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cannabisA recent Illinois appeal involved a Domestic Battery. The defendant was acquitted of Aggravated Domestic Battery and unlawfully interfering with a report of Domestic Violence, but he was convicted of Domestic Battery under 720 ILCS 5/12-3.2(a)(1). The trial court denied his post-trial motion, and he was sentenced to 30 months in prison. He appealed on the grounds that the court had made a mistake in permitting the prosecution to impeach him with his felony Cannabis conviction.

The case arose from allegations that the defendant knowingly caused harm to a woman by choking her after previously being convicted of a Domestic Battery. In addition to applying pressure to her throat, it was alleged that he stopped her normal breathing or blood circulation, and he knowingly stopped her from calling the police by taking her phone.

Before trial, the defendant tried to stop the State from impeaching him by showing he had a prior Domestic Battery conviction and a felony Marijuana conviction. At the hearing, the prosecution argued that the Marijuana conviction could be admitted because the charge was not similar to the defendant’s current charges, and it had impeachment value because it was a crime against society.

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parking-space-1441053-1-300x225In a recent Illinois appellate case, the defendant was convicted of unlawful delivery of a controlled substance under 720 ILCS 570/401(a)(1)(D). He appealed on the grounds that the prosecution hadn’t proven beyond a reasonable doubt that he knowingly participated in the drug transaction.

The detective testified that he’d investigated narcotics and money laundering cases in the past. Most of his cases involved surveillance. Often traffickers conduct heat runs to determine if police are watching. A heat run is an effort to take an out-of-the-way route to go to the transaction destination, such as making multiple turns or U-turns and going down back alleys.

On the day in question, the detective found that a prior investigation target was stopped with more than $100,000 on him. The detective went to the address where the car was registered. There they saw a car registered to the defendant at a Texas address. They saw a woman and boy leave the house and drive away to breakfast at a restaurant. When they came back to the address the defendant’s car was gone. It returned in the afternoon, with the defendant driving.

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knifeIt is crucial to retain an experienced attorney to defend you if you’re charged with domestic battery or aggravated domestic battery in Illinois. In a recent Illinois appellate case, the defendant was convicted of aggravated domestic battery after a bench trial. The couple had met in 2011 and started an intimate relationship. The woman gave birth to their child. She had no permanent place of residence, so she stayed with the defendant at his house. They frequently argued, which caused her to leave for a certain period before coming back.

In 2012, during a fight, the defendant threatened to kill her and put her in a chokehold. Their son was in a car seat on the floor. The mother flipped the defendant onto the floor, but he kept choking her for about two minutes until she had to stop. She left and called the cops, but she didn’t want medical treatment when an officer offered to call an ambulance. She filed an order of protection against the defendant, but she had no way to go back to court to make sure the order continued to be in effect. After that, she lost custody of the child.

The couple continued to argue. On the last occasion, the defendant stabbed the victim. She didn’t realize she’d been stabbed until she saw the blood, and then she panicked. He told her to run, and she did. She passed out on the street, and when she woke, the police were there and asked who’d stabbed her. She had to have an emergency surgery to fix the wound.

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social-imageKim Foxx was sworn in as the new Cook County State’s Attorney last week. Yesterday, she made her first major announcement.  She announced that her office will not be charging Retail Theft cases as felonies unless the amount that is involved is more than $1,000 or if the defendant does not have anything less than 10 prior Felony Retail Theft convictions.   This announcement represents a dramatic shift in policy at the Cook County State’s Attorney’s office.  Under current state law, you can be charged with a Class 4 Felony Retail Theft if the amount of the goods involved is more than $300 or if you have one prior felony retail theft conviction.  If you have one prior felony conviction you can be charged with a felony even if the amount is under $300.  If the amount is over $500, you can be charged with a class 3 felony.  Foxx’s announcement drastically raises the bar for what constitutes a Felony Retail Theft in Cook County.  Anita Alvarez, Foxx’s predecessor, had been trying to get the State Legislature to raise the bar for charging a felony up to $1,000 for many years now.  However, the state legislature has resisted.  As a result, the statewide threshold for charging someone with a felony retail theft, as opposed to a misdemeanor, remains at $300.  Compared to the other states around Illinois, the Illinois threshold is very low.  In Wisconsin the threshold is $500.  In Indiana, the threshold is $750.

