Articles Posted in Pre-Trial Proceedings

Illinois-Felony-MisdemeanorWhat determines how serious a particular criminal charge in Illinois is depends on the potential criminal penalty that the crime carries. The lowest classification of crimes in Illinois is called a Misdemeanor. The highest classification of crimes in Illinois is called a Felony. Generally, any jail sentence for a Misdemeanor must be served in County Jail. Any jail sentence for a Felony must be served in State Prison. Any potential jail sentence for a Misdemeanor is under one year while any potential jail sentence for a Felony is one year or more. The range of penalties for Misdemeanors and Felonies in Illinois depend on what Class the crime you are charged with falls in. Every criminal offense is classified as a Felony or a Misdemeanor and assigned a specific Class. An experienced and knowledgeable criminal defense lawyer will know whether you are being charged with a Felony or a Misdemeanor and what class your criminal charge falls in.

Most Misdemeanor cases in Illinois are Class A Misdemeanors. A Class A Misdemeanor is punishable by a maximum of one year in county jail and a maximum fine of up to $2,500. An example of a Class A Misdemeanor is a Retail Theft or a simple Battery. But not all Class A Misdemeanors are treated equally. Domestic Battery is a class A Misdemeanor. However, if you are found guilty of a Domestic Battery, it can never be removed from your record while a Retail Theft can be. In addition, you can receive Court Supervision for a Retail Theft but you cannot receive Court Supervision for a Domestic Battery.

A Class A Misdemeanor that I am seeing more and more in court is Aggravated Speeding. You can be charged with a Class A Aggravated Speeding offense if you are speeding 35 miles or more over the posted speed limit. This crime used to be a simple speeding ticket. That is no longer the case in Illinois. So, if you are speeding 35 miles an hour over the speed limit, then you can be charged with a Class A Misdemeanor which carries a potential jail sentence of up to 364 days in County Jail and a fine up to $2,500.

Bond-Hearing-2Cook County Chief Judge Timothy Evans has issued an order which makes the greatest attempt yet to deal with overcrowding in Cook County Jail which is caused by defendants being forced to sit in jail while their cases work their way through the Cook County criminal justice system simply because they cannot afford to post the bond needed to walk out of jail.  Estimates place the number of defendants who are sitting in Cook County Jail just because they can’t afford to post bond at between 250 to 300 inmates per day. Most of those bonds are for $1,000 or less.  This problem plays a major role in the overcrowding of the 9,000 inmate Cook County Jail.  The overcrowding problem at Cook County Jail is causing a major strain on Cook County’s limited budget resources.

As of September 18, defendants charged with a felony will be interviewed before their bond hearing about their financial resources.  Criminal felony defendants are already interviewed by Pretrial Services before their bond hearing.  They are asked about their criminal record, current and past employment history, family history, residence status and mental and physical health status.  As of September 18 they will also be questioned about their financial resources.  The report will be presented to the judge presiding over the Bond Hearing.  According to Judge Evans order, judges will not be allowed to set a higher bond than defendants charged with a felony can afford provided that the defendants do not pose a danger to the public.

This approach, goes a long way towards addressing criticism that bond procedures in Cook County discriminate against the poor because it unfairly imprisons the poor, merely because they don’t have the money to post bond.  This problem disproportionately affects racial minorities.  This problem has been gaining attention as well as support from important Cook County law enforcement personnel.  Cook County Sheriff, Tom Dart, has been a long-time proponent of changing the procedures for the setting of bonds to release defendants who are poor and cannot afford the low bonds needed to be released from Cook County Jail.  Cook County State’s Attorney, Kim Foxx, has been taking steps to address this problem as well.  In March she announced that her office will not oppose the release of defendants who have a bond of $1,000 and under set.  Last month she announced that her office will agree to have Individual Recognizance Bonds set for more defendants. Individual Recognizance Bonds, also known as an “I-Bond” do not require that any money be posted for release.  Just a signature by the defendant that they promise to appear in court to answer to the charges filed against them.

402-ConferenceA Pre-trial conference is the usual way that a criminal case is resolved in Illinois without the need to go to trial. The Pre-trial conference is a meeting that occurs between the prosecutor, the defense lawyer, and the judge. The meeting is usually, but not always, behind closed doors, and the parties all get together to discuss the case to see if there’s a way to work out an agreement short of trial. Illinois Supreme Court Rule 402 allows for this conference to happen and sets forth the requirements for such a conference to occur. That’s why this type of conference is commonly called a “402 Conference” by lawyers and judges.

