Chicago defense attorney

March 13, 2015

Teacher Charged with Indecent Solicitation and Attempted Predatory Assault of Teen

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

A substitute teacher with the Chicago Public Schools was recently arrested and charged with indecent solicitation of a child and intent to commit predatory aggravated sexual assault. The arrest was made after police and the school discovered suggestive texts allegedly sent from the defendant to the former student, a 14-year-old.

Chicago Indecent Solicitation of a Child

Indecent solicitation of a child is committed when an individual age 17 or older knowingly solicits a child to engage in sexual penetration or sexual conduct, with the intent to commit the act, or knowingly discusses sexual conduct or penetration with the intent that the act be committed.

The police in this case have texts allegedly sent by the defendant to the victim requesting a date and asking her to have sex with him. Assuming that police statements regarding the nature of the texts is correct, a defense against this charge would require proving that either the defendant did not send the texts, or that he did not know he was sending them to a minor.

The news is full of stories about teens send elicit text messages to each other, often as a way to harass or bully other students and even adults. Teens also have a history of playing pranks on teachers or trying to get them in trouble for retaliation against a poor grade or some other perceived slight.

Children today grew up with technology and are avid users of all forms of social media, including texting. Thus many of them are adept at hacking into other’s phones, intercepting IP addresses, or even making it look like a text came from a person it did not.

In any case where technology, particularly computers or smartphones, played an essential part in the alleged crime, it is vital to have a forensic expert examine the phone that allegedly sent the texts, the phone that received the texts, and all data associated with the messages to determine if the messages were actually sent by the owner of the phone. This can be traced via IP addresses, date, time and location the messages were sent, even whether the phone was re-routed through a different address. Evidence obtained in a forensic search could show that the messages were sent at a time when the phone was not in the defendant’s possession, from a location he never frequented, or from a different address altogether.

If it can be proven that the defendant did in fact send the texts, then it would be necessary to prove that he knew he was sending them to a minor. Presumably, since he had taught in the girl’s school, he was aware that she was underage. But it is possible that he believed he was sending them to a different person – perhaps he transposed a number, or the student shares a name with an adult in his phone contact list and he didn’t pay close enough attention to the recipient when he inputted the number (it is not uncommon for students and teachers to interact via social media or e-mail, so the idea of him having a student’s cell phone number is not that far off). The student may have mistakenly believed he was soliciting her, or may have realized his error but thought it was funny to play along. Regardless, if it cannot be proven that the defendant knew he was interacting with a minor, then he must be acquitted or the charges dropped.

March 11, 2015

Attempted Murder, Retail Theft Charges against Chicago Man Who Shot at Police

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

A Chicago man was arrested last week and charged with attempted first-degree murder after allegedly firing at two Chicago police officers as they were arresting him for shoplifting. The defendant allegedly fired once, though nobody was injured; he continued to fire not realizing the clip had fallen out.

Attempted First-Degree Murder of Police Officer

A defendant can be charged with attempt of a crime if, with the intent to commit a specific offense, he commits “any act that constitutes a substantial step toward the commission of that offense.” To be convicted of attempted first-degree murder, the prosecution would need to prove that the defendant intended to actually commit that crime.

First-degree murder requires an intent to “kill or do great bodily harm”, or acting in a manner that creates a “strong probability of death or great bodily harm”, to another. If the prosecution could prove that the defendant in this case fire the officer’s gun with the intent to either kill them or cause them great bodily harm, then he can be convicted of attempted first-degree murder.

Assuming it can be proven that the defendant did purposely grab and fire the officer’s weapon during the arrest, as opposed to the trigger accidentally being pulled in the struggle, it firing due to a malfunction, or the officer actually being the one to fire it, then the prosecution would have the burden of proving intent to kill or harm. Defending against attempted first-degree murder would require arguing for a lesser crime, such as assault. This defense requires convincing the jury that the defendant fired the weapon not with the intent to kill the officers or cause them harm, but instead to scare them, most likely so he could continue to try and make his escape.

