If you follow some of the other nonsense I post on the internet you know how I’m annoyed by anything that might be considered excessive bail. So, when it comes to bonding people out of jail, you can say I’m a little touchy. The article in the Northwest Herald today about the man arrested as part of the recent drug sting in Harvard strikes a nerve.
It’s not that the article is poorly written or mixes up the law- it doesn’t. It’s the idea that the government can force you to prove where your bond money comes from in certain situations:
WOODSTOCK – A defendant in an alleged Harvard drug ring was allowed to post bond Thursday after the defense was able to prove that the bond money would not come from illegal drug sales.
* * *
Earlier this week the McHenry County State’s Attorney’s Office filed motions to inspect the source of each of the defendant’s bond money.
* * *
Judge Sharon Prather accepted the testimonies and also reduced Figueroa’s bond from $150,000 to $120,000.
The arrests were part of a year-long investigation by the McHenry County Sheriff’s Department where officers said they made at least eight cocaine buys from the individuals….
I know you’re wondering why I find that annoying, right? For a couple of reasons. First, people think it’s “so hard” to prove a defendant committed a crime. After all, the government has the burden and they have the nearly impossible job of convincing the judge or jury. The reality is that, in nearly every other situation (there are a few exceptions, but they rarely come into play) the defense has the burden. Almost always.
You want your license back when it’s wrongfully suspended for a DUI? Prove it. Police held you in an interrogation room for 14 hours and threatened to torture you if you didn’t confess to something you didn’t do? The courts will presume that you’re wrong. Prove it otherwise.
The second, and more important reason has to do with that “technicality” they call “the constitution.”
You know what the Illinois constitution says about bail? I do:
SECTION 9. BAIL AND HABEAS CORPUS
All persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption great: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; and felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, when the court, after a hearing, determines that release of the offender would pose a real and present threat to the physical safety of any person. The privilege of the writ of habeas corpus shall not be suspended except in cases of rebellion or invasion when the public safety may require it.
What about the federal constitution? Boom:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
So, you’ve got a constitutional right to be able to post bail in nearly all cases. You’ve got a state constitutional right to bail in nearly every case.
Where does it say anything about a person have to prove anything?
Anybody who has done criminal defense work knows that cases tend to come in waves. The phone doesn’t ring for a few days, then BAM! Three or four new clients will call in a morning. It’s weird how that works, but that is the way it works.
Probably because arrests come in waves, too. Noticeably this week, there seems to be a rash of arrests for sex offenses. A laundromat in Woodstock (pictured above) is noted as the scene of events giving rise to at least one of the arrests. According to the Northwest Herald in an article titled “Police: Man abused child at Woodstock laundromat”:
Published: Monday, Oct. 28, 2013 2:33 p.m. CDT • Updated: Monday, Oct. 28, 2013 11:49 p.m. CDT
WOODSTOCK – A man with a long history of sexual assault made inappropriate contact with a young child at a Woodstock laundromat, police say.
[A man whose name I’ve redacted from] Woodstock, is charged with aggravated criminal sexual abuse, a Class 2 felony. [He] allegedly inappropriately touched a child under the age of 13 at a laundromat at 212 Fair St…
The defendant in this one could be facing some fairly serious future repercussions. According to the article, his
“sexual assault history dates back to when he was 21. In 1992, he was sentenced to 10 years in jail for aggravated criminal sexual assault with force and aggravated criminal sexual abuse with a victim between 13 and 16.
In 1999, he was sentenced to seven years in jail for aggravated criminal sexual abuse of a child under the age of 13.
[his] criminal history also includes a felony loitering charge in 2002 and felony violations of his sex offender registry in 2005 and 2011.”
Aside from the fact that his background very well may make him “extended term eligible” (meaning he may be facing much harsher potential penalties because of his criminal past), the state may move to have him commit to a facility in a civil commitment. While those civil commitments might look like treatment programs when you read about them, for most people they are, in essence, lifetime sentences in a commitment facility.
The Herald is also reporting on a McHenry man charged with various sex offenses. Of interest in this case is that it seems a “mandated reporter” from a mentoring program notified the police of facts leading to the arrest. “Mandated reporters” are people who are required, by law, to report to the police suspected child abuse or neglect. The DCFS web page has a decent overview of who are mandated reporters and what it means to be a mandated reporter.
While not noted on there, lawyers involved in certain juvenile court proceedings may be mandated reporters. I say may because it’s a little tricky sometimes with lawyers. There’s that whole Constitution and attorney/client privilege thing that can (but rarely does, really) make it more complex.
The recent past hasn’t exactly been kind to the McHenry City Police Department. Some poor internal controls last year lead to evidence (drugs… possibly money, who knows) being stolen from their evidence lockup by one of their own. It was bad enough that the McHenry County State’s Attorney’s office sent a letter to the defense bar notifying us that the poor control may have effected a number of drug cases.
The news today has nothing to do with that, but might be just as problematic. The Northwest Herald reports that a 17 year old kid cited for underaged drinking alleged in a law suit that he was cuffed and beaten:
McHenry father says police unjustly beat 17-year-old
McHENRY – A McHenry family is alleging that at least three McHenry County Sheriff officers grabbed their underage son by the hair and bashed his head against the pavement during an incident along River Road last weekend.
