Chicago Criminal Lawyer Blog

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.

December 5, 2014

Woman Charged with Attempted Kidnapping of Child at O’Hare Airport

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

In September a woman was charged with felony aggravated kidnapping and misdemeanor battery after allegedly trying to kidnap a two-year-old boy from the luggage carousel at O’Hare International Airport. According to the boy’s mother and eyewitnesses, the woman grabbed the boy and tried to flee down an escalator before being apprehended by authorities.

Chicago Kidnapping Charge

Under Illinois law there are several different means of committing the crime of kidnapping. In this case, the defendant fulfilled the portion of the law that makes it a crime to knowingly, and with force, carry a person from one place to another, with the intent to confine that person against his will. The crime was elevated to aggravated kidnapping because the child was under the age of 13.

You may wonder why the defendant in this case was charged with kidnapping, as opposed to attempted kidnapping. Authorities apprehended her within minutes of taking the child; in fact, she had not even removed the child from the airport. If the child was reunited with his mother within mere moments of the defendant grabbing him how could he have been kidnapped?

A kidnapping charge has nothing to do with the amount of time the child is separated from his parents, or even how far away he is being held. The crime of kidnapping is complete once the child is forcibly removed from one location to another. So even though in this case, the child was only moved from one end of the baggage claim to the other, the movement was enough to bring the charge of kidnapping.

Although stranger abductions of children are predominant in the news – think a child held by a non-family member or acquaintance, 50 miles or more from their home for at least one night – they make up less than 1% of all kidnappings. The majority of kidnappings involve family abductions or a child confined in one location for at least one hour. And “confinement” may be nothing more than sitting in the kidnapper’s house eating ice cream and playing video games.

In child abduction cases, it is not a defense that the child willingly accompanied the kidnapper. Under Illinois kidnapping law, confinement of a child under the age of 13 is considered to be done without parental consent, even if the child willingly accompanied the kidnapper. In such cases, the only defenses would be mistaken identity, or a misunderstanding as to whether the child’s parents consented to the “confinement.”

In the case of this defendant, her mother indicated that she had mental issues and had recently gone off her medication. It may be possible to argue that she is unfit to stand trial, enter a plea or be sentenced because she is “unable to understand the nature and purpose of the proceedings against (her) or to assist in (her) defense.”

If the defendant is found unfit to stand trial, either by the court or the jury, but there is a “substantial probability” that treatment can make the defendant fit to stand trial within a year, the court can order the defendant to undergo treatment for the purpose of making her fit for trial. If, however, the court or jury finds that there is not a substantial probability that the defendant will be fit for trial within a year even with treatment, the state may move to have the charges against the defendant dropped, or to have a discharge hearing, where the judge hears all evidence against the defendant and, if found guilty, can have her held in a treatment facility for up to two years (five if the charge was first-degree murder).

December 3, 2014

Chicago Police Storm Home, Arrest Man for Walking Down Street

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

A Southside Chicago man claims that Chicago police stormed his home, placed him in a chokehold and arrested him for doing nothing more than walking down the street. Police arrested the man on misdemeanor counts of battery, resisting arrest, and possession of a deadly weapon. The man’s niece captured the incident on her iPad.

Unlawful Chicago Search and Seizures

I have discussed extensively on this blog before about the right of Chicago residents to be free from unlawful search and seizures, or stop and frisk. While police have the right to address anybody on the street – even asking a person to “come here” – unless they have a reasonable belief that the individual has committed, is committing, or is about to commit a crime, the person approached has the absolute right to completely ignore the police.

If this man’s story is true – that he did nothing more than ignore the police’s request that he “come here” after they pulled up alongside him – then the police grossly exceeded their authority. Ignoring a police inquiry does not give them the authority to conduct a stop and frisk. It certainly does not give them the right to follow the person to his home, storm his residence, and then charge him with resisting arrest. If the initial stop was unlawful which, if the facts alleged here are true, it was, then any search and arrest that followed were illegal, and all charges against the defendant must be dismissed.

Racial Profiling by Chicago Police

It is an unfortunate fact that racial profiling exists. Studies show that Chicago police officers repeatedly engage in racial profiling, particularly when it comes to traffic stops. The American Civil Liberties Union’s review of traffic stop data collected by the Illinois Department of Transportation shows that Chicago police officers are four times more likely to ask to search vehicles driven by African-American and Hispanic drivers than those driven by white motorists, despite the fact that illegal drugs or guns are found more frequently in the vehicles of white motorists.

Numerous anecdotal reports of racial profiling exist as well. Even the University of Chicago police department, a private force that has the full power of local police for the area it serves, has been accused of engaging in racial profiling.

