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A former Chicago police chief is set to stand trial in late September on charges of felony theft of government property, misallocation of funds and official misconduct. The police chief, who pled not guilty to the charges in February 2013, is accused of stealing more than $140,000 from the city’s drug asset forfeiture fund.

Chicago Felony Theft Charge

Felony theft of Illinois government property occurs when the defendant obtains or exerts control over property in the custody of any law enforcement agency. Felony theft of government property is a serious crime that imposes harsher penalties than other theft categories – in this case, a Class X felony due to the amount of money allegedly stolen and the fact that it was stolen from a government agency. A Class X felony carries the potential for a minimum of six years in prison, with a maximum of 30 years.

The defense attorney recently filed a motion requesting that the prosecution provide more details on the intent element and on the transactions themselves. This is an important motion, as it deals with an essential element of the crime, and whether the defendant should have been charged with a lower class of felony.

Intent to Deprive

Felony theft is a specific intent crime, which means that in order to prove guilt, the prosecution must be able not only to prove that the defendant took the money knowing he was not entitled to it, but that he also intended to permanently deprive the rightful owner of the use of the property, or used it in such a manner that would deprive the rightful owner of the use of the property.

How does this work in terms of defense? Let’s assume that the prosecution can prove that the defendant knew he was not entitled to the money when he took it. The prosecutor still must prove that the defendant intended to permanently deprive the city of its right to the money. It may be possible, therefore, to make the argument that at the time the defendant took the money, he intended to repay it; that he simply had fallen on hard times, and was using it as a stopgap measure until he was able to obtain other income.

Class 1 v. Class X Felony Theft

The defense attorney also requested more information on the details of each interaction. In Illinois, theft from a government agency is a Class 1 felony if the value of the property stolen was $500 or less.

Although the total value of the money allegedly stolen by the defendant was $140,000, the law does not specifically state that the total value is cumulative. Meaning, if the amount allegedly stolen was taken in numerous increments of $500 or less, an argument could be made that each separate occurrence should be charged as Class 1, rather than a Class X, felony. This would result in a significant reduction in sentence if the defendant is found guilty – up to three years in prison for a Class 1 felony versus the potential 30-year sentence for a Class X felony.  Continue reading

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The Cook County Sheriff’s Office participated in the National Day of Johns Arrests July 17 – August 3, along with 28 other law enforcement agencies in 14 states. The sweep, which was created by the Cook County Sheriff’s Office in 2011, netted 14 men on charges of allegedly being involved in pimping, trafficking or promoting prostitution, while another 184 men were arrested and charged with attempted solicitation.

Chicago Solicitation of Prostitution Cases

Most cases of solicitation involve two consenting adults, neither of whom were kidnapped and forced into prostitution (known as sex trafficking), so it is generally a victimless crime. However, this is not a valid defense in court, because the law assumes that the prostitutes are vulnerable and that their circumstances – for example, a single mother with no other means of support – led them to accept payment for sex. Where leniency is often given to the prostitutes, it is not to the men arrested and charged with solicitation. And a conviction for solicitation is not a slap on the wrist – you face up to a year in jail and a $2,500, not to mention the social stigma.

Because of this automatic bias against those accused of soliciting sex, experienced defense counsel is vital in defending against charges of solicitation. Creating a defense requires examining the circumstances that led up to the arrest to determine whether the prosecution can prove that the defendant was, in fact, soliciting sex. Facts that would negate the prosecution’s claims and require the charges to be dropped or would lead to an acquittal in court may include:

  • Whether the defendant knew the woman was a prostitute (for example, if he thought he was just hitting on a stranger at the bar);
  • Whether any money exchanged hands. Even someone who sells sex for a living can decide to have sex with somebody for free simply because she finds him attractive;
  • Whether the defendant dropped all attempts to have sex with the woman once he realized she was a prostitute;
  • Whether the defendant was enticed or entrapped. These stings often result in overzealous, undercover police officers forcefully attempting to get the defendant to pay for sex in order to make an arrest; or
  • If the alleged solicitation occurred over the Internet, such as in response to a Craigslist ad, did the defendant actually intend to follow through; for example, perhaps he was engaging in some risqué flirting or indulging a fantasy, but never intended to meet the woman at the designated place and time.

