Chicago Criminal Lawyer Blog

January 20, 2015

Illinois Governor Signs “Revenge Porn” Law

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

If you’re on the internet at all these days, you’ve no doubt heard of “revenge porn”. An ex-romantic partner, whether in a fit of jealousy or just a pure desire to get back at you for dumping him, posts private, nude images you had sent him online for all the world to see. Or maybe a current girlfriend, angered that she caught you flirting with another girl, posts naked pictures to her social media account without your consent, in an attempt to ridicule you. Regardless of the motivation behind it, as of January 1, posting such pictures without your partner’s consent is a class 4 felony that could land you in prison.

Illinois Revenge Porn Law

The law, which was proposed by Sen. Michael Hastings of Tinley Park in 2014, prohibits the “non-consensual dissemination of private sexual images”. It is seen by proponents as closing a loophole in the pornography laws, which make it a crime to post nude images on pornographic sites without the subject’s consent. But the law did not criminalize disseminating nude pictures, which were shared privately between two consenting adults, on social media.

Under the law, an individual is prohibited from intentionally sharing an image of a person over the age of 18 if the person is:

Identifiable from the either the image or information displayed in connection with the image, and
Engaged in a sexual act, or whose intimate parts are exposed.

In addition, a reasonable person must have understood that the images were to remain private, and the person sharing the image must have known, or should have known, that the person in the photo did not consent to its being shared.

For purposes of the law, “image” includes any photograph, film, videotape, digital recording or other depiction or portrayal. Although the law was drafted with the idea of the image being shared on social media, posting the photo in public places would constitute a violation of the law. A conviction under the law is a class 4 felony, which carries the possibility of 1 – 3 years in prison.

Defense against Illinois Revenge Porn

Although many consider revenge porn something to laugh at and not that serious – after all, the person voluntarily shared nude photos of herself – conviction under the law is serious. Defending against a charge of revenge porn requires a careful examination of all the evidence, including having a forensic expert examine the all data related to the dissemination of the image, to find the flaws in the prosecution’s case. Evidence that would go against a conviction include:

Unintentional dissemination of the image, for example if a virus caused your phone or computer to share the image via a text or e-mail;
If the phone was in somebody else’s possession when the image was sent;
Whether somebody had hacked in to your phone or computer and sent the image;
If a reasonable person would have believed sharing the images was acceptable, for example if the woman in the picture had those same images on public display in her home, or;
Nobody would have been able to identify the person in the image – for example, his face was blurred or cropped out – but for the fact that he told everybody it was him.

January 14, 2015

Chicago Store Clerks Defend Against Alleged Armed Robbers

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

Two Chicago store clerks who were the victims of an armed robbery opened fire on the alleged assailants recently. Following the robbery, the manager of the 7-11 saw a vehicle parked in the alley; when he and the employee approached with guns, the alleged assailants opened fire. The clerks fired off eight shots before the alleged assailants fled.

Self-Defense: By the Victims or the Armed Robbers?

This case raises an interesting question of whether the victims were justified in their use of force against the armed robbers, and whether they could face potential charges of aggravated battery or aggravated assault for firing upon the alleged assailants.

Illinois law allows an individual who used force against another to claim self-defense if “he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force.” The law further states that a person can only use force intended to, or likely to cause, death or great bodily harm – such as firing a gun – “only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

Illinois law does not allow a person to claim self-defense if force was used during an escape from commission of a forcible felony, or initially provided the use of force himself. It also cannot be claimed if the person asserting the defense initiated the contact, unless he indicates his desire to withdraw from his initial use of force.

So in a typical convenience store robbery, the alleged victims would have been justified in pulling their weapons and firing if they had done so during the commission of the crime. One assailant allegedly held a gun to the clerks’ head and threatened to blow his head off if he didn’t hand over the money. Under the self-defense law, the clerk and his boss would have been justified in pulling their weapons and firing because there was a reasonable belief that their lives were in imminent danger. They also would have been justified in using force, even if the assailant hadn’t made the threat, because armed robbery is a forcible felony.