Stopping an African-American, Hispanic or other ethnic minority based on a reasonable suspicion that he is engaged in illegal activity does not constitute racial profiling. Stopping an African-American, Hispanic or other ethnic minority simply because they are black and “all black men are criminals”, which appears to be the case in this incident, is racial profiling. A stop that is based solely on the color of one’s skin, without any other evidence to support a reasonable suspicion of criminal activity, is illegal, and any search and arrest that follows must be dismissed.

November 26, 2014

Three Chicago Men Charged with Murder in Old Town Shooting

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

Three Chicago men were charged with murder for the shooting death of a Chicago resident recently. The men are accused of pulling up alongside the victim’s car and opening fire; the victim later died of a gunshot wound to his arm after trying to flee the scene.

Co-Defendants and the Felony Murder Rule

In August I discussed the case of a young Chicago boy who was charged with the murder of his friend, even though the friend was shot and killed by an off-duty Chicago police officer. The officer killed the victim during an attempted armed robbery. The defendant was charged with murder under what is known as the felony murder rule, which allows all persons involved in the commission of a felony to be charged with first-degree murder for any deaths that occur during the commission of the crime.

That same rule may apply to the defendants in this case. At present, they are each being held on charges of murder, though authorities have not yet determined (or have not yet made public) who the shooter was. Eyewitness statements indicate that a passenger was the shooter.

Whether or not the rule would apply in this case depends on if the defendants intended to commit a crime when the shooting occurred. For example, if they were driving around in the middle of the night looking for a person to rob, then they could all be charged with first-degree murder since the victim was killed while they attempted to carry out the robbery.

If, however, they were driving around aimlessly just to pass the time, as teenagers often do, and the driver and the second passenger had no idea that the shooter intended to fire at the victim when they stopped the car, then they have an argument for having the murder charges dismissed or reduced.

Weapons were found in the vehicle when the boys were arrested, but carrying weapons does not prove intent to commit a crime. They could be charged with fleeing the scene, obstruction of justice, or other crimes, but if there is no evidence that they intended to commit a felony, or that they knew the shooter planned to commit a felony, then they cannot be charged with murder under the felony murder rule.

Plea Bargain in Chicago Cases Involving Multiple Defendants

Cases involving multiple defendants offer an increased opportunity to strike a plea deal with the prosecution, especially in murder cases where one person was ultimately responsible for the victim’s death. The co-defendants may be able to offer testimony showing that the shooter had a prior beef with the victim, and that the murder was premeditated. In exchange for such testimony, the prosecution may be willing to reduce the first-degree murder charges against the two co-defendants not involved in the shooting, because the testimony raises the probability of winning a first-degree murder conviction against the shooter.

In these cases, having a criminal defense attorney who has established good working relationships with Chicago prosecutors is vital.

November 21, 2014

Illinois Appellate Court Upholds Defendant’s Waiver of Miranda

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

The Illinois Appellate Court recently upheld the admissibility of statements the defendant made to police regarding the death of his wife, and affirmed his conviction for involuntary manslaughter. The court ruled that the defendant’s statements were admissible, even though they were made after he had invoked his right to speak with an attorney, finding that the defendant had voluntarily waived the rights.

People v. Stolberg: Right to Waive Miranda

I have talked before about the Miranda warnings, the rights law enforcement officers must read to every criminal suspect who is taken into custody. Every defendant has the right to remain silent and to speak with an attorney. Once a suspect invokes his Miranda rights, either by refusing to speak or requesting to speak with an attorney, all police questioning must stop. If police continue to question the suspect despite his invocation of his Miranda rights, any statements the defendant later makes are inadmissible.

The court in Stolberg, however, upheld an exception to law enforcement’s prohibition against continued questioning following a defendant’s invocation of Miranda. If a defendant “knowingly and intelligently” waives the right he has already invoked, the police may continue questioning.

In Stolberg, the defendant was questioned in connection with his wife’s death. During the initial interrogation he invoked his right to speak with an attorney, at which point the interrogation rightly ceased. As he awaited transfer to the Mundelein Police Department, the defendant asked why nobody was talking to him, at which point he was informed it was because he had invoked his right to an attorney, and officers were therefore legally prohibited from discussing the case with him any further.

The defendant then told the officers that if he could speak with his mother, he would talk to the police. After again being read his Miranda rights – and confirming that he could end the interview at any time by once again requesting to speak with an attorney – the defendant freely discussed the circumstances surrounding his wife’s death.

On appeal the defendant move to suppress his statements to police, arguing that they were inadmissible since had had initially requested an attorney. The court disagreed, ruling that based on all of the circumstances, the defendant had initiated further conversations with the police and had “knowingly and intelligently waived the right that he had invoked.” His statements to the police were therefore admissible, and his conviction for involuntary manslaughter was upheld.

