Chicago Criminal Lawyer Blog

Several Illinois health care professionals woke up to a nasty surprise recently when their licenses were revoked based on a new Illinois law punishing health care workers convicted of certain crimes. Most of the twenty-six Illinois doctors, nurses, dentists, and pharmacists are from Chicago and Cook County and had their licenses revoked for sex offenses such as child pornography and aggravated criminal sexual abuse. The names of these health care workers and their offenses can be found on the website of the Illinois Department of Financial and Professional Regulation.

In addition to revoking the licenses of sex-offenders, the law also revokes the licenses of doctors and nurses convicted of (1) misdemeanor or felony battery against a patient, as well as (2) those convicted of any "forcible felony", whether or not it was committed against a patient. There are many offenses requiring sex offender registration in Illinois, so the potential impact of this new law is enormous. A few examples of offenses requiring sex offender registration in Illinois are: Soliciting for a prostitute if the victim is under 18, ritualized abuse of a child, public indecency, criminal sexual assault, and child pornography.

Several Illinois doctors are challenging the law. Mohammed Khaleeluddin, for example, filed a lawsuit in Cook County alleging Double Jeopardy violations, improper retroactive punishment, and Due Process violations. According to local media, Khaleeluddin was convicted in 1998 for misdemeanor battery involving sexual misconduct with a female patient. He served a three year suspension, paid a $30,000 fine, and resumed practicing in 2001 without further incident.

While the courts have yet to determine whether the new law is constitutional or not, one part of the law that many find unfair has to do with punishing doctors and nurses who have been accused of misconduct, but who have not been proven to be guilty of any misconduct. Under the new law, when a doctor, nurse, pharmacist, or dentist is merely accused of a battery against a patient, forcible felony, or sex offense, that accused health care worker can only work if he is accompanied by a chaperone during all patient interactions. In addition, the chaperone has to provide written notice to all of the doctor's or nurse's patients explaining the accusation and get that notice signed by the patient.

This part of the law is not only morally odious, but also, violates the Presumption of Innocence, because an accusation of misconduct is not proof of misconduct. Almost everyone at some point in their life knows the pain of being accused of something they did not do. In fact, innocent people are falsely accused every day. For example, a recent innocence project called "Convicting the Innocent" revealed that 266 people who were falsely accused and convicted in court were later exonerated by DNA evidence. I have personally represented health care workers against such false accusations and have seen first-hand the power these accusations have, even if proven false, to wreak havoc on the lives of the accused.

For this reason, if you work in the health care industry and are charged with one of the offenses described in this article, the only outcome that protects your license and reputation is either (a) pre-trial dismissal or (b) a "not guilty" finding after a trial before a judge or jury. The first line of defense for a doctor or nurse affected by the law is a Motion to Dismiss attacking the statute itself as unconstitutional for violating Due Process and the Presumption of Innocence. A successful Motion to Dismiss would defeat the accusation against you in its infancy. Failing that, prompt, thorough, and aggressive investigation through subpoenas and court orders to preserve and produce evidence should begin as soon as possible in order to persuade the government to voluntarily dismiss the case and to protect you in case of trial.

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.

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" »

One of the most emotionally charged issues I deal with as a Chicago criminal defense lawyer is the domestic battery case. That's because "domestic battery" in Illinois necessarily involves the alleged battery of a "family or household member." As defined in the Illinois Domestic Violence Act, "family or household member" includes parents, spouses, roomates, and people you are dating or have dated, to name just a few examples. Whether you have been falsely accused or made a terrible mistake, you will find answers to some of your most important questions here.

First, what exactly is "domestic battery"? As defined in 720 ILCS 5/12-3.2, a simple Illinois domestic battery is when a person "without legal justification" causes "bodily harm" to a "family or household member" or "makes physical contact of an insulting or provoking nature with any family or household member." Domestic battery can be either a felony or misdemeanor in Illinois depending on a variety of factors too numerous to go into here and best discussed in person.

One of the most important things you should know if you are charged with domestic violence in Illinois is that, under Illinois law, if you plead guilty or are found guilty you cannot get domestic battery expunged from your record. The only way to prevent an accusation of domestic battery from staying on your record for life is to either get the case dismissed or get a "not guilty" at trial.

Many times, the person accusing you will file a petition for an order of protection requesting a court order preventing you from being near them. While an Illinois order of protection is a useful shield for a true victim, it can also be used as a tool to harass. This is especially true if you and the accuser work in the same office or go to the same school. If your accuser has filed for an order of protection, your first objective is to either negotiate an agreement that allows you to go about your daily life without interference, or, convince the judge that the requests made by your accuser are unnecessary or not allowed under the Illinois Domestic Violence Act.

Now you know what you are up against, but how do you beat this? As discussed earlier, there are usually no acceptable plea deals; the only way to protect yourself is to either obtain a dismissal or beat the case at trial. In some cases it is possible to negotiate a deal with the government dismissing your case. For example, the Kane County State's Attorney recently announced a new diversionary program for people accused of domestic battery whereby those who qualify can get charges dropped after completing a year long program. You may be able to set up a similar agreement in other Illinois counties.

Another way to beat an accusation of domestic battery in Illinois is to demonstrate that you used only the amount of force necessary to protect yourself or another from your accuser's use of force. For a more detailed look at this defense and ways to prove it, please read my blog post "Proving Self-Defense in Illinois Battery and Homicide Cases."

The best way of maximizing your chances of getting such an agreement is to deal in strength early on. Many times, preparing your case for trial is the best way to avoid going to trial. Therefore, no matter what your intentions, or how hard or easy you think your case is, the most strategically correct course of action at this moment is a prompt and thorough investigation of your accuser, any witnesses, and the circumstances of the incident, in order to get your case trial ready.

Continue reading "Charged With Domestic Battery in Illinois: What to Expect and How to Proceed" »