Murder

April 27, 2016

The Coroner Says Marques Gaines Was Murdered, But by Whom?

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

A series of events led to the death of a Chicago man, Marques Gaines, that is now being called a homicide by the coroner’s office. Gaines and an unidentified man started arguing outside a 7-Eleven Store. The argument escalated, ending up with the unidentified man assaulting Gaines in front of the store and leaving him unconscious in the street.

Several bystanders rifled through Gaines’ pockets and robbed him while he lay unconscious. Other bystanders walked casually over and around the unconscious man but no one attempted to help him. Eventually, a taxi cab driver ran over Gaines. Gaines was taken to the hospital and later pronounced dead.

The question is who is responsible for Gaines’ “murder.” Was it the unidentified man who punched Gaines and left him unconscious in the street? Was it the bystanders who robbed him while he lay unconscious in the street and failed to assist him; or was it the cab driver, who may not have known that Gaines was lying unconscious in the street, but who ended up running over him? Who is ultimately responsible for Gaines’ death, and who will be charged with his murder?

April 6, 2016

Unusual and Infamous Crimes

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

Unusual crime stories make the news on a regular basis, grabbing the imagination of the viewers and keeping them enthralled and glued to their television sets, not to mention increasing the network ratings. These crimes make huge splashes in the news and tantalize the audience with wild scenes of decadence and drama, like the latest soap opera or reality show. Most crimes of this caliber usually involve, money, murder, sex.

Chicago Woman Kills Mother While on Exotic Vacation

The Bali suitcase murder case involved a million dollar trust, an exotic vacation, angst between a mother and daughter, and conspiracy between lovers to commit murder. Heather Mack and Tommy Schaefer were convicted and sentenced to 10 and 18 years, respectively, for the murder of Mack’s mother. They will be serving their time in a Bahi prison. Mack, Schaefer, and Mack’s mother were on vacation when the murder occurred. Soon after being incarcerated, Mack gave birth to her daughter. According to Indonesian law, the baby will be raised by Mack in her prison cell until the child reaches the age of two years old.

March 4, 2016

High Profile Cases and the Media

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

High profile cases usually get a lot of attention in the media. Sometimes, media attention can advance the cause of justice, and sometimes it can inhibit it. When a case is tried in the court of public opinion, facts are sometimes ignored and emotions become the measuring rod for “guilt or innocence.”

There have been a few high profile cases that have garnered such media attention, both past and present. But in this century there is one particular case that has received the most attention.

One infamous high profile case comes to mind, The State vs. O.J. Simpson. Twenty-five years ago, Nicole Simpson and Ron Goldman were brutally murdered at Nicole Simpson’s home in Brentwood, California. Attention focused on one particular suspect, Nicole’s famous ex-husband, O.J. Simpson. Simpson was arrested and charged with the murders, and the case gained immediate media attention due to Simpson’s celebrity status.

February 10, 2016

First Degree (Capital) Murder Laws in Illinois

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

In all jurisdictions, first degree murder is the most serious of homicide crimes that one can commit. The prosecutor in a “first degree” murder case must show, beyond a reasonable doubt that (1) one individual killed another individual, “without justification”; (2) that the individual intended to kill or do great bodily harm to the victim; (3) that he or she knew that the actions would or could produce such bodily harm that may result in death; (4) that the individual killed the victim while in the process of committing a felony (except the lesser included second degree murder charge).

In Illinois, the penalties for first degree murder often depends on who the victim was and any circumstances surrounding the murder. But under no circumstances will the penalty result in the death penalty. The death penalty for all intents and purposes has been abolished in Illinois. Illinois courts will often request a separate sentencing hearing after the defendant has been found guilty, in order to consider any aggravating or mitigating circumstances.

The Death Penalty for First Degree Murder Has Been Abolished in Illinois

September 4, 2015

Chicago Man Charged with Homicide after Woman’s Fetus Dies in Car Crash

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

A Chicago man is being held on $2 million bond and is being charged with reckless homicide of an unborn child, among other charges. Bail was set at $2 million Saturday for a man accused of causing a Northwest Side crash that seriously injured a pregnant woman and killed her unborn child. On Wednesday, August 12, the Chicago man allegedly crashed into a parked Mazda Protégé in which the pregnant woman was sitting.

Fetal Homicide Laws in Illinois

Maybe you were not aware that you can be charged with murder if a pregnant woman’s fetus dies as a result of your action. Illinois statute defines and penalizes for intentional homicide of an unborn child, voluntary manslaughter of an unborn child, involuntary manslaughter and reckless homicide of an unborn child, respectively. These statutes define an “unborn child” as any human individual from fertilization until birth.

