Posts Tagged ‘Criminal lawyer’

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 Defendants, Criminal Charges and their Criminal Cases: Who are “THOSE” People?

Wednesday, October 26th, 2011

As a criminal defense lawyer, defending a lot of felonies cases and drug defense cases, I often get asked by people who are not criminal defense lawyers: “How can you represent those people?” Of course I know they’re talking about criminal defendants charged with crimes. But “those” people are sons, daughters, spouses, parents, co-workers, friends, and so on – not just mere people charged with criminal offenses. And, guess what, “those” people are quite often innocent of the crimes they’ve been charged with. Oftentimes the police or the prosecution overcharge people with criminal charges, such as intent to deliver on drug cases. I’ve seen intent to deliver charged with misdemeanor amounts of cannabis and near-residue amounts of controlled substances, which, if convicted on such higher-grade criminal charges, bars most options for treatment. 

     Some people who have asked me the question, “How can you represent THOSE people” have later on needed my criminal defense lawyer services, and have appreciated my work in a criminal court on their behalf.

     That is why, to this criminal defense attorney, I much rather use the words “Defending the Accused” than making any reference telling a person that they are criminal defendants. They are presumed innocent, after all, the foundation of our criminal justice system, and are often in fact not guilty and, if guilty, were sometimes arrested via unlawful police conduct.

     Even if someone is caught “dead-to-rights” as a person subjected to a criminal charge, the person still needs to be treated like a human being – because they are. It does a criminal defense lawyer no good to look down his or her nose at “THOSE” people, but instead must give the client a chance to talk, to explain how or why; at the drug addiction seminars I have attended, I learned that drug addicts have often been abused physically as well as emotionally, and have already had their share of being on the receiving end of yelling and lecturing, without much chance to talk. There is great power in telling the drug addict, for example, that it’s his or her turn to talk, and for the criminal defense lawyer to listen. That alone is often a first in the lives of many.

      With all the alternatives available to a person in terms of drug treatment and counseling, how in the world can a criminal defense lawyer know what to do if we don’t, you know, shut up and listen? I was humbled when,  about ten months ago, I was told just that by a client. I did shut up. He did talk and I heard and I listened. Doing so allowed this criminal defense attorney to talk to the right people within Kane County’s highly effective drug court; doing so also allowed the client a chance to hear things from his own mind out loud, causing him to hear the sound of his situation in his own words, inspiring him even more to make positive changes in his life. He is now ten months in recovery. Is there a connection to a criminal defense lawyer shutting up when talking with the client? – well, he’s the one succeeding, let’s leave it at that.

     So – to all “THOSE PEOPLE” asking how can I represent “THOSE PEOPLE”? – my answer is: If it ever becomes necessary, I’d be happy to represent you or anyone else, if the need arises, and to do so with the respect any person deserves.

Drug Defense / Criminal Cases / Alcohol Case, Elgin IL Branch Court, Kane County

Monday, October 24th, 2011

Alcohol, drugs, and criminal charges. Defending a lot of drug defense cases as a criminal drug defense lawyer: not too long ago, I looked into the eyes of a man who was the opposite of everything I ever wanted to be, or what I would eer want to see with someone facing a criminal charge. It happened by a chance meeting, but felt inevitable by the time the EMTs took him away.                

     I had arrived at the Elgin, Illinois Branch Court that early afternoon, armed with my criminal defense lawyer pinstripes, criminal defense lawyer brief case, and criminal defense lawyer case law, to represent a young woman in a contested hearing on a traffic charge also dealing with a drug charge. At the entrance to the building, a man, probably around 60, asked if I would help his friend, probably around 75. I couldn’t talk much to them at the moment as my client’s hearing was set to go, but the older man’s traffic ticket and fine seemed easy enough. I said I’d help after my client’s hearing was over. Both men left so the older man could get the money needed to pay the fine from an area ATM.                

