Chicago defense attorney

June 14, 2017

Slander and Defamation Laws in Chicago: Tightrope Between Free Speech and Abuse

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

It is interesting to note that many people who say hateful things immediately run to the “freedom of speech” mantra when they are called out on it. This is the kind of dilemma that the law in Chicago has to contend with. In the worst-case scenarios, a successful case of defamation is brought to bear and there are significant consequences for the perpetrators. The internet has allowed for anonymous speech to prosper, and somehow people have forgotten their basic responsibility for common decency. On a daily basis, individuals and institutions are slandered and defamed on the internet in the knowledge that the fight back will be difficult or nearly impossible. The statute of limitations may protect those who count on the possibility that the victim will take an inordinately long to complain to the authorities.

Chicago Decides to Weigh in

For a long time, there was a misconception that you can only defame the rich and famous. Over time, the citizens of Chicago have recognized the fact that virtually everybody but the dead can be defamed and slandered. Moreover, the results of such actions can be quite serious, including the loss of employment and valued relationships. The court will normally deal with the plaintiff, defendant, and any other third parties. It is much harder to prove that you are affected by slander or defamation if you do not fall into the two principle parties in the cause of action. Indeed, there is a substantial body of case law to show that the courts are particularly careful to exclude unfounded causes that are based on some unproven pain and suffering.

June 19, 2016

You Can Run, but You Can’t Hide From Traffic Cameras

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

The moral and legal implications of traffic cameras are still hotly debated, but it seems Illinois residents may as well get accustomed to these robotic enforcement mechanisms. Illinois is one of only twelve states that permits the use of both speed and red light traffic cameras for ticketing purposes. Given the questionable nature of this practice, there are a multitude of Illinois regulations and policies regarding the use of traffic cameras currently in place. It may be necessary to seek legal advice in order to decipher the jargon surrounding the use of traffic cameras if you receive a ticket in the mail from the Illinois Department of Transportation.

How Traffic Cameras are Used

Traffic cameras are present on many major Illinois roads and highways including right here in Joliet and the greater Chicago area. The most common traffic cameras currently used are to enforce red lights. These cameras work by taking a snapshot of each vehicle’s license plate who is detected driving while the traffic light is red. Though in place for public safety and traffic law enforcement, these cameras have brought criticism from citizens around the state, as to both their efficiency in targeting actual violators and their infringement on the individual rights of Illinois’ commuters.

August 5, 2015

Four Arrests in Oak Lawn Robbery

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

According to a report from the Oak Lawn Patch, four men were arrested in connection to an early morning robbery on July 10. At around 1:12 a.m. on July 10, police responded to a call that three people were robbed at gunpoint by two men. Both alleged gunmen reportedly fled in a Ford SUV. Police canvassed the area and found an SUV that matched the description. After following the vehicle briefly, it was stopped, and the police recovered the stolen property and a weapon from the SUV. The victims identified the men as the robbers.

Three of the men were charged with aggravated armed robbery. The fourth man was charged with one misdemeanor count of mob action. Bail was set at $100,000 for two of the men, $50,000 for the third, and $120 for the individual charged with mob action.

Robbery and Accomplice Liability in Illinois

In general, robbery in Illinois involves taking the property of another by using force or by threatening to use imminent force. If, during the robbery, the defendant either carried a weapon, discharged a firearm, or discharged a firearm within proximity to the crime that caused great bodily harm or death to another person, it is considered armed robbery. Additionally, Illinois treats the robbery of a motor vehicle differently and considers it vehicular hijacking.

A robbery charge can become an aggravated robbery charge if the defendant takes the property of another by force or threat of imminent force and either verbally indicates that he or she is armed with a weapon, or the defendant drugs the victim without consent using a controlled substance.

Here, the two alleged gunmen were charged with aggravated robbery, indicating that there may have been a verbal exchange where they stated they were armed with a weapon since there was no evidence of drugging. A third person was also charged with aggravated robbery, presumably because he was an accomplice as the driver of the vehicle.

