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Illinois criminal defendants have a guaranteed right to a speedy trial under Illinois state law. Depending on the circumstances, a defendant must be brought to trial within 120 to 160 days following his arrest. There are also situations that can stop the speedy trial clock from running. If you’ve been arrested and charged with any crime in Illinois, you need an experienced criminal defense attorney who understands the time limits, the exceptions, and when it is to your benefit to invoke (or not invoke) the right.

Illinois Right to Speedy Trial in Criminal Cases

Under Section 725 ILCS 5/103-5,  Illinois guarantees criminal defendants a speedy trial. The time limit varies depending on the circumstances. The defendant must make a formal written request with the court to invoke his speedy trial rights.

If the defendant is in jail, the state has 120 days from the date he was taken into custody to bring the case to trial. If the defendant is out on bail or released on his own recognizance, the state has 160 days to bring the case to trial. There must also be one continuous period of incarceration. For example, if you are released from jail after 30 days because you made bail, but are then re-arrested for violating a condition of bail, the clock starts over.

If the prosecution does not bring the case to trial within the above time limits, the defendant must be released from custody or released from his bail requirements.

Exceptions to the Illinois Right to Speedy Trial

gavel-5-1409595-mThe right to a speedy trial is an affirmative right. This means that in order for the clock to start running, you must invoke the right. The clock will stop running if you request a continuance for any reason, including an evaluation to determine your fitness for trial.  This is why an experienced criminal attorney will usually try to have a continuance based on the State’s motion or order of court.

The prosecution may request a 60-day extension if, after exercising due diligence, it is unable to obtain material evidence and there are reasonable grounds to believe that granting a continuance will allow the prosecution to obtain that evidence.

In 2013 the Illinois Supreme Court ruled that the 60-day extension provision of the law can be given more than once. The ruling came in the case People v. Lacy. The defendant, Elijah Lacy was arrested and charged with murder in the 2007 death of a Carbondale, Illinois woman. Police arrested Lacy in 2009, and he was brought to trial in 2010 after Lacy requested several continuances.

The prosecution requested a continuance because the eyewitness, who lived in Missouri, was unable to travel due to a high risk pregnancy and would be unavailable for the trial date. The court granted the continuance and rescheduled the trial.

The prosecution requested a second continuance when its key police witnesses was deployed to Afghanistan and would be unavailable to testify. Lacy’s attorneys then filed a motion for the case to be dismissed because the two continuances exceeded the 60-day extension allowed under law. The trial court granted Lacy’s motion, and the appellate court agreed.

The Illinois Supreme Court reversed the dismissal and ruled that the law allows the prosecution a 60-day continuance for each piece of material evidence. In Lacy’s case, that meant that the prosecution was entitled to one 60-day continuance until the eyewitness would be able to testify, and a second 60-day continuance to allow the police witness to return from Afghanistan.

There are pros and cons of invoking the right. It may be to your advantage to allow the prosecution to take as much time as necessary, especially if the case against you is based largely on eyewitness testimony. As time goes on, memory fades, increasing the chance that the eyewitness will forget key details or change his testimony when compared to his initial statement. An experienced criminal defense attorney like David L. Freidberg can take advantage of these inconsistencies to help get your case dismissed or the charges dropped. Continue reading

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A new bill introduced in the Illinois legislature would extend the statute of limitations in some rape cases. Senate Bill 2609 seeks to change when the statute of limitations in rape cases begins to run. Current law provides that the statute of limitations in rape cases begins to run on the date the alleged rape occurred, if the alleged victim reported it to police within three years. If you are being investigated for, or have been charged with, committing rape, contact an experienced sexual assault attorney immediately.  depressed-girl-1030147-m

Proposed Changes to Illinois Sexual Assault Statute of Limitations

If the new law is enacted, the statute of limitations would begin to run on the date the police processed DNA evidence from the rape kit. The new law is in response to a case in which the alleged victim submitted to a DNA rape kit. By the time the police processed it, the 10-year statute of limitations had expired, and the prosecution was unable to file charges against the alleged rapist. The bill’s sponsor argues that victims should not be denied justice due to police mistakes, whether caused by a lack of competency or a backlog of cases.

