Articles Tagged with criminal defense

w33-zg-dnl4-rami-al-zayat-300x200Revenge porn is a crime that is gaining prominence in the age of social media. The law in Chicago took some time to catch up with the reality that some victims were being exposed to serious danger. By 2015, the state legislature had decided to write a law that set out the parameters for an effective prosecution. The leading instrument is 720 ILCS 5/11-46. At the moment revenge porn is considered to be a felony offense. In actuality, Chicago is in the minority when it comes to jurisdictions that have finally started criminalizing this type of behavior. Illinois is noted as the state with the strictest laws in this category. The crux of the offense is sharing nude or compromising images and videos of a person without his or her consent. One must have the unequivocal consent of a person in intimate images before those images can be shared.

It is entirely possible that images which are not extremely explicit can be considered to be part of a revenge porn offense. The charge can stick even if the person had originally consented to the recording of the image but was then unaware that the image was going to be distributed. Defense lawyers have argued that the definition is too wide and gives the court way too much discretion in determining what constitutes revenge porn. Chicago has different from other states in important ways as follows:

  • The intention to cause harm is not necessary for the charge to stick. All that is required is that the images or videos were distributed. Malicious intent can be an aggravating factor but its absence does not remove the charge.

mingyue-sun-153025-300x169The harrowing circumstances that typically surround a human trafficking case in Chicago means challenging work for a defense attorney. The crime tends to intersect with other serious crimes such as rape and sexual assault. That is why organizations like the Alliance Against Sexual Exploitation were formed in order to ensure that the victims get full justice. Chicago has adopted a two-pronged approach that complements local legislative arrangements with the provisions of the relevant federal law. At the same time the law enforcement agencies are paying a lot of attention to how the sex industry is directly and indirectly at the heart of these types of crimes.

Establishing the Factual Basis for the Prosecution and Defense

The process of gathering evidence is quite complex in these cases, which is why it is advisable to first consult with the best attorneys before presenting any defense. The fact that there is an aspect of conspiracy significantly increases the range of punishments that are available to the courts. The Illinois legislature has been coming up with new bills and amendments that are designed to cover the loopholes that were left behind by the federal law. Of particular interest is the use of the affirmative defense, one which is applicable in 28 other states. The law is contained within the provisions of SB 1588.

greg-rakozy-203292-225x300The Ponzi scheme deservedly has a very bad name in Chicago because it inevitably leads to the process of bankrupting investors. It is confidence trickery at the highest level and with grand impact. The best definition of a ponzi scheme is one in which investors are only paid through the investor’s own money. Therefore, the investor is simply giving money to the leader of the scheme and making no discernible profits. The fraudulent investment has been made famous by the likes of Madoff but before that, there were very many victims that went unaided. The courts have classified it as a white collar crime based on the financial implications of its enactment and the fact that it inevitably involves a level of fraud.

For the defense attorney, the person accused of a Ponzi scheme represents unique opportunities and challenges. First of all, it is more than likely that the prosecutor will have a long list of victims with impact statements to sway the jury. Secondly the evidence is there but the last remaining ingredient is to prove the mens rea or the thought process that goes into committing fraud. Some defendants argue that promising great profits is not a crime but rather a sign of misguided ambitions. However, the courts are of the view that promising profits that are clearly unrealistic and knowing that they are unrealistic is a fraudulent activity that must be punished accordingly.

Preparing a Convincing Defense

tim-evans-88330-300x200The crime of bank fraud is sometimes thought of as being harmless given the fact that it involves big powerful corporations and rarely involves any violence. However, the courts take it seriously and are quite capable of imposing significant penalties for it. The technical definitions of the crime include the illegal acquisition of assets, money or property by any entity or institution through deceit and dishonesty. Given the concern about an implied leniency against white collar offenders, bank fraud has sometimes been elevated to the level of a federal crime.

According to the Bank Fraud Act, the prosecution is free to label and pursue the crime depending on the amounts involved and the method that was used. A level of sophistication as well as conspiracy will always be aggravating factors. On the other hand, the court will also consider the victim impact statements. Although the media coverage may often be sensationalist, the courts are at pains to demonstrate that they are bound by the sentencing guidelines as well as the facts as examined from the viewpoint of giving as much weight as possible to the intention of the legislature when the law was enacted.

Developing a Theory and Practical Basis for a Defense

https://www.chicagocriminallawyerblog.com/files/2017/01/550px-Censored_rubber_stamp.svg_-300x261.pngThe law of public indecency in Chicago is complex precisely because it touches on the interaction between personal freedom and societal norms. What some consider to be harmless exhibitionism may meet the statutory minimum for the crime of public indecency (see People v Reed). Generally speaking, society has condemned indecent exposure in public as an unacceptable occurrence that must be punished. Sometimes, however, people who are engaged in perfectly harmless activities are suddenly subjected to a complex criminal investigation under these laws. However, it must be noted that the law enforcement agencies in Chicago have used an even-handed approach in these cases.