If any of these factors are present, then there is a strong defense to be made that the charges should be dropped. Solicitation cases carry a social stigma even if the defendant is ultimately acquitted. Having the case tried in court opens up the possibility for it to be reported in the local newspaper, which can negatively impact your job and public reputation. Our goal in all solicitation cases is to get the charges dropped as quickly as possible to not only avoid potential jail time and fines, but to avoid possible damage to your reputation as well.  Continue reading

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A 15-year-old Chicago boy was charged in February with the murder of his friend, a 16-year-old Chicago boy, who was shot in the head during the commission of an armed robbery. But this case has a twist – the victim was killed by an off-duty police officer, who himself was the victim of an attempted armed robbery by the victim and his friend. So how can the boy be charged with murder when he did not pull the trigger? Because of a controversial law known as the felony murder rule.

Illinois Felony Murder Rule

A criminal defendant can be charged with first degree murder in Illinois if the victim was killed while the defendant was “attempting or committing a forcible felony other than second degree murder.” Forcible felonies include armed robbery, burglary, sexual assault, or any other violent felony.

Although the full statute states that “a person who kills an individual” is the one charged with first degree murder, under the proximate cause theory of felony murder, the defendant does not have to be the one who actually killed the victim. Instead, the defendant can be charged for the death because the death was so closely related to the commission of the underlying felony.

The felony murder rule is based, then, on the assumption that any person committing a forcible felony – such as armed robbery – should realize that one of the risks is that somebody, either the victim or one of the assailants, may be killed. It does not matter if the assailant had no intention of killing anybody. Maybe the weapon was brought along just to scare the victim. Perhaps, even, it was not loaded, so there was no possible way the assailant could kill the victim.

But under the felony murder rule, intent is irrelevant. The only thing that matters in proving felony murder is that the underlying crime was a forcible felony. This makes defending against the charge extremely difficult, since the prosecution does not need to prove intent for the first-degree murder charge to stick.

Self-defense is not a defense to a charge of felony murder. Self-defense is the justified use of force against an unjustified force. Since armed robbery is the unjustified use of force, a person charged with felony murder could not argue that he was protecting himself from the victim.

Defending against a felony murder charge is fact intensive and depends on the circumstances surrounding each case. It may be possible to defend against a felony murder charge if the facts show that the defendant abandoned the plan before it happened (for example, if in this case the defendant had fled the scene as soon as he realized his friend had a gun).

Or, if the underlying crime began as a non-forcible felony, it may be possible to argue that the defendant could not have known the underlying crime could lead to murder because it did not begin as a forcible felony (for example, if the defendant and his friend had been robbing a vacant car and were then approached by the owner, at which point it escalated to a forcible felony).

Because there are so few defenses to a charge of felony murder, and because they are all fact sensitive, it is extremely important that you speak with a criminal defense attorney immediately if you are being charged with felony murder. While intent regarding the murder is irrelevant, intent regarding commission of the underlying crime may be partially relevant, and it is important to discuss those facts with a criminal defense attorney who understands the felony murder rule prior to making any statements to the police. Continue reading

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A Chicago man was recently charged with attempted murder for allegedly stabbing another man in the chest. Based on the bare facts, it seems like a slam dunk case. The stabbing took place in a bar, in full-view of dozens of witnesses who, along with the victim and a third-party who was involved in the argument, can presumably identify the defendant as the suspect. But by examining all the facts surrounding the stabbing, a good criminal defense can be crafted that may result in outright acquittal or a reduction in charges.