Effect of Statute of Limitations Extension in Illinois Rape Cases

If SB 2609 passes, it will likely have little effect on the prosecution of rape cases. The case that spurred on the new law is no doubt a one-time case of severe police ineptitude not likely to be repeated, even if the police do have a backlog of rape kits to process. Even though opponents of the law say it does not give the police incentive to process DNA rape kits, since they know charges can be filed no matter how much time has passed between the date the alleged rape occurred and the date they final process the kit, the embarrassment over this case should keep them honest.

Passage of SB 2609 will have no effect on how the Chicago Law Offices of David L. Freidberg, P.C., will defend against sex crimes cases. Rape kits and DNA evidence are not the bombshell evidence the prosecution and media would have you believe. The rape kit only confirms whether the alleged victim and alleged rapist had sexual intercourse. If the DNA results from the rape kit show that the alleged rapist did not have sex with the alleged victim, then the charges will be dropped. And if the DNA results show that the two did have sex? Well, that’s all it shows.

Evidence of sexual intercourse is just that – proof that two people had sex. It is not evidence that a rape occurred. If the sex was consensual and no protection was used, of course the rape kit would find the alleged rapist’s DNA on the alleged victim. If it shows scratches, abrasions or other marks on or inside the victim, that still is not evidence that a sexual assault occurred.

David L. Freidberg has an arsenal of forensic experts who can examine the results of a DNA rape kit to determine whether there’s any possibility that the sample was improperly tested or not large enough for an accurate result. They can also testify to any number of harmless, non-assault reasons why marks or abrasions on the victim could have occurred, either during consensual sex or during the victim’s normal daily activities. Continue reading

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The Illinois legislature is considering enacting new laws that would decriminalize possession of small amounts of marijuana. The proposed bills fall short of legalizing pot, as Colorado and Washington do, but would instead align Illinois with 16 other states that no longer incarcerate individuals caught with small amounts intended for personal use. The bills are part of a growing movement that perceives marijuana as less dangerous than other drugs. They also seek to alleviate the burden of arrest, prosecution and incarceration of individuals caught with small recreational amounts.

Proposed Changes to Illinois Possession of Marijuana Laws

There are three bills currently working their way through the Illinois legislature seeking to lessen the penalties for different forms of marijuana possession.  weed-403-m

Two bills seek to lower the penalties for marijuana possession for personal use, and increase the amount of marijuana that is considered “for personal use”.

House Bill 5708, which was introduced by Reps. Kelly M. Cassidy and La Shawn K. Ford of Chicago, would classify possession of not more than 30 grams of marijuana or any marijuana-containing substance as a petty offense. Those in possession would receive a ticket and be fined $100. Possession of anywhere from 30-500 grams would be classified as a Class A misdemeanor for a first offense, and a Class 4 felony for a second offense. Currently Class 4 felony and Class 3 felony for a second offense.

House Bill 4299, sponsored by Chicago Rep. Christian Mitchell, makes similar changes to the law as House Bill 5708, but varies the amounts allowed for possession. Under Rep. Mitchell’s bill, possession of 10 grams or less of marijuana would be a petty offense punishable by no more than a $100 fine.  Possession of between 10 and 30 grams would also be a petty offense punishable by no more than a $100 fine for a first offense; a second offense would be a Class A misdemeanor (currently it’s a Class 4 felony).

Chicago Rep. Michael Zalewski introduced House Bill 4091, which would reclassify possession of not more than 30 grams of marijuana as a petty offense, unless the individual had two or more prior convictions, in which case he would be charged with a Class A misdemeanor.