     With the hearing over successfully (motion to quash arrest and search granted), I saw the older man now had the money to pay the fine for his traffic ticket. As I sat next to him, I got a good look at his eyes. Extremely bloodshot, watery, flitting as though too embarrassed to look at me. His short, unkempt hair matted with new and dried sweat. He had shaved but had missed patches of beard, and his pale skin blotted red here and there. His speech wasn’t slurred, but his sentences were clipped, as if he felt no need to speak since the sagging state of his thin-limbed body proved everything about him. The words on his T-shirt expressed an irony: United States Veteran. Proud and Strong.                

     Turns out the friend, the man I thought was 60 to 65 was actually a robust 77-year-old man, energetic, neatly dressed, polite with clear eyes. “How old is he?” I asked him, about the man I had thought was at least 75. The friend sighed in a way that told me I wouldn’t believe him. The man with the ticket, who I thought was an unhealthy 75, was only 54, a year older than me.

     I asked the 54-year-old to smile. He did.

     No teeth.                

     The 54-year-old man paid the fine on his ticket and walked with me and his friend to a hall beside the courtroom. His arms shook and we all sat down on the chairs there.  I asked him, “How long have you been an alcoholic?”                

      There was no alcoholic odor about him, but it’s common for alcoholics to do their best not to drink the day before a court date. His shakes no doubt were the DTs. The friend filled me in.                

     He had been military for 9 years, with an honorable discharge. Always a drinker for the 12 years these two have been next-door neighbors. An avid fisherman who had worked as a highly skilled machinist. The drinking, and extreme smoking too, continued and intensified. The list of this man’s losses due to alcohol was nearly complete: fired from his career, divorced, the ensuing girlfriend leaving him, a son who wouldn’t talk to him, a drunk driving arrest where he failed to even remember the conditions of his court-ordered supervision, let alone follow them, which led to revocation of his driving privileges. Then the unlawful driving tickets began to mount and his house fell into disarray. Foreclosure was becoming inevitable since he ignored his mail and had no idea what bills were overdue. All he had left was his life. Even that was ebbing away fast at age 54. And what for?                

     The cheap beer and hard liquor in his fridge.                

     Somehow this man had been caught driving under the influence only once in his life. Why his ticket and the fine he had to pay were so mild the day I met him remains unexplained. Still, with the state of his mounting legal troubles, there was only one thing that was going to save what was left of his life, as well as his freedom and surely the safety of people out on the road should this man again get behind the wheel of a car. He needed long-term inpatient treatment with aftercare. Now. That’s when the friend laughed. 

     It turned out that the friend had taken his neighbor to an area Veterans hospital as well as an alcohol evaluator. He was sent away both times. The professional in each instance had deemed him “un-evaluatable.”                

     In my 26-year legal career, I have never before heard of a person deemed to be “un-evaluatable.” I asked this human being, “After all that’s happened, all that we’ve talked about, to keep you out of jail, to keep you out of prison, to get you healthier and stop endangering people around you – what are you going to do with those cans of beer and liquor bottles in the fridge?”                

     Without waiting a beat, the man said, “Drink ‘‘em. I ain’t going anywhere.”                

     I asked the friend why he keeps trying to help when it seems that his neighbor doesn’t want to start. Before he could answer, the neighbor made a sickening gasp. He stiffened, jaw clenched, eyes rolled back, arms outstretched as if reaching for a ghost, and his mouth frothed. I placed my hands on his shoulders to keep him from falling out of his chair during his seizure, and shouted for court security. The friend helped me lower him to the floor. The friend’s eyes teared up, but he did not speak the words of an enabler. Instead he said, “I warned you your drinking would lead to this, you goddamn son of a bitch.”                

     Court security attended to this man in an impressive, professional manner. Likewise with the EMTs. Fifteen minutes later, the man was on his way to a hospital as his friend and I watched the EMT vehicle and fire truck siren away.                

