Articles Tagged with Chicago criminal defense attorney

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A startling new report released by the American Civil Liberties Union (ACLU) found that Chicago police conduct more stop and frisks than any other police department in the nation. In 2014, the Chicago police conducted more than 250,000 stop and frisks that did not result in arrest, making the possibility very real that a vast number of them were unreasonable searches and seizures.

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Stop and Frisk in Chicago

The ACLU report indicates that 93 out of every 1,000 Chicagoans were stopped by a Chicago police officer in 2014. More alarming than their frequent use are the targets – 72% of all stops were of African-Americans, even though African-Americans comprise only 32% of the city’s population. They are more likely to be stopped in predominantly white neighborhoods as well. In the Near North District, which has only a 9.1% African-American population, they made up 57% of all stops.

I have discussed stop and frisks frequently on this blog, as they are one of the prime areas of police abuse and at the root of most unreasonable search and seizures. Under the 1968 U.S. Supreme Court Case Terry v. Ohio, the court ruled that law enforcement may stop any person on the street, provided the officer has a reasonable suspicion that the person has either committed, is in the process of committing, or is about to commit, a crime. Once the stop is complete, the officer may frisk the person only if he believes the person is dangerous or has a weapon.

While the courts over the years have carved out narrow exceptions regarding what constitutes “reasonable suspicion” – for example, loitering on a street corner does not generally rise to the level of suspicion necessary to justify a frisk, but officers can take into consideration the area when determining whether a person may be engaged in criminal activity – the rules are clear. While a person can be stopped for any reason, he cannot be frisked because he’s black walking through a white area. He cannot be frisked because he “looks” dangerous. He cannot be frisked because a crime was just committed in the immediate area, unless the person stopped matches the description of the suspect.

“Contact cards” filled out by police following such stops show that police are abusing their right to stop individuals. Chicago police officers complete contact cards for every stop that did not result in an arrest or charge, noting information about the person and the reason stopped. Information pulled from the cards shows that police are stopping individuals for dubious, if not completely unwarranted, purposes. And the fact that the cards are not completed if the stop did not lead to arrest or charges makes it impossible to accurately determine how many stops are of innocent Chicagoans.

The completed contact cards that were reviewed during the ACLU’s study show that many Chicago police officers have a poor understanding of what they are legally allowed to do during stop and frisk. This reinforces the fact that if you are stopped and subsequently arrested by police, even if they find illegal contraband during a frisk, you should not answer any question or make any statement until you have a lawyer by your side. Law enforcement is required to follow specific procedures in regard to search and seizures, and failure to adhere to those procedures can result in evidence against you being inadmissible at trial. But confess to committing a crime, even when the results of the frisk are later deemed inadmissible, and you will severely hinder the defense attorney’s ability to get the charges against you dismissed or win an acquittal at trial.

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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.

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“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.

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The Illinois State Police announced the arrival of a new member to its K-9 unit recently, a dog trained in narcotics detection to aid in drug crimes investigations. I have discussed extensively on this blog the 4th Amendment right of all people to be free from unreasonable searches and seizures. But do those protections extend to police dogs?

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Illinois Police Dogs and Search & Seizure

In 2005 the United States Supreme Court, in a decision that overruled the Illinois Supreme Court, ruled that the 4th Amendment prohibition against unreasonable search and seizures does not prohibit a trained police dog from being brought to the scene of a routine traffic stop to detect for illegal drugs.

In Illinois v. Caballes, the defendant was pulled over for a routine traffic stop. A K-9 unit responded to the officer’s radio regarding the stop. While the defendant was seated in the arresting officer’s vehicle, the dog was walked around the defendant’s vehicle, when it alerted its handler to the presence of drugs. A search of the defendant’s vehicle uncovered marijuana in the trunk.

The Illinois Supreme Court reversed the conviction, ruling that there had not been “specific and articulable facts” of any crime to justify the canine search. With the search deemed unconstitutional, the evidence had to be tossed out and there was no basis to support the conviction.

