Articles Tagged with Chicago criminal defense attorney

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A Chicago man out on bond for a sexual assault charge was arrested recently for an unrelated murder. The defendant, who is accused of raping three girls last year along with eight other men, allegedly shot two men on Chicago’s west side; one of the men died at the scene, while the other suffered a gunshot wound to the arm.

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Chicago Defense of Unrelated Crimes

This case is a criminal defense attorney’s nightmare – a client, out on bond, gets arrested for committing a second crime. And in this case, the second charge is worse than the first. But it does raise a variety of possible defense tactics, whether it is the same attorney representing the defendant on both charges, or if the defendant has one attorney for the sexual assault charge and one for the murder charge.

Of course, the typical defense against both crimes would be present here. Defense against the sexual assault charge would include:

  • Mistaken identity;
  • Lack of DNA evidence tying the defendant to the sexual assault;
  • Consensual sex, if DNA evidence is present;
  • The defendant was forced to participate in the sexual assault by the other participants, under threat of great bodily harm (committing a crime to prevent injury is not a true defense, but may result in a lesser sentence due to mitigating circumstances), or;
  • The victims fabricated the story in retaliation for some unknown slight, or because they were later embarrassed to have consented to sex group sex.

Defense against the murder charge would include:

  • Mistaken identity;
  • The defendant was not the one who fired the gun (this would require ballistics analysis by a team of forensic experts); or
  • The defendant fired in self-defense (if it can be proven he was the one who fired the gun).

But, assuming the prosecution has enough evidence to take both cases to trial, the two pending cases give the criminal defense attorney leverage in negotiations to enter into a plea agreement or to have the charges reduced.

The defendant is one of nine men allegedly involved in the 2013 rape of three women. In a gang rape, it is likely that one of the men was the ring leader; there may be one or more men who have committed prior sexual assaults that the police have not linked them too. If the defendant can help the prosecution bolster its case against other men involved in the rape, or if he has knowledge of any unsolved sexual assaults any of the defendants may have been involved in, the defense attorney may be able to strike a deal with the prosecution for a reduced sentence or a reduction in charges in either the murder case, sexual assault case, or both.

Likewise, the criminal defense attorney can leverage the defendant’s testimony in the murder case to seek a reduced sentence in either the sexual assault case, the murder case, or both. If the co-defendant in the murder case was actually the one who pulled the trigger, and the defendant is willing to testify to that, thus allowing the prosecution to gain a conviction on heightened charges, the prosecution may be willing to strike a deal.

It is always the goal of any criminal defense attorney to achieve an outright dismissal of charges, or to obtain an acquittal in court, for his client. But when the evidence shows that the defendant is likely to be convicted, an experienced criminal defense attorney knows when to use any leverage available to help his client win a reduction in charges or a reduced sentence.

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A law signed by Illinois Governor Pat Quinn in August allows Illinois prison inmates who pled guilty to murder, rape or any other crime where DNA evidence is present, to petition the court to have that evidence tested in an attempt to have their conviction overturned.

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Illinois Post-Conviction DNA Testing Law

Prior to enactment of the amendment, Illinois inmates were only allowed to petition the court for post-conviction DNA or other forensic testing if they were found guilty at trial. Entering a guilty plea prior to a verdict being handed down made inmates ineligible for post-conviction DNA testing.

The amended law changes that. Under the law as amended, inmates who pled guilty prior to trial may petition the court if they can prove that:

  • Identity was the issue that led to their guilty plea; and
  • The evidence to be tested has remained in the chain of custody sufficient to establish that it has not been altered in anyway.

In order to file the petition, the DNA evidence must not have been available when the defendant entered his guilty plea, or new testing techniques must have been developed. In addition, the defendant must prove that the evidence

raise(s) a reasonable probability that the defendant would have been acquitted if the results. . .had been available prior to the defendant’s guilty plea. . .even though the results may not completely exonerate the defendant.

