Chicago criminal defense lawyer

February 4, 2015

New Illinois Police Lineup Procedures Seek to Curb False Identification

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

Eyewitness identification is heavily relied upon by juries and judges when deciding on a criminal defendant’s guilt or innocence – yet it is the leading cause of wrongful conviction.

A new Illinois law seeks to cut down on the misidentification of criminal suspects in police lineups by eliminating the potential for officer bias.

New Procedures for Chicago Police Lineups

Chicago police departments currently use “standard lineup” procedures, which are inherently biased – the lineup administrator (the person who organizes the lineup) knows the identity of the suspect. This increases the chances that he may, whether on accident or on purpose, give clues to the victim regarding which suspect she should “identify.” The bias is present in both live and photographic lineups.

The new law eliminates this bias by requiring that all lineups be conducted using one of three methods:

Independent administration. In this procedure, the lineup administrator is not a participant in the investigation and has no knowledge of who in the lineup is the suspected perpetrator. This eliminates the possibility that he can influence the eyewitness into choosing the police suspect.

Automated administration. In this procedure, a computer or other device automatically displays a photographic lineup in a manner that prevents the lineup administrator from seeing which photographs the eyewitness has viewed until the lineup is completed.

Random administration. In this procedure, photographs are placed in file folders that are then randomly numbered, shuffled and presented to the eyewitness. As in the automated administration, the lineup administrator has no knowledge of which photographs the eyewitness has viewed until the lineup is completed.

Police may also utilize any other method that guarantees that the lineup administrator has no knowledge either of the suspect or of which photographs the eyewitness is viewing until the lineup is completed.

In addition, lineups shall be composed to ensure that the suspect blends in with the “fillers”, those non-suspects who are included in the lineup. This means that the fillers should be substantially similar to the appearance of the suspect as described the eyewitness, such as race, height, facial hair, tattoos or other identifying characteristics.

If a police lineup does not comply with the new procedures, or if it can be otherwise proven that the lineup administrator improperly influence the eyewitness’ identification, that identification may be ruled inadmissible in court, or the jury may be told that the identification is suspect because the police failed to follow proper procedures.

The change in proper lineup procedures is very much needed and goes a long way toward protecting the rights of criminal suspects. The inherent bias in standard lineup procedures leads to the misidentification of suspects, some of whom are later wrongfully convicted or plead guilty to crimes they did not commit. Others suffer the stress, sometimes while in jail, before further police investigation determines that the evidence does not support the suspect’s having committed the crime. Continue reading

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.

October 17, 2014

Chicago to Allow Post-Conviction DNA Testing

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

A law signed by Illinois Governor Pat Quinn in August allows Illinois prison inmates who pled guilty to murder, rape or any other crime where DNA evidence is present, to petition the court to have that evidence tested in an attempt to have their conviction overturned.

Illinois Post-Conviction DNA Testing Law

Prior to enactment of the amendment, Illinois inmates were only allowed to petition the court for post-conviction DNA or other forensic testing if they were found guilty at trial. Entering a guilty plea prior to a verdict being handed down made inmates ineligible for post-conviction DNA testing.

The amended law changes that. Under the law as amended, inmates who pled guilty prior to trial may petition the court if they can prove that:

Identity was the issue that led to their guilty plea; and
The evidence to be tested has remained in the chain of custody sufficient to establish that it has not been altered in anyway.

In order to file the petition, the DNA evidence must not have been available when the defendant entered his guilty plea, or new testing techniques must have been developed. In addition, the defendant must prove that the evidence

raise(s) a reasonable probability that the defendant would have been acquitted if the results. . .had been available prior to the defendant’s guilty plea. . .even though the results may not completely exonerate the defendant.