But the U.S. Supreme Court reinstated the conviction. Police dogs, the court said, are trained only to detect illegal contraband, which is not a legitimate privacy interest. If no drugs are present, then the privacy of the individual being sniff-searched has not been violated, because the dog cannot detect or convey any private information. Therefore, having a police dog sniff an area, even if there is no probable cause to assume the person being searched is in possession of drugs, does not constitute an unreasonable search and seizure. Probable cause to perform the subsequent search arises when the dog alerts to the presence of illegal contraband.

Because individuals do not have a privacy interest that can be violated by a sniff-search, can there ever be a case where a search by a K-9 unit is unreasonable?

In Caballes, the dog sniffed outside the defendant’s vehicle. Police would be unable to have the dog sniff inside the vehicle, without probable cause to believe that there was drugs inside. Likewise, a police dog could search outside a residence, but would be unable to search inside unless it alerted to drugs inside the home, or if the police had a search warrant for the home.

The search could also be unreasonable, and any evidence uncovered from it deemed inadmissible, if the dog’s handler did any of the following:

  • Falsely claimed that the dog alerted to the presence of drugs and subsequently conducted a search;
  • Encouraged the dog to alert to the presence of drugs, such as repeatedly pointing the dog to a location he had already searched and dismissed;
  • Signaled the dog to alert in any manner, or;
  • Searched a wider area than what the dog alerted to.

In any of these instances, the police officer’s act of forcing the dog to alert, or falsifying an alert, for the sole purpose of creating probable cause to support a search, would result in the search being deemed unreasonable. Continue reading

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Eyewitness identification is heavily relied upon by juries and judges when deciding on a criminal defendant’s guilt or innocence – yet it is the leading cause of wrongful conviction.

A new Illinois law seeks to cut down on the misidentification of criminal suspects in police lineups by eliminating the potential for officer bias.

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New Procedures for Chicago Police Lineups

Chicago police departments currently use “standard lineup” procedures, which are inherently biased – the lineup administrator (the person who organizes the lineup) knows the identity of the suspect. This increases the chances that he may, whether on accident or on purpose, give clues to the victim regarding which suspect she should “identify.” The bias is present in both live and photographic lineups.

The new law eliminates this bias by requiring that all lineups be conducted using one of three methods:

Independent administration. In this procedure, the lineup administrator is not a participant in the investigation and has no knowledge of who in the lineup is the suspected perpetrator. This eliminates the possibility that he can influence the eyewitness into choosing the police suspect.

Automated administration. In this procedure, a computer or other device automatically displays a photographic lineup in a manner that prevents the lineup administrator from seeing which photographs the eyewitness has viewed until the lineup is completed.

Random administration. In this procedure, photographs are placed in file folders that are then randomly numbered, shuffled and presented to the eyewitness. As in the automated administration, the lineup administrator has no knowledge of which photographs the eyewitness has viewed until the lineup is completed.

Police may also utilize any other method that guarantees that the lineup administrator has no knowledge either of the suspect or of which photographs the eyewitness is viewing until the lineup is completed.

In addition, lineups shall be composed to ensure that the suspect blends in with the “fillers”, those non-suspects who are included in the lineup. This means that the fillers should be substantially similar to the appearance of the suspect as described the eyewitness, such as race, height, facial hair, tattoos or other identifying characteristics.

If a police lineup does not comply with the new procedures, or if it can be otherwise proven that the lineup administrator improperly influence the eyewitness’ identification, that identification may be ruled inadmissible in court, or the jury may be told that the identification is suspect because the police failed to follow proper procedures.

The change in proper lineup procedures is very much needed and goes a long way toward protecting the rights of criminal suspects. The inherent bias in standard lineup procedures leads to the misidentification of suspects, some of whom are later wrongfully convicted or plead guilty to crimes they did not commit. Others suffer the stress, sometimes while in jail, before further police investigation determines that the evidence does not support the suspect’s having committed the crime. Continue reading

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A Chicago man was recently charged for the alleged assault and robbery of his mother’s elderly landlady. The robbery occurred shortly after the defendant’s mother paid rent for the month.

