ODD RESULT: THE AGE OF CONSENT TO SEX VERSUS THE AGE TO RECORD IT

In 2012, the Supreme Court of Illinois decided the case of People v. Hollins, 2012 IL 112754.  In that case, the defendant was found guilty of possessing photographs of having sex with his girlfriend.  What makes this case so interesting is that the girlfriend was 17, which is the age at which a person is old enough to consent to having sex.  To photograph someone having sex, however, the person has to be 18.  Otherwise, the photograph is considered to be child pornography.  So, Mr. Hollins girlfriend was old enough to have sex with him but not old enough to be photographed having sex with him. 

Mr. Hollins was 32 and he was a register sex offender.  The relationship was consensual.  The photographs were sent to the girlfriend by e-mail and her mom found them and pushed for prosecution of the case.  There is no indication from the opinion that photos were ever going to be put on the internet.  Mr. Hollins was found guilty after a stipulated bench trial.  On his appeal to the Supreme Court of Illinois, he argued, primarily, that the law violated his due process rights and equal protection rights.  Those arguments were unsuccessful and his original eight year sentence was upheld.  Justice Burke wrote a compelling dissent to which Justice Freeman joined.

Although the dissent makes a good argument, I am not sure the decision was wrong so much as I think that the statutes are constructed with this weird discrepancy.  I think that the legislators should change either the age of consent or the age a person could be photographed without it being child pornography.  I am not saying which one should be changed.  I am only saying that the ages should be consistent.  I appreciate that the statutes are guarding against two different types of dangers.  In my opinion, it comes down to the ability to understand consequences and be mature enough to make reasonable choices.  If a person is old enough to make the decision to engage in sexual intercourse at the age of 17, then it befuddles me how the same person is too young to consent to have the acts she can legally engage in be recorded. 

If you have a question about legal representation, check out my website to see if it is an area of law that I could possibly help you.  Here is a link to my website:  http://www.ellislawfirm.pro/

THE CONSERVATIVE SUPREME COURT CONTINUES TO WEAKEN CONSTITUTION PROTECTIONS

The Supreme Court, specifically Justice Alito, in an 8-1 decision, weakened the fourth amendment in the case of Kentucky v. King, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011).  Police officers in an undercover operation chased a suspect into an apartment building.  The suspect made it to an apartment and the police heard a door slam but they did not see which door it was.  The suspect, as the police learned later, entered the apartment on the right but the police knocked on the door on the left.  The police claimed that the smelled marijuana smoke coming from the apartment on the left.  They banged on the door as loudly as possible and yelled police.  They heard things being moved around in the apartment.  The officers testified that they thought evidence was being destroyed.  They kicked the door in and found marijuana, powder cocaine, crack, and drug paraphernalia.  The police later found the suspect they originally chased in the apartment on the right.

The trial court denied the motion to suppress based upon the alleged unlawful entry into the home.  The Kentucky Supreme Court reversed on the trial court, finding that the exigent circumstance had been created by the police.  The United States Supreme Court found that banging on the door and announcing that they were the police did not create the exigent circumstance and the police announced that they were entering the apartment only after hearing noises which they described as what they thought evidence being destroyed. 

Here is my problem with the court’s decision.  The key to allowing entry into the home in Kentucky v. King case was the officer’s testimony that he heard what he thought was evidence being destroyed.  There is no way to verify this evidence.  The majority of police officers are honest.  There are other officers, however, that are not honest at all.  They will lie without hesitation.  This decision makes it possible for any of those dishonest officers to kick in anyone’s door and then justify that warrantless entry by saying that they thought they heard evidence being destroyed.  With that one sentence, the police officers now have nearly unrestrained ability to enter someone’s home without a warrant. 

One could argue that police who are willing to lie have always possessed this ability.  That is true but this makes it so much easier for them.  Instead of concocting some elaborate story, there is just one simple sentence that has to be put forth which will justify a warrantless entry.  It seems like this case was specifically written to cater to the dishonest officer who lacks the ability to create an elaborate story to justify and cover-up his unconstitutional activities.

This is just another in a line of cases that continues to erode our rights.  Specifically, this case erodes our fourth amendment right to be free from unreasonable search and seizure.

If you have a question about legal representation, check out my website to see if it is an area of law that I could possibly help you.  Here is a link to my website:  http://www.ellislawfirm.pro/

SHOULD YOU GIVE A STATEMENT TO THE POLICE IF ARRESTED?

In my opinion, there are two responses, and only two responses (or slight variations on these responses), that a person under arrest should give when questioned by the police.  First, a suspect could say “I am not going to say anything,” or “I respectfully decline to say anything.”  There is no reason to be impolite or to curse.  A person does not have to drop the “F bomb” to the police before they realize they are wasting their time. 