Understanding How the Crime is Committed

The intent is important in determining whether the offense is a mere misdemeanor or whether it meets the criteria for a felony. It is not the case that indecent exposure is an infraction, although this is a widely held misconception of the law. You should not expect that you can get away with merely paying a small fine. In the worst case scenarios, you can get a substantial term of custody as well as compulsory registration on the sex offenders list. The provisions of 720 ILCS 5/11-30 set out the legal premise for the law as follows:

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

The laws and rules relating to orders of protection in Chicago normally stem from domestic disputes. Typically, spouses seeking orders of protection are estranged or facing domestic violence. However, that does not mean that the law does not touch on other domesticated arrangements including the relationships between roommates and family members. This is a serious legal process that has significant financial implications for the party that is found to be at fault. It can even lead to a criminal record which filters down to job security, visitation rights, and custody disputes. That is why defendants in such cases will fight tooth and nail to ensure that an order of protection is not listed against them. Needless to say that the faults in writing the legislation, the police procedures as well as its wide implications has meant that it is open for abuse. This abuse is primarily associated with the application for protective orders based on false or incomplete information.

The Role of the Attorney in Getting Justice

Fact finding is an essential aspect of the protective order and will ultimately determine whether it is allowed or not. Therefore it is the responsibility of the defendant’s attorney to ensure that all relevant facts are considered. Some might be aggravating whilst others might be mitigating. The classic defense position is to maximize the mitigating issues whilst simultaneously minimizing the aggravating aspects. So far the courts have not been too vigilant in punishing those who cause them to issue unwarranted orders of protection. For example, there is sparse use of the perjury provisions of the law in these cases; partly due to the inherent belief within the criminal justice system that orders of protection lie more within the ambit of family law than criminal law.

DSC06084-B2The rationale behind the laws relating to unlawful use of a weapon in Chicago are simple. First of all, they are designed to protect the public from harm by making it incredibly difficult and illegal to obtain a firearm. Secondly, the rules must take into account the perspectives of the gun lobby, which aims to take guns out of the hands of criminals whilst allowing unfettered access to the rest of the population. Recently there has been concern about mentally disordered people who may have no criminal record and therefore fully entitled to own a gun until they engage in mass killings. Those who deal with civil rights are not satisfied with the uneasy compromise because according to them the law is never blind in these instances. Ethnic minorities are likely to get stiff punishments for illegally owning a gun and yet when “white” defendants engage in mass murder; every effort is made (led by a compliant media) to find psychological defenses for them.

Preparing to Defend a Case of Unlawful Use of a Weapon

The attorney is expected to engage in what amounts to a background check of their defendants. This was particularly important in a high profile case that involved the gang-related drive-by shooting of Michael Arquero. The victim in this case soon turned into a defendant and the discovery was now all about proving that Arquero was not really as bad as his criminal record indicated. Using aliases he had been able to access weapons, highlighting the weaknesses of the entire system. The defense strategy that was chosen for the occasion was that of self-defense; one which sometimes requires the appearance of “clean hands” under the rules of equity. Following the investigation the prosecutors still accepted the prima facie case that Arquero had shot his attackers in self-defense although it appeared that he had no right to have a gun in the first place.

800px-Packaged_ElectronicsReceiving stolen property is one of the more elusive offenses on the Chicago statute books but it has been prosecuted vigorously on account of the fact that it is part of a network of criminality that must be broken from its source. The person that receives stolen property is not only benefitting from a crime but is also making it difficult for the law enforcement authorities to successfully recover the stolen property. Therefore, the criminal justice system has been harsh on defendants in these circumstances. Defense attorneys need to be wary of the prejudices that often plague these cases. The chain of custody before arriving at the final recipient can also cause unique challenges for the defense attorney.

Key Considerations as Part of the Defense Preparations

The strategy that is preferred is to focus on the other defendants so as to take the heat off the person who may not have done the robbery or theft but is indeed the final recipient of the goods or money. The problems start to mount when it is a joint enterprise or conspiracy. In such situations the defendant may have to fight off a presumption that he or she is the mastermind whereas the actual thieves are only footmen and women for the grand scheme. Needless to say defendants who the prosecution successfully labels as being criminal masterminds can expect unusually stiff penalties, even when the discretions of the sentencing guidelines are taken into consideration. Luckily for the vast majority of defense attorneys, the cases are usually on the low end. The person that engaged in the actual stealing action (particularly if it is upgraded to robbery) will bear the brunt of the court’s wrath.

450px-Bankrupt_computer_storeThe Illinois felony murder rule is a heavily debated topic. In fact, the Illinois law is one of the broadest in the country. The suspect of an armed robbery committed in Carpentersville, IL is being charged with murder because his accomplice died during the execution of the crime. U.S. Marshals apprehended the suspect, Bobby Heard, 32, in St. Louis, Missouri, according to the Kane County state’s attorney’s office.

At around 7:30 PM Heard and his partner, Kenyon R. Slater, 37, armed with handguns, broke into a computer store on the 1600 block of Ravish Lane according to Carpentersville police and prosecutors. After restraining two employees and pistol whipping one, the thieves grabbed cash and electronic equipment before fleeing the store. While Slater and Heard were fleeing the scene one of the store employees broke free, picked up a handgun, ran toward the thieves, and shot Slater in the store parking lot, according to prosecutors.

According to the Kane County coroner’s office, Slater, a Chicago resident, was driven to Sherman Hospital in Elgin, IL where he later passed away. Heard fled the scene in a vehicle that was driven by an unknown third suspect. A warrant was later issued for his arrest, charging him with a felony count of armed robbery and felony murder for the death Slater.