Archive for September, 2009

Criminal Defense Case Threatened By – The Telephone Company!

Saturday, September 26th, 2009

Aurora Illinois criminal defense client, Client J., had sat in jail over half a year until I was hired and fought to get him out and into a drug treatment program. Client J was making all the right moves. He made all his drug treatment classes, probation appointments, and stayed out of trouble. We were and, thankfully, still are, on the verge of his release from his electronic monitoring ankle bracelet when the phone line he used – got slammed.

Phone slamming occurs when a phone service company engages in a practice that tricks you into switching phone service companies without you knowing it. In Client J’s case, the phone line had never been in his or his mother’s name, but the landlord’s. One day last July, the phone rang. A pre-recorded message that sounded like nothing more than a phone survey was answered not by the phone line’s owner, but by Client J’s mother. “Would you like to consolidate bills?” “Would you like to pay less for your utitilities?” Well – who wouldn’t like these things to happen? Client J’s mother said yes.

The next question was – “Are you authorized to make decisions about this phone?” Well – Client J’s mother knew she was authorized to use it, that she could operate the answering service, and place the phone elsewhere in the home. The pre-recorded questioning never asked if she was authorized to switch phone companies – and there’s the deceitful word play trick! – so this older woman with some infirmities said yes. But she also said that she in fact was NOT the owner of the phone line.

Didn’t matter – unknown to the true owner of this phone line, based on this deceitful call, not only was the phone line “slammed” – switched through trickery to the other phone company – but it was also switched from the true owner to my client’s mother!

Soon bills that really didn’t look like the traditional telephone bill arrived in Client J’s mother’s name, and she had no idea what these bills were and never had a phone in her name before, or so she thought. And with the non-payment of the bill, the phone line was shut off — shutting off Client J’s ankle bracelet! Client J now faced a petition to revoke referal in court, a violation accusation, and possible jail through no fault of his own!

Because this situation was not of my client’s making, I helped him for free. With hours and hours of frustrating work. The telephone company that made the slam denied everything even though they knew the recording they had made showed that my client’s mother had said she was not the owner of the phone line. I researched this company online and found that their past practices had caused complaints from the Federal Communications Commission (FCC) as recently as August of this year. I learned how to engage the FCC and found them very responsive. In two days the FCC had filed a complaint against this company. Still the company would not turn the phone back on. Despite my client’s risk of jail, a home with two, infirm elderly people at risk without a phone at home, this company refused to turn the line back on over – $43.

$43!

But the original phone line owner had sent in a money order in that amount, and when the company received it, they still refused to turn it on and a company representative told my client’s mother that more money was owed. It was as though they changed the rules whenever they felt like it.

Now the FCC’s calls to customer service weren’t being answered by the company, nor were mine. So I called the number to this company that deals with phone sales – and, wouldn’t you know? – I got through.

I made it clear to this company that further information was being sent to the FCC for the complaint filed against them. That a promise had been made to not only me and my client’s mother, but also to the FCC, that the phone would be turned on once the $43 was received. But now that appeared to be a lie – to a federal government agency!

A more reasonable person at the company who was the first not to speak with telemarketing jingles had said the line would be turned back on – on monday. I raised the question of what happens if one of these two elderly folks needs emergency care over the weekend, but they cannot contact anyone because the phone line is off, and why the phone could be turned off in an instant but cannot be turned back on in an instant?

A half hour later, the phone line was turned back on. The complaint filed by the FCC remains pending and is being pursued.

Caught in the middle, of course, was my client. He incurred no legal fees from me over this, and shouldn’t have. This was not his fault. Never in my 22 years of criminal defense work had I seen such callous conduct by a phone company, nor a situation where a phone company’s actions could cause a client, doing all the right things, to be placed back in jail. Thankfully too, the adult court services people in Kane County gave me their patience and were able to set up a temporary, but more expensive and more restrictive system, to give me a chance to straighten this out.

The bottom line message is clear. Do NOT agree to anything that involves any of your utitlities over the phone unless YOU have made the call and YOU have made the decision and know exactly why you want to make a switch. When one of these pre-recorded calls come to your home – hang up, before you and your wallet are hung out to dry.

