Misdemeanor

July 13, 2014

Cook County Mother Convicted of Criminal Neglect in Death of Son

by Law Offices of David L. Freidberg, P.C.

A Berwyn woman was convicted in May of three felony counts of criminal neglect in the 2011 death of her 14-year-old son, who was disabled. She had originally been charged with child endangerment, but those charges were dropped.

The son, who had been found in the front yard of the family home after paramedics were summoned, died of pneumonia. His mother said she was treating him for an illness with antibiotics intended for animals. Police reported that the woman’s house was filthy, overrun with animals (some reportedly dead), and had no running water or working appliances. The woman and her mother, who also lived in the home, denied that the home was unlivable.

Criminal Neglect of Disabled in Illinois

Because of their vulnerability, Illinois law provides special protection to the disabled by making criminal neglect of the disabled a separate offense. In Illinois, the caregiver of a disabled person may be charged with criminal neglect if it can be proved that he or she knowingly:

Acted in a manner that caused the person’s life to be endangered, his health to be injured, or a pre-existing condition to deteriorate;
Failed to perform acts he knew, or reasonably should have known, were necessary to maintain the disabled person’s life or health;
Abandoned the person;
Physically abused, harassed, intimidated or interfered with the person’s personal liberty; or
Exposed the person to willful deprivation.

The caregiver cannot be charged if she made a good faith effort to provide for the disabled person’s needs, but was unable to provide that care through no fault of her own.

Criminal neglect is a Class 3 felony, unless the neglect resulted in the disabled person’s death, in which case it is a Class 2 felony. If prison time is imposed, it may be anywhere from three to 14 years.

Defense Against Cook County Charge of Criminal Neglect

Defending against charges of criminal neglect of the disabled is a sensitive area. The vulnerable in our society need extra protection, since they either lack the physical or mental capacity to care for themselves. But caring for the disabled can be overwhelming, particularly in the case of the Berwyn mother: she was a single parent raising three other children while simultaneously taking care of her elderly mother.

While being overwhelmed does not excuse failing to provide for a disabled person’s basic needs, it also does not paint a portrait of someone coldly indifferent to the needs of the person in her care. In the case of the Berwyn mother, there were additional factors that likely led to the jury’s decision, namely the home being full of living and dead animals. But for others, the overwhelming task and lack of services could offer mitigating circumstances that could either sway a jury to acquit or cause a judge to impose little to no prison time.

It is a complete defense to criminal neglect of the disabled if the caregiver can show that she tried to provide for the disabled person’s needs but, through no fault of her own, was unable to meet those needs. Illinois consistently ranks in the bottom five in national surveys for access to disability services, meaning well-intentioned caregivers could find themselves suddenly overwhelmed with no place to turn for help.

Other factors that may show that the caregiver was not at fault for failure to provide services could include:

Lack of health insurance, or health insurance that does not cover the disabled person’s needs;
Lack of income to provide for medical needs not covered by health insurance, or;
Documented attempts to acquire services from social service agencies.

June 20, 2014

Chicago Inmates Get Second Chance Under New Jobs Law

by Law Offices of David L. Freidberg, P.C.

Chicago job applicants with a felony or misdemeanor on their record will no longer be required to include their criminal history on job applications under the Job Opportunities for Qualified Applicants Act. Known as the “ban the box” measure, for the box on job applications that asks applicants to check whether they have ever been convicted of a crime, the new law is expected to be signed by the governor and go into effect January 1, 2015.

Illinois Employers Prohibited From Inquiring about Criminal History

The law prohibits employ prison ers with more than 15 employees from asking potential employees on the job application whether they have a criminal history. Instead, employers may only ask about a potential employee’s criminal history at the job interview or when a conditional offer of employment is made, if there were no interviews. Employers are also prohibited from conducting background checks on potential employees until the interview or job offer phase.

The new law is a necessary protection for job applicants with a criminal history, especially those convicted of non-violent crimes or crimes when they were very young and immature. Many of these individuals never get past the application stage, despite being qualified for the job, simply because of the hiring committee’s prejudice against ex-inmates.

