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An unidentified person allegedly stole jewelry from inside a home during a Skokie estate sale last week. The case is interesting because it raises a number of different issues that the prosecution will need to overcome if an arrest is made and charges filed, as well as many possible defense strategies to explore.

Proving Skokie Theft CaseDSCF4929

At the outset, the prosecution faces an uphill battle in obtaining a positive identification of the alleged thief. In reference to the estate sale, individuals were no doubt going in and out of the home. Any forensic evidence found at the scene – such as fingerprints, clothing fibers, or other DNA evidence – cannot provide a smoking gun. Here, the suspect was “invited” into the home for purposes of the sale. Absent any forensic evidence tying the suspect to the scene, an eyewitness identification is strongly in doubt. With the family talking to dozens of people while trying to make sales, without any distinguishing characteristics on the suspect’s part, it will be difficult for eyewitnesses to testify with certainty that the suspect was present in the home.

Even if caught – for example, if a local pawn shop reports purchasing the stolen jewelry – it is difficult to prove beyond a reasonable doubt that the suspect was the person who stole the jewelry. Without a positive identification or any forensic evidence tying him to the scene, there are any number of possible reasons the suspect could have come into possession of the jewelry. He could have purchased it from a different pawn shop, received it as a gift, or even found it discarded in a trash can or on the side of the road.

Skokie Defense of Theft

From the defense side, there are several issues to explore regarding the estate sale itself that could help cast doubt on the suspect’s guilt:

  • Was there a “free” table at the sale? If there was, it raises the possibility that another attendee, or even a family member, mistakenly laid the jewelry on that table, leading the suspect to believe it was free for the taking;
  • How many people were in charge of handling transactions? If there was more than one person handling sales, it is possible that the suspect actually paid for the item. Lack of communication between salespeople could cause the sale to not be properly recorded, thus leading to a misunderstanding that the item was stolen;
  • Do any of the people running the estate sale carry a criminal history of theft or similar crimes themselves? It is possible one of the salespeople simply pocketed the money from the sale and reported it as stolen to cover his tracks;
  • Is there animosity among the family members set to inherit the estate? Proceeds from the estate sale are deposited into the estate and used to pay estate bills before they are ultimately distributed to the heirs. If there was a disagreement amongst family members as to who should receive the allegedly stolen piece of jewelry, a decision of the majority of the heirs would win. A disgruntled family member who wanted the jewelry may have pocketed it and concocted the theft story to deflect blame.

Each of these scenarios would cast serious doubt on the defendant’s guilt, and are all avenues that David L. Freidberg would explore in working to get the charges dropped or the case dismissed.  Continue reading

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The recent indictment of Minnesota Viking’s running back Adrian Peterson on charges of child abuse, which stemmed from his admission that he disciplined his young son with a switch, is raising questions over just what constitutes corporal punishment, and when it crosses the line from discipline to child abuse.

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Under Illinois law, it is considered child abuse if a parent “inflicts excessive corporal punishment” upon his or her child. The use of the qualifier “excessive” makes clear that a Chicago parent is allowed to use corporal punishment when disciplining his or her child. But the law fails to define what pushes the corporal punishment, which may include spanking, hitting, pinching, slapping, or any other type of action with the intent of inflicting pain, from permissible to excessive.

The Illinois courts have dealt with the issue of corporal punishment at various times, consistently ruling that “parental rights of discipline are limited by a standard of reasonableness.” But they cite no examples of what constitutes unreasonableness.

How, then, is a parent to know whether discipline of a child will result in criminal charges? Unfortunately, they cannot, since there is no clear cut answer. What is reasonable today may be unreasonable tomorrow, depending on society’s changing views of corporal punishment. It can even vary depending on the type of punishment inflicted, the region, and the terms that are used to describe the punishment.

Cases such as these highlight the importance of obtaining experienced legal counsel. The sole basis of whether a parent’s physical discipline of his or her child qualifies as excessive under the law comes down to a reasonableness standard.

