When the U.S. Constitution was adopted, the framers and ratifiers could not have imagined what impact all of the amendments to the original constitution would have on criminal procedure in the future. In fact, the application of the constitution to criminal laws and procedures takes up the majority of opinions the High Court issues on constitutional issues.
One of those all important constitutional amendments in dealing with criminal cases is the Eighth Amendment to the U.S. Constitution. In it, the framers forbade the government from imposing cruel and unusual punishment on those who are convicted of criminal activity in a court of law. But the exact meaning of cruel and unusual punishment has eluded a firm definition over the many years it has been interpreted.
In typical cases, the Eighth Amendment is used as a way to challenge the death penalty. Of course there are critics on both sides of this issue. Those who are for the death penalty argue that it can not be considered cruel and unusual as the framers announced it because at the time the death penalty was a common sentence for crimes that were not even murder. Then there are those who oppose the death penalty and argue that the provision should be viewed in the light of modern standards and not those of the 18th century.
Prisoners Argue Eighth Amendment Rights
Now the cruel and unusual principle of the Eighth Amendment is making an appearance in a different sort of way. Prisoners in a Texas state prison are arguing that the heat conditions they suffer through in summer, without adequate air conditioning and ventilation, constitute making them suffer a cruel and unusual punishment for their crimes. And now the case is catching national attention.
To bolster their case, the plaintiffs are presenting evidence of how the heat has affected prisoners in the Texas Department of Criminal Justice. It was recently reported that since 1998, 20 inmates have died from heatstroke or hyperthermia. And the lawsuit alleges that many more have died from complications arising from overly hot conditions. Now the case is before the 5th Circuit Court of Appeals to decide whether forcing inmates to live in sweltering conditions while serving a sentence for a crime constitutes cruel and unusual punishment.
This is just one example of the many ways in which the U.S. Constitution and its Amendments work to protect the rights of those accused of crimes. But the only way to ensure those rights are properly exercised is by having the right legal team who knows what your rights are and how to defend them in court.
Every encounter that a person has with the government or its agents related to a crime must comply with the norms and rules embodied in the U.S. and Texas Constitutions. This means that searches and seizures must be reasonable; in most cases the police need a warrant to enter a home or make an arrest; that a suspect is informed of his rights to remain silent and have an attorney, and many more. If any of these rights are violated, the court is obligated to create a solution that both punishes the wrong act and which works to prevent it from happening again. But all of this can only happen if the defense attorney knows what he is doing.
Contact Chicago Criminal Appeals Lawyers
If you are facing criminal charges by the federal, state, or military, you need the right attorney working on your side. Contact our Chicago civil rights lawyers at Barney & Hourihane to learn more about your rights.
A lecture given at Virginia’s Regent Law School gained YouTube popularity after the law professor explicitly stated that no one should ever give a statement to the police. The now viral video prompted the professor to release a book addressing the dangers of providing any information to police officers without first speaking to a lawyer. Even if you are not involved in committing a crime, it is possible to accidentally implicate yourself. In 2015 a record number of people in the United States were falsely convicted of committing a crime illustrating how often wrongful prosecution occurs.
Problems Within the System
A growing number of false convictions led many organizations to question the criminal justice system. The justice system places emphasis on quickly arresting and convicting people, creating a dangerous environment for anyone who speaks with police officers. Rather than question bystanders to discover the truth, police officers often question bystanders solely to find a potential perpetrator. Police officers are not required to tell you the truth, and minor mistakes in your statement may later be interpreted as deliberate lies. Critics of these conviction and prosecution methods point out that the annual number of false convictions has doubled since 2011 showing that this is a national problem.
Understanding Your Rights
There are those who believe that refusing to answer police questions is something only a criminal would do. Many innocent people do not understand that they have rights when participating in any police investigation. When the police question you about a crime you are under no obligation to make a statement. In Illinois, if you do decide to give the police a statement you can request that the police record it.
As long as the criminal justice system is stacked against those who speak to police officers, the best way to protect yourself is to strictly limit communication. Only answer questions that you are legally obligated to respond to such as your name and a brief explanation of what you are doing. Do not volunteer any additional information or engage in a lengthy dialogue that creates an opportunity for the police officer to trick you into saying the wrong things. The only safe response to a situation involving police questioning is “I want a lawyer.”
Let Us Help
If you are arrested or involved in a police investigation, then you should not make any statements to the police or anyone else. Only speak to an experienced Chicago civil rights attorneys who can listen to your thoughts and provide you with knowledgeable advice. Call 312-854-0906 to schedule a consultation with our team today. We are able to provide you with the representation you need to protect your rights and your future.
Live Facebook broadcasting of police officers shooting unarmed victims, photos posted to twitter revealing police brutality at peaceful protests, and cell phone videos that make their way onto other social media platforms of officers beating and kicking unarmed African Americans has brought much of the nation’s attention to the seemingly growing problem of police misconduct. Or has the problem always been there and we just have not taken notices?
