Wednesday, May 27, 2020

HOW IS CHILD NEGLECT DEFINED BY ILLINOIS DCFS?

Under Illinois law, a neglected child is defined as:
  1. Children who are not receiving care necessary for their well-being, such as medical treatment, food, clothing or shelter;
  2. Children who have been abandoned;
  3. Children who have received crisis intervention services and cannot return home; and
  4. Infants born with controlled substances in their systems.

Before indicating you for neglect, the Department of Child and Family Services (DCFS) considers the child's age; medical condition; behavioral, mental, or emotional problems; any developmental or physical disability; your physical, mental, and emotional abilities; and any history of your being indicated for abuse or neglect.

If you have been indicated for child neglect by DCFS, you have the right to request a hearing before an administrative law judge. You must request the hearing within 60 days. At the hearing, DCFS must prove neglect by a preponderance of evidence. While that burden is not very difficult, an experienced attorney may still be able to cast doubt on the evidence against you. How bad are the child’s behavioral problems, if any? Does the child have a history of falsehood or manipulation? Was the DCFS interview of the child taped? Is the child’s story consistent? Was the child pushed into giving incriminating answers?

For example, in Walk v. Department of Child and Family Services, the court overturned a finding of neglect against foster parents who placed each of two children in a “cage” at various times for brief periods for the children’s own protection. The children had a history of severe behavioral problems and would sneak out to kill animals on the farm or try to burn down the barn. The cage was large enough for the child to run in, bigger than many bedrooms and contained toys and a sandbox.

In Julie Q. v. Department of Children & Family Services, a mother was indicated for neglect based in part on the child’s allegations of alcohol abuse. The Court overturned the neglect finding as several witnesses had testified that the child had a history of untruthfulness.

If you have been indicated by DCFS, contact an experienced attorney immediately. Do not try to talk your way out of the situation as you may inadvertently trap yourself. An experienced attorney can review your case for your best defense as well as helping you present yourself to DCFS in a positive manner.

If you have questions about a DCFS finding, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

Reference: 325 ILCS 5/3.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

IS IT REALLY A RELATIONSHIP UNDER ILLINOIS DOMESTIC BATTERY LAW?

If you have been charged with domestic battery, the prosecution must still prove all the elements of your offense beyond a reasonable doubt. Under one definition, the state must prove you were in a dating relationship. But how much of a relationship is enough?

Under Illinois law, a defendant is guilty of domestic battery if he or she causes bodily harm to any family or household member. (See 720 ILCS 5/12- 3.2(a)(1). A family or household member can be someone who has or has had a dating or engagement relationship with you, but does not include a casual acquaintanceship or include ordinary fraternization between two individuals in a business or social context.

Illinois courts have considered a dating relationship to be a serious courtship that is at least an established relationship with a significant romantic focus. One court did not find a dating relationship where both defendant and victim engaged in random sexual encounters which were physical in nature and not romantic, and where both denied they were dating. However, another court did find a dating relationship where the parties had dated for six weeks and continued to have sex until the offense occurred.

The determination of whether you are in a dating relationship can be very fact specific. Different judges may perceive those same facts very differently. Therefore, it is important to have an attorney who is familiar with the courthouse and the outlook of your particular judge.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

References: People v. Wallace and People v. Irvine.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Friday, May 15, 2020

WHAT ARE THE RULES FOR A POLICE SEARCH OF MY COMPUTER?

The founding fathers likely never envisioned the challenges to the Fourth Amendment that storing your life on your computer would create. The courts, however, have developed some guidelines as these cases have come before them. The court in People v. McCavitt has spelled out these rules.

For starters, you do have a reasonable expectation of privacy in your personal computers and computer files. Therefore, police must obtain a warrant before searching your computer (unless some exception to the warrant requirement exists such as the evidence was in plain view). After obtaining a warrant, the police may create a mirror image of your hard drive for later analysis.

Once an item has been legally seized, that item is no longer private. The police may conduct further searches without a warrant as long as your computer or the mirrored hard drive remains in their continuous possession. There are no limits as to when a search must occur or how long it may last. However, the state must still complete the review of your electronic data within a reasonable time, and they may not hold onto your property indefinitely.

Courts determine reasonableness on a case by case basis. When it comes to computers, a search is reasonable if it takes several years to complete as long as it ends before trial and stays within the parameters of the original search warrant.

The state might still violate the Fourth Amendment if state fails to quickly return information contained in a mirrored hard drive that is not within the warrant’s scope or if the state retains all data in a mirrored hard drive regardless of whether a warrant authorized its seizure. All property seized must be returned to you once the criminal proceedings have terminated.

In People v. McCavitt, the defendant, a Peoria police officer was charged with child pornography. Police made an EnCase file to examine the defendant’s hard drive. The defendant was found not guilty. Police then opened a further investigation, reexamining the original EnCase file. The court found that this violated the Fourth Amendment. Once defendant’s trial ended, police could not retain any portion of the EnCase file and thus had no authority to search that file.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Was the search of your computer legal? Can the state prove all the elements of your offense beyond a reasonable doubt? Even if the police acted lawfully and the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

CAN A LIFE SENTENCE IN PRISON BE COMMUTED IN ILLINOIS?

Your loved one was a good student but had some tough friends. Eventually those friends were involved in a murder, and your loved one got stuck with the rap. After being convicted, he or she was sentenced to life in prison. Is there hope for a release?

In some circumstances, the governor could commute their sentence. Illinois permits offenders to petition the governor for clemency through the State of Illinois Prisoner Review Board. The various types of clemency include commutation of sentence, pardon, expungement or reprieve.

While an attorney is not required, it is well worth considering getting one on board. To apply for commutation, you must submit a Petition for Executive Clemency along with supporting documentation. While just about anyone can fill out the petition, knowing how to present your loved one’s case can be a bit tricky. Be aware that the state’s attorney will likely protest any leniency, and the victim’s family may attend any hearing to protest early release in full force. Furthermore, it is best to avoid protests of innocence, which are almost never successful. An attorney can evaluate your loved one’s case and present the most positive arguments for an early release.

Upon submitting the petition, you may request a hearing before the Prisoner Review Board in either Chicago or Springfield. If a hearing is selected, the defendant will not be allowed to attend. The board will likely have questions and they will listen carefully to any answers. In my practice, I have watched unrepresented parties damage their loved one’s chance of commutation through ill-considered comments. The son of one defendant even chastised a victim’s daughter. As such, an articulate spokesperson who can make the case for your loved one’s release is essential. An experienced attorney can help prepare the testimony of witnesses to make a good impression as well.

If your loved one accepts responsibility for what happened and has a clean record during his or her years of detention, you may have grounds for a successful petition to commute the sentence to time served.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)