Articles Posted in Pre-Trial Proceedings

Police-Interrogation-300x200I recently met with a client whose son had been questioned by the police at the police station and charged with a Retail Theft. The client was complaining that the police questioned her son at the police station without providing a lawyer for him and without allowing her to be present with her son. She wanted to know whether the police could question her son without her being present. Here’s what I told her:

What is Considered a Minor in the Criminal Justice System?

As with many other things, the criminal justice system has different definitions for common terms than most people realize. For instance, what is considered insane by the medical profession is different than what the criminal law defines as insane. The same applies to what is commonly considered to be a minor and what is commonly considered to be an adult. In the real world, 18 years old is the cut-off between being a minor and being an adult. But under the criminal law, whether you are treated as a juvenile, or minor, or an adult, depends on whether you are being charged with a felony or a misdemeanor. If you are being charged with a misdemeanor, you will be considered an adult if you were 17 years or older when the offense occurred. For felony offenses, you will be considered an adult if the offense occurred when you were 16 years or older.

Arrest-300x226Being arrested by a police officer is something that nobody would ever want to experience. While being arrested by a police officer does not automatically mean that you will be charged with a crime, it usually means that you are suspected of committing a crime and you should be aware of what may happen and what you should do to protect yourself from what the future may hold.

When you are arrested by a police officer, this means that you are in custody. This means that you are not free to leave. If you are arrested, you will be taken to the local police station. If the police believe that they have enough evidence to prove you guilty beyond a reasonable doubt in court of committing a crime, you may be charged with a crime. However, if the police believe they need to gather more evidence, they can hold you in custody for a limited period of time for questioning.

Whether you are charged with a crime or being held for questioning, you need to understand that you are under no obligation to answer any questions asked by the police. What you need to do is provide some basic information, such as your name and address, but you are not required to answer any questions involving the reason behind your arrest.

Criminal-Defense-Attorney-300x201Last week I had a meeting with a client in my office in Schaumburg who was being charged with a felony in Rolling Meadows. The client has a lawyer who was representing him for the case. The client came in for a consultation because he was not happy with the services that his current lawyer was providing and was considering hiring me to represent him in the case. The client told me that he had spoken to his lawyer and requested copies of the police reports. His lawyer refused to provide copies of the police report and the client was very upset with that decision.

This is a very common scenario. I frequently talk with clients who want copies of the police reports so that they can review them at home with their friends and family. I’m sure that many of those clients want to talk to another lawyer and get a second opinion. When a criminal defense lawyer tells a client that they cannot give them copies of the police reports, the clients usually think that’s because the lawyer doesn’t want to lose the case. While that may be the reason behind refusing to give a client police reports in some cases, people need to understand that your criminal defense lawyer is prohibited from giving you copies of the police reports. Let me explain why.

Your lawyer is required to follow certain rules. Your lawyers’ conduct is governed by the Rules of Professional Responsibility. Those rules provide for certain ethical responsibilities that lawyers have to their clients and to the Court. The Supreme Court of Illinois has also enacted certain rules which limit what your lawyer can, or cannot do. The Supreme Court Rules govern what happens in court and what your lawyer can or cannot do while they are representing you in a criminal case in court. Your lawyer is required to follow all those rules.

Police-Vehicle-Search-300x200It is common to have a client come into my office who is facing criminal charges resulting from a search of their vehicle by a police officer. Many of those clients want to know whether the police had the right to search their vehicle and whether I can have the evidence that was recovered thrown out of Court. There’s no simple answer to this question. Whether the police had the right to search the vehicle and whether I can convince the Court to throw out the evidence depends on the facts of each individual case. I want to talk a little bit about the general rules and what the constitutional limits are when it comes to the police searching a motor vehicle.

Generally speaking, the police cannot search your vehicle without a warrant. The Fourth Amendment to the United States Constitution protects us from unreasonable searches and seizures when we have a reasonable expectation of privacy. Courts have consistently ruled that we do have a reasonable expectation of privacy in our motor vehicles. At the same time, the Courts have recognized that there is an “automobile exception” to the search warrant requirement when it comes to our cars. The “automobile exception” provides that individuals have a lower expectation of privacy when it comes to their cars as opposed to their homes. The Fourth amendment creates minimum requirements that apply to all states and in all cases. However, states are free to grant their citizens more rights than what’s afforded to them by the United States Constitution.

