Chicago Criminal Lawyer Blog

November 7, 2014

Chicago Man Charged with Murder While Out on Bond for Sexual Assault

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

A Chicago man out on bond for a sexual assault charge was arrested recently for an unrelated murder. The defendant, who is accused of raping three girls last year along with eight other men, allegedly shot two men on Chicago’s west side; one of the men died at the scene, while the other suffered a gunshot wound to the arm.

Chicago Defense of Unrelated Crimes

This case is a criminal defense attorney’s nightmare – a client, out on bond, gets arrested for committing a second crime. And in this case, the second charge is worse than the first. But it does raise a variety of possible defense tactics, whether it is the same attorney representing the defendant on both charges, or if the defendant has one attorney for the sexual assault charge and one for the murder charge.

Of course, the typical defense against both crimes would be present here. Defense against the sexual assault charge would include:

Mistaken identity;
Lack of DNA evidence tying the defendant to the sexual assault;
Consensual sex, if DNA evidence is present;
The defendant was forced to participate in the sexual assault by the other participants, under threat of great bodily harm (committing a crime to prevent injury is not a true defense, but may result in a lesser sentence due to mitigating circumstances), or;
The victims fabricated the story in retaliation for some unknown slight, or because they were later embarrassed to have consented to sex group sex.

Defense against the murder charge would include:

Mistaken identity;
The defendant was not the one who fired the gun (this would require ballistics analysis by a team of forensic experts); or
The defendant fired in self-defense (if it can be proven he was the one who fired the gun).

But, assuming the prosecution has enough evidence to take both cases to trial, the two pending cases give the criminal defense attorney leverage in negotiations to enter into a plea agreement or to have the charges reduced.

The defendant is one of nine men allegedly involved in the 2013 rape of three women. In a gang rape, it is likely that one of the men was the ring leader; there may be one or more men who have committed prior sexual assaults that the police have not linked them too. If the defendant can help the prosecution bolster its case against other men involved in the rape, or if he has knowledge of any unsolved sexual assaults any of the defendants may have been involved in, the defense attorney may be able to strike a deal with the prosecution for a reduced sentence or a reduction in charges in either the murder case, sexual assault case, or both.

Likewise, the criminal defense attorney can leverage the defendant’s testimony in the murder case to seek a reduced sentence in either the sexual assault case, the murder case, or both. If the co-defendant in the murder case was actually the one who pulled the trigger, and the defendant is willing to testify to that, thus allowing the prosecution to gain a conviction on heightened charges, the prosecution may be willing to strike a deal.

It is always the goal of any criminal defense attorney to achieve an outright dismissal of charges, or to obtain an acquittal in court, for his client. But when the evidence shows that the defendant is likely to be convicted, an experienced criminal defense attorney knows when to use any leverage available to help his client win a reduction in charges or a reduced sentence.

November 5, 2014

Cook County Correctional Officer Arrested in Undercover Sting

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

A Cook County correctional officer was charged with theft for allegedly purchasing a watch he knew was stolen property. The arrest was the result of a joint operation by the Cook County Sheriff’s Office and the Federal Bureau of Investigation, part of the Sheriff’s Office’s continued effort to cut down on corruption and officer misconduct at the Cook County Jail.

Chicago Theft Defense

A Chicago theft crime occurs if a person “obtains control over stolen property knowing that the property was stolen, or under such circumstances as he or she would reasonably believe that the property was stolen.”

Whether control over the stolen property was “knowing” is a major requirement of the crime and, if the prosecution cannot prove beyond a reasonable doubt that the defendant knew the property was stolen, the defendant cannot be convicted, even if the property was stolen. So in cases of theft, the primary defense would be that the defendant did not know, nor was it reasonable for him to know, that the property was stolen.

In this case, the defendant allegedly received information from a prison inmate (who was working with the Sheriff’s Office and FBI as part of the sting) that he could purchase stolen property from a third party outside the prison. However, unless the inmate was wired, it would come down to the word of a prison inmate – who presumably was offered some type of incentive to participate, whether it was a reduced sentence or privileges within the prison – versus the corrections officer regarding whether the prison inmate told the corrections officer the property was stolen.

