Sentencing

November 25, 2016

Deferred Prosecution in Chicago: Justice Delayed is Justice Denied

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

Prosecutorial discretion in Chicago has always been a controversial issue particularly if the public feels that there is an element of unfair selection and victimization. One of the leading practitioners of the deferred prosecution program is the Cook Country State Attorney. This program has been in operation since 2011 but is not without its detractors. For example, it has been subjected to an evaluation by the Illinois Criminal Justice Information Authority. The grant for this research was offered by the Loyola University Chicago. The success of the program has led to its being designated as the model of good practice for the Offender Initiative Program. All these interventions are enshrined in the Illinois Statute book under 730 ILCS 5/5-6-3.3. The three major objectives of the program are as follows:

Increase and protect public safety
Ensure the best use of available resources

October 12, 2016

Intimidation and Extortion Crimes in Chicago

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

Sometimes it is hard to tell who is a victim and who is a perpetrator when it comes to intimidation and extortion crimes in Chicago. Defense attorneys have too often found themselves changing their roles in order to effectively prosecute the police department for a series of failings including gross incompetence and outright violations of the defendant’s rights. Some have argued that so called “predictive policing” is nothing more than a ploy to cover up the misdeeds of the law enforcement agencies who harass citizens particularly those from seemingly powerless and marginalized communities.

Woe befall an attorney defending someone on the “Heat List.” Effectively that person is branded a potential gang member based on fuzzy models. An arrest soon follows (sometimes repeatedly) whilst the real criminals continue to roam the streets. Nevertheless, is not too hard to sympathize with the Chicago law enforcement agencies who are faced with an increasing crime rate and the state’s reputation for grand lawlessness. They have to stab at something in the absence of a reliable predictor of criminality. In any case the US Constitution is not particularly supportive of the notion of “Preventative Arrest.” However, in their zeal to protect the public, the Chicago law enforcement agencies have gotten the basics wrong.

The Never-Ending Plight of Minority Communities

October 5, 2016

Counterfeiting Laws in Illinois: New Rules and Interpretations

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

The state and definition of counterfeiting laws will tell you a lot about the community in which they are designed and implemented. Illinois is no exception. The state has a set of complex and situational rules relating to counterfeiting and forgery; a true Pandora’s Box for a diligent attorney. For the most part, the law seems to target those who create forged money, but there are many other forms of falsification that are captured by the legislation. A person is guilty of a crime in Illinois when he or she creates or uses written documents that have been falsified or altered in significant ways. In this case the constituent ingredients of the crime can encompass both the making of forged/altered documents as well as possessing them with the intention of using them for illegal purposes.

A Counterfeiting Law for the New Age

As criminals in this area have become more sophisticated in their modus operandi, the law has been forced to play catch-up. For example it recognized the use of false documents for defrauding in which possession is disputed as well as the effects of subtle alteration using digital means (720 Ill. Comp. Stat. § 5/17-3). The classic case is that of a forged check that is successfully cashed by a third party because the signature on it appears to be authentic to the recipient bank regardless of whether or not the account holder actually gave permission for that cheque to be paid. The elderly and those with disabilities are particularly vulnerable to this type of fraud. As the case made it through the courts, it became a gradually-established norm that the instrument used to defraud must be credible to an ordinary reasonable person. Hence where the forgery is almost comical in its design and presentation, the user may be able to escape a criminal charge.

October 1, 2016

Updates: Criminal Case Proceedings in the State of Illinois

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

Clients who are involved with the criminal justice system in Illinois are understandably intimidated by the processes and rules. That initial panic is the main reason why so many defendants make a host of mistakes that come back to bite them later on as the case is disposed of. The first issue to consider is that of adequate legal representation. The state-appointed attorney should be a last resort if there are absolutely no alternatives save from self-representation.

In serious cases such as murder, rape, or assault the court insists on legal representation. If the client is unable to come up with representation, then an attorney or public defender will be appointed on their behalf. Unfortunately the quality of representation is not as high as would have been the case if you select your own attorney. In any case, it is important to understand the various stages of the criminal case processes so that you are not taken by surprise:

Making a criminal complaint: A victim of crime will contact the law enforcement agencies to get help. This normally via the 9-1-1 call. Later on the victim may decide to press charges. In some cases the law enforcement agencies will press charges even where the victim refuses to engage with the process. This is because in Illinois (like the rest of USA) crimes can be committed against the state.

August 25, 2016

How do Judges Set Bail in Illinois?

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

The Chicago Tribune reports that a Chicago man is currently being held at the Skokie courthouse jail with bail set at $250,000 for allegedly Tasering a 79-year old woman during an attempted robbery. The man is charged with aggravated battery and attempted robbery after supposedly attacking the elderly woman while she was sitting in her car. The man’s public defender has released a statement indicating that the defendant does not have enough money to post bail. Therefore, he will remain in jail at least until his preliminary hearing which is currently scheduled for September 8th. But why did the court decide to set this man’s bail at $250,000? What factors does a court take into consideration when setting bail? This article provides a brief overview of what bail is and how it is set in Illinois.

What is Bail?