Cost of Prosecution for Illinois Marijuana Possession

Part of the rationale behind the proposed changes in the marijuana possession law is the cost involved in prosecuting what are essentially victimless crimes. In 2011, 663,032 people were arrested nationwide for marijuana possession. There were 100,000 more arrests that year for marijuana possession than for violent crimes. More people were arrested for smoking dope, when the only arguable victim was him or herself, than people arrested for actually causing harm to another person.

Chicago arrests follow that trend – an average of 23,000 arrests each year for marijuana possession, about equal to the number of arrests for assault and battery combined. And the city is spending approximately $78 million to arrest, prosecute and incarcerate these so-called “offenders.” The Chicago police estimate it takes two officers approximately three hours to arrest an individual for marijuana possession, from the time they slap the cuffs on him to the time they file their paperwork. Three hours for the “crime” of lighting up takes away man hours that could be spent patrolling the streets looking for other crimes.

There is also the human cost involved with arrest for marijuana possession. There is the cost to the defendant of hiring an experienced attorney to help defend the case. Under the current law conviction under the lowest offense, a Class C misdemeanor, could result in up to 30 days in jail and up to a $1,500 fine. A person convicted may be required to report the misdemeanor on future job, housing or school applications, putting his ability to work and live where he wants in jeopardy. Continue reading

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The Fourth Amendment of the United States Constitution protects citizens from unlawful searches and seizures. Yet it is the most frequently violated civil right, and on March 20th the Illinois Supreme Court ruled that yet another police officer violated that right by conducting an illegal search and seizure. If a police officer violated your Fourth Amendment rights, it may be possible to get evidence tossed out, or the charges completely dismissed. That is why following an arrest you should immediately meet with an experienced Chicago search and seizure attorney who can help determine whether the police exceeded their authority during the arrest.

Illinois Stop, Search and Seizure Law

Illinois law permits a police officer to stop any person he reasonably believes is about to commit, is in the process of committing, or has committed, a crime of any nature. You are not required to answer any questions the police may ask, nor are you required to show identification. The officer may also perform a limited search of the person for evidence of the suspected crime. These are known as Terry stops.

The Terry stop rules apply to vehicles as well, and the police are usually permitted to ask to see the driver’s license. But not every traffic stop allows the police to request the driver’s identification. And in People v. Cummings, the Illinois Supreme Court laid out another example of when requesting the driver’s identification becomes an unlawful search and seizure.

Search and Seizure During Illinois Traffic Stop

In People v. Cummings, a police officer driving behind Mr. Cummings suspected that the vehicle’s registration had expired. A quick computer check showed that the registration was valid. However, it also showed that the car’s registered owner – a female – had an outstanding warrant. The officer pulled the vehicle over and, upon approach, immediately realized that Mr. Cummings was male. The officer asked for Mr. Cummings’ identification anyway, at which point he discovered that Mr. Cummings had a suspended license. Cummings was later charged with a Class 4 felony.

The Illinois Supreme Court ruled that the officer violated Mr. Cumming’s right against unlawful search and seizure. Pulling the car over was valid, since the computer check showed that the car’s registered owner had an outstanding warrant. However, the search also showed that the registered owner was a female. Once the police officer realized that the car’s driver was a male, the stop should have ended immediately.

By asking Mr. Cummings for his identification, when he had no reasonable suspicion to believe that Mr. Cummings had committed, or was in the process of committing, a crime, the officer violated Mr. Cummings’ Fourth Amendment right to be free from an unreasonable search and seizure. The court stated that “unless a request for identification is related to the reason for the stop, it impermissibly extends the stop and violates the Constitution.”

In this case, the purpose of the stop was to arrest the car’s registered owner on the outstanding warrant. Requesting Mr. Cummings’ identification, when he clearly was not the car’s registered owner, extended the stop beyond what the Fourth Amendment allows. If the driver had been female, requesting identification would have been acceptable – the officer did not know what the car’s registered owner looked like, and thus would have needed identification to verify her identity.