Defending against child abuse charges that stem from corporal punishment requires the ability to not only thoroughly examine all the circumstances to make a case for reasonableness, but also the ability to make a jury understand why the parent believed his or her method of discipline was reasonable. It also requires an examination of medical evidence regarding any alleged injuries, as well as photographs taken following the incident.

Whether the punishment is reasonable will rest in part on the severity of the discipline and whether it caused any injury. That requires a careful examination of any photographic evidence and testimony from qualified medical experts on the lasting impact, if any, from the discipline.

Photographs taken immediately after the incident may show red marks or other visible evidence of the physical discipline. But any type of physical contact can leave an imprint. Instead, the real question is whether that imprint remained, or whether it faded away shortly after the incident occurred. Physical marks that disappear shortly after the discipline would disprove excessive use of corporal punishment. If there are no follow-up photographs, medical testimony from David L. Freidberg’s team of medical experts could help jurors understand that an “injury” that looks bad in a poorly taken photograph actually faded away in an hour or two.

Eyewitness testimony is also important in disproving the excessive nature of the discipline. For example, if the child was running around playing like normal shortly after the punishment, as opposed to limping, that would go toward disproving that the punishment was excessive.  Continue reading

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An Illinois Court of Appeals reversed the conviction of an Illinois man on charges of criminal sexual abuse, finding that evidence of other sex crimes allegedly perpetrated by the defendant was inadmissible. Without that evidence, there was an insufficient basis for upholding the conviction.

People v. Puccini

The defendant, Leonard Puccini, was charged with criminal sexual abuse after allegedly spanking the bare bottom of a 12-year-old boy for his own sexual gratification. At trial, the court admitted evidence in the form of witness testimony from two older bofile000704919536ys (now adults), both of whom alleged that Puccini sexually abused them in the 1990s (though he had not pulled their pants down and spanked them).

Illinois law allows evidence of prior charges or accusations of criminal sexual abuse to be admitted at trial to show the defendant’s propensity for committing sex crimes. Evidence of other alleged bad acts is admissible only if the probative value of the evidence – meaning that the evidence will assist the jury in its determination – outweighs any potentially negative effect. The fear is that evidence of prior bad acts will sway the jury to render a guilty verdict based not on the evidence in the case, but because it paints a picture of the defendant as an overall bad person. Just because a defendant committed a prior similar act does not mean he committed the act for which he is currently charged, which is why the court must carefully consider whether the evidence will unfairly sway the jury to find the defendant guilty.

When weighing the probative value of evidence, the court must consider:

  • The proximity in time to the charged offense;
  • The degree of similarity to the charged offense; and
  • Other relevant facts and circumstances.

On appeal, Puccini’s attorney argued that the negative effect of the two witnesses’ testimony outweighed any potential benefit. No charges were brought against Puccini for the prior alleged crimes, and they allegedly occurred almost 20 years prior. In addition, the acts were not similar. The witnesses testified that, following the abuse, which allegedly involved Puccini touching their private parts, he then masturbated, thus fulfilling the “for his own sexual gratification” element of sexual abuse.

The testimony of the young boy in the present case was inconsistent on whether Puccini masturbated following the spanking. Statements he made to the police differed from what he said at trial, and his testimony that Puccini went into another room to sexually gratify himself after the spanking was not credible. The boy testified he only heard “tapping noises” in another room, and although he initially told police he thought Puccini had an erection, he admitted that he never turned around to look at Puccini after the spanking.

The Appellate Court noted that the trial court, in rendering its decision, relied solely on the testimony of the two adult males in determining Puccini’s actions were for his own sexual gratification. Yet the earlier crimes, if committed, were worse than the crime for which Puccini was currently on trial, causing the Appellate Court to rule that the prejudicial effect of the witnesses’ testimony outweighed any probative value.

Without the testimony of the two witnesses, the Appellate Court found that there was not enough evidence to support Puccini’s conviction. In this instance, the defendant cannot be retried – double jeopardy prohibits a defendant from being tried again in order for the prosecution to provide evidence it failed to produce in the first trial.  Continue reading

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A Chicago woman was arrested for her role in the alleged sexual assault of a Chicago man at gunpoint. The defendant and her friend picked up the man in their car as he walked down a Chicago street and proceeded to assault him.