Criminal Defense to Attempted Murder

In any attempted murder charge, the first step is to determine whether the defendant can plead the affirmative defense that he acted in self-defense. An affirmative defense means that the burden of proof is on the defendant (normally, the burden of proof in criminal cases is on the prosecution) to prove the facts that justify his defense. In a claim of self-defense, it is up to the defendant to prove that he was justified in using deadly force; it is not up to the prosecution to disprove that deadly force was justified (although most prosecutors will make that part of their case).

Under Illinois law, a defendant will be found to have justifiably used force and acted in self-defense if he can prove that he “reasonably believed” that force was necessary to defend himself or someone else against the victim’s use of force. However, force that is likely to cause death or great bodily harm – such as a stabbing in the chest – is justified only if the defendant reasonably believed that he was himself in danger of death or great bodily harm from the victim.

To prove a self-defense charge, a criminal defense attorney would examine all of the circumstances that led up to the stabbing, including statements by the victim, defendant and any eyewitnesses, to determine whether any of the facts would support a claim of self-defense. Facts that may support a self-defense claim may include:

  • Whether the victim made any threats to the defendant that would have made him reasonably believe that either he or his companion was in imminent danger;
  • Whether the victim had a weapon;
  • Whether the victim made any gestures that a reasonable person would have felt were of a threatening nature and indicative of a threat of bodily harm (such as reaching for a weapon);
  • Whether the defendant and the victim had a history that would have caused the defendant to have a reasonable belief of imminent harm; or
  • Whether the victim’s injuries were likely to cause death or great bodily harm, or if they were just minor wounds made to sound more deadly by describing them as “stab wounds to the chest.”

The presence of these or any other factor that would have caused a reasonable person to be placed in imminent fear of injury or death would result in a finding of self-defense, leading to an outright acquittal.

Chicago Aggravated Battery Charge

If, after a review of all the facts, it does not appear that a claim of self-defense can be sustained, a skilled defense attorney would seek a reduction of charges. In this case, an examination of the facts may show that while the defendant did in fact stab the victim, the charge should be aggravated battery, not attempted murder.

Aggravated battery occurs when the defendant inflicts great bodily harm to a third-party. The difference between aggravated battery and attempted murder is that in aggravated battery, the defendant did not intend to kill the victim; instead, he only intended to harm him or, perhaps, attempted only to scare him by brandishing the knife (which would be aggravated assault) and the stabbing was an accident. If an examination of the facts showed that the defendant never intended to kill the victim – or even that he never intended to stab him – then the charges could be reduced to aggravated battery, which involves much less prison time than a conviction on attempted murder.   Continue reading

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A Waukegan woman was sentenced to 24 months of probation and six months intermittent imprisonment, to be served via electronic monitoring and home confinement, for her role in the kidnapping, beating and sexual assault of another woman. The defendant helped her cousin, who was sentenced to 40 years in prison, kidnap his ex-girlfriend, but was not involved in the sexual assault or beating. The defendant was initially charged with aggravated kidnaping, but the charge was reduced to kidnaping due to her testimony against her cousin.

Chicago Plea Agreement

This is a case where the prosecution and judge made the right call, and highlights the importance of having an effective and experienced criminal defense attorney.

The defendant admitted to participating in the kidnapping, although she had no idea when she and her cousin stopped at the victim’s home that the kidnapping would happen. In the case of kidnapping, the fact that she was unaware of her cousin’s intentions is irrelevant. Under Illinois law, a kidnapping occurs when a person “knowingly…carries another from one place to another with intent secretly to confine that other person against his or her will.” Once the victim was placed in the defendant’s car and she drove off, she committed the act of kidnapping, because she knew she was transporting the victim to another location against her will.

The judge in the case admonished the defendant for failing to contact police once she realized what was going on. In this situation, it is probably safe to assume that since the defendant had no idea her cousin intended to kidnap the victim, she was shocked that he was capable of not only kidnapping, but the subsequent beating and repeated sexual assaults. She likely feared for her safety, which caused her to assist in kidnapping the victim and prevented her from reporting the sexual assault to police during the 21 hours the assault occurred.