The change is one that is long overdue and provides necessary relief to those wrongfully convicted. According to the Bluhm Legal Clinic at Northwestern University School of Law, 165 Illinois inmates have been exonerated thanks to post-conviction testing of DNA and other forensic evidence. Many of these men and women were convicted based on eyewitness misidentification – according to the Innocence Project, nationwide 72% of inmates exonerated thanks to post-conviction DNA testing were convicted based on eyewitness testimony.

In addition to false convictions based on eyewitness misidentification, research has shown that many other innocent men and women plead guilty to crimes they did not commit. They do so for a variety of reasons, including:

  • police intimidation;
  • inhumane investigation tactics, such as withholding of food or sleep; or
  • fear of receiving a harsher sentence at the hands of an unfair or biased jury.

Others are the victims of unscrupulous tactics by the prosecution, such as withholding of evidence, or shoddy police investigative work, such as when the police fail to completely investigate a case because they feel they “got their man.”

Knowing that an untold number of innocent Illinois residents plead guilty to crimes they did not commit because of these and other reasons, Illinois State Senator Kwame Raoul sponsored the law specifically to address these inequities. Imprisonment for a crime they did not commit is bad enough – and not allowing them to have newly discovered DNA evidence tested to help exonerate them, based simply on the fact that they chose to plead guilty rather than face the uncertainty of trial, is piling injustice on top of injustice.  Continue reading

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A Chicago man was arrested last week in connection with the 2009 disappearance and murder of his girlfriend. The woman disappeared in April 2009 after last being seen with the defendant. Here whereabouts were unknown until recently, when a 911 call to the Dolton Police Department reported a body in Little Calumet River. An autopsy positively identified the victim and determined the cause of death to be strangulation.

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Defense of Cold Case Murder

Cold case murders are challenging for the prosecution – the passage of time causes both evidence and witness memories to fade. But these challenges are positives to the defense, as it makes it easier to cast reasonable doubt on the defendant’s guilt. Defense in these types of cases would involve attacking the credibility of both witness statements and any forensic evidence found in the case.

In cases such as this, where the victim was last seen with the defendant, the prosecution will attempt to persuade the jury that this fact implicates the defendant in her disappearance. But with no other evidence linking the defendant to the victim, this eyewitness testimony has little value and does not prove that the defendant was responsible for her death. It only proves that they were seen together. The defendant and the victim may have parted ways after they were last seen together, with the victim later being attacked by an unknown third-party.

Cause of death would also need to be examined by forensic experts hired by the defense. The coroner listed cause of death as strangulation. If the death was recent, we would attempt to determine if any marks left on the victim’s neck were consistent with the size and shape of the defendant’s hands. The passage of time makes this type of evidence unlikely, but it is still something that the defense would need to examine.

If the body was deteriorated to the point that no skin was left to examine, forensic experts may be able to determine the amount of force that was needed for the victim to be strangled, and from there estimate the approximate height and weight of the murderer. This evidence may also help to exonerate the defendant.

Forensic examination may also show that there is a possibility that damage to the neck occurred following death. Perhaps the victim was not a victim of murder. Instead, she may have committed suicide by jumping into the river, and her body then became tangled in some type of debris that could have caused injuries consistent with strangulation. This evidence would also exonerate the victim.

DNA evidence in this case would not be indicative of the defendant’s guilt. The two were dating, so one would expect to find his DNA on her. But if DNA of any unknown party was found on the victim, those persons would need to be identified in order to determine whether they could have been responsible for her death.

The defense would also look into whether there was anybody with cause to harm the victim. Did she – or perhaps the defendant – have a bitter ex-partner? Could she have been involved in drugs or some other illicit activity that led to her death? Could the defendant or the victim’s family have been involved in these activities, and she was killed by to send them a message? The backgrounds of the victim, the defendant and her close family and friends would all need to be considered to determine whether there are any other possible suspects.  Continue reading

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An Aurora man convicted of murder in 2009 will have a second chance at post-conviction relief after the Illinois Supreme Court ruled that a judge’s dismissal order was filed one day too late.