Foxx’s announcement follows news from last week that Cook County is actively looking at ways of limiting the population at Cook County Jail. There is an understanding that the cost of housing inmates at the Cook County Jail is putting significant stress upon the limited budget resources of Cook County.  Last year, approximately 76 defendants who had been charged with Felony Retail Theft, spent more time in jail than what they were eventually sentenced to.  The total amount of the excess days served was 4,159.  The extra cost to the Cook County taxpayers was about $675,000.  Almost 80% of all Felony Retail Theft cases charged in Illinois between 2010 and 2012 were for less than $1,000.  As of today, about 101 people are housed at Cook County Jail on Felony Retail Theft charges.  The majority of the people that are locked up in Cook County Jail are there because they simply lack the financial resources to post bond.  As a result, Cook County taxpayers are footing the bill for their incarceration in the jail.

It remains to be seen what the impact of this announcement will be on retail theft cases. Looking at the reader comments in the local papers today they clearly indicate that this is a controversial decision.  What’s disturbing is that some of the comments are clearly racist in nature.  Some people will wonder whether the announcement will discourage storekeepers from calling the police if they know that the person they caught stealing from their store will not be charged with a felony. Others are going to argue that this announcement will just encourage people to steal because they know that they will not be facing felonies in Cook County. While prosecutors have always had the discretion to decide when and what to charge someone with, some people will argue that this is more than just an exercise of discretion.  It can be argued that the prosecutor is doing an end run around the will of the State Legislature.  The same prosecutor’s office that has been unsuccessful in lobbying the legislature to change the law, changes it on its own by exercising its discretion without legislative approval.  I would not be surprised to see someone charged with a Felony Retail Theft outside of Cook County argue an Equal Protection violation because the law is not being applied uniformly throughout the State of Illinois.

Inspector. Please note that the graphics are my artwork.Thanks. The Law with respect to family related, domestic violence issues. Book of law with a gavel and a Restraining Order.

In 2010 the Kane County State’s Attorney’s office, in collaboration with Domestic Violence victims rights groups established the first Domestic Violence Diversion Program in Illinois. The main goal of this Diversion Program is to take first-time domestic violence offenders out of the criminal justice system and place them into a program that is designed to prevent them from becoming repeat offenders. Instead of putting them through the criminal justice system and punishing them, this program seeks to treat the causes behind the behavior. Treatment rather than punishment. If an offender successfully completes this program, the case will not be placed on their permanent criminal record. This is very important. While the vast majority of domestic battery cases are misdemeanors that carry a maximum punishment of one year in jail, a guilty plea, or a finding of guilt for a domestic battery, can never be removed from your permanent criminal record.  You cannot receive Court supervision for a Domestic Battery. The only possible sentence for a Domestic Battery is conditional discharge or a misdemeanor conviction. You are not allowed to expunge a Domestic Battery. The consequences of not being able to remove a Domestic Battery from your criminal record should be pretty obvious. If you ever apply for a job, a criminal background search will reveal this case on your record. If you ever apply for an apartment and your landlord performs a background search, they will find this criminal case in your background. If you apply for a loan, a lender may find this case in your background.

Offenders are not automatically eligible for the Domestic Violence Diversion Program. You are ineligible for this program if you have ever had any prior conviction or any type of probation for a Domestic Violence-related offense. You will not be eligible if you are an active gang member or–if your case is eligible to be upgraded to a felony. They will check with the victim and the arresting police officer and if they object to you being admitted into this program, you will not be eligible. You will not be eligible if you are unwilling to admit your guilt. If you threatened or intended to cause physical harm to the victim, you will not be eligible for this program. If the victim required medical treatment, you will not be eligible. Finally, you will not be eligible for this program if it was determined that you used or possessed a deadly weapon during the course of this Domestic Battery or if you have previously participated in this, or a similar, program. This program is strictly for first time offenders.

Once the State Attorney’s Office determined that you are eligible to be placed into this program, you will be instructed to contact the State’s Attorney’s Office so that you can arrange to be interviewed. You will be charged a $25 application fee. If they accept you into this program, you will appear at the next court date and you will plead guilty. Whether or not you are accepted into this program is left to the sole discretion of the State’s Attorney’s Office and you cannot appeal their denial of your acceptance into this program.

Jail building in Chicago, IL.