Chicago Search and Seizure Attorney

The ruling in People v. Cummings is specific to the facts of the case, which makes it very important that you contact an experienced criminal defense attorney if you were arrested following any type of police stop. If the officer’s actions exceeded their Fourth Amendment authority, it is possible to have the evidence tossed out, which may result in the charges against you being dropped. Continue reading

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On March 20, the Illinois Supreme Court overturned the state’s controversial audio eavesdropping law on the grounds that it was unconstitutional. The court ruled that the eavesdropping law, which made it a felony to record and publish speech without the consent of all parties, was an overly broad restriction of the first amendment right of free speech.  If you or someone you know has been charged or convicted under the Illinois audio eavesdropping act, contact an Illinois criminal defense attorney immediately to discuss having your case dismissed and your record expunged.

Illinois Audio Eavesdropping Act

The Illinois audio eavesdropping act made it a felony to knowingly and intentionalchilds-ear-1032418-mly use a device to either listen to, or record, any part of a conversation, unless the recording was made with the consent of all parties. It also prohibited divulging the conversation in any manner. A first offense was a Class 4 felony, punishable by one to three years in prison. A second offense was a Class 3 felony, punishable by three to five years in prison. Both were also subject to imposition of up to a $25,000 fine.

Annabel Melongo and the Illinois Audio Eavesdropping Act

The case was brought before the Illinois Supreme Court in People of the State of Illinois vs. Annabel Melongo.  Ms. Melongo was charged in a Cook County trial court after she recorded a court employee and then published the recordings on her blog. Ms. Melongo failed to get the court employee’s permission prior to recording the conversation.

Ms. Melongo’s first trial ended in a mistrial, with the jury being unable to come to a decision. The prosecution retried the case, and in the second hearing Ms. Melongo argued that the eavesdropping act violated the First Amendment’s right of free speech. The trial court agreed and declared the statute unconstitutional, and the prosecutor appealed. Ms. Melongo spent 20 months in jail awaiting trial.

Illinois Audio Eavesdropping Act Declared Unconstitutional

The court ruled that the Illinois eavesdropping act violated the First Amendment right of free speech because it was too broad. The statute’s intent was to protect private conversations from being recorded and shared. If you meet with your attorney, for example, you shouldn’t have to worry that somebody is sitting outside the door with a cell phone in hand, recording the conversation with the intent of sharing it. You have an expectation of privacy because you are behind closed doors, in a private meeting with your attorney.

The court found that the statute, as written, made all conversations private, even those where a person would not have a reasonable expectation of privacy. For example, if you recorded a person talking loudly on his cell phone on the bus, a husband and wife arguing in a public park, or fans screaming at a Chicago Bulls game, you could be charged and convicted of violating the eavesdropping act – even though none of those people should expect that their conversations are private.

Because the court found the recording part of the eavesdropping act unconstitutional, it also found that the prohibition against sharing the conversation unconstitutional as well. Not only does this make sense from a legal standpoint – if you have the right to record, you should have the right to publish – it makes sense from a practical standpoint as well.

Consider that a newspaper reporter could attend a court hearing, take notes on the proceeding, and then publish an article on what he saw and heard, without the fear of arrest, conviction and jail time. But if that same reporter recorded the hearing, because he didn’t want to risk jotting anything down wrong, under the eavesdropping act he would face criminal prosecution. What is the difference between the two?  There is none, which is why the court declared the law unconstitutional. Continue reading

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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  fight

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

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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 receicar-chase-937355-mving 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

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 Illinois’ concealed carry law, which passed the state legislature in July 2013, officially went into effect when the state police began sending out its first round of permits in late February. As of March 1, 2014, 5,000 license applications had been approved and were processed for mailing, and 46,000 applications had been received so far overall.