Supreme Court Rule 402 provides that a judge cannot request that the parties have a “402 Conference”. The request for a “402 Conference” has to be made by the lawyer for the defendant and the prosecutor must agree to participate in that conference. After the lawyer for the defendant requests that the court participate in a “402 Conference”, the court will admonish the defendant about what will happen at this conference and make sure that the defendant agrees to allow this conference to happen.

The judge will inform the defendant that the prosecutor will be present at this conference and will tell the judge about the facts of the case and what the witnesses are expected to say at trial. Many of the things that the judge will hear he would not normally hear unless the case went to trial. Some of the things that the judge will hear may not even be allowed to be introduced into evidence at trial. The judge will also find out about your criminal background. This is something that the judge would not hear about unless you were found guilty and the case proceeded to a sentencing hearing. At the same time, the judge will hear things about you that will be presented by your lawyer. Again, these are things that the judge may or may not hear about at the trial.

ArrestThis is a very frequent question that I get from people that call me. They want to know how the police can arrest them without any evidence that they did anything wrong. Just because you were arrested by the police and charged with a crime does not mean that you are guilty. An arrest and a criminal charge is just an allegation. The police officer who arrested you, and the prosecutor that charged you with a crime, believe that you did something wrong. Now they must prove you guilty beyond a reasonable doubt in court. There’s several things that you can do to make it more difficult for the police and the prosecutors to prove you guilty in court. Let’s talk about some of the things that you can do to help your case.

First, let’s talk about something you should not do. You should not resist the police and give them a tough time. There’s no benefit to arguing with the police officer and making their job difficult. All that can do is make the police officer angry and cause them to be a little tougher on you than they might otherwise be. In addition, don’t forget that the police officer is armed with a gun. If the police officer feels threatened, he may use physical force against you which never ends in a good way. If you resist a police officer you could be charged with Resisting a Peace Officer, or if you disobey a police officer’s instructions, you could be charged with Obstructing a Peace Officer.  While both charges are misdemeanors, they are serious misdemeanors because they carry mandatory punishments which could include mandatory community service or even jail time. Simply pulling away from a police officer while they are trying to place handcuffs on you, or trying to run away from a police officer who is trying to place you under arrest, could result in serious criminal charges. Those criminal charges could stick even if you are ultimately found not guilty of the crime that you were originally arrested and charged with. Plus, if you cooperate with the police officer, the officer may go a little easy on you and may even decide not to arrest you, or even charge you with a crime if they are not sure that you did anything wrong.  Even if the police officer arrests you and charges you with a crime, the fact that you cooperated with the police officer and did not give them a hard time could help you when it comes to talking to the prosecutor who is handling your case in court. The prosecutor is much more likely to go easy on you if the police officer tells them that you cooperated with them and did not give them a hard time.

The next piece of advice that I commonly give clients is to exercise their constitutional right to remain silent. I commonly see people who are arrested trying to talk themselves out of it. It almost always ends up being a bad move. If a police officer thinks that you did something wrong, you can talk to them until you are blue in the face and you will not be able to stop them from arresting you. For instance, if a police officer pulls you over and suspects that you have been drinking and the officer believes that you are drunk, the officer will take you down to the police station so that you can take a breathalyzer test. No amount of arguing and pleading with the police officer will change anything. What is more likely is that during the course of trying to convince the police officer that you should not be arrested, you are likely to say something to the police officer that could be used against you later on in court. An example is if you tell the police officer that you only had a couple of drinks and that you are fine to drive. Admitting that you have been drinking can be used against you in court later on to prove that you are guilty of a DUI.

Retail-TheftThe Cook County State’s Attorney, Kim Foxx, has announced that her office will stop prosecuting cases involving people charged with driving on a suspended or revoked driver’s license based on a financial reason, such as failure to pay parking tickets. tolls or child support.  The decision to do this is based on a lack of funding for the State’s Attorney’s Office which has left the office with not enough prosecutors to handle the criminal prosecutions in Cook County.  This does not mean that these cases will go away in Cook County.  Individual towns, cities and villages will be allowed to prosecute these cases themselves. This could mean a rise in the number of cases being charged as Municipal Violations.  Each city, town, and village can set up their own administrative process which involves Hearing Officers and attorneys hired by the towns and Villages, that collect fines for violations.  The standard of proof in a Municipal Ordinance Violation case is much lower than in a criminal case and the potential punishment is a monetary fine and not jail time.

Another change announced by the Cook County State’s Attorney’s Office has to do with charging people involved in serious car crashes while their licenses were suspended or revoked for financial reasons. Currently, if someone is involved in a serious car accident and their license is suspended, they could be charged with a felony if they have one previous conviction for driving with a suspended license.  The Cook County State’s Attorney’s Office announced that they will not charge a driver with a felony unless they have at least five previous convictions for driving with a suspended or revoked license.  This only applies if the suspension or revocation is based on a financial reason.