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Question of Identification in Robbery

In this particular case the victim was allegedly robbed by two men, the defendant and an as yet to be determined co-offender. The defendant allegedly grabbed the victim around the neck and covered her mouth, presumably to prevent her from crying out for help. The robbery occurred outside the apartment building.

There is an immediate question of whether the victim properly identified the defendant as her assailant. The victim was grabbed from behind, and with the hand over her mouth was unlikely able to turn her head to see who had grabbed her. Following the robbery she was pushed to the ground. Reports indicate that the fall caused nerve pain and made her unable to move her legs, so it is also unlikely she was able to turn to get a good look at her assailants as they fled.

Thus, it is quite possible that, injured and most likely extremely shaken-up over the assault, she described the defendant to the police and later identified him in a lineup as the assailant not because he actually committed the crime, but she had seen him shortly before the assault and was therefore the most recognizable.

Careful attention then would need to be paid to the circumstances surrounding the police lineup and whether they influenced the victim in any way. Factors that would tend to show that the police unduly influenced the victim’s description of the perpetrator, and thus would invalidate her identification, include:

  • Whether law enforcement asked leading questions when obtaining a description of the assailants, such as specific questions about his physical characteristics;
  • Whether the non-suspects included in the lineup of similar coloring, height and build as the defendant;
  • Whether law enforcement asked the victim to specifically take a look at the defendant, or to check him out again if she did not immediately select him;
  • Whether law enforcement took any other action or made any other statements that drew more attention to the defendant than the other people in the lineup.

Examination of Injuries Sustained in Assault

The victim allegedly suffered a bulging disc, nerve pain and an inability to move her legs following the assault and robbery. Although the degree of the injuries suffered does not increase the charge, it could have a huge impact on the jury. The victim is 68 years old, which will likely make her extremely sympathetic in the eyes of the jury. The more injuries she suffered during the assault, the more likely the jury is to view the defendant in an unfavorable light for assaulting who they perceive as a poor, defenseless little old lady.

It is therefore important to have a medical forensic expert review the victim’s medical records to determine if the injuries she suffered were consistent with the actions taken in the assault. It is also important to review her prior medical records to determine if she has a pre-existing condition that could have caused the nerve pain and bulging disc flare up as a result of the assault, as opposed to being the cause of the injuries. Continue reading

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A Chicago man was charged with first-degree murder for the stabbing death of his mother recently in the Southwest Side Chicago home they shared with her husband. The defendant was covered in his mother’s blood and allegedly admitted to stabbing her following an argument.

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Criminal Confessions and the 5th Amendment

The defendant allegedly confessed to stabbing his mother, telling police he did so because he was angry that she constantly put him down and told him to get a girlfriend. His statement to police indicated that he took a knife from the butcher block in the kitchen and replaced it following the killing.

Contrary to what you may think, a confession does not mean the case is a slam-dunk for the prosecution. As I have discussed in prior posts, the 5th Amendment provides criminal suspects protection against self-incrimination. To ensure that right, the police must read a suspect his Miranda rights once he is placed in custody.

Any confession therefore must be carefully scrutinized in light of the Miranda protections. Police actions that may violate the 5th Amendment include:

  • Failure to read the defendant his Miranda rights;
  • Failure to provide an attorney if the defendant requests one;
  • Continuing to interrogate the defendant once he requests an attorney, and;
  • Attempting to talk to the defendant about the crime after he has met with an attorney, and without the attorney’s permission.

Consideration must also be paid to the manner in which the police conducted the interrogation, and all copies of police transcripts or video tapes of the interrogation, particularly of the alleged confession, must be thoroughly reviewed to ensure that the confession was not coerced or made under duress.

If the police violated the 5th Amendment in anyway, or utilized abusive interrogation techniques, the defendant’s confession could be deemed inadmissible in court, and could result in a dismissal or reduction of charges.

Seeking Reduction of Charges in First-Degree Murder

If a review of the circumstances surrounding the defendant’s confession indicate that it will be admissible in court, and if the other evidence in the case tends to show that the defendant’s chances of acquittal in court are slim, then the defense moves from seeking an acquittal or dismissal to obtaining a reduction in charges.

