Chicago Criminal Lawyer Blog

There are many rewarding aspects of being a Chicago criminal and civil rights lawyer. The work is intellectually challenging, I have a legitimate reason to wear suits and saving someone's freedom through extra hard work, research and investigation is an intense joy. But perhaps one of the most abominable things about life as a criminal defense lawyer are those lawmakers and other government officials who use unconstitutional laws to attempt to destroy American freedom. These enemies of freedom appear throughout our history as a nation. Take, for example, the Dred Scott decision and the Poll Tax opinions. But today, this practice is most clearly visible in the prosecution of Illinois Unlawful Use of a Weapon laws under 720 ILCS 5/24-1.6. The good news for people charged with Unlawful Use of a Weapon in Illinois is that the Seventh Circuit Court of Appeals has declared this law unconstitutional in Shepard v. Lisa Madigan. So the bottom line is, if you are charged with this offense, don't plead guilty!

For over 200 years the U.S. Constitution's Second Amendment has explicitly said that "...the right of the People to keep and bear arms shall not be infringed." A thorough treatment of the history, context and definition of terms such as "militia" at the time of the drafting of the Constitution is beyond the scope of this article. It is not credibly disputed, however, that the Second Amendment was intended to protect the American's right to carry a weapon in public for self-defense. Despite this, Illinois and Chicago have, for decades, criminalized the peaceful carrying of arms for self-defense and punished even first time offenders with mandatory jail time.

Shepard v. Madigan changes all of that. In this decision, the Seventh Circuit struck down the Illinois law as unconstitutional and has given the Illinois legislature until June 2013 to write a new law that respects the Constitution. In the meantime, however, Illinois prosecutions continue with government officials finding increasingly shrewd ways to get around the declaration that this law is unconstitutional. Nothing will be clear until the dust settles, but, one thing is certain: no matter how cleverly they torture logic and reason, no one can ever erase the Second Amendment's words guaranteeing the right of Americans to protect themselves in a dangerous world. I am fighting this law in State and Federal court and am cautiously optimistic that truth and freedom will prevail.

Of all the accusations I defend clients against as a Chicago criminal lawyer, I see a persistent pattern of intentionally false accusations in the area of date rape and sexual assault. Indeed, although the difficulty of accurate research into false rape allegations is compounded by political agendas and poor methodology, some of the more objective and rigorous studies have found that 45% of rape allegations are intentionally false. I find these cases particularly disturbing because the accuser is attempting to alleviate her personal distress, regret and guilt over her voluntary actions at the expense of another person's life. The case of Montana quarterback Jordan Johnson is a perfect example of how the only way to prevent this injustice, as well as imprisonment, sex offender registration and loss of career, is having the right defense vision.

Jordan Johnson was a highly recruited starting quarterback for the University of Montana. On February 4, 2012 he went home with a girl to her apartment after a school dance and the two had consensual sex while watching a movie. The girl's roommates were in the living room, which was next to the bedroom, and testified that they never heard the girl scream for help or heard any noise of a struggle. The girl would later send a note to her friend saying "And now I keep thinking that maybe I did want it, and that's why I didn't punch him or kick him or bite him. It's all kind of ridiculous because I know I didn't ask for it. The more and more this goes on, the more I feel guilty about it. The whole situation makes me think I just lied." The girl then filed for a restraining order against Jordan and he was kicked off the football team. On March 1, 2013 Jordan was found not guilty after a trial by jury.

Jordan's case illustrates a few important points in resolving false rape accusations. First and foremost, because date rape and sexual assault accusations are often "he said she said" it is crucial to investigate these accusations as thoroughly as possible through subpoenas, emergency orders to preserve evidence and the use of private investigators where appropriate. You can read more on this point in my article "The Importance of Early Investigation in Rape and Sexual Abuse Accusations in Illinois." Because Jordan's defense team took the time to do this, they obtained, among other things, proof that the accuser said that "the whole situation makes me think I just lied" thereby decimating her credibility. There are, unfortunately, many lawyers who do not put in the time or effort into investigation and research out of court to properly lay the groundwork for success in court. These failures can result in innocent men pleading guilty to rape. Indeed, the Innocence Project, using DNA evidence, exonerated ten men who pled guilty to rape. These men later reported that they felt pressured to do so in part because of poor or absent pre-trial research and investigation by the very lawyers who were supposed to protect them.

It also illustrates how easy it is for a false accuser to wreak immense damage on another's life. Jordan Johnson is out thousands of dollars in legal fees, he and his family endured the stress of a prolonged legal battle and he was kicked off his University's football team. In contrast, the State prosecuted the accuser's case at no fee to her, she was never at risk of going to jail or being punished if she lost and no media I can find has even reported her identity.

The take away from Jordan Johnson's case is that the system is not fair to men accused of date rape and sexual assault. But, through outworking and out investigating the false accuser and the government working on her behalf, you can get through this and go back to living your life.

***
Note: If you have been accused of rape but have not yet been charged, you will almost certainly be getting phone calls or visits from police. I strongly urge you to exercise your right to counsel before you answer any questions.

Despite the Second Amendment's clear language guaranteeing your "right to bear Arms" a felony conviction in your background, even for a non-violent crime, will cause the Illinois State Police (ISP) to revoke and seize your Firearm Owner Identification (FOID) card and reject any future applications. Even convictions for some misdemeanors such as battery, domestic battery or disorderly conduct can prevent you from getting an Illinois license to own a gun.