The police can search your vehicle without a warrant only under certain limited circumstances. The limited circumstances are set forth as follows:

Bond HearingRecently, I won a Source of Funds hearing at the Maywood Courthouse.  At my client’s initial bond hearing, the judge required that my client prove the source of funds prior to being allowed to post the required amount of the cash bond.  Immediately after the bond hearing I was contacted by my client’s family and hired to do whatever I could to get my client out of jail.  I immediately got to work and today, my client is a free man. Here’s how this case started and how I was able to get him released.

My client was pulled over in his vehicle by the Chicago Police.  After he was pulled over the police officer determined that his license had been suspended and he was placed under arrest.  His vehicle was subsequently searched and the police recovered approximately 2 pounds of marijuana and about 120 grams of mushrooms from inside his vehicle.  The arrest occurred late on Friday so he was taken to Central Bond Court at 26th and California on Sunday.  At the bond hearing the Judge set the bond at $10,000 cash.  The state filed a Petition requiring proof of Source of Funds, and the court granted their request.  Source of Funds is a procedure by which the Court will require proof that the money that will be posted for a bond is money that was lawfully obtained.  The law does not want drug money to be used to bond someone out of jail.  Prosecutors frequently request such proof in drug cases in which they believe that the defendant is a drug dealer.  Based on the amount of drugs found in our client’s vehicle, the Court felt that there was enough evidence to believe that my client was in the business of selling drugs.  When the prosecutor files such a request and the Court grants their request, then the burden shifts to the Defendant to file a Petition requesting that the Court conduct a hearing to allow the bond to be posted.  This is known as a Source of Bail Hearing.  At this hearing, the defense has the burden of proving that the money that will be posted for the bond is not drug money.

After the bond hearing I met with the friends and family of our client in my office and obtained bank records, pay stubs, tax returns, business documents, and prepared affidavits to prove that the money that would be used to post the required bond was not drug money.  I filed the petition at the first court date in Maywood, which was just a few days after the bond hearing.  Less than a week later the Court held a hearing which lasted over 2 days.  At the hearing I presented live testimony and presented evidence to the court to prove that the bond money was legally and lawfully obtained.  The Court was convinced that the bond money was not drug money and allowed the family to post the bond.

Felony ConvictionThis is a question that I am asked frequently around election time.  Most people do not understand what the rules are when it comes to whether you are allowed to vote if you have a felony conviction.  Rules vary from state to state and this has created confusion.  People don’t understand that each state has it’s own rules which requires that people with felony convictions inform themselves of what the rules are in their state. My experience with this issue is that most people are not informed as to what the law is in Illinois when it comes to felony convictions and voting rights in Illinois. Illinois has passed a specific law which spells out what effect a felony conviction can have on your right to vote in Illinois.  The law is set out in 10 ILCS 5/3-5.  In Illinois, a convicted felon has just as much of a right to vote as any other citizen in the state.  As long as you are not incarcerated, meaning serving a prison sentence, you can register and cast a vote in Illinois.  If you are in court and fighting your case, you can vote in Illinois.  Even if you are in jail fighting your case. If you are on probation, you can vote in Illinois.  If you are on parole, you can vote in Illinois.  As long as you have not been convicted and are in prison, you can vote.  However, if instead of being in prison, you are allowed to serve your sentence outside of prison, such as prison furlough or work release, you will not be allowed to vote until you finish your sentence.  If you went to prison and lost the right to vote you should re-register once you are released from prison so that you can go to the polls and cast your vote.

When someone is not allowed under the law to vote, they are called “disenfranchised” voters.  In 2010, roughly 2.5% of the nation’s voting age population could not vote because of a felony conviction.  In Illinois, that comes out to about 800,000 people who have been convicted of a felony.  If 800,000 people do not realize that they have not been stripped of their right to vote, and sit out an election because of their mistaken belief, this could make a big difference in a close election.  In my opinion, which is based on the questions that I get from criminal clients, as well as members of the public, not enough is being done to educate the public about this issue.

In seven states, people convicted of a felony are barred forever from ever voting.  Florida has the largest number of disenfranchised voters with roughly 10.42% of all voters.  In two states, Maine and Vermont, even prison inmates are allowed to vote.  In other states, convicted felons are required to petition the Governor to have their right to vote reinstated, or restored, once their sentence is completed.