While Stolberg shows that it is possible for police to continue to question a criminal suspect who has invoked his Miranda rights, the exception is quite limited. As the court makes clear, waiving the rights that had been invoked requires a knowing and intelligent waiver. In reaching its decision, the court relied in part on an earlier case, People v. Outlaw, where the defendant had similarly invoked his right to an attorney after police asked for his cooperation. He then asked police what “cooperation” would entail and, after receiving an explanation, agreed to cooperate and withdrew his request for an attorney.

In both cases, it was clear that the defendants had initiated further conversation with law enforcement after invoking their right to counsel, and they understood what continued cooperation with police would entail. A simple statement of, “Okay, I’ll talk to you,” would likely be insufficient to justify continued police questioning, unless other circumstances showed that the suspect clearly understood what he was doing by waiving his previously invoked rights.

November 19, 2014

Chicago Man Arrested for Shooting Girlfriend, Off-Duty Cop

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

A Chicago man was arrested last week after shooting his ex-girlfriend in the thigh; he also shot the girlfriend’s mother, who is a Chicago police officer, numerous times, and kidnapped his son. Charges are pending, but it is likely the man faces at minimum charges of attempted murder, aggravated assault with a weapon and kidnapping. When arrested, the defendant allegedly admitted to the shootings, asking police, “Did I kill her?” and saying, “I didn’t want this to happen, I didn’t want it to go this far.”

Defense when Defendant Admits to Crime

In all criminal defense cases, the defense attorney’s goal is to get the best possible result for his client. The ultimate goal is an outright acquittal, where the defendant is found not guilty and walks out of the courthouse a free man. Yet in some cases, all the available evidence points to the defendant’s guilt, so an acquittal is not a viable defense strategy. This does not mean, however, that the defendant has no options – and it is these cases where an experienced criminal defense attorney can make all the difference.

We will assume, for this discussion, that the defendant’s statements to the police upon his arrest were in fact made, and that they are a true admission of his guilt. That confession, coupled with both shooting victims likely being able to identify him as the shooter, the defendant and girlfriend’s son being found in his custody, and the gun and spent casings being found in his car – assume again they are a match for the weapon used – all point to his guilt, and would make it difficult to argue a case of mistaken identity, accidental misfiring or self-defense.

The goal of the criminal defense attorney in this case, then, would be to work to get all or some of the charges reduced or dropped. The kidnapping charge has the potential to be reduced to child endangerment or dropped entirely. Technically the defendant’s actions meet the definition of aggravated kidnapping – he transported his son (because he did not have visitation with his son at the time, he is considered to have kidnapped him) while armed with a firearm and while discharging a firearm that caused great bodily harm to another person.

However, a case could be made that at the moment of the kidnapping, the defendant was actually acting in the child’s best interest. The child’s mother and grandmother had just been shot – leaving him alone and frightened in the middle of a crime scene was potentially more dangerous than the defendant removing him from the scene. The fact that the boy was soon found unharmed at the home of another family member adds additional support to reducing or dropping that charge.

The defendant is also allegedly a Gangster Disciple, a notorious Chicago-area gang. The prosecution may be willing to enter into a plea agreement for a reduced sentence in the defendant were willing to testify against any other current gang members. The defendant may also qualify as a participant in Chicago’s Gang Intervention Probation or Gang Violence Reduction Strategy programs.

November 14, 2014

Chicago Man Violates Terms of Bond, Faces Additional Charges

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

A Chicago man out on bond was arrested last week and charged with unlawful possession of a weapon by a felon, cocaine possession and marijuana possession. The defendant was arrested after Sheriff’s Office personnel noticed crack cocaine on a plate on the defendant’s dining room floor; a subsequent search uncovered a fully loaded AK-47 and a .357 revolver and marijuana.

Search Incident to Electronic Monitoring Violation

Sheriff’s Office personnel came to the defendant’s home after his electronic monitoring device indicated that he was out past curfew. Upon arriving, Sheriff’s Office personnel determined that the defendant had had a legitimate reason for having left the residence. They then entered his home.

At this point you may be thinking, “Wait, don’t the police need a search warrant to enter a person’s home?” Under normal circumstances, you would be correct. Except in certain instances – such as when an officer has probable cause to suspect illegal activity – a police officer may not search a person or his home without first obtaining a search warrant from the court.

But in this case, the defendant was on electronic monitoring as part of his bond requirements for an unrelated drug possession charge. And in order to participate in electronic home monitoring, defendants must consent to allow Sheriff’s Office personnel entry into their home at any time. So when officers showed up at the defendant’s door, he had no choice but to let them in, or else risk being in violation of the terms of his release.

