Articles Posted in News Updates

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.

UUWA decision this week out of the Court of Appeals of the Sixth Circuit has added fuel to a new front to the 2nd Amendment debate.  Under federal law, certain groups, or classes of people, are barred from owning a firearm. Those groups include convicted felons, fugitives and people with a prior history of domestic batteries.  The case decided this week in the Sixth Circuit deals with a provision in the law which bars people who have been committed to a mental institution from owning a firearm.  The law allows an individual to appeal for relief from the prohibitions imposed by this law to the Attorney General of the United States. The Attorney General has delegated the authority to investigate such petitions to the Director of the Bureau of Alcohol Tobacco and Firearms.   This appeal process is called the “relief from disabilities program.”  The law is pretty detailed about what an individual is required to provide in such a petition to the director of the ATF.  The law requires that the petitioner provide copies of the court order mandating commitment to a mental institution, and all other medical records having anything to do with the person’s mental condition along with letters of recommendation from at least three people along with a written consent allowing the Attorney General to obtain any medical records. The law then sets out in detail what the Director of the ATF is supposed to do when it comes to making a decision as to whether to grant relief from this law.  However, in 1992 Congress defunded the relief from disabilities program.  The defunding of this program has continued since then.  In 1998 Congress authorized federal grants to help states pay for determining which individuals may own a gun and to help states pay to provide this information to the federal government.  However, in order for a state to qualify for these federal funds, each state has to show the federal government that they have an appeal process similar to the relief from disabilities program which gives people who are barred from owning a gun the right to an appeal which allows their case to be considered for relief from the state’s prohibition.  About half of the states have established such relief processes.  Michigan is one of the states that has not.  This is where this case comes from.

Seventy three year old Clifford Charles Tyler had been involuntarily confined to a mental institution by a Michigan Court in 1986 because he was suicidal.  Tyler had been served with divorce papers by his wife who had been cheating on him.  The opinion details in great length the seriousness of the mental issues that Tyler was dealing with and the extensive steps that were taken to treat him.  In 1999 Tyler remarried and in 2012 his psychologist reported that he has fully recovered from his mental condition and that he can no longer detect any mental illness.

In 2011 Tyler attempted to purchase a gun but was denied the right to do so because his name showed up on an FBI data base as someone who had previously been committed to a mental institution.  He appealed this determination by the FBI but his appeal was denied.  Tyler was informed that because Michigan has not established a relief process, there’s nothing that the federal government can do for him.

MarijuanaOn July 27 we reported that the DEA was considering reclassifying marijuana from a Class 1 Drug to something less.  Advocates for the legalization of marijuana were looking at this possibility as an important step to the possible legalization of marijuana.  On Wednesday the DEA made it’s decision public, and the decision did not make marijuana legalization advocates happy.  The DEA decided to keep marijuana in Class 1, which is the most serious classification of illegal drugs.  But what is especially troubling was the reason given by the DEA for denying the application to remove marijuana from the Class 1 category.  The DEA found that there is no accepted medical benefit for the use of marijuana and that it is highly vulnerable to abuse.  The DEA found that marijuana is not a safe and effective medicine.  This decision flies in the face of 42 states, and the District of Columbia, which allow for some form of medical marijuana use.

Today, sources are reporting that as early as today, the Obama Administration will issue new regulations which will make it easier for researchers to obtain the marijuana needed to conduct medical research. Currently, marijuana grown at the University of Mississippi has been the only source of medical marijuana available to medical researchers.  Currently, in order to obtain permission from the federal government to grow marijuana for medical research purposes, the process is so restrictive that it could take years to obtain it and is virtually impossible to get.  The new regulations will make it much easier to obtain permission to grow a supply of research grade marijuana.  The details are unclear but people who have seen the regulations believe that these changes could signal a major step towards the eventual legalization of marijuana.

