Posts Tagged ‘“case dimissed”’

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.

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.