Chicago defense attorney

May 22, 2015

Cook County Woman Charged with Battery after Attacking Boyfriend in Public Restroom

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

A Cook County woman was charged with domestic battery for allegedly slamming her boyfriend’s head into a public restroom following his refusal to have sex with her. She was also charged with illegal possession of prescription drugs after police saw prescription pills in her purse that had the name of another woman on the label.

Cook County Domestic Battery Charge

A charge of domestic battery is no different than a regular battery charge, other than the fact that domestic battery charges can only be brought against a defendant if the battery was committed against a family or household member or significant other.

Battery and domestic battery are Class A misdemeanors, so attempting to argue that the victim does not meet the criteria of family or household member would not be a good defense strategy, because the potential punishment if convicted is the same for either crime. The argument that the victim was not a family or household member would be relevant if this was a second charge of domestic battery; in those instances, conviction is a Class 4 felony. So trying to argue the charge down to “regular” battery based on a failure to meet the relationship criteria would be justified.

In this particular case the only viable defenses, if the facts supported them, would be self-defense or accidental. Based on the description of the incident – the alleged victim was using the urinal at the time the defendant approached him for sex – it seems unlikely the facts would support a self-defense claim.

That leaves the defense that it was unintentional. The crime of battery is committed only if action causing harm was committed “knowingly” – that is, intentionally. The woman was in a state of undress when her boyfriend rebuffed her advances; it is possible that she tripped putting her clothes back on. Or, if she was taking medication, it could have impaired her balance, causing her to fall against him. If either of these are true, it would have been her falling against him that caused him to hit his head against the wall, rather than an intentional action on her part.

Cook County Possession of Prescription Drugs Charges

Illegal possession of a prescription drugs is a felony, and conviction has serious consequences. The first line of defense is to prove that you had a prescription for the drug. The second is to verify that the drug found in your possession is in fact listed as a controlled substance under the Illinois Controlled Substances Act.

If you do not have a prescription, you must prove that the drugs were not truly in your possession. In this case, the police found the drugs when the woman pulled them out of her purse and placed them on the table. The pill container had another woman’s name on it. That alone is not enough to prove illegal possession. Perhaps the defendant had just picked up the prescription for a friend or family member and was planning to deliver it the next day.

Or perhaps the name on the bottle is the woman’s legal name, and she uses another for everyday life. Or maybe the opposite is true – not wanting her prescription history to get out in the event the pharmacy computers are hacked, perhaps her doctor writes the prescription under a different name. It may also be possible that the drugs inside pill bottle were prescribed to the defendant, but she was using an old pill bottle that belonged to somebody else to hold them. The mere fact that the defendant had possession of a pill bottle that did not have her name on it is not enough, on its own, to prove that she was in illegal possession of a controlled substance.

May 12, 2015

FBI Admits Errors in Analysis of DNA Evidence

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

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

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

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

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

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

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

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

May 8, 2015

Decriminalization of Marijuana One Step Closer in Illinois

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

The Illinois House of Representatives passed a bill that would decriminalize possession of marijuana. Passage comes on the heels of a recent announcement made by Cook County state’s attorney Anita Alvarez that her office will no longer prosecute minor pot cases. The bill must pass the Senate before being transmitted to the governor’s desk for signature.

Low-level Possession of Marijuana Crimes in Illinois

If passed by the Senate and ultimately signed in to law by Governor Rauner, the law would not only decriminalize possession of low-levels of marijuana, but would create consistency between state law and public ordinances.

Current Illinois law classifies possession of between 2.5 and 30 grams of marijuana as a Class A, B or C misdemeanor, depending on the amount the defendant possessed at the time of arrest. A second or higher arrest for possession being is upgraded to a Class 4 felony. Penalties for conviction range from 30 up to one year in jail and fines ranging from $1,500 to $2,500.

Under the proposed law, Chicago residents could legally possess up to 25 grams of marijuana, and the penalty for being caught in possession would be no worse than a traffic ticket – no jail time, and a maximum $125 fine.

