It’s been hard to miss the news the past few months about the criminal prosecution of former U.S. Speaker of the House Dennis Hastert.
Hastert has been accused of sexually abusing teenage boys while a teacher and wrestling coach decades ago in Yorkville, Illinois. But with the statute of limitations long past on those alleged crimes and little evidence remaining, federal prosecutors instead chose last year to indict Hastert on charges that he violated federal banking laws and made false statements to the FBI when he wired money to keep an alleged victim, now an adult, quiet about the misconduct. Hastert reportedly agreed to pay the victim $3.5 million, and had already sent him $1.7 million at the time that the FBI began investigating him. A Longer Than Expected Sentence But No Appeal Hastert pleaded guilty last year before a federal judge in Chicago to the charges of structuring financial transactions to conceal payments and making false statements. As part of the plea agreement, prosecutors recommended that Hastert serve a sentence of between zero and six months in prison. However, the judge, imposed a sentence of 15 months in prison based on the numerous allegations of sexual abuse against Hastert. Hastert could have appealed the sentence because it went beyond federal guidelines, but chose not to as the deadline for the appeal passed last week. He now must report to prison. While Hastert would have been perfectly within his rights to file an appeal, his case illustrates several reasons why sometimes it’s best to avoid an appeal. Of course, the sexual abuse allegations against Hastert are appalling. Even though he cannot be convicted of any crime based on those allegations at this point, the conduct that led to his violations of federal banking law will not win him much favor with an appellate court. And federal prosecutors only promised to recommend a lighter sentence for Hastert. When entering a plea agreement with prosecutors, there is never any guarantee that a judge will follow the agreement, and this alone is not enough to win a lighter sentence on appeal. There is also the possibility that if Hastert had appealed his sentence and dragged out the process for another year or two, prosecutors might have discovered more evidence of wrongdoing. If such evidence were discovered while the case was pending on appeal, it could have actually resulted in Hastert receiving a longer sentence than what was initially imposed by the court. Contact a Chicago Criminal Appeals Lawyer Appeals are a complicated area of the law. There are many more procedural requirements for pursuing a criminal appeal in either state or federal court, and there are also strategic concerns. It might be better to appeal on some issues rather than others, and as this unique case illustrates, in some cases it might be better to not file an appeal at all. To learn about appeals, contact Barney & Hourihane today to talk an attorney about your situation. Society places a tremendous amount of trust in prosecutors. They are vested with the power to pursue criminal charges and keep the average citizen safe. However, sometimes prosecutors step outside the bounds of what they are ethically allowed to do, confusing juries or avoiding legal arguments to obtain a conviction at all costs.
However, if a prosecutor convinces a jury to convict a defendant on these grounds, a court reviewing the case will find that obvious prosecutorial misconduct exists, and the conviction can be vacated, as recently illustrated in the Second District Court of Appeals case People v. Mpulamasaka. People v. Mpulamasaka and Prosecutorial Misconduct In Mpulamaska, the defendant was placed on trial based on allegations that he sexually assaulted a woman outside of a Highland Park restaurant in 2011. The trial commenced in 2013, with the defendant claiming that the sexual encounter between he and the woman was consensual. The issue of prosecutorial misconduct arose in the closing arguments, at which time the state’s attorney used several tactics to invoke a purely emotional response from the jury, including sitting in the witness stand and talking about the courage of the alleged victim while questioning the defendant’s versions of events. The appellate court called this conduct by the state’s attorney “troubling.” The court held that while there is no clear law or ethical rule that bars a prosecutor from sitting in the witness stand during closing arguments (and indeed prosecutors have quite a bit of leeway in making these arguments), this act amounted to vouching for the woman’s story, which is barred by ethical rules. The court of appeals believed that the conduct of the prosecutor in Mpulamaska was so prejudicial that the defendant would not have been convicted of aggravated sexual assault but for the actions of the state’s attorney. Accordingly, the verdict of the jury was reversed. Types of Prosecutorial Misconduct to Watch Out For While Illinois courts have never