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ConfessionOne of the most common questions I get asked when I get a phone call from somebody who has recently been arrested is “can my case be dismissed if the police did not read me my rights when I was arrested?” The answer to that question requires an understanding of the Fifth Amendment to the United States Constitution.  Everyone has heard of the Fifth Amendment, especially because of television crime shows, but let’s take a closer look at why the Fifth Amendment is important, what it is and what it does.

The Fifth Amendment creates a number of rights that apply to people facing criminal and civil legal proceedings.  First, it guarantees a citizen the right to a grand jury.  Second, it forbids “double jeopardy.”  Third, it requires that “due process of law” be part of any Court proceeding that denies a citizen “life, liberty or property.”  Fourth, it requires that the government compensate a citizen when it takes their private property for public use.  Fifth, if protects citizens from “self-incrimination.”  The Fifth Amendment right, the right against self-incrimination, is the one that is commonly associated with the “Miranda Rights.”  Self incrimination is basically when you make a statement that exposes yourself to legal or criminal responsibility.  Think of it as making a statement that ends up being a confession.  It’s when you are admitting to a crime, or making a confession. The Fifth Amendment protects citizens from being forced or coerced to testify against themselves.  Self-incrimination is prohibited by the Fifth Amendment to the United States Constitution.  So when you hear that someone has “taken the Fifth,” this means that they are refusing to testify in court or talk to the police.  This right is one of the basic principles of American Constitutional Law. It’s the absolute right to remain silent when you are being questioned by the police.  But just like any other constitutional right, this right is not absolute. There are limitations.

The seminole case that deals with the Fifth Amendment is the U.S. Supreme Court case of Miranda v. Arizona. Arguably the most well-known, or most mentioned, criminal case.  Let’s talk a little about this Supreme Court case so we can get a better understanding of what this case did and how it applies to today.  Miranda v. Arizona was actually four different cases involving custodial interrogations that were consolidated into one case.  The first case involved Miranda and that’s why it became known as the Miranda case.  But it actually involved four different cases involving criminal prosecutions and custodial interrogations.  In all cases, the defendants were arrested by the police, taken down to the police station, and interrogated for several hours.  All of the defendants made confessions to the police that prosecutors tried to use against them in court.  Prior to this case, the right against self-incrimination was thought of as applying only to proceedings in court.  But in this case, the Supreme Court extended and applied the 5th Amendment to proceedings that happened before the case went to court.  The court applied the right against self-incrimination in the 5th Amendment to all criminal proceedings that begin once a criminal defendant is deprived of their freedom of action.  And here is where we find the main limitation in Miranda.  The rights afforded in Miranda apply to custodial interrogations.  You are in custody if you are deprived of your freedom of action in any significant way.  It doesn’t matter if the interrogation occurs in the jail, at the police station, at the scene of a crime on a busy street, or in the middle of nowhere.  If you are not free to leave, then you are considered to be in custody and that’s when the Miranda rights have to be given.  Once it is established that you were in custody and the police start questioning you, in order for the prosecutor to be able to use the statements that you make to them in court, the police have to read you your Miranda Rights.  Those rights have to warn you that you have the right to remain silent.  If you say anything what you say can be used against you in a court of law.  You have the right to consult with a lawyer and have that lawyer present during any questioning.  If you cannot afford a lawyer, one will be appointed for you if you so desire.  If you choose to talk to the police you have the right to stop the interview at any time.  Very rarely have I seen TV shows mention this last warning.  And this is very important because if you are ever questioned, you have the right to demand that they provide a lawyer for you free of charge before answering any questions. Once you assert that right, the police must stop all questioning until and unless they provide a lawyer for you. You have the right to demand a lawyer at any time during the interrogation.  From my experience, I don’t know if I have ever seen the police actually provide a lawyer at this point once it is requested by the defendants.

410 ProbationIllinois law has made a special type of Probation available for first-time felony drug offenders to avoid a felony conviction on their record. This type of Probation is commonly known as Section 410 or Section 1410 Probation. In order to be eligible for this type of Probation, you cannot have previously been convicted or placed on Probation or Court Supervision for any offense related to Cannabis or Illegal Drugs. This includes Prescription Drugs.  If you are able to get this type of Probation, here’s how it works:

At the time of sentencing, you plead guilty to the charges. The court accepts your plea but does not enter judgment. The court will place you on a period of Probation that will last 24 months. The only time you should have to go back to court before your Probation ends is if a Petition to Violate your Probation is filed. While you are on Probation the court will require that you do not violate any criminal laws in any state. You will not be allowed to possess a firearm or any other dangerous weapon. The court will order that you submit to random and unscheduled drug testing.  You will be required to pay the cost of the drug testing but you should not have to take more than 3 drug tests during the period of your Probation. You will also be required to perform 30 hours of community service. In addition, the court may require additional conditions such as payment of fines and court costs, require that you continue with your education, undergo medical or psychiatric treatment, and may require that you appear in court periodically.  The statute gives the court great latitude on imposing additional conditions on your 410 Probation.  Since every case is different, any additional requirements will depend on the particular case.