These forms of robbery are all considered felonies in Illinois. Plain robbery is a Class 2 felony, which carries a sentence of three to seven years in prison and a maximum fine of $25,000, with a mandatory parole period upon release of two years. If the robbery occurred in a school, day care center, child care facility, or place of worship, it is a Class 1 felony with a possible sentence of four to fifteen years in prison and a maximum fine of $25,000. Similarly, it has a mandatory parole period upon release of two years.

Continue reading

July 31, 2015

Police Pursuit and Shootout on I-55 Leads to Two Arrests

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

A Herald report indicated that Luke Bertolini, a Manhattan, IL resident, is facing several charges in relation to a shootout near Channahon, including aggravated unlawful use of a weapon, reckless discharge, and criminal damage to property. According to the report, Bertolini was in a restaurant in Wilmington when he ran out and started shooting a gun. He apparently asked the bartender, “Can you fight?,” then went outside and fired two or three shots in the marina. After the shots were reported, county and state police arrived to assist. Bertolini had left the restaurant before they arrived in a yellow vehicle driven by a blond female. Witnesses in the restaurant seemed to indicate the Bertolini seemed to be under the influence of drugs at the time.

The police later located Bertolini’s vehicle driving north on I-55, and the police officer who spotted the vehicle activated his emergency lights to stop it. After stopping, Bertolini exited from the passenger side of the vehicle with two handguns. He then exchanged gunfire with the police, but was apprehended without anyone being struck. Police also arrested the female driver of the vehicle.

Firearm Crimes in Illinois

In Illinois, a person is guilty of aggravated unlawful use of a weapon when he or she knowingly carries or has a vehicle or concealed somewhere in his body any pistol, revolver, stun gun or taser or other firearm while present on any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town. Additionally, the firearm must be uncased, loaded and immediately accessible at the time of the offense or the firearm possessed uncased, unloaded and the ammunition for the weapon was immediately accessible.

A related charge is reckless discharge of a firearm. A person is guilty of this offense if he or she discharges a firearm in a reckless manner which endangers the bodily safety of another. Additionally, if this crime was committed by a passenger of a moving motor vehicle with the knowledge and consent of the driver, the driver is also accountable for the conduct and may be similarly charged. To determine whether the discharge was reckless, the prosecution would have to prove the the suspect consciously disregarded a substantial risk that discharging his or her weapon would pose a danger to the safety of another in a way that does not reflect what a reasonable person would do in a similar situation.

Reckless discharge can be elevated into an aggravated crime if the suspect fired the weapon in the direction of another person or group of people, into a vehicle or structure from outside, or if the suspect used a silencer.

Penalties for Conviction of a Weapons Charge

Aggravated unlawful use of a weapon is considered a Class 4 felony that can result in a sentence of one to three years in prison and a fine of up to $25,000. Courts are permitted to sentence defendants to probation. A second offense is considered a Class 2 felony with a mandatory prison sentence from 3 to 7 years, which is non-probationable.

WIth regard to aggravated reckless discharge of a firearm, this is considered a Class 1 felony. It is punishable with a 4 to 15 year term in prison, and a maximum fine of up to $25,000.

July 29, 2015

Fatal Hit-and-Run in Chicago Results in Reckless Homicide Charge

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

According to a report from the Tribune, a woman from Oak Lawn was charged with reckless homicide, along with several other crimes, after a fatal hit-and-run accident on Oak Park Avenue. The accident occurred shortly after midnight when the suspect, Jacqueline Cummings, was driving her 2005 Jeep Grand Cherokee and struck Maria Domantay, sideswiped a police car, and fled. The Tinley Park police were at the scene handling a separate traffic accident when the hit-and-run occurred. The victim was pronounced dead in the emergency room at Silver Cross Hospital, and according to preliminary autopsy results, Domantay died due to multiple injuries from being struck by a vehicle.

Cummings was also charged with failure to report an accident involving death, failure to yield the right of way to an emergency vehicle, improper lane use, failure to reduce speed to avoid an accident, failure to signal, and use of a wireless phone in an emergency zone.

Reckless Homicide in Illinois

According to Illinois statutes, a person commits reckless homicide if he or she unintentionally kills an individual while driving a motor vehicle recklessly. Even though the individual did not mean to kill anyone, his or her reckless manner of driving caused someone’s death.