There is, however, a little-known way to regain your legal right to own a gun if your FOID card has been revoked or your application denied because of a felony or misdemeanor conviction. You may appeal to, depending on the facts of your case, the Director of State Police or the Circuit Court.

Not everyone is eligible and there are many reasons, too many to list in this article, for which the court will disqualify your petition without a hearing. And, even if you do qualify to file the appeal, the court will not automatically order the Illinois State Police to issue you a FOID. Rather, after the appeal is filed, at a hearing presided over by a judge, the State's Attorney is given an opportunity to object to the petition, present evidence against you and argue against the court ordering the Illinois State Police to issue you a FOID. The court considers, to name just a few statutory factors, things such as your criminal history, the circumstances surrounding your conviction and your reputation in the community. At the end of the hearing, the judge decides whether the evidence is sufficient for the court to issue a written order directing the State Police to issue you a card.

One mistake in your life, especially for a non violent or victimless crime, should not prevent you from exercising this most basic of human rights. Although Illinois gun laws are unconstitutional and among the strictest in the country, you can take advantage of Illinois' FOID appeal process to protect your right to bear arms.

One of the most urgent questions I get as a Chicago criminal lawyer from people arrested and accused of a crime in Illinois is whether the arrest will affect getting or renewing a security clearance. A security clearance is a status the government grants after a thorough background check to over a million Americans in jobs ranging from private contractors on government projects to soldiers. The question of whether one bad night or error in judgment will affect your security clearance is crucial not only because people with security clearances are in high demand and are in the top ten percent of America's wage earners, but also, because it may be your dream to serve your country in a position that requires a security clearance.

The short answer is that an arrest does not have to mean you will automatically be denied a security clearance. This is especially true if your case is, from the start, properly handled in order to maximize the chances of (a) avoiding jail (b) avoiding a conviction and (c) avoiding a guilty plea. Hundreds of thousands of people with imperfect records have security clearances. And while any arrest or court case may red flag your security clearance application for further investigation, accomplish these three objectives and any further investigation into the case will reveal only the cleanest and best possible results.

The Department of Defense uses standards published in the Code of Federal Regulations to decide whether to grant a security clearance. The process is designed to determine your "loyalty, reliability, and trustworthiness" using an "overall common sense determination based upon all available facts." 32 CFR 154.6-7. The criteria for determining whether a person should be denied a security clearance based on a prior criminal matter is done on a case by case basis and is too complex to fully cover in this article, however, there are some general principles codified in Appendix H to 32 CFR 154 that you can take advantage of now to maximize your chances of getting or renewing your security clearance:

• Evidence that you did not commit the offense is looked at favorably in determining whether or not to grant you a clearance. It is therefore crucial, to your case as well as the clearance review process, that a prompt and aggressive investigation in the form of subpoenas and court orders secure any evidence of your innocence that can be easily lost or destroyed such as a video or text message. What this also means is that, while felonies such as sexual assault and crimes of dishonesty such as retail theft have more damage potential than misdemeanors like disorderly conduct or battery, even being accused of a serious felony does not have to mean your clearance will be denied if the evidence indicates that you did not commit the offense,
• The fact that you were pressured or coerced into committing the act and those pressures are no longer in your life is also a factor; it is therefore best to cut those bad influences out of your life now,
• If the case is dismissed without a conviction or guilty plea you will have a greater chance of obtaining or renewing your security clearance. The best way to do this is to uncover weaknesses in the case against you through a prompt and aggressive investigation or by getting into a deferred prosecution agreement. For more on agreements with the prosecution that avoid guilty pleas and convictions please read my article Avoiding a Criminal Conviction in Cook County and Illinois.

While the police officer who arrested you may have told you that you have nothing to worry about, if you are looking to obtain or renew a security clearance, you know better. Each case is different and the process is too complex and fluid for this article to be anything more than an introduction to the interplay between an arrest and the security clearance process. The bottom line, however, is that an arrest does not have to mean you have to give up your job or your dreams if your case is handled properly from the beginning.

I recently returned from an eight week sabbatical studying the Arabic language at the American University of Beirut; I am happy to report that I am now able to provide better assistance to those Arabic speaking clients seeking a Chicago lawyer.

In addition to learning Arabic, I took this trip because I am approaching seven years as a Chicago lawyer in November 2012. I wanted to step back, look at the big picture and determine how I can best serve the people who rely on me. I have decided that, in addition to my criminal defense practice, I am now taking civil rights cases of excessive force, false arrest, police brutality, and other governmental misconduct.

I am a Chicago criminal lawyer because I want to help protect the people of the greatest civilization from the greatest threat to their freedom: false accusations from police and private citizens. And while successfully defending the criminally accused in court is a good first step to combat this threat, it is purely defensive and therefore only half the battle. Civil rights lawsuits add the sword to the shield.

To illustrate this point, consider the case of Lake County Illinois Chief Judge David Hall. Judge Hall recently won a four year battle that started when Vernon Hills policeman pulled him over claiming he was driving under the influence of alcohol. The judge was later found not guilty on this DUI. After Judge Hall asked why he was under arrest, Vernon Hills police shot pepper spray into his left eye. The judge was then taken to a local hospital where blood was forcibly drawn. Judge Hall was later found guilty of resisting arrest, even though he was found not guilty of the underlying DUI. So, while Judge Hall's exoneration is a good thing, it does little to address the misconduct of the Vernon Hills police; a successful civil rights action, on the other hand, would go a long way towards that end.