Recently, Illinois has joined a growing group of states that are moving towards a more accepting treatment of marijuana.  Illinois allows for the use of Medical Marijuana.  The Illinois Legislature has accepted that there are medical benefits to the use of marijuana and they have set up a highly regulated process by which people who suffer from certain medical conditions can legally buy, possess and use medical marijuana as long as they have a valid prescription and obtain permission from the State of Illinois.  While the Illinois medical marijuana program is one of the most strict in the country, it is the product of a long and difficult fight in Springfield that took many twists and turns.

Stingray Cell TowerOn Friday, Illinois Governor Bruce Rauner signed a bill into law which requires law enforcement officials to obtain a warrant before deploying a stingray device to intercept a person’s cell phone communications to determine their location.

A stingray device is basically a cell phone simulator which intercepts the transmission from cell phones without anyone’s knowledge or consent.  In some cases the stingray can intercept actual phone calls and text messages.  The stingray tower will fool the cell phone into thinking it is communicating with the cell phone carrier’s cell phone tower when it is actually communicating with a tower that is being run and monitored by law enforcement agents.  The stingray tower doesn’t just target one device.  It will intercept the cell phone transmission of all the cell phones in a particular location.  Unknown to anyone, law enforcement officials are listening to the conversations and intercepting text messages and other data communications.  Law enforcement agencies have been using stingray towers for several years without any scrutiny.  A few years ago in a federal drug case in California, federal agents claimed that they had received a tip from a confidential informant about the drug dealing activity of a defendant charged with dealing drugs.  During the discovery phase, prosecutors mistakenly turned over documents to the defense which revealed the use of these stingray devices.  Before this case, nobody had ever heard of such devices.   The federal government sought to block the defense from obtaining any discovery about these devices claiming that national security would be compromised.  The Court eventually ordered the government to turn over the stingray discovery to the defense but ultimately admitted the evidence obtained by the stingray device.  In response to this case, the State of California passed legislation requiring that the police obtain a warrant before deploying a stingray. Several states, such as Washington, Virginia, Minnesota and Utah joined California and enacted a similar warrant requirement.  Last year, the Department of Homeland Security and the Justice Department imposed rules which require that federal agents obtain a warrant before deploying a stingray.

Last month, for the first time, a federal judge, in a drug case, suppressed evidence that had been obtained by a stingray that had been used without a warrant.  U.S. Drug Enforcement agents had used a stingray to locate a cell phone that had been used in a drug investigation.  The agents used the stingray to track the cell phone to the Defendant’s apartment.  U.S. District Judge William Pauley ruled that “absent a search warrant, the government may not turn a citizen’s cell phone into a tracking device.”  The Judge suppressed all of the evidence obtained by the use of the stingray device.  This marks the first time that any court has suppressed any evidence obtained by the use of a stingray.

Kane CountyAs part of the 2017 budget process, the Kane County Board held a hearing in which the Kane County Public Defender, Kelli Childress, asked for more money to hire 2 more attorneys for her office.  Childress testified that the cost to add 2 attorneys will be $72,000 a year.  In the hearing, Childress claimed that the attorneys in her office have a higher average caseload per attorney than any other neighboring county.  She presented the board with statistics which show that attorneys in her office in Kane County are only able to spend less than 3 hours on each misdemeanor case they are handling.  She said that the high average caseload along with a lack of investigative resources raises questions about the quality of the legal defense services that her office can provide indigent criminal defendants.  She went on to further state that the lack of resources could cause her attorneys to put pressure on their clients to plead guilty and avoid fighting their cases.  This lack of resources assigns a lower priority to poor people than to wealthy people.  Her comments caused a concerned response from the Kane County Board President Chris Lauzen.  Lauzen started questioning Childress about whether her comments were opening the door to legal liability for the County for claims of wrongful convictions.  Imagine if someone was suing the Kane County Public Defender’s office for botching a criminal case and using Childress’s comments at the Board Hearing to prove that her office doesn’t have the resources to provide adequate legal representation in criminal cases.  Lauzen asked Childress if there were wrongful convictions in Kane County and Childress answered that she did not know.  Lauzen was not happy with that answer.  Lauzen continued questioning Childress to make sure she was not making some sort of admission that could be used against Kane County in future litigation and Childress obliged.  She clarified that she didn’t know and wasn’t an expert in such matters but that her office needs more assistant public defenders to stay ahead of that danger.  Give credit to Lauzen for spotting the potential legal implications of Childress’s statements even though Lauzen is not an attorney.