Eyewitness testimony as to the direction the weapon was fired during the arrest could help support this defense. If the gun was aimed away from the officer’s, it would tend to show that the defendant did not intend to cause death or great bodily harm, but rather to scare them. A gun aimed away from the officer’s would also disprove the idea that he should have known his actions could result in death or bodily harm (the other elements required to prove first-degree murder), because nobody would expect a gun fired away from a person would cause him harm.

An interesting aspect of this case are in-court statements made by the defendant’s attorney that the defendant is a pastor and was recently honorably discharged from the Army. These actions don’t fit with the idea of a pastor and respected Army veteran. This raises the possibility of several state of mind defenses – perhaps the defendant was suffering from PTSD from his time spent in the Army. It would be worthwhile to have the defendant submit to a psychological evaluation by an independent third-party to determine his mental state, which could possibly negate him having the proper state of mind, or could be used in negotiations with the prosecution to reduce charges.

March 6, 2015

Chicago Police Piloting Use of Body Cameras

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

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

Chicago Police Officer Misconduct

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

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

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

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

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

March 5, 2015

Cook County Jailer Charged with Sexual Misconduct

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

A female jailer at the Cook County Jail was arrested and charged with felony custodial sexual misconduct recentlyafter an internal investigation allegedly confirmed the jailer had sexual contact with an inmate. The arrest was part of an ongoing operation by the Cook County Sheriff’s Office to uncover corruption and inappropriate conduct at the jail.

Sexual Misconduct with Chicago Inmate

You may be wondering how it is possible that sexual contact between two consenting adults be a criminal offense – and a felony, no less. The answer lies in the fact that the jailer is in a position of authority over the inmate. Much like doctors, psychologists, lawyers, or any other professional in a position of trust and/or authority over another cannot have sexual relations with their patient/client, a prison guard is in a position of authority over all inmates, and the law deems the inmate incapable of granting consent to any type of sexual act.

The defendant is charged with custodial sexual misconduct. A prison guard or other penal system employee commits custodial sexual misconduct if she engages in sexual conduct or sexual penetration with a person in custody. Note that penetration is not necessary to be convicted of custodial sexual misconduct. Any type of sexual conduct – such as touching private parts above or underneath clothing – is considered sexual misconduct.

There are three possible defenses available to a defendant in this situation.

The sexual conduct never happened

The first is that the conduct never happened, and that the victim fabricated evidence. In this situation, the arrest was part of an ongoing investigation by the sheriff’s office looking for corruption within the jail’s ranks. It is unknown if inmates were offered any special privileges or offered reduced jail time if they cooperated with the investigation and/or helped uncover corruption. Any transcripts, recordings or notes of conversations between the victim and other prison officials would need to be examined, and the victim and officials he had contact with interviewed, to determine if he was promised anything in exchange for informing on allegedly corrupt officials. If any such evidence came to light, it would show that the victim had motive to make up a sexual encounter for his own self gain.

The defendant was the victim

The second possible defense is that the defendant was the victim, rather than the one who initiated the sexual conduct that resulted in the charge. If there is any evidence that she was coerced or threatened to engage in sexual conduct with the victim, then the charges would have to be dropped or a verdict of not guilty handed down at trial.

The defendant did not know the victim was an inmate

The third possible defense is if the defendant had no knowledge, and no reason to believe, that the victim was in custody. Evidence that could tend to prove the defendant did not know the victim was an inmate include:

Where the encounter took place (i.e., if he was granted privileges that allowed him to be out of the general population), or
Whether he was wearing a prison-issue uniform during their encounter, or attire that could have made the defendant think he was either another guard or a civilian

If none of these defenses are feasible based on a review of all the evidence, then it may be in the defendant’s best interest to negotiate a plea for a lesser charge.

February 25, 2015

Child Endangerment for Death of Chicago Child by Third-Party

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

A Chicago woman was charged with child endangerment following the beating death of her 16-month-old son at the hands of her boyfriend. The mother was charged after evidence showed that she had been aware that the boyfriend was allegedly burning her son while he cared for him, but did not get treatment for the injuries and continued to leave the boy in her boyfriend’s care.