In this case, the defendant had large, visible cuts to his hands and face. A review of the medical records by an independent medical expert is needed to determine whether the wounds to the defendant’s face could have been caused by the kitchen knife, or any other knife in the house. An expert forensic analysis of the bloody knife found in the house is also necessary to determine whether the defendant’s blood is on it. These two facts could be consistent with the victim having attacked the defendant first, which could result in a reduction of charges to manslaughter, second degree murder (for imperfect self-defense, where the belief that the use of force was necessary was unreasonable) or allow the affirmative defense of self-defense to be raised.

Because the murder was allegedly committed because of what the defendant described as belittling behavior by the victim, friends and family must be interviewed to determine the nature of the relationship between the defendant and the victim. If there was a history of emotional and verbal abuse, the argument that evening could have been the proverbial straw that broke the camel’s back and caused the defendant to lash out at his mother over years of abuse. If this were the case, then an argument could be made that the charges should be reduced to second degree murder, since the defendant acted in the heat of passion.

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A Cook County man was arrested last week and charged with felony threats to a police officer, assault and various weapons charges, after a person reported a Facebook post in which he threatened to kill police officers.

Threat to Illinois Police Officer

Under Illinois law a person can be convicted of threatening to harm a police officer, even if no actual attempt to inflict harm was made. However, “the threat must contain specific facts indicative of a unique threat. . .and not a generalized threat of harm.”

In a case such as this, it is important to closely examine the threat that was made to determine if it was specific or general. A specific threat would have to include details that showed the individual making the alleged threat had, at the very least, a loose plan of when, where and how the harm was going to be committed. A general threat would be more along the lines of puffery or letting off steam.

For example, a Facebook post that said, “Death to the police!” or “Those pigs had better hope they never run along my path!” is a general threat. The threat is not aimed at any specific individual and doesn’t give any indication of where, when or how the threat would be carried out. But if the threat said, “Some cops are going to die tonight!” and was accompanied by a photo of the person armed with guns or other weapons, that may be specific enough to indicate an actual threat – the time is specific (tonight) and the photos shows the person has the means to carry out his threat.

Careful examination of the threat is especially important at this particular moment in time. Police across the nation are on high alert after the murders of two New York City police officers, which was done in apparent retaliation for the recent police killings of unarmed black men in Ferguson, Missouri and New York City. Knee-jerk reactions could cause police, and the judge who signed the arrest and/or search warrant, to overreact. But when it comes to a person’s constitutional right to be free from unlawful search and seizure, the adage “better safe than sorry” does not apply.

In addition, it is important to separate post-arrest statements from the initial threat. In this case, statements the defendant allegedly made post-arrest make his threat seem more specific. But post-arrest statements in a threat case cannot be used to bolster the arrest. The threats needed to be specific at the time the arrest was made.

Cook County Search and Seizure

Any arrest or search of a suspect or his home raises immediate concerns regarding whether the police had the appropriate authority to initiate the arrest or search, and whether the arrest and/or search warrant was lawfully obtained.

In order to arrest a person in his home, the police must have an arrest warrant. Issuance of an arrest warrant is based on law enforcement’s reasonable belief that the individual named in the warrant has committed a crime. In order to search a suspect’s home, the police must have a search warrant, which requires a showing of probable cause. The arrest warrant alone is insufficient to conduct a search and obtain evidence, with the exception of the following:

Search incident to arrest: Law enforcement may search any area within the arrestee’s immediate control for weapons or evidence of the crime;

Plain view: Law enforcement may collect any evidence that is within view of the spot where the arrest occurred. For example, if the arrest occurred in the kitchen, they could confiscate any evidence of crime they see sitting in plain view on the dining room table. They could not walk down the hallway and take evidence they see sitting on a bedroom nightstand.

Safety: Police may do a protective sweep of the home if they believe there may be others present, or if the nature of the underlying crime warranted it – for example, it was suspected the arrestee was making bombs, so a check was done for explosives that could detonate and harm others.

