Chicago Criminal Lawyer Blog

August 28, 2015

Elder Abuse and Financial Exploitation

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

Given the aging population and the struggles people face in today’s economy, more and more extended families are living together and caring for aging relatives. If you live with an aging parent or another loved one who is suffering from an age-related disease, you probably know that certain medical conditions can cause your loved one to be confrontational and even sometimes violent. Such conditions include dementia, mental illness, and Alzheimer’s disease, among others. Most domestic violence allegations involving the elderly arise out of confrontations in which the caregiver is simply trying to prevent the senior from injuring another member of the household, the caregiver, or even themselves.

What you might not be aware of, however, is that you can be charged with domestic violence if your loved one accuses you of mishandling his or her finances. If you have been arrested for elder abuse because of the alleged financial exploitation of an elderly loved one, you need to protect your rights and contact an aggressive criminal defense attorney immediately.

What Do You Need to Know?

August 26, 2015

Are You Facing Registration as a Sex Offender?

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

There are many crimes in Illinois for which if you are convicted (or found not guilty due to insanity), you are required to be a registered sex offender for a minimum period of ten years. This is a serious punishment, and if you are facing such a penalty, you need quality legal representation to protect you and advocate for your legal rights.

What You Need to Know

Crimes that may require future registration as a sex offender range from rape and murder of a child to indecent exposure (public indecency). Public indecency is obviously not punished as seriously as a violent sexual assault, yet the sex offender registry does not make any distinctions. Therefore, a person could theoretically be charged with public indecency for urinating in public, or charged with false imprisonment for improperly detaining a juvenile for suspected shoplifting, and could still be facing inclusion on the same sex offender registry as someone found guilty of rape and murder.

August 14, 2015

Have You Been Wrongly Identified in a Lineup?

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

Eyewitness identification is incredibly unreliable, yet can be a determining factor in a jury finding someone guilty at trial. In a study of 525 wrongful convictions, the Innocence Project found that 73% of those wrongfully convicted (235), were found guilty due to incorrect eyewitness identification. If you are being charged with a crime, it is best to consult an experienced criminal defense attorney immediately, and especially before standing or having your photograph presented in a lineup.

Wrongful Identifications in Illinois

Illinois alone has released more than 20 wrongfully convicted criminals since 1993. Thankfully, Illinois is taking steps in attempts to cure this issue. A recent legal change is a step in the right direction. Illinois has a new statute governing lineup procedures, 725 ILCS 5/107A-2. This statute is an attempt to remove human influence from tainting the lineup procedures, by requiring the use of either an independent administrator, an automated computer program, or random shuffling of photos for all lineups. This new statute also contains other safeguards, including video recording and written reporting requirements, all measures designed to strengthen the reliability of the results and prevent misidentification of witnesses. According to the new law, lineups now must be conducted using one of the following methods:

Independent Administrator

An independent administrator is somebody who is not a police detective, officer, or any other member of the arresting police force. The lineup administrator has to draft and file a report at the end of the lineup, which must be shared with your lawyer.

Automated Computer Program

If the lineup is going to be a photographic lineup (rather than one in which people stand before a glass), then this statute allows an automated computer program or other automated device to be used. The automated program will automatically display a lineup of photographs to an eyewitness without allowing the lineup administrator to see which photographs the eyewitness is viewing until after the lineup is completed.

Random Photo Shuffling

If there is no independent lineup administrator available, and no automated computer program to “shuffle” the photos for the lineup, then the lineup administrator must place randomly numbered photographs in folders and present them to an eyewitness. The statute requires that the lineup administrator does not see or know which photographs are being presented to the witness until after the lineup is completed.

Other Requirements

In addition to using one of the methods above, law enforcement agencies have to adopt written guidelines that explain in which circumstances simultaneous lineups will be used (all photos are shown at the same time), and under which circumstances sequential lineups will be used (when an eyewitness is shown photos one at a time). There are also specific instructions that must be given to the witness, and all lineups must be audio and video recorded whenever possible. Copies of any recordings must be given to your lawyer during the discovery process.

This new law still does not go far enough to protect you from an erroneous conviction based on wrongful identification. There is a catch-all provision in the new law that allows the police to use “any other procedure” which supposedly prevents the lineup administrator from knowing the persons or photographs presented to the witness, but in essence allows the police to avoid using any of the procedures this statute suggests.