Illinois Child Endangerment and the Requirement of Knowingly

A person endangers the life or health of an Illinois child when she knowingly:

Causes or permits the life or health of the child to be endangered, or
Causes or permits a child to be placed in circumstances that endanger his life or health

As I have discussed in posts on other crimes, whether the defendant’s action was done “knowingly” is a specific element of the crime. In order to gain a conviction, the prosecution must be able to prove that the defendant left her son with the defendant knowing that his life and health were in danger.

In this case, the defendant’s family members on different occasions noticed the burn marks on the child and suggested she take the boy to the hospital. After her arrest, the defendant said she did not follow their advice because she was afraid child protective services would take him and her other three children away from her. She believed the burns were from a space heater in the family’s home. An autopsy on the boy showed a brain injury, broken and fractured ribs and internal damage to organs.

But just because the defendant was aware of the burn marks does not mean she was aware that her son’s life was in danger at the hands of her boyfriend. Nor does the presence of these other injuries prove that she was aware that her son’s life was in danger. There are a number of different factors that could show that the defendant had no idea her son was being harmed by her boyfriend. Such factors, which could be uncovered following an extensive review of the evidence and witness interviews, include:

Whether the other children showed evidence of injury;
Whether the burn marks on the child’s body looked to be caused by accidental touching of the space heater;
Whether the boy was born prematurely or had other birth trauma, which could explain some of the brain injuries;
Whether the fractures, broken bones and brain injuries occurred on the day of death or prior;
Whether the boy exhibited any changes in behavior that could have alerted his mother to the fact that he suffered a brain injury, or;
Whether the child had recently been in a car or other accident that may have accounted for the internal injuries.

The presence of any one of these factors would raise reasonable doubt as to whether the defendant knowingly caused or permitted her son’s life to be endangered, and could be enough to win an acquittal or reduction of charges.

February 20, 2015

Chicago Woman Charged with Domestic Violence Murder

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

A Chicago woman was charged with the October domestic violence related murder of her boyfriend. The woman, who stabbed her boyfriend in the chest shortly following what police called a domestic violence altercation, was charged with first-degree murder.

Defense of Domestic Violence Murder Charge

Any murder charge is a serious offense that requires an aggressive defense to avoid the possibility of a lifetime spent in prison. But murders that result from a domestic violence altercation usually come with a unique set of circumstances that mean there are a variety of defense strategies available.

Self Defense

The first line of defense in any violent crime stemming from a domestic violence altercation is self-defense. The defense would explore all of the circumstances leading up to the stabbing to see if the evidence supported the idea that the defendant felt her life was in danger when she stabbed the victim. Evidence that may support this defense would include:

Cuts, scrapes, bruises, sprained or broken bones, defensive wounds, or other evidence that showed that the victim physically attacked the defendant prior to the stabbing;
Testimony from neighbors who overheard the altercation and could testify that the defendant was being attacked;
Evidence that the defendant had physically assaulted the defendant in the past, such as a prior criminal history of domestic violence or past protection orders;
Whether landlines had been cut or the victim’s cell phone otherwise tampered with, to prevent her from calling for help, or;
Evidence showing that the victim had his hands on the knife or another weapon at the time of the stabbing, such as his fingerprints on the knife or another object that could have been used to cause death or serious bodily injury.

If the evidence showed that the defendant feared for her life when she stabbed the victim, it could result in the prosecution dismissing the charges, or in an acquittal from the jury.

Imperfect Self-Defense

Imperfect self-defense, as I have discussed in the past, is when the victim believed she was acting in self-defense, but that belief was unreasonable. If the defendant can prove she acted in imperfect self-defense, then the charge would be dropped to second degree murder.

Much of the same evidence that would be used to prove self-defense would also be used to prove imperfect self-defense. In cases where the victim of domestic violence murdered her batterer, the victim was not in immediate danger of being seriously injured or killed. Instead, it is the past actions of the batterer, coupled with statements made shortly before the murder, that make her reasonably belief that her life is in danger and requires the use of deadly force to protect herself.