While that fear was insufficient to get the charges against her completely dropped, it was a sufficient mitigating factor that, when combined with her willingness to cooperate with the prosecution and testify against her cousin, was enough to get the charges against her reduced.

An experienced criminal defense attorney knows that a jury trial is not always the wisest option. Sometimes the circumstances of the case, coupled with the willingness of the prosecution to negotiate, necessitate accepting a plea agreement. Accepting a plea agreement should not be considered defeat. Plea agreements, when properly structured through skillful negotiation by an experienced criminal defense attorney, not only save the defendant the stress and uncertainty of trial, but usually result in minimal prison time.

In this case, the defendant only served five months in prison following her arrest. Although home confinement and electronic monitoring is no fun, it is a better outcome than a conviction for aggravated kidnapping, which can add up to 25 years to the regular 18 – 30 months imprisonment handed down for kidnapping. Continue reading

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You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.

Thanks to the proliferation of television crime shows, you likely know what the above quotation is – the Miranda warnings, which every Chicago police officer is required to read prior to the arrest and interrogation of every criminal defendant. These rights are named after Miranda v. Arizona, the United States Supreme Court case that created the warnings, and failure to read a Chicago criminal defendant those rights, or questioning him after he has invoked his right to silence or requested a criminal defense attorney, may result in his statements being held inadmissible in a Chicago criminal court.

What you may not know is that there are circumstances where the Chicago police can question you without first reading the Miranda warnings. There are also circumstances where the police may question you even though they have read the rights. Statements you make in either of these situations may be admissible in court.

Illinois Police and Miranda Warnings Require Custody

 

Chicago police are required to read a criminal suspect the Miranda warnings when he is in custody. “In custody” means when the suspect is deprived of his freedom of movement in any significant way, or when the police officer’s actions indicate that the suspect is not free to leave.

How does this work in the real world?

Obviously, if you are placed in handcuffs on the street corner, or brought into a police interrogation room, you are in police custody and should be given the Miranda warnings.

But imagine you are walking down the street and a police officer stops you. He asks what you were doing standing on a deserted street corner, alone, for 10 minutes. You say you were waiting for a friend who never showed up. The officer thanks you for your time and tells you to have a nice day.

No problem there. No arrest was made, you made no statement to the officer, and you were free to walk away. Now what if, when the officer asks what you were doing, you panic and tell him that you were there to meet your dealer, who was going to give you drugs to sell for the week. These statements would be entirely admissible in court, even though you did not receive the Miranda warnings. There was no custodial situation, and no interrogation. The police officer simply asked you a question, and you unfortunately gave him a very guilty answer.

Now imagine that after the officer tells you to have a nice day, he asks if you have noticed any suspicious activity in the area. Have you seen any drug deals? Were you there trying to buy or sell drugs? Depending on the officer’s demeanor during these questions – whether he had his hand placed on a weapon or was in another threatening pose, how close he was to you, or whether his questions seemed accusatory – this could become a custodial situation. But chances are, without anything more, the court would not consider this a custodial situation, and any statements made to the officer would be admissible.

Now let’s say after you turn to walk away, the officer asks that you come sit in his squad car so he can ask you some questions. You politely decline, indicating that you have other things to do. The officer, however, insists. At this point, most people would no longer feel free to leave. This would be a custodial situation, even though no arrest has been made, and the police officer would be required to read you the Miranda warnings.

In any custodial situation, the police must read you your Miranda warnings. They are not required to read you these rights any time they approach you. The Miranda warnings are only required where your freedom of movement has been restricted to the point that a reasonable person would no longer feel free to leave. Any violation of the Miranda ruling will cause any statements made to the police to be kicked out of court.

Chicago Criminal Suspect Must Affirmatively Invoke Miranda Rights

Even if the police follow proper procedure and read you the Miranda warnings, they are still free to question you, unless you affirmatively invoke those rights.