While I am in no position to question Ms. Childress’s statistics regarding the 3 hours that each attorney in her office is able to spend on each misdemeanor, I find it hard to believe that that they are worse off than any other neighboring county.  I find it hard to believe that any Public Defender in any busy metropolitan area is able to spend more than 3 hours working on a misdemeanor case.  The quality of legal services provided to the poor is a huge problem that has never received the attention that it deserves.  It is simply wrong to deny equal justice to people simply based on their economic resources.  Denying justice to poor people diminishes our criminal justice system and puts the entire criminal justice system in jeopardy.  The Kane County Board should not be looking to just do enough to avoid legal liability.  Why not hold hearings to determine what the Public Defenders Office needs to provide the acceptable amount of legal assistance a criminal defendant needs for us to be proud of our criminal justice system?  It’s not like criminals will be more likely to choose to commit crimes in Kane County and take the risk of getting arrested and be criminally prosecuted if the County Board provides adequate funding for the Pubic Defenders Office.

The Board has not decided what they will do with Childress’s request and will continue to consider their 2017 budget.

JudgeWe are being inundated with news stories about Donald Trump claiming that a Federal Judge of Mexican heritage presiding over a fraud case involving him should recuse himself from hearing his case because of his ethnic background.  This story is dominating the news and sparked a partisan debate over when a judge should recuse himself. Well, the United States Supreme Court just decided a case involving when a Judge should recuse himself.  In 1986, Ronald Castille was Philadelphia’s District Attorney.  Terrance Williams and a friend, both 18 years old, had been charged with murdering Amos Norwood with a tire iron.  The Philadelphia District Attorney’s Office was considering whether to proceed with the Death Penalty against Williams.  A subordinate of Castille recommended that they proceed with the Death Penalty against Williams and Castille signed off on doing just that.  Williams was eventually convicted of Murder and sentenced to death.  Later on Castille ran for a seat on the Pennsylvania Supreme Court and while he declined to take a public position on the death penalty he claimed to have sent 45 people to death row when he was the Philadelphia District Attorney.  Williams happened to be the first the first person sentenced to death under his tenure as Philadelphia District Attorney. In 2012 Williams filed an appeal claiming prosecutorial misconduct by the office that Castille had once led. Williams claimed that evidence had been withheld from his attorneys which would have supported his claim that the victim had abused young boys, which supported his claim that the victim had abused him.  Williams filed a motion requesting that Castille recuse himself because he was now sitting on the Pennsylvania Supreme Court which would be deciding his appeal.  Castille denied the petition to recuse himself.  A lower court granted Williams’s request, and two weeks before he retired. Castille joined a unanimous Pennsylvania Supreme Court which overturned the lower court decision and reinstated Williams’s death sentence.  Castille subsequently stated that he was simply acting in an administrative capacity in the case when he was the District Attorney and didn’t try the case.

Williams appealed Castille’s denial of his request that he recuse himself, and last Thursday, in a 5 to 3 decision, the United States Supreme Court agreed with Williams that Castille should not have taken part in the decision. In the majority opinion authored by Justice Anthony Kennedy, the Court stated that “Chief Justice Castille’s significant, personal involvement in a critical decision in Williams’s case gave an unacceptable risk of actual bias.”  While there are no specific rules governing when a judge should recuse themselves, it seems like the appearance of impropriety is enough to require that a judge recuse himself.  The Court set forth an objective standard.  The appearance of impropriety is significant in this case because Castille was leading the Philadelphia District Attorney’s Office when the decision to seek the death penalty against Williams was made. Castille had a significant personal involvement in Williams’s case.  While the entire Pennsylvania Supreme Court agreed with Castille’s decision, the Supreme Court did not think Castille should put them in a position of having to inquire what impact his opinion had in the decision making process.  The Supreme Court ordered the Pennsylvania Supreme Court to rehear the appeal.