Criminal Defense Lawyer and Criminal Charges and the Client’s Future

Monday, September 21st, 2009

What does it mean to be a criminal defense lawyer in Aurora, Illinois, or anywhere in Kane County, DuPage County, Dekalb County, or Kendall County? Obvious answers include looking at every detail, going to the crime scene, finding witnesses where others, including the police, wouldn’t think to look. How about sticking with your client even after the case is over? As an example, DUI laws in Illinois change every year and grow more complex. It is important that a client know what to do even after a case is over. Today, as is my usual practice, I sat with my client after the case was over, and walked him through the clerk’s office and the probation department in DuPage County. A problem arose in that the clerk, although no fault of her own, had failed to register the plea negotiation’s orders. Had I not stayed with my client for the processing of the case after the plea, the problem would not have been caught, my client would have been sitting around for hours on end not knowing what was going on. Instead, I realized the problem, returned to the courtroom, straightened it out, and explained the problem to my client. He didn’t have to stick around but could get on with his day. Perhaps this doesn’t seem like a big deal. But I know that a client who leaves without getting a full, careful explanation of his or her case is much more likely to fail at probation or supervision, and come back with more problems and more legal fees, and a risk of jail. Staying with the client, being available to answer questions even after a case is through is my practice. I’d much rather have clients refer someone new to me because of my work, but not themselves on new cases. And if there is a new problem which the client did not cause, I will not charge a new fee.

It’s easy to claim how hard someone works at motions and trials. I hope my track record speaks for itself. But what most people want is success, and that often takes a lawyer who is there after the case is through. Today, this policy proved vital for my client. And, by the way, in his DUI case, his driving privileges suspension was dismissed as well!

Destroyed Evidence in North Aurora: A Drug Case Legacy of Case Dismissed

Wednesday, September 2nd, 2009

In North Aurora, Illinois, a young man named Newberry was arrested while in school for possessing suspected drugs that a preliminary field test indicated was not an illegal drug. He was originally charged with possesion with intent to deliver a look-alike drug. A probationable felony. Several efforts were made to cause the State to see this young man in a different light, to salvage him and keep him from having a felony criminal conviction at such a young age. There were unique facts about him that made this request reasonable.

The prosecution’s response was to up the charges to a Class X felony! – a minimum of 6 years in prison for this 18-year-old. It seems that even though the field test was negative for illegal drugs, the crime lab test claimed the substance was cocaine, and in a Class X felony amount. But issues of what in the world was going on with the crime lab versus a more general field test never came to pass because, in the meantime – the North Aurora Police had thrown the alleged drugs away!

Fortunately, it was the defense lawyer’s practice to always get a court order to view evidence, and in this case, the evidence was gone.

While there was some case law on the subject at the time, there was very little from Illinois on what happens when the body of the crime itself – in this case the alleged drugs – was destroyed by the government. The defense attorney went for the jugular – a motion to dismiss the case outright.

The approach taken dealt with the rules of discovery and Supreme Court Rules, due process, the right to confront not just witnesses but the evidence itself, and the right to independent testing. After heated debate, the trial court granted the defense attorney’s motion and the case was dismissed.

The Apellate Court agreed and – The Supreme Court agreed – with the trial court’s decision. This Supreme Court decision, People v. Newberry, was published in 1995, 5 years after the whole ordeal began for this young man.

Why bring up the 1995 case now? Because over the last two weeks, two other attorneys have come up to me to thank me for that published opinion because it has caused judges to grant motions to dismiss in their clients’ cases in August 2009. And although other decisions from the Appellate Court have since ruled the same way, my Newberry case is where it all began as a ruling on destroyed evidence from the Illinois Supreme Court.

But it all really began as one of my first felony cases back in 1990, as a decision I made to check the evidence and assume nothing. The fact that, 19 years later, this has made a difference for me and other defense attorneys in representing their clients, means a lot. For Newberry himself, it meant freedom from prison and no criminal history.

While some may argue that he “got away with it” the fact remains that due process prevailed, as it should have prevailed, and also that since that time, this young man has never returned to the criminal justice system.