It is true that the defendant was unwise in taking the inmate’s advice on where to get a good deal on a watch. But bad judgment does not mean the defendant knew the property was stolen. Perhaps he thought the inmate was telling him about a great deal on a watch in exchange for privileges or some other reward.

Even if the inmate was wired, and the recordings would prove that the defendant knew the property was stolen, an argument could be made that the defendant was acting out an unauthorized sting of his own – that his plan was to check out the warehouse the inmate directed him to, see if the property was stolen, and then report the theft ring to the authorities, perhaps hoping that the bust would gain him a promotion or some other accolades.

If, however, the facts show that the defendant did, in fact, know that the property was stolen when he purchased it, then defense would turn to getting the charges reduced and seeking a reduced sentence. The defendant was charged with a Class 3 felony, based on the fact that the watch he purchased had an approximately value of $1,200. In order to get the charges dropped to a class A misdemeanor, the defense would need to prove that the actual value of the watch was $500 or less.

There may also be a defense of entrapment, which I discussed in an earlier blog entry. A defendant is not guilty of the charged offense if he can prove that his conduct was incited or induced by an agent of a public officer. Here, the prison inmate was part of the sting operation at the direction of the Sheriff’s Office and FBI; therefore, he was acting as their agent. If the defendant can prove that the inmate’s behavior was so egregious that it would cause any reasonable person to have gone and purchased the property, then the defendant will be acquitted.

October 29, 2014

Illinois Freedom from Location Surveillance Law Now in Effect

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

A new law designed to protect Illinois residents from police officers using an individual’s cell phone tracking capability to determine their whereabouts passed the Illinois Legislature in August and went into effect immediately. The law, called the Freedom from Location Surveillance Act, was designed to prevent law enforcement from obtaining an individual’s location based on current or future data information without first obtaining a warrant.

Probable Cause to Obtain Location Based Information

Spurred, in part, by concerns over the revelation that the NSA was recording private citizen phone calls, the Location Surveillance Act prohibits law enforcement from obtaining certain location based information unless they can show probable cause that the individual whose location is sought has committed, is committing, or is about to commit a crime, or the location itself is evidence of a crime.

For purposes of the law, “location information” is any information obtained concerning the location of the device that is generated by the device being used (for example, a phone with GPS that automatically pinpoints your location once the device is turned on).

Any evidence obtained in violation of this law will be inadmissible in court as a violation of the defendant’s Fourth Amendment right against unlawful search and seizure.

There are, however, exceptions to the law. Police officers are not required to obtain a warrant prior to tracking location under the following circumstances (this is not an exhaustive list, but rather those related to potential criminal activity):

If location information is available to the general public, such as a Facebook, Instagram, Twitter or other social networking site, metadata attached to images and video, or by the individual’s IP address;
To obtain information from an electronic device attached to an individual as a condition of release, parole or probation;
To locate a missing person or track the location of a suspected child abduction;
If the situation involves clear and present danger of imminent death or great bodily harm to a kidnapping or hostage victim;
If information is necessary to protect law enforcement or person acting at their command; or
In an organized crime conspiracy.

If location information is obtained under one of the emergency exceptions, law enforcement must obtain a court order authorizing retrieval of the information within 72 hours of starting the location surveillance. If the order is not granted, or the application is not made, then surveillance must stop immediately, and any information already obtained is inadmissible.