The change is one that is long overdue and provides necessary relief to those wrongfully convicted. According to the Bluhm Legal Clinic at Northwestern University School of Law, 165 Illinois inmates have been exonerated thanks to post-conviction testing of DNA and other forensic evidence. Many of these men and women were convicted based on eyewitness misidentification – according to the Innocence Project, nationwide 72% of inmates exonerated thanks to post-conviction DNA testing were convicted based on eyewitness testimony.

In addition to false convictions based on eyewitness misidentification, research has shown that many other innocent men and women plead guilty to crimes they did not commit. They do so for a variety of reasons, including:

police intimidation;
inhumane investigation tactics, such as withholding of food or sleep; or
fear of receiving a harsher sentence at the hands of an unfair or biased jury.

Others are the victims of unscrupulous tactics by the prosecution, such as withholding of evidence, or shoddy police investigative work, such as when the police fail to completely investigate a case because they feel they “got their man.”

Knowing that an untold number of innocent Illinois residents plead guilty to crimes they did not commit because of these and other reasons, Illinois State Senator Kwame Raoul sponsored the law specifically to address these inequities. Imprisonment for a crime they did not commit is bad enough – and not allowing them to have newly discovered DNA evidence tested to help exonerate them, based simply on the fact that they chose to plead guilty rather than face the uncertainty of trial, is piling injustice on top of injustice. Continue reading

October 1, 2014

Skokie Jewelry Home Theft

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

An unidentified person allegedly stole jewelry from inside a home during a Skokie estate sale last week. The case is interesting because it raises a number of different issues that the prosecution will need to overcome if an arrest is made and charges filed, as well as many possible defense strategies to explore.

Proving Skokie Theft Case

At the outset, the prosecution faces an uphill battle in obtaining a positive identification of the alleged thief. In reference to the estate sale, individuals were no doubt going in and out of the home. Any forensic evidence found at the scene – such as fingerprints, clothing fibers, or other DNA evidence – cannot provide a smoking gun. Here, the suspect was “invited” into the home for purposes of the sale. Absent any forensic evidence tying the suspect to the scene, an eyewitness identification is strongly in doubt. With the family talking to dozens of people while trying to make sales, without any distinguishing characteristics on the suspect’s part, it will be difficult for eyewitnesses to testify with certainty that the suspect was present in the home.

Even if caught – for example, if a local pawn shop reports purchasing the stolen jewelry – it is difficult to prove beyond a reasonable doubt that the suspect was the person who stole the jewelry. Without a positive identification or any forensic evidence tying him to the scene, there are any number of possible reasons the suspect could have come into possession of the jewelry. He could have purchased it from a different pawn shop, received it as a gift, or even found it discarded in a trash can or on the side of the road.

Skokie Defense of Theft

From the defense side, there are several issues to explore regarding the estate sale itself that could help cast doubt on the suspect’s guilt:

Was there a “free” table at the sale? If there was, it raises the possibility that another attendee, or even a family member, mistakenly laid the jewelry on that table, leading the suspect to believe it was free for the taking;

How many people were in charge of handling transactions? If there was more than one person handling sales, it is possible that the suspect actually paid for the item. Lack of communication between salespeople could cause the sale to not be properly recorded, thus leading to a misunderstanding that the item was stolen;

Do any of the people running the estate sale carry a criminal history of theft or similar crimes themselves? It is possible one of the salespeople simply pocketed the money from the sale and reported it as stolen to cover his tracks;

Is there animosity among the family members set to inherit the estate? Proceeds from the estate sale are deposited into the estate and used to pay estate bills before they are ultimately distributed to the heirs. If there was a disagreement amongst family members as to who should receive the allegedly stolen piece of jewelry, a decision of the majority of the heirs would win. A disgruntled family member who wanted the jewelry may have pocketed it and concocted the theft story to deflect blame.

Each of these scenarios would cast serious doubt on the defendant’s guilt, and are all avenues that David L. Freidberg would explore in working to get the charges dropped or the case dismissed. Continue reading

September 29, 2014

Corporal Punishment of Illinois Children: Child Abuse or Parent’s Prerogative?

