Archive for the ‘Getting the Not Guilty’ Category

Criminal Defense in Aurora, IL. Sometimes the Police Make it Easier for Criminal Defense Lawyers to Win, but Make the Citizen’s Life Miserable

Monday, November 16th, 2015

Imagine having to see a criminal defense lawyer on criminal charges simply because you were an invited guest to a house or apartment, even if that person inviting you was your mother. And not just a misdemeanor either, but a felony charge. And now you have to pay the criminal defense lawyer and you’re out that money even if you win. Welcome to Aurora, Kane County IL., as well as DuPage County.

The Aurora Police Department justifies this through something called a Trespass Agreement. The agreement is one page long and it’s between the police department and the landlord. The Aurora Police have repeatedly interpreted this as an agreement that allows officers to screen everybody going in and out of a place simply because they do not recognize them. They claim it helps them monitor troubled areas by creating a ban list, allowing arrests for trespass, and it is a way to work with the landlord to reduce problem areas. Here are the obvious problems.

Foremost, Illinois law, reflective of both State and Federal Constitutions, allows us to invite over whomever we damn well want to invite over. This principle does not change whether the neighborhood is full of mansions or the high-density apartment complex. In order to allow ban lists of any kind – the agreement must BE IN THE TENANT’S LEASE! After all, how can third parties contract away OUR rights to invite over whom we please? They can’t, but in Aurora, IL, they do, and press criminal charges to boot. If a person is considering whether to rent an apartment and such a ban list is a condition of the lease, then that prospective tenant can consider that provision before signing, and then choose to agree to it and move in, or not agree to it and live elsewhere, but third parties cannot do it for them.

I’ve had several cases involving the Aurora Police and these so-called Trespass Agreements. In each case the agreements have been around five, ten, or more years, and these officers still testify that the neighborhood is a high crime, high-drug area. Well then, either these officers are lying in order to justify the reasons for stopping the defendant or the trespass agreements haven’t been working to reduce crime.

What’s worse, the Aurora Police know that the Illinois Supreme and Appellate Courts have ruled that trespass agreements that are not part of the tenant’s agreed lease are void; also, even if in the lease, they cannot be used to justify stops of people simply because the officer doesn’t know the person. Still, the Aurora police do it, and I have a case now where the Aurora police have made four trespass arrests on a person with no other criminal history and, after talking with the landlord – nope – there’s nothing in the lease about trespass agreements.

Is it arrogance, or something worse? I blogged about Trespass Agreements a while ago, and won two motions since. All in Aurora, IL. The Kane County State’s Attorney’s Office, to their credit, has dropped a few of these cases too. It is hard to imagine the Aurora Police, who also review decisions from our courts and have lost repeated cases, aren’t fully aware. Regardless, here we go again.

Criminal Defense Lawyer and Drug Charges: Keeping the Mind focused on Hearts of Hope

Wednesday, May 11th, 2011

Dear Readers: Regarding drug charges and addiction, a link to Hearts of Hope is provided at the end of this blog entry.

     When the new criminal charge comes into my office, and the client has no interest in fighting a criminal drug charge, for instance, as a drug defense lawyer I tell the new criminal defense  client and his or her family that I do not want the client’s repeat business. Although this hardly seems effective as a business model, when it comes to defending drug cases and drug charges, it absolutely is the only model that makes sense. As a criminal defense lawyer, I always look over every page in the criminal case to look for anything and everything that will help my client charged in a criminal case. Motions to quash regarding an illegal search, errors in charging the criminal case, motions to dismiss the criminal charge – the client’s right to know all information and opportunities in his or her criminal case does not change simply because the client confides his or her drug or alcohol addiction to me. In fact, as a criminal defense lawyer, I know that I can often take advantage of such errors in criminal cases to my clients advantage, allowing them the freedon and opportunity to get drug treatment as opposed to incarceration without any hope for drug addiction treatment.