Note that the law only prohibits law enforcement from using electronic information to determine your current or future location without a warrant. Police are able to obtain your past location information without first obtaining a warrant. This means that if the police suspect that you were involved in a crime – say, a robbery of a Fullerton Avenue gas station last Tuesday – they may use electronic data to determine if you were near the vicinity of the gas station at the time of the robbery, without first obtaining a warrant. Continue reading

October 27, 2014

Cook County Man Whose Rape Conviction Overturned Denied Innocence Certificate

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

In 1983, a Cook County jury convicted Stanley Wrice of rape and deviant sexual assault and sentenced him to 100 years in prison. Through the years Wrice claimed his innocence, saying that his confession was the result of police torture at the hands of detectives working under the command of former Police Commander John Burge, who has since been convicted on charges of abuse, perjury and obstruction of justice.

Wrice was released from prison in December 2013, after a judge threw out his conviction, finding that his confession had been the result of torture. Wrice had spent 31 years in prison.

Last week, a Cook County judge denied his request for an innocence certificate, ruling that Wrice had failed to prove his innocence by a preponderance of the evidence.

Proving Innocence of Chicago Crime

How could Wrice have had his conviction overturned due to a coerced confession, but be denied an innocence certificate? Because of the difference between actual innocence and innocence in the eyes of the law.

Dismissal of one piece of evidence does not necessarily mean acquittal. The court must determine whether there is a likelihood that, even with the evidence that was tossed out, the remaining evidence against the defendant supports the guilty verdict. If so, the conviction must stand.

That is what happened in Wrice’s case. There is no dispute that he was tortured at the hands of the police, or that his statement was made under duress as a result of that torture. But the court found that, even with the lack of a confession, there remained sufficient evidence of his guilt to deny issuance of the innocence certificate. That evidence included, strong circumstantial evidence, eyewitness testimony, and physical evidence recovered at the scene. The court’s ruling also stated that Wrice’s testimony that he was present in the house during the rape but had no idea what was going on defied common sense.

So despite the fact that Wrice’s conviction was tossed out in December based on the coerced confession, the court denied the innocence certificate, finding that he had failed to prove his innocence beyond a preponderance of the evidence.

Actual Innocence vs. Not Guilty

This case highlights the difference between actual innocence and a not guilty verdict. A defendant who is “actually innocent” is just that – innocent of the crime as charged. Whether it was a false accusation, a case of mistaken identity or police corruption, the defendant was arrested, charged and convicted for a crime he did not commit.

But “innocent in the eyes of the law” is different. A defendant can be found not guilty at trial, but that does not necessarily mean he is actually innocent of the crime as charged. A “not guilty” verdict in court does not mean that the court finds the defendant innocent. Instead, it means that the prosecution failed to meets its burden in proving that the defendant is guilty beyond a reasonable doubt. And the judge in this case ruled that even without the confession, there was sufficient evidence to support the defendant’s guilt. Continue reading

October 22, 2014

Elderly Woman Acquitted of Aggravated Assault of Chicago Police Officer

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

A 92-year-old woman was acquitted of aggravated assault against an off-duty Chicago police officer, but still faces two counts of misdemeanor battery in an incident that left her 86-year-old husband dead. The woman and the police officer’s wife were also shot.

The two couples were neighbors who had a longstanding dispute over what relatives and neighbors of the two couples described as petty differences – snow being dumped on each other’s sidewalks and littering on the lawns. On the day in question, the officer allegedly heard his wife and the defendant arguing, and came out to see the defendant throwing dirt over the fence at his wife and hitting her with a broom.

At some point, the defendant’s husband went back inside the home and returned with a gun, firing at the officer’s wife and hitting her in the chest and arm. It was then that the police officer returned fire, killing the husband and hitting the defendant in the arm.

Aggravated Assault of Chicago Police Officer

As I have discussed previously on this blog, an assault is committed if the defendant “knowingly places another person in reasonable apprehension of receiving a battery”. However, assault against a police officer is automatically aggravated assault. In this case, the officer and his wife claimed that the defendant committed aggravated assault because she allegedly reached for her husband’s gun after he had been shot.

A judge acquitted the defendant of aggravated assault, ruling that the prosecutor hadn’t provided enough evidence to support the charge. This was the right call based both on circumstances and the law.