In conclusion, after living in a foreign world for nearly eight weeks, I am glad to be back in a nation that respects the constitution and provides private citizens with the tools to combat governmental tyranny. Ultimately, however, a constitution is just a piece of paper. Enforcement of its ideals requires the constant vigilance and action of good men and women. The evil dominating much of the rest of the world can only gain a foothold here in the States by the failure of those good men and women who see evil and choose not to act.

On this page:

• Am I facing mandatory jail time even if I am a first offender?

• How can I avoid jail time or a conviction if I am charged with Aggravated Unlawful Use of a Weapon?

Despite the Second Amendment's clear directive that "the right of the people to keep and bear Arms shall not be infringed", "Aggravated Unlawful Use of a Weapon" laws in Chicago and throughout Illinois prohibit citizens from carrying guns for self-defense. To make matters worse, Illinois lawmakers recently made some forms of Aggravated Unlawful Use of a Weapon, also known as "Agg. UUW", punishable by mandatory jail time even for first offenders. While there is much information here, some of it negative, the bottom line is that while gun crimes are a challenging and high stakes area of the law, there are strategies to defeat these charges and avoid jail time or a conviction.

Note: Many people are confused as to why the law is called unlawful "use" of a weapon when all they were doing was carrying a gun and not actually "using" it. In Illinois just carrying a gun falls under "Unlawful Use of a Weapon."

Illinois recently changed its gun laws to require mandatory jail time for persons found guilty of certain gun possession offenses. If:

• you are over 18,
• are charged with carrying a gun on you or in your car,
• the gun was "uncased, loaded and immediately accessible", and
• you do not have a valid Firearm Owner's Identification Card, then

the law requires a minimum of one year and maximum of three years in jail if you are found guilty even if you are a first time offender with no criminal background. 720 ILCS 5/24-1.6(d)(2). Of course, if you get the case dismissed using the strategies outlined below, then you serve no jail time and will not have a conviction on your record.

If the gun is unloaded but is also uncased with ammunition "immediately accessible", there is a possibility of 1-3 years in jail, although the sentence is not mandatory and you may qualify for probation.

If you are charged with Aggravated UUW, your goal should be to either beat the case totally or get it reduced to a misdemeanor through negotiations with prosecutors. If your case is in Chicago and its surrounding areas, know that the Cook County State's Attorney's policy is to usually seek jail time for gun possession crimes. There are, however, several ways to beat gun possession charges that may apply in your case:

1. One way to get your gun possession charges dismissed is by proving that police had no probable cause to pull you over. For example, suppose that you are driving with your right turn signal on and a cop is following you from behind. You drive past three opportunities to turn and the cop pulls you over because he thinks that this is a traffic violation. He then claims to see a gun in plain view on the seat next to you at which point you are arrested and charged with Agg. UUW. In fact, the cop is mistaken and you have committed no violation of the traffic code. Because the initial traffic stop was unjustified, the arrest and any subsequent evidence recovered, including the gun, are thrown out and the case against you collapses. This is the case of Illinois v. Hawyood and it illustrates the power of motions in defeating gun possession charges. For more on the power of motions attacking probable cause, please see my section on "Motions to Quash Arrest and Suppress Evidence for no Probable Cause."
2. New cases are constantly emerging that provide new defenses to Agg. UUW charges. For example, earlier we discussed that possessing a gun while not having an Illinois Firearm Owner's Identification card qualifies as a felony Agg. UUW. The Supreme Court in Illinois v. Holmes, however, held that a gun license from another state qualifies as a license in Illinois for purposes of Agg. UUW. To take another example of the common sense steps Illinois courts are taking to soften the unjust effects of harsh laws against gun possession, remember that a person is not guilty of Agg. UUW if the gun is unloaded and enclosed in a "case." The Illinois Supreme Court ruled in Illinois v. Diggins that the center console of a vehicle qualifies as a "case."
3. Challenge "possession" at trial. A trial happens when negotiations and pretrial motions to dismiss are unsuccessful and you submit the question of your guilt or innocence to a judge or jury. Perhaps you were arrested because you were in a car with other people and the police found a gun near you, but not on you. Or, maybe you were the only one in the car, but someone else owns the car. These are just two examples of situations where you can effectively challenge the "possession" required to prove Aggravated Unlawful Use of a Weapon. Just being close to a firearm does not mean you possessed it or even had knowledge of its existence. In some cases, lack of a fingerprint analysis showing your prints on the gun can help prove that you never "possessed" it.

4. Please visit my guns and weapons page for more strategies on how to beat a gun possession case.

The right to bear arms is important for several reasons. Perhaps most importantly, it allows people to effectively practice their right to self-defense. This is especially important for women and the elderly who are often taken advantage of because of their lesser physical strength. The benefit to society as a whole is immense; studies indicate that allowing citizens to carry concealed weapons deters violent crime. But perhaps the most important justification for the right to bear arms is that in a democracy, the government is the servant of the people; an armed populace preserves the people's right to alter and abolish a tyrannical government should our servants ever forget that fact.

One of the most important tools an Illinois criminal lawyer can use to prove that his client did not commit a simple or aggravated battery, domestic battery, simple or aggravated assault, or homicide, is the self-defense argument. Successfully proving self-defense acts as an absolute bar to jail time, finding of guilt, or conviction and can also discourage your accuser from filing a civil lawsuit against you. Most people know what self-defense is when they see it, however, the Illinois self-defense law has specific guidelines that must be met in Court to determine whether the force you used was legal or illegal. This article discusses some ways to help prove that you used force only to defend yourself and are therefore not guilty.