     We sat quietly on a bench for a moment and began to talk about our lives, as strangers sometimes do after sharing a shocking event. This friend, too, had been in the military. He was good with his hands and had been involved in building a lot of the infrastructure from Elgin to Aurora, Illinois. He loved his yard work. He loved the fact that he was well at age 77, enjoying an active life with his wife of 51 years. When it came to his neighbor, the friend said he enjoyed fishing with him, he was good company, until alcohol was all that remained of his life.                

     “I never told you why I keep trying to help that poor son-of-a-bitch,” he said, patting my back. “It has to do with my faith. I don’t like to say the words, but I try my best to do the deeds. Besides, like I said, he used to be good company on the fishing boat.”                

     I gave the friend my business card. I told him if his neighbor does go into long-term treatment, to let me know and I’ll represent him. The judges will need to hear he’s in treatment and that he’s serious about it, or else he will be in jail for a long time for the sake of everybody’s safety. The friend added the obvious: “Or dead.”                

     It had been at least twenty minutes since the EMTs had taken the neighbor away. The friend and I parted for our cars and our own lives filled with loved ones and active things to do. I’m sure George knew as well as I did that it was not likely we would talk with each other again.

Domestic Battery Criminal Charges in Aurora, Elgin, Batavia, Geneva, St. Charles – What’s going on?

Friday, March 25th, 2011

If you have ever stopped by a criminal court room set aside for domestic battery criminal charges, the crowd from day to day may make you wonder whether half of the citizenry is beating up the other half, whether it’s in Aurora, Elgin, Batavia, St. Charles, Geneva or any other Illinois town. As a criminal defense attorney, I ask, What’s going on?

     Let me give you a suggested explanation by example of a real criminal case invovling such a criminal charge of domestic battery and another criminal charge growing out of it that should surprise you:

     A husband and wife work at the same business that covers DeKalb, DuPage, Kendall and Kane counties. A big busniess. Turns out he’s having an affair and the wife finds out about it. At an office party in a public setting, he starts dancing with the other woman in front of all their co-workers. The wife, understandably upset, runs up to her husband waltzing with the other woman, kicks her husband in the shin one time, and runs away in tears. The husband runs after his wife to bare his soulful apologies and to seek reconciliation, which the husband and wife so begin to reconcile. Regardless, the police are called and she’s arrested – for domestic battery in which, if found guilty, she cannot get supervision even though she has no criminal history at all. She must be convicted, pay a hefty fine, face up to a year in county jail, and spend 26 straight weeks getting domestic violence counseling.  But on trial day, since the prosecution insisted on going forward despite these facts, the husband, with a good dose of guilt and now reconciled with his wife, decides not to appear. Now he’s charged with contempt of court and prosecuted for failing to appear – and on and on.

     I know this case. It’s real. I represented the husband.  

     Here’s what’s true: Abuse of women by a boyfriend or husband went on for far too long without getting the serious attention such crimes deserved. The abused woman often suffers immeasurably, succumbing not only to obvious and horrific physical damage, but psychological damage as well. There can be no denying that at all. Specialized domestic violence courts, as I recall their basis, were created entirely on this very real issue and need.  The intended goal was and remains  laudable. To provide not just the prosecutorial attention, but also to provide counseling services to help end the cycle of the physical as well as the related psychological abuse against women. But something happened that I believe has diverted such courts from these laudable goals. 

     The Illinois domestic violence statute covers every aspect of the phrase “family member” that a person can think of. Not just between spouses as well as people dating for at least a minimal time, but it also includes relationships between any “family member” via blood or marriage. Siblings and step-siblings come under this law, possibly cousins, too. Parents and their kids and step-children. Regardless of the domestic relationship, any unwanted touching, whether it causes bodily harm or not, are all under the same Illinois domestic violence statute and arrive at the court room that was supposed to help address abuse against women.

    As a result, fights between siblings are domestic batteries no matter how benign or serious. A substance-abusing, often-suspended-from-school teen can call the police and make claims against Mom or Dad who have been struggling for years with their child’s bad behavior. Then there are the claims that a man has bitten his girlfriend hard in the face, also punched her several times in the face hard several times, hit her over the head with a heavy object, run her over not once but three times with a car – and in each case the woman has not one injury on her, is drunk at the time even as the man is calm and is actually the one bearing an injury – and he gets arrested anyway. These are fact patterns in domestic violence cases from Aurora, Elgin, Geneva, Batavia, and St. Charles that I’ve handled over the years. 