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Sexual assault of a man can – and does – happen. Rape is traditionally an underreported crime, even more so for men than women. But the most recent statistics indicate that 38 percent of sexual assaults occur against men by women. Other studies estimate that 1 in 10 adult males will be the victim of a sexual assault.

The word “rape” typically elicits an image of a man forcing a woman to engage in unwanted sexual intercourse. But Illinois sexual assault laws are gender neutral. Criminal sexual assault requires penetration by any object. If the woman causes the male to penetrate her, whether forcibly or through threat of force (for example, at gunpoint, which was alleged in this case), or if she uses any object to penetrate his anus (including fingers), that constitutes penetration under the law.

Criminal sexual abuse requires an act of sexual conduct by force or threat of force (again, at gunpoint would qualify). “Sexual conduct” includes touching of sexual parts. In this case, forcing the alleged victim to fondle the woman’s breasts constitutes an act of sexual conduct that could result in a charge of sexual abuse.

Defense Against Sexual Assault

Defending a charge of sexual assault against a male is no different than defending a charge of sexual assault against a female. In the above case, as in the majority of sexual assault cases, there were no eyewitnesses other than the three parties involved. Therefore, the case comes down to “he said-she said.”

Some sexual assault claims are fabricated in an attempt to retaliate against the alleged offender for some perceived transgression, or else stem from a sense of regret that the sexual conduct occurred. This is especially true in cases that begin consensually. In such cases, a careful review of the circumstances leading up to the alleged crime is necessary to determine whether the crime was fabricated as an attempt to save face, or to retaliate against the alleged perpetrator.

In the case mentioned above, where the victim willingly entered the defendant’s vehicle, it is possible the man originally intended to purchase sex. An investigation into his criminal background could reveal prior arrests and/or charges of solicitation or attempted solicitation. This, in turn, could support a defense that, after the parties engaged in consensual sex, the defendant committed an attempted robbery, and the man retaliated by filing the sexual assault claim.  Continue reading

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Everybody knows a defendant can invoke a claim of self-defense to defend against charges of murder, manslaughter, or other violent crimes that result in injury or death to another person. What you may not know is that a claim of imperfect self-defense can reduce a murder charge from first-degree to second-degree.

Illinois Imperfect Self-DefensID-10082528e

Under Illinois law, a homicide qualifies as second-degree murder if the defendant can show he acted under a sudden and intense passion due to provocation by the victim, or he actually, but unreasonably, believed he was acting in self-defense. This is know as imperfect self-defense. Imperfect self-defense is an affirmative defense, which means the defendant carries the burden of proof. If the defendant can successfully prove one of those factors existed at the commission of the crime, then the jury may find the defendant guilty of second-degree murder, rather than first-degree murder.

A defendant cannot be charged with attempted second-degree murder; he can only be found guilty of second-degree murder by proving the existence of one of the two mitigating factors. A charge of second-degree murder includes all of the elements of first degree murder: the defendant must have intentionally planned to kill the victim, or he knew there was a strong probability his actions would result in causing the victim great bodily harm or death. It is then up to the defendant to convince the jury he was either in a blind rage due to the victim’s actions (also known as the “heat of passion” defense), or he believed, however unreasonably, that his life was in jeopardy.

Here is one example of how imperfect self-defense would apply. An individual suffering from a mental illness that causes paranoia or delusions may plead imperfect self-defense if he actually, though unreasonably, believed the victim was about to cause him great bodily harm or death. In that case, the defendant believed his use of force against the victim was justified, even if, from an objective viewpoint, it was not.

Imperfect self-defense may also arise in cases of murder that occurred in the heat of passion. For example, a wife who walks in on her husband and his lover flies into a rage, grabs a gun in her nightstand drawer, and shoots them both dead. The wife knew her actions were likely to cause the death of her husband and his lover (she may even have intended it), but she was in such a blind rage due to his betrayal that she could not control herself. In this case, the defense could argue the charge be reduced to second-degree murder.  Continue reading

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A Chicago man was charged with aggravated battery with a firearm, reckless discharge of a firearm and vehicular invasion following a shooting at a Cook County Preserve soccer field on Labor Day that injured one other man. The alleged shooter then tried to flee the scene by stealing a vehicle.