August 7, 2015

Bail Denied for Suspect in Attempted Murder of Chicago Cop

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

The Chicago Sun-Times reported that Raphael Jordan, who was charged with the attempted murder of a police officer, is being held without bail. According to witnesses, the officer was wearing her Chicago Police badge on her belt while working a side job as a security guard for a construction company when she saw Jordan walking away from a construction site with a hammer drill owned by the company. After the officer told Jordan to stop, he ignored her, dropped the hammer drill, and proceeded to a nearby van. The van was running and a female was sitting in the front passenger’s seat. The officer pulled her gun after Jordan continued to ignore her, even after identifying herself as a Chicago police officer, and approached the vehicle.

Jordan began to drive away as the officer was standing beside the driver’s side door. She planted her feet on the moving van’s floorboard as she clutched her gun in her right hand and held herself in place in the van with the left hand. Jordan allegedly attempted to throw the officer from the vehicle by driving up against four separate vehicles and swerving from side to side. After crashing into a fifth vehicle, Jordan grabbed the officer’s gun and shot her once, hitting her thigh and calf. Jordan then drove off, leaving his cellphone. The police found Jordan after conducting a search of his cellphone, which they did so after a court issued a search warrant.

Attempted Murder in Illinois

The prosecution in an attempted murder case has the burden of proving, beyond a reasonable doubt, that a suspect deliberately, intentionally, or recklessly with extreme disregard for human life, attempted to kill someone. Attempt, under Illinois law, is to perform an act which constitutes a substantial step to committing an offense that a person specifically intended to commit.

This substantial step must be an act that is directly done in furtherance of an intention to kill. Preparing to kill someone or planning to do so is not enough to satisfy the elements of attempted murder. The required substantial step may consist of using a weapon against another, such as a gun or knife, and either inflicting serious wounds or firing a weapon into someone’s chest or head, areas most likely to result in death. In this case, Jordan fired a weapon directly towards the officer and hit her thigh and calf. If the prosecution can show that this inflicted a serious wound, and that Jordan did so with the intent to kill the officer or with extreme recklessness, that would support a conviction for attempted murder.

Attempted murder in Illinois is a Class X felony and may carry a prison term of no less than 20 years and not more than 80 years. When the attempt is done while armed with a firearm, a mandatory 15-years term is added to the sentence imposed by the court. If the attempt was committed during which the suspect discharged a firearm, 20 years will be added to the sentence imposed by the court.

Cellphone Searches

In this case, the police found Jordan by conducting a search of his cellphone, for which they got a search warrant from a court. Last year, the U.S. Supreme Court unanimously ruled that police almost always need a warrant to search a person’s cellphone, even if they were arrested. The Court held that cellphones fall under a person’s Fourth Amendment rights against unreasonable search and seizure. Only in extreme cases may warrantless cellphone searches be permitted, such as if a cellphone is suspected of being a bomb detonator.

June 30, 2015

Murder Conviction Reinstated by Illinois Supreme Court

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

The Illinois Supreme Court reversed the decision of a lower court of appeals and reinstated the first-degree murder conviction and 70-year sentence of Mark Downs, who shot and killed a 6-year-old boy, Nico Contreras, in his sleep. The convicted murderer fired a gun into a bedroom window at the Aurora home of the victim’s grandparents on July 10, 1996. During the trial. the court instructed the jury that it was their duty to define reasonable doubt in the case, which an appeals court ruled was incorrect and caused the conviction and sentence to be reversed. However, the Illinois Supreme Court said that the instruction given by the judge was correct and that the jury convicted Downs with a proper understanding of reasonable doubt.

No Jury Instruction for Reasonable Doubt in Illinois

In this case, the jury sent a note to the court asking whether its definition of reasonable doubt was 80 percent, 70 percent, or 60 percent. The U.S. Supreme Court has said that the U.S. Constitution does not require or prohibit a definition of reasonable doubt, and in Illinois, trial courts (and attorneys for the prosecution or the defense) are not allowed to provide jury instructions that define reasonable doubt. This is because “reasonable doubt” is difficult to define, and trial judges usually end up substituting other phrases that are equally difficult to understand. Therefore, the Illinois Supreme Court has ruled in the past that “reasonable doubt’ should speak for itself without any attempt at a definition from the trial court.

When Downs appealed his conviction and sentence, he argued that the trial court’s instruction to the jury that it was their duty to define reasonable doubt in this case was erroneous because it violated the prohibition on instructions about reasonable doubt. According to the appellate court, the only acceptable answer would have been to tell the jury that reasonable doubt is not defined as a percentage, and to just inform them that reasonable doubt is the highest standard of proof in law, and that they had received all of the instructions needed to answer its question. However, the Illinois Supreme Court disagreed, saying that in decisions going back a hundred years, it has consistently held that the term “reasonable doubt” doesn’t need to be defined because the words themselves are enough to convey its meaning.