First, circumstances. While the officer and his wife allege that the defendant reached for her husband’s gun after he’d been shot, the chaos that no doubt surrounded the shooting would have made their recollection of the incident suspect. While it is possible the defendant did reach for her husband’s gun – whether to retaliate or to protect herself from further gunshots – the more logical scenario is that she was reaching toward her husband to help him. And since he’d been holding the gun when he was shot, it was likely either in his hands or close to his body, which could have caused the officer and his wife to misconstrue her action. Because of these conflicting scenarios, it casts reasonable doubt on the defendant’s motives, thus necessitating her acquittal.

Now the law. Aggravated assault of a police officer occurs if the assault took place:

While the officer was performing official duties;
To prevent performance of official duties; or
In retaliation for performing official duties

In this case, the officer was not performing his official duties – he was off-duty. So even if the defendant had been reaching for her husband’s gun, the most she could have been charged with was simple assault, as the officer was not acting in any official capacity.

Chicago Battery Charge

The defendant was charged with battery for allegedly throwing dirt at her neighbor and hitting her with a broom. This may seem laughable – potential jail time for throwing dirt on somebody? A battery charge for hitting her neighbor with a broom? How hard could a 92-year-old woman actually hit somebody? Unfortunately for the defendant, the law makes no distinction for the extent of the injury. The slightest touch qualifies as a battery, even if it does not cause any physical damage.

But the prosecution must prove that the defendant did in fact strike the neighbor. If the dirt was thrown in the wife’s direction, but never hit her, or if the defendant simply waved the broom in the air, again not hitting her, the battery charge would have to be dismissed. Or if the wife committed a battery against the defendant first, there could be a claim of self-defense. Or the police officer and his wife could be exaggerating, or even fabricating, the battery claims, in an attempt to make themselves appear less blameworthy. These avenues would all have to be explored pre-trial in an attempt to get the charges reduced or dismissed entirely. Continue reading

October 20, 2014

Former Chicago Police Commander Convicted of Torture Released from Prison

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

Former Chicago Police Commander Jon Burge was released from prison earlier this month, after serving a three and one-half year sentence for lying to federal investigators regarding alleged torture committed by himself and Chicago police officers under his command.

For more than 20 years, Burge and those under his command used electric shocks, beatings, burnings and other torturous tactics on more than 100 African-American criminal defendants on Chicago’s south side, often leading to false confessions and wrongful imprisonment.

Chicago Police Brutality

As a criminal defense attorney, I work with police officers on a daily basis. And while we are adversaries, the majority of the Chicago police officers I have interacted with throughout nearly two decades practicing criminal law are honorable men and women who perform their job honorably.

Unfortunately, as the Jon Burge case proves, not all police officers are to be trusted. Some are racist, or homophobic, or sexist, and are unable to separate their personal beliefs from their police work. This causes them to convict the suspect from the get go, or ignore evidence that could disprove the defendant’s guilt.

Others become complacent in their jobs, failing to follow proper police procedures. And still others let the power go to their head, and believe they are untouchable.

Many often decry about criminal defendants getting off on “technicalities”. These “technicalities” could lead to not guilty verdicts for a variety of reasons that have little to do with the actual issue of the defendant’s guilt or innocence, such as:

Failure of the police to read the defendant his Miranda rights (thus negating any later confession);
Lapses in the chain of command over evidence;
Improper procedures followed in police line-ups or eyewitness identification, or;
Defendant failing to be provided a speedy trial.

But officers like Burge and those under his command are one of the reason why these “technicalities” exist. The rules of criminal procedure are vital components of the criminal justice system, put in place to ensure that all defendants are afforded a fair hearing. They work to ensure that defendants are not the victims of police officers who rush to judgment. And they exist to minimize the chance that defendants who are truly innocent are sent to prison.

Sometimes, as in the case of many of the criminal defendants imprisoned based on false confessions elicited from Burge and those under his command, the system fails. Improper, often brutal, tactics are used to elicit false confessions, which are then used as a basis for conviction.