Chicago Defense to AggraOLYMPUS DIGITAL CAMERAvated Discharge of a Firearm

A person commits the Illinois crime of aggravated discharge of a firearm if he “discharges a firearm in the direction of another person.” In this case, we would first challenge the validity of the defendant’s identification as the shooter, looking first at whether gunpowder residue was found on the defendant’s hands or clothes, or whether his fingerprints were found on the weapon.

We would also challenge any eyewitness descriptions of the shooter. There were approximately 2,000 people present at the soccer game, given the chaos that ensued after the shots were fired, eyewitnesses would have difficulty accurately describing the shooter, let alone determining who fired the weapon. Another important point concerns whether the eyewitness descriptions of the shooter match the defendant. If the witness descriptions do not match, it would indicate a different person was responsible for the gun’s discharge.

Assuming eyewitnesses could positively identify the defendant as the individual who discharged the firearm, or if gunpowder residue shows the defendant fired the gun, a successful defense would require a thorough examination of the weapon to determine whether discharge was due to a malfunction. If the weapon discharged due to malfunction, the defendant cannot be charged or convicted of reckless discharge. David L. Freidberg’s team of forensic experts would examine all of the evidence surrounding discharge of the weapon to determine whether another explanation exists for its discharging.

Chicago Defense to Aggravated Battery

A person commits the Illinois charge of aggravated battery based on use of a firearm if he discharges that firearm and causes injury to another person. In this case, we would employ many of the same defenses as in the aggravated discharge of a firearm: challenge the identification of the shooter, as well as any evidence indicating he was actually the shooter. Forensic experts would thoroughly examine the defendant for evidence of gunpowder residue on his hands or clothes (or review police reports on these findings) to determine if the prosecution can prove, beyond a reasonable doubt, the defendant fired the weapon.

If the evidence proves the defendant did in fact fire the weapon, we would again examine whether there is another reason the weapon discharged, other than through the defendant’s intent. A charge of aggravated battery based on use of a firearm requires the defendant “knowingly” discharge the weapon. If the weapon malfunctioned, he did not knowingly discharge the weapon.  Continue reading

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A Chicago police sergeant was relieved of his duties after being charged with one count each of predatory criminal sexual assault and aggravated criminal sexual abuse of a 9-year-old girl. The alleged victim is the daughter of the sergeant’s co-worker, and defense attorneys claim that the nature of the relationship between the accused and the alleged victim’s mother will make clear why allegations were made.

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False Allegations of Child Sex Abuse

The defendant’s attorneys have not yet elaborated on the nature of their client’s relationship with the victim’s mother. We can assume, however, that the defense will attempt to prove that she is, in some way, a jilted lover – that the two either had a prior romantic relationship that the defendant ended, or that he previously rebuffed her advances – or a disgruntled employee, and is retaliating with false allegations of sexual abuse.

It may seem impossible that anyone would make false allegations of sexual assault as retaliation. Punishments for a sexual assault conviction are serious, involving lengthy prison sentences and sex offender registration requirements. Even the charges themselves, whether they are ultimately dropped or if the case ends in acquittal, carry a stigma that can forever damage the accused’s professional and personal reputation. Somebody would have to carry a huge grudge to falsely accuse another person of sexual assault.

Unfortunately, false allegations of sexual assault are not uncommon. They arise far too frequently in hotly contested child custody cases, as a way to ensure that custody is not awarded to the father. If the child is young, she is susceptible to being coached or having false memories of abuse planted. They will often repeat the false story because they want to please the mother (or whichever party is coaching them).

In a case of false allegations, there are two victims – the accused, and the child who is put in the middle. In these cases, the defense attorney must walk a fine line between zealously defending his client and not causing further harm to the child. In this particular case, there are two children who may have been coached – the alleged victim and her brother, who was the first to witness the alleged abuse and notify his mother.

