garage-door-1205688-e1489524207300In a recent Illinois appellate case, the defendant was convicted of aggravated vehicular hijacking, armed robbery and attempted first degree murder. The case arose when the victim left work and drove home to Chicago. At midnight he stopped at a stop sign by his home, and saw someone there with a dog. He continued home and parked in his garage. When he heard a noise in the alley, he waited to make sure the garage door would close. However, the man with the dog was standing at the garage door and came in asking for help.

The victim told him to leave and called for his wife. The man stabbed him seven times and demanded his wallet, keys, and money. The victim gave him these things, and stayed on the ground. The man had trouble unlocking the door of the SUV so the victim told him what button to push. The man put the dog in the SUV and told the victim he’d leave the SUV near a hospital and to wait 10 minutes before doing anything.

Once the man left, the victim went inside and asked his wife to call 911. He was a doctor, so he provided his wife and her brother with instructions on how to perform first aid for himself while they waited for the paramedics. The police got a description of the man, but at trial the victim testified he hadn’t given the description the police had reported and that the attacker had a black nylon hair covering that was over his face when he stabbed him.

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drugsIn a recent Illinois appellate case, the defendant was convicted of unlawfully delivering heroin. An accountability theory was used to obtain the conviction, which resulted in a 3.5-year sentence of imprisonment in the Illinois Department of Corrections.

The case arose when a 29-year-old woman died due to a heroin overdose in 2014. The defendant’s roommate sold the heroin to the decedent. The defendant was charged with delivering a controlled substance on an accountability theory once it was discovered that the defendant had arranged the sale. The defendant pled not guilty and asked for a speedy trial. The prosecution subsequently charged the defendant with criminal drug conspiracy under 720 ILCS 570/405.1. The defendant said on the record that he would waive his right to trial by jury and also signed a waiver. The prosecution had agreed to dismiss the second count so that the trial occurred only on the first count.

The defendant admitted that his roommate sold the heroin to the decedent. All that was at issue was whether he was accountable for the delivery. Evidence submitted by the prosecutor included screen shots of Facebook conversations and text messages between the different parties, as well as a police interview. Among the Facebook conversations was one between the defendant and the decedent in which the decedent asked whether she could get pills. The defendant responded that he couldn’t get anything, based on two people who had responded to the request.

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Illinois Administrative Hearings and Criminal Cases

Illinois Administrative Hearings and Criminal Cases

Most people are surprised to learn that an “administrative court” system exists in Illinois that functions primarily independent of our traditional court system.   These “administrative courts” are created by cities and villages. Fines can be up to $750.00 per offense, and a person can be jailed for up to 6 months if the municipal offense in a misdemeanor. Many of the traditional criminal cases such as theft,  possession of a controlled substance, battery, assault, etc. are now being decided by appointed “hearing officers” under the label of “quasi-criminal criminal cases.”  The “story” goes that these proceedings are civil, and thus, are not “real” criminal cases.

Although administrative rulings by appointed hearing officers/judges that deal with quasi-criminal cases can be appealed to Judicial Court, they rarely are because it is extremely difficult and expensive to have an administrative ruling overturned under current Illinois law.

doorIn a recent Illinois Supreme Court case, the Court considered a case involving a charge of Resisting a Peace Officer. The case arose in 2011, when the daughters of a family with four kids (including the defendant) died in a car accident. The trial court ordered that the biological father should have temporary physical custody of the decedent’s daughter. The order permitted law enforcement officers to help the father get the daughter from whoever had physical custody.

The law officer tried to serve the order on the family three times. On the third occasion, the defendant, the uncle of the child, who was visiting, came to the door and eventually wound up in custody, charged with Resisting a Police Officer.