One day, Paul Lynch's physically and mentally handicapped son (Junior) took Ernest Bell's car without his permission and totalled it. Bell demanded money to repair the car, but Lynch didn't have it. Bell was very angry and said that he would either get his money or kill Junior. Several days later, Bell showed up at Junior's apartment with another man named Howard. Both were bigger than Lynch, both had been drinking, and it wasn't long before a verbal argument ensued. According to Lynch, after about 15 minutes of arguing, Howard said "I don't have to sit here and listen to this goddamn bullshit any further" and lunged forward, reaching behind his back and underneath his coat with his right hand. Lynch, thinking that Howard was going to shoot him, pulled his gun and shot Howard dead. Lynch was charged with murder.

The case went all the way to the Illinois Supreme Court. In it's opinion, and in other cases like it, Illinois Courts give clear guidelines for ways to prove self-defense in addition to the facts and details surrounding the actual fight:

1. Show that the person accusing you was the true aggressor by offering evidence of his violent character. In Paul Lynch's case, the Court thought it important that Bell and Howard both made threatening remarks before Lynch pulled his gun. Do you have a history with the person now accusing you of battery or homicide? Have they threatened or attacked you before? If so, this would support your claim that you, in your mind, reasonably believed you had to either use force in self-defense or suffer a physical attack.

What is truly powerful about the Lynch case for defendants accused of battery, aggravated battery, or homicide, is that you can use your accuser's criminal background to prove that your accuser is a violent person even if you did not know about his criminal history at the time you defended yourself. In Lynch's case, for example, Howard had three prior battery convictions, with one conviction coming just six weeks before the homicide. Many clients are amazed at how often checking an accuser's criminal background reveals information that supports their self-defense claim. This is why investigation is so important in battery and homicide cases and why I often use trusted private investigators to learn the facts about a client's accuser.

Just because your accuser has threatened you before or you know that he has been convicted in the past does not mean that you can automatically use this as evidence; use of the evidence is subject to the judge's discretion and the Illinois rules of evidence. A written Motion In-Limine should be filed providing the judge with the legal suport, cases, laws, and analysis that will allow your judge to feel comfortable admitting the accuser's character and past events into evidence. This course of action has the added benefit of gauging the judge's attitude towards your case.

2. Video never lies. Video is everywhere and in some cases can prove that the force you used was in self-defense. Obtaining video proving that the charges against an accused are false is one of the most professionally satisfying experiences I have ever had as a Chicago criminal lawyer. Video is routinely destroyed, however, so it is important to issue a subpoena as quickly as possible if you want to preserve it. Like video, if there were witnesses to the altercation, it is important that they be interviewed as soon as possible before the government gets to them and either intimidates them or twists their words.

3. Your size, health, and fighting ability compared with the person accusing you can also be relevant in proving that you had to use force in self-defense. In Illinois v. Shipp, for example, the Court considered the case of a battered woman whose husband beat and threatened her on multiple occasions before she finally snapped and shot him to death. The battered woman was charged with voluntary manslaughter and she claimed self-defense. In considering her self-defense argument the Court said that "The [dead husband] was physically far larger and more powerful than the defendant...Her terror was both reasonable and complete."

4. Your past can hurt you in court. The use of a history of violence is a double edged sword; just as you can use it against your accuser, so too can your accuser use it against you. The legal protections afforded to a criminally accused defendant, however, are substantially greater than those of an accuser. If the government has knowledge of crimes of violence in your background such as battery or assault you must file a written Motion asking the judge to bar use of your criminal history and providing him with the legal cases and laws saying that such evidence against you is unfairly prejudicial.

As a nation founded by fighters, the United States has a strong legal tradition of honoring the right to self-defense. This right goes as far back as the Roman Empire. Under Roman law, individuals had a right to defend themselves and their property. One provision in the Codex Justinianus regarding defending oneself from an assailant reads: "Let him suffer the death which he threatened and incur that which he intended." Today, Illinois law builds on this tradition. If you have been accused of simple battery, aggravated battery, assault, aggravated assault, homicide, or nearly any other type of violent crime, you can turn to these principles for protection.

Avoiding a criminal conviction is one of the most important duties an Illinois criminal lawyer owes his client. This is because, under Illinois law, a conviction bars you from asking a court to destroy your record of arrest, also known as asking a court to "expunge" your record. Given the stigma associated with a criminal conviction and the increased use of background checks by schools and potential employers, this is unacceptable to many people.

The following are some ways to avoid a conviction through the negotiations process. One important note: you get the best deals by negotiating from a position of strength. This means investigating the facts of your case, doing the proper research, and knowing the weaknesses in the accusation against you.

1. Deferred Prosecution. One of the best ways to avoid a conviction and a guilty plea is through an agreement with the government's prosecutor for "deferred prosecution." This typically involves counseling, community service, or continuing education. For example, a person charged with soliciting a prostitute might agree to complete community service and attend health and safety education in exchange for the prosecutor dismissing the case. Once the case is dismissed you may qualify to immediately file a petition before a court to destroy the record of your arrest.

Traditionally, this type of arrangement was only available for misdemeanors. Recently, however, the Cook County State's Attorney unveiled a new Cook County Felony Deferred Prosecution Program. Under this program, non-violent first offenders can avoid a felony conviction if they, among other things, maintain a job, perform community service, stay out of trouble, and, if applicable, make restitution or attend drug treatment.