     To make matters worse, police understandably have real fears when called to a scene of reported domestic violence. The officers do not know what they’ll run into. Perhaps they fear being attacked themselves. They fear making the wrong call if they make no arrest and then they’ll read about it in the newspaper if something bad happens afterwards, so they err on the side of arrest, contrary to exercising discretion based on what they see with their own eyes. 

     In our domestic violence courtrooms, there are of course abused women, real victims, that need special prosecutorial and counseling attention. But as a result of the above, I believe, they and their cases get buried beneath mountains of these other types of cases day after day. Resources get diluted. An already strained prosecution staff has less time to provide services. In many respects, it is the broad scope of the domestic violence statute itself that does a disservice to those women in real need who were the original reasons why the statute was passed in the first place.

     I do not claim to have the perfect solution to this situation but it seems that a few changes would make basic sense. First, do not include fights between siblings, cousins, nieces and nephews among those cases covered by the domestic violence statute. The same holds true between parents and their kids. While such batteries can of course be serious, their dynamics differ from from those suffered by abused women. These other cases can readily be handled not just by the regular misdemeanor and felony criminal courts but also by our abuse and neglect courts when it comes to abused children;  in fact, that’s why such abuse and neglect courts exist, with their own specialized services for those situations. These other cases do not need to use the victim counseling as well as counseling for the offender that are unique to cases of abuse against women.

    And are we to have no logic applied here? If someone makes a claim that is simply not plausible under the given facts, can there be no discretion applied by the police or by the prosecution? Certainly there are gray areas that need to be decided on the side of caution. However, arresting and prosecuting a man upon a claim that he bit someone hard in the face 5 minutes ago, and there are in fact no injuries present of any kind –  is an arrest and prosecution that serves only lawyers, who can then charge that man a fee for legal representation. And I did, discounted given the facts, of course!

     Now, perhaps, you have the answer as to why our domestic violence courts are so crowded day to day, and why such dockets are crowded with cases having nothing to do with common sense or abuse against women.    

    Ending with the beginning – the woman who kicked her cheating man one time in the shin finally had her case dropped after her husband continued to refuse to testify against her. But he did have to go to hearing on the contempt case against him. When I asked the judge whether such a man, after what he had done in public, should now be held in contempt for not wanting to give his wife a criminal conviction, the Judge smiled and shook his head. Four hours of community service, that’s it, the Judge ordered, but for behaving like a jerk at the office party, not for refusing to come to court.

“Addiction Treatment” – What does that mean for the Criminal Defense Lawyer?

Friday, March 18th, 2011

Whether charged with a criminal case in Kane, DuPage, Kendall, DeKalb or any criminal court in any county, when a judge orders someone into drug addiction treatment,  what does “treatment” mean? This is an important consideration for a criminal defense lawyer.

     Criminal defense lawyers should know there are no magic wands to stop drug use, or magic words for that matter. Over the years defending the accused on criminal charges related to drug additiction, I have heard of, and seen in a few clients, a situation in which some dramatic moment occurs in his or her life, and the cycle of drug use suddenly ends. But this is extremely rare. More commonly addicts use and continue to use even in the face of jail or prison time, loss of contact with loved ones including newborn children, loss of work, health, trust, respect and self-respect and, admittedly, in the face of mounting legal fees.

     I’ve experienced a client, after jail, inpatient treatment, an intervention specialist, and incredible family members, use and commit new serious felonies a day after re-entry into a program, losing a significant career, freedom, the opportunity to keep all felonies off his record, and face long-term prison away from a young child. Believe me, after experiencing that one last summer, I was ready to throw my hands in the air and give up on the notion of “treatment.”