If you have been harassed, harmed, assaulted, or otherwise mistreated by a law enforcement agency in any way, do not hesitate to contact the experienced Chicago civil rights violation attorneys of Barney and Hourihane today at 312-854-0906 for immediate assistance.
NYC Stop and Frisk Operations to Reveal no Change in Racial Discrimination in Last 13 Years
There are many examples to look at when examining racial profiling and discrimination within the U.S. One needs only look at the rate of incarceration that blacks face compared to whites. Median income levels, number of elected positions within government, and level of education are all disproportionately skewed in favor of whites as well, and they have been for much longer than social media has been around. However, one of the most easily recognizable forms of discrimination is Chicago’s stop and frisk program. 72 percent of all Chicago stop and frisks were performed on blacks and nine percent were performed on whites in 2014, while whites made up 32 percent of Chicago’s population and blacks made up 32 percent as well, according to the American Civil Liberties Union of Illinois.
Similar inequality exists in New York, where the stop and frisk program has been going on for a longer period of time and can be examined to see if racial profiling has grown in the past decade or not. In 2003, 54 percent of all stop and frisks were performed on blacks, 32 percent on Latinos, and 12 percent on whites. Fast forward 13 years and again in 2015, 54 percent of all stop and frisks were performed on blacks, 29 percent on Latinos, and just 11 percent on whites, according to the New York Civil Liberties Union. The Census reveals that blacks make up just 25.5 percent of New York City’s population, while Latinos make up 28.6 percent, and whites (the majority) account for 44 percent of the population.
While the data has existed for decades, police misconduct has only been given the attention that it deserves until recently, and that is because of social media and the growing prevalence of pocketable surveillance equipment: smart phones.
Contact an Aggressive Chicago Civil Rights Attorney Immediately for Experienced Counsel
Social media has helped refocus dialogue pointing to the huge inequalities that an American faces if his or her skin is not white. Unfortunately, social media has also become an outlet for tactless arguments blaming movements such as Black Lives Matter for the shootings of police officers in Dallas and other areas. Regardless, if you have been the victim of police misconduct, contact Barney and Hourihane today at 312-854-0906.
How a judge and prosecutor come to their decisions may well be swayed by preconceived notions. If a judge has a grudge against a type of person or has strongly irrational feelings about the type of crime that a defendant allegedly committed, unfortunately there is not a lot that can be done about that. However, what a judge or prosecutor say and how those beliefs are represented in the courtroom does matter. A judge cannot pass down sentencing by slandering the defendant before the jury has reached a decision, for example.
If a judge or prosecutor is found to have behaved inappropriately and that behavior could have intentionally or unintentionally swayed the outcome of the decision, a retrial may be necessary. Or, if it can be proven at a later time, an appeal may be granted. The criminal appeals attorneys of Barney and Hourihane can be reached at 312-854-0906 for experienced, aggressive, and immediate assistance.
Cook County Judge Comments Found “Highly Offensive”
Recently, a Cook county judge was found to have said highly offensive remarks by a three-judge appellate court, according to the Chicago Tribune. The judge has a prior history of using profane language and making improper comments, and has been reassigned and disciplined before in the past. In this instance, the judge’s remarks have lead to a retrial. The defendant, accused of being part of an attempted murder of three Chicago police officers, apologized for his actions to his children at the sentencing.
Right afterwards, the judge said "I don't believe they thought about their kids in the slightest on that day. If someone said, 'Hey, man, how are your kids doing?' their response would be 'What kids? I got kids somewhere?'" The appellate decision claimed that the judge’s comments “leave little doubt that they were derisive and intended to malign an entire class of criminal defendants. ...The court's sarcasm was unwarranted and wholly inappropriate." Additionally, the prosecutor described the defendant as a “criminal” in her opening statements back in 2013, which the appellate panel also condemned.
Personal Bias is Cause for Serious Concern
Whenever a judge is in the position to make an impartial decision, there is great reason for alarm. The defendant’s future lies partially in the hands of that judge, and to make anything but an unbiased ruling is one of the greatest pillars of the U.S. justice system. According to 28 U.S. Code § 455, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Personal bias should not have a place in the courtroom.
It is impossible for any person to be completely unbiased in every scenario, even a judge. However, when there is reason to believe, through their actions or words, they a judge has such a bias, you must take swift action. Call the experienced Chicago criminal appeals attorneys of the Barney and Hourihane law firm today at 312-854-0906 for, aggressive and experienced representation.
Barney & Hourihane, LLP Files Suit Against City of Chicago for Officers' Beating and Strip Search of 14-Year Old Boy.
