Articles Posted in Murder

by

Everybody knows a defendant can invoke a claim of self-defense to defend against charges of murder, manslaughter, or other violent crimes that result in injury or death to another person. What you may not know is that a claim of imperfect self-defense can reduce a murder charge from first-degree to second-degree.

Illinois Imperfect Self-DefensID-10082528e

Under Illinois law, a homicide qualifies as second-degree murder if the defendant can show he acted under a sudden and intense passion due to provocation by the victim, or he actually, but unreasonably, believed he was acting in self-defense. This is know as imperfect self-defense. Imperfect self-defense is an affirmative defense, which means the defendant carries the burden of proof. If the defendant can successfully prove one of those factors existed at the commission of the crime, then the jury may find the defendant guilty of second-degree murder, rather than first-degree murder.

A defendant cannot be charged with attempted second-degree murder; he can only be found guilty of second-degree murder by proving the existence of one of the two mitigating factors. A charge of second-degree murder includes all of the elements of first degree murder: the defendant must have intentionally planned to kill the victim, or he knew there was a strong probability his actions would result in causing the victim great bodily harm or death. It is then up to the defendant to convince the jury he was either in a blind rage due to the victim’s actions (also known as the “heat of passion” defense), or he believed, however unreasonably, that his life was in jeopardy.

Here is one example of how imperfect self-defense would apply. An individual suffering from a mental illness that causes paranoia or delusions may plead imperfect self-defense if he actually, though unreasonably, believed the victim was about to cause him great bodily harm or death. In that case, the defendant believed his use of force against the victim was justified, even if, from an objective viewpoint, it was not.

Imperfect self-defense may also arise in cases of murder that occurred in the heat of passion. For example, a wife who walks in on her husband and his lover flies into a rage, grabs a gun in her nightstand drawer, and shoots them both dead. The wife knew her actions were likely to cause the death of her husband and his lover (she may even have intended it), but she was in such a blind rage due to his betrayal that she could not control herself. In this case, the defense could argue the charge be reduced to second-degree murder.  Continue reading

by

A 15-year-old Chicago boy was charged in February with the murder of his friend, a 16-year-old Chicago boy, who was shot in the head during the commission of an armed robbery. But this case has a twist – the victim was killed by an off-duty police officer, who himself was the victim of an attempted armed robbery by the victim and his friend. So how can the boy be charged with murder when he did not pull the trigger? Because of a controversial law known as the felony murder rule.

Illinois Felony Murder Rule

A criminal defendant can be charged with first degree murder in Illinois if the victim was killed while the defendant was “attempting or committing a forcible felony other than second degree murder.” Forcible felonies include armed robbery, burglary, sexual assault, or any other violent felony.

Although the full statute states that “a person who kills an individual” is the one charged with first degree murder, under the proximate cause theory of felony murder, the defendant does not have to be the one who actually killed the victim. Instead, the defendant can be charged for the death because the death was so closely related to the commission of the underlying felony.

The felony murder rule is based, then, on the assumption that any person committing a forcible felony – such as armed robbery – should realize that one of the risks is that somebody, either the victim or one of the assailants, may be killed. It does not matter if the assailant had no intention of killing anybody. Maybe the weapon was brought along just to scare the victim. Perhaps, even, it was not loaded, so there was no possible way the assailant could kill the victim.

But under the felony murder rule, intent is irrelevant. The only thing that matters in proving felony murder is that the underlying crime was a forcible felony. This makes defending against the charge extremely difficult, since the prosecution does not need to prove intent for the first-degree murder charge to stick.

Self-defense is not a defense to a charge of felony murder. Self-defense is the justified use of force against an unjustified force. Since armed robbery is the unjustified use of force, a person charged with felony murder could not argue that he was protecting himself from the victim.

Defending against a felony murder charge is fact intensive and depends on the circumstances surrounding each case. It may be possible to defend against a felony murder charge if the facts show that the defendant abandoned the plan before it happened (for example, if in this case the defendant had fled the scene as soon as he realized his friend had a gun).

Or, if the underlying crime began as a non-forcible felony, it may be possible to argue that the defendant could not have known the underlying crime could lead to murder because it did not begin as a forcible felony (for example, if the defendant and his friend had been robbing a vacant car and were then approached by the owner, at which point it escalated to a forcible felony).