For example, the longer a couple is together, the less the need for actual physical violence to keep the victim “in line”. A certain look, or just a few harsh words, from the abuser are enough to let the woman know that she is in danger, even though those same actions would mean nothing to an outside party. So while her actions would seem unreasonable to outsiders, to her they were completely reasonable. Evidence of the couple’s history, including any documented incidences of abuse, could sway the jury to acquit based on self-defense. However, for those jurors who feel that a first-degree murder charge is too much, but an outright acquittal is not punishment enough, a charge of second-degree murder can sometimes be a reasonable compromise for them.

February 18, 2015

Chicago Man Held on $100,000 Bond for Theft by Deception

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

A Chicago man was charged with six counts of theft by deception for allegedly obtaining merchandise through telephone solicitations and then turning around and selling it for cash.

Defense of Chicago Theft by Deception

The article does not clarify the alleged deception, but one likely scenario (and the one we will assume for purposes of the discussion in this post) is that the defendant posed as an employee of a charitable organization and called homes and/or businesses soliciting donations. Upon being offered items of significant value, collected the items and turned around and sold them for cash.

Regardless of the details of how the alleged crime unfolded, theft requires that the defendant “knowingly” obtain control over another’s property by deception. So defense against the charge would focus on raising reasonable doubt as to whether the defendant’s actions were done with proper intent – whether he knew that he was obtaining control over another person’s property through the alleged deception. Factors that would need to be considered in determining whether the defendant had the requisite knowledge include:

Did the defendant make the phone calls soliciting the property;
If the defendant made the phone calls, was it at the direction of a third-party for what he believed was a legitimate, legal purpose, and;
If the defendant sold the property at the direction of a third-party, did he know it was obtained through deception.

If the defendant made the phone calls and sold the property under the direction of a third party, and was led to believe that the solicitation and sale of the property was for a legitimate purpose, then he did not knowingly obtain control over the property with the intent to deprive the owner of his control. Instead, he himself was under the false assumption that the solicitation was genuine and not for the purpose of illegally obtaining the victim’s property.

If, however, the evidence tends to show that the defendant did knowingly obtain the property through deception, then it would be to his advantage to negotiate a plea agreement with the prosecutor. The defendant was charged with six counts of theft ranging from $300 to $1,000 per instance. Assuming that five of the six charges were for $1,000, the maximum value of stolen property would be $5,300.

Going to trial for a string of thefts of such a small amount – and in cases where the victims willingly gave away their property, albeit under false pretenses – would be a waste of time and resources for both the prosecution and the court system to have a case this size go to trial. These types of cases are prime examples of how the skill and expertise of an experienced Chicago theft crimes attorney can mean the difference between a lengthy prison term – theft of less than $10,000 in property is a Class 3 felony, and conviction on each charge carries the possibility of between two and five years in prison – and a concurrent sentence or even probation. Continue reading

February 13, 2015

Chicago Man Charged with Arson on Red Line

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

A Chicago man was charged with arson last week for allegedly throwing a lit matchbook into a recycling bin in an El station before boarding his red line train.

Chicago Arson Defense

Under Illinois law a person commits arson if he knowingly damages another person’s personal property, if that property is valued at $150 or more.

Arson is a specific intent crime, which means that the prosecution must prove that the defendant knew that his actions would cause a fire, or intended to do so. So “knowingly” is an important element of every arson charge. Without it, the prosecution has no case and the charges must be dropped or a not guilty verdict handed down in court.