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Illinois Post-Conviction Relief and People v. Perez

Ivan Perez was convicted of the 2004 murder of Francisco Reyes, and the conviction was upheld all the way to the Illinois Supreme Court. Perez then filed a pro-se (without representation) petition seeking post-conviction relief.

Post-conviction relief can be granted if the court finds evidence of a “substantial denial” of the defendant’s Constitutional rights in the proceedings that resulted in the conviction. Once the petition is filed, the trial court has 90 days to enter an order either granting or dismissing the petition.

The court wrote an order dismissing Perez’ petition as frivolous on the 90th day. However, the clerk of court did not file-stamp the order until the 91st day. Perez appealed the dismissal, arguing that it was not done within the 90-day period.

The Illinois Supreme Court agreed with Perez, and ruled that an order is “entered” not on the day the judge signs it, but the date it is file-stamped by the court clerk. Because of this, the trial court’s dismissal was not timely, and Perez is entitled to proceed to the second stage of post-conviction relief proceedings.

Illinois Rules of Criminal Procedure

The press and public often talk about criminals getting off on, or a conviction being reversed because of, a technicality. But these ‘technicalities’ are extremely important to ensure that every defendant gets a fair trial. This is especially important in cases where conviction can result in lengthy prison terms (Perez was sentenced to 60 years) or even death.

If you think of court as a game, then these technicalities are the rules by which the game is played. And legally, they are called just that – the rules of criminal procedure. Rules such as the defendant’s right to remain silent, his right to a speedy trial, the right to cross-examine witnesses, and even the prosecution’s burden of proving guilt beyond a reasonable doubt, are all in place to ensure that the game is played fairly.

Even with these rules, the key players try to cheat. Police fabricate evidence and use intimidation and harassment to obtain false confessions. Prosecutors withhold evidence that sheds doubt on the defendant’s guilt. Witnesses lie. Imagine how much more flagrant these behaviors would be if the rules of criminal procedure were not in place, and the players could act as they pleased.

The majority of the time, these so-called “technicalities” do not result in the defendant being acquitted or the charges against him being dismissed. Instead, as in Perez, the result is the defendant getting a second chance at the trial being done right. But it also means that the prosecution gets a second chance to gain a conviction as well. Most of the time, the outcome in the second trial is the same as the first – the defendant is acquitted and sentenced.

And sometimes, the defendant is innocent. Since 1998 the Center on Wrongful Convictions at Northwestern University School of Law has helped to exonerate 40 innocent men and women. These people spent time in prison for crimes they did not commit, many due to wrongdoing by law enforcement and prosecutors who believed they were right and didn’t want “the rules” to get in the way. These innocent men and women cannot get back the time they lost with their family and friends, or the time they lost building their career. They were traumatized not just by the false conviction and years of damage to their reputation, but by the horror of being in prison.

It is these innocent people that the rules of criminal procedure are in place to protect. Imagine how many more would be falsely imprisoned if the rules were not in place.  Continue reading

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A Cook County inmate was charged with solicitation of murder for hire after allegedly trying to hire a hitman to murder a witness in his upcoming trial on charges of criminal damage to property, telephone harassment, and criminal trespass. The hitman was, in fact, an undercover officer.

Chicago Solicitation of Murder

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A person commits the crime of solicitation of murder if he “commands, encourages, or requests” another person to commit the offense of first degree murder. The defendant allegedly offered to pay the undercover officer $3,000 – $4,000 to have the witness killed.