Second, a suspect could say “I want to talk to my lawyer before I say or do anything.”  The U.S. Supreme Court has ruled that a suspect’s demand for an attorney must be unambiguous and that right to an attorney can be waived without clearly demanding an attorney.  Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  So the suspect must be clear that they will not give a statement without first speaking to their attorney.  If the suspect does not have an attorney, then he can say he wants to speak with his public defender or whoever is hired for him first.

I am always amazed when people confess to crimes, particularly when it is previously convicted felons confessing to crimes.  In some cases, the person confesses within minutes of being arrested.  This makes the defense attorney’s job much harder and sometimes can make a valid defense worthless.  For example, suppose a person is arrested for murder but adamantly denies ever touching a gun on the night the person died.  Then, after speaking with a defense attorney it appears that the case is custom made for a self defense strategy.  To claim self defense, though, the defendant will have to change his story.  He will have to admit to using the gun.  In other words, he will have to admit that he lied in his statement to the police.  Put yourself in the jury’s shoes.  They don’t know what happened.  They were not there.  They can’t tell if the defendant is telling the truth or not.  They only thing that they can know for sure is that the defendant is willing to lie when it serves his purposes. 

There are several reasons, only some of which are listed in this blog post, to not give a statement.  First, giving a statement is giving evidence against oneself.  Even if the defendant denies any wrongdoing, a prosecutor can still use the statement.  Anything the defendant says can be used against him if it conflicts with what he says at trial.  It can also be used if it conflicts with other people’s accounts of what happened.  So even if the defendant keeps his story consistent, his credibility can still be questioned when his story conflicts with other witnesses’ testimony. 

Second, the defendant will get nothing in return for giving the statement.  He will not be released from jail for cooperating.  He will not get more favorable treatment from either the police or the prosecutor for giving a statement.  The judge will not give him a more lenient sentence for confessing.  (In federal court there is an advantage to accepting responsibility for an offense but that is long after being questioned by the police.)  So, there is no benefit to confessing.  If the defendant wants to clear their conscious, then they should do so with their attorney. 

Third, giving a statement locks in the defense theory.  As pointed out in the hypothetical, the denial of touching a gun used in a murder case may make a self defense theory impossible.  Perhaps the defendant acted in self defense.  Maybe the defendant went overboard and used excessive force.  This could make the lesser charge of second degree murder charge a possibility.  The statement about not touching the gun, however, can lock in the defense and make a self defense strategy difficult and in some cases impossible. 

Fourth, a defendant may unintentionally confess.  Some detectives are very skilled interrogators.  They really know what they doing.  I have seen a suspect initially denying any wrong doing.  By the end of the interview, he was saying that he would apologize to the victim if she were present.  He did not mean to confess.  He just felt sorry for her and what she had been through but not because he caused any of her problems.  Once he said that, though, it did not matter.  He was caught and later he was forced to plead guilty. 

Fifth, if the police and the prosecutor believe that the defendant lied in his statement to prevent his prosecution, then the prosecutor could charge him with obstructing justice.  The elements of this charge are that a person provides false information to prevent their prosecution or the prosecution of another person.  The most common example of this is when a person lies to the police about who they are by giving a false name because they fear that there is an outstanding bench warrant for their arrest.  Any false information given to prevent a person’s prosecution, however, could lead to this charge.  A defendant may compound his problem by trying to talk his way out of being arrested.  Instead of talking his way out of a charge, he may talk himself into an additional felony charge of obstructing justice.

I have a friend who has contacted me several times over the years about his family members or friends who have been arrested.  His question is always the same:  what should I tell the person under arrest to do?  My answer is always the same:  Tell them, “DO NOT GIVE A STATEMENT.”

If you have a question about legal representation, check out my website to see if it is an area of law that I could possibly help you.  Here is a link to my website:  http://www.ellislawfirm.pro/

JUST ANOTHER WAY INSURANCE COMPANIES TAKE ADVANTAGE OF THEIR INSUREDS

Amerisure Mut. Ins. Co. v. Global Reinsurance Corp of America, 399 Ill. App. 3d 610, 927 N.E.2d 740, 340 Ill. Dec. 1 (1^st Dist. 2010). 

