Chicago criminal attorney

August 12, 2015

Are You Being Charged with Aggravated Unlawful Use of a Weapon for Lack of FOID Card?

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

If you are in possession of a firearm and do not first obtain an FOID card (Firearm Owner Identification Card), and you are caught with it on your person, in your car, or even in some circumstances in your own home or place of business, you may be charged with Aggravated Unlawful Use of a Weapon, 720 ILCS 5/24-1.6 (“AUUW”). If you are facing AUUW charges in Cook County or DuPage County because you were arrested for having a firearm and not having an FOID card, you need an experienced criminal defense attorney to defend you and protect your rights.

Illinois requires that all residents who want to own a firearm first obtain an FOID. You can fill the application for an FOID out online, or you can print it out and mail it, fax it, or scan it. If you have an FOID card, you may transport a gun in your vehicle, as long as it is unloaded and in a case or other container. If you are carrying a firearm that is loaded or not in a case, or is in the glove compartment of your car, and you get pulled over, you will be charged with unlawful use of a weapon.

What if you are Charged with AUUW?

It is far more serious, however, if you are caught with a weapon in your vehicle and you do not have an FOID card. Even if you are an out of state person who has come to Illinois to hunt, you may be charged with AUUW if you are pulled over and have an unloaded firearm in your car. The name of the offense is misleading, as you do not have to actually “use” the weapon to be charged with the crime – if you do not have an FOID card and you have a loaded or unloaded weapon in your car or on your person, you can be charged with this crime. This is a Class 4 Felony under Illinois law, and you need top level legal representation if you are charged.

If you are convicted of AUUW for possession of a firearm without an FOID card, it is punishable by a minimum of one year in prison and up to (but not more than) three years, if it is a first offense. There is also the possibility of a $25,000 fine. If it is not your first offense and you are charged with AUUW, you could be facing seven years in prison.

August 7, 2015

Bail Denied for Suspect in Attempted Murder of Chicago Cop

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

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

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

Attempted Murder in Illinois

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

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

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

Cellphone Searches

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

May 27, 2015

Accelerated Resolution Court Act Seek to Get Cook County Inmates Out of Jail

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

The Illinois Senate unanimously passed a bill that would move petty, non-violent offenders out of the Cook County jail system on an expedited basis. The bill, which creates a pilot program in the Cook County Jail, is aimed at releasing low-level offenders of crimes such as retail theft and criminal trespass from jail within 30 days of booking. It now moves on to the House.

Chicago “Rocket Docket” Bill

The Accelerated Resolution Court Act, or the “Rocket Docket” bill, was pressed by Cook County Sheriff Thomas J. Dart as a means of relieving the high taxpayer cost associated with incarceration and minimizing the inequity faced by defendants charged with petty, non-violent crimes. Often times, low-level offenders spend an outrageous amount of time in jail for their crimes not because they pose a risk to society, but because they cannot afford to post bond.

To highlight the need, Sheriff Dart posts weekly case studies that highlight the amount of time low-level offenders spend in jail awaiting trial, the charged crime and the amount of money it costs taxpayers to incarcerate the defendant. The studies are truly outrageous:

A homeless woman spent 135 days in jail, at a cost of $19,305, for stealing two plums and three candy bars;
A homeless woman, who suffers from mental illness, is repeatedly arrested for criminal trespass at public places, mainly after she begins shouting obscenities at patrons; her most recent arrest, for trespass at O’Hare, netted her 51 days in jail at a cost of $7,293 to taxpayers.

There are at least a dozen other such studies, most involving homeless people with mental illness and/or alcohol problems. They are repeatedly placed in jail for these non-violent offenses – many of which are committed due to a need for food or shelter for themselves. They remain in jail until their case is completed, whether due to dismissal, plea or jury trial, and then return to the streets following completion of their sentence without having received any assistance for their underlying issues, whether that be alcohol and drug abuse, mental illness or the lack of a place to stay. The result – they cycle right back through the system.

Accelerated Resolution of Petty Cook County Crimes

Under the bill, in order to be eligible for participation in the Accelerated Resolution Court Act, the defendant must be:

In custody 72 hours after bond was set;
Unable to post bond or ineligible to be placed on electronic home monitoring, and;
Charged with either retail theft of property valued at $300 or less or criminal trespass to property.

Defendants who have been convicted within the past 10 years of a violent crime, such as murder, rape or kidnapping, cannot participate in the program.

Cook County Sheriff’s officers refer appropriate cases to the Accelerated Resolution Court, which then has 30 days to hear the case. If the defendant’s case is not heard within 30 days of referral, he is released on his own recognizance. This does not mean that the defendant walks free. Rather, he is released from jail until the case is resolved; he can still later be tried, convicted and put back in jail. Without the program, non-violent offenders who are unable to post bond often spend more time in jail awaiting trial than the sentence that would be imposed if convicted at trial.

