Articles Posted in Pre-Trial Proceedings

Violation-of-ProbationIf you are charged with a felony criminal offense in Illinois, you need to know what you are being charged with and what class felony that criminal charge is classified as. Generally, felonies in Illinois are categorized into one of the four classes of felonies in Illinois. Depending on which class your felony is classified as being, the potential penalty will will vary depend on what class felony your crime falls into. Murder is not considered to be part of the four classes of felonies in Illinois. Murder is considered its own special class.

Generally speaking, felonies are placed into one of four classes. The different classes of felonies in Illinois are set forth as follows:

Class 4 Felonies

Criminal-Defense-Lawyer-300x201If you are charged with a Misdemeanor crime in Illinois, you need to understand what a Misdemeanor is and what the implications could be for your future.  A Felony criminal charge is much more severe than a Misdemeanor criminal charge. But that doesn’t mean that a Misdemeanor is not a big deal. While whether you are charged with a Misdemeanor or a Felony may make all the difference in the world  you need to understand what a Misdemeanor is and what you are looking at when you go to Court.

Generally, a Misdemeanor carries a maximum penalty of up to one year in jail. If you are sentenced to jail for a Misdemeanor, the jail sentence will be served in County Jail while a Felony carries a potential jail sentence of more than one year in State Prison.

Within Misdemeanor crimes, there are three separate classes of Misdemeanors. The three different classes of Misdemeanors are set forth below:

Search-WarrantIn a closely-watched decision regarding the privacy rights of cell phone users and the power of the police to obtain cell phone tracking information, the United States Supreme Court ruled that the police must obtain a warrant before obtaining the tracking information for the cell phones for most cellphone users.

Timothy Carpenter was suspected in a series of robberies of RadioShack and T-Mobile stores in several States throughout the country. The FBI had obtained a simple court order allowing them to obtain 27 days of Carpenter’s cell phone location data from Sprint and from MetroPCS. The court order that had been used by the FBI was a simple court order that did not require that the FBI show probable cause for a search warrant. In response to the court order, the FBI was given a 12,898 location point catalog of where Carpenter had been over a period of 27 days. The location data represented an average of 101 data point locations per day. Carpenter was eventually convicted of the robberies and sentenced to over a hundred years in prison. During closing arguments, the prosecutor made a major point of the location data to help bolster his argument that Carpenter had committed the robberies.

On appeal, Carpenter argued that the location data that had been obtained by the FBI should not be admitted in his case because they were obtained without a search warrant. Lower courts disagreed with Carpenter and ruled that the FBI was not required to obtain a search warrant in order to get the location data from the cell phone providers.

Criminal-Case-300x200I recently met with a client who had a jury trial for a Domestic Battery charge. After several days of a trial and deliberations, the jury could not agree on a verdict and the judge declared a mistrial. Shortly after the mistrial was declared, the prosecution decided that they would retry the client and he came to my office looking to hire me for the second trial. The client had several questions about what happens at a re-trial and weather Double Jeopardy applied to his case. I answered his questions and realized that people misunderstand what Double Jeopardy means.

In order for you to be convicted of a crime by a jury, all 12 members of the jury must agree that you are guilty. At the same time, in order to be found not guilty of a crime by a jury, all 12 members of the jury must agree that you are not guilty. Their verdict must be unanimous. If a jury is unable to come up with a unanimous verdict, the Court will declare a mistrial. A mistrial does not necessarily mean that the case is over. When a mistrial happens, the prosecution will decide whether they want to try you once again for the same crime. The decision about whether the state will try you again for the same crime is a decision that rests with the prosecution. From experience, prosecutors will take a variety of factors into consideration when deciding whether to have another trial. A major factor for prosecutors is how close did they come to winning the first jury trial? In other words, if a vast majority of the jurors were in favor of finding you guilty, it is much more likely that the state will try you again. If the vast majority of the jurors were in favor of finding you not guilty, it is much more likely that the state will drop the case and not seek another trial.

The legal grounds for you not to be subjected to another trial can be found in the Fifth Amendment to the United States Constitution and Section 10 of the Illinois Constitution.

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.