Articles Tagged with Chicago criminal defense lawyer

Hilulaohaio-225x300Chicago has sought to deal with the increasing problem of hate crime using legislative means. The provisions of the Illinois Hate Crime Act (IHCA), 720 ILCS 5/12-7.1, are the leading authority on the management of the criminal process. The act creates an imperative on the state to prosecute but does not explicitly remove the opportunity for private civil cases to take place. Many victims take the opportunity to sue for damages, even when the aggressor is a public authority or their representatives. The range of options for the court includes actual damages, punitive damages, and additional costs, including attorney fees. At other times, the court may offer injunctive relief in order to stop the offending behavior from happening.

The criteria for what constitutes a hate crime can be fluid and those who offend have often used the ambiguity of definitions in order to attempt a get-out-clause for their behavior. Typically, they will claim that this is a case of freedom of speech, which is constitutionally guaranteed. For those who actually go on to commit acts of violence, the case is much simpler since the prosecutor can go for the assault line of questioning and later prove that hate-inspired motives were at play. A crime becomes a hate crime when it is motivated by perceived creed, race, color, gender, ancestry, religion, sexual orientation, disability, nationality and even membership of a particular group. Bigotry is at the heart of this crime and will be part of the Mens Rea during the prosecution.

The Importance of the Motivating Factors

benjamin-voros-160962-300x200The computer has been used to commit crimes, right from its inception. More recently, the city of Chicago has had to contend with the reality of cyber extortion. The state has certain duties and liabilities which include investigation and prosecutorial powers. The essential ingredients of the crime are that the offender gets the victim to do or not do certain things in order to avoid being harmed. The internet is then the conduit through which they make the threats, agree the illegal contracts and collect on them. Hackers have found the computer to be perfect for blackmail and ransom notes. One of their favorite tricks is to obtain sensitive information from an organization and then threaten to publish it unless their demands are fully met.

The demands invariably include monetary compensation but the standards of the crime can still be met even if money does not exchange hands. At other times the hackers will plant malicious information or programs for which only they have the key. That means that unless the victim accepts their demands, they will let the program wreak havoc. That havoc might involve wiping out the entire database of company information. Hackers may even deny an organization access to its own files in order to ensure that they can comply with the extortion demands. The range of victims is startling including municipalities, hospitals, government agencies and even private individuals.

A Violation of Privacy and Property

800px-Andaman_Celluler_Jail_Cell_Door_4150238-300x225There has been much public debate about how and why the law as it stands is relevant to the daily lives of people in America. It is therefore not surprising that the enactment of the Chicago law on unlawful restraint has exercised lawyers on both ends of the spectrum. Some perceive it to be a vanguard of protections from potential kidnappers. Others are less complementary and perceive it to be full of inconsistencies. This article considers some of the legal and practical issues that would be relevant to the work of a defense attorney in these cases.

An Overview of the Relevant Rules

First of all, it is important to note that the original conception of the law was designed to address those who held others against their will and without the appropriate authority. Therefore, this law is a precursor to the measures that punish various forms of kidnapping. The constituent elements of the crime include the prevention of free movement without proper authorization.

sve4luszh70-ant-rozetsky-300x200Just like in many jurisdictions, Illinois takes vehicular hijacking to be a particularly serious crime as listed in the provisions of the legislative instrument number 720 ILCS 5/18-4. Upon conviction, the defendant can expect a term of imprisonment that ranges anywhere from four to 15 years. There are specific aggravating and mitigating features that the defense attorney should pay careful attention to.

If the judge believes that the aggravating circumstances outweigh the mitigating features, they can raise the sentencing range to six to 30 years. In exceptional cases, a whole life term may be imposed. Therefore, it is clear that this is the type of offense in which the court has wide discretion. It also means that the defendant will require first-class legal representation in order to bring the categorization down to the lowest end of the seriousness scale.