     Look, if a former drug client wants to hire me again, of course I’ll do it, and charge the legal fee. But what does this mean? It means that the client, despite the prior case or cases, has continued on in the world of drugs. Of course I presume each client innocent, as I should. But even if a person is innocent in fact, a new arrest may mean that the person has been traveling in circles that allows a false accusation to be charged. And if the person is in fact not innocent, then the addiction has continued. Whether the first case resulted in an outright not guilty, a motion to quash being granted, or some other form of dismissal, or if the person negotiated probation as a result –  with treatment – well, despite the successful surgery, the drug-addicted client has ripped the stitches wide open again because the addiction continues.

     In trying to improve my understanding of what people go through combating addiction, I had the pleasure of recently attending a Hearts of Hope meeting in Geneva, IL, in Kane County, a couple miles east of the Kane County Judicial Center. I cannot reveal names or even general details, because of promised confidentiality, but I can say that Hearts of Hope is one amazing organization, one that every criminal defense attorney in Aurora, Elgin, Batavia, Geneva, St. Charles, all of Kane County or from anywhere for that matter, should attend. Although open to recovering addicts, the focus seems to be on the parents of addicts. I saw the pain and frustration upon the faces there, and the strain and love in their voices. After all, these are the mothers and fathers who raised babies into toddlers, toddlers into teens.  And for each loving parent, it is so harshly devastating to witness that beautiful child succumb to addiction along with addiction’s impact on the addict’s life and health, and that of the loved ones around them.

     The session showed a helping hand of hope, a real heart of hope, a name this group well deserves. Each parent not only seeks comfort among those who understand because they too have been living the pain of addiction upon a child, but also each parent searches for answers in a realm where there just doesn’t seem to be a concrete answer. There are also parents there whose children have maintained recovery for a long time, providing an even bigger heart of hope. As a criminal defense attorney, I wanted to see, hear, and learn from such parents. Hearts of Hope provides a wealth of information and honest facts about real addiction histories. 

     It is clear that the age-old adage of the addict not only recognizing he or she is an addict, but also wanting help, remains true. Forcing someone without these basic steps just won’t work. But even with addicts receiving inpatient treatment for 3, 6, even more than 12 months, relapse happens, and sometimes quickly after release from inpatient treatment.  When I pressed for an answer why, what did the addicted person say was the reason to relapse, so hard and so soon? –  I found that there was no definitive answer to be given.

     In my March 18, 2011, post, I wrote about the need for the drug addict to be genuinely scared before treatment will stand a chance to work. Indeed even though an addict has seen death of friends due to illegal drugs, or loss of child custody, loss of employment, college, career, a place to live, the trust of family, or may have suffered a near-death overdose themselves – far too often, none of what would keep the rest of us straight seems to be enough in the face of addiction, especially heroin. It’s as though, when relapse happens, it’s because the addict’s mind at the point of relapse has emptied of every other thought, and the logical reasons not to relapse are at least muted. The person simply wants the drug. Maybe there’s a plan, doomed form the start, to sneak a hit one more time, or a plot to work around drug testing. But such plots and plans always fail at some point. Always.

     I still could be wrong, but my gathering with Hearts of Hope strengthened my belief that the addict seeking recovery has to have made up his or her mind to be scared of the addiction every single day. To make up the decision to be scared of the drug every single moment of the day. In this way, a decision is made, and made every day, before temptation arises and before the inner voice to use begins to talk. Is this the answer, or even part of the answer? I wish I knew for sure. I wish that each and every parent could have his or her son or daughter back the way they were before addiction took over the child’s life. I am convinced, however, that Hearts of Hope is invaluable for parents seeking personal relief from their own pain, for persons seeking information, as the people there provide a wealth of valuable information. And it’s also a valuable group for the recovered addict and the parents of the recovered addict to attend, to provide their own Hearts of Hope and strengthen their own continuing recovery.

     In our criminal courts, no lawyer or judge should deny a defendant his or her statutory or constitutional rights, nor provide each person anything short of  full information and options on any given case. To do otherwise not only would violate the principles lawyers and judges are sworn by oath to uphold upon licensing, but also would serve to cause an addict, typically suspicious of authority to begin with, to deeply mistrust or turn away from a court system if that system’s honesty is suspect. However, that certainly does not mean treatment is inconsistent with criminal defense. Even if litigation is the addicted client’s choice, with an eye toward victory for that case, the criminal defense attorney should provide the whole truth, that victory will be for that case only, and not for the rest of the addict’s life, unless recovery from addiction is fought for and won.

