Sentencing

April 15, 2016

Your Constitutional Right to Bail

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

Bail is a monetary pledge (a bond) telling the court, that if the court will authorize your release, you promise to abide by any conditions the court demands, and to appear at all hearing dates going forward, including trial. By posting this bond, you are agreeing that should you fail to abide by any of the court’s conditions, your bail will be forfeited, and you will be returned to jail to await your trial. That is the premise under which the court will set bail, and if paid by you or by someone on your behalf, authorize your release from jail.

Can Your Right to Bail be Denied?

When accused of a crime, placed under arrest, and locked up in jail, what are your rights? Are you entitled to be released on bail? How much bail can the courts impose for your release?

January 29, 2016

Parole Release: Who is Eligible and When

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

Pursuant to Illinois law, all prison inmates are eligible for parole unless they have accepted a fixed release established by the Prison Review Board. The guidelines for determining eligibility for parole consideration are when a minimum term of an “indeterminate” as opposed to a “determinate” sentence has been served. A “determinate” prison sentence is a defined length of time to be served by the inmate and cannot be changed without executive clemency from the governor. Whereas, with an “indeterminate” sentence, there is a minimum time that the inmate will have to serve, but his release date may be earlier depending on what the Prison Review Board decides. Inmates may, after serving 20 years of a life sentence less any credit for good behavior, be released on parole. Inmates may also be released after serving one third of a “determinate” sentence less credit for good behavior. Persons serving a prison term of “natural life” are not eligible for parole.

What is the Prison Review Board?

The Illinois Prison Review Board is made up of 15 individuals appointed by the governor with the advice and consent of the State Senate. The Board is responsible for reviewing inmates for potential release. They are also responsible for determining the conditions and restrictions of prisoner release. The Board will also review cases involving potential revocation of parole due to any violations of any conditions or restrictions imposed. The Board may also consider whether an inmate’s attitude or conduct deserves a reduction or suspension of good conduct credits.

January 22, 2016

What is the Difference Between Probation and Parole?

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

Probation

If you are sentenced to probation, you have been given a sentence with lesser jail time than usual because you may be a first time offender, and a probation time period is attached to the sentence which indicates that any violation of the probation will require you to serve out the full jail term. There may be no jail time to serve unless you violate the conditions of the probation (i.e., you have been sentenced to five years probation and you are released with the caveat that if you violate the terms of the probation, you will be remanded to custody to serve out a full five year jail term).

Parole

January 6, 2016

A Question of Guilt or Innocence

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

Arrested, charged, prosecuted, imprisoned, but innocent. This scenario is played out over and over again in our judicial system across the nation. While America has one of the finest judicial systems in the world, sometimes we get it wrong and an innocent person ends up spending time in prison for a crime he or she did not commit. Sometimes an overzealous law enforcement officer does something inappropriate in order to effectuate the prosecution and imprisonment of that person, knowing that that person did not commit the crime.

The reason for the arrest and imprisonment of an innocent person due to police misconduct could be attributable to a number of things including greed, vindictiveness, revenge, or just plain abuse of power. Whatever the reason, we all know that it does happen from time to time.

This is not to say that we have rampant lawlessness in any of our police departments. Our men and women in blue do the thankless job of keeping our neighborhoods safe from crime and should be commended for their bravery in the face of a multitude of dangers and risks of physical harm to themselves. Without the police protecting our communities, there would be anarchy. They are needed to protect our peace, and they deserve our respect and gratitude.

April 17, 2015

Plea Bargains in Chicago Criminal Cases

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

A criminal defense attorney’s goal is to obtain the best possible outcome for his client. Ideally, this would be a dismissal of all charges prior to trial or, barring that, an acquittal. But in some cases, the best course of action is to enter into a plea agreement.

Reasons for Accepting Chicago Plea Bargain

There are many reasons to accept a plea agreement offered by a prosecutor. And it is not only those defendants who are guilty of committing the charged crime that accept a plea; defendants who are completely innocent often accept plea deals as well. Here are some of the common reasons a defendant may accept a plea agreement.

Promise of reduced sentence. Prosecutors often offer a reduced sentence if the defendant will plead guilty. Most crimes have a range of sentencing possibilities, so a prosecution may offer the lower end of that range in exchange for a guilty plea, as opposed to seeking the maximum sentence if the defendant is convicted at trial. In cases where the penalty is lifetime imprisonment, such as a murder charge, the sentence reduction may be to allow for the possibility of parole.

Conviction of a lesser charge. Sometimes a plea agreement includes reducing the charges that were filed – from aggravated kidnapping to kidnapping, for example. Pleading guilty to a lesser charge results in reduced jail time and may decrease potentially negative consequences, for example the requirement to register as a sex offender following conviction for certain sex crimes.