First-degree murder

The shooting occurred during a period in the 1990s when Aurora experienced a long period of street gang violence. It was at this time that Downs and an accomplice, Elias Diaz, reportedly targeted Nico’s uncle for belonging to a rival gang. Elias Diaz allegedly planned the shooting and drove the getaway card. He was convicted and received a 60-year term.

Here, Elias Diaz did not actually carry out the killing. However, there was testimony during the trial that he drove two men to Nico’s house and ordered Downs to shoot a man whom he believed was a rival gang member. Diaz thought that the rival gang member at one time occupied the bedroom in which Nico slept and ordered the shooting to occur there.

In Illinois, first degree murder is defined as performing an act that causes someone to die with the intent to kill that individual or someone else, and with the knowledge that the act will probably cause death or great bodily harm to that individual or someone else. For first-degree murder, it is not necessary that you are the one to actually carry out the act of killing. Ordering someone to commit the act is enough to satisfy the definition.

Additionally, a person will still be guilty of first-degree murder even if the person who dies was not the intended target of the intent to kill. Here, the actual target was Nico’s uncle, and not Nico. However, the Illinois statute explicitly allows the intent to be transferred, and that even if someone else was killed other than the intended victim, it would still be considered first-degree murder.

June 19, 2015

Palatine Man Acquitted of First-Degree Murder for Punch to Head

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

A Palatine man was acquitted of first-degree murder charges in early June following a jury trial. The defendant sent a fellow bar patron to the hospital following a single punch to the head; the victim died 10 days later. The defendant claimed he threw the punch in self-defense during a bar brawl.

Self-defense and First Degree Murder

The defense in this case was a two-pronged approach that involved self-defense and lack of specific intent.

First-degree murder

First-degree murder is a specific intent crime, which means that the defendant must have:

Intended to kill or cause great bodily harm to the victim;
Knew that his actions could result in death or great bodily harm, or;
Committed a forcible felony.

In this case, the victim died 10 days after being punched in the side of the head by the defendant. A forensic expert testified that the majority of the brain damage suffered by the victim was a result of the blow to the head, and not the subsequent fall to the ground. Jury verdict aside, it is difficult to see how the prosecution could successfully argue that the defendant had the specific intent required for a first-degree murder charge.

The punch occurred during the middle of a bar fight, where many participants were throwing punches and putting hands on each other. There was no indication that anybody was intent on causing deadly harm – it was just an ordinary bar fight, and the defendant jumped into the fray. His intent was to hit the victim, not to kill him or cause great bodily harm.

Nor does it seem plausible at all for the defendant to have known that his punch to the side of the victim’s head could result in death or great bodily harm. Unless the defendant was a prizefighter – and even prizefighters take heavy blows to the head on a routine basis and do not die as a result – nobody would believe that a bare-knuckled punch to the head would result in anything worse than a mild concussion. No laughing matter, but certainly not great bodily harm.

Without the victim’s subsequent death, the defendant committed battery – not aggravated battery – so the crime does not meet the criteria for first-degree murder under the forcible felony rule.

Self-defense

Under Illinois law self-defense is an affirmative defense for the use of force. The use of force must have been based on a reasonable belief that the action was “necessary to defend himself or another against such other’s imminent use of unlawful force.” The use of deadly force, or force likely to cause death or great bodily harm, is justified only to defend against similar use of force.

In this case, regardless of whether the defendant has a reasonable belief that the victim was about to assault either the defendant or his friend (which was the defendant’s justification for his use of force), the same argument against a conviction for first-degree murder applies here. There is no way the defendant could have known that a punch to the side of the head was going to result in the victim’s death. That the punch did cause the victim’s death was a freak accident.

The prosecution in this case gambled with an all-or-nothing approach and lost. Instead of allowing the jury to convict the defendant on lesser charges – manslaughter or felony battery, for instance – the only option offered was first-degree murder. Once the jury decided that the defendant did not have the requisite intent to convict on a first-degree murder charge, they had no choice but to acquit.

June 10, 2015

Obtaining DNA in Chicago Criminal Cases

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

Police were able to tie a suspect to a quadruple homicide that took place in the nation’s capital in mid-May after finding DNA on pizza crust left in the home. The suspect’s DNA was already in the criminal database as a result of past crimes.

Legal Requirements to Obtaining Chicago DNA Sample

DNA is a powerful forensic tool that can link a potential suspect to a crime. Lack of a DNA match can also be used to disprove that the suspect played any part in the crime. Blood, hair, semen, skin scrapings, saliva – all are potential sources of DNA.