2. Supervision. Supervision is an agreement available in misdemeanors where the Defendant pleads guilty and agrees to stay out of trouble for a period of time; in exchange, no conviction is entered on your record. Supervision is less desirable than Deferred Prosecution because it requires a guilty plea. Although a guilty plea is not as bad as a conviction, it does require you in most cases to wait 2-5 years before you can petition a court to destroy the record of your arrest.

3. Special Probation. "Probation" usually means a conviction, however, not 710 probation or 410 probation. These are two types of probation where those charged with possession of small amounts of marijuana or controlled substances can avoid a conviction. The condition is that you, among other things, submit to periodic drug testing and perform community service.

4. Treatment as a Drug or Alcohol Addict. Because addiction is a disease, an addict is a victim, and it makes little sense to punish a victim. If you qualify, under the Treatment Alternatives for Safe Communities (TASC) probation, you may attend counseling, undergo periodic drug testing, or even be housed in an inpatient program. If you successfully complete the program you can avoid a conviction.

Although these alternatives to a record of conviction exist, it does not mean you necessarily qualify for them. Even if you do qualify, defendants in Illinois do not have a right of entry into these programs. Rather, it is at the discretion of the court and the government. To get into these programs, it is important to accentuate your positives in dealing with the government. Military service, a sincere desire to make amends, or an otherwise law abiding life provide some ammunition to get you into these programs. Nothing, however, is more powerful than negotiating from a position of strength, and the best way to do this is by finding the weaknesses in the accusation against you.

As a Chicago Lawyer who has successfully defended at trial those accused of money laundering, I am often asked how to properly and legally handle large sums of cash. One of the most common problem areas in this regard arises out of the federal law that requires banks to fill out and submit to the Internal Revenue Service (IRS) a Currency Transaction Report (CTR) every time someone deposits $10,000 or more in cash.

The problem occurs when a depositor attempts to get around the reporting requirement by "structuring" their cash deposit in an amount just under $10,000 in order to prevent the bank from reporting the deposit to the IRS. So, for example, in an old Soprano's episode, Carmela Soprano finds a large amount of cash that Tony Soprano hid around the house. She goes into a bank and the following exchange occurs:

Banker: "So you want to deposit $9,900 in this account?"
Carmela Soprano: "Yes."
Banker: "You are aware that if it was $100 more I would have to report the deposit to the IRS?"
Carmela (Innocently): "Oh, is that so?"

Although Carmela thinks she is being clever, she is actually taking a foolish and unnecessary risk; while there is no law against depositing $10,000 cash, there is a federal law against structuring your deposit in such a way that it is just under $10,000 in order to avoid the bank reporting it to the IRS. For this reason, a deposit of $9,900 raises a red flag, can attract unwanted attention, and can expose the depositor to potential criminal liability. Violations of this law are punishable by fines and up to ten years in prison. See 31 USC 5324.

The other side of the structuring coin is the requirement to report cash payments exceeding $10,000 to the IRS within 15 days using Form 8300 regardless of whether the money is deposited. See 26 USC 60501. A violation of this section is a felony punishable by up to 5 years in prison. See 26 USC 7203.

How have people beaten structuring accusations in the past? Every case is unique and this is a fact sensitive question that should be discussed with your lawyer. For now, know that the law is mixed depending on what part of the country you live in. For example, in the Seventh Federal Circuit, which includes Illinois, Wisconsin, and Indiana, the case of U.S. v. Jones, combined with the Supreme Court Case of Ratzlaf v. United States, supports the defense that, in order for the government to prove guilt, it must prove that the depositor "willfully" violated the statute. In other words, the government must prove that a defendant acted with knowledge that the structuring he undertook was unlawful. This can be a substantial burden, especially when the depositor acts innocently, without intending to prevent the bank from reporting the deposit.

One of the most important and difficult tasks as a Chicago criminal trial lawyer is getting the finder of fact, whether judge or jury, to keep a fair and open mind in determining the guilt or innocence of the accused. In almost no type of case is this more difficult than in accusations of rape or sexual abuse. In too many cases, the mere accusation of date rape or sexual misconduct is seen by the general public, juries, and even judges, as proof of the accused's guilt.

I was reminded of this recently when Dominique Strauss-Kahn, (DSK), former head of the International Monetary Fund, (IMF), was accused of forcing a hotel maid to give him oral sex as she was cleaning his hotel room. Soon after he was charged with rape, sexual abuse, and false imprisonment, Time magazine ran a story titled "What Makes Powerful Men Act Like Pigs" featuring a full page picture of an unshaven DSK glaring out at the reader next to the headline "Men Behaving Badly." At a dinner party later that same day hosted at a friend's downtown Chicago condo, I heard a person I consider highly intelligent refer to DSK as "That guy who raped the hotel maid." While DSK may indeed turn out to be guilty, it is unjust and dangerous to presume his guilt without a search for the truth guided by the presumption of innocence. So, how does a person accused of rape or sexual abuse overcome the witch-hunt mentality surrounding sexual misconduct accusations?

One way is through aggressive and thorough preliminary investigation of the facts. I have personally seen accusations of rape made against my clients fall apart when time was taken to interview witnesses, track down video, and otherwise find out what actually happened. Take the example of the Duke lacrosse rape case. In 2006 Crystal Mangum falsely accused three Duke lacrosse players of raping her at a party. According to news reports, lawyers for the players conducted an investigation that revealed that Crystal Mangum was a convicted auto thief who took anti-psychotic medication. More importantly, however, defense lawyers were able to get the rape charges dismissed by obtaining time stamped photos, ATM receipts, cell phone records, 911 audio, and eye-witness statements that proved Mangum was lying.