The most important question in reckless homicide cases is whether the suspect’s conduct can be considered reckless. The law defines recklessness as someone’s conscious disregard of a substantial and unjustifiable risk that his or her actions are likely to cause death or great bodily harm to another, and that disregard is grossly different from the standard of care that a reasonable person would exercise in the situation. To be reckless is to take an unnecessary risk that most people would consider likely to harm others.

Penalties for Reckless Homicide

Reckless homicide is a Class 3 felony in Illinois, with a possible prison sentence of two to five years upon conviction. However, the charge can be enhanced with a more serious penalty in other circumstances. For example, if a defendant committed reckless homicide on a public thoroughfare where children were going to and from school with a school crossing guard present, the offense is enhanced to a Class 2 felony with a sentencing range of 3 to 14 years in prison. This is also the case if the reckless homicide occurs in a work zone or the defendant failed to comply with a lawful traffic control order from a police officer. The same is true if the victim is a family or household member of the defendant. There are other enhancing circumstances found in Illinois statute that may impose more serious penalties for a reckless homicide conviction.

June 30, 2015

Murder Conviction Reinstated by Illinois Supreme Court

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

The Illinois Supreme Court reversed the decision of a lower court of appeals and reinstated the first-degree murder conviction and 70-year sentence of Mark Downs, who shot and killed a 6-year-old boy, Nico Contreras, in his sleep. The convicted murderer fired a gun into a bedroom window at the Aurora home of the victim’s grandparents on July 10, 1996. During the trial. the court instructed the jury that it was their duty to define reasonable doubt in the case, which an appeals court ruled was incorrect and caused the conviction and sentence to be reversed. However, the Illinois Supreme Court said that the instruction given by the judge was correct and that the jury convicted Downs with a proper understanding of reasonable doubt.

No Jury Instruction for Reasonable Doubt in Illinois

In this case, the jury sent a note to the court asking whether its definition of reasonable doubt was 80 percent, 70 percent, or 60 percent. The U.S. Supreme Court has said that the U.S. Constitution does not require or prohibit a definition of reasonable doubt, and in Illinois, trial courts (and attorneys for the prosecution or the defense) are not allowed to provide jury instructions that define reasonable doubt. This is because “reasonable doubt” is difficult to define, and trial judges usually end up substituting other phrases that are equally difficult to understand. Therefore, the Illinois Supreme Court has ruled in the past that “reasonable doubt’ should speak for itself without any attempt at a definition from the trial court.

When Downs appealed his conviction and sentence, he argued that the trial court’s instruction to the jury that it was their duty to define reasonable doubt in this case was erroneous because it violated the prohibition on instructions about reasonable doubt. According to the appellate court, the only acceptable answer would have been to tell the jury that reasonable doubt is not defined as a percentage, and to just inform them that reasonable doubt is the highest standard of proof in law, and that they had received all of the instructions needed to answer its question. However, the Illinois Supreme Court disagreed, saying that in decisions going back a hundred years, it has consistently held that the term “reasonable doubt” doesn’t need to be defined because the words themselves are enough to convey its meaning.

First-degree murder

The shooting occurred during a period in the 1990s when Aurora experienced a long period of street gang violence. It was at this time that Downs and an accomplice, Elias Diaz, reportedly targeted Nico’s uncle for belonging to a rival gang. Elias Diaz allegedly planned the shooting and drove the getaway card. He was convicted and received a 60-year term.

Here, Elias Diaz did not actually carry out the killing. However, there was testimony during the trial that he drove two men to Nico’s house and ordered Downs to shoot a man whom he believed was a rival gang member. Diaz thought that the rival gang member at one time occupied the bedroom in which Nico slept and ordered the shooting to occur there.

In Illinois, first degree murder is defined as performing an act that causes someone to die with the intent to kill that individual or someone else, and with the knowledge that the act will probably cause death or great bodily harm to that individual or someone else. For first-degree murder, it is not necessary that you are the one to actually carry out the act of killing. Ordering someone to commit the act is enough to satisfy the definition.