At the jury trial, the court admonished the jury that the defendant was presumed innocent and advised them of the Zehr principles. The Zehr principles provide that when the defendant requests, the Court must advise potential jurors that the defendant is presumed innocent, the defendant is not required to produce any evidence, the state has to prove the defendant guilty beyond a reasonable doubt, and that if the defendant does not testify, that refusal to testify cannot be used against him.  While testifying, the deputy claimed that he gave the defendant the court order, that the defendant was upset they were there, and that the child was on vacation. He claimed that the defendant got agitated and said the paper wasn’t a search order, and he poked the deputy in the shoulder and told them to leave the property. He arrested the defendant for Battery to a Peace Officer, but the defendant started thrashing to resist the arrest. They cuffed the defendant, and one of the police officers got open scrapes and cuts or scratches.

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caution tapeA recent Illinois appellate case involved first-degree murder and aggravated battery with a firearm conviction. The case arose when the defendant fatally shot one victim and tried to kill the other. He was charged with first-degree murder, aggravated battery with firearm, and attempted murder. Before trial, the prosecution filed two motions to admit evidence of other crimes by the defendant. One involved the defendant shooting someone in the back.

The other motion said that the defendant had talked about a pending murder case with his cellmate, and the defendant approached the cellmate with a list of witnesses, asking the cellmate to take care of them. The cellmate thought this meant the defendant wanted them killed, and he gave the list to the sheriff. The investigator assigned an officer to pretend to be a hit-man and taped a phone call in which the defendant asked the undercover officer to come to the jail, where he asked the undercover officer to get rid of the witnesses. The prosecution wanted to use evidence of these events to show the defendant was conscious of his guilt.

The trial court found that the evidence related to the shooting of a bicyclist in the back was admissible to prove identity. It also held that the evidence of soliciting murder could be admitted to prove consciousness of guilt. The bicyclist testified that he’d known the defendant for three years at the time he was shot in the back.

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pipeThe 4th amendment of the U. S. Consitution protects us from unreasonable searches and arrests. Searches and arrests without a warrant or probable cause are unconstitutional.  Evidence obtained by the police by an illegal search or arrest is not admissible in Court. Since no two people are alike and our perceptions of the world differ from person to person, the meaning of what constitutes a reasonable search or arrest varies from judge to judge.

In a recent Illinois appellate case, the defendant appealed his criminal conviction. The jury convicted the defendant of possessing a controlled substance and possessing drug paraphernalia. The case arose in the middle of the night in July 2013 when the defendant was walking down the street. An officer was sent to respond to a possible burglary and saw him. He got out of his car and asked whether the defendant had seen anybody running. The defendant said he’d seen nothing and claimed he’d left a friend’s house. The officer knew the friend, who trafficked narcotics.

The defendant put his hands in his pockets during the conversation. The officer told him to take out his hands. The defendant obeyed but then put his hands back into his pockets. Again, the officer asked him to take his hands out of his pockets. They repeated this behavior a few times during the conversation, and the defendant finally asked the officer why he had to take his hands out of his pockets. The officer told him he was going to pat him down for weapons and then conducted a frisk search.

While frisking the defendant, the officer felt a smoking pipe in the defendant’s pockets. He knew what it was because he had experience with narcotics investigation. He arrested the defendant for possession of drug paraphernalia in his pocket. He took the pipe out and tried to go into the defendant’s other pocket, but the defendant started struggling.

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chapelIn a recent Illinois appellate decision, the defendant appealed after being convicted of aggravated participation in methamphetamine manufacturing. He was charged with seven counts related to methamphetamine manufacturing. At trial, the judge asked the jurors not to conduct independent research on the case. A prosecutor told the jury she anticipated testimony from a police officer that the offenses happened within 1,000 feet from a church.

The prosecution put forward a police officer as a witness. He testified he was trying to serve a warrant on someone else in a nearby apartment building when he smelled a chemical odor that he thought might be connected to methamphetamine manufacturing. The church was nearby. The officer testified about how the defendant became a suspect and what they found when searching the premises. The house where the materials for manufacturing meth were found was right behind the church.

A sheriff testified about how close the courthouse was to the area where the manufacturing happened, and the judge again reminded the jury they shouldn’t do independent research. The sheriff said he was sent to help the police department with what they thought was a meth manufacturing lab.