On September 20, 2016, Barney & Hourihane, LLP and the Law Office of Timothy J. Fiscella filed suit against two Chicago Police Officers and the City of Chicago for the beating and strip search of a 14-year old boy in Chicago's South Shore neighborhood. The beating and strip search was captured on a convenience store surveillance video and depicts Chicago Police officers beating the 14-year old boy over the head with a metal crutch and ordering him to pull down his pants and underwear. CBS Chicago covered the the incident in a special segment. The Complaint can be viewed below.
Barney & Hourihane, LLP, along with the Law Office of Timothy J. Fiscella and Hammond Law, filed suit on October 3, 2016 against the City of Chicago and multiple Chicago Police Officers for manufacturing evidence to convict Renard Jackson of unlawful possession of a firearm. Jackson, a resident of Chicago's south side, spent nearly four years in jail for a crime he did not commit. Jackson was ultimately released from prison in December of 2015 after an appeals court threw out his conviction due to a lack of evidence. The Complaint can be read below.
Denial of Expert Witnesses Leads to Appeals
In January 2016 the Illinois Supreme Court set a new precedent in the state with their decision in the case of People v. Lerma. The appeal stemmed from a case initially heard in the Circuit Court of Cook County. In the circuit court the majority of evidence against Eduardo Lerma came from two eyewitness statements. However, the defendant was not allowed to put an eyewitness identification expert on the stand. An expert on eyewitness identification can address where faulty identifications are likely to occur. These are not always details apparent to a jury. The expert will point out details such as:
What the Supreme Court decided in People v. Lerma was that when the judge refused Lerma the opportunity to use an expert witness, he thereby failed to give Lerma a fair trial. In the opinion the Supreme Court wrote, “Advances in DNA testing have confirmed that “eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined.” Illinois courts, which had up until this case been notorious for denying expert witnesses to testify on eyewitness identification, are realizing the importance of having experts on the stand when a case is based almost solely on eyewitness statements instead of forensic science.
We have already seen the impact of this Illinois Supreme Court decision within the Chicago area. In 2006 a rapper from Rolling Meadows was killed and Patrick Taylor from Chicago was sentenced in 2011 during a case that relied heavily on four eyewitnesses. Taylor’s case was recently reviewed by the Illinois Appellate Court and will now receive a new trial. One of the assistant Cook County public defenders who defended Taylor told the Chicago Tribune, “The physical evidence pointed to another man.”
Whether or not Taylor is found innocent remains to be seen, however allowing a criminal defense team to present expert witnesses is critical. As a result of People v. Lerma we expect to see more appeals such as Taylor’s. Contact the law office of Chicago appeals attorneys Barney and Hourihane today at 312-854-0906 for immediate assistance.
For over a decade agents from The Bureau of Alcohol, Tobacco, and Firearms (ATF) have been conducting sting operations. In many of these operations, an undercover agent will act as an upset drug dealer and recruit, sometimes even coerce, young men in the neighborhood to help him rob a stash house. A stash house is where drugs, weapons, and occasionally people are hidden. However, in these sting operations the stash house is a fictitious house made up by ATF agents themselves. The young men caught up in these fake robbery attempts and are convicted of drug conspiracy and often violent crimes for brandishing weapons, many times provided by ATF agents.
This past September a newly released investigation from USA Today put these sting operations in the spotlight, accusing them of discriminating based on race, as they are most often in poor African American neighborhoods. The research, performed by a Ph.D. professor from Columbia University, was filed in a federal court in Chicago. As a result of his findings, Fagan is an expert witness in several court cases in Illinois.
All Defendants are Either Black or Hispanic
Looking across the cases presented by the Bureau, almost all of the defendants are either black or hispanic. Fagan’s report shows that statistically there is only a 0.1 percent chance that the Bureau could have unbiasedly picked a population so racially skewed as they did, even when solely looking at those who already have a criminal record. Often, small-time criminals were being caught up in the fictitious robberies, at times provided with guns by the ATF, and then charged with having committed serious crimes that comes with sentences such as life in prison.
Dismissal of Federal Charges
With this new report the University of Chicago’s legal clinic filed three motions to dismiss federal drug and weapons cases that targeted minority males. The clinic is expected to file motions for at least seven more cases within the next month. Since the report, several charges among other defendants were dropped without explanation.
The local Chicago police are not the only ones who are causing racial profiling concerns. The Bureau of Alcohol, Tobacco, and Firearms is a federal agency that operates throughout the country. We are waiting to see the outcome of these upcoming cases. It is possible the defendants will be granted new trials. It is also possible that these cases will go all the way to the Supreme Court. If your civil liberties have been violated in any way, call the experienced Chicago civil rights violations attorneys of Barney and Hourihane today at 312-854-0906.