What does that mean? It means that you must say, “I wish to remain silent”. Sitting there in silence – while something every arrestee should do – does not invoke the right to remain silent.

Failure to affirmatively invoke the right to remain silent means the police will continue to question you, hoping to wear you down and get you to confess. Once you say, “I wish to remain silent,” the police must stop all questioning. Invoking this right is so strong, the police may not even come back a few hours later and ask if you have changed your mind.  Continue reading

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The hit Netflix show “Orange is the New Black” is loosely based on the real-life story of Piper Kerman, who was charged with drug smuggling, money laundering and criminal conspiracy to import heroin. Kerman was sentenced by a Chicago federal judge to 15 months in a federal women’s prison.

Chicago Drug Conspiracy Crimes  pills-1213599-m

In Illinois drug conspiracy is defined as two or more people conspiring to distribute, possess or deliver a controlled substance. In addition, the conspirators must earn more than $500.

Tacking on a conspiracy charge to any underlying criminal charge increases the severity of the case, especially when the underlying charge is for a drug crime. For example, a conviction for possession with intent to distribute cocaine carries the possibility of 4 to 50 years in prison, depending on the amount intended for distribution. Tack on a conviction for drug conspiracy, which is a Class X felony, and you are facing a possible sentence of up to 60 years in prison, without the possibility of parole. All because you conspired with one or more people to distribute.

A drug conspiracy charge requires an aggressive defense. At minimum, the Law Offices of David L. Freidberg, P.C., will work to have the conspiracy charge dismissed, or gain an outright acquittal. To build a successful defense against a Chicago drug conspiracy charge, a skilled criminal defense attorney and a team of forensic experts will examine:

  • Statements made by co-conspirators incriminating you in the alleged conspiracy;
  • Whether co-conspirators were given immunity or promised reduced charges or sentences in exchange for their testimony;
  • Whether there was an actual co-conspirator, or was the other person (or persons) an undercover officer or a police informant;
  • Whether you ever did anything, by word or action, to renounce participation in the alleged conspiracy before the underlying drug crimes were committed;
  • Whether the prosecution can prove that you were actively involved in the conspiracy, and not merely aware of the details;
  • Whether any of the alleged co-conspirators’ statements were obtained in violation of the Miranda warnings;
  • Whether any evidence supporting the alleged conspiracy was illegally obtained; and
  • Whether the alleged conspiracy was actually formulated enough to allow the underlying drug crime to take place.

If a review of the evidence shows that it will be difficult to obtain an outright acquittal on the drug conspiracy charge, an attorney will work with the prosecution to enter into a plea agreement or to have the drug conspiracy charge dismissed in exchange for your cooperation. Negotiations with the prosecution to obtain leniency may include:

  • Your promise to testify against other co-conspirators;
  • Providing the prosecution with details pertaining to commission of the underlying crime, if it has not yet been committed;
  • Telling the prosecution the location of physical evidence that will strengthen their case against the co-conspirators; and
  • Providing the prosecution with the names of other co-conspirators whom the police have not yet discovered.

Continue reading

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The Illinois State Police issued emergency rules last week dealing with the Concealed Carry License Review Board’s (CCLRB) denial of concealed carry permits. The new rules were created after dozens of lawsuits and more than 200 petitions for review were filed by Illinois residents whose concealed carry permits were denied with no explanation.

Unfettered discretion over denials of concealed carry permits and a lack of transparency resulted in roughly 1,150 permits being denied. In Cook County alone, police have objected to 1,545 applications since January 2014, when the law went into effect.

Illinois Concealed Carry Law

Illinois became the last state to authorize concealed carry permits after a 2012 decision by the United States Court of Appeals for the 7th Circuit ruled that the state’s ban against carrying concealed weapons was unconstitutional. The concealed carry law, which went into effect January 1 2014, allows law enforcement agencies to object to a permit application if the agency has “reasonable suspicion that the applicant is a danger to himself or herself or others, or a threat to public safety.”