James Dimeas is an award winning 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.

Robbery ChargesThis week the United States Supreme Court agreed to hear a Minnesota DUI case that will further help define the parameters of the 4th Amendment.  The case involves a statute in Minnesota which makes it a crime to refuse to take a breathalyzer test when requested by the police.  In 2012 police were called to a boat launch where a car was stuck while trying to to take a boat out of a lake. They confronted 3 men. all of which smelled of alcohol but all 3 denied being the driver.  One man was in his underwear and was holding the car keys.  The man was arrested and taken to the police station.  He was asked to take a breathalyzer test and refused.  He was charged with refusing to take a breathalyzer test based on a Minnesota statute which makes it a crime to refuse to take a breathalyzer test when requested to take one by a police officer.  12 other states have similar laws.  Illinois is not one of those states.  It’s not as if Illinois does not punish drivers who refuse to submit to a breathalyzer test.  Illinois imposes an administrative penalty which involves suspension of a driver’s license for a refusal to submit to a breathalyzer test.  The Minnesota law does not require a warrant only a lawful arrest with probable cause to believe that the person was driving the vehicle while intoxicated.  The difference between Illinois and Minnesota is that Minnesota imposes a criminal penalty on the refusal to submit to a breathalyzer test while Illinois does not.

At the very center of the case is the question about how far can the right to search extend when someone is arrested.  In other words, when someone is arrested, does the state’s right to search extend to their blood, breath and urine or does this type of search require a higher level of protection?  Was it right to criminalize this defendant’s assertion of his 4th Amendment protections when he refused to blow into a machine at the police station?  These are all interesting questions which the United States Supreme will answer soon.

Oral arguments are scheduled for April 30 and a decision should be released this summer.

StingrayIn an interesting case out of Florida, the public is getting detailed information about the secretive stingray fake cell phone tower which is being used by law enforcement officials to track particular cell phones.  Up until now, we have had general information about how these devices work.  However, a transcript released in a Florida case has provided us with the most detailed description of how this device works. On September 13, 2008 a Tallahassee woman was raped and her purse, which contained her Verizon cell phone, was stolen.  Detectives contacted Verizon and obtained real time ping information from Verizon.  That information gave the police general information about where that phone was located but the police needed detailed location information.  The thinking was that if they found the phone, they would find the rapist. The police obtained the unique IMSI identifier of the victim’s phone and started cruising the streets of the general area in which Verizon’s real time ping data suggested the phone was located.  The stingray device scans all the cell phones in an area and tries to identify a particular phone through the phone’s unique IMSI number. Once it identifies the phone it forces that particular phone to transmit data at full strength to the stingray tower, which is a fake cell phone tower, greatly depleting the battery of the phone.  This allows them to pinpoint the exact location of the cell phone.  Just like a cell phone registers with a carrier’s cell phone tower, the stingray device forces the phone to register with the stingray tower.  This allows the police to pinpoint the exact location of the cell phone.  The stingray device was able to determine that the cell phone was located in a particular apartment building but could not tell the police the exact apartment in the building.  Officers then went door to door with a hand held stingray device and stood outside each door holding the device.  The officers located the phone inside apartment number 251, knocked on the door, and when the door was opened stuck a foot in the door and entered the apartment.  The police conducted a “protective sweep” of the apartment and forced everyone to wait until the police were able to obtain a search warrant allowing them to search the apartment.  The search resulted in the recovery of the purse and cell phone leading the police to make an arrest.  The defendant challenged the police action based on a lack of probable cause. The trial court denied the motion ruling that an “exigent circumstances” exception to the probable cause requirement of the 4th Amendment applied to the case because of the risk of the destruction of evidence.  However, the Court of Appeals disagreed with the trial court and overturned the denial of the motion and ordered a new trial.