Most people believe that the police, who are sworn to serve and protect, would not engage in such barbaric practices. So when the defendant, as so many arrested and charged under Burge, claims they were tortured, or that their “confession” was given under duress, they are not believed. Yet false confessions are more common than you may think. Suspects often confess to crimes they did not commit, after (wrongly) being led to believe the police has evidence that incriminates them, thinking that they will receive a lesser sentence, or will be let go if they “cooperate” and tell the police what they want to hear.

The result of these false confessions? Innocent men and women spending decades behind bars for a crime they did not commit. That is why, if you are arrested for a crime, your first call should be to an attorney. An experienced criminal law attorney can put an end to barbaric police tactics and prevent you from making a false confession – before it’s too late. Continue reading

October 17, 2014

Chicago to Allow Post-Conviction DNA Testing

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

A law signed by Illinois Governor Pat Quinn in August allows Illinois prison inmates who pled guilty to murder, rape or any other crime where DNA evidence is present, to petition the court to have that evidence tested in an attempt to have their conviction overturned.

Illinois Post-Conviction DNA Testing Law

Prior to enactment of the amendment, Illinois inmates were only allowed to petition the court for post-conviction DNA or other forensic testing if they were found guilty at trial. Entering a guilty plea prior to a verdict being handed down made inmates ineligible for post-conviction DNA testing.

The amended law changes that. Under the law as amended, inmates who pled guilty prior to trial may petition the court if they can prove that:

Identity was the issue that led to their guilty plea; and
The evidence to be tested has remained in the chain of custody sufficient to establish that it has not been altered in anyway.

In order to file the petition, the DNA evidence must not have been available when the defendant entered his guilty plea, or new testing techniques must have been developed. In addition, the defendant must prove that the evidence

raise(s) a reasonable probability that the defendant would have been acquitted if the results. . .had been available prior to the defendant’s guilty plea. . .even though the results may not completely exonerate the defendant.

The change is one that is long overdue and provides necessary relief to those wrongfully convicted. According to the Bluhm Legal Clinic at Northwestern University School of Law, 165 Illinois inmates have been exonerated thanks to post-conviction testing of DNA and other forensic evidence. Many of these men and women were convicted based on eyewitness misidentification – according to the Innocence Project, nationwide 72% of inmates exonerated thanks to post-conviction DNA testing were convicted based on eyewitness testimony.

In addition to false convictions based on eyewitness misidentification, research has shown that many other innocent men and women plead guilty to crimes they did not commit. They do so for a variety of reasons, including:

police intimidation;
inhumane investigation tactics, such as withholding of food or sleep; or
fear of receiving a harsher sentence at the hands of an unfair or biased jury.

Others are the victims of unscrupulous tactics by the prosecution, such as withholding of evidence, or shoddy police investigative work, such as when the police fail to completely investigate a case because they feel they “got their man.”

Knowing that an untold number of innocent Illinois residents plead guilty to crimes they did not commit because of these and other reasons, Illinois State Senator Kwame Raoul sponsored the law specifically to address these inequities. Imprisonment for a crime they did not commit is bad enough – and not allowing them to have newly discovered DNA evidence tested to help exonerate them, based simply on the fact that they chose to plead guilty rather than face the uncertainty of trial, is piling injustice on top of injustice. Continue reading

October 14, 2014

Chicago Man Arrested in Cold Case Murder

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

A Chicago man was arrested last week in connection with the 2009 disappearance and murder of his girlfriend. The woman disappeared in April 2009 after last being seen with the defendant. Here whereabouts were unknown until recently, when a 911 call to the Dolton Police Department reported a body in Little Calumet River. An autopsy positively identified the victim and determined the cause of death to be strangulation.

Defense of Cold Case Murder

Cold case murders are challenging for the prosecution – the passage of time causes both evidence and witness memories to fade. But these challenges are positives to the defense, as it makes it easier to cast reasonable doubt on the defendant’s guilt. Defense in these types of cases would involve attacking the credibility of both witness statements and any forensic evidence found in the case.