Police stopped the 17-year-old boy and his girlfriend while they were walking home along River Road in McHenry around 12:30 a.m. on Oct. 19, said Jerry Connor, a personal injury attorney at Albert R. Pino’s Law Offices who is representing the family.
An officer handcuffed the boy and cited him for underage drinking and then called for backup, Connor said. The officer and two others proceeded to beat the 140-pound boy, who suffered a detached retina and a concussion, he said.
The boy is currently receiving medical treatment and may be suffering from permanent brain damage, he said…
The article is accompanied by a picture of what appears to be some rather nasty damage to the kid’s eye and surrounding area. Of course, if the kid has “permanent brain damage” (and I really, really hope he does not), the eye will be the least of his worries.
Allegations of abuse by the police happen all of the time. They are, typically, investigated by the Illinois State Police. My experience with those investigations is that the I.S.P. rarely conclude somebody was wrongfully beaten. I’ve also had numerous cases where the I.S.P. investigators will strongly suggest to witnesses of the police conduct that they or the person complaining of abuse could potentially face additional criminal charges for what they are telling the investigators.
Read into that what you will. The point is that for the number of allegations of police wrongdoing I’ve seen, law suits are rarely filed against the police. So, this will be an interesting one to keep an eye on.
I’m amused sometimes when I read about crime in Bull Valley. Not because it’s funny. More so because everybody thinks of Bull Valley as a pristine, perfect place. Arrests in Bull Valley should serve as proof to the world of what those of us in Criminal Defense work already know: crime can pop up anywhere. Today the Northwest Herald is reporting of an arrest for child pornography in Bull Valley:
WOODSTOCK – A Bull Valley man facing child pornography charges in Topeka, Kan., was arrested Thursday in Woodstock on an additional seven felonies.
[Name redacted by myself] allegedly had more than 1,000 images on various electronic devices of children engaged in sex acts, Woodstock Police said.
Thursday’s arrest was the end of a 10-month investigation by the Woodstock Police Department, who were notified in January that there might be some illegal pornographic downloads in the area…
Here’s another thing that amuses me: when the police use the passive voice. They did that here. The Woodstock Police Department “were notified” about illegal downloads.
Wonder who did the notifying?
My first guess is the feds. As I’m sure you know by now, they have the ability to watch everything we’re doing on the internet. Even before it was that pervasive, though, the feds were all over this internet child porn thing. I’ve had cases in the past where they notice a download of material that shouldn’t be downloaded and either start their own investigation or assist the local police in getting the investigation going. Sometimes they’ll bust somebody on one end of an illegal transaction, get that person to cooperate in further investigation, and then extend the investigation out to other people and jurisdictions.
Is that what happened here? I don’t know. The police are clearly trying to protect the identity of whoever provided them the information, though.
“Cary woman charged with DUI in single-vehicle crash”
That’s the headline of the article in the newspaper. After reading it, curiosity got the best of me. DUIs aren’t that uncommon. Single-vehicle crashes aren’t uncommon, either. Neither are the two of them together. So, I read on:
WOODSTOCK – A 29-year-old Cary woman was charged with driving under the influence, after she veered her car off the roadway Tuesday and crashed into a culvert in unincorporated Woodstock.
The driver [whose name and address I’ll redact because she’s already having a bad enough day], was also charged with failure to reduce speed, marijuana possession, drug paraphernalia possession, and endangering the life of a child, according to a McHenry County Sheriff news release. A male juvenile was a passenger in the car.
Interesting. Not so much for what it says, more for what it doesn’t. What it doesn’t say is that alcohol, or any substance, was believed to contribute to the accident. Nor does it say that it was an alcohol DUI. Reading between the lines (because the clerk’s computers haven’t been updated), it very well might be a cannabis/marijuana/THC DUI.
There are people out there- lots of them, actually- who think the marijuana/THC DUI laws in this state are a little silly. You can count me among those people. Essentially, if there is any amount of THC (the active ingredient in cannabis) in your system, you can be cited for DUI. The odd part is that conventional testing can sense THC in your system as many as 30 days after consuming the drug. That’s odd, because you really aren’t experiencing any effects from the drug at that point- but you can still get a DUI.
Which gets us back to the article. Did the “DUI” contribute to the accident at all? It doesn’t look like the police bothered to tell that to the reporter if it did:
Investigators found that [the lady’s] black 2008 Mazda veered from the southbound lane on Dean Street, north of Route 176, to the northbound lane and entered a ditch.
The vehicle then struck a culvert, overturned and hit a tree, police said. The juvenile was taken to Centegra Hospital – Woodstock as a precaution. [The driver] did not seek medical attention, police said.
They also didn’t say that in the McHenry County Sheriff’s Press Release. I’d really hate to think that this accident only made the news because the police fed a story to the newspaper making it sound like the accident was caused by some sort of impairment when, really, the two are unrelated. That happens too frequently.