If police uncover DNA evidence at a crime scene, in order to get a DNA sample to compare to the evidence, the suspect must either consent to give a sample, or the police must obtain a search warrant. If the police have other evidence to tie the suspect to the crime, such as fingerprints, video surveillance footage or the victim’s identification, getting the search warrant usually isn’t that difficult.

But in some cases, DNA is the only evidence that could place the defendant at the scene of the crime, and a police officer’s hunch is generally insufficient to persuade a judge to grant a search warrant. As the Washington, D.C., case illustrates, there are other ways police can obtain a suspect’s DNA without a search warrant. Think of the scenarios that you see played out on television crime procedurals – police officers taking a cigarette butt the suspect smokes during the interrogation, the soda pop can the suspect drank from, even removing a tissue the suspect used from the trash can – all of these may be enough to give police DNA evidence that would link the suspect to the crime. And this all is obtained without the defendant’s consent or a search warrant.

The Washington, D.C. case shows how the process may sometimes work in reverse. The police may have a DNA sample obtained from the crime scene, but no known suspect. In these cases the police run the DNA sample through the Illinois DNA database, hoping for a match. The database is the result of Illinois’ DNA Database Law requires any defendant who is either convicted or received a disposition of court supervision for, completing or attempting to complete a qualified offense to submit a DNA sample to the state’s DNA database. Qualifying offenses include conviction of any felony or crime that requires registration as a sex offender.

The DNA Database Law was expanded in 2012 to require that any suspect arrested and indicted for first-degree murder, home invasion, predatory criminal sexual assault of a child, aggravated criminal sexual assault or criminal sexual assault submit a DNA sample within 14 days of the indictment for inclusion in the database. That means a suspect may ultimately be acquitted, or the charges dismissed before trial, but his DNA has already been taken and placed in the state database.

In cases where a link is made in reverse – DNA evidence helps locate a suspect the police otherwise had no way of finding – the match is usually sufficient to persuade a judge to grant a full search and arrest warrant, which may lead the police to uncover other evidence of a crime.

May 7, 2015

Defendant Found Not Guilty by Reason of Insanity, Sentenced to Mental Institution

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

A DuPage County man who was charged with the attempted murder of his mother was declared not guilty by reason of insanity and sentenced to up to 30 years in a mental institution. A DuPage County judge found the defendant mentally unfit to stand trial for the 2011 stabbing and entered the ruling. But what level of competency is required to stand trial, and what does it mean to be found not guilty by reason of insanity?

Illinois Standard for Mental Fitness to Stand Trial

Under Illinois law each criminal defendant is presumed fit to stand trial. The criminal defense attorney has the burden of proving that, due either to mental or physical condition, the defendant is mentally unfit to stand trial because he does not “understand the nature and purpose of the proceedings” and is unable to assist in his defense.

Being mentally fit for trial does not mean that defendant will automatically be found not guilty by reason of insanity. Mental fitness to stand trial has to do with the defendant’s ability, at the moment of trial, to understand the purpose of the trial and assist in his defense. It has nothing to do with whether the defendant understands the nature of his alleged crime at the time of commission.

Mental fitness to stand trial can change over time. A defendant can be competent at the time of arrest but found incompetent – perhaps due to a subsequent injury unrelated to the charged crime – at the time of trial. Or a defendant can be mentally unfit when the crime was committed, such as if he suffers from a mental illness, but may be declared fit for trial once he is on a course of medication to keep his mental illness under control. It is not uncommon for prosecutors to seek a continuance of trial when a defendant is deemed mentally unfit to see if there is a possibility that he will regain the required competency to stand trial

Illinois “Not Guilty by Reason of Insanity” Verdict

In order for a defendant to be found not guilty by reason of insanity in Illinois, it must be proven that, at the time the crime was committed, the defendant lacked “substantial capacity to appreciate the criminality of his conduct” as a result of a mental disease or defect. In these cases, the defendant was unable to recognize that his actions were wrong.

Like proving the defendant is mentally unfit to stand trial, the burden is on the defense to prove, by clear and convincing evidence, that the defendant lacked substantial capacity to recognize that his actions were wrong, and should therefore be found not guilty by reason of insanity. The prosecution still bears the burden of proving the defendant’s guilt beyond a reasonable doubt. If the jury finds the defendant committed the crime, it may then decide whether to find him insane. The issue of the defendant’s sanity cannot be considered unless the jury finds that he committed the crime.

As evidenced in the above case, being found not guilty by reason of insanity does not mean that the defendant walks free. Criminal defendants who have been found insane can be committed to mental institutions, sometimes for a pre-determined sentence, and in other cases until the defendant can be cured of the mental defect.