There are some drawbacks to this type of Probation. The main problem being that since you have pled guilty to the charges, if the court determines that you violated your 410 Probation for any reason, you cannot go back to that court and fight the case because you have already pled guilty. So if you violate this Probation, the only question before the court will be what your sentence should be. You will not be able to contest your guilt or innocence. If you violate your Probation, typically the court will convert the 410 Probation to a felony conviction which could involve felony Probation or a jail sentence.

EyewitnessThere was a time when eyewitness testimony was considered the best evidence in a criminal case.  But recent scientific developments have cast doubt on the reliability of eyewitness testimony.  Surveys of jurors in criminal cases show that jurors place great weight on the testimony of eyewitnesses. This can be dangerous because jurors will put greater weight on the testimony of an eyewitness and disregard other powerful and compelling evidence of innocence.  Several high-profile cases in which defendants were convicted based on eyewitness testimony were later overturned after it was proven that the defendants were not guilty. Kyle Bloodsworth was convicted of the rape and murder of a nine-year-old girl based on the testimony of five eyewitness.  He was later cleared of the rape and murder after DNA testing proved that he was innocent.

Eyewitness testimony is based on the human memory.  To determine the reliability of eyewitness testimony, you must understand how the human memory works.  Most people think that the human memory is like a video recorder.  They believe that the human memory records the events and just plays them back exactly how they happened.  But researchers have discovered that this is not how the human memory actually works. Researchers believe that the human memory is more like a giant puzzle.  It seems like pieces of material are put together by the human brain in order to create a memory, or a narrative, of what happened.  That puzzle can be manipulated by questioning from defense attorneys or from other pieces of material that the person who is recalling the events is exposed to.  In addition, the accuracy of someone’s memory can be affected by psychological issues or substance abuse issues that the person providing eyewitness testimony may be suffering from.  In controlled studies, researchers have been able to create false memories in individuals by introducing pieces of information that did not actually occur.  The scientific studies have changed the way the legal system is dealing with eyewitness testimony.  In recent years, there has been a steady movement in the courts to allow expert testimony to be presented before a jury so that they can understand the true significance of eyewitness testimony.  The expert testimony is giving juries a more balanced and greater understanding of eyewitness testimony so that juries may be able to give a more measured response to such testimony.

Earlier this year, the Illinois Supreme Court addressed the issue of eyewitness testimony.  The court looked at the murder conviction of a man who had been convicted of the murder of a friend.  The only evidence in the case was the eyewitness testimony of a witness and a statement made by the victim identifying the defendant as the shooter.  When the defendant’s attorney sought to introduce expert testimony at trial to contest the accuracy and reliability of the eyewitness testimony, the trial court did not allow the expert testimony to be presented.  In overturning the murder conviction, the court cited the scientific evidence that we discussed earlier in this article along with the number of convictions later overturned after defendants were exonerated by DNA evidence.  The court pointed out that since 1989 there have been 150 wrongful convictions in Illinois. One-third of those wrongful convictions were based on mistaken eyewitness testimony.  The Illinois Supreme Court ruled that if prosecutors wanted to retry the defendant, the trial court must allow expert testimony to be introduced concerning the reliability of the eyewitness testimony.

IDOCThe United States Court of Appeals for the Seventh Circuit sided with an inmate who had ordered the death certificate of his victim and was not allowed to keep it when his mail was opened by prison officials.  The case involves Kevin Williams. Kevin Williams was convicted of the murder of Traci Todd and sentenced to 65 years in prison.  While he was incarcerated at the Pontiac Correction Center, a maximum security prison in Illinois, Williams ordered the death certificate of his victim from the County Clerk’s Office.  The death certificate was received in the mail at Pontiac.  His mail was opened by prison officials and inside the envelope, they found the victim’s death certificate along with an unsigned note which stated that “there is a place in hell waiting for you as you must know you will reap what you have sowed.”  The prison officials confiscated the mail claiming that they were doing so to insure the safety and security of the facility and not to negatively impact his rehabilitation. Williams filed a civil suit in Federal Court against the prison warden, the Director of the Illinois Department of Corrections, and the prison employees responsible for confiscating his mail for a Deprivation of his First Amendment Rights.   Initially the Federal Court dismissed Williams’s lawsuit against some of the defendants because they had not been involved in the confiscation of his mail.  The court then dismissed the lawsuit against the remaining defendants because the court found that confiscating the mail would decrease the chances that inmates would retaliate against him for boasting about his crime, and that it would protect family members from the release of private information about surviving family members.  The Court of Appeals overturned the decision of the District Court and struck the confiscation of his mail.