Because there are so few defenses to a charge of felony murder, and because they are all fact sensitive, it is extremely important that you speak with a criminal defense attorney immediately if you are being charged with felony murder. While intent regarding the murder is irrelevant, intent regarding commission of the underlying crime may be partially relevant, and it is important to discuss those facts with a criminal defense attorney who understands the felony murder rule prior to making any statements to the police. Continue reading

by

A Chicago man was recently charged with attempted murder for allegedly stabbing another man in the chest. Based on the bare facts, it seems like a slam dunk case. The stabbing took place in a bar, in full-view of dozens of witnesses who, along with the victim and a third-party who was involved in the argument, can presumably identify the defendant as the suspect. But by examining all the facts surrounding the stabbing, a good criminal defense can be crafted that may result in outright acquittal or a reduction in charges.

Criminal Defense to Attempted Murder

In any attempted murder charge, the first step is to determine whether the defendant can plead the affirmative defense that he acted in self-defense. An affirmative defense means that the burden of proof is on the defendant (normally, the burden of proof in criminal cases is on the prosecution) to prove the facts that justify his defense. In a claim of self-defense, it is up to the defendant to prove that he was justified in using deadly force; it is not up to the prosecution to disprove that deadly force was justified (although most prosecutors will make that part of their case).

Under Illinois law, a defendant will be found to have justifiably used force and acted in self-defense if he can prove that he “reasonably believed” that force was necessary to defend himself or someone else against the victim’s use of force. However, force that is likely to cause death or great bodily harm – such as a stabbing in the chest – is justified only if the defendant reasonably believed that he was himself in danger of death or great bodily harm from the victim.

To prove a self-defense charge, a criminal defense attorney would examine all of the circumstances that led up to the stabbing, including statements by the victim, defendant and any eyewitnesses, to determine whether any of the facts would support a claim of self-defense. Facts that may support a self-defense claim may include:

  • Whether the victim made any threats to the defendant that would have made him reasonably believe that either he or his companion was in imminent danger;
  • Whether the victim had a weapon;
  • Whether the victim made any gestures that a reasonable person would have felt were of a threatening nature and indicative of a threat of bodily harm (such as reaching for a weapon);
  • Whether the defendant and the victim had a history that would have caused the defendant to have a reasonable belief of imminent harm; or
  • Whether the victim’s injuries were likely to cause death or great bodily harm, or if they were just minor wounds made to sound more deadly by describing them as “stab wounds to the chest.”

The presence of these or any other factor that would have caused a reasonable person to be placed in imminent fear of injury or death would result in a finding of self-defense, leading to an outright acquittal.

Chicago Aggravated Battery Charge

If, after a review of all the facts, it does not appear that a claim of self-defense can be sustained, a skilled defense attorney would seek a reduction of charges. In this case, an examination of the facts may show that while the defendant did in fact stab the victim, the charge should be aggravated battery, not attempted murder.

Aggravated battery occurs when the defendant inflicts great bodily harm to a third-party. The difference between aggravated battery and attempted murder is that in aggravated battery, the defendant did not intend to kill the victim; instead, he only intended to harm him or, perhaps, attempted only to scare him by brandishing the knife (which would be aggravated assault) and the stabbing was an accident. If an examination of the facts showed that the defendant never intended to kill the victim – or even that he never intended to stab him – then the charges could be reduced to aggravated battery, which involves much less prison time than a conviction on attempted murder.   Continue reading

by

A Chicago man was charged on July 1 with murder, which police believe was gang-related. The suspect was arrested on a warrant and allegedly confessed.

Defense in Illinois Murder Case

Defending against an Illinois murder charge is multi-faceted. The prosecution’s case must be attacked from all sides, beginning with the arrest and police interrogation.

Illinois Arrest Warrant

In order to be arrested in Illinois the police must have a warrant of arrest (or arrest warrant), or must reasonably believe that the person arrested committed a crime.

A warrant of arrest is issued by a court. If the arrest warrant was issued based on deliberate lies or a reckless disregard for the truth, it may be possible to have the warrant dismissed, along with any evidence the police may have uncovered when executing the warrant. In any murder defense, we will closely examine the arrest warrant to make sure the facts that resulted in the court’s issuance of the warrant are true.

Admissibility of Confession in Illinois Murder Case

The first line of defense in any murder case is challenging the prosecution’s assertion that they have caught the right man. In this case the defendant allegedly confessed to committing the murder. But that does not mean this is an open and shut case.

Any confession requires careful examination of the circumstances surrounding the defendant’s arrest and leading up to confession. If police failed to follow proper procedure, the confession may be considered inadmissible. If the prosecution filed charges based solely on the confession, having it ruled inadmissible in court may result in the charges being dismissed outright.

