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Think about your savings for a moment. Whether you’ve just saved up a few hundred dollars for a rainy day, or a nest egg of tens of thousands of dollars, this is important money. And it’s your money. Legally earned and taxed. Now imagine that you’ve done nothing wrong, but the government takes this money and won’t give it back. And then the fight to get back this money goes on for more than a decade. It doesn’t sound possible in the modern American judicial system, yet that’s the exact position that a Chicago man has found himself in for 13 years now.
A Shoebox Full of Cash and the DEA It’s uncontested that the government can seize money related to a crime. If you’re involved in drug dealing or rob a bank, you’re going to lose this money, and there’s not much an attorney can do about it. However, federal law has been expanded in recent years to also give the government the power to confiscate money remotely suspected of being involved in illegal activity. And then the burden is on the defendant to prove his or her innocence to get that money back. The Chicago Sun-Times recently detailed the unusual case of a Chicago real estate developer who, after destroying his credit in college and finding himself unable to open a bank account, began keeping his cash in a shoebox. In all, he saved up about $101,000 in cash over the course of several years. In 2002, the developer gave this cash to a trusted friend to travel to Seattle in search of a new restaurant venue. The friend bought a one-way ticket at Union Station, which raised a red flag for DEA agents who said this was the type of suspicious activity that drug dealers are typically engaged in. The agents spoke with the friend on the train. The government claims the friend gave them permission to search the bags, but this is disputed. Prosecutors also say that a drug-sniffing dog alerted to the presence of narcotics in the bags, but other than this, there is no evidence of any illegal activity. No drugs were found, and there has been no other indication that either the developer or his friend were involved in any illegal activity. The developer has won several victories in court already to get his money back, but also lost on some issues as well. Earlier this year, at a trial, a jury found in the government’s favor. But the developer is now appealing, and it looks as if this case is far from over, especially given how much money is on the line. Contact a Lawyer Law enforcement should never be able to confiscate your legally obtained property. If police or federal agents are holding a large amount of your money that was not connected to any crime, you need an attorney on your side who will put up a fight to get this money back for you. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. The U.S. Supreme Court issues opinions all the time, but rarely does a decision have such a drastic effect that can result in hundreds of prisoners around the country, including Illinois, being released. Earlier this month in Welch v. United States, the Supreme Court resolved a months-long split among the circuits that another decision from last year is retroactive, and defendants who were wrongly convicted under a provision of the Armed Career Criminals Act can be released if they appeal their convictions.
A Vague Law is Struck Down The Armed Career Criminals Act states that if a defendant is convicted of a crime involving the use of a firearm, and has three or more previous convictions for a “serious drug offense” or a “violent felony,’ then a court must sentence a defendant to a minimum of 15 years in prison for the new crime. The maximum sentence is life imprisonment. The act defines a “violent felony” as a crime punishable by more than one year in prison involving force, arson, burglary, explosives extortion, “or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Last year, in Johnson v. United States, the Court took issue with this language, finding that it was so vague that it was unconstitutional. After all, virtually any criminal conduct could cause some physical injury, but many of these crimes are not nearly as serious as burglary or arson. Almost as quickly as Johnson was decided, renewed challenges to the Armed Career Criminals Act flooded federal courts. The issue was whether challenges to the law could retroactively result in sentences being reduced. The Court’s decision in Welch was that Johnson can indeed be applied retroactively to Armed Career Criminals Act convictions. This means that there are potentially hundreds of inmates who have been convicted under this “residual clause” of the act who can now appeal their convictions. However, it’s important to note that the Court’s decision isn’t exactly a “get out of jail free card.” The conviction of the defendant in Welch was remanded to the original court for review. The court cannot let the conviction stand on the grounds that a firearm was used in connection with illegal conduct that poses “a serious potential risk of physical injury to another,” but if the lower court finds that the defendant’s conduct fell under some other provision of the Armed Career Criminals Act, then the conviction will stand. It’s still a developing area of the law, so if you or a loved one have been convicted under a provision of the act, you should consult with an appellate attorney to discuss your options. Chicago Criminal Appeals Lawyer The law is always changing, and when appellate courts strike down laws, that may mean that you can get a sentence reduced or vacated. There’s no reason to deal with an unnecessarily harsh sentence for a moment longer if it will no longer hold up in court. Appeals can reverse convictions and sentences. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. Technology is pretty great overall. It’s given us a much higher standard of living and makes most jobs a lot easier. Computers reduce the time it takes to do almost anything. And of course if it wasn’t for computers or cell phones, you wouldn’t be able to read this blog right now.