A careful review of the arrest and search warrant in this case is necessary to determine whether law enforcement had the appropriate warrants and, if not, whether the search fell within any of the three exceptions. If the police did have the appropriate warrant, it must be determined that they probable cause to obtain the warrants. If the defendant’s Facebook threats were too general to qualify as threats under the law, then the warrants would be invalid, all evidence uncovered in the search would be inadmissible, and the charges would have to be dismissed. Continue reading

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If you’re on the internet at all these days, you’ve no doubt heard of “revenge porn”. An ex-romantic partner, whether in a fit of jealousy or just a pure desire to get back at you for dumping him, posts private, nude images you had sent him online for all the world to see. Or maybe a current girlfriend, angered that she caught you flirting with another girl, posts naked pictures to her social media account without your consent, in an attempt to ridicule you. Regardless of the motivation behind it, as of January 1, posting such pictures without your partner’s consent is a class 4 felony that could land you in prison.

Illinois Revenge Porn Law

The law, which was proposed by Sen. Michael Hastings of Tinley Park in 2014, prohibits the “non-consensual dissemination of private sexual images”. It is seen by proponents as closing a loophole in the pornography laws, which make it a crime to post nude images on pornographic sites without the subject’s consent. But the law did not criminalize disseminating nude pictures, which were shared privately between two consenting adults, on social media.

Under the law, an individual is prohibited from intentionally sharing an image of a person over the age of 18 if the person is:

  • Identifiable from the either the image or information displayed in connection with the image, and
  • Engaged in a sexual act, or whose intimate parts are exposed.

In addition, a reasonable person must have understood that the images were to remain private, and the person sharing the image must have known, or should have known, that the person in the photo did not consent to its being shared.

For purposes of the law, “image” includes any photograph, film, videotape, digital recording or other depiction or portrayal. Although the law was drafted with the idea of the image being shared on social media, posting the photo in public places would constitute a violation of the law. A conviction under the law is a class 4 felony, which carries the possibility of 1 – 3 years in prison.

Defense against Illinois Revenge Porn

Although many consider revenge porn something to laugh at and not that serious – after all, the person voluntarily shared nude photos of herself – conviction under the law is serious. Defending against a charge of revenge porn requires a careful examination of all the evidence, including having a forensic expert examine the all data related to the dissemination of the image, to find the flaws in the prosecution’s case. Evidence that would go against a conviction include:

  • Unintentional dissemination of the image, for example if a virus caused your phone or computer to share the image via a text or e-mail;
  • If the phone was in somebody else’s possession when the image was sent;
  • Whether somebody had hacked in to your phone or computer and sent the image;
  • If a reasonable person would have believed sharing the images was acceptable, for example if the woman in the picture had those same images on public display in her home, or;
  • Nobody would have been able to identify the person in the image – for example, his face was blurred or cropped out – but for the fact that he told everybody it was him.

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Two Chicago store clerks who were the victims of an armed robbery opened fire on the alleged assailants recently. Following the robbery, the manager of the 7-11 saw a vehicle parked in the alley; when he and the employee approached with guns, the alleged assailants opened fire. The clerks fired off eight shots before the alleged assailants fled.

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Self-Defense: By the Victims or the Armed Robbers?

This case raises an interesting question of whether the victims were justified in their use of force against the armed robbers, and whether they could face potential charges of aggravated battery or aggravated assault for firing upon the alleged assailants.

Illinois law allows an individual who used force against another to claim self-defense if “he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force.” The law further states that a person can only use force intended to, or likely to cause, death or great bodily harm – such as firing a gun – “only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

Illinois law does not allow a person to claim self-defense if force was used during an escape from commission of a forcible felony, or initially provided the use of force himself. It also cannot be claimed if the person asserting the defense initiated the contact, unless he indicates his desire to withdraw from his initial use of force.

So in a typical convenience store robbery, the alleged victims would have been justified in pulling their weapons and firing if they had done so during the commission of the crime. One assailant allegedly held a gun to the clerks’ head and threatened to blow his head off if he didn’t hand over the money. Under the self-defense law, the clerk and his boss would have been justified in pulling their weapons and firing because there was a reasonable belief that their lives were in imminent danger. They also would have been justified in using force, even if the assailant hadn’t made the threat, because armed robbery is a forcible felony.