The law will let qualified individuals proceed to the interview phase, where they will have the opportunity to explain the circumstances that led to their conviction, address the company’s concerns about hiring an ex-prisoner, and prove to the hiring committee that they will be a hard-working, dedicated employee. Studies show that employers who meet with an ex-prisoner are four times more likely to hire them. Without this law, these individuals may never be able to gain meaningful, gainful employment sufficient to support themselves and their family, resulting in higher recidivism rates.

Although definitely a step in the right direction, the law underscores the need for obtaining quality, experienced legal representation from the moment you are arrested and charged with any crime, whether a misdemeanor or felony. Conviction of any crime has consequences that extend beyond prison time, fines and/or probation – it can adversely affect your ability to obtain a job or acquire housing. And while the law prohibits employers from inquiring into your criminal history until the interview phase or when a job offer has been made, it does not prohibit a potential employer from refusing to hire you because of that criminal history.

The only sure way to avoid losing a potential job is to not have a criminal history – and that starts with hiring a tough criminal defense lawyer who can get the charges against you dropped and win an acquittal in court. You want an attorney who knows how to find and exploit the flaws in the prosecution’s case. You want an attorney who works with a team of private investigators and forensic and medical experts to cast doubt on the prosecution’s evidence. With 18 years of experience successfully defending clients against all types of misdemeanors and felonies, you want David L. Freidberg. Continue reading

June 11, 2014

Skokie Toddler Left in Car – Child Endangerment?

by Law Offices of David L. Freidberg, P.C.

It is a phenomenon that we have seen repeatedly in news stories across the country in recent months: parents leaving their young children unattended in the car while they go shopping or to a job interview. And now a Skokie, Illinois woman has been charged with child endangerment for leaving her toddler in the car while she went to work, a misdemeanor under Illinois law.

Illinois Child Endangerment

Under Illinois law, an individual commits the crime of child endangerment if she knowingly causes the child’s life or health to be endangered, or causes the child to be placed in circumstances where his life or health would be endangered. Child endangerment is a Class A misdemeanor, which is punishable by less than one year in jail and up to a $2,500 fine.

There is a rebuttable presumption that a child under the age of six is unattended if left in a motor vehicle for more than 10 minutes, and that his life or health was put in danger. A rebuttable presumption means that the trier of fact (either the judge or jury) may assume that the child was left unattended, but the defendant can provide evidence to rebut that presumption.

Children left in cars is common, and most parents are unaware that Illinois has laws against leaving children unattended in motor vehicles. In some cases, there is no neglect at all. Call it a momentary lapse in judgment, or in some cases even an unfortunate accident.

Defense of Child Endangerment

Of course, there are cases of truly neglectful parents who place their child’s life and health in danger – parents who go off drinking, doing drugs or gambling. But for others, like the ones mentioned above, it is an accident, or a choosing of the lesser of two evils. What type of defense is there against these charges? Defense of both of these types of incidents involves looking at the specific facts of the case to determine if the parent knew that he was leaving the child alone and if he did in fact leave the child alone.

For the parent who forgets that their child was in the car, the charge of child endangerment rests on the word “knowingly”. If the parent can prove that he did not realize he had left his child in the car, then he cannot have knowingly placed the child’s life or health in danger.

For the parent who leaves the child for a short time, defense would hinge on whether the child was truly unattended. Illinois law states that for purposes of leaving a child unattended, the child must have been out of sight of the adult. For instance, if the parent ran in to the bank, could he see the car and the child at all times, perhaps through a window or a door? Did the parent have the ability to see or hear the child from inside the building, perhaps through the use of a monitor left in the car that was able to be seen or heard through the parent’s cell phone? If the parent could prove that he was, in fact, ‘tending to’ the child, then he cannot be charged with child endangerment. Continue reading

June 2, 2014

Crime and Mental Illness in Illinois

by Law Offices of David L. Freidberg, P.C.

The Cook County Sheriff’s Office reports that 44% of individuals arrested and brought to Cook County jail for intake on May 22 self-reported as mentally ill. Even if we assume that arrestees self-report at a higher rate because they believe claiming mental illness will grant them leniency, it is still an alarming number, and highlights the importance of hiring an experienced criminal defense attorney if you or your loved one suffers from a mental illness and is arrested in Chicago or the surrounding suburbs.

Mental Illness Not a Criminal Defense in Illinois

Illinois defines mental illness as “a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior.” Contrary to what some may believe, a claim of mental illness is not the same as pleading insanity as a defense. The insanity defense requires that the defendant lack “substantial capacity to appreciate the criminality of his conduct.”

