Chicago Criminal Law Journal

Increase in Arrests of Female Drunk Drivers

denisenalley1@sbcglobal.net (Denise Nalley) — Fri, 21 Aug 2009 18:22:00 -0600

According to the National Highway Transportation Satety Administration (NHTSA) there has been an increase in the number of women being arrested for drunk driving. Their numbers show an increase of 30% in the numbers of arrests of women for DUI between 1998 and 2007. They show a decrease of 7.5% in the number of arrests of men for DUI during the same time period , although in total numbers men still get arrested four times as often as women for DUI.

All of the alarm by the media and bloggers since the release of this information seems to assume (and often actually state) that women are drinking more, instead of the much more likely scenario that now when women are caught by the police they are not being let go like the old days. No more crying, flirting, calling the husband, parking the car by the side of the road and being let off with a warning by Officer Nice Guy. Thanks to Mothers Against Drunk Driving the DUI laws get progressively more serious every year. So, courtrooms are no longer filled with 20 year old to 50 year old men. Now there are alot more women. Now, there are teenagers and grandmothers side by side. Things are as they should be.

That may seem like an odd statement from a criminal defense attorney, especially a female one, but the truth is that the best law is the one that is applied evenly across society without bias. No racial, gender or age profiling. If we could achieve that for all crimes then justice truly would be blind.

Chicago's Traffic Cameras Looking in Your Wallet - Supposedly for an Insurance Card

denisenalley1@sbcglobal.net (Denise Nalley) — Wed, 18 Mar 2009 00:56:21 -0600

On March 16, 2009 Ald. Ed Burke proposed using the city’s photo-enforcement cameras to check vehicles for up to date auto insurance when a red light ticket is being issued by that camera. I guess you might as well send a second ticket for another $100.00 fine if you can slip it in with the first, right, Mr. Burke? After all there is a budget deficit.

But the legal waters are becoming a bit murky here. Let’s start with the Red Light ticket which is issued to the owner of the vehicle, no matter who is driving the car. As reported by theexpiredmeter.com in defense of at least the second Class Action lawsuit filed regarding the camera violations the City’s argument has been that the owner is responsible for these tickets, the same way that they are responsible for parking tickets. It doesn’t matter who drives the car. They pretend to soften the blow of these costly tickets by claiming that their purpose is “public safety”, not revenue and by not reporting the tickets on the owners driving record. Well, of course, they are not going to report it; they have no idea who was driving! So, whose driving record would they report it to?

In a normal scenario, if I drive my friend’s car and I go through a red light, get pulled over by the police and find out the car is uninsured I would be issued two tickets. In Court, I, the driver, not the owner, would pay a fine for the moving violation and if my friend did not have insurance, but I did have insurance on another car I could show it to the prosecutor and that ticket would be dismissed because I was insured.

I know this because as a young prosecutor for the Corporation Counsel of the City of Chicago in Traffic Court and the for the Cook County State’s Attorney’s Office I saw this scenario literally thousands of times. I use it as a proper defense to insurance violations for my clients today.

As these street cameras are unable to differentiate one driver from another, how will the city be able to determine that a vehicle is uninsured? Presumably they will claim that the plates on the car have no registered insurance policy associated with that vehicle. However, my policy covers any car that I drive, so whatever car I’m driving is in fact covered by my policy, even if it has no policy of its own. So, where’s the offense? Well, the real offense will occur a few weeks later when the owner receives two tickets in the mail.

If things continue to go along with these tickets at 400 W. Superior, Chicago in the manner in which they have been it will be a travesty. No tape or photos of the incident, no party from the City is required to appear to testify that the cameras were in proper working order on the date, time and location and the Administrative Law Judges, which are lawyers who work part time paid by the City, rubber-stamp hearings in favor of the government.

When a person’s only accuser is a camera there is something mighty rotten in the Windy City.

The Question of Fingerprints

denisenalley1@sbcglobal.net (Denise Nalley) — Fri, 06 Feb 2009 17:07:35 -0600

A few weeks ago Crim Prof Blog wrote about two LAPD fingerprint examiners who falsely implicated at least two people of crimes. These two examiners are allegedly linked to at least 1000 cases, 12 of which are currently pending in court.

The discovery came about after a Times newspaper article last fall revealed that six of LAPD’s print analysts had made critical errors in their work. Now the powers that be have decided that three month’s worth of cases should be reviewed. They would also like to start with the D.A.’s priority cases, which of course, may not be the same cases considered to be priority by the defense. They haven’t gotten very far in that review process due to lack of funding or due to lack of desire to make themselves look bad.

In the end it would be pure hubris to pretend that this issue is limited to these six analysts out of eighty or even to the LAPD lab. I purport that this problem reaches every crime lab in the nation.

The public operates under a misconception that the FBI’s Automated Fingerprint Identification System (AFIS) system works as a one fingerprint in – one fingerprint out match system. It is a not very publicized fact that one fingerprint goes in and many possible matches come out. Also, many analysts or technicians use computer programs to “clean up” print images via computer programs like Adobe Photo Shop. (So, how authentic is the image really?) Then the so-called fingerprint analyst places all those prints side by side on a dual microscope against the alleged perpetrator’s prints and does an eyeball match-up. Two analysts can, and often do, differ in their opinion about what makes a match. There are no universal minimum requirements for a positive match in the U.S.. No double blind studies have been done. England, France, Argentina and Brazil have universal standards for fingerprint analysis, why shouldn’t the U.S.?

Questioning the infallibility of fingerprint evidence to most people is tantamount to committing heresy. But, why? If it really was an infallible science then wouldn’t it withstand intense scrutiny as all true science should? Such evidence should be disallowed in Court under the Daubert case until such standards are in place. There is no science here.