But the circumstances surrounding this case are not so straightforward. The clerks pulled their guns after the armed robbery had been committed and the assailants fled the store. So there is a question of whether the clerks’ use of force was justified, or whether the assailants themselves could claim self-defense.

At the point where the clerks approached the assailants with their weapons, there was no longer a need to defend against another’s use of imminent force, there was no fear that either of them were in danger of suffering great bodily harm, and the forcible felony had been completed. This doesn’t appear like the typical “escape” scenario, because the clerks did not chase the assailants out, guns drawn. Instead, the assailants left with the money, and the clerks then saw a car in the alley on their security cameras. They then chose walk out and confront the assailants, not even sure if the people in the car were the assailants. Their actions could be considered retaliation or vigilante justice rather than self-defense.

You may be thinking, “But when the clerks approached, the assailants drew their weapons and opened fire, so the clerks were justified.” That may be true. It may also be true that the assailants (assuming they even were the assailants) were now in fear for their lives and opened fire to protect themselves from imminent bodily harm. Yes, the law says that a person who initiated force cannot then claim self-defense if force is used against them. However, the initial aggressor can claim self-defense if he indicated a desire to disengage. Here, the fact that the assailants fled the scene could show an indication on their part to disengage from their initial threat of force, so that the clerks’ approach with guns drawn was now an improper use of force.

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A Cook County man was arrested this past October and charged with attempted first-degree murder and hate crimes for allegedly stabbing a 79-year-old African-American woman.

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Illinois Hate Crimes

When most people think of a hate crime, they think of an assault upon an African-American, maybe even a lesbian, gay or transgendered individual. But hate crimes under Illinois law may be committed against an individual due to his:

  • Race;
  • Color;
  • Creed;
  • Religion;
  • Ancestry;
  • Gender;
  • Sexual Orientation;
  • Physical or mental disability, or;
  • National origin.

Hate crimes include not only assault and battery, but also:

  • Theft;
  • Trespass to residence, vehicle or real property;
  • Damage to property;
  • Mob action;
  • Disorderly conduct, or;
  • Harassment by telephone or electronic communications.

Hate crimes are a class 4 felony – class 2 if it’s a second offense – and carry with it a minimum of one year in prison. Hate crimes are a class 3 felony if committed in certain locations, such as a school or church. The penalties imposed for conviction of a hate crime are in addition to those imposed for conviction of the underlying offense. The defendant in a hate crime case is charged then not only with the hate crime, but with the assault, battery, or whatever other crime committed against the victim as well.

Defenses Against Hate Crimes

There are two portions of a hate crime defense – defending against the underlying crime, and defending against the hate crime charge. When defending against a hate crime, it is actually not a defense that the victim was not a member of a protected class. For example, if the defendant attacked a man because he thought he was Muslim, but it turned out he was Indian, the mistake as to the victim’s actual ethnicity is not a defense to the charge. It is enough that the defendant thought he was attacking a Muslim.

In order to successfully defend against a hate crime, the defense attorney must prove that the crime was not racially motivated (assuming that he cannot disprove commission of the underlying crime). Just because a crime victim falls into the protected class of victims does not automatically mean it is a hate crime, although the prosecution may attempt to argue otherwise. Proving the crime was not motivated by hatred toward the victim’s race, sexual orientation, religion, or other protected class may include:

  • Showing a lack of history of any type of racial crime;
  • Showing that the crime was one of opportunity; for example, you robbed the woman on the street corner because she was there and you needed money, not because she was a woman;
  • Lack of use of racial, sexual or other slurs against the victim during the commission of the crime, or;
  • You have a prior history of committing the same offense, and there is no pattern of it being against members of the protected class.

Disproving that the crime was motivated by reasons unrelated to race, religion, gender, or any of the other protected classes will result in the jury being forced to acquit on the hate crime charge.

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