Closing out this blog

Thanks to all readers, followers and persons who liked this blog, but, I have retired and Charles is no longer taking criminal cases. I hope what I have posted has been informative.

Thanks and goodbye.

Section of Aggravated Unlawful use of Weapons Statute is Unconstitutional

A few weeks ago, the Illinois Supreme Court stuck down section a of the unlawful use of weapons act. What they ruled was that since the 7th U. S. Circuit Court of Appeals said Illinois’ law forbidding conceal carry was unconstitutional, it can no longer be a crime in Illinois to carry a loaded, easily accessible gun. This ruling came about even though the new conceal carry law is not yet fully implemented.

The court went on to say that the State can implement “reasonable” regulations within the scope of conceal carry. For example, it will still be a crime to conceal carry without a Firearm Owner’s Identification Card (FOID). This may be difficult to prove in court because a FOID card may be issued from any state. The prosecutors in Illinois only prove that the accused has no FOID card in Illinois. The accused need not prove the existence of a card from a different state. IT’S THE PROSECUTIONS DUTY TO PROVE IT’S CASE ON THE STRENGTH OF IT’S PROOF, NOT THE WEAKNESS OF THE DEFENSE.  That’s what prof beyond a reasonable doubt means.

If you need to speak to a lawyer about this, please call me.

Concealed Carry Law In Illinois In The Wake Of The Zimmerman Trial In Florida

As of July 9, 2013, it is legal to carry a concealed weapon in Illinois since the 7th U.S.  Circuit Court of Appeals found Illinois law against concealed carry unconstitutional on January 9, 2013. There is one caveat, however.  You have to have a permit issued by the State Police. They won’t be set up for that for about 6 months.  Other requirements of the law are that an applicant must pass a background check, and take 16 hours of training. Accordingly, I don’t recommend carrying a concealed weapon until you have a permit and satisfied all the requirements of the law.

It has been reported that Cook County Sheriff Tom Dart has said that he will arrest people anyway, regardless of the law. I’m not sure if this is actually true, but I put it here to warn those of you who would carry a concealed weapon to beware. Just because it’s legal to carry a concealed weapon doesn’t mean you won’t be arrested. Look at the Zimmerman case in Florida. It was legal for him to carry a gun, but political pressure brought about an arrest and indictment.

My advice to those of you who see the need to carry a concealed weapon is twofold: 1) never, never, never pull the weapon except in extreme circumstances to save your life, or the life of another; and 2) keep my phone number with you at all times, because there are politicians and community activists who will pressure law enforcement to make unlawful arrests. Besides, even if you use the weapon legally doesn’t mean you won’t be arrested. This is a state that is anti-gun, and everything will be done to discourage people from legally carrying a gun.

P.S. Pulling a gun and threatening someone is an aggravated assault, even if not discharged (shot). Just showing the gun and threatening someone is an aggravated assault. Both are felonies, and carry prison time.

What Does “Not Guilty” Really Mean?

The media constantly confuses the term “not guilty” with innocent. I’ve read many times in the media that a defendant plead “innocent.” Actually, not guilty means something other than innocent.

So what does not guilty really mean? It means the prosecution has not proved their case. It could be that the defendant was actually innocent. But, as we all know, lots of innocent people have been convicted of crimes. You have no further to look than the victims of the late Judge Thomas Maloney , who took bribes in murder cases. He had to cover for his criminality by convicting innocent people who did not pay him a bribe. Some of Maloney’s victims are still in prison awaiting a determination of their fate by a neutral judge  and the Cook County State’s Attorney’s Office. In the last 15 years or so over 30 falsely accused and convicted persons have been released after years in prison, even though confessions were obtained from them, because of DNA evidence. Others have been released because an eyewitnesses who testified at trial came forth to testify that the police had strongly suggested the identity of a suspect when the witness was not sure. I had one such case where a victim of an armed robbery was shown a series of 6 pictures, commonly called a photo line-up. In the police report, the officer said the witness “tentatively” identified my client. That rung a bell with me because “tentatively” means not sure. So during cross-examination I took a chance and asked how many people  the witness identified before he identified my client. His answer was 4. So my client was the 5th person identified in the photo line-up out of 6. Each time the officer told him to pick again, until he chose the person the officer believed was the perpetrator. Then the victim was instructed to make a positive ID in court. Needless to say, my client was found not guilty. I digress. I guess that I just got caught up in story telling.

So, “not guilty” really means that the prosecution has not proved the accused guilty beyond a reasonable doubt. As for reasonable doubt, please read an earlier post of mine.

The Supreme Court Just Changed The Rules On The 5th Amendment

A recent case before the Supreme Court of the United States (SCOTUS) has just ruled that pre-Miranda silence can be used against a defendant in his trial, unless he specifically invokes his 5th Amendment right to silence. In other words, if you refuse to talk to the police without invoking your right to remain silent before the police give you Miranda warnings, your silence can be told to the jury. Up to this point, silence, even without invoking the 5th, could not be used against you. SCOTUS rejected the argument that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent to invoke his “right to remain silent.”