A solicitation charge means that the underlying crime was never committed. Instead, the defendant was merely making the first step toward committing it. So determining whether the solicitation actually took place requires a thorough examination of the circumstances surrounding the commission of the alleged crime. Questions to be asked when crafting a defense to a charge of solicitation of murder include:

  • Whether the ‘hitman’ initiated the subject of solicitation with the defendant. If the hitman initiated the conversation, it would show that the defendant never considered the idea of murdering the witness until he was approached.
  • Whether conversations about the ‘hit’ were conducted in a public or private setting. If the conversations were in public, it makes it more likely that the defendant had no intention of following through, because there would be plenty of witnesses to his actions. Instead, he may have been engaging in talk to make himself look tough in jail, or wishful thinking.
  • Whether the defendant had the means or ability to pay the hitman. If he did not, it would tend to show that he once again was just fantasizing and did not intend for the hit to take place.
  • Whether the defendant ever said, “I want you to kill this witness.” Anything less than a specific statement of intent, such as, “It would really help my case if he died” or “God, I wish he were dead so he couldn’t testify!”, could be interpreted to be a case of wishful thinking.
  • Whether the defendant ever specifically requested that the witness be killed, or whether he expressed a general desire for him to “be taken care of.” This type of statement could be interpreted to mean that the defendant simply wanted someone to scare the witness out of testifying.

Chicago Entrapment Defense

In these types of cases, it may also be possible for the defendant to successfully argue that the police entrapped him. Entrapment is an affirmative defense, which means that the burden is on the defendant to prove that he was entrapped.

A defendant is not guilty of the charged offense if he can prove that his conduct was “incited or induced by a public officer or employee…for the purpose of obtaining evidence for the prosecution of that person.”

Proving entrapment requires more than simply providing evidence that the officer provided the defendant an opportunity to commit the crime. Courts assume that most citizens will be able to resist the temptation to break the law. Instead, entrapment requires that the officer engaged in such egregious behavior that a normal, law-abiding citizen would be enticed to commit the underlying crime.

For example, in a case such as this, it would not be enough for the defendant to prove that the officer approached him and brought up killing the witness. It may be enough, however, if the officer continually approached the defendant, despite repeated statements that he did not want the witness killed. This would show that the defendant was initially unwilling to break the law, but caved after police badgering.  Continue reading

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An unidentified person allegedly stole jewelry from inside a home during a Skokie estate sale last week. The case is interesting because it raises a number of different issues that the prosecution will need to overcome if an arrest is made and charges filed, as well as many possible defense strategies to explore.

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At the outset, the prosecution faces an uphill battle in obtaining a positive identification of the alleged thief. In reference to the estate sale, individuals were no doubt going in and out of the home. Any forensic evidence found at the scene – such as fingerprints, clothing fibers, or other DNA evidence – cannot provide a smoking gun. Here, the suspect was “invited” into the home for purposes of the sale. Absent any forensic evidence tying the suspect to the scene, an eyewitness identification is strongly in doubt. With the family talking to dozens of people while trying to make sales, without any distinguishing characteristics on the suspect’s part, it will be difficult for eyewitnesses to testify with certainty that the suspect was present in the home.

Even if caught – for example, if a local pawn shop reports purchasing the stolen jewelry – it is difficult to prove beyond a reasonable doubt that the suspect was the person who stole the jewelry. Without a positive identification or any forensic evidence tying him to the scene, there are any number of possible reasons the suspect could have come into possession of the jewelry. He could have purchased it from a different pawn shop, received it as a gift, or even found it discarded in a trash can or on the side of the road.

Skokie Defense of Theft

From the defense side, there are several issues to explore regarding the estate sale itself that could help cast doubt on the suspect’s guilt:

  • Was there a “free” table at the sale? If there was, it raises the possibility that another attendee, or even a family member, mistakenly laid the jewelry on that table, leading the suspect to believe it was free for the taking;
  • How many people were in charge of handling transactions? If there was more than one person handling sales, it is possible that the suspect actually paid for the item. Lack of communication between salespeople could cause the sale to not be properly recorded, thus leading to a misunderstanding that the item was stolen;
  • Do any of the people running the estate sale carry a criminal history of theft or similar crimes themselves? It is possible one of the salespeople simply pocketed the money from the sale and reported it as stolen to cover his tracks;
  • Is there animosity among the family members set to inherit the estate? Proceeds from the estate sale are deposited into the estate and used to pay estate bills before they are ultimately distributed to the heirs. If there was a disagreement amongst family members as to who should receive the allegedly stolen piece of jewelry, a decision of the majority of the heirs would win. A disgruntled family member who wanted the jewelry may have pocketed it and concocted the theft story to deflect blame.