August 12, 2015

Are You Being Charged with Aggravated Unlawful Use of a Weapon for Lack of FOID Card?

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

If you are in possession of a firearm and do not first obtain an FOID card (Firearm Owner Identification Card), and you are caught with it on your person, in your car, or even in some circumstances in your own home or place of business, you may be charged with Aggravated Unlawful Use of a Weapon, 720 ILCS 5/24-1.6 (“AUUW”). If you are facing AUUW charges in Cook County or DuPage County because you were arrested for having a firearm and not having an FOID card, you need an experienced criminal defense attorney to defend you and protect your rights.

Illinois requires that all residents who want to own a firearm first obtain an FOID. You can fill the application for an FOID out online, or you can print it out and mail it, fax it, or scan it. If you have an FOID card, you may transport a gun in your vehicle, as long as it is unloaded and in a case or other container. If you are carrying a firearm that is loaded or not in a case, or is in the glove compartment of your car, and you get pulled over, you will be charged with unlawful use of a weapon.

What if you are Charged with AUUW?

It is far more serious, however, if you are caught with a weapon in your vehicle and you do not have an FOID card. Even if you are an out of state person who has come to Illinois to hunt, you may be charged with AUUW if you are pulled over and have an unloaded firearm in your car. The name of the offense is misleading, as you do not have to actually “use” the weapon to be charged with the crime – if you do not have an FOID card and you have a loaded or unloaded weapon in your car or on your person, you can be charged with this crime. This is a Class 4 Felony under Illinois law, and you need top level legal representation if you are charged.

If you are convicted of AUUW for possession of a firearm without an FOID card, it is punishable by a minimum of one year in prison and up to (but not more than) three years, if it is a first offense. There is also the possibility of a $25,000 fine. If it is not your first offense and you are charged with AUUW, you could be facing seven years in prison.

August 7, 2015

Bail Denied for Suspect in Attempted Murder of Chicago Cop

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

The Chicago Sun-Times reported that Raphael Jordan, who was charged with the attempted murder of a police officer, is being held without bail. According to witnesses, the officer was wearing her Chicago Police badge on her belt while working a side job as a security guard for a construction company when she saw Jordan walking away from a construction site with a hammer drill owned by the company. After the officer told Jordan to stop, he ignored her, dropped the hammer drill, and proceeded to a nearby van. The van was running and a female was sitting in the front passenger’s seat. The officer pulled her gun after Jordan continued to ignore her, even after identifying herself as a Chicago police officer, and approached the vehicle.

Jordan began to drive away as the officer was standing beside the driver’s side door. She planted her feet on the moving van’s floorboard as she clutched her gun in her right hand and held herself in place in the van with the left hand. Jordan allegedly attempted to throw the officer from the vehicle by driving up against four separate vehicles and swerving from side to side. After crashing into a fifth vehicle, Jordan grabbed the officer’s gun and shot her once, hitting her thigh and calf. Jordan then drove off, leaving his cellphone. The police found Jordan after conducting a search of his cellphone, which they did so after a court issued a search warrant.

Attempted Murder in Illinois

The prosecution in an attempted murder case has the burden of proving, beyond a reasonable doubt, that a suspect deliberately, intentionally, or recklessly with extreme disregard for human life, attempted to kill someone. Attempt, under Illinois law, is to perform an act which constitutes a substantial step to committing an offense that a person specifically intended to commit.

This substantial step must be an act that is directly done in furtherance of an intention to kill. Preparing to kill someone or planning to do so is not enough to satisfy the elements of attempted murder. The required substantial step may consist of using a weapon against another, such as a gun or knife, and either inflicting serious wounds or firing a weapon into someone’s chest or head, areas most likely to result in death. In this case, Jordan fired a weapon directly towards the officer and hit her thigh and calf. If the prosecution can show that this inflicted a serious wound, and that Jordan did so with the intent to kill the officer or with extreme recklessness, that would support a conviction for attempted murder.

Attempted murder in Illinois is a Class X felony and may carry a prison term of no less than 20 years and not more than 80 years. When the attempt is done while armed with a firearm, a mandatory 15-years term is added to the sentence imposed by the court. If the attempt was committed during which the suspect discharged a firearm, 20 years will be added to the sentence imposed by the court.