But the circumstances surrounding this case are not so straightforward. The clerks pulled their guns after the armed robbery had been committed and the assailants fled the store. So there is a question of whether the clerks’ use of force was justified, or whether the assailants themselves could claim self-defense.

At the point where the clerks approached the assailants with their weapons, there was no longer a need to defend against another’s use of imminent force, there was no fear that either of them were in danger of suffering great bodily harm, and the forcible felony had been completed. This doesn’t appear like the typical “escape” scenario, because the clerks did not chase the assailants out, guns drawn. Instead, the assailants left with the money, and the clerks then saw a car in the alley on their security cameras. They then chose walk out and confront the assailants, not even sure if the people in the car were the assailants. Their actions could be considered retaliation or vigilante justice rather than self-defense.

You may be thinking, “But when the clerks approached, the assailants drew their weapons and opened fire, so the clerks were justified.” That may be true. It may also be true that the assailants (assuming they even were the assailants) were now in fear for their lives and opened fire to protect themselves from imminent bodily harm. Yes, the law says that a person who initiated force cannot then claim self-defense if force is used against them. However, the initial aggressor can claim self-defense if he indicated a desire to disengage. Here, the fact that the assailants fled the scene could show an indication on their part to disengage from their initial threat of force, so that the clerks’ approach with guns drawn was now an improper use of force.

January 9, 2015

Chicago “Ban the Box” and Expungement or Sealing of Violent Misdemeanors

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

Chicago’s “Ban the Box” law, which prohibits certain employers from requesting criminal background information on job applications goes into effect January 1. However, this information can be requested – and must be provided – once the applicant is invited for an interview, or when a conditional offer of employment is made. Employers may also conduct criminal background checks at this time. The only way to completely avoid having to disclose your criminal history, or to keep it from turning up during a criminal background check, is to have the records expunged or sealed.

Getting a Chicago Misdemeanor Expunged

The “ban the box” law is an important tool that will help qualified applicants who happen to have arrests or convictions in their past proceed to the interview stage. Unfortunately, it does not go far enough to help those with a criminal background get a fresh start. Under the law employers are not prohibited from refusing to hire an applicant based on his criminal background – it simply prohibits them from asking on the job application. Employers are free to not hire someone with a criminal history once they learn about it, either because the applicant disclosed it during the interview stage or because it turned up during a criminal background check. And the general public harbors a great deal of prejudice against those with a criminal background, even though the individual paid his debt to society by fulfilling the terms of his sentence.

January 6, 2015

DuPage County Woman Charged with Possession of a Controlled Substance

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

A Villa Nova woman was arrested and charged with possession of a controlled substance after accepting delivery of almost 700 Xanax pills. The arrest was made through the combined efforts of the U.S. Department of Homeland Security, the U.S. Postal Service and the DuPage County Sheriff’s Office.

DuPage Possession of a Controlled Substance

Drug crimes require an aggressive defense, and that defense must begin immediately. In any criminal case, there are certain procedures law enforcement must follow in order to ensure that each defendant is afford a fair trial. One of the most important is the fundamental right against unlawful searches and seizures, and law enforcement’s motivation and justification for initiating a search is the most important aspect of any drug crimes defense.

In this case, there are a number of concerns regarding the arrest and subsequent search of the defendant’s residence.

U.S. Customs and Border Patrol intercepted a package addressed to the defendant containing the Xanax. Undercover officers then proceeded to deliver the package to the defendant’s home and, when she accepted it, immediately arrested her for possession of a controlled substance. It is unclear whether the defendant did any more than simply accept the package; if that is all she did, it is very alarming that she was promptly arrested without any further action on her part. Just because the package was addressed to her does not mean she knew it contained 700 Xanax pills and, in order to be charged with possession, the defendant’s possession must have been knowing. A roommate, friend or family member could have arranged for it to be delivered to her house for their own personal use, and simply addressed it to her so she could accept it. The defendant could not be said to be in possession of the Xanax if she had no idea what was in the package; in such a case, she would have just been in possession of a package delivered to her.