     But I can’t. I’ve seen it work, and work often. Besides, the consequences of not trying are clear and deadly.

     As a defense attorney, I always have and will continue to give significant discounts in fees if the voluntary option chosen is treatment. It’s an encouragement, I believe, to help reluctant addicts come up with the courage to face treatment for addiction without force, without sacrificing other choices such as trials and motions that are each person’s constitutional right. This becomes burdensome, but necessary work when a client relapses a second, third, or even more times, and I keep stepping up with the client for minimal or no additional fee. I have to – I know them and their family dynamics too well to stop trying.

     I have asked such people, who have relapsed again, what actually goes on in treatment sessions. What I have learned consists of conversations between therapist and patient that are what you may expect. Discussions intended to scare (usually health, family / work consequences, prison and death). Personal discussions (how did this start, and why). Community discussions (support groups / sponsors). Educational discussions (the truth of addiction, the voice that never goes away completely, but can be made to fade and weaken). Approaches (usually day-at-a-time approaches / 12-step programs / Narcotics Anonymous) so that the patient-addict is not overwhelmed by the major goal to simply “just say no.”

    In an older post I talked about  the incredible success of several of my clients in dealing with addiction. Soon after, sadly, more than half of these persons relapsed, all of them badly. Today, one is lost entirely to long-term prison. A hard, very hard, and sad case. But the others? They’re still in there fighting back. In one case in particular, in Kane County, with incredible help from the Kane Count Rehabilitation Drug Court Team, I got one of my relapsed clients back into inpatient treatment just before the Illinois budget cuts on such treatment occurred (which is another topic for discussion). I simply had to ask each of these clients why they relapsed, yet again, in a court system with prison and other personal consequences hanging over each person’s head.

     What I gathered from each was not so much a failure of the treatment itself, but the fact that they weren’t really listening to the treatment provided. They went into the programs with their minds made up that they would succeed, that the addiction was as good as licked, even before the program started. When talking to those people who made it to the extent of long-term sobriety in which they successfully completed treatment and their probation without re-offending or relapse, I found the common theme from each person as to treatment was as follows: they didn’t know whether they would make it; they didn’t draw any conclusions as to their own success; they feared failure; they had no answers and weren’t even sure of the questions. In conclusion, they were scared.

     It’s interesting that those with fear, at least among the clients I talked to, appeared to have more success reaching sobriety than those who expressed confidence about their success. At least in the world in which I have worked, it wasn’t a lack of motivation on anybody’s part. What seems to have made the difference is the patient’s honest desire to listen to the treatment providers. Those who were scared were more inclined to listen and, more importantly, more likely to follow the treatment provider’s advice. As an example, when the drug addict’s inevitable internal voice to use drugs, to relapse, comes, the scared persons talked about a willingness to immediately call his or her sponsor right away, to work through this building desire to use drugs through conversation, or to actually meet with the sponsor until the desire to use passed. But the confident patients tended to have the go-it-alone, I-can-do-this-without-anybody’s-help approach, thus rejecting treatment’s guidance and coming up with his or her own game plan, usually as to why this just-one-more-time use of the drug can be rationalized; then, since it cannot be rationalized, the use goes full-blown again.

     In a realm such as drug addiction, where a definitive conclusion is dangerous to make, I propose that the question of treatment and what that word means for drug addicts should also focus on the drug addicts themselves. Are they ready for treatment? – is a key question. Moreover – are they willing to listen? And, perhaps most important, are they scared enough to give up all preconceived notions of success so instead they may better absorb what is taught.

     I keep my hopes up for my clients even after relapse. As distasteful as it is, relapse happens, and often does so more than once before recovery is truly obtained. As a criminal defense attorney, I am grateful for this understanding within today’s court system and the drug court system in particular.  

     I’m looking forward to attending a particular drug court graduation ceremony. There’s someone I’m hoping will be there among the other people who have reached meaningful sobriety.

     I have some confidence that this client will make it.

     After all, for the first time in his life, he is scared that he won’t.