Factors that could lead to the defendant’s confession being deemed inadmissible include:

  • Failure of the police to read the defendant his Miranda rights prior to conducting the interrogation;
  • Failure to provide the defendant an attorney following a request for one;
  • Continuing to question the defendant following his request for an attorney;
  • Continuing to question the defendant out of the presence of his attorney once he has obtained one;
  • Questioning the defendant under harsh or inhumane conditions, such as a four-day interrogation with no breaks;
  • Whether the police or prosecution promised the defendant leniency in exchange for the confession, or;
  • Whether the police fabricated evidence to obtain a confession.

Validity of Confession in Illinois Murder Case

If the police followed proper procedure in obtaining the confession, given that this is a gang-related case, we would look at whether it was a false confession. It is not uncommon in gang cases for members to take the fall for those higher-up in the gang, as a show of solidarity or as part of initiation.

If other evidence tends to dispute the fact that the defendant committed the murder, then the validity of the confession would be called into question. Such factors that may help prove the confession was false include:

  • Lack of forensic evidence linking the defendant to the crime;
  • Forensic evidence of another person found on the alleged murder weapon;
  • Threats of harm made to the defendant or his family;
  • Evidence calling into question the defendant’s ability to be at the murder scene at the time the murder was committed, or;
  • Eyewitness descriptions of the murderer that do not match the description of the defendant.

Other factors that come in to play in a murder defense include:

  • Deciding whether to invoke your right to a speedy trial;
  • Whether we can work with the prosecution to come to a plea agreement, if a review of the evidence looks like a conviction is likely, or if you do not want to take your chances before a jury, or;
  • Whether it is possible to obtain immunity from prosecution in exchange for testifying against someone else (for example, the head of the gang).

Continue reading

by

About 100 Illinois inmates who were sentenced to life in prison for murders they committed as youths will have the opportunity to have their sentences re-visited thanks to a 2012 Illinois Supreme Court decision.

Illinois Supreme Court Rules Life in Prison for Juvenile Murder Offenders Unconstitutional

Before People v. Williams, Illinois provided mandatory life sentences without the possibility of parole for all defendants convicted of murder. The mandatory minimum applied whether the murder was convicted by hardened criminal with prior arrests for violent crimes, or a first-time youth offender. The defendant was not allowed to offer evidence detailing his upbringing, the circumstances that led to commission of the crime, whether he had been the victim of trauma or abuse, his education, or any other information that would tend to prove why life without the possibility of parole was too harsh.

That changed in People v. Williams, in which the court ruled that mandatory life sentences without parole for juveniles who committed murder violated the constitutional ban against cruel and unusual punishment. The Williams decision took its cue from the U.S. Supreme Court case Miller v. Alabama, which made the same ruling in 2012, stating that when dealing with juvenile murder defendants, the court must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

Illinois’ ban will apply retroactively. This means not only will future juvenile murder offenders be afforded the opportunity to provide evidence showing why a mandatory life sentence is too severe of a punishment, but those already serving life sentences for murders convicted when they were youths will have the right to have their sentences revisited.

Illinois Mandatory Minimum Sentencing

Certain crimes committed in Illinois – including murder, rape and aggravated assault – impose mandatory minimum sentences. First degree murder, for example, has a mandatory sentence of imprisonment for the defendant’s natural life. This does not include any additional time imposed for aggravating factors. Second degree murder carries a minimum of 4-20 years. The judge has little discretion when determining the type and length of the sentence. The judge can consider mitigating factors, which could provide a slight reduction in the length of the sentence, but for the most part the judge’s hands are tied.

In crimes that do not impose mandatory minimum sentences, the judge is responsible for determining the type and length of the sentence, which can run the gamut from probation to imprisonment. The judge’s sentencing decision is heavily influenced by prosecution and defense attorney arguments, including any mitigating factors the defense attorney can show that necessitate a reduction in sentence.

While the Williams decision is good news for the hundreds of Illinois inmates who were sentenced to life in prison without the possibility of parole for crimes committed as juveniles, mandatory sentencing highlights the importance of hiring an experienced Chicago criminal defense attorney who understands the need to begin mounting an aggressive defense immediately.

