v. City of New York), the complaints that have been received by several Chicago drug defendants regarding the policy have merit as well.  Specifically, a year before the lawsuit and Judge Scheindlin’s decision, the New York City Council introduced legislation known as the Community Safety Act. This legislation first established an independent inspector general to review current police policy and practice regarding the stop and frisk issue. Secondly, the Act enforced a current anti-profiling law and expanded the categories of those protected from such profiling. chicago-police-176193-m  This has everything to do with violations of the 4th Amendment of the United States Constitution regarding search and seizure.

New York City Council and Mayor Bloomberg Carry on the Battle

Following the above-mentioned lawsuit, the City Council voted on the Community Safety Act in June. While the Act passed through the Council nearly unanimously, Mayor Bloomberg vetoed the legislation in July, stating “This is a fight to defend your life and your kids’ lives…” Bloomberg has been vocal in stating that any extra departmental oversight prevents officers from effectively doing their jobs and places New York citizens in harm’s way. Many citizens of New York would disagree with the Mayor’s assessment. Keeshan Harley, an 18-year old young black man from Brooklyn has been stopped by the NYPD almost 150 times “without proper cause or fair reasoning,” under the NYPD stop and frisk policy.

Stop and Frisk Comes to a Halt

Apparently, many New Yorkers side with the City Council as on August 22nd, the era of unchecked stop-and-frisks by the NYPD ended when Bloomberg’s veto was overridden. Bloomberg vows to keep fighting the issue, claiming the Act a “dangerous piece of legislation.” Bloomberg’s opinion may have merit as well—those bent on committing crimes in New York City seem to have gotten the “memo” loud and clear following the Council’s decision. One police source claimed he would start carrying his gun again and that once the number of stops decreased the number of crimes would skyrocket. With police officers under threat of a lawsuit any time a suspect could potentially claim profiling, it is believed that good officers will simply “look the other way,” rather than risk their jobs and their pensions.

How the New York Stop and Frisk Could Affect Chicago

A Bronx police officer commented “Welcome to Chicago,” following the NY Council’s veto, insinuating that the crime rate of New York City would soon reach that of Chicago once police officers stopped taking advantage of “stop, question and frisk.” A spokesman for the Chicago Police Department responded to the barb, saying “We don’t engage in racial profiling.” Adam Collins went on to say that there was significantly less crime, fewer shootings and fewer murders in 2012 than any other year since 1965—and without imposing on citizen’s rights. Chicago does have a version of stop and frisk known as “contact cards.”

This allows police to stop an individual, ask for name, phone number and the disclosure of any tattoos however the officer may not make physical contact without probable cause. Nevertheless, Chicago police are not completely exempt from racial profiling. Four interns for Rainbow Push have accused Chicago police of racial profiling as the four young black men, ranging from 19-21, were stopped and handcuffed as they were walking toward a bus stop. One of the young men attends Chicago State University and is seeking a degree in criminal justice. The young men suspect the police were looking for guns—although no weapons were found during a pat-down. Police officials defend the actions of the officers stating the area is well-known for gang violence and that one of the young men refused to remove his hands from his pockets when asked.  Continue reading

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Many of my clients have faced Chicago aggravated robbery charges.  Don’t be fooled into thinking that the element of aggravated or armed robbery consists solely of the use of a functioning firearm.

In early August, two Chicago men attempted to hold up a West Rogers Park restaurant using a black toy water pistol. The “weapon”—a fairly convincing replica of an MAC-10 machine pistol—was partially concealed in one of the men’s t-shirts as he demanded that the restaurant owner give them food, stating “I will kill you, I have a gun.”  The owner reportedly told the men to come back in an hour and he would have a meal for them as he was too busy at the time. The men obligingly left, returning as asked, an hour later. Of course by that time the restaurant owner had called the police and ushered other patrons out of the restaurant for their safety. Both men were arrested and charged with attempted aggravated robbery. The man with the water pistol was additionally charged with possession of a replica firearm.  Both men were slated to appear in court on August 19th.

On a more national level, many will remember that O.J. Simpson was convicted of aggravated robbery and kidnapping thirteen years after he was acquitted of the crime of killing his former wife. Apparently Simpson was the leader in a group of men who used threats and force to take photos, footballs and other sports memorabilia from Bruce Fromong and Al Beardsley in a Las Vegas motel room in 2007. Simpson’s lawyer claimed his client was a target from the beginning and that Simpson was merely tryheavy-machinegun-1329270-ming to reclaim property which had been stolen from him. Simpson also claimed he had no idea the men helping him recover his property were armed at the time. Simpson was eventually sentenced to 33 years in prison although recently he was granted parole on some of the charges; he will likely remain in prison for several additional years unless his request for a new trial is granted.