In cases such as this, where the victim was last seen with the defendant, the prosecution will attempt to persuade the jury that this fact implicates the defendant in her disappearance. But with no other evidence linking the defendant to the victim, this eyewitness testimony has little value and does not prove that the defendant was responsible for her death. It only proves that they were seen together. The defendant and the victim may have parted ways after they were last seen together, with the victim later being attacked by an unknown third-party.

Cause of death would also need to be examined by forensic experts hired by the defense. The coroner listed cause of death as strangulation. If the death was recent, we would attempt to determine if any marks left on the victim’s neck were consistent with the size and shape of the defendant’s hands. The passage of time makes this type of evidence unlikely, but it is still something that the defense would need to examine.

If the body was deteriorated to the point that no skin was left to examine, forensic experts may be able to determine the amount of force that was needed for the victim to be strangled, and from there estimate the approximate height and weight of the murderer. This evidence may also help to exonerate the defendant.

Forensic examination may also show that there is a possibility that damage to the neck occurred following death. Perhaps the victim was not a victim of murder. Instead, she may have committed suicide by jumping into the river, and her body then became tangled in some type of debris that could have caused injuries consistent with strangulation. This evidence would also exonerate the victim.

DNA evidence in this case would not be indicative of the defendant’s guilt. The two were dating, so one would expect to find his DNA on her. But if DNA of any unknown party was found on the victim, those persons would need to be identified in order to determine whether they could have been responsible for her death.

The defense would also look into whether there was anybody with cause to harm the victim. Did she – or perhaps the defendant – have a bitter ex-partner? Could she have been involved in drugs or some other illicit activity that led to her death? Could the defendant or the victim’s family have been involved in these activities, and she was killed by to send them a message? The backgrounds of the victim, the defendant and her close family and friends would all need to be considered to determine whether there are any other possible suspects. Continue reading

October 9, 2014

Rules of Criminal Procedure

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

An Aurora man convicted of murder in 2009 will have a second chance at post-conviction relief after the Illinois Supreme Court ruled that a judge’s dismissal order was filed one day too late.

Illinois Post-Conviction Relief and People v. Perez

Ivan Perez was convicted of the 2004 murder of Francisco Reyes, and the conviction was upheld all the way to the Illinois Supreme Court. Perez then filed a pro-se (without representation) petition seeking post-conviction relief.

Post-conviction relief can be granted if the court finds evidence of a “substantial denial” of the defendant’s Constitutional rights in the proceedings that resulted in the conviction. Once the petition is filed, the trial court has 90 days to enter an order either granting or dismissing the petition.

The court wrote an order dismissing Perez’ petition as frivolous on the 90th day. However, the clerk of court did not file-stamp the order until the 91st day. Perez appealed the dismissal, arguing that it was not done within the 90-day period.

The Illinois Supreme Court agreed with Perez, and ruled that an order is “entered” not on the day the judge signs it, but the date it is file-stamped by the court clerk. Because of this, the trial court’s dismissal was not timely, and Perez is entitled to proceed to the second stage of post-conviction relief proceedings.

Illinois Rules of Criminal Procedure

The press and public often talk about criminals getting off on, or a conviction being reversed because of, a technicality. But these ‘technicalities’ are extremely important to ensure that every defendant gets a fair trial. This is especially important in cases where conviction can result in lengthy prison terms (Perez was sentenced to 60 years) or even death.

If you think of court as a game, then these technicalities are the rules by which the game is played. And legally, they are called just that – the rules of criminal procedure. Rules such as the defendant’s right to remain silent, his right to a speedy trial, the right to cross-examine witnesses, and even the prosecution’s burden of proving guilt beyond a reasonable doubt, are all in place to ensure that the game is played fairly.

Even with these rules, the key players try to cheat. Police fabricate evidence and use intimidation and harassment to obtain false confessions. Prosecutors withhold evidence that sheds doubt on the defendant’s guilt. Witnesses lie. Imagine how much more flagrant these behaviors would be if the rules of criminal procedure were not in place, and the players could act as they pleased.