In cases such as these, where there appears to be some type of bad blood between the accused and the child victim’s parent, it is imperative for the defense attorney to not only have a clear understanding of the relationship between the two adults, but to also explore the mother’s background to determine whether there is a pattern of false allegations of any kind against former lovers or co-workers.

An independent evaluation of the alleged victim by a child psychologist trained in treating not only victims of child sexual abuse, but also those who have been coached to make false allegations, is also vital, especially if the statement the alleged victim made to the authorities was done so in the presence of her mother. A review of the victim’s statement to police, along with a viewing of any tape recording made of the interview, is also necessary, in order to see if the mother was present and coached the child in any way.

Continue reading

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The Illinois Supreme Court recently upheld a Chicago man’s conviction on a charge of aggravated discharge of a firearm toward a police officer, despite the fact that the defendant did not fire the weapon and claims he was unaware the shooter was armed.

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Illinois Common Criminal Design Rule

In People v. Fernandez, Fernandez was convicted of a single charge of aggravated discharge of a firearm toward a police officer (he was initially charged with one count of burglary and two counts of aggravated discharge, but the trial court merged the three charges into a single charge). Fernandez and his friend drove to a church under the Dan Ryan Expressway, where the friend attempted to burglarize a vehicle. Fernandez’ friend was approached by a police officer and opened fire as Fernandez drove away.

Fernandez claimed he had no idea that his friend had a gun.

A Chicago resident commits the crime of aggravated discharge of a firearm toward a police officer if he “knowingly or intentionally” discharges a firearm in the direction of a police officer. If Fernandez did not fire the weapon, how, then, could his conviction have been upheld?

In a previous post I discussed the felony murder rule, which allows a defendant who commits a forcible felony to be charged with murder if the victim dies during the commission of the felony, even though the defendant did not cause the victim’s death. The theory behind the felony murder rule is that forcible felonies are inherently dangerous crimes, so the defendant should know there is high likelihood that the victim will be injured or killed.

The common design rule is the felony murder equivalent to non-forcible felonies. Under the common design rule, if two or more people are involved in a common design agreement, any acts committed by one party in furtherance of that common design “are considered to be the acts of all parties . . .and all are equally responsible for the consequences of those further acts.”

Fernandez argued that because he did not know that his friend was armed, he cannot be held responsible for aggravated discharge of a weapon toward a police officer, and because he did not know his companion planned to commit that crime. The court rejected this argument, stating that because Fernandez admitted that he intended to help his friend burglarize the vehicle (by knowingly driving him around town looking for vehicles to burglarize), he is equally responsible for his friend’s conduct. “Conduct”, the court stated, “encompasses any criminal act done in furtherance of the planned and intended act.” In this case, Fernandez’ companion discharged his weapon toward the police officer in furtherance of the burglary, i.e., in an attempt to evade arrest.

Therefore, under the common design rule, just as in the felony murder rule, intent is irrelevant. What is relevant is whether the defendant intended to commit the underlying crime. If the prosecution can prove that, then all parties to the crime are responsible for the actions of the others.

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An elderly woman was a victim of an armed robbery while walking down a Skokie street earlier this month. The perpetrator reportedly approached the woman, showed what appeared to be a gun and demanded the victim’s bag before riding away on his bicycle.

Disproving Suspect Identification in Skokie Aggravated Robbery Charge

There are a number of elements the prosecution must prove in order to prove beyond a reasonable doubt that a defendant is guilty of a Skokie armed robbery charge. For the sake of this discussion, we will assume that the prosecution would be able to prove that the defendant knowingly took property that did not belong to him, and that he made the victim believe that he was carrying a gun (an essential element in proving aggravated robbery)

In all criminal cases, a skilled criminal defense attorney will work diligently to obtain an outright acquittal or dismissal of charges prior to prosecution. Based on the facts of this case, discrediting the victim’s positive identification of her assailant may result in the prosecution dismissing the case or, if brought to trial, the jury finding the defendant not guilty beyond a reasonable doubt.