Section 155 of the Illinois Insurance Code provides for penalties if an insurance company unreasonable delays in paying, or denies, a valid claim.  One of the most significant penalties under section 155 is forcing the insurance company to pay the insured’s attorney’s fees.  The insured is the person or party who purchases insurance and expects to be covered by the insurance.  In the Amerisure case, there was such a lengthy delay that the insured sought relief by taking the matter to arbitration, which was required by the reinsurance policy.  The reinsurance company, Global, was found to be unreasonable and the arbitrator awarded a little over 1.5 million plus interest and attorney’s fees of over $861,000.00.  Global paid the 1.5 million and interest but refused to pay the attorney’s fees.  Amerisure sued to enforce the arbitrator’s award of attorney’s fees.  The trial court found for Amerisure and ordered Global to pay approximately $861,000.00 in attorneys’ fees.  The appellate court reversed the decision, holding that arbitrators lack the authority to award attorney’s fees and that only a court could award such fees.  The Supreme Court of Illinois refused to hear the case.  So, in other words, the plaintiff in this case had to pay their attorneys over $861,000.00, which was over half of what they were entitled to receive, to force Global to honor its contractual obligations.

Here is my problem with this.  There is no incentive or reason for insurance companies to not put in their contracts that arbitration is required in all first party claims and then force all claims to go to arbitration.  Most people would give up long before then and the insurance companies would not have to pay off legitimate claims.  I do not think that all insurance companies would force their insureds to take them to arbitration before paying claims because this would lead to a backlash against the insurance industry.  It is foreseeable, though, that insurance companies may become more unreasonable in denying claims or delay in paying claims if the insured must take them to arbitration and then the insurer would only have to pay the amount they were contractually obligated to pay plus a little interest.  If attorney’s fees can be avoided, many people would say that it just cost too much to fight the insurance company and abandon legitimate claims.  Since the remedies provided by section 155 are the only remedies available to insureds making a claim on their own policy, I think that it is merely a question of when, as opposed to if, insurance companies will require all denials of first party claims to be arbitrated and then to deny all first party claims. 

I have successfully sued insurance companies for violation of section 155 and I am currently involved in cases against insurance companies.  If your insurance refuses to pay a claim which you believe is a legitimate claim, give me a call and I will be happy to take a look at it.  To see what areas of law I practice, visit my website at:  http://www.ellislawfirm.pro/.

HOW HAVING TOO MUCH CASH CAN BE A BAD THING

Amazingly, a federal appeals courts forfeited cash holding that the possessing, carrying, or transporting a large sum of cash creates a strong suspected connection to drug trafficking.  U.S. v. $124,700 in U.S. Currency, 458 F.3d 822 (8th Cir. 2006).  In the case of U.S. v. $124,700 in U.S. Currency, a Hispanic man was stopped for speeding on I-80 in Nebraska.  The $124,700 was found in a cooler in the rented vehicle the man was driving.  The trial court found that there was insufficient evidence to prove, by a preponderance standard, that the money had a substantial connection to drug trafficking.  The court found the explanation the man offered as plausible.  The appellate court reversed in part because “Possession of a large sum of cash is “strong evidence” of a connection to drug activity, …” U.S. v. $124,700 in U.S. Currency, at 826.  The dissent noted “that no drugs, drug paraphernalia, or drug records were recovered in connection with the seized money. There is no evidence claimants were ever convicted of any drug-related crime, nor is there any indication the manner in which the currency was bundled was indicative of drug use or distribution.”  U.S. v. $124,700 in U.S. Currency, 458 F.3d at 827.  The dissent went on to criticize the majority’s decision by pointing out that other decisions within the district had rejected similar forfeiture arguments when there was an insufficient nexus, or connection, between the money found and drug activity.  A police dog alerted to the presence of drugs on the currency and the exterior rear portion of the rented car.  As the dissent points out, however, this was a rental car which undoubtedly had been used by several people.  Had drugs been used near the rear of the car, there is no way to determine who used the drugs.  Additionally, it common knowledge that most currency has trace amounts of narcotics on it.  The dissent pointed out that this fact was recognized by the Justice Souter in a recent case.

            I think that this violates a person’s Fifth Amendment rights, due process rights, and possibly equal protection.  I think that the problem in this case is that the police and the appellate court looked at suspicious activity and allowed the police to forfeit the money despite insufficient evidence to connect the money to any illegal activity.  As a former prosecutor, I have heard cops talk about suspecting someone committing crimes but not being able to prove it.  That is the situation we have here but instead of the cops not being allowed to take action, the court endorses the cops to forfeit money without sufficient evidence that the money is connected to any illegal activity.  This creates an odd situation where the cops are like highway bandits who can stop you and take your money and the courts will support the cops if the amount of money is large enough.  Finally, I cannot ignore that this was a Hispanic man stopped in Nebraska.  I think that if this were a white man in his 50’s, then the forfeiture would have never occurred.  Therefore, be warned that by carrying or transporting large sums of money, you risk losing it.  To see what areas of law I practice in, visit my website at http://www.ellislawfirm.pro/. 