Cellphone Searches

In this case, the police found Jordan by conducting a search of his cellphone, for which they got a search warrant from a court. Last year, the U.S. Supreme Court unanimously ruled that police almost always need a warrant to search a person’s cellphone, even if they were arrested. The Court held that cellphones fall under a person’s Fourth Amendment rights against unreasonable search and seizure. Only in extreme cases may warrantless cellphone searches be permitted, such as if a cellphone is suspected of being a bomb detonator.

August 5, 2015

Four Arrests in Oak Lawn Robbery

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

According to a report from the Oak Lawn Patch, four men were arrested in connection to an early morning robbery on July 10. At around 1:12 a.m. on July 10, police responded to a call that three people were robbed at gunpoint by two men. Both alleged gunmen reportedly fled in a Ford SUV. Police canvassed the area and found an SUV that matched the description. After following the vehicle briefly, it was stopped, and the police recovered the stolen property and a weapon from the SUV. The victims identified the men as the robbers.

Three of the men were charged with aggravated armed robbery. The fourth man was charged with one misdemeanor count of mob action. Bail was set at $100,000 for two of the men, $50,000 for the third, and $120 for the individual charged with mob action.

Robbery and Accomplice Liability in Illinois

In general, robbery in Illinois involves taking the property of another by using force or by threatening to use imminent force. If, during the robbery, the defendant either carried a weapon, discharged a firearm, or discharged a firearm within proximity to the crime that caused great bodily harm or death to another person, it is considered armed robbery. Additionally, Illinois treats the robbery of a motor vehicle differently and considers it vehicular hijacking.

A robbery charge can become an aggravated robbery charge if the defendant takes the property of another by force or threat of imminent force and either verbally indicates that he or she is armed with a weapon, or the defendant drugs the victim without consent using a controlled substance.

Here, the two alleged gunmen were charged with aggravated robbery, indicating that there may have been a verbal exchange where they stated they were armed with a weapon since there was no evidence of drugging. A third person was also charged with aggravated robbery, presumably because he was an accomplice as the driver of the vehicle.

These forms of robbery are all considered felonies in Illinois. Plain robbery is a Class 2 felony, which carries a sentence of three to seven years in prison and a maximum fine of $25,000, with a mandatory parole period upon release of two years. If the robbery occurred in a school, day care center, child care facility, or place of worship, it is a Class 1 felony with a possible sentence of four to fifteen years in prison and a maximum fine of $25,000. Similarly, it has a mandatory parole period upon release of two years.

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July 31, 2015

Police Pursuit and Shootout on I-55 Leads to Two Arrests

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

A Herald report indicated that Luke Bertolini, a Manhattan, IL resident, is facing several charges in relation to a shootout near Channahon, including aggravated unlawful use of a weapon, reckless discharge, and criminal damage to property. According to the report, Bertolini was in a restaurant in Wilmington when he ran out and started shooting a gun. He apparently asked the bartender, “Can you fight?,” then went outside and fired two or three shots in the marina. After the shots were reported, county and state police arrived to assist. Bertolini had left the restaurant before they arrived in a yellow vehicle driven by a blond female. Witnesses in the restaurant seemed to indicate the Bertolini seemed to be under the influence of drugs at the time.

The police later located Bertolini’s vehicle driving north on I-55, and the police officer who spotted the vehicle activated his emergency lights to stop it. After stopping, Bertolini exited from the passenger side of the vehicle with two handguns. He then exchanged gunfire with the police, but was apprehended without anyone being struck. Police also arrested the female driver of the vehicle.

Firearm Crimes in Illinois

In Illinois, a person is guilty of aggravated unlawful use of a weapon when he or she knowingly carries or has a vehicle or concealed somewhere in his body any pistol, revolver, stun gun or taser or other firearm while present on any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town. Additionally, the firearm must be uncased, loaded and immediately accessible at the time of the offense or the firearm possessed uncased, unloaded and the ammunition for the weapon was immediately accessible.

A related charge is reckless discharge of a firearm. A person is guilty of this offense if he or she discharges a firearm in a reckless manner which endangers the bodily safety of another. Additionally, if this crime was committed by a passenger of a moving motor vehicle with the knowledge and consent of the driver, the driver is also accountable for the conduct and may be similarly charged. To determine whether the discharge was reckless, the prosecution would have to prove the the suspect consciously disregarded a substantial risk that discharging his or her weapon would pose a danger to the safety of another in a way that does not reflect what a reasonable person would do in a similar situation.