The testimony regarding the use of the stingray device was testimony given at the trial.  This is the first time this level of detail about stingray has ever been made public.  The officer providing the testimony also stated that he had used this device “200 or more times” and that the device had been “100% percent” accurate.  After this news became public, the vice president of the Florida ACLU sent a Freedom of Information request to the local police requesting all the documentation regarding the use of the stingray device.  After communicating with the police officer who had custody of this information that he would be allowing the ACLU vice president access to the documents, the door was suddenly shut closed.  The ACLU was informed that the officer had been deputized by the United States Marshall’s Office and since he was now a federal law enforcement officer a state Freedom of Information request did not apply to him.  The ACLU then filed a an emergency motion asking a Florida court to order the release of the requested information. It now turns out that apparently the requested information has been moved hundreds of miles away further thwarting the ACLU’s effort to obtain the requested documents.  There is clearly a frantic effort by state and federal officials to do everything they can to keep this information secret.  It will be interesting to see if the courts step in and stop the government from taking deliberate acts to thwart the public’s right to know to what extent the government will go to track us.

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.

Illinois Administrative Hearings and Crminal CasesIn an interesting story, a Massachusetts woman was arrested by the police and charged with illegal wiretapping after she was caught secretly recording her own arrest. Under Massachusetts law, it is illegal to record the police unless if it’s in a public place and only if the police know of the recording.  In this case the police were called to a building for a tenant who was loud and causing a disturbance. The police encountered this woman and arrested her. As they were arresting her they discovered that she had placed her phone in her purse and it was recording the arrest.  After the cell phone was discovered the woman admitted that she placed it in her purse to record her arrest.  In 2011 a court in Massachusetts who filmed someone else’s arrest in public had her constitutional rights violated because it was obvious to the police that they were being filmed.

Before you criticize Massachusetts, Illinois had a similar law on the books until March 20, 2014, when the Illinois Supreme Court struck down the law as being unconstitutional.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients against criminal charges.  If you are facing criminal charges 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.

WiretapFor the first time ever, federal prosecutors have disclosed that they intend to use evidence obtained through a wireless wiretap of a criminal defendant that they intend to use at trial. The disclosure of such evidence allows the attorneys for the defendant to file a motion in court to challenge the introduction of the evidence at trial.  This sets up a potential legal challenge to wireless wiretaps that could make it all the way up to the United States Supreme Court.  The case involves Jamshid Muhtorov who is charged with providing material support to the Islamic Jihad Union, a terrorist organization based in Uzbekistan.  Muhtorov is accused of travelling abroad and joined this organization.  How the disclosure came to be public is interesting.  In June, Solicitor General Donald Verrilli, discovered that defendants in criminal cases had not been informed that communications they had were intercepted by authorities.  This was a big problem because last year, in a case before the United States Supreme Court, Verrilli successfully argued that a case filed by a group of Plaintiff’s who were challenging these warrant-less wiretaps should be dismissed because they lacked standing since they were unable to prove that they had been listened to.  Apparently Verrilli had been misinformed about what the federal government was doing.  When he confronted the people who had misinformed him they thought that it only mattered if actual evidence was derived from the warrant-less wiretaps.  This information touched off an intense debate in the Justice Department which led to the decision to disclose any and all wireless wiretaps to criminal defendants.

This case can have wide ranging implications.  For one thing the legal arguments and challenges could make their way to the Supreme Court.  Second, its possible that if it turns out that such information was not disclosed during the discovery process in previous cases, it could lead to the reopening of past cases.

We will be following this, and other cases, dealing with warrant-less wiretaps as they work their way through the court system.