May 12, 2015

FBI Admits Errors in Analysis of DNA Evidence

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

A joint task force comprised of the U.S. Department of Justice, the Federal Bureau of Investigation, the Innocence Project and the National Association of Criminal Defense Lawyers released a report in April indicating that in at least 90% of criminal defense trials reviewed, testimony by microscopic hair comparison analysis examiners was erroneous.

Three thousand cases involving FBI hair analysis are being reviewed as part of the review process. As of March 2015, approximately 500 of those cases have been reviewed. Among the report’s findings:

In cases where the examiner’s testimony was used as evidence of the defendant’s guilt, 96% contained erroneous statements;
In cases where the defendant received the death penalty, 94% contained errors;
Nine of the defendants sentenced to death have already been executed, and five died of other causes on death row; and
Of the 28 FBI examiners whose testimony has been reviewed, 26 of them had errors in their testimony or prepared lab reports containing erroneous statements.

The results of the joint study do not mean that there was no other evidence to support the defendants’ guilt, and the prosecution may have won a conviction even if the erroneous testimony had not been admitted at trial. But the fact that 96% of cases included false proof of guilt highlights the need for independent forensic experts in all criminal defense cases.

The popularity of television crime procedurals means that the public is more aware of DNA and forensic evidence than ever before. For many proof of guilt or innocence rests on the presence of DNA. But while advances in forensic science mean that forensic analysts are able to obtain DNA evidence from smaller and smaller specimens than they were in years past, the potential for error still exists, and a DNA “match” is not the slam-dunk television would have you believe. Errors in DNA evidence may include:

Improper collection;
Contamination of specimen prior to processing;
Failure to obtain a search warrant prior to taking a specimen;
Contamination of specimen during testing;
Malfunction of equipment used to test specimen;
Inadequate credentials and expertise of examiner, or;
Improper analysis of evidence.

Errors in DNA testing and analysis may be malicious or due to simple human error. Regardless of the reasons, those errors will go undiscovered without the knowledge and expertise of a seasoned criminal defense attorney and independent forensic experts. Forensic analysis submitted by the FBI or police department is biased; after all, they are the ones who made the arrest, so they are convinced of the defendant’s guilt. Thus in order to convince the jury that the prosecution’s analysis of the evidence is wrong, the defendant must obtain his own expert to test the DNA sample and prepare his own report on whether the evidence points to the defendant’s guilt or innocence. Failure to obtain an independent expert analysis of DNA evidence could mean the difference between a finding of guilt or innocence.

April 8, 2015

Cook County Home Invasion

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

An Indian Head Park man was arrested and charged with home invasion after allegedly gaining access to the victim’s home by impersonating a police officer and assaulting the man.

Home Invasion: Separate Offense from Residential Burglary

While home invasion and residential burglary have similar elements – both involve unlawfully gaining entry into the home of another – they are two distinct crimes. Home invasion has the added element of unlawful entry of another person’s home knowing that at least one person is present in the home at the time of the invasion, or gaining entry by falsely representing himself to be someone else, with the intent to cause injury to the resident.

Like burglary, home invasion is a specific intent crime. The intent required for the crime applies to several different elements. In order to gain a conviction, the prosecution must prove that the defendant knowingly:

Entered another person’s home;
Entered the home knowing that one or more people were present, and;
Intended to cause harm.

In defending against a specific intent crime such as home invasion, the defense strategy is to raise as much doubt as possible regarding whether the defendant had the necessary intent for each element of the crime. The defense would therefore examine all of the circumstances surrounding the case to find any evidence that would tend to disprove intent. Such evidence may include:

Whether the home subject to the invasion was in the vicinity of the defendant’s home. If so, we would want to examine whether the defendant was intoxicated or under the influence of drugs, so that perhaps he mistakenly believed he was entering his own home, which is not a far stretch given some of today’s cookie cutter houses. If the defendant believed, even mistakenly due to his drunken state, that he entered his own home, his assault of the homeowner could not be considered intentional, since he would have believed he was protecting himself from a burglar.

Whether the defendant and the alleged victim knew each other and had any prior altercations. Is there any evidence to suggest that the two had had a verbal or physical altercation earlier that evening, and the fight continued in the victim’s home?

Whether the alleged victim assaulted the defendant first, prompting the defendant to retaliate in self-defense. The victim alleged that the defendant claimed he was a police officer to gain entry into the home. An examination of the victim’s history may show that he had outstanding warrants for his arrest, or past run-ins with law enforcement, so that his first reaction was to assault the “officer.”