Reckless discharge can be elevated into an aggravated crime if the suspect fired the weapon in the direction of another person or group of people, into a vehicle or structure from outside, or if the suspect used a silencer.

Penalties for Conviction of a Weapons Charge

Aggravated unlawful use of a weapon is considered a Class 4 felony that can result in a sentence of one to three years in prison and a fine of up to $25,000. Courts are permitted to sentence defendants to probation. A second offense is considered a Class 2 felony with a mandatory prison sentence from 3 to 7 years, which is non-probationable.

WIth regard to aggravated reckless discharge of a firearm, this is considered a Class 1 felony. It is punishable with a 4 to 15 year term in prison, and a maximum fine of up to $25,000.

July 29, 2015

Fatal Hit-and-Run in Chicago Results in Reckless Homicide Charge

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

According to a report from the Tribune, a woman from Oak Lawn was charged with reckless homicide, along with several other crimes, after a fatal hit-and-run accident on Oak Park Avenue. The accident occurred shortly after midnight when the suspect, Jacqueline Cummings, was driving her 2005 Jeep Grand Cherokee and struck Maria Domantay, sideswiped a police car, and fled. The Tinley Park police were at the scene handling a separate traffic accident when the hit-and-run occurred. The victim was pronounced dead in the emergency room at Silver Cross Hospital, and according to preliminary autopsy results, Domantay died due to multiple injuries from being struck by a vehicle.

Cummings was also charged with failure to report an accident involving death, failure to yield the right of way to an emergency vehicle, improper lane use, failure to reduce speed to avoid an accident, failure to signal, and use of a wireless phone in an emergency zone.

Reckless Homicide in Illinois

According to Illinois statutes, a person commits reckless homicide if he or she unintentionally kills an individual while driving a motor vehicle recklessly. Even though the individual did not mean to kill anyone, his or her reckless manner of driving caused someone’s death.

The most important question in reckless homicide cases is whether the suspect’s conduct can be considered reckless. The law defines recklessness as someone’s conscious disregard of a substantial and unjustifiable risk that his or her actions are likely to cause death or great bodily harm to another, and that disregard is grossly different from the standard of care that a reasonable person would exercise in the situation. To be reckless is to take an unnecessary risk that most people would consider likely to harm others.

Penalties for Reckless Homicide

Reckless homicide is a Class 3 felony in Illinois, with a possible prison sentence of two to five years upon conviction. However, the charge can be enhanced with a more serious penalty in other circumstances. For example, if a defendant committed reckless homicide on a public thoroughfare where children were going to and from school with a school crossing guard present, the offense is enhanced to a Class 2 felony with a sentencing range of 3 to 14 years in prison. This is also the case if the reckless homicide occurs in a work zone or the defendant failed to comply with a lawful traffic control order from a police officer. The same is true if the victim is a family or household member of the defendant. There are other enhancing circumstances found in Illinois statute that may impose more serious penalties for a reckless homicide conviction.

July 24, 2015

Florida State Quarterback Charged with Battery

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

On June 30, Florida State University quarterback De’Andre Johnson was charged with misdemeanor battery from an incident in which he allegedly punched a 21-year-old woman in a bar. According to prosecutors, Johnson was involved in a confrontation with the woman after she cut in front of him while they were waiting to place their orders at a bar near the Florida State campus. Witnesses stated that the woman raised her arms and heard her yell “no” twice before Johnson grabbed her and punched her in the face. Court documents stated the woman was trying to defend herself while she was being pushed and grabbed by Johnson.

Johnson’s lawyers indicated that Johnson was acting in self-defense, stating that the woman raised her fist and shouted racial epithets at him when he accidentally made contact when he was walking up to the bar. Johnson allegedly tried to deescalate the situation, but the woman kneed him in the groin area and tried to hit him before he retaliated. The lawyer stated that he did not react until the woman struck him twice.