The law is addressed at growing recognition that prosecution for low-level misdemeanor cases is a waste of the court’s already stretched and limited resources and serves no real purpose, as the majority of offenders are non-violent, recreational users who pose no threat to the public. But it will also make penalties for misdemeanor possession crimes uniform across the state.

Under the present system, a person in any city or county across the state can be arrested for possession of 5 grams of marijuana. But whether or not that person is prosecuted depends on where the arrest was made.

If the arrest is made in Chicago, as of now there will be no prosecution for misdemeanor possession. According to the Cook County state’s attorney’s office, all such cases will be dismissed. Those arrested and charged with a Class 4 felony in Cook County will be diverted to an alternative program that seeks to rehabilitate chronic drug abusers, rather than throw them in prison where they will receive little to no treatment for their addiction.

The same person arrested in another city, however, for possession of 5 grams of marijuana could be placed in jail for up to 30 days and face a fine of $1,500. And if he is a repeat offender, whereas the city of Chicago would offer him treatment in an effort to break the cycle of addiction, another city could place him in jail for up to a year, only to have him be released and fall right back into the cycle.

In order to be effective laws must be applied uniformly. And basic fairness requires that a person should not be subject to criminal punishment for engaging in behavior in one city that is perfectly legal in the next. Continue reading

April 24, 2015

Anything You Say – or Don’t Say – Can and Will Be Used Against You in Court

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

The 5th Amendment right against self-incrimination is one of the most well-known rights in criminal defense, right up there with the right against unlawful search and seizure and the requirement that police read suspects the Miranda warnings. Yet a criminal suspect doesn’t always have “the right to remain silent”, and not have that silence used against him in court.

Salinas v. Texas Requires Affirmative Claim of Right to Remain Silent

In Salinas v. Texas, the defendant was questioned in regard to a murder investigation. The defendant was not under police custody, thus he had not yet been read his Miranda warnings, which inform criminal suspects that they have the right to remain silent, and that any statements given can and will be used against them in court. The defendant voluntarily answered the officer’s questions in regard to the murder, until the officer asked whether a ballistics test would confirm that shells found at the crime scene matched the defendant’s shotgun. At this line of questioning the defendant simply stopped talking.

At trial the prosecution introduced the defendant’s silence as proof of guilt. Because the defendant had willingly spoken with police, the prosecution argued that the defendant’s refusal to answer that specific question was indicative of guilt. The defendant argued that using his silence as evidence of guilt violated his 5th Amendment right against self-incrimination. The trial court disagreed, and defendant was convicted. His appeals took the case to the United States Supreme Court.

The court affirmed the defendant’s conviction, ruling that the right to remain silent is an affirmative right. This means that in order for the right to apply – and for evidence of silence to not be used against the suspect in court – the defendant must say, “I am invoking my right to remain silent”, or similar words to that effect. Refusing to answer police questions is insufficient to invoke the right.

There are only two instances where the defendant’s failure to speak cannot be used against him. The first is where he is in police custody and has not been read his Miranda rights. The court said that such a circumstance is so coercive that the defendant need not affirmatively invoke the privilege because his statements cannot be considered voluntary.

The second is during trial, where the defendant has an “absolute right” not to take the stand, for whatever reason. The jury is not permitted to take the defendant’s failure to testify on his own behalf as evidence of guilt, nor can the prosecution suggest that the defendant’s failure to take the stand is proof of guilt.

The Supreme Court refused to accept the defendant’s argument that invocation of the 5th amendment right to remain silent should be assumed when a suspect refuses to answer police questions that would imply guilt. The court stated that while this may be the most probable reason for the person’s silence, it is not necessarily the only reason – his reason for not answering could be to protect somebody, to come up with a lie, or any other number of reasons. The purpose of the right to remain silent, the court stated, is not to protect all of the defendant’s statements, but only those that would tend to incriminate himself. Is it the defendant’s burden, the court stated, to invoke the privilege, and not for the prosecution to figure out the reason for the silence.