When building a defense in an arson case, it is important to consider not only the defendant’s actions, but any other factors outside of the defendant’s knowledge that could have caused the property to burn. Evidence that would go against an arson claim include:

Whether the defendant knew the matchbook was still lit when he tossed it;
Whether he purposely tossed it, or whether it was tossed as a reflex because the flame touched the defendant’s hand;
Whether weather or other conditions inside the El station could have caused a just extinguished match to reignite;
Whether there was any other evidence of fire or smoldering in the recycling bin that ignited coincidentally with the defendant’s tossing the matchbook;
Whether the matchbook in question belonged to, and was used by, the defendant – fingerprint analysis, if the matchbook was not destroyed in the fire, could be used to prove ownership;
Whether the defendant smoked, which could cast doubt on why he’d have a matchbook;
Whether defendant actually tossed the matchbook into the recycling bin, or whether he tossed it on the ground and a passerby innocently (or purposely) tossed it into the bin, or;
Whether any flammable material had been tossed into the recycling bin that would have caused the flames and damage from the fire to be more extensive than it would have been otherwise.

A negative to answer to any of these questions would tend to cast doubt on the idea that the defendant knowingly set out to cause the fire.

A second key element to arson is whether the value of the property damaged is $150 or more. The recycling bin itself was full of trash, and although the city may then sell the recycled material to scrap yards, this is not true personal property. And even if the court were to rule that it counts, depending on the extent of the damage it may be impossible to determine how much the city could have sold the material for, since it is now burned rubbish.

Depending on the type of recycling bin, there may be minimal damage. A steel or metal bin may have gotten scorched but could likely still be used, so although damaged, there wouldn’t be the need to replace or repair it. If it was a plastic bin, the defense would need to determine the cost of the bin.

Even if it could be proven that the property damage exceeded $150, the jury could be swayed into delivering a not guilty verdict because the property had no personal value to anybody – it was simply trash and a trash bin, not a vehicle or prized family possession. Continue reading

February 10, 2015

Kidnapping Charge for Cook County Woman Held in Own Home

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

A Cook County man was arrested last week and charged with felony aggravated domestic battery after allegedly grabbing a female friend and dragging her in to her garage and refusing to let her call for help for almost 24 hours. Although arrest documents include a kidnapping charge, the Cook County state’s attorney only charged the defendant with battery.

Illinois Kidnapping Laws

The word kidnapping makes most people imagine a person being snatched off the street, moved to a secret location and held for ransom. And while those actions do constitute a kidnapping, it is not the only way the crime can be committed.

Under Illinois law a kidnapping can be committed if a person “knowingly and secretly confines another against his or her will.” The facts of this case make it possible for a kidnapping to have occurred, but only if the defendant knowingly confined the victim against her will. This means that he had to have intended to confine her in the home. The fact that she felt she was unable to leave, absent some outward showing by him that she was unable to, is insufficient to support a kidnapping charge. In other words, her belief that she was held against her will must have been reasonable based on all of the circumstances.

In defending against a kidnapping charge similar to this, we would look closely at the following to determine whether the defendant “knowingly” confined the alleged victim:

His intent;
Whether he said anything that could have reasonably caused the victim to feel that she was unable to leave;
Whether he physically prevented her from leaving, either by the use of restraints or blocking the doors and windows;
Whether he cut or otherwise disabled the landline phone to prevent her from calling for help, or;
Whether he hid her cell phone or kept it on him so that she couldn’t get it, or whether it was out in the open and easily accessible.

If the answers to these questions are no, then the likelihood is high that a jury could be convinced that the victim’s belief that she could not leave the home were unreasonable, and the defendant could not be convicted of the crime.

At this point it is unclear why the state’s attorney did not indict on the kidnapping charge. The victim indicated that the defendant left her home at 10:45 a.m., approximately 9 hours after the battery was committed. The fact that he voluntarily left her home without causing any additional harm raises doubts that he intended to confine her. It seems likely that upon further investigation, the prosecutor found that the answers to at some of the questions posed above raised reasonable doubt as to whether the defendant knowingly confined the victim, as required under the statute, and declined to file kidnapping charges because there was insufficient evidence to support it. Continue reading

February 6, 2015

Police Dogs and Chicago Drug Cases: Unreasonable Search and Seizure?

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

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

Illinois Police Dogs and Search & Seizure

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

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

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

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

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

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

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

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

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