Veterans CourtThe recent wars in Iraq and Afghanistan have seen a dramatic rise in the number of mental health and substance abuse issues involving military veterans returning from serving in those wars.  Some of these soldiers are returning home with mental health issues and are using drugs to deal with the mental health issues which such wars have caused.  Those issues have spilled into the criminal justice system when these military veterans are getting arrested for crimes caused by substance abuse and mental health issues arising out of their military service.  In an effort to address the specific needs of returning veterans, the Illinois Legislature passed legislation in 2009 establishing Veterans Courts in Illinois.  The 2009 legislation did not require that counties establish such courts.  Nevertheless, Cook County and Lake County did establish such courts. Veterans Courts are specific courts which are designed to steer military veterans out of the criminal punishment aspect of the court system and towards the treatment aspect of the court system.  Specific courts have been established at 26th and California, Skokie, Rolling Meadows, Maywood, Bridgeview and Markham. The Veterans Courts in Cook County have been very successful and have been used as a model by court systems throughout the United States to help them establish their own Veterans Courts.  The Illinois Legislature recently passed legislation requiring that each county in Illinois establish such a court by January 1, 2018.  In anticipation of this new law taking effect, counties throughout Illinois are beginning to make plans to establish these courts.  Kane County officials are aware of the new law and are beginning to make plans to start the process of establishing these courts.

In order for a veteran to be eligible for Veterans Court in Cook County, enrollment has to be agreed to by the Court, Prosecutor and the Defendant.  The crime that the veteran is charged with cannot be a crime of violence. The veteran will not be eligible unless they have demonstrated a willingness to undergo treatment in the program.  They will also be ineligible if they have been convicted of a crime of violence within the past 10 years or if they have been discharged from a similar program within the past 3 years.

Lake County’s Veterans Court is similar with minor changes to the eligibility requirements.  To be eligible for Veterans Court in Lake County the veteran must have been honorably discharged from the military, must have a service related disability or currently be in the military, must be charged with a felony or misdemeanor in which probation or supervision is available, and must be willing to participate in the program before and after they enter the program.  They prefer that the veteran be eligible for VA benefits but is not a requirement.  For any crime involving a crime against an individual, the victim must agree to allowing the veteran to enter such a program.

Municipal-Ordinance-Violation-300x199The Public Safety Committee for the Village of Schaumburg has recommended that the Village of Schaumburg allow police officers to write local Municipal Violation tickets for first-time negligent driving offences. The measure is intended to go after drivers who are using hand-held cellphones while they are driving instead of hands-free devices. Village officials claim that the judges at the Rolling Meadows Courthouse are taking these tickets too lightly and not punishing offenders enough.

If this measure is adopted by the Schaumburg Village Board, police officers will have the option of writing a local Municipal Ordinance Violation ticket, issue written warnings, or issue a State Citation for a ticket violation which allow offenders an opportunity to go to Court and contest the ticket in Court, in front of an actual Judge. The fine for the Schaumburg Municipal Violation will be $75.

What’s a little troubling about this proposal is that the Public Safety Committee is proposing that the definition of negligent driving be defined more broadly than what current state law defines as negligent driving. According to one of the trustees of the Schaumburg Village Board, “the definition of negligent driving can be relevant even when an officer can’t prove a handheld cell phone was the cause.” In other words, if the police officer had a hunch, or was guessing, based on his experience, that a handheld device was being used, that would be enough to allow them to issue a ticket. I would like to see what the final ordinance says, but it seems to me as if officers will be allowed to issue these tickets based on a mere hunch without any proof. That does not seem very fair to me and could be open to a legal challenge which could cause Schaumburg’s taxpayers to pay the legal bills for a court fight.

ConfessionOne of the most common questions I get asked when I get a phone call from somebody who has recently been arrested is “can my case be dismissed if the police did not read me my rights when I was arrested?” The answer to that question requires an understanding of the Fifth Amendment to the United States Constitution.  Everyone has heard of the Fifth Amendment, especially because of television crime shows, but let’s take a closer look at why the Fifth Amendment is important, what it is and what it does.