There is, of course, also the possibility that she had a valid prescription for the pills and got them filled out of the U.S. because she had no health insurance and it was cheaper to purchase them elsewhere than have the prescription filled at a local pharmacy.

Next is the search of defendant and her home. Police are able to conduct a search incident to arrest, without the need to first obtain a search warrant. The purpose of the search is to ensure officer safety and prevent the destruction of evidence. However, a search incident to arrest is limited, generally to an area within the defendant’s reach. Since the defendant accepted the package at her front door, law enforcement was legally permitted to search that area within her immediate reach; a search of the entire residence seems beyond the scope of her reach.

However, in this instance it appears that the defendant’s home was searched pursuant to a search warrant. A thorough review of the search warrant, as well as the evidence provided to the judge who issued the warrant, is very important. As I said, the fact that the pills were addressed to the defendant is not enough to prove that she knew what was in the package or had in any way arranged for it to be delivered to her. Because the package could have been sent, unbeknownst to her, by a friend, family member or roommate who planned to pick it up after it had been delivered, the fact that the police was able to get a search warrant is suspect. They could have delivered the package and conducted surveillance, or even gotten a warrant to tap her phone for a limited time to see if she made any calls regarding the pills, before being issued a warrant to search her home.

The circumstances surrounding law enforcement’s acquisition of the search warrant and their immediate arrest of the defendant would all need to be thoroughly examined in order to determine whether police violated the defendant’s right to be free from unlawful search and seizures.

December 31, 2014

Cook County Man Charged with Promotion of Prostitution

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

A Lyons man was arrested last week and charged with two counts of promoting prostitution through a joint investigation by the Cook County Sheriff’s Vice Unit and the Berwyn Police Department. The alleged promotion of prostitution occurred on a website offering goods and services for sale.

Illinois Promotion of Prostitution

In Illinois a person commits the crime of promoting prostitution if he knowingly arranges, or offers to arrange “a situation in which a person may practice prostitution” and profits from his actions.

The word “knowingly” is important. Unless the prosecution can prove that the defendant knew he was arranging a situation where sex would be bought and sold, he cannot be convicted of promoting prostitution.

In a case like this, where the defendant was arrested based on information posted on a website, there are a number of different avenues the defense can explore that may cast reasonable doubt on the prosecution’s case. These may include:

Whether anybody else had access to the defendant’s computer. Posts to websites can normally be traced back to the user’s IP address. Using a team of computer experts, we could pinpoint the location of the computer which posted the ads, as well as the date and time of the postings, and determine who else may have had access to it. If the computer was the defendant’s, we would look at any roommates, friends or family members who may have had unrestricted access to it at the time the posts were made. If the posts were made at a public computer, such as a library, then proving the defendant made the posts would be extremely difficult, since any number of people could have accessed the computer.

What the defendant thought he was picking up. The defendant was arrested on his way to allegedly pick up proceeds from the prostitution operation. But the fact that he was on his way to a destination to pick up money doesn’t necessarily mean he knew what the money was for. He could have been told the money was a debt owed to the person he was getting it for. Or he may have been told that is was for the sale of an automobile or other property. He may not even have been told to pick up money, but rather simply to go and meet somebody at that location.

Whether any actual profit resulted from the alleged ads. A conviction for promoting prostitution requires that the defendant profited from the alleged prostitution. The defense would need to look closely at any money that the defendant made and whether the money came from payment for prostitution.

Whether the defendant had the means to offer prostitutes. Even if the defendant placed the ads, if he didn’t have the means to fulfill his offer, he cannot be convicted for promoting prostitution. For example, perhaps he was just pulling a prank and intended to video tape and post on social media any people who showed up with the intent of purchasing sex. Or perhaps he arranged to meet individuals who responded to the ads and intended to rob them of the money they had brought for payment. If the defendant did not have the ability to provide prostitutes to anybody who responded to the ads, the charges must be dismissed.

December 24, 2014

Conviction of Illinois Hate Crime Carries Additional Penalties

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

A Cook County man was arrested this past October and charged with attempted first-degree murder and hate crimes for allegedly stabbing a 79-year-old African-American woman.