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revolverIn a recent Illinois appellate case, the defendant appealed after being convicted of armed robbery, which is a Class X felony.  He was sentenced to 21 years in prison, which is the six-year minimum plus a 15-year enhancement for using firearms.  He was indicted based on a theory of accountability.  Prosecutors claimed he knowingly took money from the victim’s person by threatening the use of force while carrying a firearm.

The defendant was separately charged with attempted armed robbery, and he pled guilty to that charge. He was admonished of his right to a jury trial, and he agreed to waive his right. The case at hand was set for a jury trial, but a few months before the trial, the defense attorney told the court that sentencing in the attempted armed robbery case was supposed to occur on the same day. The defendant’s attorney also said at that point that the current case would be a bench trial, and they’d waived a jury trial. There was no written jury waiver.

Subsequently, the State filed a notice of intent to ask for a 15-year sentencing enhancement upon conviction under section 111-3(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(c)).

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Michael-FlynnI woke up to multiple news reports this morning that former National Security advisor, Michael Flynn, has offered to cooperate with Federal Investigators in return for a grant of immunity. I was watching news coverage and notice that the media is not reporting all of the various factors and steps that have to be taken in order for this to happen. The reporting is very simple. However, the topic is certainly more complex than what is being reported.  I want to focus on a couple of things that the media is not talking about.

Before I begin I want you to know that I have been a criminal defense lawyer for almost 25 years. I have represented numerous individuals who have either been facing criminal prosecution in the Federal courts, or were under criminal investigation by the federal government for various crimes. Some of my clients cooperated with Investigators and Prosecutors and were able to avoid criminal prosecution. Other clients agreed to cooperate with Federal Prosecutors and Federal Investigators in return for a reduced sentence in a Federal Criminal prosecution. So I approach this issue as someone who has experience representing people who were granted immunity in return for cooperating with government Investigators and Federal Prosecutors.

The first issue that I wanted to discuss is whether Flynn’s request for immunity means that he has something to hide. While his request for immunity may mean that he has reason to fear criminal prosecution, the mere request by him and his lawyers for immunity in return for talking to Investigators does not necessarily mean that he has anything to hide. It may simply mean that he has a good lawyer. Any lawyer representing anyone who wants to talk to Federal Investigators, or Federal Prosecutors would be committing malpractice if they did not try to get an agreement from the Prosecutors and Investigators that anything their client says to them cannot be used against their client in a criminal prosecution. Even if the lawyer believes their client when they say that they did nothing wrong, they would be crazy to put their entire faith in their client being 100% truthful with them. Plus, the lawyer does not know what evidence the feds have against their client. The job of a criminal defense attorney is to protect their client from the known and the unknown. As a lawyer, you cannot read your client’s mind. Therefore, the best way to protect your client when they are voluntarily talking to Federal Investigators and Federal Prosecutors is with a grant of immunity.

cannabisA recent Illinois appeal involved a Domestic Battery. The defendant was acquitted of Aggravated Domestic Battery and unlawfully interfering with a report of Domestic Violence, but he was convicted of Domestic Battery under 720 ILCS 5/12-3.2(a)(1). The trial court denied his post-trial motion, and he was sentenced to 30 months in prison. He appealed on the grounds that the court had made a mistake in permitting the prosecution to impeach him with his felony Cannabis conviction.

The case arose from allegations that the defendant knowingly caused harm to a woman by choking her after previously being convicted of a Domestic Battery. In addition to applying pressure to her throat, it was alleged that he stopped her normal breathing or blood circulation, and he knowingly stopped her from calling the police by taking her phone.

Before trial, the defendant tried to stop the State from impeaching him by showing he had a prior Domestic Battery conviction and a felony Marijuana conviction. At the hearing, the prosecution argued that the Marijuana conviction could be admitted because the charge was not similar to the defendant’s current charges, and it had impeachment value because it was a crime against society.

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