The Fifth Amendment creates a number of rights that apply to people facing criminal and civil legal proceedings.  First, it guarantees a citizen the right to a grand jury.  Second, it forbids “double jeopardy.”  Third, it requires that “due process of law” be part of any Court proceeding that denies a citizen “life, liberty or property.”  Fourth, it requires that the government compensate a citizen when it takes their private property for public use.  Fifth, if protects citizens from “self-incrimination.”  That last Fifth Amendment right, the right against self-incrimination, is the one that is commonly associated with the “Miranda Rights.”  Self incrimination is basically when you make a statement that exposes yourself to legal or criminal responsibility. Think of it as making a statement that ends up being a confession.  It’s when you are admitting to a crime, or making a confession. The Fifth Amendment protects citizens from being forced or coerced to testify against themselves.  Self-incrimination is prohibited by the Fifth Amendment to the United States Constitution.  So when you hear that someone has “taken the Fifth,” this means that they are refusing to testify in court or talk to the police.  This right against self-incrimination is one of the basic principles of American Constitutional Law. It’s the absolute right to remain silent when you are being questioned by the police.  But just like any other constitutional right, this right is not absolute. There are limitations.

The seminole case that deals with the Fifth Amendment is the U.S. Supreme Court case of Miranda v. Arizona. Arguably the most well-known, or most mentioned, criminal case.  Let’s talk a little about this Supreme Court case so we can get a better understanding of what this case did and how it applies to today.  Miranda v. Arizona was actually four different cases involving custodial interrogations that were consolidated into one case.  The first case involved Miranda and that’s why it became known as the Miranda case.  But it actually involved four different cases involving criminal prosecutions and custodial interrogations.  In all cases, the defendants were arrested by the police, taken down to the police station, and interrogated for several hours.  All of the defendants made confessions to the police that prosecutors tried to use against them in court.  Prior to this case, the right against self-incrimination was thought of as applying only to proceedings in court.  But in this case, the Supreme Court extended and applied the 5th Amendment to proceedings that happened before the case went to court.  The court applied the right against self-incrimination in the 5th Amendment to all criminal proceedings that begin once a criminal defendant is deprived of their freedom of action.  And here is where we find the main limitation in Miranda.  The rights afforded in Miranda apply to custodial interrogations.  You are in custody if you are deprived of your freedom of action in any significant way.  It doesn’t matter if the interrogation occurs in the jail, at the police station, at the scene of a crime on a busy street, or in the middle of nowhere.  If you are not free to leave, then you are considered to be in custody and that’s when the Miranda warnings have to be given.  Once it is established that you were in custody and the police start questioning you, in order for the prosecutor to be able to use the statements that you make to them in court, the police have to read you your Miranda Rights.  Those rights have to warn you that you have the right to remain silent.  If you say anything what you say can be used against you in a court of law.  You have the right to consult with a lawyer and have that lawyer present during any questioning.  If you cannot afford a lawyer, one will be appointed for you if you so desire.  If you choose to talk to the police you have the right to stop the interview at any time.  Very rarely have I seen TV shows mention this last warning.  And this is very important because if you are ever questioned, you have the right to demand that they provide a lawyer to you free of charge before answering any questions. Once you assert that right, the police must stop all questioning until and unless they provide a lawyer for you. You have the right to demand a lawyer at any time during the interrogation.  From my experience, I don’t know if I have ever seen the police actually provide a lawyer at this point once it is requested by the defendants.

Lake-County-Criminal-Charges-300x200The Lake County State’s Attorney’s office has announced a new program that allows first time misdemeanor and felony offenders an opportunity to avoid having a criminal conviction permanently on their record. The Lake County State’s Attorney’s Office calls it the Alternative Prosecution Program. If the crime involves violence the offender is not eligible for the program. The Lake County State’s Attorney’s office makes the final decision on whether an offender will be allowed into the program. Here’s how it works.

A request to enter the program can be made by the prosecutor, judge, defense lawyer, public defender, or police officer. The request can be made at any time but it is usually made at the first court date. The applicant will have to pay a $70 fee which is non-refundable. An applicant will be required to take a drug test. A positive drug test will not necessarily keep an offender from getting into the program.

After you pay your $70 fee, you will schedule an interview with a representative from the Lake County State’s Attorney’s Office. The screening process will include feedback from the victim and the arresting police officer. After this interview, if you meet all the requirements of the program, and you are acceptable to the Lake County State’s Attorney’s office, your case will be scheduled to be heard in front of the Alternative Prosecution Citizens Panel.   This panel is made up of citizens who live in Lake County Illinois. They will consider your case and make a recommendation to the Lake County State’s Attorney’s office. The Lake County State’s Attorney’s office will review your file and consider the recommendation from the Alternative Prosecution Citizens Panel and determine whether they will accept you into the program. The Lake County State’s Attorney’s office will make the final decision about whether you are accepted into the program or not.