But unfortunately, technology has a dark side as well. Sometimes it can give law enforcement a little too much power to invade the privacy of innocent people. And when technology oversteps what the constitution allows, lawmakers need to step in to limit how that technology can be used. Stingrays: More than Just Marine Animals Originally developed by the military, stringrays are devices used by law enforcement that act like cell towers. When in use, stringrays can tell police the exact location of a phone, or extract information from the device. Police can also use stringrays to jam the communications of a cell phone. Earlier this month, the Illinois Senate voted unanimously in favor of SB 2343, a law that would require police to obtain a warrant for using stringrays in the course of an investigation. Police would also be limited to identifying and tracking cell phones described in a warrant. Violation of the law would result in a presumption that any other evidence obtained by a stingray is inadmissible in court. Police would also be required to destroy any information obtained from cell phones that weren’t described in the warrant. The bill now goes before the Illinois House for consideration. This legislation comes on the heels of a decision earlier this year by a Cook County judge order the Chicago Police Department to turn over information about its stingray program. The city claimed that having to reveal information about the program would allow criminals to figure out ways around it, disregarding the civil rights of innocent civilians who may be caught up in an investigation involving stingrays. Stingrays are often provided to local police departments through federal grants. The feds, however, require that investigators sign non-disclosure agreements before using stingrays in their investigations. This prevents police from releasing any information about how stingrays are used. In some cases, police officers have even refused to discuss stingrays while testifying in court. Prosecutors have also been told to withdraw evidence obtained by stingrays if defense attorneys press the issue. The federal government simply doesn’t want to deal with a constitutional challenge to the use of stingrays, which is exactly why it’s so important for state legislatures to consider this issue. Chicago Criminal Defense Law If police are investigating a crime, they have to do it within certain constitutional limitations. If evidence is obtained unconstitutionally, it must be suppressed at trial. On appeal, convictions can be vacated if law enforcement officers don’t follow these rules, particularly when new technology is involved in an investigation. For more information about the appellate process, contact the Chicago offices of Barney & Hourihane today to speak with an attorney about your case. The typical course of a criminal case in Illinois is arrest, arraignment, court appearances, and finally a trial. At trial, both the state and the defendant offer evidence about the case, and then the jury renders a verdict. If the jury is convinced of the defendant’s guilt, he or she is convicted of the crime. Whether the case is a misdemeanor like theft or driving under the influence, or felony such as robbery or murder, all cases go through this process. But just because the jury has come to a verdict, that doesn’t necessarily mean the case is over. Defendants are entitled to pursue a review of their convictions before the Court of Appeals of Illinois.
Grounds to Appeal a Criminal Conviction in Illinois Broadly speaking, a criminal appeal in Illinois must show one of two things. The defendant must show the appellate court that either the trial court committed a serious error that caused a wrongful conviction, or that the evidence was not sufficient to support the verdict. Examples of a serious error on the part of the trial court include admitting a piece of evidence that was illegally obtained by police, or misinterpreting case law when ruling on a motion by the defendant. Often, these errors are quite obvious to attorneys. However, demonstrating that evidence was not sufficient to support the verdict is a much tougher argument on appeal. The court of appeals is quite deferential to the verdicts of juries. However, as the recent reversal of a murder conviction and 26-year prison sentence shows, the court is willing to vacate convictions for serious crimes when there is clearly not enough evidence in the record to support a conviction. Pursuing a Sentencing Appeal in the State of Illinois One other basis for appeal is not to seek a reversal of the conviction, but instead to seek a change in the sentence. Criminal sentences in Illinois are based on a variety of factors. All statutes state a maximum punishment, but judges decide on the appropriateness of a specific sentence based on additional factors, such as prior criminal history, previous convictions for the same crime, as well as mitigating factors such as provocation. Judges will sometimes misinterpret these guidelines, resulting in a sentence much lengthier than what is appropriate given a defendant’s crime and background. In these cases, the only recourse a defendant has is to seek a review of the sentence by a higher court that can reduce it. Contact a Chicago Defense Lawyer Going through the criminal justice system is difficult enough. It’s even worse if you put your trust in the system only to be convicted due to an error. You do not need to tolerate a wrongful conviction on your record or an excessive sentence. An experienced appellate attorney can petition the Illinois Court of Appeals to have your conviction vacated or sentence reduced. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. Audio and video surveillance of police officers while on duty should substantially reduce reports of police misconduct in Chicago. However, time and time again, police have not reported it to their superiors when dashcams are not properly working, or they have failed to upload footage when their shifts end, as departments require. These oversights have made it difficult, if not impossible, to determine whether police are violating the civil rights of innocent Chicago residents. However, the city of Chicago is now finally getting more serious about pursuing cases of police misconduct in the city by using a $1.1 million grant from the U.S. Department of Justice to purchase more than 450 body cameras for Chicago police officers.
