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Hal Garfinkel is retained as the defendant's lawyer in the Chicago high profile murder case of Marlen Ochoa-Lopez. Read more...
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Illinois criminal defense attorney, Illinois defense lawyer, federal hate crime charges, Numerous national media outlets reported on the recent murder of three Muslim students. According to investigators, a man allegedly shot and killed the three Muslim students as the result of a parking space dispute. While a number of individuals (including the surviving family members of the deceased) want to see the shooter charged with a hate crime, others doubt that this particular type of crime fits the definition of a hate crime.

Basic Principles Governing Hate Crimes

As a previous post described, a hate crime is a crime committed against another person or group of people where the crime is motivated by a bias against that person or group. That bias can be on account of that person or group’s race, religion, sexual orientation, ethnicity, or gender. Because of the nature of these crimes, hate crimes are often punished more severely than a normal crime.

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Illinois criminal defense attorney, Illinois defense lawyer, federal charges, state criminal charges,In order to be found guilty of a crime, traditionally the prosecutor had to prove two things beyond a reasonable doubt: that the defendant charged with a crime both did in fact commit the criminal act (the “actus reus”) and did so while having the intent to violate the law (the “mens rea”). Requiring both a guilty act and a guilty mind has traditionally been a protection afforded to those charged with crimes and has served to focus prosecutors’ attention on those defendants who are more deserving of punishment due to their willful actions. But recent reports and stories suggest that more and more federal crimes are being created that do not require any “guilty mind” in order for a person to be found guilty.

The Importance of Mens Rea

 Typically, criminal statutes require some sort of “guilty mindset” in order to support a criminal charge. It would be unfair, for example, to convict someone of murder when that person did not mean or intend to kill the other person. Most criminal statutes require, at the very least, some knowledge or an awareness that one’s actions might result in a certain consequence. The traditional exception was traffic infractions and local ordinance violations. Because these offenses are generally minor and result in only the payment of a fine, it was generally accepted that no specific intent to violate the traffic law or ordinance had to be proven. But now reports and stories suggest citizens are being fined, placed on probation, and (in some cases) given prison sentences without the prosecution having to show any intent to violate the law at all.

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Illinois criminal defense attorney, Illinois defense lawyer, criminal rights,Batson v. Kentucky – a 1986 case decided by the United States Supreme Court – affords both federal and state criminal defendants with an important right. Batson prohibits the prosecution from using peremptory challenges to exclude potential jurors from serving on a jury simply because of their race. This is referred to as a Batson challenge. Understanding the Court’s decision and its impact today can help potential criminal defendants understand their rights at trial and ensure they are protected.

The Decision in Batson v. Kentucky

The African-American defendant in Batson faced charges of burglary and receipt of stolen goods. During jury selection, the prosecutor utilized his peremptory challenge to remove six potential jurors, including all four African-American members of the jury panel. (State statutes give each party in a criminal suit a certain number of peremptory challenges, which can be used to remove potential jurors from a jury panel without requiring the party exercising the challenge to explain his or her choice.) An all-white jury was selected and Batson was convicted of the crimes. He appealed his conviction all the way up to the Supreme Court of the United States. In a 7-2 U.S. Supreme Court case, the Court held that Batson’s Equal Protection rights were violated by the prosecutor’s actions.

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Illinois defense attorney, Illinois criminal lawyer, property seizureA frequently overlooked consequence of federal criminal charges is civil forfeiture. In fact, a person does not even need to be charged with federal crimes in order to find his or her property subject to seizure by state or federal law enforcement agencies. Civil forfeiture laws are, in theory, designed to prevent a criminal from profiting from his or her criminal acts. For example, a drug dealer who uses a particular vehicle to transport drugs into and out of Illinois should not be able to keep the car or any of the money connected with that illegal activity.

However, since such laws were first reformed in the mid-1980s, there have been numerous stories of abuses of these forfeiture laws by law enforcement officials. Mothers have had their homes taken away under forfeiture laws because their children were found in possession of drugs; a nursery owner had $9,600 in cash seized by law enforcement because he took a “suspicious” trip to Houston to buy plants even though the man never faced any drug dealing charges.

The 1984 reforms introduced a practice known as “equitable sharing,” in which local law enforcement agencies would share in the profits of confiscated assets with federal agencies. Critics of civil forfeiture laws argue that this practice increases the incentives for local law enforcement to seize and retain property under these laws, even if the owner is not ever charged with any crimes.

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Illinois criminal defense attorney, Illinois defense lawyer, search and seizure, K-9 search, Criminal law is constantly changing, especially with regard to the constitutional rights of criminal defendants. The U.S. Supreme Court can issue a decision that impacts the application of the law in Illinois and other states. When the law changes though, it may not change for everybody. That was the unfortunate lesson one defendant learned in a recent decision by the Chicago-based U.S. 7th Circuit Court of Appeals.

USA v. Gutierrez

In late 2012, the Drug Enforcement Agency and police in Indianapolis received a tip regarding alleged drug trafficking at a local residence. Police went to the residence and used a drug-sniffing dog (or K-9 unit) to identify the presence of illegal narcotics. The dog sniffed the door of the residence and alerted the officers to the presence of drugs. Police then obtained a warrant and entered the residence, leading to the defendant's arrest for illegal possession of methamphetamine.

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