Procedural and Substantive Considerations in the Legal Framework

o_498v1-nbc-rachel-paprocki-300x201The felony charge sits just below terrorism and treason when ranking the criminal offenses that are known in the Chicago statues. It is a step up from the misdemeanor and carries a lot of serious consequences for the defendant including the loss of their liberty and a debilitating criminal record. As a rule of thumb, an offense becomes a felony if it is capable of attracting a punishment that exceeds one year in jail. Some jurisdictions have gone as far as setting mandatory sentencing for certain felonies in order to control the court process in such a way as not to dent public confidence in the system. Others have classified obsolete felonies as being non-prosecutable.

There is considerable public debate as to whether the classification of felonies is appropriate for this century. For a start, the idea of a permanent criminal record might sound good in terms of retribution and public safety. However, the reality is that people who are unable to find work will inevitably turn back to crime, which means that the vicious circle will never end. Nevertheless, the trial judge tends to take into consideration a number of factors at the sentence hearing including:

  • Previous known criminality,

3scbuulajgg-matthew-hamilton-300x200It is a nightmare scenario when a defendant is accused of having injured a police officer in the line of duty. Both the courts and probation office are reluctant to give defendants any benefit of doubt or leeway in such circumstances. The message is clear: You mess with public officials and the public will mess with you by way of aggravated sentencing guidelines. Although such cases are a true test of defense skills, it can certainly help to solidify some of the key aspects of criminal defense. Many trainer attorneys might benefit from handling such a case. The key ingredients of the crime are summarized in the provisions of 720 ILCS 5/12-3.05.

Understanding the Crime and its Ingredients

It helps to first understand the general crime of battery and then assess the aggravating features in as far as they relate to the current case. First of all, the defense team must take note of the important technicality that battery for these purposes excludes the discharge of a gun. That is an entirely separate crime with more serious consequences for the defendant if one of the victims was a police officer. In any case, there is a requirement that the defendant knowingly committed the constituent acts which include causing bodily harm or disfigurement. The harm clause also refers to permanent disability.

Pipes_01-1-300x200Broadly speaking, the law in Chicago gives the police power to search and seize items if and when they suspect that those items are relevant to the commission or investigation of a crime. However, some law enforcement agencies have abused this power resulting in the interventions of senior courts to determine what constitutes a legal search and seizure in Chicago. Defense attorneys may find themselves in a position where they are effectively prosecuting the law enforcement agencies for breaking the law. Typically, these complexities arise in the midst drug-related cases.

The Interplay Between Constitutional and Criminal Law

The Fourth Amendment has guaranteed Americans the right to be free from unreasonable search and seizure. However, that tends to focus more on the federal government overreach. Of course, there are those that push the law to its very limit by insisting that they are able to occupy public property without intervention from the state. That is why the law always includes a caveat of reasonableness which is open to interpretation and definition by the courts. The Fourth Amendment does not cover seizure by private individuals and therefore anyone that engages in this type of activity on their own authority is bound to encounter serious legal problems.

LAPD_Arrest_North_HillsClients who are involved with the criminal justice system in Illinois are understandably intimidated by the processes and rules. That initial panic is the main reason why so many defendants make a host of mistakes that come back to bite them later on as the case is disposed of. The first issue to consider is that of adequate legal representation. The state-appointed attorney should be a last resort if there are absolutely no alternatives save from self-representation.

In serious cases such as murder, rape, or assault the court insists on legal representation. If the client is unable to come up with representation, then an attorney or public defender will be appointed on their behalf. Unfortunately the quality of representation is not as high as would have been the case if you select your own attorney. In any case, it is important to understand the various stages of the criminal case processes so that you are not taken by surprise:

  • Making a criminal complaint: A victim of crime will contact the law enforcement agencies to get help. This normally via the 9-1-1 call. Later on the victim may decide to press charges. In some cases the law enforcement agencies will press charges even where the victim refuses to engage with the process. This is because in Illinois (like the rest of USA) crimes can be committed against the state.