Guaranteed outcome versus uncertainty of trial. Although it is possible for a judge not to agree to the prosecutor’s recommendation regarding sentencing in a plea agreement, the majority of the time the sentence promised in exchange for a plea is what is handed down. Accepting a plea agreement gives you a guaranteed outcome, as to both the crime you will be convicted of and the sentence. Going to trial offers no guarantees, either to whether the jury will convict or acquit or to the sentence the judge will order upon conviction.

Want the whole thing to go away. Contrary to what is portrayed on popular television crime procedurals, where the time between the commission of the crime and the jury’s verdict is a matter of weeks, most criminal cases are not over that quickly. Trials can be delayed or postponed due to witness unavailability, attorney and court schedules, or the need to acquire more evidence. Sometimes it can take months from the time the defendant is first arrested to when the prosecution files charges. Rather than live under the specter or a criminal trial looming at some point in the future, many defendants will agree to enter a plea just to put an end to it, serve their sentence and get on with their lives.

Consequences of Pleading Guilty

Even though accepting a plea agreement is sometimes the best option, it doesn’t meant that it is without consequences. Whenever you accept the prosecution’s plea agreement, you must carefully weigh the pros and cons. A plea agreement requires that you plead guilty, which can have long-lasting consequences. It may impact where you live, your employment, perhaps even future custody or rights to your children. A decision to accept or not accept a plea agreement should not be made until you and your defense attorney have thoroughly discussed your case.

September 26, 2014

Sex Abuse Conviction Overturned Due to Inadmissible Evidence

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

An Illinois Court of Appeals reversed the conviction of an Illinois man on charges of criminal sexual abuse, finding that evidence of other sex crimes allegedly perpetrated by the defendant was inadmissible. Without that evidence, there was an insufficient basis for upholding the conviction.

People v. Puccini

The defendant, Leonard Puccini, was charged with criminal sexual abuse after allegedly spanking the bare bottom of a 12-year-old boy for his own sexual gratification. At trial, the court admitted evidence in the form of witness testimony from two older boys (now adults), both of whom alleged that Puccini sexually abused them in the 1990s (though he had not pulled their pants down and spanked them).

Illinois law allows evidence of prior charges or accusations of criminal sexual abuse to be admitted at trial to show the defendant’s propensity for committing sex crimes. Evidence of other alleged bad acts is admissible only if the probative value of the evidence – meaning that the evidence will assist the jury in its determination – outweighs any potentially negative effect. The fear is that evidence of prior bad acts will sway the jury to render a guilty verdict based not on the evidence in the case, but because it paints a picture of the defendant as an overall bad person. Just because a defendant committed a prior similar act does not mean he committed the act for which he is currently charged, which is why the court must carefully consider whether the evidence will unfairly sway the jury to find the defendant guilty.

When weighing the probative value of evidence, the court must consider:

The proximity in time to the charged offense;
The degree of similarity to the charged offense; and
Other relevant facts and circumstances.

On appeal, Puccini’s attorney argued that the negative effect of the two witnesses’ testimony outweighed any potential benefit. No charges were brought against Puccini for the prior alleged crimes, and they allegedly occurred almost 20 years prior. In addition, the acts were not similar. The witnesses testified that, following the abuse, which allegedly involved Puccini touching their private parts, he then masturbated, thus fulfilling the “for his own sexual gratification” element of sexual abuse.

The testimony of the young boy in the present case was inconsistent on whether Puccini masturbated following the spanking. Statements he made to the police differed from what he said at trial, and his testimony that Puccini went into another room to sexually gratify himself after the spanking was not credible. The boy testified he only heard “tapping noises” in another room, and although he initially told police he thought Puccini had an erection, he admitted that he never turned around to look at Puccini after the spanking.

The Appellate Court noted that the trial court, in rendering its decision, relied solely on the testimony of the two adult males in determining Puccini’s actions were for his own sexual gratification. Yet the earlier crimes, if committed, were worse than the crime for which Puccini was currently on trial, causing the Appellate Court to rule that the prejudicial effect of the witnesses’ testimony outweighed any probative value.

Without the testimony of the two witnesses, the Appellate Court found that there was not enough evidence to support Puccini’s conviction. In this instance, the defendant cannot be retried – double jeopardy prohibits a defendant from being tried again in order for the prosecution to provide evidence it failed to produce in the first trial. Continue reading

June 26, 2014

Illinois Supreme Court Rules Against Certain Mandatory Minimum Sentences

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

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