Each of these scenarios would cast serious doubt on the defendant’s guilt, and are all avenues that David L. Freidberg would explore in working to get the charges dropped or the case dismissed.  Continue reading

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The recent indictment of Minnesota Viking’s running back Adrian Peterson on charges of child abuse, which stemmed from his admission that he disciplined his young son with a switch, is raising questions over just what constitutes corporal punishment, and when it crosses the line from discipline to child abuse.

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Under Illinois law, it is considered child abuse if a parent “inflicts excessive corporal punishment” upon his or her child. The use of the qualifier “excessive” makes clear that a Chicago parent is allowed to use corporal punishment when disciplining his or her child. But the law fails to define what pushes the corporal punishment, which may include spanking, hitting, pinching, slapping, or any other type of action with the intent of inflicting pain, from permissible to excessive.

The Illinois courts have dealt with the issue of corporal punishment at various times, consistently ruling that “parental rights of discipline are limited by a standard of reasonableness.” But they cite no examples of what constitutes unreasonableness.

How, then, is a parent to know whether discipline of a child will result in criminal charges? Unfortunately, they cannot, since there is no clear cut answer. What is reasonable today may be unreasonable tomorrow, depending on society’s changing views of corporal punishment. It can even vary depending on the type of punishment inflicted, the region, and the terms that are used to describe the punishment.

Cases such as these highlight the importance of obtaining experienced legal counsel. The sole basis of whether a parent’s physical discipline of his or her child qualifies as excessive under the law comes down to a reasonableness standard.

Defending against child abuse charges that stem from corporal punishment requires the ability to not only thoroughly examine all the circumstances to make a case for reasonableness, but also the ability to make a jury understand why the parent believed his or her method of discipline was reasonable. It also requires an examination of medical evidence regarding any alleged injuries, as well as photographs taken following the incident.

Whether the punishment is reasonable will rest in part on the severity of the discipline and whether it caused any injury. That requires a careful examination of any photographic evidence and testimony from qualified medical experts on the lasting impact, if any, from the discipline.

Photographs taken immediately after the incident may show red marks or other visible evidence of the physical discipline. But any type of physical contact can leave an imprint. Instead, the real question is whether that imprint remained, or whether it faded away shortly after the incident occurred. Physical marks that disappear shortly after the discipline would disprove excessive use of corporal punishment. If there are no follow-up photographs, medical testimony from David L. Freidberg’s team of medical experts could help jurors understand that an “injury” that looks bad in a poorly taken photograph actually faded away in an hour or two.

Eyewitness testimony is also important in disproving the excessive nature of the discipline. For example, if the child was running around playing like normal shortly after the punishment, as opposed to limping, that would go toward disproving that the punishment was excessive.  Continue reading

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

People v. Puccini

The defendant, Leonard Puccini, was charged with criminal sexual abuse after allegedly spanking the bare bottom of a 12-year-old boy for his own sexual gratification. At trial, the court admitted evidence in the form of witness testimony from two older bofile000704919536ys (now adults), both of whom alleged that Puccini sexually abused them in the 1990s (though he had not pulled their pants down and spanked them).

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

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

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

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

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

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

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

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A Chicago woman was arrested for her role in the alleged sexual assault of a Chicago man at gunpoint. The defendant and her friend picked up the man in their car as he walked down a Chicago street and proceeded to assault him.