       

LOSING OUR RIGHTS

The law requires that when the police serve a search warrant, they must knock and announce themselves and only if there is no response can they break into the house.  Of course this does not apply to “no-knock” warrants where the police are authorized to enter without any prior notice.  The “no-knock” warrants are authorized based upon a showing that there is a reasonable belief that there is some danger to the officer’s safety or that evidence would be destroyed.  Before 2006, if the police violated a person’s rights by ignoring this law and busting into someone’s house, then the evidence would be excluded under the exclusionary rule.  The U.S. Supreme Court changed that with its decision Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159 (2006).  Supreme Court Justice Antonin Scalia, who wrote the majority opinion, held that the cost of losing evidence was too great and the threat of civil lawsuits would deter police misconduct.  Before the Hudson decision, the requirement that police officers must knock and announce themselves before entering was not only a federal statute (18 U.S.C. § 3109) but was part of common law, or judge made law, going back to before this country was founded.  As Justice Breyer wrote in his dissenting opinion:   “Today's opinion is thus doubly troubling. It represents a significant departure from the Court's precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection.”  Hudson v. Michigan, 547 U.S. 586, 605, 126 S. Ct. 2159, 2171 (2006).  This appears to be merely another traditional right which has fallen under the current conservative U. S. Supreme Court which is composed of conservative judicial activists, ignoring precedent when it suits their political ideology.  Scalia’s opinion that potential civil lawsuits would be a deterrent is wholly unrealistic because of the difficulty in being successful in civil lawsuits against police.  Ellis Law Firm has sued police departments, with great success, for violating someone’s civil rights.  Those cases are very difficult, though, due to the conservative nature of Supreme Court decisions involved in suing police officers and the cities they work for.  Without apparent physical damages, as in an excessive force case, I would be reluctant, as would nearly every other law firm, to take on such a case.  If law firms are unwilling to take on the challenge of suing police departments when there is little reward for all their trouble, then the threat of civil law suits would not serve as a deterrent to police abuses.  Therefore, Scalia’s opinion undermines the remedies people have when the police break the law requiring they knock and announce before entering your home.  To see what type of cases I focus on, check out my website at:  http://www.ellislawfirm.pro/

Punishing Minor Consumption by Suspending Their Driver's License

On June 24, 2010, the Supreme Court of Illinois held that a statute which requires a 90 day driver’s license suspension for underage drinking is constitutional even though no motor vehicle was involved.  The statute is 625 ILCS 5/6–206(a)(43).  The Court held that “The legislature may reasonably determine a young person consuming alcohol under the legal age may also drive after drinking.”  People v. Boeckmann, 238 Ill. 2d 1, 11, 932 N.E.2d 998, 1004, 342 Ill. Dec. 537, 543 (2010).  While it is true that someone under 21 may drive after drinking, it is equally possible that the same person may choose to not drive after drinking.  Suppose a teenager goes to a party, gets drunk, and then calls his/her father or mother to pick him/her up.  The parent is involved in an accident through no fault of their own.  When the police arrive, they speak with the teenager and realize the teenager is drunk.  The police then cite the teen with underage drinking.  In addition to paying a fine for the underage drinking, that teen would lose his/her driving privileges for 90 days, pursuant to 625 ILCS 5/6–206(a)(43).  In reaching this decision, the Court overturned the trial court’s decision holding the statute unconstitutional and decided to not follow a precedent set forth in the case of People v. Lindner, 127 Ill. 2d 124 (1989).  The Court in the Lindner case struck down a statute revoking a person’s driving privileges when convicted of sex offenses where there was no connection to a motor vehicle.  Two of the Justices announced that they thought Lindner was incorrectly decided to the extent it held a revocation or suspension of driving privileges must be connected to a motor vehicle.  Obviously I do not advocate underage drinking and driving.  Certainly no one is arguing for more rights for sex offenders.  With all due respect to the Supreme Court of Illinois, punishing people by taking away their driving privileges when the crimes committed have nothing to do with driving is wrong.  It puts a burden on the individual and upon employers, who may lose well trained workers.  The Boeckmann decision takes away a teenager’s right to drive, which the teenager has earned, because the possibility exists of a teen making a bad decision to drive and if the teen decided to drive, the further possibility that the decision will harm someone.  The Boeckmann opinion fails to consider that the teens who make the bad decision to drink and drive may be just as likely to drink and drive even if they do not have a license.  In those cases where a teenager will drive despite having a suspended license, the Boeckmann decision accomplishes nothing.  So, as a word of advice to anyone under the age of 21 in the State of Illinois, do not drink any alcohol under any circumstance unless you want to risk losing your driving privileges for three months.  For more information about DUI's, see http://www.ellislawfirm.pro/