The Court started by stating that prisoners have a First Amendment right to send and receive mail.  However, prison officials can confiscate a prisoner’s mail if they are able to show that doing so is reasonably related to a management of prison interest.  A mere statement by prison officials that they are protecting this interest is not enough.  They have to come forth with some evidence that shows that this restriction is justified.  In this case, the note did not threaten any harm in prison.  It warned of harm “in hell.”  There was no allegation by prison officials that the letter threatened any harm to Williams inside the prison.  Prison officials argued that the death certificate could be used as a “trophy” by Williams to boast in prison and that would cause security problems and negatively impact his rehabilitation.  The Court found that this is a legitimate interest for prison officials but pointed out that in his deposition, Williams claimed that he needed the death certificate so he could pursue an appeal of his conviction rather than as a trophy.  The assertion by prison officials that he was going to use the death certificate as a trophy without any supporting evidence, was insufficient to justify the confiscation of his mail.  Prison officials could have avoided this controversy if they held on to the death certificate until he wanted a copy of it to include in his appeal.  Instead they imposed a blanket prohibition against him having any ability to have access to this document.  If they had testimony from a fellow inmate that Williams had made statements that he wanted the death certificate as a trophy, they may have prevailed in this lawsuit.  But all the Court had was Williams testifying that he needed this document to pursue an appeal without any evidence to rebut this claim by prison officials.  The Court upheld the dismissal against the defendants not involved in the confiscation of his mail but the lawsuit is reinstated against the remaining defendants.

This case establishes that inmates are entitled to send and receive mail and that in order to stop that from happening, prison officials need more than just a mere allegation.

MarijuanaOn Friday, Illinois Governor Bruce Rauner signed legislation into law which makes possession of small amounts of marijuana a civil matter and not a criminal matter.  This new law makes Illinois the 17th state to decriminalize the possession of small amounts of marijuana.  This means that if you are caught with the possession of 10 grams of marijuana or less, you will be issued a ticket charging you with a civil offense which carries a fine of up to $200.  However, individual towns are allowed to add additional penalties to the tickets, such as drug treatment or classes.  The new law also makes two more changes to Illinois law.  First, anyone charged under this new law will have the case expunged from their record automatically 6 months after the offense occurs. Expungements for these citations will happen automatically twice a year, January 1 and July 1.  This was added to the statute to make sure that such a case would not limit the ability of people, especially young people, to be able to obtain a job. The second change has to do with DUI’s. Under the old law, Illinois had a “no tolerance” policy when it came to driving a motor vehicle with the presence of any trace of marijuana in their blood system.Under the old law, if you had ingested marijuana a few weeks ago and were driving a motor vehicle, you could be charged with a DUI even if there were no signs of impairment.  Under the new law you cannot be charged with a DUI unless you have 5 nano-grams of THC (the active ingredient of marijuana) in your blood, or 10 nano-grams or more in your saliva.

This new law is pretty similar to a measure enacted in Chicago in 2012.  This measure allows police officers to issue tickets for possession of less than 15 grams of marijuana that carries fines of $250 to $500. The new law would not change what is happening in Chicago but would apply to any towns in Illinois that have no such measure so that there’s some uniformity in Illinois.

Similar legislation was passed last year.  But when it reached Rauner’s desk, he vetoed the legislation because he believed that it allowed for the possession of too much marijuana and the fines were too low. The legislature amended the legislation to satisfy Governor Rauner’s objections and he signed the bill on Friday. This measure goes into immediate effect in Illinois.