The Cook County State’s Attorney’s Office points out that the office is operating with 30% less funding than 10 years ago.  The decision to stop prosecuting suspended and revoked license cases based on financial reasons will help free up some prosecutors to help prosecute more serious criminal cases.  There’s at least 2 Courtrooms at the Daley Center that handle cases like this.  By declining to prosecute cases like this, the prosecutors assigned to those courtrooms will be reassigned to other courtrooms and courthouses.

Bond-Hearing-2On June 12, we reported that Illinois Governor, Bruce Rauner, signed a Bail Reform bill into law.  The new law seeks to make changes to the bail process in Illinois by trying to move away from the requirement of posting cash as a way to avoid keeping people in jail who are poor and lack the financial means to post the cash needed to be released from county jail on minor criminal offenses. The new law requires that if the Court sets a cash bond at an initial Bond Hearing, and the defendant is unable to post the cash required, a second Bond Hearing must take place within 7 days of the arrest.  The purpose of this second bond hearing is to re-examine whether there are alternatives available to the requirement that cash be posted.  This second Bond Hearing is a further step towards moving away from making posting cash the main way to be released from jail pending resolution of a criminal case.

About 18 months ago, the Illinois Supreme Court instituted a pilot program, which had many of the changes contained in this new law, to see how they would impact the court system.  Kane County was one of the counties that participated in this pilot program.  Kane County has seen some of the impacts of this new law and county and court officials are expressing some concerns which we will discuss.

The first impact is a loss of revenue.  The Clerk of the Circuit Court of each county is allowed to keep 10% of any bond money posted.  So if a defendant posts $10,000 in bond money, when the case is finished. the Clerk of the Circuit Court will refund $9,000 to the person who posted the bond and will keep $1,000 for the Clerk of the Circuit Court.  If fewer people are required to post a cash bond, this means that there’s less money for the Clerk of the Circuit Court.  Kane County officials estimate that this could cause a $200,000 loss in revenue this year.  Kane County is already facing a budget deficit.  You would think that this loss in revenue could be absorbed by the savings from the lower number of inmates in Kane County Jail.  However, a recent increase in the number of violent crimes in Kane County has led to an increase in the jail population in Kane County Jail. Kane County officials blame the increase in the violent crime rate in Kane County to the fact that gang members can get to Kane County from Chicago via I-88 and I-90.  Chicago gangs are able to extend their drug trade from Chicago to Kane County, causing an increase in violent crimes and a further strain on Kane County’s limited resources.

Bond-Hearing-1On Friday, Illinois Governor, Bruce Rauner, signed a new bill into law which takes affirmative steps to try to solve the bail problem in Illinois. The bill, called the Bail Reform Act, makes some significant changes to the bail process in Illinois and seeks to deal with the problems faced by people who are charged with minor crimes who are stuck in jail because they are unable to come up with the low amount of cash to post bail so they can be released.

I recently posted an article about a 60 Minutes episode which points out the numerous problems with Cook County Jail. In that article, I pointed out that last year, over a thousand people spent more time in Cook County Jail than what they were eventually sentenced to by the court. What was most disturbing is that just as many people spent over 222 years more than what they were eventually sentenced to. The main reason behind this was that non-violent offenders, who were charged with minor crimes, were not able to come up with the low amounts of cash needed to post the bail needed to get out of jail. As a result, they were stuck in Cook County Jail until their case was finished.

Tom Dart, the Cook County Sheriff, the man who is in charge of running the day-to-day operations of Cook County Jail, has long been an advocate for reforming the Bail process. He has been pushing the Illinois Legislature for a number of years, to address the Bail process so that this injustice of forcing people who are poor to sit in jail for many months just because they are poor. I pointed out in this article that the Illinois Legislature is working on steps to try to deal with this problem.

Bond-Hearing-200x300Over the weekend I read an article about a 60 minutes episode about Cook County Jail and Sheriff Tom Dart.  Cook County Sheriff Tom Dart is in charge of running Cook County Jail, the largest single-site jail in the United States.  After I finished reading the article, I was struck by some of the information contained in the article and wanted to pass along some of the things that I learned.  We are used to seeing news stories about inmates who are released from prison after spending years behind bars for a crime they did not commit.  We become conditioned to believe that this is all that is wrong with our criminal justice system. But this article about Cook County jail is much more disturbing because it represents a systematic injustice, legal and moral, with our criminal justice system.