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

The recent indictment of Minnesota Viking’s running back Adrian Peterson on charges of child abuse, which stemmed from his admission that he disciplined his young son with a switch, is raising questions over just what constitutes corporal punishment, and when it crosses the line from discipline to child abuse.

Chicago Spanking Laws

Under Illinois law, it is considered child abuse if a parent “inflicts excessive corporal punishment” upon his or her child. The use of the qualifier “excessive” makes clear that a Chicago parent is allowed to use corporal punishment when disciplining his or her child. But the law fails to define what pushes the corporal punishment, which may include spanking, hitting, pinching, slapping, or any other type of action with the intent of inflicting pain, from permissible to excessive.

The Illinois courts have dealt with the issue of corporal punishment at various times, consistently ruling that “parental rights of discipline are limited by a standard of reasonableness.” But they cite no examples of what constitutes unreasonableness.

How, then, is a parent to know whether discipline of a child will result in criminal charges? Unfortunately, they cannot, since there is no clear cut answer. What is reasonable today may be unreasonable tomorrow, depending on society’s changing views of corporal punishment. It can even vary depending on the type of punishment inflicted, the region, and the terms that are used to describe the punishment.

Cases such as these highlight the importance of obtaining experienced legal counsel. The sole basis of whether a parent’s physical discipline of his or her child qualifies as excessive under the law comes down to a reasonableness standard.

Defending against child abuse charges that stem from corporal punishment requires the ability to not only thoroughly examine all the circumstances to make a case for reasonableness, but also the ability to make a jury understand why the parent believed his or her method of discipline was reasonable. It also requires an examination of medical evidence regarding any alleged injuries, as well as photographs taken following the incident.

Whether the punishment is reasonable will rest in part on the severity of the discipline and whether it caused any injury. That requires a careful examination of any photographic evidence and testimony from qualified medical experts on the lasting impact, if any, from the discipline.

Photographs taken immediately after the incident may show red marks or other visible evidence of the physical discipline. But any type of physical contact can leave an imprint. Instead, the real question is whether that imprint remained, or whether it faded away shortly after the incident occurred. Physical marks that disappear shortly after the discipline would disprove excessive use of corporal punishment. If there are no follow-up photographs, medical testimony from David L. Freidberg’s team of medical experts could help jurors understand that an “injury” that looks bad in a poorly taken photograph actually faded away in an hour or two.

Eyewitness testimony is also important in disproving the excessive nature of the discipline. For example, if the child was running around playing like normal shortly after the punishment, as opposed to limping, that would go toward disproving that the punishment was excessive. Continue reading

September 26, 2014

Sex Abuse Conviction Overturned Due to Inadmissible Evidence

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

An Illinois Court of Appeals reversed the conviction of an Illinois man on charges of criminal sexual abuse, finding that evidence of other sex crimes allegedly perpetrated by the defendant was inadmissible. Without that evidence, there was an insufficient basis for upholding the conviction.

People v. Puccini

The defendant, Leonard Puccini, was charged with criminal sexual abuse after allegedly spanking the bare bottom of a 12-year-old boy for his own sexual gratification. At trial, the court admitted evidence in the form of witness testimony from two older boys (now adults), both of whom alleged that Puccini sexually abused them in the 1990s (though he had not pulled their pants down and spanked them).

Illinois law allows evidence of prior charges or accusations of criminal sexual abuse to be admitted at trial to show the defendant’s propensity for committing sex crimes. Evidence of other alleged bad acts is admissible only if the probative value of the evidence – meaning that the evidence will assist the jury in its determination – outweighs any potentially negative effect. The fear is that evidence of prior bad acts will sway the jury to render a guilty verdict based not on the evidence in the case, but because it paints a picture of the defendant as an overall bad person. Just because a defendant committed a prior similar act does not mean he committed the act for which he is currently charged, which is why the court must carefully consider whether the evidence will unfairly sway the jury to find the defendant guilty.