Battery

In Illinois, battery is a criminal offense that may either be a misdemeanor or felony, depending on whether there is a serious injury. Illinois criminal code states that battery occurs if a person intentionally or knowingly causes bodily harm to an individual or makes physical contact of an insulting or provoking nature. It is normally a Class A misdemeanor offense that carries a possible one-year prison sentence and a fine of $2,500. Illinois courts may sentence a battery defendant to probation as opposed to imprisonment, and order community service and counseling.

Self-defense

A defendant against a battery charge may raise self-defense to justify his or her actions. In order to prove that the defendant was acting in self-defense, he or she must prove the following:

The defendant believed that force was necessary. The defendant claiming self-defense must have a reasonable belief that the force he or she used was necessary. In this case, Johnson has to prove that he needed to respond by punching the woman in the face in order to defend himself. If all the woman did was say an insulting comment without any indicator that she was about to physically attack him, then Johnson may not be able to succeed in his self-defense claim. However, if Johnson can prove that the woman kneed him in the groin and actually tried to hit him twice, he may be able to prove that he actually believed that he needed to use force to defend himself.
The amount of force used is reasonable. In addition to believing that force was necessary, a defendant has to also prove that the amount of force used was reasonable. Here, Johnson would have to prove that punching the woman in the face with enough force to cause a black eye was reasonable in light of her use of force against him.
The defendant’s action was against imminent unlawful force against him or her. Johnson can only use self-defense if he can prove that he was defending himself against the imminent use of unlawful force against him. This threat of force must be imminent. If the prosecution can prove that all the victim did was issue verbal insults without showing an imminent attack on Johnson, he would likely not prevail in asserting self-defense.

July 23, 2015

Burglary Suspect in Illinois Hobby Lobby Arrested

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

A prolific shoplifter, who was previously convicted of stealing $ 2 million in merchandise from Toys “R” Us stores in 2012, was arrested and charged with burglary for attempting to steal paintbrushes from a Hobby Lobby in Lombard, IL. According to a report, the suspect, Ignatius Pollara of Tamarac, IL, served two years in jail for the Toys “R” Us thefts, which involved 139 store locations in 27 states. He now faces charges in DuPage County.

Allegedly, Pollara took paintbrushes from a Hobby Lobby in Lombard, IL and hid them in his pants near the small of his back. After doing so, Pollara tried to leave the store and was immediately apprehended. Police in DuPage and Cook County were alerted beforehand that Pollara was planning a trip to the Chicago area from Florida. They tailed Pollara in the Chicago area, where he spent four nights in different motels, each near a major shopping center. Additionally, police placed a tracking device on Pollara’s rental car, and a search of the vehicle revealed suspected stolen merchandise. He is charged with one count of felony burglary.

Retail Theft vs. Burglary

Here, Pollara was charged with burglary. A person commits burglary in Illinois if he or she enters or remains in a building, house trailer, watercraft, aircraft, motor vehicle, railroad car without authority; and does so with the intent to commit a felony or theft inside. Prosecutors have to prove beyond reasonable doubt that the charged individual entered (or remained) with the intent to commit theft or some other felony. Pollara was apprehended attempting to leave the Hobby Lobby with hidden items taken from the store. His pattern of staying in motels near retail stores, along with stolen merchandise found in his car, may be used as evidence to prove that he entered the hobby lobby with the intent to commit theft inside.

Illinois has stringent retail theft or shoplifting laws. In Illinois, a person is guilty of retail theft if he or she knowingly takes possession of, carries away, transfers, or causes to be carried away or transferred any merchandise displayed, held, stored, or offered for sale in a retail establishment with the intention of retaining such merchandise of depriving the merchant permanently of the possession, use, or benefit of such merchandise, without paying the full retail value.

If the value of the items was $300 or less, the retail theft is a Class A misdemeanor. If the value was greater, the defendant can be charged with a Class 4 felony. However, if the defendant has a prior conviction of retail theft, or any theft-related offense such as robbery, armed robbery, residential robbery, possession of burglary tools or home invasion, the offense is automatically a Class 4 felony.

Burglary Penalties

Burglary is considered a Class 2 felony in Illinois, which is punishable by three to seven years in prison. However, if the suspect had not been convicted of a class 2 felony or greater within the previous ten years, up to four years of probation may be available. If the burglary involved someone’s home, it is considered residential burglary, which is much more serious. It becomes a Class 1 felony, which is punishable from four to fifteen years in prison and probation is unavailable.