Law enforcement may also object to the granting of a permit if an applicant has:

  • 5 or more arrests, for any offense, within the 7 years prior to the date of application for a permit; or
  • 3 or more arrests, for any combination of gang-related offenses, within the 7 years prior to the date of the permit application

Once an objection is filed, law enforcement must provide the CCLRB with information that supports its objection. Under the law, this information, as well as all records of the CCLRB’s proceedings, are kept confidential and may only be released under a court order – thus the reason for the lawsuits.

Under the new rules, if the CCLRB feels that an objection should be granted, it must send the applicant a notice of the objection, the agency that made the objection and the reasons for the objection, within 10 days of its preliminary decision. The applicant then has 10 days to provide the CCLRB any information he wants the board to consider in regard to law enforcement’s objection. The CCLRB may choose to hold a hearing on the objection following receipt of the additional information.

It is heartening to see the State Police respond so quickly and forcefully to the concerns raised by those who have been denied a permit and to amend the rules to require the CCLRB to notify applicants of the basis for law enforcement’s objection. The right to bear arms is guaranteed by the Second Amendment to the United States Constitution. If the CCLRB is going to have blanket discretion to deny applications – especially where objections may be made based on the number of arrests, not just convictions – applicants must know the reasons for the objection so that they can file a proper appeal.

It is difficult for applicants to successfully appeal a denial if they have no idea why the application was objected to in the first place, and requiring them to obtain a court order to release the CCLRB’s records is a commitment of time and financial resources many applicants may not be able to make. These new rules are a step in the right direction for safeguarding the rights of Chicago residents and Illinois citizens to own a firearm.  Continue reading

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Elgin police are asking local legislators to enact legislation that would make it easier to arrest individuals convicted of Illinois sex crimes who fail to comply with sex offender registration requirements. Illinois law requires all registered sex offenders to notify local law enforcement within three days of moving. But Elgin police complain that a 2013 Illinois Appellate Court decision makes their job harder and requires the utilization of too many resources in order to enforce the registration requirements. They are asking local legislators to create a new law that would in effect overturn the Appellate Court’s decision.

Illinois Sex Offender Registration Requirements

Illinois residents convicted of a sex crime must register as a sex offender:

  • Every year for 10 years for a ‘regular’ sex crime;
  • Every 90 days for life, if you are adjudicated sexually dangerous or sexually violent;
  • Every year for life if you are classified as a sexual predator; or
  • Every 90 days for the remainder of the registration period if you are convicted of violating the registration requirement.

In addition, registered sex offenders must notify local law enforcement of their residence within three days of moving. Law enforcement is required to verify each registrant’s address at least once per year.

Failure to comply with the registration requirements is a Class 3 felony for the first offense; additional offenses become Class 2 felonies.

People v. Robinson – Increasing the Burden of Proof in Sex Offender Registration Cases

In People v. Robinson, the defendant was convicted by the trial court for failing to inform law enforcement of a change in his address. Defendant appealed, arguing that the prosecution had only shown that he was not present at the address he had listed on his sex offender registration, and not that he had established a new fixed residence for more than five days, as the statute required.

The Illinois Appellate Court agreed with the defendant and reversed the trial court’s decision. In its ruling, the court stated that a conviction for failure to register under the sex offender registration law required that the defendant have a change of address AND that he lived at the new address for more than five days. The police did not fulfill its “affirmative obligation to investigate the charge,” instead assuming that because the defendant had apparently not resided at the registered address, he was residing somewhere else.

Elgin police claim that being required to prove that a registered sex offender has been living someplace other than his registered address for more than five days is burdensome. They cited one case where they expended 25 man hours to conduct surveillance and record-checking to determine where the registrant was living.

But given that a conviction for failing to comply with registration requirements may impose additional prison time and increase the burden of registration, the amount of resources expended by police in order to prove a registered sex offender has moved is a small inconvenience for them to pay. Continue reading

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A Will County, Illinois man whose conviction on charges of predatory sexual assault was overturned by the Illinois Appellate Court, lost on his bid to have the re-trial on those same charges dismissed due to concerns that the prosecution violated his right against double jeopardy.