How Chicago Police Will use the New Body Cams The use of body cams by Chicago police officers began in 2015 as part of a pilot program. Initially confined only to Logan Square and West Town, the new body cameras will also be used by police officers in Washington Park, Hyde Park, and Kenwood, among other neighborhoods. All in all, officers on patrol in about one-third of the city should be outfitted with body cams when the new cameras arrive later this spring. Officers will be required to upload any footage taken by the cams to department computers at the end of each shift. Police officers on patrol have expressed some concerns that the cameras are an invasion of privacy, however, rather than infringing on the rights of police officers, anecdotal evidence offered by city officials indicates that complaints against police officers have dropped dramatically in the Shakespeare District where the cameras have been used by officers for more than a year now. Some city officials have also said that the cameras are a way for police officers to rebuild trust with the community. While the city of Chicago hasn’t released any statistics on the use of body cameras, these stories seem to confirm the results of a 2014 study in the Journal of Quantitative Criminology which found that when police officers are required to wear body cams while on duty, force is used in the course of duty 50 percent less often, and complaints against police are reduced by 90 percent. Put simply, body cams work at reducing incidents of police misconduct, and should police officers violate the rights of citizens, these cameras can provide invaluable evidence for pursuing and ultimately resolving a civil rights lawsuit. Contact a Defense Lawyer Spurred by near-daily reports of excessive force, police departments around the country and in Illinois are finally getting serious about police misconduct. Requiring every police officer to wear a body cam while on duty will go a long way toward reducing police misconduct in Chicago, but it won’t completely eliminate it, or help those who have already been victimized by it. If your civil rights have been violated by police misconduct, you’re entitled to seek relief through the judicial system. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. A video released last year showing Chicago police officers shooting a 17-year-old 16 times has continually raised questions about the actions of Chicago police and spurned thousands of Chicagoans to take to the streets to protest against police misconduct. As a result of the public outcry that the video has caused, Chicago’s mayor last year set up a Police Accountability Task Force to issue a report on how reforms can be instituted that will reduce instances of police misconduct and hold officers who do violate the civil rights of suspects accountable for their actions.
Earlier this month, a near-final draft of the report was released to Chicago media. Its findings are both deeply disturbing about the department’s current state of affairs, yet optimistic about how it can be improved. Report Finds Long History of Chicago Police Misconduct The report characterizes recent protests against police misconduct not as a reaction to the release of a single video, but as the final result of decades of forced confessions, physical, and verbal abuse that police officers have directed against minority suspects in Chicago. Despite years of complaints about these incidents, the city has done little to rein in the abuses of some police officers. Task Force Recommends Civilian Oversight of Chicago Police So how can the city of Chicago fix a badly broken police department? According to task force’s report, the first step is to disband the department’s Independent Police Review Authority, a badly funded and understaffed agency that is responsible for investigating misconduct of Chicago police officers. Yet despite this organization’s important function, the task force found that in recent years IPRA hasn’t even been able to fully investigate 40 percent of the complaints that come before it. And there is no system in place to hold IPRA accountable for its decisions. The task force recommends that the city of Chicago replace IPRA with a transparent Civilian Police Investigative Agency that can better investigate complaints of police misconduct. The report also criticizes the city’s current collective bargaining agreement with the police department, which, in tandem with state law, bars anonymous complaints about officers and requires signed affidavits to pursue claims of misconduct. Time will tell whether the city of Chicago takes action to implement the recommendations of the task force, but overhauling IPRA and the department’s collective bargaining agreement would be welcome steps toward remedying Chicago’s rampant police misconduct problem. Need Legal Help? The results of the Police Accountability Task Force’s report show that there are serious problems with how the Chicago Police Department treats many suspects, and how allegations of police misconduct are handled. In many cases, the only way for a suspect to protect his civil rights and receive compensation for injuries sustained while in police custody is to file a civil rights lawsuit. An experienced civil rights attorney can help you pursue your case against the Chicago Police Department. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. A recent settlement illustrates how an attorney knowledgeable about police misconduct can help suspects who have been mistreated by police receive compensation for injuries caused by misbehaving law enforcement officers. In early April, the city of Chicago announced that it had settled a lawsuit with a man who accused Chicago police of using excessive force against him for $4.9 million.