Illinois’ domestic violence laws prohibit an individual who is the subject of an order of protection (a restraining order) from possessing or acquiring a gun. The new concealed carry law prohibits those convicted of domestic violence – whether domestic battery, aggravated domestic battery or similar offense in another jurisdiction – from obtaining a concealed gun permit. But domestic violence advocates are worried that it doesn’t do enough to keep firearms out of the hands of perpetrators.

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Section 15 of the concealed carry law allows police to object to the granting of a permit if the applicant has been arrested for any reason five or more times in the seven-year period preceding the application. An objection postpones the decision of whether to grant a permit for 90 days. During that time the police forward all prior arrest information to the Board, which will then decide whether or not to issue the permit.

Because those charged with domestic violence are often repeat offenders with a pattern of escalating abuse, advocates are concerned that the “five arrests in seven years” prohibition is insufficient to protect victims.  Many domestic violence victims file for restraining orders but then drop them out of fear, or don’t take the next step of pressing criminal charges. In other cases, perpetrators are never prosecuted, even when an arrest is made because the victim ultimately refuses to cooperate out of fear. This “loophole,” then, would allow otherwise violent perpetrators to get their hands on a concealed carry permit.

Objections to the Applications

Since the law went into effect, sheriff’s departments in Cook and Lake Counties had opposed 237 out of 14,369 concealed carry permit applications because of domestic violence and orders of protection. The Chicago Police Department objected to 86 out of 3,186 applications. They did not say if all of the objections based on domestic violence and orders of protection exceeded the five times in seven years threshold. An objection does not guarantee that the concealed carry permit will be denied.

But proponents of concealed carry believe the law is fair, arguing that an arrest isn’t the same as a conviction. Prosecutors may choose not to press charges, and jurors may acquit a defendant, because they believe the claim of domestic violence was false. Punishing an individual because he was falsely accused would be unfair and a violation of his or her rights.

Individuals whose applications are denied have the right to appeal to the Board and, if the permit is still denied, then to the courts. Because some believe the law offers a loophole that will put firearms in the hands of those they believe are dangerous, the area is rife with the possibility of denials based on less than that threshold, in the hopes that the applicant will not file an appeal if the Board denies the application.

The appeal process will no doubt involve rehashing and dissecting those prior arrests, with the police arguing that your arrest history marks you as a violent repeat offender, and that allowing you a concealed carry permit would be dangerous to the public. Continue reading

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It’s a hot Chicago night, and you and some friends are outside, laughing and joking in an attempt to beat the summer heat. Two police officers approach and ask what’s going on. Not wanting trouble, you and your buddies turn and walk away. The officer repeats his question, a bit louder now, and the officers quickens their pace. Scared, you and your friends begin to run. The cops quickly follow, and when you’re detained they frisk everybody and find marijuana in your back pocket. Suddenly, what started as a fun night with friends ends with you in the back of a police cruiser, charged with possession of marijuana. chicago-police-176193-m

Unfortunately these types of stop and frisks are all too common, especially in Chicago’s high crime areas. If you’re arrested following a stop and frisk, you need an experienced criminal defense attorney to closely examine your case to determine whether the police’s actions were lawful.

Police Right to Stop and Frisk in Chicago

Police officers have the right to stop and question any person they encounter, provided they have a reasonable suspicion that the individual was engaged in criminal activity. This means the officer must be able to clearly explain why he believed criminal activity was happening; he cannot simply make a stop based on a hunch or intuition. These are known as Terry stops, after the United States Supreme Court case that authorized these investigatory stops.

The officer may perform a frisk (or protective pat down) only if he has reasonable grounds to believe the individual is armed. Even then, the pat down can only be of those areas on the body where a weapon could be hidden.

Just hanging out on the street corner is not generally enough to authorize the police to stop and question you. But in 2000 the U.S. Supreme Court ruled in Illinois v. Wardlow that the police can consider the individual’s behavior in context of the location when deciding whether there is reasonable suspicion to make a Terry stop. Suddenly, hanging out on the street in a known drug area became suspicious – bad news for the many law-abiding Chicago residents living in such areas.