When weighing the probative value of evidence, the court must consider:

The proximity in time to the charged offense;
The degree of similarity to the charged offense; and
Other relevant facts and circumstances.

On appeal, Puccini’s attorney argued that the negative effect of the two witnesses’ testimony outweighed any potential benefit. No charges were brought against Puccini for the prior alleged crimes, and they allegedly occurred almost 20 years prior. In addition, the acts were not similar. The witnesses testified that, following the abuse, which allegedly involved Puccini touching their private parts, he then masturbated, thus fulfilling the “for his own sexual gratification” element of sexual abuse.

The testimony of the young boy in the present case was inconsistent on whether Puccini masturbated following the spanking. Statements he made to the police differed from what he said at trial, and his testimony that Puccini went into another room to sexually gratify himself after the spanking was not credible. The boy testified he only heard “tapping noises” in another room, and although he initially told police he thought Puccini had an erection, he admitted that he never turned around to look at Puccini after the spanking.

The Appellate Court noted that the trial court, in rendering its decision, relied solely on the testimony of the two adult males in determining Puccini’s actions were for his own sexual gratification. Yet the earlier crimes, if committed, were worse than the crime for which Puccini was currently on trial, causing the Appellate Court to rule that the prejudicial effect of the witnesses’ testimony outweighed any probative value.

Without the testimony of the two witnesses, the Appellate Court found that there was not enough evidence to support Puccini’s conviction. In this instance, the defendant cannot be retried – double jeopardy prohibits a defendant from being tried again in order for the prosecution to provide evidence it failed to produce in the first trial. Continue reading

September 24, 2014

Sexual Assault: It Happens to Men, Too

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

A Chicago woman was arrested for her role in the alleged sexual assault of a Chicago man at gunpoint. The defendant and her friend picked up the man in their car as he walked down a Chicago street and proceeded to assault him.

Male Rape Victims

Sexual assault of a man can – and does – happen. Rape is traditionally an underreported crime, even more so for men than women. But the most recent statistics indicate that 38 percent of sexual assaults occur against men by women. Other studies estimate that 1 in 10 adult males will be the victim of a sexual assault.

The word “rape” typically elicits an image of a man forcing a woman to engage in unwanted sexual intercourse. But Illinois sexual assault laws are gender neutral. Criminal sexual assault requires penetration by any object. If the woman causes the male to penetrate her, whether forcibly or through threat of force (for example, at gunpoint, which was alleged in this case), or if she uses any object to penetrate his anus (including fingers), that constitutes penetration under the law.

Criminal sexual abuse requires an act of sexual conduct by force or threat of force (again, at gunpoint would qualify). “Sexual conduct” includes touching of sexual parts. In this case, forcing the alleged victim to fondle the woman’s breasts constitutes an act of sexual conduct that could result in a charge of sexual abuse.

Defense Against Sexual Assault

Defending a charge of sexual assault against a male is no different than defending a charge of sexual assault against a female. In the above case, as in the majority of sexual assault cases, there were no eyewitnesses other than the three parties involved. Therefore, the case comes down to “he said-she said.”

Some sexual assault claims are fabricated in an attempt to retaliate against the alleged offender for some perceived transgression, or else stem from a sense of regret that the sexual conduct occurred. This is especially true in cases that begin consensually. In such cases, a careful review of the circumstances leading up to the alleged crime is necessary to determine whether the crime was fabricated as an attempt to save face, or to retaliate against the alleged perpetrator.

In the case mentioned above, where the victim willingly entered the defendant’s vehicle, it is possible the man originally intended to purchase sex. An investigation into his criminal background could reveal prior arrests and/or charges of solicitation or attempted solicitation. This, in turn, could support a defense that, after the parties engaged in consensual sex, the defendant committed an attempted robbery, and the man retaliated by filing the sexual assault claim. Continue reading