Because the judge’s hands are bound by the law, the real defense in mandatory minimum cases begins when charges are filed. The charges filed lie in the hands of the prosecution. That is why you need a criminal defense attorney who not only understands the law and can build a successful defense, but who is also a skilled negotiator who can work with the prosecution to get the charges reduced to one without a mandatory minimum sentence.  Continue reading

by

Newly discovered DNA evidence has cast serious doubt this week on the convictions of two Lake County men who were sentenced to prison for the commission of two different murders. Juan Rivera was convicted of the 1992 rape and murder of an 11-year-old girl, despite the fact that his DNA did not match semen taken from the victim’s body. Marvin Tyrone Williford was convicted in 2004 for beating and setting fire to a 39-year-old man in 2000; the victim died in 2002 from his wounds.

Blood evidence taken from the 2000 case has now been matched to semen taken from the 1992 case, indicating a strong likelihood that the same person committed both crimes. More importantly, two men appear to have been wrongly convicted and spent unnecessary years behind bars.

DNA Shows Innocent Illinois Defendants Sent to Prison

How could this happen?  dna-3-1037197-m

Sadly, it is an unfortunate fact of criminal law that far too often, innocent people are sent to prison for crimes they did not commit. Unreliable or lying witnesses, prosecutors who are more concerned with closing cases than serving justice, or ruthless police interrogation tactics can and do result in criminal convictions of innocent defendants. In some of these cases, DNA evidence later exonerates them, although not before these innocent men and women have spent many years of their life behind bars. Since 1989, 316 prison inmates have been exonerated after their conviction thanks to DNA evidence; the average number of years spent behind bars for those exonerated was 13.5.

The presence of DNA is not the smoking gun that crime shows like CSI and Law and Order would have you believe. Its presence at a crime scene does not prove that a crime was committed; rather, it proves that somebody was simply present at the crime scene. In rape cases, for example, DNA obtained from semen samples proves only that the parties had sexual intercourse, not that a rape occurred.

This is the tack that prosecutors in the 1992 rape and murder took when arguing their case to the jury. They knew that Rivera’s DNA did not match the semen sample taken from the victim. But instead of dismissing the charges, the prosecution argued that the victim – at age 11 – had engaged in consensual sexual intercourse with a third-party prior to the murder, which accounted for the unmatched semen sample. They instead relied on Rivera’s confession (that he later recanted), which was obtained following four days of police interrogation.

In other cases, prosecutors bent on closing cases can try to ignore the existence of DNA evidence that shows the defendant did not commit the crime, and focus on other flimsy evidence to try and bolster their case and win a conviction. Williford was convicted despite there being no physical evidence linking him to the crime – blood evidence found on the two-by-four did not match Williford’s DNA. Instead he was convicted based largely on eyewitness testimony that he wielded the two-by-four that was used to beat the victim.

This is why it is important to have a criminal defense attorney who has the tenacity to attack prosecutors who are bent on obtaining a conviction despite DNA evidence showing the defendant’s innocence. The Law Offices of David L. Freidberg is armed with a team of forensic experts who can help analyze DNA evidence to determine whether the prosecutor’s experts came to the right conclusion, and whether testing protocols were followed.  Continue reading

by

Chicago police received 48,141 reported incidents of domestic violence in 2013, including reports of assault, battery and unauthorized use of a motor vehicle. During that same time period they received 171,077 domestic violence-related calls. Domestic violence is a serious issue that affects not only the parties involved, but collateral victims as well, most notably the children. Most of the focus on domestic violence revolves around men as the batterer and women as the victim. But a recent Chicago murder highlights the fact that men can also be victims of domestic violence.

Chicago Domestic Dispute Ends With Woman Fatally Stabbing Boyfriend

killer-hand-1-1153640-mMiata Phelan, a 24-year-old pregnant woman who lives in Chicago, stabbed and killed her boyfriend, 28-year-old Larry Martin, on Cinco de Mayo. Why? Because he allegedly purchased gifts for his eight-year-old son and his cousin on a trip to the mall and nothing for her, even though her birthday was the next day.

Prior to the stabbing, Phelan reportedly kicked and scratched Martin in the car as punishment for his selfishness, and then took off with the vehicle when Martin stopped to run another errand, forcing him and his eight-year-old son to walk home, where he found the front door of the house locked. When he was finally able to get inside, Phelan stabbed him in the side with a knife – in full view of his son – screaming, “I hope you die.”

 

Martin died a few hours later at the hospital; Phelan was charged with first-degree murder.