     I hope each of you who have honored me by reading this blog entry will also link (provided below) to the Hearts of Hope web site, and then pass it on to your friends and family. Sadly, I think we all know someone, or know someone who knows someone, who is hurting because of addiction. Hearts of Hope – it’s not the only organization out there, but it is special and powerful, and will in turn link you to other, helpful organizations. The cost?

    Hearts of Hope is both free and priceless. Please click on –  http://www.heartsofhope.net/

Aurora, Oh Aurora! Elgin, Oh, Elgin! Everything’s fine with Criminal Charges and the Law

Monday, April 25th, 2011

To this criminal defense lawyer, it seems that not soon after my criminal law post regarding State Rep. Keith Farnham’s “new” idea about requiring defendant’s to reimburse the police for the cost of the defendant’s arrest, that Elgin continues to go further and further with the same idea. Now, if you are arrested for the criminal charge of DUI, in addition to other traffic stops and criminal arrests, you’ll have to pay the city of Elgin $500 for your car’s tow, as well as for the cost of the car’s impoundment itself by the private company. This is the case even if there is a perfectly fine driver there to drive the car home making the tow unnecessary, but also in cases in which a person is found not guilty of the crime, and even if there is a finding of no probable cause for the crime. This is the same process the city of  Aurora, Il, has been using for years. The officials know that since the fine is “only” $500, that such persons subject to the fine will not hire a lawyer to defend against the fee charged because lawyers understandably have to charge more than that to wait around and conduct a prepared trial. What a racket.

     It is this criminal lawyer’s opinion that this is not constitutional. It fails to afford a person reasonable due process. It presumes people guilty first by holding the car or a posted $500 hostage until the hearing, in which the administrative judge is someone picked by and paid for by the same municipality that seeks to gain money through this process. The Elgin government officials even say this – that their goal is to raise 1.5 million dollars a year in revenue under this sham process.

     Cities like Aurora, IL and Elgin, IL seem to want to solve their financial woes by increasing fines and costs in criminal cases in never-ending ways and amounts, and by creating new ones, not realizing that there comes a time when the stone is producing no more water, and that it costs more to chase after unpaid fines than what is actually collected.

     It is time for the criminal defense bar in Kane County to consider whether these hearings actually provide an opportunity for a deposition in a criminal case that they might not ordinarily have, and turn the tables on the government by actually making them work, take their time and personnel, and provide recorded testimony of the hearings, as well as any video and-or audio tapes of the DUI or other traffic arrest. Such legal fee can be incorporated into the overall DUI fees for representation in the criminal case itself, and make it affordable, and reasonable, for both the attorney and the client.

    At least to this criminal defense attorney, this is making sense, especially in cases involving driving under the influence cases. DUIs – it seems now more than ever government officials wish to make money rather than reduce the numbers of people driving under the influence.

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.

Class X Drug Case Dismissed

Wednesday, August 12th, 2009

In Kane County, with my Aurora, Illinois, client charged with a Class X drug case (cocaine), possession with intent to deliver, the prosecution dismissed the charges this week of August 10, 2009, and my client will see the light of day again. While the prosecution didn’t outright say why it dismissed the case, my drug defense investigation and that of my hired investigator, Ed Herdrich Investigations and Consulting, revealed some troublesome facts about what the police had claimed.

This is the sort of situation that proves again that it is the investigation work done that helps the client, often more so than the trial lawyering itself. Drug defense work often needs this sort of dedication to reach a successful result for the client. Expertise and trial lawyer abilities offer very little without dedication to work the streets and challenge the evidence.

It is my policy to actually look at the evidence, go to the scene and interview the witnesses. In the above case, we found witnesses left out of the police report. I am grateful once again to the dedicated, dogged efforts of Ed Herdrich, who went with me, eagerly, on a Sunday, and out on his own in the evenings, to find witnesses and evidence issues that may very well have made the difference.