April 22, 2015

New Crime Bill Would Extend Statute of Limitations for Some Chicago Crimes

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

Legislation introduced by Illinois State Senator Michael Hastings (D-Tinley Park) would extend the statute of limitations for armed robbery, home invasion, kidnapping or aggravated kidnapping if these crimes were committed during the course of a sex crime.

Illinois Statute of Limitations

Statutes of limitation are imposed to encourage people to come forward and report crimes close to the time they allegedly occurred. Waiting years to report a crime has serious ramifications, as illustrated by the recent spate of accusations against comedian and television star Bill Cosby – any physical evidence that may have existed at the time to corroborate (or not corroborate, depending on the circumstances) is long gone, turning the case into nothing more than spew of he said/she said accusations that do nothing to promote justice, and everything to destroy the reputation of the accused and the accuser (depending on whose side of the story is believed).

Statutes of limitation place time limits on how long the prosecution to file charges. The statute of limitations begins to run on the date the crime was allegedly committed. If the prosecutor fails to file charges against the accused before the statute of limitation expires, charges can never be brought, even if the very next day the accused admits to having committed the crime.

Statutes of limitation vary depending on the crime. In Illinois, the statute of limitation for sexual assault is 10 years, provided the victim reported the crime to the police within three years of when it happened. The statute of limitations for armed robbery, home invasion, aggravated kidnapping and kidnapping are three years.

But if passed the new law, which the Senate unanimously approved last week, would extend the statute of limitations for these crimes to 10 years, if they were committed during the course of a criminal sexual assault, aggravated criminal sexual assault or aggravated criminal sexual abuse. The goal is for consistency in the prosecution of sexual assault crimes. Under current law, the possibility exists for a person to break into a home, sexually assault the victim, and later be arrested and convicted of sexual assault but not home invasion, based solely on when the attacker was arrested.

But the legislation raises questions about whether, in order to have the extended statute of limitations apply, the victim must report the armed robbery, home invasion or kidnapping within three years, or whether she must only report the sexual assault, and can tack on the additional crime later. Under the first scenario, she would report to the police within three years of the alleged rape that she was attacked during a home invasion, thus granting the 10 year statute of limitations for both crimes.

Under the latter scenario, the victim reports the rape within three years. Four years after the rape, she reports to police that the rape occurred during the course of a kidnapping which she did not mention earlier, because she was taken from a known drug dealer’s house, and she did not want it to get back to her family or employer that she had a drug problem. Will the fact that she reported the rape within three years allow the additional charge of kidnapping to be brought against her accuser, even though the three year statute of limitations that normally applies to kidnapping has expired, or must she have reported them both within the three year statute of limitation period? This is hopefully a question that the state House will take up during their deliberations as to whether or not to pass the law.

April 17, 2015

Plea Bargains in Chicago Criminal Cases

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

A criminal defense attorney’s goal is to obtain the best possible outcome for his client. Ideally, this would be a dismissal of all charges prior to trial or, barring that, an acquittal. But in some cases, the best course of action is to enter into a plea agreement.

Reasons for Accepting Chicago Plea Bargain

There are many reasons to accept a plea agreement offered by a prosecutor. And it is not only those defendants who are guilty of committing the charged crime that accept a plea; defendants who are completely innocent often accept plea deals as well. Here are some of the common reasons a defendant may accept a plea agreement.

Promise of reduced sentence. Prosecutors often offer a reduced sentence if the defendant will plead guilty. Most crimes have a range of sentencing possibilities, so a prosecution may offer the lower end of that range in exchange for a guilty plea, as opposed to seeking the maximum sentence if the defendant is convicted at trial. In cases where the penalty is lifetime imprisonment, such as a murder charge, the sentence reduction may be to allow for the possibility of parole.

Conviction of a lesser charge. Sometimes a plea agreement includes reducing the charges that were filed – from aggravated kidnapping to kidnapping, for example. Pleading guilty to a lesser charge results in reduced jail time and may decrease potentially negative consequences, for example the requirement to register as a sex offender following conviction for certain sex crimes.

