Chicago defense attorney

January 30, 2015

Chicago Man Arrested for Robbery, Assault of Landlady

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

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

Question of Identification in Robbery

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

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

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

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

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

Examination of Injuries Sustained in Assault

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

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

January 29, 2015

Chicago Man Charged with First Degree Murder of Mother

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

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

Criminal Confessions and the 5th Amendment

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

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

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

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

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

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

Seeking Reduction of Charges in First-Degree Murder

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

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

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

January 23, 2015

Ford Heights, Illinois Man Charged with Threatening Police Officers

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

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

Threat to Illinois Police Officer

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

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

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

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

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

Cook County Search and Seizure

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

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

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

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

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

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

January 14, 2015

Chicago Store Clerks Defend Against Alleged Armed Robbers

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

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

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

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

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

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

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

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

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

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

December 17, 2014

White Chicago Police Officer Set to Stand Trial for Murder of Black Woman

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

In the wake of the police killings of Michael Brown in Ferguson, Missouri, Eric Garner in New York and Tamir Rice in Cleveland, Ohio, a Chicago police officer is set to stand trial in January on charges of involuntary manslaughter and other felonies in the 2012 off-duty shooting death of an unarmed black woman.

Police shootings happen fairly regularly across the country, and as part of their job to serve and protect officers often kill dangerous suspects. The FBI Uniform Crime Reports indicate that in 2013, there were 461 justifiable homicides by police officers. Some estimate this number to be much higher – at least 1,000 – because not all police departments report their numbers to the FBI for inclusion in the report. So when does murder by a Chicago police officer cross the line from justifiable homicide to murder?

Justifiable Homicide by Chicago Police

There is no special statute protecting Chicago police officers who kill a suspect in the line of duty. Like any other citizen, Chicago police officers must prove that their use of force was justified.

The use of justifiable force, as I have discussed before, is an affirmative defense. This means that the police officer has the burden of proving that his use of force was justified, and not the prosecutor. Under Illinois’ justifiable use of force law, a police officer may use force against another person if he reasonably believes that force is necessary to defend himself or another person against the victim’s unlawful use of force. However, the use of force likely to cause death or great bodily harm can only be used if the officer has a reasonable belief that he is protecting himself or another person from death or great bodily harm.

It is important to note that the victim’s use of force must be unlawful, in order for force to be justified. This means that a person cannot put you in fear of your life, and then use deadly force against you when you try to protect yourself using force.

How does this translate to real life? Take, for example, the Eric Garner case. Most people do not dispute that he was resisting arrest. But from the video, he appeared to be doing so peacefully, and posed no physical threat to law enforcement. So the argument could be made that the police officer’s use of a banned chokehold was unlawful use of force, since there was no reasonable justification to believe that he was in danger of death or great bodily harm.

The vast majority of killings by Chicago police officers are ruled justifiable homicides and never brought to trial. The last case of a Chicago police officer facing criminal charges for a shooting death was 17 years ago. Defense in these cases rests entirely on the police officer’s testimony. Eyewitness testimony factors in to some degree, as would any available video. But in the end, the police officer’s testimony regarding his behavior and the victim’s behavior in the moments leading up to the shooting, and the officer’s level of perceived harm, is what the jury will ultimately rely on. And as is shown by the fact that it has been 17 years since the last Chicago police officer was brought to trial, in the vast majority of cases the benefit of the doubt goes to the officer.

October 17, 2014

Chicago to Allow Post-Conviction DNA Testing

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

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

Illinois Post-Conviction DNA Testing Law

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

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

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

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

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

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

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

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

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

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

October 9, 2014

Rules of Criminal Procedure

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

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

Illinois Post-Conviction Relief and People v. Perez

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

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

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

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

Illinois Rules of Criminal Procedure

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

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

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

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

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

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

October 7, 2014

Entrapment

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

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

Chicago Solicitation of Murder

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

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

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

Chicago Entrapment Defense

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

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

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

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