Double Jeopardy in Illinois Sexual Assault Case

In People v. Ventsias, the defendant was convicted of one count of predatory sexual assault of a child and sentenced to 11 years in prison; he was acquitted on one count of aggravated criminal sexual abuse. The Illinois Appellate Court reversed the conviction due to a finding of juror bias, and ordered the defendant to stand trial again on the predatory sexual assault charge only.

Prior to the start of the new trial in 2012, the defendant agreed to a plea agreement whereby he would plead guilty to the charge of aggravated criminal sexual abuse – the charge which the jury had initially acquitted him of committing – in exchange for the prosecution not pursuing the predatory sexual assault charge.

Following the defendant’s entry of the guilty plea, the prosecution moved to vacate the plea due to concerns raised by the trial court that the plea may have been invalid due to double jeopardy concerns. Namely, the court was not convinced that Ventsias could waive his right to plead guilty to aggravated criminal sexual abuse, since he had already been acquitted.

The prosecution then moved for a second trial on the charge of predatory sexual assault of a child. Ventsias objected and filed a motion to dismiss, claiming that double jeopardy attached due to the prosecution’s prior agreement to no longer pursue the charge.

When Double Jeopardy Attaches in Illinois Criminal Cases

In a previous blog I discussed a recent United States Supreme Court case, Martinez v. Illinois, in which the court ruled an Illinois defendant could not be retried because double jeopardy attached. In that case, the prosecution refused to participate in the trial, and the trial court granted defendant’s motion to dismiss. The U.S. Supreme Court upheld the dismissal, citing the long-held rule that “jeopardy attaches when the jury is sworn in.”

Like Martinez, the jury in People v. Ventsias was sworn in. Why, then, did double jeopardy not attach to Ventsias, when it did in Martinez?

Because there are exceptions to when double jeopardy attaches.

If the defendant’s conviction is overturned on appeal, the prosecution is generally free to re-prosecute the case. This is because, unless the reversal was due to insufficient evidence proving guilt, the reversal is usually due to some error made during the trial, whether the admission of inadmissible evidence or some other violation of criminal procedure that interfered with the defendant’s ability to obtain a fair trial. In these cases, although technically the defendant is being retried for the same crime, the first trial is considered null and void because the parties involved did not play by the rules.

In Ventsias, the defendant’s acquittal was overturned on appeal due to juror bias, and not because the appellate court found insufficient evidence of his guilt. So although the jury had been sworn in, double jeopardy did not attach.

Ventsias argued that double jeopardy attached when the prosecution agreed not to re-file the predatory criminal sexual assault charges. Therefore, even though the plea agreement was dismissed, according to Ventsias the prosecution could not re-try him for predatory criminal sexual assault.

The appellate court dismissed Ventsias argument, stating that the basis for the plea agreement was unconstitutional. According to the court, double jeopardy is a right so fundamental to our criminal justice system, that a defendant cannot waive it. Therefore, because his waiver was unconstitutional, the prosecution was not bound by its earlier agreement to not re-prosecute Ventsias for predatory criminal sexual assault.

It remains to be seen whether the defendant will appeal the court’s decision, and whether, if accepted, the Illinois Supreme Court would rule on whether a defendant can waive his right to double jeopardy.

Criminal laws are in place to protect the rights of the accused. While the state cannot infringe upon those rights, the defendant should have the right to waive them if, pursuant to his attorney’s advice, it is in his best interest to do so.

In this case, a conviction on a charge of aggravated sexual abuse carries a maximum prison term of seven years – four years less than what Ventsias had been sentenced to under the predatory sexual assault charge. So it was in Ventsias’ best interest to waive his double jeopardy protection and plead guilty to the lesser charge, even if he had already been acquitted. It does not seem right that the court can take that away from a defendant.  Continue reading

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