Guaranteed outcome versus uncertainty of trial. Although it is possible for a judge not to agree to the prosecutor’s recommendation regarding sentencing in a plea agreement, the majority of the time the sentence promised in exchange for a plea is what is handed down. Accepting a plea agreement gives you a guaranteed outcome, as to both the crime you will be convicted of and the sentence. Going to trial offers no guarantees, either to whether the jury will convict or acquit or to the sentence the judge will order upon conviction.

Want the whole thing to go away. Contrary to what is portrayed on popular television crime procedurals, where the time between the commission of the crime and the jury’s verdict is a matter of weeks, most criminal cases are not over that quickly. Trials can be delayed or postponed due to witness unavailability, attorney and court schedules, or the need to acquire more evidence. Sometimes it can take months from the time the defendant is first arrested to when the prosecution files charges. Rather than live under the specter or a criminal trial looming at some point in the future, many defendants will agree to enter a plea just to put an end to it, serve their sentence and get on with their lives.

Consequences of Pleading Guilty

Even though accepting a plea agreement is sometimes the best option, it doesn’t meant that it is without consequences. Whenever you accept the prosecution’s plea agreement, you must carefully weigh the pros and cons. A plea agreement requires that you plead guilty, which can have long-lasting consequences. It may impact where you live, your employment, perhaps even future custody or rights to your children. A decision to accept or not accept a plea agreement should not be made until you and your defense attorney have thoroughly discussed your case.

April 15, 2015

Mistrials in Chicago Criminal Cases

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

Criminal defense trials, whether fictionalized accounts on television or in the movies or the real life versions, usually end in one of three ways – a guilty verdict, a non-guilty verdict or a mistrial. The first two are self-explanatory. But what exactly constitutes a mistrial?

Reasons for Chicago Mistrials

A mistrial results in the trial ending without a verdict, and either the prosecutor or defense attorney can make a motion for mistrial. In some cases, the judge will enter the order for mistrial without a request from either side. If the judge grants the motion for mistrial, the trial is over. If he denies it, the trial continues, and the defendant can appeal the decision if the jury enters a guilty verdict. There are a number of reasons why a mistrial may be granted, including:

Hung jury: Probably the most well-known reason for a mistrial. A hung jury occurs when all 12 members of the jury cannot agree on a verdict, and no amount of further deliberations will change anybody’s mind. The judge usually orders the mistrial on his own in these situations, as opposed to the prosecution or defense filing a motion.

Juror misconduct: Either side may request a mistrial if there is evidence of juror misconduct. This may include discussing the case with other jurors before deliberations begin, using evidence not admitted at trial to influence their decision, discussing the case with non-jurors or having contact with any of the parties associated with the trial outside of the courtroom.

Death: A mistrial can be declared if a juror (if there are no alternates) or attorney dies during trial.

Tainted jury pool: If a juror lies during voir dire – the pre-trial phase where the prosecutor and defense attorney question the potential jurors prior to jury selection – the jury pool can be considered tainted and may be grounds for a mistrial. Lies or omissions by a juror that could cause a mistrial include failure to disclose a relationship (personal or otherwise) with any parties to the case, including witnesses; having been a victim of the crime the defendant is accused of committing, or; having already formed an opinion regarding the defendant’s guilt or innocence.

Prejudice to the defendant: If something occurs at trial that is so prejudicial to the defendant that he can no longer receive a fair trial, and a judge’s admonition to the jury to not consider that information is not enough to erase it, a mistrial can be declared. Actions that can cause such prejudice include improper remarks made by the prosecutor during his opening statement, or a witness testifying to highly inflammable, but irrelevant, acts by the defendant.

If a criminal case ends in a mistrial, the prosecutor may be able to retry the case. Whether or not this is possible depends on the reasons for the declaration of trial, and whether a retrial would violate the defendant’s right against double jeopardy, that is, the right to not be tried a second time for his alleged crimes. Whether double jeopardy attaches to prevent retrial is a complicated legal analysis that is generally taken up on appeal. In general, however, any case that ends in a hung jury can usually be retried.