In light of the above, it is important to consider the following:  robbery consists of taking another person’s property whereas aggravated robbery involves a number of additional dispositive factors. Chicago aggravated robbery charges can vary dramatically from case to case; issues which will determine the extent of the charges generally include the use of force or verbal threats during the act, robbing an elderly person, an injury on the part of the victim, suggesting a weapon is present (even if it was not) or invading the home of another during the robbery act. Aggravated robbery convictions charged as a Class 1 felony are very serious so the crime—even when a water gun is used and nothing is actually taken—can garner the offender 4-15 years in the state prison. The longer sentencing is reserved for robberies which take place in a church or school or when the victim is elderly or handicapped.

The charges of aggravated robbery could have a variety of defenses depending on the circumstances. Your attorney could claim mistaken identity or could defeat the robbery charges by proving nothing was taken.  Consideration will also be given to whether there were injuries involved, if you have ever been involved in gang activity or if you have a prior criminal conviction.  It is especially important that you not talk to anyone prior to retaining an attorney. Although we’ve all see television shows where the police officers advise suspects of their Miranda rights, few people actually follow this practice in real life. Many people attempt to talk their way out of the charges—a practice which almost always ends up making the situation worse. Continue reading

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Having been charged with Chicago armed robbery, you are aware that this is one of the most serious types of charges you can face.  In fact, probation is not even an option.

According to the FBI, a man in Park Ridge, Illinois, armed with a hammer, proceeded to rob a bank, getting away with an undisclosed amount of cash. It was noted by those at the scene that the robber appeared extremely nervous and agitated during the crime, luckily however, no one was injured. The man has not yet been apprehended, however when he is caught, he will likely be charged with armed robbery. It is worth noting that, in light of the above story, anyone considering committing the crime of robbery should remember that sometimes others fight back when they perceive a credible threat to their safety.  For instance, a 62-year old Chicago shop owner defended his store and his brother-in-law who was in the shop, by swinging a baseball bat at two robbers as one of them opened fire. The shop owner and one of the gunmen suffered gunshot wounds and the robbers—who fled the shop—were later identified through surveillance video. One suspect was apprehended and is currently being held on charges of armed robbery and attempted murder. The shop owner is expected to make a full recovery. police-line-970702-m

Chicago Armed Robbery is considered a violent crime, involving the use of force or the threat of force. The circumstances surrounding the crime will have considerable bearing on the charges, as well as the eventual sentence. If the robbery was perpetrated on an elderly or disabled person or if serious bodily injury occurred in the commission of the crime, the charges will increase accordingly.  Armed robbery occurs when a deadly weapon is used or when the person being robbed was threatened with the weapon. Prior robbery convictions or even a history of unrelated criminal charges can make the sentencing more severe. If you were on probation or parole when you were arrested for armed robbery, the felony charges may be escalated to a higher class. In some cases your criminal defense attorney might be able to negotiate your charges down to a lesser offense.

Although many people believe robbery is one of the most-often committed crimes, in fact it is down the list at number five, following larceny-theft, burglary, motor vehicle theft and aggravated assault. If you have taken part in an armed robbery, be aware that the charges are very serious and that there is a very narrow window of time between your arrest and the prosecutor’s decision to file charges against you. Those with an experienced criminal defense attorney by their side stand the best chance of avoiding criminal charges. The consequences of an armed robbery conviction can include:

·      A permanent criminal record

·      The necessity of submitting to random drug testing

·      Restitution

·      Steep fines

·      Jail or prison time

·      The inability to obtain a student loan after your prison sentence has ended

·      The inability to obtain a job, work with children, obtain a professional license, run for public office or own a firearm once your prison sentence has ended

·      A negative impact on your ability to obtain employment

Your Chicago criminal defense attorney will assess your individual situation thoroughly then determine the best course of action. Some potential defenses include:

·      Failure to read the Miranda rights to you

·      An illegal search or seizure

·      Your alibi for the time of the robbery

·      A claim of mistaken identity

·      The lack of intent to commit the crime charged

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