dealt with a case quite like Mpulamaska before, there are several other things prosecutors may do that are always considered misconduct including: · Arguments or other statements intended to confuse the jury or draw attention to irrelevant issues · Arguments meant to appeal more to emotion to logic, including using terms such as “predator” to describe a defendant · Misstating expert testimony or improperly questioning the reputation of an expert · Accusing counsel for the defendant of trying to confuse the jury or otherwise acting unethically without any grounds for making such claims Any of this conduct is grounds for seeking appeal of a conviction. Chicago Criminal Appeals Attorney Prosecutors are required to prove the guilt of a defendant beyond a reasonable doubt in order to secure a conviction, but there are limits on how far they can go to prove a case. If the statements by made by a prosecutor in the course of a trial amount to misconduct, it may be grounds to have your conviction vacated. For more information about appealing a criminal conviction in Illinois, contact the Chicago offices of Barney & Hourihane today to speak with an attorney about your case. 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. 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. 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. A recent Illinois Supreme Court illustrates how prosecutors can overcharge crimes, resulting in harsh penalties for minor infractions, but that an experienced appellate attorney can have these charges reduced or even thrown out by challenging the interpretation of a statute.
People v. Bradford The case in question People v. Bradford, in which a defendant was accused of stealing from a Walmart in Bloomington, Illinois. The defendant allegedly took two DVDs from the electronics section and returned them at the customer service for a gift card. He was accused of then taking a hat and shoes without paying for them and using the fraudulently obtained gift card to pay for the purchase of a friend who ran from the store when police arrived. If that sounds like a pretty clear cut case of shoplifting to you, that’s because it is. Each day, hundreds of people are charged with misdemeanors for similar crimes. In Illinois, such crimes are defined as retail theft, and punishable by up to a year in prison, but usually just result in probation. However, in this case, prosecutors sought to charge the defendant with burglary, a felony that he was ultimately convicted of. Under 720 ILCS 5/19-1, burglary is defined as “when without authority he or she knowingly enters or without authority remains within a building… with intent to commit therein a felony or theft.” The classic example of a burglary is of course someone breaking into a home or building at night when no one is around to steal cash or valuables. But in this case, prosecutors attempted to extend the meaning of burglary to argue that the defendant was within the Walmart “without authority” once he improperly obtained the gift card from the store. They argued that anything he took after this, such as the shoes and hats, amounted to a burglary. Both the trial court and the appellate court sided with the state. The problem with this argument was that the state could never pinpoint exactly when the defendant lost his authority to be in the store. No employee approached the defendant until after he attempted to take the items of clothing. He was only within the store during business hours. He was never accused of entering the store when it closed or accessing a part of it that wasn’t normally open to the public. The Illinois Supreme Court saw that this argument made no sense as it would then become impossible to distinguish a burglary from a retail theft, two crimes that the legislature has clearly intended to be charged separately. The defendant’s conviction was reversed, and if he faces additional charges related to the incident, they will be much less serious than burglary. Contact a Chicago Criminal Appeals Lawyer Prosecutors make mistakes, and sometimes those mistakes mean that defendants face lengthy punishments that are unnecessary and unfair. An appellate attorney can review your case and determine whether you have grounds to have your criminal conviction reversed. For more information, contact Barney & Hourihane today for a consultation. The Fourth Amendment of the U.S. Constitution states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The founding fathers were so concerned with the right to privacy and preventing law enforcement from barging into private residences for any reason that they clearly enshrined it in the Constitution. While the Fourth Amendment still guides how police officers in the 21st century obtain warrants, courts have interpreted the amendment to allow for several exceptions over the years, so it’s important to understand when the actions of police and have or have not violated constitutional protections.