April 2, 2015

Illinois Supreme Court Orders New Trial Due to Ineffective Counsel

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

A Cook County man’s conviction for first-degree murder was overturned, and a new hearing ordered, after the Illinois Supreme Court ruled that his defense attorney provided ineffective counsel for failure to object to testimony regarding the defendant’s confession.

Ineffective Assistance of Counsel

Watch any crime procedural on television or in the movies and you’ll no doubt witness repeated cries of, “Your honor, I object!” from attorneys on both sides. While they add dramatic flair to the movies, objections serve an extremely important part of criminal trials. Just like in a basketball game, where the referees call fouls when players violate the rules, objections serve as the attorney’s way of ensuring that the rules of criminal procedure are followed.

In basketball, if the ref fails to call a foul, there’s a lot of grumbling by players, coaches and fans, and maybe the team loses the game over a couple of lousy calls. But in a criminal trial, the defense attorney’s failure to object can result in conviction and imprisonment.

This is what happened to the defendant in People v. Simpson. The defendant was convicted of first-degree murder in the beating death of a man. The conviction was based in large part on videotaped statements of a third party, who told police that he was near the murder scene and that the defendant confessed to committing the crime. At trial, the witness said he remembered talking to the police about the defendant’s statements, but he could not remember what he told them. In fact, when the prosecution would ask him to confirm specific statements he made to the police, the witness could not confirm that he had made them.

Statements made by a witness out of court, which are inconsistent with his current testimony and which were not subject to cross-examination when made, are generally inadmissible at trial as hearsay. That is because attorneys on both sides have the right to cross-examine a witness, and a statement made out of court is not subject to cross-examination. But prior inconsistent statements are admissible if:

The statement is inconsistent with testimony at trial;
The witness is subject to cross-examination, and;
The statement describes an event the witness had personal knowledge about.

In this case, the witness’s statements did not describe an event he had personal knowledge of, and the Illinois Supreme Court made clear that the “personal knowledge” requirement refers to the crime itself, and not personal knowledge of the defendant’s statements, which is what the prosecution argued.

Yet despite the fact that the witness’s testimony was clearly inadmissible under the prior inconsistent statement rule, the defendant’s attorney failed to object. It is the duty of the defense attorney to object to the admission of evidence – the judge makes no objections, he simply rules on them. Failure to object means the evidence is admitted. In this case, the witness’s testimony was instrumental in the defendant’s conviction.

The defendant appealed his conviction, arguing ineffective assistance of counsel. In order to prove this, the defendant must prove on appeal that the attorney’s representation “fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.”

In overturning the defendant’s conviction, the court noted that it could determine no strategic reason for the defense attorney to have wanted the statements admitted. The court also noted that while other testimony tended to show the defendant’s guilt, the testimony in question was a supposed confession, which generally carries more weight with jurors than other testimony (particularly in this case, where one of the prosecution witnesses had failed to identify the defendant at trial). Without its admission, the court stated that there was a reasonable probability that the jury would have acquitted the defendant. As a result, the conviction was overturned and defendant was granted a new trial.

March 27, 2015

DuPage County Man Charged with Possession of Child Pornography

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

A Wheaton man was arrested in late January and charged with four counts of possession of child pornography. A forensic examination of the defendant’s home computer, which was seized following the issuance of a search warrant, uncovered evidence of child pornography that had been downloaded to, and distributed from, the computer.

Defense of DuPage County Possession of Child Pornography

In Illinois, a defendant is guilty of possession of child pornography if he knowingly possesses any visual depiction of a child engaged in a sexual act. Possession of child pornography is a specific intent crime. If the defendant did not intend to have the pornography in his possession – if it was obtained without his knowledge – then he cannot be found guilty, as “knowingly” is a specific element of the crime.

In defending against a possession of child pornography case, it is extremely important to examine all of the facts to determine if any of the evidence raises the possibility that the defendant did not knowingly possess the photographs or other visual depictions. A forensic examination of the defendant’s computer by computer expert, independent of the police and prosecutor’s examination(s), would need to be conducted to help answer the following questions. A “yes” answer for any of them would raise reasonable doubt as to whether the defendant knowingly came into possession of child pornography:

Did a third-party have access to the defendant’s computer?
Were the pornographic images purposely downloaded, or were they unknowingly installed as part of an adware or malware attack?
Were the images installed via an e-mail attachment that was opened?
Were the images downloaded after clicking on a link in an e-mail?
Were the images obtained from a site that a reasonable person would have known had child pornography?