I said in an earlier post for everyone to just remain silent and not talk to police. Well, that’s out the window. You must affirmatively invoke your 5th Amendment right to remain silent. Be calm and polite. But be adamant. Do not allow the police to talk you out of it, which they’ll do. They’ll do it sneaky, and conversationally. But they’ll try. Fortunately, SCOTUS also ruled that any type of police coercion to overcome your will makes the statement involuntary, even without asserting your 5th Amendment rights.

SCOTUS makes the distinction between taking the stand at trial, and a police interrogation when it comes to asserting the 5th. “A defendant need not take the stand and assert the privilege at trial, but there is no comparable unqualified right not to speak during a police interview.”

The long and the short of it, boys and girls, is always assert your 5th Amendment right to remain silent when dealing with the police where you are, or may be, accused of a crime. If you’re unsure, assert the 5th!

 

THE NATIONAL TRANSPORTATION SAFETY BOARD IRECOMMENDNG TO STATES THAT THE CURRENT BLOOD ALCOHOL LIMIT BE LOWERED TO 0.05 UNDER 625 ILCS 5/11-501(a)

This won’t be a long article. I’m posting it to let you know that the National Traffic Safety Board (NTSB) is recommending to the states that the current blood alcohol limit be lowered from 0.08 to 0.05 under 625 ILCS 5/11-501 (a). That’s a 40% drop in breathalizer readings.

The NTSB can only recommend. It has no authority to demand a change. It seems they are trying to get to zero tolerance. With all the political pressure being put on state legislatures by special interest groups, it may pass.

My recommendation is to refuse to take the breatalizer test. Then the prosecution must show that you were impaired while driving. It’s much more difficult to show impairment than to have a breath reading of 0.08 or higher. The fact that you received a moving violation ticket is not proof of impairment. Hundreds of people a day receive moving violation tickets and not get cited for DUI.  So, that speeding ticket doesn’t necessarily mean you’re impaired.

I tell people all the time that if they’re stopped for a  DUI and there was no accident, they did not get out of the car falling down having peed in their pants, they have a shot at winning a DUI charge.

What about my license, you ask? Read my post Busted for DUI? Want to save your license?

THE MEANING OF “REASONABLE DOUBT”

We’ve all heard that no one can be convicted of a crime unless they’re proven guilty beyond a reasonable doubt. Unfortunately, no one explains what that means. And in Illinois, even the courts won’t tell you what it means. You, as a juror, have to figure that out for yourself. Illinois is one of a very few states that refuses to give a definition of reasonable doubt because “it tends to confuse the jury.” This arose out of a case over 120 years ago when lawyers composed their own instructions for the jury. One lawyer wrote an instruction so confusing that the Illinois Supreme Court ruled that the instruction in that case only tended to confuse the jury.

Since then we have Pattern Jury Instructions that are published by the Illinois Supreme Court. And they have gone from that ruling of 120 years ago that the reasonable doubt instruction was confusing in that case only to the instruction being confusing in all cases. Only God knows how they came to that conclusion. Because of that, we defense lawyers can only say the prosecution must prove our client guilty beyond a reasonable doubt. We can’t define it, because the judge can’t give an instruction defining reasonable doubt. So jurors are left to themselves trying to figure out what it means. What an advantage to the prosecution.

So, what does “reasonable doubt” mean? Oh, we forgot a word, “beyond.” The prosecution must prove a person guilty “beyond a reasonable doubt.” That means no doubt at all because “beyond” means going further. So, a juror, being a reasonable person, having any doubt whatsoever, must find the accused not guilty. A very well respected judge in Cook County, long since retired, once said that “If at the end of the case I still have questions in my mind, I’ll find the defendant not guilty.” In other words, the prosecution must answer all questions in a juror’s mind for that juror to vote guilty. It’s not a matter of the prosecution being close. As the old saying goes “close is only good in horseshoes and hand grenades.” Speculation and opinions are out. Guessing is also out. If you’re guessing, speculating or opining then you must vote not guilty.

The judge will instruct the jury to deliberate. That’s ok. Sometimes other jurors can clear up a point that’s confusing one or more jurors. BUT, if you have doubts in your mind and the other jurors’ arguments still don’t relieve you of your doubt, don’t give in to pressure.

In the Sermon on the Mount, Jesus said “As ye judge, so shall ye be judged.” The same standards of judgment will be given to you as you give the defendant. Think about that.

 

INVOKING THE 5th AMENDMENT RIGHT TO SILENCE

The 5th Amendment right to silence has been in the news lately, with Lois Lerner of the IRS invoking that right before a congressional hearing panel.  Did she or did she not have that right to invoke the 5th? That’s the question now.