DUIThe Illinois Supreme Court has ruled that the police can pull over a vehicle just for trying to avoid a police roadblock. Jacob Timmsen was driving down US Highway 31 when he saw bright orange warning signs that he was about to enter a police checkpoint. Timmsen activated his turn single and made a U-turn at a railroad crossing about 50 feet away from the roadblock. There was nothing improper about the maneuver. He properly used his turn signal and made an otherwise legal and proper driving maneuver. In spite of the fact that he was driving legally, a County Deputy working the police roadblock checkpoint pulled over Timmsen merely because he suspected that he was trying to avoid the police roadblock. After Timmsen was detained and interrogated by the deputy, it was determined that he was driving on a suspended license and placed under arrest. After he was arrested, the deputy searched Timmsen’s vehicle and found less than a gram of marijuana inside his vehicle. Timmsen was subsequently convicted and sentenced to 90 days in county jail. After the conviction, Timmsen appealed the case and the Court of Appeals ruled in his favor finding that the maneuver made by Timmsen did not provide reasonable articulable suspicion that Timmsen had committed any crime and that exercising one’s constitutional rights should not be used as evidence against them in a criminal prosecution. The State appealed to the Illinois Supreme Court and the Supreme Court overturned the ruling of the Appellate Court and ruled that the deputy had reasonable suspicion to make the stop and upheld the conviction of Timmsen. In ruling the way it did, the court looked at the totality of the circumstances, mainly that the maneuver occurred at 1:15 a.m. on a Saturday morning approximately 50 feet from a checkpoint roadblock. The court found that this indicated a high degree of probability that the driver was operating his vehicle under the influence of alcohol and by attempting to avoid detection by the police, Timpson had created reasonable suspicion and probable cause to pull him over.  Timmsen had argued that the police had no right to pull him over because he was merely minding his own business. But the Supreme Court did not agree with him. The court found that even though he made a legal maneuver, it raised the suspicion that he was attempting to avoid contact with the police. The court found that there was nothing about the facts of the case to suggest that he was merely going about his own business. The court found that his U-turn was just as suspicious and evasive as running away from a police officer in a high-crime area. As a matter of fact, the majority found that Timmsen was doing the opposite of going about his own business.

The lone dissent was by Judge Anne M. Burke. Judge Burke argue that the 4th Amendment gives individuals the right to ignore a police officer if that police officer has no reason to believe that they had done anything wrong. She believes that the roadblock in the early morning hours was irrelevant to the case. Judge Burke held that you cannot be convicted of doing something that you have a right to do. Since you have a right to avoid the police and not cooperate with them, how can that be a sufficient basis for pulling over a motorist?

This case is troubling precisely for the reasons stated by Judge Burke in her dissent. Timmsen was arrested because he was exercising his constitutional rights. It’s important to keep in mind that when it comes to the constitution, the ends should not justify the means. Sure, Timmsen was driving a vehicle without a license and had marijuana in his vehicle. But the police did not discover this until after he was pulled over. But the reason he was pulled over was because he tried to avoid contact with the police. The 4th Amendment grants citizens the right to not talk to the police when they don’t want to. So what this case does is impose criminal penalties upon a citizen who is exercising a constitutional right. This is troubling and should not be allowed. Why have a constitutional right if citizens know that exercising their constitutional right could put them in legal jeopardy? I suppose that this defeats the purpose of giving people that constitutional right. We should cherish the rights afforded to us by our constitution. By imposing criminal penalties upon people who exercise those constitutional rights, we are watering down and dismissing the importance of those constitutional rights. People should not be afraid to exercise their constitutional rights.

unnamedToday, in a 5 to 3 decision, the United States Supreme Court ruled that in order for the government to freeze the assets of a criminal defendant that are needed to pay for legal representation, the government must prove that the money is related to criminal conduct.  The case involved Miami resident Sila Luis.  Luis was charged with Medicare Fraud.  The government froze $40 million of her assets.  Luis appealed to the Supreme Court arguing that the money was not related to the claims of Medicare Fraud and that by freezing her assets, she was unable to pay for the attorney that she wanted to represent her in the case.  The Supreme Court agreed with her and found that by freezing her assets, she was deprived of her 6th Amendment right to hire the lawyer of her choice.

This case is important because it deals with the issue of Civil Forfeiture in criminal prosecutions. The government has been using this process increasingly to freeze assets of criminal defendants.  It has almost become routine in high profile criminal prosecutions for the government to make it impossible for defendants to be able to hire the attorney of their choice.  This all happens before trial while the defendant is presumed to be innocent.  Critics call this unfair and that the government is making it difficult for people to hire the attorney of their choice and making it easier for prosecutors to win their cases.  While the government will still be able to try to freeze assets, this decision means that the process will no longer be “automatic” and will require that the government work harder to justify the freezing of certain assets.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients in criminal cases.  If you have a criminal case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.