The police investigation also found that the images on the defendant’s computer were distributed. A person is guilty of distribution if he knowingly distributes, or offers to distribute, any visual depiction of a child engaged in any sexual act. Again, the defendant must have had knowledge that he was distributing pornographic images. It could not have been done on accident or through no fault of his own.

A complete examination of the defendant’s computer by an independent computer expert would need to be done to help answer the following questions:

Did anybody have access to the defendant’s computer at the time the photos were distributed?
Does anybody else know the defendant’s login and password for his computer and/or e-mail account?
Was the defendant’s e-mail system hacked?
Did the defendant’s computer contain any spam, malware, adware, or other virus laden program that sent the e-mails without his knowledge?

If the answer to any of these questions is yes, it would raise reasonable doubt that the defendant had the requisite knowledge to satisfy that specific element of the crime. The Law Offices of David L. Freidberg, P.C., has access to a team of independent computer experts who will thoroughly examine the defendant’s computer, as well as review the police and prosecution experts’ report, to determine if any evidence supports the theory that the defendant had no knowledge that the pornographic images were downloaded to, or distributed by, his computer.

March 18, 2015

Chicago Burglary Suspect Nabbed Due to Stolen Lottery Tickets

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

An Evanston man was arrested and charged with burglary for allegedly breaking into three Elgin gas stations last month and stealing cash and Illinois state lottery tickets.

Illinois Burglary Requires Intent to Steal

Under Illinois law a person commits the crime of burglary if:

He knowingly enters a building;
The entry is without permission, and;
His entry is with the intent to steal or commit a felony.

Burglary is a specific intent crime, which means the prosecution must prove that the defendant knowingly entered the premises without permission, and that he intended to steal once he was inside. This definition raises an interesting point about burglary that many people do not realize – it is possible to illegally enter a building without permission, steal something, and yet not be charged with burglary. How? It all depends on when the intent to steal was formed.

Here is an example. It’s freezing on the streets of Chicago, and a homeless man is looking for a warm place to spend the night. He breaks the window of a doctor’s office so he can sleep on the couches in reception. That is his only purpose in entering the office – to get a good night’s sleep in a warm place. At this point, he has fulfilled the first two elements of the burglary charge.

When he awakes in the morning, he notices an open drawer. Upon further inspection, he sees an envelope containing petty cash. He decides to take it, along with some drugs that were unlocked in a cabinet. Although he intended to steal from the doctor’s office when he took the money and the drugs, the man did not commit burglary. That is because his intent to steal was not present the moment he illegally entered the office, but was formed later. The intent to steal must be present when the person illegally enters a building.

Now this does not mean the man cannot be charged with a crime. He could be charged with trespass and theft, but not burglary. The distinction is significant, because burglary is a felony, whereas depending on the value of the items stolen, the theft may only be a misdemeanor, which means a much shorter prison sentence, if convicted.

Chicago Burglary Defense

In any case of burglary, the first line of defense would be to argue that it was not the defendant who broke into the gas stations. The article states that police linked him to the crimes through stolen lottery tickets. Assuming that they do not have images of him on video surveillance, then the only evidence linking him to the crime is the stolen lottery tickets. Possession of the lottery tickets in and of itself is not proof that he was the one who illegally entered the gas stations and stole the tickets. He may have received them from a friend after the fact, or he could have found them all discarded in a dumpster after the real thief tried to dump them. Regardless, even if he knew, or should have known, they were stolen, this does not make him guilty of burglary.

The second line of defense, as discussed above, would be to prove that the defendant did not have the intent to steal when he entered the premises. If it can be proven that he entered for any non-criminal purpose, and decided to steal only later, as discussed above he could not be charged with burglary.