A person suffering from a mental illness – for example, someone with post-traumatic stress, a type of anxiety disorder – would understand that assaulting his neighbor with a baseball bat is wrong, even though at the moment he was unable to control it. A person suffering from insanity would not believe the attack was wrong and, if successful in pleading insanity, would be absolved of all responsibility.

Is a person suffering from some type of mental illness – whether anxiety disorder, schizophrenia, bipolar, or some other illness that, for whatever reason, can momentarily impair his judgment – or even a person suffering from cognitive disabilities, such as a person with Down’s syndrome, held to the same standard as a healthy defendant?

Yes and no.

Mental illness is not a total defense to a crime in Illinois, and so even if both the prosecution and defense agree that the defendant suffered from a mental illness that impaired his judgment, a jury can still find him guilty of a crime. However, defendants often raise it as a defense in court to be granted leniency. And in some cases, the jury or judge will take the defendant’s illness into consideration when reaching a verdict or handing down a sentence, including sending them to an alternate treatment program where they can receive services, rather than simply locking them up in prison.

Mental illness is generally not a driving force behind the commission of crimes. A recent study found that only 7.5% of crimes are committed over the course of symptoms of the defendant’s mental illness, and that 66% of those also committed crimes related to other factors, such as drug abuse, homelessness or being poor. But for individuals suffering from mental illness, an experienced criminal defense attorney is more important than ever. Continue reading

March 31, 2014

Chicago Assault and Battery Crimes – What’s the Difference?

by Law Offices of David L. Freidberg, P.C.

You often hear of a person having committed “assault and battery”. But while they are closely related, in Illinois assault and battery are two separate crimes, each with different penalties. Assault and battery are also classified as simple or aggravated, with aggravated crimes carrying much stiffer penalties. If you have been charged in the city of Chicago, or in Cook, Lake, DuPage, Will, Kane or McHenry counties with assault or battery, contact an experienced criminal defense attorney immediately to begin mounting your defense.

Assault Crimes in Chicago

In Illinois, under section 720 ILCS 5/12-1, a person commits simple assault when he or she knowingly engages in conduct that “places another person in reasonable apprehension of receiving a battery.” Assault is a Class C misdemeanor punishable by less than 30 days in jail and a maximum fine of $1,500. If no jail time is imposed, then the court must order between 30 and 120 hours of community service.

Simple assault does not involve any physical harm to the alleged victim, nor does it require any physical contact. Instead, assault is putting someone in fear that they are about to be injured or struck in any way. However, the law requires that the threat be reasonable.

In examining this reasonableness, at attorney will consider whether:

You were close enough to the other person when you made the supposed threat that you actually could have touched them;

It was a threat you could have followed through on, or a comical threat that could never happen;

The threat was a single statement or action, or whether it was part of a longer interaction that left no reasonable interpretation that you intended harm – for example, you argued with a stranger over his having stolen your parking space and, between yelling about the general lack of courtesy in today’s world and why you were entitled to the spot, you yelled, “I’m so mad I could hit you!”

The presence of any of these scenarios could lead to a dismissal of the assault charges.

Battery Crimes in Chicago

Where assault is the threat of bodily harm, under Illinois statute 720 ILCS 5/12-3, battery is when the person follows through on the threat. A person commits the crime of battery in Illinois when he knowingly:

causes bodily harm to another person, or
makes physical contact of an insulting or provoking nature to another person

Battery is a Class A misdemeanor punishable by less than one year in jail and a maximum fine of $2,500.

Notice that a charge of battery does not require that the alleged victim was injured – there only needs to be unwanted contact. If you pushed someone during an argument, or if you poked the person while yelling racial slurs, this may be enough for the police to arrest and charge you with battery.

Likewise, you can be charged with battery even if you did not physically cause the injury. For example, you could be charged with battery if you punched someone in the face. You could also be charged with battery if you swing a baseball bat into a window, and a piece of shattered glass becomes embedded in the arm of a person standing next to the window. Even if you did not intend the harm, it could still be considered battery because you set in motion the chain of events that caused the injury. Continue reading

March 30, 2014

Felony Aggravated Assault with a Vehicle in Illinois

by Law Offices of David L. Freidberg, P.C.

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 receiving 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