Additionally, a person will still be guilty of first-degree murder even if the person who dies was not the intended target of the intent to kill. Here, the actual target was Nico’s uncle, and not Nico. However, the Illinois statute explicitly allows the intent to be transferred, and that even if someone else was killed other than the intended victim, it would still be considered first-degree murder.

June 26, 2015

Firearms, Clothing Provide Possible Link to Chicago Home Invasion

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

Police investigating a Chicago home invasion have recovered firearms and clothing that may further link the suspects, who are already in custody, to the crime. But even if police can prove that the items belonged to the suspects, that fact alone doesn’t prove that the suspects committed the crime.

Eyewitness Testimony

The suspects were arrested based on eyewitness descriptions of the clothing they were wearing during the crime. Police found some articles of clothing and firearms discarded in fields near the location of the home invasion.

But eyewitness identifications are often faulty. According to the Innocence Project, in cases where innocence was proven through subsequent DNA testing, 70% of faulty convictions were the direct result of eyewitness misidentification.

Here, the eyewitness descriptions were based almost entirely on the victim’s clothing. Using clothing as the primary means of identification is inherently unreliable. If the clothing was not distinctive, or if the suspects were wearing a style of clothing popular with young people, an arrest based solely on the clothing description creates a possibility that the police arrested the wrong person. Add to that the inherent untrustworthiness of eyewitness identification generally – eyewitness testimony can be influence by police conduct, statements of other witnesses, news stories on the crime or the passage of time – and it makes the arrests in this case open to casting reasonable doubt that the defendants were the ones who committed the crime.

Proof of Ownership vs. Proof of Use

Proving that the suspects owned the clothing and firearms is not, in and of itself, proof that they committed the crimes.

The police can prove ownership of the guns by tracing serial numbers or matching fingerprints found on the weapons to the suspect’s fingerprints. Proving that the clothing belongs to the suspects may be a bit harder, but forensic experts can likely find hair or skin samples that would link the clothing to the suspects. It may also be easy to find images on Facebook or other social media sites that show the suspects wearing the clothing.

To prove that the suspects committed the crime, the prosecution must obtain forensic evidence that shows the suspects used the items during the commission of the crime. A jury would expect that the owner’s fingerprints would be on the weapon, so that alone does not prove that the suspect was the one who fired the weapon during the home invasion. The weapon could have been stolen, or the suspect could have lent it to a friend or family member who then used it during the crime. The prosecution must have other proof, such as gunpowder residue found on the suspect, to prove that he fired the weapon.

The same is true of the clothing. Even if the prosecution can prove that the suspects owned the specific items of clothing police uncovered, they must prove that they were the ones who actually wore it during the crime, rather than it having been stolen or borrowed by somebody else.

So the defense strategy in this specific case would rely heavily on disputing the prosecution’s forensic evidence linking the items recovered to the suspect’s use and possession during the commission of the crime. An independent forensic expert would examine all of the prosecution’s evidence to determine if the firearms and clothing could have been used by anybody other than the suspects.

June 3, 2015

Battery Charge for Sugar Attack on Maroon 5 Front man Adam Levine

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

You’ve no doubt heard about Maroon 5 front man and The Voice star Adam Levine being sugar bombed recently, most likely in reference to the band’s current hit song Sugar. But what the assailant no doubt thought would be a hilarious prank turned out to be not so funny when he was arrested and charged with battery.

Chicago Battery Charge Requires Only Slight Contact

A battery charge isn’t contingent upon the amount of physical harm caused to the victim. It doesn’t matter that it was meant as a prank, and that after the fact, when it was clear Levine suffered no real harm, people laughed. The only thing that matters is that there was contact between the defendant and the victim, and the nature of that contact. In order to be charged with battery the defendant must have:

Acted knowingly;
Without legal justification, and;
Caused bodily harm or;
Made physical contact of an insulting or provoking nature.

So how does this apply to the sugar bombing? Let’s examine each element separately.

The ‘knowingly’ requirement

Acting “knowingly” means that the defendant’s action could not have been accidental. The defendant must have either done it on purpose, or acted in a manner that he was reasonably certain would have resulted in Levine getting doused with sugar. If he had been walking down the street with a bag of sugar and dumped it only after tripping, that would not rise to the level of “knowing” required to be convicted of battery.