Illinois Hate Crimes

When most people think of a hate crime, they think of an assault upon an African-American, maybe even a lesbian, gay or transgendered individual. But hate crimes under Illinois law may be committed against an individual due to his:

Race;
Color;
Creed;
Religion;
Ancestry;
Gender;
Sexual Orientation;
Physical or mental disability, or;
National origin.

Hate crimes include not only assault and battery, but also:

Theft;
Trespass to residence, vehicle or real property;
Damage to property;
Mob action;
Disorderly conduct, or;
Harassment by telephone or electronic communications.

Hate crimes are a class 4 felony – class 2 if it’s a second offense – and carry with it a minimum of one year in prison. Hate crimes are a class 3 felony if committed in certain locations, such as a school or church. The penalties imposed for conviction of a hate crime are in addition to those imposed for conviction of the underlying offense. The defendant in a hate crime case is charged then not only with the hate crime, but with the assault, battery, or whatever other crime committed against the victim as well.

Defenses Against Hate Crimes

There are two portions of a hate crime defense – defending against the underlying crime, and defending against the hate crime charge. When defending against a hate crime, it is actually not a defense that the victim was not a member of a protected class. For example, if the defendant attacked a man because he thought he was Muslim, but it turned out he was Indian, the mistake as to the victim’s actual ethnicity is not a defense to the charge. It is enough that the defendant thought he was attacking a Muslim.

In order to successfully defend against a hate crime, the defense attorney must prove that the crime was not racially motivated (assuming that he cannot disprove commission of the underlying crime). Just because a crime victim falls into the protected class of victims does not automatically mean it is a hate crime, although the prosecution may attempt to argue otherwise. Proving the crime was not motivated by hatred toward the victim’s race, sexual orientation, religion, or other protected class may include:

Showing a lack of history of any type of racial crime;
Showing that the crime was one of opportunity; for example, you robbed the woman on the street corner because she was there and you needed money, not because she was a woman;
Lack of use of racial, sexual or other slurs against the victim during the commission of the crime, or;
You have a prior history of committing the same offense, and there is no pattern of it being against members of the protected class.

Disproving that the crime was motivated by reasons unrelated to race, religion, gender, or any of the other protected classes will result in the jury being forced to acquit on the hate crime charge.

December 19, 2014

DuPage County Burglary and Retail Theft Raise Possibility of Avoiding Prison

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

A DuPage County couple was arrested and charged in early December with two counts each of burglary, and additional counts of retail theft, for allegedly stealing and selling more than $4,000 worth of merchandise from a string of DuPage County Walmart stores. The charges are Class 2 and Class 3 felonies, respectively. Police allege the couple stole and later sold the items to feed their drug addiction.

DuPage County Commercial Burglary Charge

In Illinois, burglary is committed when a person knowingly and without authority enters, or knowingly and without authority remains, within a building with the intent to commit theft or another felony within the building. Although most people consider burglary to be entering a residence with the intent to steal, a person can be charged with burglary if he enters a building with the intent to kill, rape, or commit any other felony.

December 17, 2014

White Chicago Police Officer Set to Stand Trial for Murder of Black Woman

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

In the wake of the police killings of Michael Brown in Ferguson, Missouri, Eric Garner in New York and Tamir Rice in Cleveland, Ohio, a Chicago police officer is set to stand trial in January on charges of involuntary manslaughter and other felonies in the 2012 off-duty shooting death of an unarmed black woman.

Police shootings happen fairly regularly across the country, and as part of their job to serve and protect officers often kill dangerous suspects. The FBI Uniform Crime Reports indicate that in 2013, there were 461 justifiable homicides by police officers. Some estimate this number to be much higher – at least 1,000 – because not all police departments report their numbers to the FBI for inclusion in the report. So when does murder by a Chicago police officer cross the line from justifiable homicide to murder?

Justifiable Homicide by Chicago Police

There is no special statute protecting Chicago police officers who kill a suspect in the line of duty. Like any other citizen, Chicago police officers must prove that their use of force was justified.

