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March 26, 2015

2015 Changes to Illinois Criminal Laws

by Law Offices of David L. Freidberg, P.C.

A number of changes and additions to Illinois’ criminal laws took effect on January 1. Some of the changes are procedural, while others modify or add crimes to the books. Here are some of the changes that will impact criminal defense work in Chicago.

“Skype” Search Warrants: Judges will now be allowed to authorize search warrants based on sworn testimony provided over electronic methods, such as Skype or FaceTime, that utilize both an audio and video component. The judge must be able to see and hear the officer or attorney requesting the search warrant in order to sign off on it. Defense attorneys will keep a close eye on how this new law works to determine if putting it into action violates a criminal defendant’s right against unreasonable search and seizure. The court is authorized under this new law to establish best practices and procedures, so there may be the opportunity for defense attorney concerns to be considered and made part of the process.

One possible upside for the issuance of these types of warrants is the potential for these proceedings to be recorded. This would be another tool for defense attorney’s to use at trial or on appeal to show that law enforcement exaggerated the evidence used to justify issuance of the warrant or the need for one to be issued in an emergency. Defense attorneys routinely review the information included in the warrant and the officer’s accompanying notes in support, but being able to see and hear the testimony given to the judge, and not just what was written in the warrant, could be extremely helpful.

Grooming: The current grooming law, which prohibits the use of the Internet to seduce or entice a child to commit a sex offense, has been expanded. Under the new law, a charge of grooming also includes the distribution of photographs depicting the child’s sex organs.

Controlled Substances: The drugs “25I-NBOMe,” “25B-NBOMe” and “25C-NBOMe”, which are marketed as an LSD substitute, are now included on the list of Schedule I controlled substances. The changes came after the drug was linked to at least 19 deaths across the country over a 16-month period.

Expungement and Sealing of Records: This law allows a person to petition the court and request that his criminal conviction for misdemeanor assault, aggravated assault, battery, or reckless conduct be sealed as soon as four years after the termination of the defendant’s sentence. The defendant must not have committed any crime since his sentence was completed.

Electronic monitoring. Under this new law, judges are permitted to order, as a condition of bail, a risk assessment evaluation and electronic monitoring through GPS for defendants charged with certain violent crimes, regardless of whether an order of protection has been issued against him.

Photo lineup procedures: The law makes extensive changes to how police conduct photographic lineups, which should hopefully minimize law enforcement bias in the process and help cut down on eyewitness misidentification.

December 10, 2014

What is a Grand Jury and How Does it Work?

by Law Offices of David L. Freidberg, P.C.

The recent announcement that the grand jury chose not to indict the Ferguson, Missouri police officer who shot and killed unarmed teenager Michael Brown this past summer on charges of first-degree murder or manslaughter raised many questions, the most troubling for many being, “Why shouldn’t Officer Wilson at least stand trial?”

Purpose of Chicago Grand Jury

It is often said that “a grand jury can indict a ham sandwich.” And while this is not true, the statement comes from the fact that the burden of proof the prosecution must meet in a grand jury is different than the burden of proof the prosecution must meet in a criminal trial. At trial, the prosecution must prove the defendant’s guilt beyond a reasonable doubt.

But in order for a grand jury to hand down an indictment, the prosecution must only prove that there is probable cause to show that the defendant committed the charged offense. If the grand jury finds that there is insufficient evidence that the defendant did not commit the crime, it will vote not to indict, and all charges against the defendant are dismissed.

The purpose of the grand jury, then, is not to decide the guilt or innocence of a criminal defendant, although arguably, the fact that they found insufficient evidence to send the defendant to trial is tantamount to their profession of his innocence.

How the Grand Jury Works

The grand jury is similar to a jury in a criminal trial in that the jurors review evidence provided by the prosecutor and hear witness testimony. But in many ways it is quite different. Because the purpose of the proceeding is to determine if there is sufficient evidence to put the defendant on trial, and not to determine his guilt or innocence, only the prosecution puts on a case; the jurors never hear from the defense attorney.

In fact, a defense attorney is not present at the grand jury and, unless the prosecution plans to call him as a witness, neither is the defendant. Grand jury proceedings are secret, and the testimony, evidence and witnesses presented in the proceedings are also kept secret, unless ordered released by the judge or released by the prosecutor as part of his duties. Grand jury proceedings are so secret, that in some cases the person being indicted does not even know that he is the subject of a grand jury until the indictment is handed down.