When somebody is arrested and charged with a felony, they have a right to a bond hearing.  At the bond hearing, the judge determines how much money needs to be posted in order for someone charged with a felony to be released from jail.  The statute that lays out the various factors that must be taken into consideration when setting the amount of the bond provides that the court should take into consideration the background, character, and criminal record of the defendant.  The court should also take into consideration the nature of the offense that a defendant is charged with and their criminal record and criminal background.  The purpose of the bond is to ensure that the defendant appears in court and that the public be protected from any potential harm that the defendant could cause.  The bond amount set by the court can have enormous consequences for an individual charged with a crime.  The cash bail system is coming under increased scrutiny with charges that it is discriminatory because it is unfair to indigent defendants who do not have any money.  The same statute that lays out the various factors that the court should take into consideration also provides that Bond shall not be excessive and that the court should take the financial resources of a defendant into consideration when setting a bond.  In my 24 years of practicing law in Cook County, I must have been at hundreds of bond hearings in Cook County.  Very rarely have I heard judges ask about the financial resources of a defendant.  The problem with that is that low-level drug offenders get arrested every single day in Cook County.  When they go to Bond Court the prosecutor tells the judge about the facts of the case and about the criminal history of the defendant.  If the judge sets a low bond that requires only a few hundred dollars be posted, the judge may well have set million dollar bond.  Many of these criminal defendants have no money whatsoever so they end up languishing in jail for many months until their case is resolved just because they don’t have a hundred dollars to post for Bond.  Not only is that wrong, but it makes no economic sense.  Last year, a record 1024 inmates spent more time in custody than the length of their entire jail sentence. According to Cook County, it costs the taxpayers about $60,000 a year to house an inmate in Cook County Jail for one year.  That cost is much more if the inmate has mental health or other health problems.

Cook County has been grappling with this problem for a long time.  The economic strain on the Cook County budget has caused officials to look at different ways to lower jail population.  The focus is on how to keep nonviolent low-level offenders out of jail.  County officials want to figure out how to avoid putting people in jail who pose no risk to the public so that tax dollars and costly jail space are not needlessly used.  Cook County has instituted a program whereby Pre-Trial Services prepares a report about a particular defendant that generates a score which informs the court about the likelihood that they will fail to go to court. However, the system has been criticized as not being thorough enough and for not doing enough to reduce the jail population in Cook County.  A class-action lawsuit has recently been filed in Cook County which alleges that the cash bail system in Cook County is racially discriminatory.  The Cook County Board has scheduled meetings to look at new and different ways to address the deficiencies in the cash bail system. There are simply too many low-level drug offenders who are spending time in jail simply because they lack the financial resources to post bond and get out of jail. This problem is straining the financial resources of Cook County.

James Dimeas is an award winning criminal defense attorney and author with more than 24 years of experience aggressively representing his clients in criminal cases.  If you have a criminal case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.

Domestic BatteryThe Illinois State Senate Judiciary Committee will begin hearings on changes to the Rights of Crime Victims and Witnesses Act. This Act is commonly known as the Illinois Crime Victims Bill of Rights. This Act is designed to preserve, protect and enforce the guaranteed rights of Crime Victims throughout the criminal justice process. It requires that victims receive notice of all court dates, requires prosecutors to communicate with victims, and gives victims the right to be consulted when it comes to plea agreements and at sentencing hearings.  The changes that will be considered by the Senate Judiciary Committee will give crime victims the right to hire an attorney who will represent them during the entire criminal case so as to ensure that their rights are protected and enforced at no charge.  The attorney fee will be paid from the Crime Victim Compensation Fund. This Fund was established by the State Legislature to help victims of violent crime and their families to help reduce the financial burden to them. Currently, Crime Victims are allowed to hire their own attorney to represent them in a criminal case. But under current law, the victim has to pay for the attorney out of their own pocket. The new law will provide that the attorney be paid out of this Fund.