The Philip Coleman Lawsuit In the lawsuit filed in federal court, the family of a deceased man recounted how in 2012 he died shortly after he was taken into custody by Chicago police officers following a mental health episode at home. An autopsy discovered that the man’s entire body was covered in bruises and he had experienced severe physical trauma. A video of the man’s time in Cook County jail soon came to light, showing how he was dragged from his cell, Tasered repeatedly, and beaten with a baton by a Chicago police officer. The officer’s supervisor did nothing to stop what a federal judge called unnecessary “brute force.” In depositions, other officers who witnessed the incident stated that the officer’s supervisor could have easily ordered the use of brute force stopped, and that the man could have easily been carried out of his cell, rather than dragged out. With the introduction of uncontroverted video evidence showing Chicago police badly beating this man with provocation, the city saw no choice but to settle the case for nearly $5 million rather than risk a lawsuit where a jury award could have potentially been even higher. A Victory for Opponents of Police Misconduct Winning a civil victory over Illinois police is not easy, as officers have “qualified immunity” that requires plaintiffs show that any injury caused by the police wasn’t just negligent, but “willful and wanton conduct.” This means showing that the conduct of the police could not have possibly served any need to protect the public. The case resulting in a $4.9 million verdict for a man who died while in the custody of the Chicago Police Department was one such clear case of willful and wanton conduct, as the video evidence showed. Many other cases of police misconduct are not nearly as egregious, but the fact remains that any injury caused by police officers who are in dereliction of their duties should be compensated. This latest case shows that with more attention than ever paid to police misconduct in Chicago, the city is now more willing to settle these cases. Need Legal Help? Holding police liable for misconduct is not easy. The department, police union, and the city behind them will do everything in their power to stand up for officers and fight allegations that police broke the law. But this recent case out of Chicago shows that with an attorney knowledgeable about civil rights on your side, you can be compensated for damages sustained as a result of police misconduct. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. The Fourth Amendment of the Constitution protects U.S. citizens from unlawful search and seizure by law enforcement officers, but the definition of what exactly constitutes an illegal search has changed quite a bit in the past few decades. Perhaps no change has had greater ramifications on how the average person interacts with police than Terry stops.
What is a Terry Stop? Terry stops, also known as stop and frisks get their name from the 1968 U.S. Supreme Court case Terry v.Ohio. The case involved a police officer stopping and frisking two men he suspected of pickpocketing. The officer located concealed weapons on the men, and at trial they moved to suppress the evidence as illegally obtained. When the case reached the Supreme Court, the justices held that police may detain individuals who they have a reasonable suspicion are involved in criminal activity. The Court also held that police may pat down the outer garments of a suspect if there is a reasonable and articulable suspicion that the suspect is armed and dangerous. When is a Terry Stop Illegal? The first limitation on Terry stops is that police must have reasonable suspicion to initiate them. More often than not, however, it is questionable whether police in Illinois properly initiate Terry stops. The ACLU of Illinois found that in 2014 Chicago police stopped and likely frisked more than 250,000 people, but made no arrests and issued no citations from these stops. The second limitation on Terry stops is that police are not automatically entitled to go on a fishing expedition for contraband. If a weapon or drugs are obviously discovered in the course of a stop and frisk, this evidence is admissible in court, but police may not conduct a lengthy and intrusive pat down to search for these items. Police are limited to a pat down that would discover a weapon. Finally, while there is no set time limit on how long a Terry stop may last, with courts instead relying on a reasonableness standard, police are not authorized to engage in a Terry stop that lasts for hours upon hours. At some point the police must determine whether the stop has given them probable cause to make an arrest. If no probable cause exists, the suspect must be released. A Terry stop must meet all of these requirements in order to produce evidence that is admissible in court. If the stop is lacking in any of these ways, it may be grounds to dismiss the charges or have a conviction set aside on appeal. Need Legal Help? While the police are responsible for protecting the public, that never gives them the right to violate the civil rights of innocent civilians. If police inappropriately performed a Terry Stop on you or held you for an excessively long period of time in order to discover evidence against you, you may have a viable legal claim for to seek an appeal of your conviction. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. Why Criminal Appeals Matter: Illinois Supreme Court Lets Reversal of Murder Conviction Stand4/11/2016
Imagine being sentenced to 26 years in prison for a murder you didn’t commit. In fact, it’s not even clear if a murder was even committed to begin with because a body has never been found. After you’ve spent years in prison, the state’s star witness finally admits that he made up his testimony against you to cut himself a deal. It almost sounds impossible, but time and time again cases like this pop up in the Illinois and national media. How do you regain your freedom and clear your good name? The answer is to file an appeal in the Illinois court system.