I agree with Congressman Trey Dowdy (R, South Carolina) that she did not have the right to invoke the 5th. Congressman Dowdy is a former Assistant US Attorney who apparently has lots of trial experience. His point is that once she made a statement professing her innocence she has waived, or given up, her 5th Amendment right to silence. In no court in the land can anyone testify to their innocence and then invoke the 5th to avoid being cross-examined. It’s the same when testifying in a congressional hearing.

Lerner was partially right when she said the 5th Amendment was created to protect the innocent. The 5th Amendment right to silence was mostly created to protect Americans from being forced by the police/government from testifying against themselves whether they are guilty or innocent. Our forefathers had a major problem with that while under English rule. Forced confessions have a habit of being unreliable. Unfortunately, we still have a problem with that today. But that is another post for another time.

Many times when I get a new client where a confession has been given I ask them if they were given their Miranda warnings and they say yes. I then ask why they confessed. The common answer has been If I don’t say something they’ll think I’m guilty. Well, news flash, now they’re certain you’re guilty.  I always tell them that it’s better that the police actually have to prove they’re guilty without their help. It also makes my job of defending them easier.

There’s one more reason I hear from new clients almost as often as the reason stated above. The client tells me that the police told them to just tell them what happened and they can go home. Well that didn’t work out, either. They’ve been arrested and charged largely based upon the confession.

My advice to everyone: Don’t talk to the police. Don’t even tell them you’re innocent. Just give them your name, address, birth date and social security number.  Everything else can, and will, be used against you in court.

 

BUSTED FOR DUI? WANT TO SAVE YOUR LICENSE? 625 ILCS /11-501 (a) (b)

I have represented hundreds of people in Cook County arrested for DUI, under chapter 625 ILCS 5/11-501 (a) (b). And I’m always amazed that most are more concerned about losing their license than that actual DUI charge.

A DUI charge is broken down into two parts: 1) the license hearing (which is civil law); and, 2) the DUI (which is criminal law). It’s hard to explain this to people who really don’t understand how this works. You can win the DUI, get a not guilty, and still lose your license. How can that happen? You won the case, why is your license still suspended?

Einstein once said that if you can’t explain something simply, you don’t understand the problem. I’ll do my best to keep it simple, no legal mumbo jumbo.

The hearing to save your license takes place within 90 days of arrest. Even though the judge is hearing the evidence, he is sitting in substitution for the Secretary of State. The judge makes a decision and issues an order accordingly. This hearing has nothing to do with you being guilty or not guilty of the DUI. The hearing just decides whether your license is suspended or not. The trial for the DUI comes later.

What is offered at the hearing for your license? The main thing is whether the police had probable cause to stop you. Other reasons that you may raise are whether you blew lower than a .08 on the breathalizer. Whether the police followed proper procedure in offering you the chance to blow into the breathalizer. Whether or not you refused to blow into the breathalizer. Whether the police properly warned you of the consequences  of not blowing into the breathalizer. These hearings are limited to those issues only. Most people lose these hearings and have a choice. They can either give up driving while their license is suspended. Or they can have an interlock device installed into their car. Actually every car their name appears on. So if your name appears on your wife’s car, or your child’s car, an interlock device has to be installed in those cars, too. Try explaining to your wife why she has to blow into the device to start the car when she did nothing wrong.

There’s good news, though. I have been successful at defeating the state at the license suspension hearing. Since the license hearing is civil in nature, I use the civil practice act. Very few Assistant States Attorneys know how to properly counter the filings I make. The catch is that I have to file and serve upon the state these filings 30 days prior to the hearing. Otherwise, I have to continue the case so I can comply with the time limit. This means you can’t put off  making an appointment to hire me! If you want me to save your license, call me immediately at 1(708) 263-8212!  CALL TODAY.

Hello Chicago/Cook County

This is a new blog about criminal defense in Chicago, Cook County, Illinois. I will post news from time to time, but mostly this blog is to educate people about the criminal justice system from the defense point of view.

I will try to educate those seeking advice about what happens when they, or someone they know, gets involved in the criminal justice system in Cook County. Chicago is only one district out of six in the Circuit Court of Cook County.

Many of the articles I will post will deal with attorneys. I will not name any, but I will give points on what to look for when hiring a lawyer to defend you.

I will also try to explain the various procedures and strategies used in court (mostly mine and my partner’s). I can’t really speak for other lawyers, so I will not attempt to second guess them. This is not a blog for people to try to check up on their lawyer. I don’t know what that lawyer is thinking, nor do I know the facts of the case.

My name is George Zuganelis, and I have been a lawyer for 35 years practicing almost exclusively criminal defense. My partner, and brother, Charles Zuganelis, has been practicing almost exclusively criminal defense for 31 years. Both of us have tried cases all over Illinois and in a few other states, as well. Our practice is in the state and federal courts here in Illinois. We can try cases in federal courts anywhere in the country. We practice almost exclusively in Cook County, but have tried cases in Du page, Will, Lake, Kane, Kankakee, and various other counties in Illinois.