There is no doubt that more needs to be done to help crime victims. In my practice, I frequently receive phone calls from people who are victims of crime looking for answers and looking for help. While there’s plenty of resources online for criminal defendants looking for legal representation in criminal cases, there are not enough resources to assist victims of crime. This is especially true for victims of Domestic Violence. Not only do they have to go to court and try to understand how the court proceedings will affect their lives, but many of these victims have to make arrangements to live outside the home. Some of the victims have child care issues, child support issues, child visitation issues, and various other issues having to do with raising their family during the pendency of a Domestic Battery criminal prosecution and afterwards. Many of these cases involve Orders of Protection, Conditions of Bond issues which may affect whether they can have contact with their spouse, and various other issues that go well beyond the criminal proceedings in court. These victims are in desperate need of assistance. Some of these victims have never been on their own before. These people need help and it’s very difficult, if not impossible, to find someone to help you. On top of that, to ask victims to come up with money to hire their own attorney is simply unrealistic. Prosecutors are busy prosecuting cases in court. To ask them to take on the responsibility of basically representing the victim during a criminal prosecution may be asking too much of prosecutors. There is no doubt that victims of crime need and deserve an attorney who will be with them during all the phases of a criminal case. Many victims of crime have never been exposed to the criminal justice system. Some criminal defendants have previously been through the system so they know what is happening and what is going to happen.  As with many other things, while this is a good idea, the money may not be there to make this work. The State of Illinois is going through very difficult economic times. If you ask any Illinois resident they will tell you that Illinois is basically broke. There may not be any money to make this work. So while conceptually this legislation makes sense, there may not be enough money around to make this happen.  In addition to the financial constraints, the Attorney General’s office is also withholding support for the legislation. Apparently, recent changes to this same Act were made and the Attorney General’s office wants to wait and see how the new changes operate before agreeing to more changes to the Illinois Crime Victims Bill of Rights.

If the measure makes it past the Judiciary Committee, it will go before the House and Senate for a vote.

IDOCThe United States Court of Appeals for the Seventh Circuit sided with an inmate who had ordered the death certificate of his victim and was not allowed to keep it when his mail was opened by prison officials.  The case involves Kevin Williams. Kevin Williams was convicted of the murder of Traci Todd and sentenced to 65 years in prison.  While he was incarcerated at the Pontiac Correction Center, a maximum security prison in Illinois, Williams ordered the death certificate of his victim from the County Clerk’s Office.  The death certificate was received in the mail at Pontiac.  His mail was opened by prison officials and inside the envelope, they found the victim’s death certificate along with an unsigned note which stated that “there is a place in hell waiting for you as you must know you will reap what you have sowed.”  The prison officials confiscated the mail claiming that they were doing so to insure the safety and security of the facility and not to negatively impact his rehabilitation. Williams filed a civil suit in Federal Court against the prison warden, the Director of the Illinois Department of Corrections, and the prison employees responsible for confiscating his mail for a Deprivation of his First Amendment Rights.   Initially the Federal Court dismissed Williams’s lawsuit against some of the defendants because they had not been involved in the confiscation of his mail.  The court then dismissed the lawsuit against the remaining defendants because the court found that confiscating the mail would decrease the chances that inmates would retaliate against him for boasting about his crime, and that it would protect family members from the release of private information about surviving family members.  The Court of Appeals overturned the decision of the District Court and struck the confiscation of his mail.

The Court started by stating that prisoners have a First Amendment right to send and receive mail.  However, prison officials can confiscate a prisoner’s mail if they are able to show that doing so is reasonably related to a management of prison interest.  A mere statement by prison officials that they are protecting this interest is not enough.  They have to come forth with some evidence that shows that this restriction is justified.  In this case, the note did not threaten any harm in prison.  It warned of harm “in hell.”  There was no allegation by prison officials that the letter threatened any harm to Williams inside the prison.  Prison officials argued that the death certificate could be used as a “trophy” by Williams to boast in prison and that would cause security problems and negatively impact his rehabilitation.  The Court found that this is a legitimate interest for prison officials but pointed out that in his deposition, Williams claimed that he needed the death certificate so he could pursue an appeal of his conviction rather than as a trophy.  The assertion by prison officials that he was going to use the death certificate as a trophy without any supporting evidence, was insufficient to justify the confiscation of his mail.  Prison officials could have avoided this controversy if they held on to the death certificate until he wanted a copy of it to include in his appeal.  Instead they imposed a blanket prohibition against him having any ability to have access to this document.  If they had testimony from a fellow inmate that Williams had made statements that he wanted the death certificate as a trophy, they may have prevailed in this lawsuit.  But all the Court had was Williams testifying that he needed this document to pursue an appeal without any evidence to rebut this claim by prison officials.  The Court upheld the dismissal against the defendants not involved in the confiscation of his mail but the lawsuit is reinstated against the remaining defendants.

This case establishes that inmates are entitled to send and receive mail and that in order to stop that from happening, prison officials need more than just a mere allegation.