The Case of People v. Casciaro People v. Casciaro involved a defendant accused of killing a 17-year-old boy who went missing in the small town of Johnsburg, a distant Chicago suburb, 2002. The boy has not been scene since, but no body was ever discovered. He is now presumed dead by investigators. In building their case, prosecutors argued that the teen was killed at a grocery store where he was last scene and the defendant worked. Blood spatter found by investigators in the store belonged to the boy, but no other physical evidence connected the defendant to any crime, or even indicated a murder took place. In 2009, another employee of the store with previous felony convictions was facing 12 years in prison on drug charges. He told McHenry County prosecutors that the defendant killed the boy to settle drug debts. The initial trial against the defendant ended in a mistrial, but he was convicted of murder at a second trial 2013 and sentenced to 26 years in prison. Following this trial, the witness publicly admitted his story about the murder was false and said the defendant was not involved in any murder. When the case came before the court of appeals last year, it was dismissed as an obvious case of a jury convicting when there was no evidence of guilt beyond a reasonable doubt. The court of appeals called the evidence against the defendant “lacking and improbable.” However, prosecutors still sought to appeal this decision, taking it to the Illinois Supreme Court. Earlier this month, the Court simply refused to hear the case, meaning that the decision of the appellate court stands, and the conviction is overturned. Casciaro is an extraordinary case involving a large amount of questionable evidence and a lengthy sentence, but it is also a testament to how good appellate work by an Illinois attorney can result in an unjust conviction being vacated. Need Legal Help? The appellate system exists so that mistakes on the parts of witnesses and prosecutors can be reviewed and reversed. Innocent people should not be forced to do prison time for crimes that they never committed. A knowledgeable appellate attorney may be able to get a serious criminal conviction vacated and a prison sentence substantially reduced. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. It’s long been settled that the government can force a defendant to turn over property associated with a crime, but in recent years prosecutors have tried to grab more and more property from defendants who have not been convicted of any crime. And often it hasn’t matter whether that property is associated with any crime either. If that sounds wrong to you, it’s rubbed many defense and appellate attorneys the wrong way too, and last week the U.S. Supreme Court put the brakes on the practice by holding that the state cannot order a defendant to forfeit money that has nothing to do with an alleged crime.
Luis v. United States and the Sixth Amendment Right to Counsel In Luis v. United States, the defendant was accused of running a massive $45 million scheme between her two companies to defraud Medicare. However, by the time an indictment was brought against her, she only had $2 million in assets. The government moved to freeze these assets as “"property of equivalent value.” A district judge granted this petition, effectively leaving the defendant destitute and unable to afford the attorney of her choice. The issue is that even the government admitted that the money it sought to freeze wasn’t directly connected to the alleged criminal activity. As the Sixth Amendment of the U.S. Constitution guarantees the right to counsel of the defendant’s choice, a plurality of Supreme Court justices took issue with the government’s action. By cutting off access to all funds for the defendant, she was unable to defend herself as she wished, with money that was legally obtained. The justices went out of their way to point out that this holding still doesn’t apply to assets connected to a crime. For example, the government still order the forfeiture of money believed to be taken in the course of a bank robbery, but the government cannot seize a bank account completely unconnected to any crime. The final vote of the Court was 5-3, with four justices backing one analysis of cases such as this, and the fifth justice writing in favor of a slightly different test. While this could lead to circuit splits down the line, the general law of the land is now that a court cannot freeze money that is unconnected to a crime, as it deprives a defendant of the counsel of his or her choice. Even though this case went through the federal courts, it also now applies to state criminal cases through the Fourteenth Amendment, so Illinois courts will be required to follow this precedent. Need Legal Help? Luis is now the law of the land, and makes it harder for prosecutors to seize money before a trial commences. This means you may now be eligible to have money returned to you while your case is pending, or you could possibly file an appeal of a previous order to forfeit assets to the state. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. |
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