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 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.

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

-The Fifth Amendment to the United States Constitution

Dave Chappelle makes a humurous skit out of one of your fundamental rights as an American and as a human being: the right to remain silent and not answer questions. The Founding Fathers, in their eternal genius, 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.

Continue reading "Your Sacred Constitutional Right to Refuse to Answer Questions Asked by Illinois or Federal Law Enforcement" »

As a Chicago criminal defense attorney, I have helped many people accused of various types of criminal sexual assault in Illinois ranging from date rape to sexual abuse. In my experience, accusations of sexual misconduct, especially accusations of rape and sexual abuse (a) involve more false accusations than any other area of law, and (b) are more potentially damaging to the reputation of the accused than any other accusation even when proved false. For these reasons, early and aggressive investigations, including establishing an alibi, interviewing any witnesses, and investigating the background of the accuser, are key to protecting the freedom and reputation of those accused of sexual misconduct.

A perfect illustration of the importance of aggressive and early investigation in rape and date rape accusations is the Duke lacrosse rape case. In March 2006 Crystal Mangum, a stripper and escort, falsely accused three Duke University lacrosse players of raping her at a party held at the lacrosse team captain's house. Three lacrosse players had their rooms searched, were arrested, and charged with rape. The prosecutor in charge of the case gave more than 50 news interviews, some with national news media, where he referred to the lacrosse players as rapists and hooligans. Even a group of 88 Duke professors turned on the students and took out an ad in the school newspaper tacitly condemning the three lacrosse players as rapists, weeks before any indictment was issued.

As any good sex crimes lawyer knows, however, there are two sides to every story. Defense lawyers for the three accused lacrosse players conducted a prompt and thorough investigation into Ms. Mangum and her allegations. According to news reports, their investigation revealed that Ms. Mangum had a less than credible background. In addition to being convicted of auto theft in 2002, news articles report that she had a long history of mental problems, including bipolar disorder, and was taking anti-psychotic medication. In addition, say journalists, Mangum had on at least one other occassion accused three other men of raping her and when asked by police to provide details she did not pursue the accusation. Most 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.

The moral of the story is that you cannot always rely on those in power, whether police, prosecutors, or school officials, to do the right thing. The government that accuses you is powerful and organized and the stakes in sex crimes accusations are high: freedom, reputation, and possible compulsory lifetime sex-offender registration. But the beauty of the American criminal justice system is that accusations of rape and sexual abuse can be overcome by superior investigation, preparation, and research. In a sex crimes case, it is crucial that someone whose mission it is to protect you, and who is experienced in doing so, probe the accusation for weaknesses as early as possible.

Continue reading "The Importance of Early Investigation in Rape and Sexual Abuse Accusations in Illinois" »