Whether the defendant actually entered the home. If the assault is true, it cannot be a home invasion if the defendant did not knowingly enter the home. The defense would need to examine whether the initial assault took place on the front step of the victim’s home, and the defendant was pulled inside the home during the ensuing altercation. This would result in the charges being reduced, most likely to battery.

March 26, 2015

2015 Changes to Illinois Criminal Laws

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

A number of changes and additions to Illinois’ criminal laws took effect on January 1. Some of the changes are procedural, while others modify or add crimes to the books. Here are some of the changes that will impact criminal defense work in Chicago.

“Skype” Search Warrants: Judges will now be allowed to authorize search warrants based on sworn testimony provided over electronic methods, such as Skype or FaceTime, that utilize both an audio and video component. The judge must be able to see and hear the officer or attorney requesting the search warrant in order to sign off on it. Defense attorneys will keep a close eye on how this new law works to determine if putting it into action violates a criminal defendant’s right against unreasonable search and seizure. The court is authorized under this new law to establish best practices and procedures, so there may be the opportunity for defense attorney concerns to be considered and made part of the process.

One possible upside for the issuance of these types of warrants is the potential for these proceedings to be recorded. This would be another tool for defense attorney’s to use at trial or on appeal to show that law enforcement exaggerated the evidence used to justify issuance of the warrant or the need for one to be issued in an emergency. Defense attorneys routinely review the information included in the warrant and the officer’s accompanying notes in support, but being able to see and hear the testimony given to the judge, and not just what was written in the warrant, could be extremely helpful.

Grooming: The current grooming law, which prohibits the use of the Internet to seduce or entice a child to commit a sex offense, has been expanded. Under the new law, a charge of grooming also includes the distribution of photographs depicting the child’s sex organs.

Controlled Substances: The drugs “25I-NBOMe,” “25B-NBOMe” and “25C-NBOMe”, which are marketed as an LSD substitute, are now included on the list of Schedule I controlled substances. The changes came after the drug was linked to at least 19 deaths across the country over a 16-month period.

Expungement and Sealing of Records: This law allows a person to petition the court and request that his criminal conviction for misdemeanor assault, aggravated assault, battery, or reckless conduct be sealed as soon as four years after the termination of the defendant’s sentence. The defendant must not have committed any crime since his sentence was completed.

Electronic monitoring. Under this new law, judges are permitted to order, as a condition of bail, a risk assessment evaluation and electronic monitoring through GPS for defendants charged with certain violent crimes, regardless of whether an order of protection has been issued against him.

Photo lineup procedures: The law makes extensive changes to how police conduct photographic lineups, which should hopefully minimize law enforcement bias in the process and help cut down on eyewitness misidentification.

March 6, 2015

Chicago Police Piloting Use of Body Cameras

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

In response to officer killings of unarmed men around the country last summer, the Chicago Police Department equipped 30 police officers with body cameras late January, as part of a pilot program to provide evidence (or lack thereof) of police misconduct, such as unlawful search and seizures or excessive force, in arrests and interactions with the public. The cameras, which will be clipped to the officer’s uniform, headgear or glasses, will be piloted for 60 days before a decision is made whether to expand the program.

Chicago Police Officer Misconduct

One of the greatest areas of office misconduct is the violation of a suspect’s Fourth Amendment right against unlawful search and seizures. Whether it is an overreach of the Terry stop, which allows the police to approach anybody on the street they reasonably believe is about to commit a crime; an unlawful search of a suspect’s car at a routine traffic stop, or; failure to read a suspect his Miranda rights, police officer misconduct routinely occurs. Unchecked, it can cause mistrust of the police and the imprisonment of innocent defendants.

Police brutality due to excessive force or even racial profiling is another area of misconduct that has been in the news quite a bit the past few months, with the deaths of Michael Brown and Eric Garner at the hands of police officers.

Police body cameras can help prevent excessive use of force and unlawful search and seizures by making the police accountable for their actions. For the majority of Chicago police officers, use of the body cameras will not change the way they do their duties because they are honest, upstanding members of the force. In these cases, the body cameras can only be a benefit to them, as it will prevent wrongful accusations of misconduct.

But for those handful of officers who routinely violate the civil and criminal rights of Chicago citizens, body cameras should prove to be an extremely useful tool in cutting down on this behavior. For some officers, knowing that the body cameras provide a record of their actions will cause them to stop and think twice before using force where it’s not necessary or searching a victim without probable cause.

For those who are not deterred by the presence of cameras, the images they capture will ensure that the innocent will not be sent to prison. And it will provide that all important evidence that could result in the indictment and conviction of officers who overreach their authority, ensuring that the real criminals are behind bars, and giving victims of police misconduct the evidence they need to file civil rights lawsuits.