Multiple Domestic Violence Charges in Single Incident

Although Phelan is charged with murder, this incident contains many elements of domestic violence and highlights the escalation of abuse, albeit in a compacted time frame. Each action on its own could be a crime under Illinois’ domestic violence laws:

 

  • Verbal abuse: screaming and calling Martin selfish because he seemingly failed to buy her a birthday present gift
  • Battery: kicking and scratching
  • Theft: driving away in Martin’s car
  • Aggravated battery:the stabbing
  • Murder:end result of the stabbing

Like many domestic violence cases, the violence escalated from verbal to physical abuse, with this case ending on the most extreme end of the physical abuse scale. In this case that escalation seemingly occurred in the same episode, although it is unclear if Phelan had a history of escalating domestic violence against Martin, and this was the culmination of months of abusive behavior.

Had Martin survived – and assuming he left her – Phelan’s actions would have subjected her to civil penalties as well as criminal. Martin would have most likely been able get an order of protection against Phelan, which could have resulted in her being forced to move out of the couple’s home, and could have caused her to lose her job. Her ability to gain custody of the couple’s unborn child would also have been adversely affected, as violence against one parent is a factor the court considers when making an award of child custody.

Absent the murder, this case is typical of many domestic violence incidents and demonstrate how much a single incident of domestic violence can impact numerous aspects of a person’s life. A skilled criminal defense attorney understands these long-lasting ramifications and is experienced in defending against domestic violence charges and civil orders of protection. Continue reading

by

A Palatine man faces charges of first-degree murder and hiding a corpse in a 17-year-old homicide case. The alleged murderer, James Eaton, was arrested in early April after DNA evidence from a discarded cigarette linked him to the 1997 murder of 14-year-old Amber Creek, a ward of the state who had run away from the juvenile residential facility where she was living.  Illinois has no statute of limitations on murder, which is why Eaton can still be charged and potentially convicted of the 17-year-old crime.

Illinois Murder Investigations  revolver-704729-m

Eaton was charged with first-degree murder, which means that the prosecution will have to prove that he either intended to kill Amber Creek or knew that his actions would cause her death. There is also evidence that Amber was sexually assaulted prior to her death which, if proven, would be an aggravating factor that would result in a stiffer penalty if Eaton were to be convicted.

An Illinois murder conviction carries a mandatory minimum sentence of 20 years in prison; the existence of aggravating factors, such as if the murder was committed during the commission of another violent felony, such asrape, can add another 15 years to the sentence, or possibly result in the death penalty.

While murder is a serious charge no matter when it occurred, cold case murders raise a number of evidence and proof issues that an experienced attorney can use to poke holes in the prosecution’s case to raise reasonable doubt. An experienced attorney can work closely with forensic experts who are experienced in analyzing DNA evidence. DNA samples can deteriorate over time, and forensic experts can help determine if the DNA sample from the victim’s body allegedly linking her to the defendant was of sufficient quality and sample size to pinpoint the defendant as the murderer.

If the integrity of the DNA sample can be brought into question, an attorney’s team of private investigators would look into whether there was a possibility that the defendant and victim’s paths had crossed prior to death, which could provide an innocent explanation for his prints being on the bag – for example, since she had recently run away, he gave her (or she took from him) a bag to carry her belongings. Or perhaps eyewitnesses who had not come forward during the initial murder investigation have information showing that the victim was seen alive after her encounter with the defendant, which would decrease the likelihood that the defendant was the murderer.

Although the goal is to exonerate the defendant and get an outright dismissal of charges where possible, if it appears that the defendant did commit the crime, or that the prosecution’s evidence is so overwhelming as to make a conviction likely, a skilled attorney will work with prosecutors to get a reduction of the charges. While sex with a minor is a crime regardless of consent, a defense attorney can review the sexual assault law in effect in 1996 to determine if the sexual encounter could have been legal at that time, assuming consent on the victim’s part. He will also review the evidence to determine if there are any mitigating factors that could decrease any possible prison sentence or avoid imposition of the death penalty, such as was the murder intentional or could it have been manslaughter or possibly even self-defense. The defense attorney will use any piece of evidence that could raise reasonable doubt to help gain a dismissal or reduction in charges. Continue reading

Contact Information
Chicago Office
70 W Madison St
#1450
Chicago, IL 60602
Phone: (312) 560-7100
DuPage Office
140 Butterfield Rd
#1500
Oakbrook Terrace, IL 60181
Skokie Office
5250 Old Orchard Rd
#300
Skokie, IL 60077

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2025, Law Offices of David L. Freidberg, P.C.
JUSTIA Law Firm Blog Design