Defending Against Chicago Stop and Frisk Arrest

There are many considerations that come in to play if you are arrested following a stop and frisk. Were you doing anything that could give rise to a reasonable suspicion that you were engaged in criminal activity? Were you in an area known for high criminal activity? Were you acting in a manner that made it appear you were engaged in criminal activity – pacing back and forth, looking at your watch repeatedly, or staying in the same location for a lengthy period of time?

Your behavior on the night of the arrest, as well as the location where it occurred, must be examined closely to determine if either of them could have given the police reasonable suspicion that you were committing – or about to commit – a crime. If the police lacked reasonable suspicion to stop you, the criminal case can be dismissed.

If the stop did rise to the level of reasonable suspicion (and even if it did not), the resulting frisk must also be closely examined to determine whether it exceeded the police’s authority. The police may only frisk on top of clothing, and they cannot pull out or manipulate anything they feel during the pat down unless it is reasonably clear from feel that it was a weapon or drugs. It would be hard for police to determine through a pat down that the small lump they felt in your pants pocket was marijuana. If we can show that the police’s discovery of evidence during a pat down exceeded their authority, the criminal case can be dismissed. Continue reading

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Order of Protection – DISMISSED!

I am a criminal defense attorney, as you are most likely aware.  There is a subset of criminal law that melds into civil work – Petitions for an Order of Protection.  I used to shy away from these but over the past few years I’ve taken on many of these cases.

These cases are a different animal in many respects.  There are no State’s Attorneys, most of the Petitioners and Respondents are pro se, and the rules of evidence are loose and fast.  And the parties are almost always extremely emotional and demanding.

That having been said, I represented the Respondent last Monday in defense of a Petition.  The basic facts are that she dated the Petitioner for over a year, they planned to marry and for whatever reason, the wedding was cancelled by the Petitioner.  Then things fell apart disastrously.  Emails and texts were sent, police reports were filed, my client was arrested on more than one occasion as a result of the Petitioner’s false accusations.  She actually ended up with a misdemeanor criminal trespass to property!  That case went to trial and she was found not guilty.

I cannot tell you how much work went into this case.  My client was hysterical with how she was treated by the Petitioner and how much strife he caused in her life.  And truthfully, it was almost impossible for me to represent her as she was very demanding (understandably) with what she expected of my legal services.  I had to explain that it was a somewhat simple matter of defending the allegations in the Petition and that it wasn’t necessary to bring up other issues that weren’t related to those specific allegations.

We finally had the hearing last Monday.  And this is what I tell every client, criminal or civil: be calm in court, do not make any gestures, do not make any comments unless you are being questioned, and just stand there next to me and look at the judge.  People and some attorneys don’t understand that a judge is actually watching everything that goes on in her courtroom.  She notices how you dress, how you compose yourself and what you say.  I’ve lost trials based on how my client comports herself in court.

My client at her hearing did well.  She didn’t do anything to offend the court.  On the other hand, opposing counsel started yelling at her at one point when she didn’t answer a question the way he expected her to.  The judge lit into him like I’ve never seen.  At the end of the day, the judge found the Petitioner to be wholly unbelievable in his allegations and my client now has a clean record.  Justice prevailed.

The end all be all of this blog is that as an attorney, I not only have to be concerned with the facts of a case and my defense, but also how I prepare my client for a trial or a hearing.  You can’t just go over the case with someone and expect that they’ll understand how to comport themselves in court.  A simple shake of the head or sudden outburst, no matter how honest, can be devastating for the defense.  I always explain to them that they are going to hear things that are hurtful and often untrue.  Their response is to do nothing, just stand calmly at my side and let me do my job.  9 times out of 10, it works out in our favor. Continue reading

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