After thoroughly investigating the circumstances surrounding the accusation, the next step is to use those facts to appeal to common sense. To illustrate, consider the DSK rape case. Was anyone in the vicinity of the hotel room during the time the accuser says she was being raped? If so, did they hear any screams? Was any attempt made to run away or escape from her alleged attacker? If so, why was it not successful? Was physical force used? If the alleged victim is claiming that physical force was used to restrain her, were there any marks or bruises left on the alleged victim? How long did the alleged forced oral sex last? Were the alleged victim's hands tied? If not, what was she doing with her hands while she was allegedly being forced to perform oral sex? All that is needed to be found not guilty under American law is "reasonable doubt." Some may find reasonable doubt that forced oral sex occurred if the alleged victim made no attempt to cry out or escape.

Next to forcible rape, few events are more tragic than imprisoning an innocent person and it happens too often. A recent innocence project called "Convicting the Innocent" revealed that 266 innocent people were exonerated by DNA evidence. 79% of these people were convicted based on mistaken eyewitness testimony, 57% were convicted on false forensic tests, and 18% were convicted based on dishonest informants. Our criminal justice system has built in safeguards such as the presumption of innocence for just this reason and they should be respected inside and outside of the courtroom.

As a Chicago criminal lawyer, I have too often encountered situtations in which police, after roughing up or beating a person during an arrest, charge them with battery to a police officer, resisting arrest, or obstruction of justice in order to cover their tracks. For example, according to journalists, after beating the unarmed man in the video, Streamwood Illinois police charged him with resisting arrest and threatening a police officer. This article discusses this phenomenon and outlines some of the ways to beat false charges of battery to a police officer in Illinois.

First, what is battery to a police officer? Battery to a police officer is known in Illinois by its legal name of "Aggravated Battery" or "Aggravated Battery to a Police Officer." Aggravated Battery is the enhanced version of "Simple Battery" which is a misdemeanor and occurs when a person makes physical contact with another person to either injure, insult, or provoke them. Generally, a simple battery that does not cause great bodily harm remains a simple battery. However, when a simple battery is committed against a police officer, that simple battery becomes "Aggravated Battery" which can be as severe as a class 1 felony punishable by 4-15 years or $25,000. 720 ILCS 5/12-4.

What are some of the ways you can beat charges of Simple or Aggravated Battery to a Police Officer?

(1) Video is key. As can be seen in the above clip, unlike a self-serving police report, a video can prove what actually happened. If a video exists in your case it could be the difference between victory and defeat but it must be found and preserved before it is destroyed.

(2) You have a legal right to defend yourself against an officer who uses excessive force. Although normally a person has no right to use force to resist even an unlawful arrest, the use of excessive force invokes the right of self-defense under Illinois law.

(3) Use a history of violence or misconduct to show that the cop was the true aggressor. As the accused, you have a right under the Sixth Amendment to the U.S. Constitution to confront your accuser, including in some cases the right to inspect the officer's personnell record. An officer who beats an unarmed man or woman and then charges them with battery, aggravated battery, resisting arrest, or obstructing a police officer, is a bully, and bullies usually have a history of violent behavior. If so, under Illinois law, that history of violence can be used to show that the cop was the true aggressor.

(4) The jury is society's conscience. Although judges are sometimes reluctant to find that an officer has acted illegally or testified dishonestly, juries are less hesitant to do so. If your back is against the wall and no plea deal is acceptable, a trial by a jury may be the best way to defeat the accusation.

(5) Legal defenses. Legal and technical defenses may apply to your case and are best discussed in person.

The ancient Greek philosopher Plato once posed the question "Who guards over the guardians?" In other words, who polices the police? While the great majority of police officers are honorable men and women who keep society safe from dangerous criminals, what happens when the very people who are supposed to guard us from criminals become criminals themselves? Americans cannot afford the millions of settlement dollars paid to victims of cops who have an anger management problem, are having a bad day, or who are just naturally brutish; a recent study found that police misconduct has cost Illinois taxpayers $214 million. If you are a victim of a brutal police action and now have to defend yourself against accusations that you were in fact the aggressor, you are on the front lines of a war against an evil that has plagued humanity since the beginning of civilization: government sponsored abuse of power. But you are not alone in this fight. The founding fathers, in their eternal genius, have provided you with the right to confront your accuser, the presumption of innocence, and the right to trial by jury, to help you along the way.

Continue reading "The Use of Battery to a Police Officer Charges to Cover Up Police Brutality" »

Ever wonder whether you have a right to prevent others from causing a disturbance near you while you worship or conduct religious rituals? As a Chicago lawyer I have had the privilege of advising and representing leaders of Chicago's religious community using the Constitution's First Amendment Freedom of Religion protections. I have also had the privilege of defending the First Amendment Freedom of Speech rights of people prosecuted for their words. Nothing, be it a local ordinance, a police action, or a federal law trumps a Constitutional protection; it is as close to absolute as you can get in the law. So, what happens when the exercise of two constitutional rights, Freedom of Religion and Freedom of Speech, conflict with each other?

Consider the recent case of the Chicago Church of Scientology. In late 2010 a group of protestors picketed the Scientology's Chicago Church during one of its religious services. The Church called the police citing their First Amendment right to conduct religious services as well as a Chicago law that banned protests within 150 feet and 30 minutes of a religious service or house of worship. One of the protestors was arrested. He challenged the Chicago law saying that it violated his First Amendment right to Freedom of Speech and he won. The City of Chicago recently announced that it will no longer enforce the law that blocked protesters from causing a disturbance outside of places of worship or near religious services.