The current jail population at Cook County Jail is approximately 7,500 prisoners a day. Roughly 70,000 inmates a year pass through Cook County Jail. A very large portion of the inmates who enter Cook County Jail stay there because they are unable to come up with the bond money needed to be released from jail. Many times, the amount of money needed for them to get out of jail is very small. It could be as little as $100, but because they don’t have the money to post the bond, they cannot get out of jail. The overwhelming majority of the inmates who have a low bond pose little or no danger to society. They are there because they were caught with a small amount of drugs or because they tried to steal something from a store. Meanwhile the people that pose a danger to society, like gang members who are caught with illegal guns, are able to post bond because their gang puts up the money and they are out on the street.

A troubling statistic from this article is that last year, 1,024 inmates spent their entire prison term in Cook County Jail. While that is troubling, in and of itself, the following statistic is shocking. An equal number of inmates spent an extra 222 years in custody in Cook County Jail. It would be understandable if this was because the inmates were violent or posed a danger to society. But keep in mind that a large percentage of the inmates in Cook County Jail are there because they cannot afford to post low bonds. If somebody has a low bond it is probably because what they are being charged with is a minor offense and they have little or no criminal background. This is a very troubling statistic.

Preliminary-HearingMany of the people that I have represented in my 25 years of being a criminal defense lawyer have no criminal record and have little, or no experience, with the criminal justice system. For many people, the thought of facing criminal charges can be a daunting and scary experience.  In addition to providing legal services in court, one of my main responsibilities as a criminal defense lawyer is to explain the legal process to my clients and to make sure they fully understand what is happening, and what will be happening in the future.

If you are being charged with a misdemeanor offense, a bond will be set at the police station by the police department.  Depending on what you are being charged with, and your criminal record, the Bond could be anywhere from an I-Bond, or a minor cash Bond.  An I-Bond is commonly known as a Signature Bond.  With an I-Bond, no money needs to be posted.  You just sign the Bond paper promising to appear in court and to not commit any criminal offenses. An exception to this is if you are charged with a Domestic Battery.  You may be taken to court for a bond hearing if you are charged with a Domestic Battery, especially if the State will be seeking an Order of Protection or wants the Court to set special conditions of Bond which forbids you from making contact with the Complaining Witness.  But if you are charged with a felony, you will be brought to court as soon as possible, and the judge will set a Bond. The first court date after your Bond Hearing will be a Preliminary Hearing date.  I want to take this opportunity to explain what a Preliminary Hearing is and what will happen at the Preliminary Hearing.

Basically, a Preliminary Hearing is a short hearing before trial, before a judge, to determine whether probable cause exists to believe that a crime was committed and that you are the one that committed that crime. Probable cause, for Preliminary Hearing purposes, is different than what people commonly consider probable cause to be.  For Preliminary Hearing purposes, probable cause simply means that the judge is convinced by a preponderance of the evidence, more probably true than not true, that there’s enough evidence to charge you with a crime and eventually put you on trial for that crime.


Today, the Chicago Tribune re-published a story that indicates that law enforcement authorities in Chicago may be losing the fight against gun crimes. Everyone is aware of the ridiculous number of gun related crimes in the city of Chicago.  It is the subject of national news stories and was the subject of a recent movie by Spike Lee which places the spotlight on the out of control gun violence in the City of Chicago. The gun violence in Chicago entered the discussion in last year’s Presidential campaign.  Recently, President Trump has threatened to send in the National Guard to deal with the gun violence in Chicago.  Law enforcement authorities and the politicians in Chicago have made fighting the out-of-control gun violence the focus of their collective efforts.  However, the Chicago Tribune today re-published a story which should cause the citizens of Chicago to be seriously concerned about whether the authorities are fighting an effective fight against gun violence.

The Tribune reports that since 2012 the average bond set for a felony gun crime has doubled. In 2012, the average bond for a felony gun case was $25,000. In 2016 the average bond for a felony gun case was $50,000. The Tribune reports that this has done nothing to keep gang members off the streets.  The number of defendants posting bond has more than doubled from four years ago.  Therefore, in spite of the bonds for felony gun crimes doubling, four times as many defendants are getting out of jail on bond than they did four years ago.  In 2012, the average number of days that a defendant charged with a felony gun crime spent in jail before posting bond was 42 days.  In 2016 that number had dropped to 18 days.  Fewer and fewer guns are being recovered by the Chicago Police.  From 2012 until the end of last year, 9% fewer guns have been recovered.

Recently, Cook County authorities have been looking closely at reforming the Bond system in the Circuit Court of Cook County.  Too many Defendants charged with minor non-violent crimes our spending too much time in Cook County Jail simply because they are unable to afford to post the bond. This is adding strain to the Cook County budget which is already in facing increasing economic pressure.  Cook County authorities are trying to come up with a way to reserve precious jail resources for criminal defendants who are identified as posing a danger to the community.