No Charges for Homeowner Who Shot Burglar in the Back

denisenalley1@sbcglobal.net (Denise Nalley) — Fri, 26 Dec 2008 19:14:12 -0600

In Illinois, a person can protect their home with deadly force from an intruder if that person enters unlawfully into the home or even into an attached garage. However, it must be in defense of themselves, others or the home during the incident. Once the intruder is leaving – Call the police. Shooting someone in the back while they are fleeing is revenge and would usually be charged as murder.

Last Friday, December 18, 2008, an intruder allegedly entered a home in the 3800 block of North Kedzie and the police were notified regarding a burglary. Monday morning, December 21, 2008, the suspect was found partially covered with snow, across the alley, in the gangway of another house at 3800 North Troy, dead from a gun shot wound to the back. The police stated they believe the intruder fled after he was shot and collapsed in the gangway.

No charges are to be filed against the homeowner. The lack of filing of murder charges here may be arguable since the still unidentified man was shot in the back. I don’t know if there was blood in the house, signs of a struggle or other physical evidence that might indicate the shooting occurred before fleeing.

What I do know is that prior to the U.S. Supreme Court ruling the District of Columbia’s handgun ban was unconstitutional, it certainly would have been standard practice for the Cook County State’s Attorney’s Office to file at least a Failure to Register charge regarding the handgun against the homeowner. This, of course, assumes it was a handgun and not a shotgun. Handguns have been banned within city limits pursuant to city ordinance since 1983. The failure to approve any charges against the homeowner regarding the weapon is a sign of the times as Chicago and County officials attempt to keep this handgun ban in effect.

Shackled Bank Robbery Suspect Fleeing in Van Shot by FBI

denisenalley1@sbcglobal.net (Denise Nalley) — Thu, 18 Dec 2008 00:06:55 -0600

Earlier today, Steven Boyd, an alleged bank robber, was handcuffed and in leg shackles in the backseat of an FBI minivan alone. The FBI special agents left the vehicle running with the keys in the ignition because it was “frigid” outside. Mr. Boyd took control of the vehicle and was shot in the chest by Special Agent #2 because he allegedly tried to run over Special Agent #1. If Boyd was in the vehicle alone, escaping, what was there to gain by running over Special Agent #1?

The press release states that the FBI is continuing its investigation into how Boyd got control of the vehicle. Well, perhaps he climbed from the backseat into the front seat put the minivan in drive and tried to drive away in an attempt to escape. No details were given about why Mr. Boyd was in the van alone, where the agents were standing or what they were doing while Boyd was moving around in the van or if the van had GPS .

Of course, I wasn’t there but Special Agent #2, who was there, commented he shot because he feared for his partner’s safety. It would be interesting to see photos of the bullet hole in the van. Was Boyd shot in the chest from the front or the back? Was Special Agent #1 really in danger or was this incident just really going to be embarrassing? Losing a shackled bank robber along with an FBI vehicle could potentially affect one’s long term career goals.

Again, I wasn’t there, but a man was shot. Just because the man shot was accused of a crime at the time he was shot doesn’t mean he automatically isn’t a victim. Just because the shooter was a “man in blue” doesn’t automatically make that shooter innocent.

Unrelated, but in the same theme, a Chicago Police Officer from the Narcotics Division shot a man while executing a search warrant earlier today. I noted while reading this article that it did not say that the man shot was the subject of the warrant. I also found it notable that while it said the police were allegedly “confronted” by a man with a gun that they mention recovering a gun from the scene as opposed to recovering the gun from his person. Fingerprinting that gun might be helpful, although, I can tell you from experience that it rarely happens outside of homocide cases.

Two Eyewitnesses Recant on Thirty Year Old Murder

denisenalley1@sbcglobal.net (Denise Nalley) — Mon, 08 Dec 2008 19:05:36 -0600

Good Detectives investigate crimes, follow where the evidence leads and make arrests based on the evidence. Sometimes they have to change direction in an investigation if a suspect is shown to have an alibi or if the physical evidence just doesn't match.

Bad Detectives often reach a conclusion of "whodunit" and begin to work backwards from there and that appears to be exactly what happened in the case against, a then 18 year old, Anthony McKinney, thirty years ago.

On September 15, 1978, the night of the infamous Ali-Spinks fight, a security guard was murdered with a shotgun outside the Masonic Temple between 9:30 and 9:45 p.m.. The Harvey police were first called about the murder at 10:03 p.m. Detectives saw McKinney running near the scene. They questioned him and released him the next morning.

McKinney was charged with murder four days later. Two alleged eyewitnesses stated they left their homes after the 9th and 10th rounds of the fight, respectively, met up, and saw McKinney commit the shooting. No physical evidence linked McKinney to the crime.

He waited three years to go to trial. Only one eyewitness testified at trial. McKinney testified that he watched the entire fight and left his home at approximately 10:30 p.m. McKinney was found guilty and sentenced to life without parole.

Thirty years later both eyewitnesses have recanted their testimony. Another witness, Anthony Drake, has given a statement that he was present during the shooting but that McKinney was not present . Most importantly, the TV logs from the Ali-Spinks fight show undeniably that the 9th round ended at 10:02:49 and the 10th round ended at 10:07:45.

If the police were first called at 10:03 p.m., they should have been arriving at the murder scene around the time the second so-called "eyewitness" left his home. So, these two witnesses, who the police believed could not have been outside witnessing a shooting between 9:30 and 9:45. Sadly, this isn't a case that needed DNA or other advanced forensics to come along to move justice forward. All it ever needed was the investigating police officers to look at a clock.