A Saint Xavier University football player and criminal justice major, Jonathan Gilbreth, was charged with one felony count of burglary on June 26, 2015, according to a news report. At around 3:10 a.m., police responded to a security alarm at an Oak Lawn tobacco store where they saw a man running from the area behind the store. After a brief foot chase, police caught Gilbreth at a nearby backyard and found him in possession of tobacco products from the store. A witness also saw Gilbreth hit the glass door to the tobacco store just before the security alarm went off.4041717501_067f15b234

Burglary laws in Illinois

According to Illinois statute, a person commits burglary if he or she:

  1. Enters or remains in a building, house trailer, watercraft, aircraft, motor vehicle, railroad car without authority; and
  2. Does so with the intent to commit a felony or theft inside.

Entering without permission is not enough – prosecutors have to be able to prove that the individual entered (or remained) with the intent to commit theft or some other felony. Here, the police witnessed Gilbreth running from behind the store and found him in possession of products from the store. It is likely the police will have a strong case with circumstantial evidence where Gilbreth’s actions are only consistent with an intent to steal. Additionally, the intended crime does not have to occur – it is enough that an unauthorized entry occurred with a corresponding criminal intention.

Possible defenses to burglary may include negating the first element of the offense by proving that the individual had the consent of the owner or occupier of the property to enter. In these cases, there would be no unauthorized entry. Even if the defendant misunderstood the owner and erroneously believed he had permission, the belief in the consent, if reasonable, may be enough to defeat a charge of burglary.

Also, burglary requires that a person have the specific intent to commit theft or a felony once inside the property. If a person was intoxicated, it may be a valid defense to the degree that it kept the defendant from forming the specific intent.

Penalties for Burglary as a Felony

If proven, burglary is considered a Class 2 felony in Illinois, which is punishable from three to seven years in prison. However, if the individual 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.

However, 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.

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Three Chicago men chased down and forcibly detained a man after he allegedly committed robbery of a woman in the vestibule of a building. The three men tackled the alleged assailant and held him until police arrived. Although there is no indication that police plan to do so, under certain circumstances the three men’s actions could be considered crimes themselves.13904826266_ef045fab5c (1)

Chicago Vigilante Justice

People who prevent crimes are generally regarded as heroes. But there is a price to vigilante justice – just like the criminal justice system, sometimes innocent people are wrongly accused of crimes. That is why the law discourages citizens going out and “righting wrongs” and arrests them for their crimes – think fathers who murder their daughter’s abuser, or a brother murdering the people who killed his sister. Bringing assailants to justice is best left in the hands of the criminal justice system, where all of the evidence is brought before a jury to examine and make a decision on the defendant’s guilt or innocence.

In this case, it is unlikely that the prosecutor would file charges against the three men because their actions followed immediately upon the heels of the alleged crime. Most cases brought against vigilantes are done when their acts were done at some time following the crime, making them more deliberate, as opposed to a heat of the moment case.

That being said, what are some possible charges that could be brought against the three men who detained the alleged assailant, and what are the possible defenses?

Assault

Assault occurs when a person, without lawful authority, puts another in fear of bodily injury. The alleged assailant in this case no doubt feared for his safety as he was being chased by these three men. It’s not like they were chasing him to say hi, or return something he’d just dropped on the street. The minute they yelled and started chasing him, the assault was complete.

Battery

Battery occurs when a person, without legal justification, causes bodily harm to another, or makes physical contact of an insulting or provoking nature. When the three men grabbed the defendant, that contact was sufficient to constitute a battery.

Unlawful Restraint

A person commits the crime of unlawful restraint if he “knowingly without legal authority detains another” person. In this case, the three men clearly detained the alleged assailant, holding him until police arrived. Their action was performed knowingly – that is, intentional – because they chased after him in order to catch and detain him.

Defense

The only defense to each of these charges would be if the men had “lawful authority” to chase and detain the defendant. Illinois law permits a “citizen’s arrest” if the person has “reasonable grounds to believe that an offense . . . is being committed.” In this situation, whether the men had legal authority would hinge on when their chase of the alleged assailant occurred. If it began before the crime was completed – for example, if they heard the woman yell while her purse was being stolen and began the chase – then they would have the legal authority required to make a citizen’s arrest. But if they gave chase after the defendant had already ran away, they would not, because a citizen is only authorized to make an arrest if the crime is being committed, meaning it has not been completed yet.

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