How Police Obtain Warrants As outlined in the Fourth Amendment, police officers today still obtain search warrants by providing information to a neutral and detached magistrate that either through their own observations or from information provided by witnesses or a confidential informant, they have probable cause to believe criminal activity is occurring at a specific place. If these requirements aren’t met, the warrant is not valid. Once issued, police can only search the place described in the warrant. If the warrant is only for a backyard of a home and not the home itself, police are restricted to only search the backyard. When It’s Not Necessary for Police to Obtain a Warrant While police in Illinois need a warrant to conduct most types of searches, courts have recognized the following exceptions to the warrant requirement: · Consent- If police ask you if they can take a look around your home, you are consenting to a search without a warrant. You may limit the area of the home that police search, but courts have some discretion in determining just how far that limitation goes. You may also refuse to consent to a search. Refusing to consent to search alone does not give police probable cause to search a home. · Plain View- If you open your door to speak with police and illegal contraband is in plain view of the officer when the door is opened, police do not need permission to enter your residence to confiscate the contraband. · In Connection with an Arrest- Police may search the immediate area of an arrest, or conduct a sweep of a residence if they believe an accomplice may be hiding therein. However, the purpose of this sweep must be to protect others, not to search for evidence. · Emergency- If police reasonably believe a person is in danger or evidence related to a lawful arrest may be destroyed if they take the time to properly obtain a warrant, they may enter a residence without a warrant for the purpose of public safety. Contact a Chicago Defense Lawyer The right to be free of a warrantless search in America is sacrosanct. If you believe that police officers in Illinois have violated your right to illegally obtain evidence against you, an experienced attorney can petition a court to have this evidence suppressed. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. It’s tough being a gun owner in Illinois. Heck, it’s tough to even possess a gun in the state for any reason unless you’re a law enforcement officer. The fact is that even if you try to comply with the state’s gun laws, simply having a gun on you in the wrong place at the wrong time can result in an arrest and conviction. And the recent case People v. Tolbert, which went before the Illinois Supreme Court on appeal highlighted yet again the difficulty in arguing against these laws in the state.
Minors and Guns in the State of Illinois In Tolbert, Chicago police detained the 17-year-old defendant in the front of a South Seely Avenue home after receiving a call about a “person with a gun.” However, no other criminal conduct was reported. Police officers indeed found a loaded .9 mm pistol on the porch of the home and arrested the defendant. He was charged under 720 ILCS 5/24-1.6(a)(1), (a)(3)(I) with possession of a handgun while under the age of 21. A second firearm possession charge was dismissed after prosecutors conceded it was unconstitutional, but the charge of possessing a firearm by someone under the age of 21 stuck, and went before the Illinois Supreme Court. The defendant was not accused of using the gun in a threatening manner or for any other criminal purpose. How the Illinois Supreme Court Put More of a Burden on Defendants in Gun Appeals The issue the court consider in Tolbert was the construction of the statute, which plainly makes it illegal for someone under 21 to possess a firearm except when “on the land or in the legal dwelling of another person as an invitee with that person's permission.” The Court of Appeals held that whether a person under 21 was an invitee of someone was an element of the crime, and thus prosecutors must prove that someone is not an invitee in order to convict them under the statute. The defendant’s conviction was reversed. However, the Illinois Supreme Court was not persuaded by this line of reasoning. The Court held that whether or not a defendant is an invitee is not an element of the crime, but an exemption, or defense to the crime of possessing a firearm while under the age of 21. The Supreme Court thus did not vacate the defendant’s conviction, but they didn’t affirm it either. Rather, the case was remanded back to the appellate court. Now, if any defendant is charged with the same crime, the burden will be on them at trial to prove that they were in fact an invitee while under the age of 21 possessing a firearm. Contact a Chicago Appellate Attorney There are a lot of gun laws on the books in Illinois, but many of those laws haven’t yet been tested in the courts. However, an experienced Chicago appellate attorney can chip away at these statutes and argue how these statutes should be interpreted by the courts, which can result in convictions being vacated or overturned. For more information, contact Barney & Hourihane today for a consultation. |
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