Church of Scientology spokeswoman Rebecca Cusano thinks it ironic that protestors are "crying freedom" when their protests are interfering with Scientologists' free exercise of religion. The ACLU on the other hand says that is normal for a protest to be aimed at an audience that would strongly prefer not to hear the message and that the Constitution protects the right of protest.

First Amendment law and recent court opinions indicate that they are both right. Chicago's decision comes on the heels of the U.S. Supreme Court's recent Westboro Baptist Church case holding that members of that Church could picket military funerals with signs such as "Thank God for Dead Soldiers", "Priests Rape Boys," and "You're Going to Hell." The Supreme Court reasoned that, while the First Amendment protects the right to Freedom of Religion, our nation also chooses to protect Freedom of Speech, even obnoxious speech, in order to encourage public debate. The recent Westboro Baptist and Chicago Scientology cases indicate that American courts will protect First Amendment Freedom of Speech rights even if they might disturb religious services and rituals.

The Founding Fathers believed not only in the moral correctness of protecting the right to Freedom of Speech and Religion, but also in its practical benefits. Freedom of speech encourages a "marketplace of ideas" that, while heated at times, aids in the search for truth. Similarly, Freedom of Religion creates more peace and prosperity than religious intolerance. As Thomas Jefferson said: "[W]e have experienced the quiet as well as the comfort which results from leaving every one to profess freely and openly those principles of religion which are the inductions of his own reason and the serious convictions of his own inquiries." Until humankind can rid itself of abusers of power, the First Amendment's Freedom of Religion and Freedom of Speech protections provide the best defense against tyrants and overreaching government. Still, while the law might permit even obnoxious speech, common sense and decency dictate that Scientologists should be left alone to freely worship and army dads should be left in peace to lay their dead to rest.

As a Chicago criminal lawyer who deals extensively in defending against accusations of drug offenses, financial crime, and sexual misconduct accusations, I know first-hand the importance of getting the accused out on bond. A defendant who is out on bond can more easily prepare his defense with his lawyer, is subconsciously seen by prosecutors and judges in a more positive light, and, perhaps most importantly, does not have to wait in jail while his case is resolved or goes to trial.

Under Illinois law, every person arrested for a felony has the right to a bond hearing before a judge. At this bond hearing the judge determines whether to grant a bond at all, and if so, what amount the bond will be. The judge considers several factors including, to name just a few, a person's violent or peaceful nature, ties to the community, gang allegiance, and the accused's financial ability. If charged with possession or delivery of cannabis, cocaine, or Methamphetamine, the court also considers the "street value" of the alleged weed, cocaine, or meth pursuant to 725 ILCS 5/110-5(b)(4).

When and if the judge sets a bond, your bond is posted by friends or family at the jail and you are able to go home while your case is resolved. In Cook County, you may use cash, cashier's check, or credit card to post bond. It as at the jail with the money in hand that those posting bond sometimes encounter a nasty surprise: although a bond has been set by a judge, there is a hold because the government has filed a "Source of Bail." This means that prosecutors have filed a written request that those persons posting bail be required to prove that the money used to post bond is obtained from a legal source and is not the proceeds of illegal activity.

If you find yourself in this situation it is important to act quickly to gather the material and information necessary to overcome the government's source of bail request so as to not needlessly delay bonding out the defendant. At a minimum, affidavits, bank statements, and a written notice for a source of bail hearing must be filed as soon as possible in order to speed up the process. After gathering and filing this information, live testimony at a hearing is often required. If all the information and testimony is presented in an orderly and convincing way, the judge should approve the source of funds and allow you to bond out the accused.

Those charged with felonies in Illinois are stuck with the requirements of the source of bond law until and unless it is declared unconstitutional for violating Due Process and the Presumption of Innocence. Until then, with the proper preparation and care, source of bail requests by the government need only delay, not prevent, bonding out the accused. Whether it is a short or long delay depends on how fast you can get the information and documents together and the experience of your Chicago criminal lawyer in handling source of bond hearings.

Continue reading "Getting Out on Bond When Prosecutors Have Filed a Source of Bail in Illinois" »

As a Chicago criminal lawyer, I am witness to occasional abuses of power by law enforcement in the decision to arrest and accuse a person of a crime. With the possible exception of disorderly conduct charges, in almost no other area of law does this happen more frequently than in the decision to arrest a person for resisting arrest or obstructing police. Too often police arrest and accuse people of these crimes because they are personally offended by a person's actions and want to put them through the expense and risk of a criminal accusation. Thankfully, Illinois Courts have taken steps to correct such abuse. This article briefly discusses the resisting arrest and obstructing a police officer law as well as the ways outlined by Illinois Courts to beat these accusations.

Resisting or obstructing police in Illinois is a Class A misdemeanor punishable by up to a year in jail, a $2500 fine, or both. Resisting arrest and obstructing a police officer are both found in 720 ILCS 5/31-1 and are vaguely defined as when one "knowingly resists or obstructs the performance by one known to the person to be a peace officer, firefighter, or correctional institution employee of any authorized act within his official capacity..." If convicted, the statute orders a mandatory minimum of 48 hours in jail or 100 hours of community service. Resisting or obstructing a peace officer can be a felony if there was injury to the police officer.