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Sexual assault of a man can – and does – happen. Rape is traditionally an underreported crime, even more so for men than women. But the most recent statistics indicate that 38 percent of sexual assaults occur against men by women. Other studies estimate that 1 in 10 adult males will be the victim of a sexual assault.

The word “rape” typically elicits an image of a man forcing a woman to engage in unwanted sexual intercourse. But Illinois sexual assault laws are gender neutral. Criminal sexual assault requires penetration by any object. If the woman causes the male to penetrate her, whether forcibly or through threat of force (for example, at gunpoint, which was alleged in this case), or if she uses any object to penetrate his anus (including fingers), that constitutes penetration under the law.

Criminal sexual abuse requires an act of sexual conduct by force or threat of force (again, at gunpoint would qualify). “Sexual conduct” includes touching of sexual parts. In this case, forcing the alleged victim to fondle the woman’s breasts constitutes an act of sexual conduct that could result in a charge of sexual abuse.

Defense Against Sexual Assault

Defending a charge of sexual assault against a male is no different than defending a charge of sexual assault against a female. In the above case, as in the majority of sexual assault cases, there were no eyewitnesses other than the three parties involved. Therefore, the case comes down to “he said-she said.”

Some sexual assault claims are fabricated in an attempt to retaliate against the alleged offender for some perceived transgression, or else stem from a sense of regret that the sexual conduct occurred. This is especially true in cases that begin consensually. In such cases, a careful review of the circumstances leading up to the alleged crime is necessary to determine whether the crime was fabricated as an attempt to save face, or to retaliate against the alleged perpetrator.

In the case mentioned above, where the victim willingly entered the defendant’s vehicle, it is possible the man originally intended to purchase sex. An investigation into his criminal background could reveal prior arrests and/or charges of solicitation or attempted solicitation. This, in turn, could support a defense that, after the parties engaged in consensual sex, the defendant committed an attempted robbery, and the man retaliated by filing the sexual assault claim.  Continue reading

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Everybody knows a defendant can invoke a claim of self-defense to defend against charges of murder, manslaughter, or other violent crimes that result in injury or death to another person. What you may not know is that a claim of imperfect self-defense can reduce a murder charge from first-degree to second-degree.

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Under Illinois law, a homicide qualifies as second-degree murder if the defendant can show he acted under a sudden and intense passion due to provocation by the victim, or he actually, but unreasonably, believed he was acting in self-defense. This is know as imperfect self-defense. Imperfect self-defense is an affirmative defense, which means the defendant carries the burden of proof. If the defendant can successfully prove one of those factors existed at the commission of the crime, then the jury may find the defendant guilty of second-degree murder, rather than first-degree murder.

A defendant cannot be charged with attempted second-degree murder; he can only be found guilty of second-degree murder by proving the existence of one of the two mitigating factors. A charge of second-degree murder includes all of the elements of first degree murder: the defendant must have intentionally planned to kill the victim, or he knew there was a strong probability his actions would result in causing the victim great bodily harm or death. It is then up to the defendant to convince the jury he was either in a blind rage due to the victim’s actions (also known as the “heat of passion” defense), or he believed, however unreasonably, that his life was in jeopardy.

Here is one example of how imperfect self-defense would apply. An individual suffering from a mental illness that causes paranoia or delusions may plead imperfect self-defense if he actually, though unreasonably, believed the victim was about to cause him great bodily harm or death. In that case, the defendant believed his use of force against the victim was justified, even if, from an objective viewpoint, it was not.

Imperfect self-defense may also arise in cases of murder that occurred in the heat of passion. For example, a wife who walks in on her husband and his lover flies into a rage, grabs a gun in her nightstand drawer, and shoots them both dead. The wife knew her actions were likely to cause the death of her husband and his lover (she may even have intended it), but she was in such a blind rage due to his betrayal that she could not control herself. In this case, the defense could argue the charge be reduced to second-degree murder.  Continue reading

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