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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.

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.

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.

 

The United States Supreme Court heard oral arguments on a lawsuit brought by lawyers, journalists and civil rights organizations challenging the 2008 Foreign Intelligence Surveillance Act which allows for the government to eavesdrop on telephone and email communications between people in the United states and foreign countries without a warrant.  The plaintiffs claim that the fear that they may be intercepted causes them to adopt costly measures to avoid having their communications intercepted.  The Supreme Court is not considering the legality of this law. Rather, they are considering whether the plaintiff’s in this case have the legal standing to even bring such a lawsuit.  The warrant-less wiretapping program was put into effect by President Bush after the terrorist attacks on 9/11 without any Congressional authority. The program ended in 2007 but was reinstated by Congress in 2008.  The government is claiming that the plaintiffs cannot show that they have personally been harmed by the measure or by any wiretapping.  The plaintiffs argue that nobody could ever know if they are being wiretapped and that some of the people being listened in to would be foreign nationals who would not be allowed to contest the law anyway.  The decision in this case is not going to resolve this issue anyway.  The court is not considering the legality of this law at this time and even if it were to ever have to consider the legality of the law, the government could always claim that any challenge to the law would involve exposing state secrets.

James Dimeas is an award winning criminal defense attorney and author with more than 24 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.

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The United States Supreme Court has thrown out the life sentence of a Wyoming teen convicted of first degree murder and sentenced to life in prison.  The case involves Bear Cloud, who was 16 years old when he was convicted of first degree murder and sentenced to straight life in prison, while two other teens who were also convicted of the murder were sentenced to life in prison without the possibility of parole.  Wyoming law mandates a sentence of life or life without parole for juvenile offenders convicted of murder.  Earlier this year, the United States Supreme Court ruled that state laws which mandate life sentences for juveniles are unconstitutional. But while such laws are unconstitutional the Supreme Court did not invalidate these laws. The Court only required that the laws provide that courts need to consider alternatives to life in prison before imposing sentences to juveniles.  The Supreme Court sent Bear Cloud’s case back to the Wyoming Supreme Court so it could consider what further steps should be taken.  The most likely outcome is that the case will be sent back to the trial court to conduct a hearing to determine the level of maturity of the defendant, intelligence and potential for rehabilitation.  The trial court must consider the potential for rehabilitation.

James Dimeas is an award winning criminal defense attorney and author with more than 24 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.

Evidence is mounting that the federal government is working hard to find new ways to track us.  This effort is not receiving the attention that it deserves. The federal government is constantly developing new technologies that will become more and more intrusive and will continue to eat away at our privacy. This article will discuss some of the new technologies that are on the way.

The FBI has just started rolling out its Next Generation system. The program costs $1 billion and will involve a gigantic national database of mug shots, DNA samples, iris (eye) scans, voice records and fingerprints collected from more than 100 million people that is designed to identify and arrest criminals.  The federal government has already secured the cooperation of many state agencies, and by the time its fully deployed in 2014 will have the photographs of over 12 million faces.  The problem is that they intend not only to obtain the photographs of known criminals but to obtain photographs of any and all citizens. They want to be able to take a picture of a crowd and be able to identify all the people in that crowd, not just criminals. They will be able to capture photographs of people on social media sites or from any other public source.  This will make it possible to track people’s movements and who they associate with.

The website, Wikileaks, recently released some secret documents about a new system called, TrapWire. TrapWire is a technology that collects data from individuals and then uses a complex computer program to predict criminal behavior.  The Wikileaks release involved emails from Stratfor, a private security firm, in which they discussed this new software in detail.  So basically they input all this data about an individual into this computer program and it predicts what they will do.  According to the emails released by Wikileaks this program is already being used in New York, Los Angeles, Seattle, London, some Canadian cities and by some privately owed Las Vegas Casinos.  If they are able to develop a computer program that will be able to predict an individual’s propensity to commit criminal acts, it will not be hard to tweak the computer program to be able to predict the religious beliefs of a person, their political beliefs, their values, their character, etc.  Highly troubling stuff.

The Kane County Sheriff has announced that he will be revising his policy about bringing food into the Kane County Courthouse after discussing the matter with officials of the American Diabetes Association.  The policy change will allow flexibility for people with a medical condition while keeping food and drink out of the courtrooms.  The policy change was brought about by an incident which occurred in May of this year.  A complaining witness who had been subpoenaed to come to court to testify was stopped by courthouse security when he tried to bring a granola bar and 3 sodas into the courthouse.  This young man tried to explain to security that he was a diabetic and had to test his blood at least 12 times a day and was insulin dependent.  He was not allowed to bring the items into the courthouse even though he told security that if he had a diabetic reaction he probably would not have enough time to make it to the cafeteria or his car.  The man contacted the attorneys for the American Diabetes Association who contacted the Kane County Sheriff seeking an explanation.  The report that they have received a letter in response from the Sheriff indicating that he is working on changing the policy to allow people with diabetes and other medical conditions to be able to bring food into the courthouse.

James Dimeas is an award winning criminal defense attorney and author with more than 24 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.

Now that the Supreme Court has ruled that the police must obtain a warrant before attaching a GPS device to a citizen’s vehicle, the Justice Department has let it be known that the new preferred method for spying on people is to track a person’s location via their cell phone.  The issue was raised earlier this month when a congressional panel held hearings to discuss the need to conduct such cell phone tracking without the need to obtain a warrant.  The Justice Department argued that requiring a warrant before tracking a persons location via their cell phone would “cripple” law enforcement.  It turns out that America’s cell phone companies are cooperating with law enforcement and handing over this information without hesitation.  They have even set up special divisions and even prepared manuals that assist law enforcement in obtaining tracking information.  Your cell phone company is selling you out without us knowing.  At the hearing, the representative from the Justice Department told the panel that they recommend that warrants be obtained to access this information whenever possible but that it depends on each case and varies from state to state and from courthouse to courthouse.  Proponents of restrictions argue that Congress needs to get involved to pass a uniform set of rules and requirements that would be applied equally throughout the country.

James Dimeas is an award winning criminal defense attorney and author with more than 24 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.