The problem with this law is that, because it is so vaguely written, it is easy to abuse. Recently, however, the Appellate Court in Illinois v. Berardi stepped in to particularly define instances in which the law does not apply. According to the Court's opinion, on April 3, 2009, Joseph Berardi went to the Canton, Illinois City Hall to request a copy of the City's annual budget. City officials refused to provide Mr. Berardi with the budget. After Berardi persisted, City officials called police. Berardi was arrested after he verbally disputed the policeman's authority to arrest him and he was charged with resisting police.

The Court reasoned that mere verbal argument with police about the validity of an arrest or other police action is not resisting or obstructing and threw out the charges. "Verbal resistance or argument alone, even the use of abusive language, is not a violation of the statute" said the Court. While going limp, forcefully resisting arrest, or physically helping another to avoid arrest would be violations of the law, said the Court, verbally arguing with a police officer, no matter how personally disagreeable the cop finds it, is not prohibited by the law.

Another way to beat resisting arrest or obstruction charges is to show that any alleged resistance was in self-defense. While a person may not typically use force to resist even an unlawful arrest, a person under arrest may use the amount of force necessary to defend themselves against an officer's use of unlawful excessive force. If the officer used unlawful excessive force against you, it probably is not the first time he has done so. In such cases, a subpoena should issue for the cop's disciplinary record. If the police refuse to comply with the subpoena, a written Motion to Preserve and Produce the arresting officer's disciplinary record should be filed asking the Court to issue a Court Order compelling the police department to comply.

Our nation is the first in history to be governed by the rule of law instead of the rule of men. While most police officers are professionals simply trying to do a difficult job the best way they know how, police who arrest and accuse people of crimes based on personal feelings threaten our greatness and should be vigorously opposed in Court.

Please visit my homepage for more on how to beat a resisting arrest or obstructing police charge so that you can go on with your life.

"No person...shall be compelled in any criminal case to be a witness against himself..."

-The Fifth Amendment to the United States Constitution

The Founding Fathers devised the Fifth Amendment Right to Remain Silent based on the philosophical belief that statements should be voluntary and never forced. As a Chicago criminal defense attorney I often say that every situation is different, that there are no blanket rules that apply to every situation, and that advice must be tailored to the unique facts of your case. One exception to this is the right to remain silent: it is always better to have the advice of a knowledgeable criminal lawyer before you make statements of any kind to law enforcement. If this is not possible, you should simply remain silent. Unfortunately, I often meet people only after they have waived this important right and have made statements to police either because of (a) police coercion, (b) because they think that if they are innocent the legal system will automatically treat them fairly, or (c) because they simply do not know that they have a right to refuse questioning and consult a lawyer first.

Why is making statements to law enforcement usually such a bad idea? Consider the following hypothetical: It's a Friday night and Alpha, Bravo, Charlie, and Delta Defendant are taking a road trip down I-290 headed into Chicago. Alpha is driving and smoking his glass bowl full of marijuana which he passes to his fellow passengers. (Driving with drugs in your car or, "Riding Dirty," is a dangerous and careless way to greatly increase your chances of not only death or injury, but also, a cocaine, marijuana, or possession of a controlled substance arrest that will cost you time, money, and possibly even your freedom. Please read my blog post "How to Avoid Being Arrested in Illinois with Drugs in Your Car" advising against it). Minutes later, Chicago traffic patrol pulls Alpha over for speeding and expired registration. As the Chicago policeman obtains Alpha's driver's license, he notices an overpowering smell of weed, arrests the car occupants, and questions them individually.

At first, everyone refuses to make a statement as to who the bowl belongs to and who was smoking pot. At this point, Illinois police can charge all four of the occupants with possession of marijuana and possession of paraphanalia, or, attempt to charge Alpha with constructive possession of the pot and paraphernalia because it was found in his car, in which case Bravo, Charlie, and Delta Defendant go home. Suppose, however, that Delta Defendant makes a statement saying "The bowl and pot are mine." Police now have evidence in the form of Delta Defendant's confession connecting him to the criminal act of marijuana and paraphanalia possession. Had he asserted his Constitutional Right to Remain Silent, he may have been sent home, or at the very least, the case against Delta Defendant of possessing drugs would have been significantly weaker than now, where law enforcement has his oral statements connecting him to the crime of marijuana possession under 720 ILCS 550/4 and possession of drug paraphernalia under 720 ILCS 600/3.5.

This is the position that the overwhelming number of people who seek my assistance as a Chicago criminal lawyer find themselves in. Most people give up their power in an arrest scenario by confessing or making statements either because of police intimidation or because they do not know they have a right to refuse to answer questions by law enforcement. What Delta Defendant should have done is asked to speak to his lawyer first or, if he could not reach his lawyer, insist on his Constitutional Right to Remain Silent. (Please read my excerpt "What should I do if I am arrested or asked questions by the police?" or contact us for a free wallet size "Rights Card" for an easy to use and remember approach to asserting your rights when under arrest or threat of arrest).

But, even if the police claim that you have made statements or have confessed, all is not lost. If your alleged statement was the result of either (a) coercion or (b) "custodial interrogation" and you were not first read your "Miranda" rights, you can turn to the protections of the Illinois and Federal Constitution to keep the alleged confession out of evidence. If your oral statement is the only or strongest evidence against you, this means that the case against you may either fall apart and be dismissed or, will be more easily defended at trial. Whether and how to suppress any alleged statements in court with a motion to suppress is a fact-specific analysis that is best done in person on a case-by-case and face-to-face basis.