Articles Posted in Pre-Trial Proceedings

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.

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.