‘Without legal justification’

This element means that the defendant could not have acted in self-defense, or because he had other legal justification to make physical contact with the victim. It is this “without legal justification” element that protects law enforcement from being charged with battery for routine arrests. The defendant in this case would have to prove that Levine attacked him, and that the defendant threw the sugar to protect himself from the attack.

Caused bodily harm

One way to complete a battery is for the defendant to have caused bodily harm to the victim. The harm doesn’t need to be severe or require medical attention in order to qualify. A scratch or bruise is the same as a broken bone in terms of meeting the harm requirement. If the sugar was thrown with enough force to cause even a reddening, or if it got into Levine’s eyes and caused a stinging, that slightest injury would be sufficient to constitute a battery.

Physical contact of an insulting or provoking nature

The second way to complete a battery is for the contact to be insulting or provoking. A shove may not cause bodily harm, but it is an act that provokes a response. If a shove is accompanied by trash talk, that could constitute contact of an insulting nature.

Physical contact doesn’t need to be to the victim’s body; it can be to an object the victim is holding. Kicking a cane, or pushing a ball out of a person’s hands while making threatening statements could be considered contact of an insulting or provoking nature. The physical contact also does not need to be from the victim’s hand or other body part. The defendant only needs to have been in control of the item that made contact with the victim.

The sugar bombing could meet either of these requirements, depending on the circumstances. If the defendant yelled any derogatory, inflammatory or insulting words to Levine during the attack, that would make it both insulting and provoking and would qualify as a battery. Likewise, throwing anything at a person would be considered provoking, as it could give rise to a retaliatory response by the victim.

May 29, 2015

New Program Hopes to Keep Mentally Ill Defendants Out of Jail

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

On the heels of the Chicago “Rocket Docket” program comes a new initiative from the Cook County Sheriff’s Office aimed at identifying – and getting treatment for – Cook County misdemeanor arrestees with mental health issues.

Mental Health Crisis in Cook County Jails

Cook County Sheriff Thomas J. Dart has been a proactive force in efforts to keep non-violent, mentally ill Cook County offenders out of jail, focusing his efforts instead on getting them much needed mental health treatment. The Cook County Sheriff’s website estimates that approximately 30% have some type of mental illness that is a major contributing factor to their crime. The greatest concentration of crime committed by those with a mental illness is in the south suburbs, which saw a huge increase when the Tinley Park Mental Health Center closed in 2012, which left many patients with no options for treatment or housing, leading them to petty crimes as a means of survival.

Yet for these non-violent offenders, spending time in jail while they await trial is not the answer – without services or treatment, once released these inmates will fall right back to a life of crime. Thus a vicious cycle of arrest, incarceration, and discharge continues, all at a huge cost to taxpayers.

The pilot program is housed at the Markham Courthouse and is run in partnership with Adler Community Health Services. Pre-bond detainees are screened to determine eligibility for the program based on their charge (only misdemeanor charges are considered), background and mental health needs. Appropriate detainees are referred to the judge, who has discretion to release the arrestee on his own recognizance, with the condition that they enroll in the Sheriff’s Office’s mental health clinic for regular treatment.

Opened in 2014, Sheriff Dart’s Mental Health Clinic provides therapeutic services, job training and discharge planning for Cook County Jail inmates with mental illness. The hope is that with proper treatment and medication, and skills that can help them secure a job, these arrestees will be able to become productive members of society and break the cycle of incarceration, while at the same time saving taxpayers the high cost of incarceration and leaving the jails open for violent offenders.

This program is promising and, if successful, will hopefully be expanded to other courthouses throughout Cook County. Many Chicago residents suffering from mental illness lack the mental capacity to stand trial, as they do not understand the nature of their actions. But there are many that fall between the cracks – they understand the nature of the proceedings, and that their actions are wrong, but their mental illness makes them unable to control themselves, or to make choices that could steer them away from theft, trespass and the other petty misdemeanor crimes they are often arrested for committing. But with the right combination of treatment, medication, job training and life planning, they can get their mental illness under control before they progress to committing violent crimes that will land them in prison and have no chance of treatment.

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.