Back in February, Freddy Martinez, a 27 year old resident of Chicago who works in the software industry, attended a rally in Chicago and noticed what appeared to him to be newly installed cell phone equipment next to unmarked Chicago Police vehicles.  He immediately suspected that these were the fabled stingray fake cell phone towers which are being used around the country by law enforcement agencies to secretly intercept cell phone calls and text messages.  We have been reporting on the expanding use of these devices nationally. This is the first time that we are reporting that they may be in use in Chicago.  In March Martinez filed a Freedom of Information request asking the Chicago Police to provide information regarding whether they are using these stingray devices.  He was told that he would be receiving a response within a few days. When he did not receive a response he kept following up without any success. The Chicago Police have not responded to his request.  Last Friday Martinez filed a lawsuit alleging that the Chicago Police have willfully disregarded a Freedom of Information request and that they must comply to his lawful request.  It is customary for the vendor to include language in sales contracts with cities and law enforcement agencies that they are to keep all information about these devices secret.

We will monitor this case to see if these devices are being used in Chicago.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients facing criminal charges.  If you have a criminal case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.

Not Guilty Criminal TrespassLast week I did a trial for a client charged with Criminal Trespass in DuPage County, for an incident that happened at the Naperville Police Department.  The client, a young lady with no criminal record whatsoever, refused to back down and agree to make the case go away by simply accepting a deal for a minor fine and court supervision.  The client demanded a trial and at the end the judge found her not guilty and dismissed all the charges against her.

One evening last year, the client received a telephone call from a friend that had been arrested for a driving offense in Naperville.  The friend was being held in jail and asked that my client go to the Naperville Police Station and bail him out of jail.  The client, who lived in Chicago, had never been to Naperville so she asked her 2 roommates to accompany her.  The state first called the arresting police officer who testified that he was parked in the rear of the Naperville Police Station when he saw the vehicle that my client was driving stop at a gate to a parking area that was reserved for police officers and was clearly marked with signs warning members of the public that the area was off limits.  For some unknown reason, the gate to the parking lot was not closed.  He observed my client stop her vehicle for a few seconds and proceed into the parking lot.  He then pulled over my client’s vehicle and placed her under arrest for Criminal Trespass for entering an area that she had been warned was off limits.  Another witness was called.  This witness was a DuPage County Deputy Sheriff who testified that my client approached him at the entrance to the Naperville Police Station and asked him where she needed to go to post bond for a prisoner.  The officer testified that the entrance to that location was just past where she was. The client then drove past that location, made a right turn and entered a restricted area.  At the close of the state’s case I moved for a Directed Verdict arguing that the state had failed to meet its burden of proof and that there was no evidence that my client had knowingly entered a restricted area.  I argued that my client merely made a mistake that was being treated as a crime by the state.  The state argued that the area was clearly marked with warning signs and I pointed out that the same warning signs state that the parking lot is monitored by electronic surveillance and that in spite of subpoenas and numerous requests, the state had to admit that the surveillance tape of the incident had not been preserved and could not come up with the video evidence which would show whether the DuPage County Sheriff’s Deputy pointed the client to the correct location or to where the client ultimately went.  After the state finished presenting their case, I moved for a Directed Verdict arguing that they had failed to present enough evidence for the case to continue.  The Judge agreed and granted my Motion for Directed Verdict resulting in the dismissal of charges and a formal finding of Not Guilty!  This means that my client will be able to expunge this case from her record.

My winning streak in DuPage County continues.  I remain undefeated in DuPage County.

In a 5 to 4 decision, strictly along ideological lines, the United States Supreme Court threw out a challenge to the FISA law which allows for warrant-less wiretapping by the government of our phone calls.  On January 2, 2013, we reported that the United States Senate agreed to extend this law for another 4 years.  The law specifically allows the United States government to intercept international phone calls without a warrant.  Today the Supreme Court ruled that U.S. based journalists, attorneys and human rights groups lack the standing to challenge this law since they cannot show that they had suffered any injury as a result of the law.  Warrant-less wiretapping was started by President George W. Bush after the terrorist attacks on September 11, 2011.  The program was ended in 2007 but the next year Congress reinstated the warrant-less wiretapping program by enacting the FISA law.  At the beginning of this year Congress extended the law for another 4 years.  Today the Supreme Court effectively ended any legal challenges to this law.  The majority opinion, written by Justice Alito, takes a very narrow view of standing.  This is especially troubling because the Supreme Court, mostly led by the conservative justices, have taken a rather broad view of standing in the past.  The same Justices who are critical of the government taking a more active role in health care have no problem with the government listening in on our phone calls without our permission and without a warrant.  To make matters worse, the standing position, adopted by the majority, was effectively advocated by the lawyers for the Justice Department and supported by President Obama.  Who says that the parties can’t agree on anything in Washington?  I guess the liberals and conservatives are on the same page when it comes to warrant-less wiretaps.

James Dimeas is an award winning criminal defense attorney and author with more than 24 years of experience aggressively representing his clients in felony cases.  If you have a felony case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.