Eyewitness testimony is often the only evidence the police and prosecution have to support an arrest and conviction, yet due to the fact that victims are attempting to recall details of a traumatic event, it is often unreliable. An arrest made based on this particular victim’s identification would be extremely suspect, and an experienced attorney would argue to the prosecution, the judge in pre-trial motions, and the jury, if the case went to trial, why this victim’s identification is unreliable and the case warrants a finding of not guilty.

The victim described the assailant as a 6-foot-tall, thin, dark-complexioned male between the ages of 18-20. He was wearing a black baseball hat, sunglasses and, according to the police report, “possibly” a white shirt and white pants.

This is an extremely vague description – the victim mentions no identifying marks, such as scars, tattoos, or other unique features that could distinguish the assailant from any other tall, thin black man. He was wearing sunglasses and a baseball hat, further obscuring his face. This will make it difficult for the victim to make a positive identification.

On top of that, the victim was unsure if the assailant was wearing white pants and a white shirt. This uncertainty throws into doubt her ability to provide an accurate description of the assailant, and thus makes any future identification of him suspect.

An adept criminal defense lawyer would argue all these points at trial to discredit the victim’s identification. In addition, he would review the method of identification – whether an in-person or photographic lineup – to ensure that the victim was provided only with a selection of men fitting the assailant’s description, and not men of varying builds and ages, or displaying any other identifying characteristics. He would also review photographs or recordings made of the lineup (or, if retained once the arrest is made, participate) to determine whether the police may have somehow led the victim to choose the suspect from the lineup.

Skokie Armed Robbery Attorney Continue reading

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A Buffalo Grove woman reported being awoken in her bed at 4 in the morning to a strange man straddling her in what police are calling an attempted sexual assault.  The woman allegedly fought the man off, and he escaped through a patio door. No arrests have yet to be made.

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Defense Against Illinois Attempted Sexual Assault

While there is currently no suspect in the case and no charges have been filed, this case is an excellent example of many issues that arise in home invasion and sexual assault cases, and illustrates the importance of hiring an experienced Chicago sex crimes attorney. An acquittal in a case like this depends on the criminal defense attorney’s ability to show the jury how the prosecution’s evidence does not rise to the level of reasonable doubt.

Chicago sexual assault attorney David L. Freidberg has more than 17 years of experience handling all types of sex crimes cases, and knows what it takes to win an acquittal or achieve a reduction in charges. Issues that David L. Freidberg and his team of forensic experts would examine in an attempt to pick apart the prosecution’s case include:

Identification of suspect. The woman was awakened from a deep sleep at 4 in the morning. Groggy from sleep and seeing the alleged assailant in the dark make any identification from a police lineup questionable, as she only had a brief, darkened view of him. Her description of him to the police was extremely generic, with no real identifying characteristics that could distinguish him from any other white male of similar age and build.

Lack of forced entry. The suspect allegedly escaped through an open patio door; there were seemingly no signs of forced entry. The lack of forced entry raises doubts that this was a home invasion. Perhaps the alleged victim had invited the man in to her home earlier that evening, and then changed her mind and kicked him out because she has a boyfriend, fiancé or husband and felt guilty or got caught. Claiming home invasion and attempted sexual assault was a means to avoid their anger.

Earlier home invasion in the neighborhood. Police reported that a similar home invasion (minus the attempted sexual assault) occurred a month ago in the same condominium complex. It is possible that this was the work of the same individual, and perhaps he was upping his game. Or, going along with the scenario that the alleged victim was trying to save face, it could be that she was aware of the prior home invasion and tacked that on to her story of attempted sexual assault, thinking it would make her story sound more believable.

Lack of physical evidence. Because there was no sexual assault, there is likely no DNA evidence that can tie any future suspect to the attack. Even if a DNA sample can link the suspect, the presence of DNA in the form of semen only proves that sexual intercourse happened. It does not prove the sex was non-consensual.

David L. Freidberg would thoroughly examine the evidence to see if these and any other issues could be raised to cast doubt on the victim’s story and the prosecution’s ability to prove it beyond a reasonable doubt.  Continue reading

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