All evidence, regardless of whether it will ultimately be admitted in court, is presented to the grand jury. The regular rules of evidence that apply to criminal trials are inapplicable in grand juries. And again, because the purpose of the grand jury is only to determine if there is enough evidence to support the idea that the defendant committed the charged crime, and not to prove his guilt or innocence, it does not matter whether the evidence was obtained in violation of the Fourth Amendment prohibition against unlawful search and seizures or any other law. Any evidence the prosecution has against the defendant is presented.

In addition to the evidence presented by the prosecution, the grand jury may consider information called to its attention by the court or learned in its investigation of other matters. The grand jury may also request permission to conduct its own investigation, including the right to subpoena witnesses or other documents.

April 20, 2014

Right to Speedy Trial in Chicago Criminal Cases

by Law Offices of David L. Freidberg, P.C.

Illinois criminal defendants have a guaranteed right to a speedy trial under Illinois state law. Depending on the circumstances, a defendant must be brought to trial within 120 to 160 days following his arrest. There are also situations that can stop the speedy trial clock from running. If you’ve been arrested and charged with any crime in Illinois, you need an experienced criminal defense attorney who understands the time limits, the exceptions, and when it is to your benefit to invoke (or not invoke) the right.

Illinois Right to Speedy Trial in Criminal Cases

Under Section 725 ILCS 5/103-5, Illinois guarantees criminal defendants a speedy trial. The time limit varies depending on the circumstances. The defendant must make a formal written request with the court to invoke his speedy trial rights.

If the defendant is in jail, the state has 120 days from the date he was taken into custody to bring the case to trial. If the defendant is out on bail or released on his own recognizance, the state has 160 days to bring the case to trial. There must also be one continuous period of incarceration. For example, if you are released from jail after 30 days because you made bail, but are then re-arrested for violating a condition of bail, the clock starts over.

If the prosecution does not bring the case to trial within the above time limits, the defendant must be released from custody or released from his bail requirements.

Exceptions to the Illinois Right to Speedy Trial

The right to a speedy trial is an affirmative right. This means that in order for the clock to start running, you must invoke the right. The clock will stop running if you request a continuance for any reason, including an evaluation to determine your fitness for trial. This is why an experienced criminal attorney will usually try to have a continuance based on the State’s motion or order of court.

The prosecution may request a 60-day extension if, after exercising due diligence, it is unable to obtain material evidence and there are reasonable grounds to believe that granting a continuance will allow the prosecution to obtain that evidence.

In 2013 the Illinois Supreme Court ruled that the 60-day extension provision of the law can be given more than once. The ruling came in the case People v. Lacy. The defendant, Elijah Lacy was arrested and charged with murder in the 2007 death of a Carbondale, Illinois woman. Police arrested Lacy in 2009, and he was brought to trial in 2010 after Lacy requested several continuances.

The prosecution requested a continuance because the eyewitness, who lived in Missouri, was unable to travel due to a high risk pregnancy and would be unavailable for the trial date. The court granted the continuance and rescheduled the trial.

The prosecution requested a second continuance when its key police witnesses was deployed to Afghanistan and would be unavailable to testify. Lacy’s attorneys then filed a motion for the case to be dismissed because the two continuances exceeded the 60-day extension allowed under law. The trial court granted Lacy’s motion, and the appellate court agreed.

The Illinois Supreme Court reversed the dismissal and ruled that the law allows the prosecution a 60-day continuance for each piece of material evidence. In Lacy’s case, that meant that the prosecution was entitled to one 60-day continuance until the eyewitness would be able to testify, and a second 60-day continuance to allow the police witness to return from Afghanistan.

There are pros and cons of invoking the right. It may be to your advantage to allow the prosecution to take as much time as necessary, especially if the case against you is based largely on eyewitness testimony. As time goes on, memory fades, increasing the chance that the eyewitness will forget key details or change his testimony when compared to his initial statement. An experienced criminal defense attorney like David L. Freidberg can take advantage of these inconsistencies to help get your case dismissed or the charges dropped. Continue reading