Now this does not mean that officers had the right to search his home. And in fact had they completed a search of his home, after determining that the defendant was authorized to have left the home, the drugs and gun paraphernalia they uncovered would likely be inadmissible in court. Unfortunately for the defendant, the crack cocaine was sitting right there, in plain view on the defendant’s dining room floor – and police officers do not need a warrant of any kind to make an arrest for illegal activity being conducted in plain view.

Once the defendant was arrested for possession of crack cocaine, the police were authorized to search the remainder of his home as a search incident to arrest. This doctrine permits law enforcement to conduct a search to make sure there are no weapons in the defendant’s immediate control that could be used to harm officers and to uncover additional evidence of illegal activity related to that already uncovered.

Chicago Conditions of Release

This case helps illustrate how an experienced defense attorney can skillfully negotiate anything from conditions of release to a plea deal with probation, but in the end that time and effort can be quickly undone if the defendant does not use common sense and stays out of trouble. This is particularly true when the defendant is release on electronic monitoring, where part of the conditions of release include consent for law enforcement officers to enter the defendant’s home at any time.

For this particular defendant, and many more like him, it is going to be that much harder for his criminal defense attorney to successfully negotiate a similar bond release, and bolsters the prosecution’s case for the initial drug charge. The criminal defense attorney and the defendant are a team working to achieve the best possible result, whether that is an outright dismissal of all charges, an acquittal, or a reduction in charges or reduced sentencing. But in order for the criminal defense attorney to be successful, the defendant must not do anything to jeopardize his defense.

November 12, 2014

Chicago Men Charged with Sexual Assault of Escorts

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

Two Chicago men have been charged with unlawful restraint, aggravated assault, aggravated robbery and aggravated criminal sexual assault with a weapon for allegedly luring escorts to vacant office buildings in an attempt to rape and rob them.

Sexual Assault of Escorts

Upon first hearing of this case, many people might think, “How could these women have been raped, when they were hired for sex?” (Although not all escorts provide sex to their clients, for this post we will assume these women intended to do just that).

In a prior post I discussed a similar case involving a McHenry County man convicted of raping prostitutes he connected with via Craigslist. So although these women went to the building with the intention of having sex with the defendants, under the law they may withdraw their consent at any time.

Whether consent was granted or withdrawn is difficult to prove in sexual assault cases, and always comes down to a he said-she said argument. It is particularly difficult to prove lack of consent in cases involve sex workers, since sex was the whole motivation for the defendant and alleged victim to meet. In these cases, the best defense would be to provide evidence showing that the alleged victims only claimed lack of consent because the encounter did not go as planned.

Assault of Chicago Escorts: Business Deal Gone Wrong

Encounters with prostitutes or escorts are a business deal, so the strongest defense (assuming forensic evidence proves that sexual intercourse took place) is to provide evidence of a business deal gone wrong, and the alleged victims fabricated or exaggerated the events in retaliation.

Like any business deal, the women likely quoted the defendants a price for their services. Upon arriving at the building and completing the transaction as planned, the defendants may not have been able to pay the quoted price. Or they may not have ever intended to pay. In either event, this would not constitute sexual assault – instead, it would be theft of services. However, a sex worker would not be able to press charges for such a crime, since prostitution itself is a crime. Their only recourse, then, would be to fabricate a claim of sexual assault, as well as all other charges as retaliation.

It is important in sexual assault cases which rest on consent, or lack thereof, to examine all of the evidence – forensic and eyewitness – as well as the circumstances that led to the meeting and details regarding the sexual intercourse, to determine whether it can be used to prove or disprove consent.

Defense in Case Involving Multiple Defendants

In cases involving multiple defendants, if the facts tend to show that a guilty verdict is likely, an experienced criminal defense attorney will work with his client and the prosecution to obtain a lesser sentence or to have charges reduced in exchange for cooperating with the prosecution.

In cases involving multiple defendants, it may be that one defendant instigated the crime, or that one did not actively participate, but was only an accomplice or unwilling participant. In these cases, the prosecution may be willing to cut a deal in exchange for testimony to convict the co-defendant. This is an especially attractive proposition to the prosecution in cases where lack of consent may be difficult to prove, such as in the case of a sex worker where the jury may believe she could not be raped since she sells sex for a living.

David L. Freidberg has worked with many Chicago prosecutors throughout his almost 20-year career to successfully negotiate a plea deal for his clients that save them substantial prison time. He will put these negotiation skills to work for you. Continue reading

November 7, 2014

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

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

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

Chicago Defense of Unrelated Crimes

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

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

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

Defense against the murder charge would include:

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

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

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

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

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

November 5, 2014

Cook County Correctional Officer Arrested in Undercover Sting

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

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

Chicago Theft Defense

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

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

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

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

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

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

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