The majority of the time, these so-called “technicalities” do not result in the defendant being acquitted or the charges against him being dismissed. Instead, as in Perez, the result is the defendant getting a second chance at the trial being done right. But it also means that the prosecution gets a second chance to gain a conviction as well. Most of the time, the outcome in the second trial is the same as the first – the defendant is acquitted and sentenced.

And sometimes, the defendant is innocent. Since 1998 the Center on Wrongful Convictions at Northwestern University School of Law has helped to exonerate 40 innocent men and women. These people spent time in prison for crimes they did not commit, many due to wrongdoing by law enforcement and prosecutors who believed they were right and didn’t want “the rules” to get in the way. These innocent men and women cannot get back the time they lost with their family and friends, or the time they lost building their career. They were traumatized not just by the false conviction and years of damage to their reputation, but by the horror of being in prison.

It is these innocent people that the rules of criminal procedure are in place to protect. Imagine how many more would be falsely imprisoned if the rules were not in place. Continue reading

October 7, 2014

Entrapment

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

A Cook County inmate was charged with solicitation of murder for hire after allegedly trying to hire a hitman to murder a witness in his upcoming trial on charges of criminal damage to property, telephone harassment, and criminal trespass. The hitman was, in fact, an undercover officer.

Chicago Solicitation of Murder

A person commits the crime of solicitation of murder if he “commands, encourages, or requests” another person to commit the offense of first degree murder. The defendant allegedly offered to pay the undercover officer $3,000 – $4,000 to have the witness killed.

A solicitation charge means that the underlying crime was never committed. Instead, the defendant was merely making the first step toward committing it. So determining whether the solicitation actually took place requires a thorough examination of the circumstances surrounding the commission of the alleged crime. Questions to be asked when crafting a defense to a charge of solicitation of murder include:

Whether the ‘hitman’ initiated the subject of solicitation with the defendant. If the hitman initiated the conversation, it would show that the defendant never considered the idea of murdering the witness until he was approached.
Whether conversations about the ‘hit’ were conducted in a public or private setting. If the conversations were in public, it makes it more likely that the defendant had no intention of following through, because there would be plenty of witnesses to his actions. Instead, he may have been engaging in talk to make himself look tough in jail, or wishful thinking.
Whether the defendant had the means or ability to pay the hitman. If he did not, it would tend to show that he once again was just fantasizing and did not intend for the hit to take place.
Whether the defendant ever said, “I want you to kill this witness.” Anything less than a specific statement of intent, such as, “It would really help my case if he died” or “God, I wish he were dead so he couldn’t testify!”, could be interpreted to be a case of wishful thinking.
Whether the defendant ever specifically requested that the witness be killed, or whether he expressed a general desire for him to “be taken care of.” This type of statement could be interpreted to mean that the defendant simply wanted someone to scare the witness out of testifying.

Chicago Entrapment Defense

In these types of cases, it may also be possible for the defendant to successfully argue that the police entrapped him. Entrapment is an affirmative defense, which means that the burden is on the defendant to prove that he was entrapped.

A defendant is not guilty of the charged offense if he can prove that his conduct was “incited or induced by a public officer or employee…for the purpose of obtaining evidence for the prosecution of that person.”

Proving entrapment requires more than simply providing evidence that the officer provided the defendant an opportunity to commit the crime. Courts assume that most citizens will be able to resist the temptation to break the law. Instead, entrapment requires that the officer engaged in such egregious behavior that a normal, law-abiding citizen would be enticed to commit the underlying crime.

For example, in a case such as this, it would not be enough for the defendant to prove that the officer approached him and brought up killing the witness. It may be enough, however, if the officer continually approached the defendant, despite repeated statements that he did not want the witness killed. This would show that the defendant was initially unwilling to break the law, but caved after police badgering. Continue reading