There are various types of appeals that can lead to a case being reviewed by either an appellate court or the Supreme Court. An appellate court hears appeals from lower courts and makes a decision that usually brings the case to a final end. However, an appeal can be made to the Supreme Court in rare circumstances, and in even rarer circumstances the Supreme Court may hear the appeal. If you were penalized for a crime that you did not commit, the penalty is uncommonly severe, there was an unfair hearing, or your rights were violated in any other way, call an experienced criminal appeals attorneys at Barney and Hourihane today at 312-854-0906 for immediate assistance.
What are the Possible Outcomes of an Appeal?
Appeal stems from disagreements of how the law should be applied, and from a constitutional rights violation. No new evidence is permitted during an appeal. The decision can be affirmed, meaning that the lower court’s original decision will be upheld; the decision can be remanded, meaning that the it will be sent back to the lower court for decision and review according to the higher judge’s advice; or the decision can be reversed, meaning that the appellate judge annuls the decision that came out of the previous lower court trial.
Supreme Court Hearings are Rare
Any case that involves the federal law or the constitution can be heard by the Supreme Court. The Supreme Court gets around 7,000 requests each year, though it only hears 80 cases a year, roughly, and makes a decision on an additional 50 without hearing an argument, according civilrights.org. Two thirds of the cases are appealed from federal courts, one third are appealed from state supreme courts, and sometimes, though very rarely, the Supreme Court takes on cases that were not previously heard by a lower court.
Writ of Certiorari
A writ is an order issued by a higher court to a lower court. Cornell Law states that while writ of certiorari is rarely used, the Supreme Court commonly uses writ of certiorari to determine which cases to hear. When a writ of certiorari is issued, all the evidence and case files are sent up to the Supreme court for review.
Writ of Habeas Corpus
A writ of habeas corpus is issued by a court to the authority detaining a person and requires the detained person’s attendance in court so their case can be reviewed. It is possible in this scenario that the court finds the reason for detention illegal and releases the individual.
Contact a Chicago Criminal Appeals Lawyer
All appeals are “as of right” appeals, or “discretionary” appeals, depending on the specifics involving the case. The court has to hear appeals as of right, which is enforced by constitutional principles. A discretionary appeal is not mandatory for an appeals court to hear, and is only heard at the discretion of the court. If you wish to file an appeals, you need an experienced attorney with knowledge specific to Illinois appeals law. Call Chicago appeals attorney Barney and Hourihane today at 312-854-0906 for immediate assistance.
A Chicago police officer who unloaded his gun on a car full of unarmed African American teenagers recently plead not guilty to federal civil rights charges. The 2013 incident was spurred by the teens stealing a car, but the use of deadly fire is being charged at as excessive force by the officer, since no one’s life was in danger from the teens’ actions as they backed up away from his vehicle when he fired sixteen rounds into the car. Two of the teens were injured. The officer in question is facing federal criminal charges, and is the first Chicago officer of the past 15 years and 702 police shootings to face federal criminal charges, according to the Chicago Tribune.
However, this is not the first time this particular officer has fired his gun in the line of duty. In 2011 he killed a 19-year-old at close range; the mother of the victim was awarded $3.5 million in that unjustified shooting, but the settlement was later overturned by a judge. That judge’s decision is now being appealed. More recently, the city agreed upon a $360,000 settlement for the 2013 shooting in which the officer is facing federal criminal charges. Finally, the third shooting incident that the office committed occurred in 2010 when he shot and injured a 20-year-old woman. He has been on desk work for the past few years, still receiving a paycheck. He is now being charged with two accounts of deprivation of rights under the color of law.
Deprivation of Rights Under the Color of Law and the FBI
When there are allegations that violations of civil right statutes have occurred, The Federal Bureau of Investigation (FBI) is usually in charge of the investigation, according to the FBI. The FBI’s involvement in civil rights stems from fighting the KKK and the use of police brutality back in the early 20th century. Many of the later were violations that occurred under the color of law. Color of law is defined in West’s Encyclopedia of American Law as “the appearance of an act being performed based upon legal right or enforcement of statute, when in reality no such right exists.”
Many civil rights violations occur under the color of law. When serious bodily injury occurs from deprivation of rights under the color of law, the defendant may face up to 10 years in prison. If the intent was to kill, the defendant can face up to life in prison or the death sentence, according to Cornell Law. Of the hundreds of civil rights cases opened by the FBI, including the color of law 2013 police shooting case mentioned above, it also takes on civil rights cases involving hate crimes, human trafficking, and cases involving Freedom of Access to Clinic Entrances (FACE) Act.
Contact an Experienced Chicago Civil Rights Attorney Today
If you have been bullied, harassed, injured, or physically or emotionally assaulted by the police, you may have had your civil rights unknowingly violated. Call an experienced Chicago civil rights violations attorney with Barney and Hourihane today at 312-854-0906.