UUWA decision this week out of the Court of Appeals of the Sixth Circuit has added fuel to a new front to the 2nd Amendment debate.  Under federal law, certain groups, or classes of people, are barred from owning a firearm. Those groups include convicted felons, fugitives and people with a prior history of domestic batteries.  The case decided this week in the Sixth Circuit deals with a provision in the law which bars people who have been committed to a mental institution from owning a firearm.  The law allows an individual to appeal for relief from the prohibitions imposed by this law to the Attorney General of the United States. The Attorney General has delegated the authority to investigate such petitions to the Director of the Bureau of Alcohol Tobacco and Firearms.   This appeal process is called the “relief from disabilities program.”  The law is pretty detailed about what an individual is required to provide in such a petition to the director of the ATF.  The law requires that the petitioner provide copies of the court order mandating commitment to a mental institution, and all other medical records having anything to do with the person’s mental condition along with letters of recommendation from at least three people along with a written consent allowing the Attorney General to obtain any medical records. The law then sets out in detail what the Director of the ATF is supposed to do when it comes to making a decision as to whether to grant relief from this law.  However, in 1992 Congress defunded the relief from disabilities program.  The defunding of this program has continued since then.  In 1998 Congress authorized federal grants to help states pay for determining which individuals may own a gun and to help states pay to provide this information to the federal government.  However, in order for a state to qualify for these federal funds, each state has to show the federal government that they have an appeal process similar to the relief from disabilities program which gives people who are barred from owning a gun the right to an appeal which allows their case to be considered for relief from the state’s prohibition.  About half of the states have established such relief processes.  Michigan is one of the states that has not.  This is where this case comes from.

Seventy three year old Clifford Charles Tyler had been involuntarily confined to a mental institution by a Michigan Court in 1986 because he was suicidal.  Tyler had been served with divorce papers by his wife who had been cheating on him.  The opinion details in great length the seriousness of the mental issues that Tyler was dealing with and the extensive steps that were taken to treat him.  In 1999 Tyler remarried and in 2012 his psychologist reported that he has fully recovered from his mental condition and that he can no longer detect any mental illness.

In 2011 Tyler attempted to purchase a gun but was denied the right to do so because his name showed up on an FBI data base as someone who had previously been committed to a mental institution.  He appealed this determination by the FBI but his appeal was denied.  Tyler was informed that because Michigan has not established a relief process, there’s nothing that the federal government can do for him.

MarijuanaOn July 27 we reported that the DEA was considering reclassifying marijuana from a Class 1 Drug to something less.  Advocates for the legalization of marijuana were looking at this possibility as an important step to the possible legalization of marijuana.  On Wednesday the DEA made it’s decision public, and the decision did not make marijuana legalization advocates happy.  The DEA decided to keep marijuana in Class 1, which is the most serious classification of illegal drugs.  But what is especially troubling was the reason given by the DEA for denying the application to remove marijuana from the Class 1 category.  The DEA found that there is no accepted medical benefit for the use of marijuana and that it is highly vulnerable to abuse.  The DEA found that marijuana is not a safe and effective medicine.  This decision flies in the face of 42 states, and the District of Columbia, which allow for some form of medical marijuana use.

Today, sources are reporting that as early as today, the Obama Administration will issue new regulations which will make it easier for researchers to obtain the marijuana needed to conduct medical research. Currently, marijuana grown at the University of Mississippi has been the only source of medical marijuana available to medical researchers.  Currently, in order to obtain permission from the federal government to grow marijuana for medical research purposes, the process is so restrictive that it could take years to obtain it and is virtually impossible to get.  The new regulations will make it much easier to obtain permission to grow a supply of research grade marijuana.  The details are unclear but people who have seen the regulations believe that these changes could signal a major step towards the eventual legalization of marijuana.

Recently, Illinois has joined a growing group of states that are moving towards a more accepting treatment of marijuana.  Illinois allows for the use of Medical Marijuana.  The Illinois Legislature has accepted that there are medical benefits to the use of marijuana and they have set up a highly regulated process by which people who suffer from certain medical conditions can legally buy, possess and use medical marijuana as long as they have a valid prescription and obtain permission from the State of Illinois.  While the Illinois medical marijuana program is one of the most strict in the country, it is the product of a long and difficult fight in Springfield that took many twists and turns.