The use of justifiable force, as I have discussed before, is an affirmative defense. This means that the police officer has the burden of proving that his use of force was justified, and not the prosecutor. Under Illinois’ justifiable use of force law, a police officer may use force against another person if he reasonably believes that force is necessary to defend himself or another person against the victim’s unlawful use of force. However, the use of force likely to cause death or great bodily harm can only be used if the officer has a reasonable belief that he is protecting himself or another person from death or great bodily harm.

It is important to note that the victim’s use of force must be unlawful, in order for force to be justified. This means that a person cannot put you in fear of your life, and then use deadly force against you when you try to protect yourself using force.

How does this translate to real life? Take, for example, the Eric Garner case. Most people do not dispute that he was resisting arrest. But from the video, he appeared to be doing so peacefully, and posed no physical threat to law enforcement. So the argument could be made that the police officer’s use of a banned chokehold was unlawful use of force, since there was no reasonable justification to believe that he was in danger of death or great bodily harm.

The vast majority of killings by Chicago police officers are ruled justifiable homicides and never brought to trial. The last case of a Chicago police officer facing criminal charges for a shooting death was 17 years ago. Defense in these cases rests entirely on the police officer’s testimony. Eyewitness testimony factors in to some degree, as would any available video. But in the end, the police officer’s testimony regarding his behavior and the victim’s behavior in the moments leading up to the shooting, and the officer’s level of perceived harm, is what the jury will ultimately rely on. And as is shown by the fact that it has been 17 years since the last Chicago police officer was brought to trial, in the vast majority of cases the benefit of the doubt goes to the officer.

December 12, 2014

Statute of Limitations in Chicago Rape Cases

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

It’s been a bad couple of weeks for America’s Dad, Bill Cosby. In the past month, at least 20 different women have come forward to say that Mr. Cosby had sexually molested, drugged and/or sexually assaulted them in incidents dating back as far as the 1970s. Just this week the Los Angeles Police Department met with one accuser, who claims Cosby sexually assaulted her when she was just 15 years old.

Can Charges be filed in Decades Old Chicago Rape Case?

The alleged sexual assaults in the Cosby case happened decades ago and, if true, the majority went unreported. If a Chicago resident were to claim she was sexually assaulted 15 years ago, is it possible for criminal charges to be filed against the accused?

Illinois law imposes statutes of limitations on all crimes except murder. Statutes of limitations are time limits imposed on the prosecution, requiring him to file charges against the accused within a stated time period. If charges are not filed within the specified time period, they can never be filed.

Statutes of limitations vary among crimes (they are also different for claims filed in civil court, so when looking up statutes of limitations make sure you are reading the criminal code). For the crime of sexual assault, the prosecution must file charges within 10 years of the commission of the offense, provided the victim reported it to the police within three years of its occurrence.

For example, imagine a woman who was raped on March 20, 1995. If she reports the rape to the police any time on or before March 20, 1998, the prosecution has until March 20, 2005 to bring charges against the alleged perpetrator. If, however, the woman reports the rape to police on March 31, 1998, the prosecution cannot file charges, because the law required her to have reported the rape within three years of its occurrence.

If the alleged sexual assault occurred when the victim was under 18 years of age, the prosecution has 20 years from the date the victim turns 18 to file charges. So, if a child was raped July 7, 1975 at the age of 8, the prosecution has until July 7, 2005 to file charges against the accused. If the charge was for misdemeanor criminal sexual abuse, the prosecution has 10 years from the date the victim turns 18 to bring charges.

So depending on when the woman reported the sexual assault and her age when it happened, it is possible for charges to be brought for a sexual assault that occurred a decade, possibly even three decades, ago. However, the likelihood of success in such an old case is slim. Witness memory fades and, without physical evidence, such as a rape kit or other DNA evidence, the case would be nothing more than he said-she said, which is difficult to prove over such a long period of time.

December 10, 2014

What is a Grand Jury and How Does it Work?

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

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

Purpose of Chicago Grand Jury

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

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

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

How the Grand Jury Works

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

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

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

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