Simply put, bail is the amount of money that a court requires in exchange for releasing an accused criminal defendant from custody while he or she awaits a day in court. Money paid as bail is refundable and is returned to the defendant after he or she appears for the court date and satisfies any other conditions of bail. However, if the defendant skips town or does not appear in court for some reason then that bail is forfeited. The idea is that defendants who have posted a seizable bail will be strongly incentivized to show up at court for their trials.

August 23, 2016

Gangs in Chicago Appear to be Plotting Retaliatory Police Shootings

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

Last month, African American teenager Paul O’Neal was killed when a Chicago police officer shot him in the back during a controversial arrest. This shooting has outraged the African American community in Chicago and has worsened the already strained relationship between the police and the community. In fact, Fox News reports that three Chicago gangs are plotting to shoot police officers in retaliation. Apparently the Chicago Police Department (CPD) alerted its officers last week that three local gangs, the Vice Lords, the Black Disciples, and the Four Corner Hustlers, met in order to exchange guns and discuss plans to shoot CDP officers.

Penalties for Killing, Harming, or Intimidating a Police Officer

Under federal law 18 U.S.C. § 1121, it is a capital offense to intentionally kill a state or local law enforcement officer or employee, who is working with federal law enforcement officials during a criminal investigation,:

July 31, 2016

Illinois’ New Domestic Violence Law

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

According to the Chicago Metropolitan Battered Women’s Network, approximately 77% of women who are currently incarcerated are victims of abuse. This figure is staggering and is part of the reason why this nonprofit helped to pass Illinois’ new domestic violence law, SB0209. SB0209 is important because it allows being a victim of domestic violence to be a mitigating factor at sentencing. A mitigating factor is any information presented to the court, generally about the defendant or the circumstances surrounding the crime, that has the potential to reduce the defendant’s sentence or the crime charged. Therefore, SB0209 was passed in order to enable courts in our state to reduce a defendant’s sentence if he or she was a victim of domestic violence.

Bill SB0209: History of Domestic Violence as a Mitigating Factor

According to SB0209, if a defendant is or was a victim of domestic violence, and the domestic violence tended to excuse or justify his or her criminal conduct, then evidence of the abuse can be a mitigating factor at sentencing. In order to claim being a victim of domestic violence as a mitigating factor, the defendant must prove the following by a preponderance of the evidence:

July 12, 2016

Schizophrenic Man Faces Murder Charge in Cook County

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

The Chicago Tribune reports that a 22-year-old schizophrenic man was recently charged with murdering his cousin in Cook County. Supposedly the defendant was standing on the street with his cousin and a few other people when the group started making fun of the defendant for being mentally slow. Allegedly, the defendant responded by firing a semi-automatic handgun into his cousin’s neck, chin, and chest. The cousin died shortly after and now the shooter is charged with murder. While there are several ways to defend against a murder charge, arguing insanity may be a viable defense strategy for this particular defendant.

Illinois’ Insanity Defense

In Illinois, a person can not be held criminally responsible for their conduct if a mental disease or mental defect caused that person to lack the substantial capacity to appreciate the criminality of his or her conduct, according to our state’s Criminal Code (720 ILCS 5/6-2). In other words, if a mental defect caused you to not appreciate the criminality of what you were doing while you were committing the crime, then the legal defense of insanity is available to you. Illinois’ insanity defense statute also notes that if a defendant was mentally ill at the time of the crime, but was not insane, then that defendant is still liable for his or her criminal act as it is possible to be found guilty but mentally ill in Illinois. However, in order to successfully claim the insanity defense, the defendant has the burden of providing clear and convincing evidence sufficient to prove that he or she was insane when the crime was committed and, therefore, is not guilty by reason of insanity.

May 27, 2016

The Miranda Warning

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

“You have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to an attorney.” The Miranda warning, or Miranda rights, are probably familiar to anyone who has watched police dramas or true crime shows on television, but the practical aspects of them are often misunderstood.

History

People in the United States have the rights under the Fifth Amendment against self-incrimination and under the Sixth Amendment to an attorney when they are being accused of a crime by law enforcement. The Miranda warning developed out of a Supreme Court holding in Miranda v. Arizona, 384 U.S. 436 (1966) which set out that in order for a statement made to law enforcement officers to be admissible in court the accused needs to be made explicitly aware of these two rights. The Miranda warning statement thus serves two purposes. First, it defends the accused by notifying them of their rights, and second it ensures that any statements that the accused makes to the police will be admissible in court.

May 4, 2016

Chicago Law Enforcement Handicapped, Community Involvement Required

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

When crime on the streets gets so out of control, when criminal gang members have their run of the neighborhoods, when they can commit violent crimes without compunction, including violent assaults and murder, then you will find at the very foundation of such lawlessness a total breakdown of community involvement and lack of support for the law enforcement.

Gang Members Given “Get Out of Jail” Passes

Get out of jail passes, also known as parole, are not normally given to convicts with a long history of violence. In fact, when crimes are committed by persons while out on parole, the parole is revoked and the individual is re-arrested and required to not only serve any new prison sentence, but also the remainder of the sentence from which he was paroled.