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Recent Blog Posts
SCOTUS hears 2 criminal cases on warrantless cellphone searches
It has long been the case that technology advances faster than the laws meant to regulate its use do. Sometimes laws and court rulings govern the ways in which individuals are allowed to use technology. Other times, they regulate the scope of how technology and the private data contained within our devices are protected from unreasonable search and seizure by law enforcement.
Smart phones arguably contain more personal data than most other devices that we own. Yet since the advent of the smart phone (and cellphones generally), there has been no clear guidance on whether police can search cellphones seized from a suspect upon arrest without first obtaining a warrant. Thankfully, the U.S. Supreme Court is about to hear arguments in two cellphone-related cases, each of which has significant criminal defense and privacy implications. In both cases, law enforcement officers seized the defendants' cellphones upon arrest and then searched the devices without a warrant.
Steps to take if your spouse is lying during divorce proceedings
The divorce process can be emotionally draining, no matter how amicable spouses are while navigating their split. However, some divorce proceedings are far more trying than others. For example, divorces that are marked by dishonesty can be far more difficult to cope with than those that are straightforward and involve full disclosure.
If you suspect or know that your spouse is lying about finances, behaviors that may affect your child custody case and other material matters, it is important that you react to your spouse's behavior with focused integrity on your part. Retaliating against your spouse for being dishonest will only make you look bad in the eyes of a judge.
Rather than taking matters into your own hands in a negative way, react to your spouse's dishonesty proactively and with dignity. Approach your attorney and inform him or her about the situation. He or she will likely encourage you to document any evidence you can acquire in regards to the situation being affected by the dishonesty. However, you must be careful to gather evidence in honest, legal ways. Please consult your attorney if you have any questions about how to successfully achieve this end.
Illinois Court upholds stiff sentence in marijuana growing case
An Illinois appeals court recently upheld a tough sentence for a man who was convicted of marijuana manufacturing.
The defendant, Michael J. Hogan, was sentenced to a prison term of 15 years in prison plus a two year period of probation, in addition to fines, fees, and a concurrent sentence. Mr. Hogan appealed the sentence, citing its harshness.
Authorities searched Mr. Hogan's apartment after his landlord entered it and discovered various marijuana plants growing. Police searched Mr. Hogan's apartment and confiscated up to 5,000 grams (11 pounds) of marijuana.
He entered an open plea agreement to unlawful manufacture of cannabis and marijuana possession, for the dismissal of a charge of unlawful production of cannabis.
Prosecutors will often over-charge defendants in hopes of scaring a criminal defendant into a plea deal. In this case, Mr. Hogan pleaded guilty to two charges and appeared surprised when he was sentenced to the maximum term in prison.
Dentist's wife not entitled to a change in alimony, court says
A St. Clair County appeals court recently denied the request of a dentist's former wife to increase her alimony payments. Modifying alimony can be a difficult process in Illinois, and the wife failed to show that she had a "change in circumstances" that warranted an increase of her alimony payments from her former husband.
The case involves Michelle N. Renner, who was married to Joseph A. Renner, a dentist who specializes in periodontics. The couple married in 1985 and divorced in the fall of 2002.
The original maintenance agreement called for Michelle to receive $3,000 per month in maintenance for a four year period and $3,000 per month in child support.
Michelle successfully petitioned to extend her maintenance in 2005, prior to the expiration of the original agreement. The child support ceased in the fall of 2006.
The new alimony amount was for $5,000 per month which would decrease in a tiered manner to $2,000 per month. These payments would finally end when Michelle turned 62 years old.
Changing or terminating alimony payments in Illinois
Modifying a marital settlement agreement is a difficult task for many Illinois residents.
One common reason that a person seeks to modify a marital settlement is to change an alimony or maintenance award.
In Illinois, it is possible to modify or terminate a maintenance award only upon showing a "substantial change in circumstances." The party seeking the change in a settlement has the burden of affirmatively showing the substantial change of circumstances.
Factors that may result in a "change of circumstances."
There are nine main factors that can constitute a change of circumstances under Illinois law:
- A good-faith change of employment status of either spouse.
- Reasonable efforts made by the alimony recipient to become self-supporting.
- Either spouse's impairment in present or future earning capacity.
- Tax consequences of alimony payments.
- Duration of alimony payments compared to the length of the marriage.
Matthew Schaffer granted a new trial in sexual assault case
An Illinois man was recently granted a new trial after being convicted of sexually assaulting a woman in a Wheeling condo building.
A Cook County appeals court found that the defendant was improperly cross-examined and that this likely led to his conviction.
The purported victim in this case was a New York woman that was staying with some friends after a night out while visiting downtown Chicago.
The woman testified that Matthew Schaffer entered condo building and forcibly assaulted her before taking money and jewelry from her purse.
Schaffer testified that he knew the victim because he had sold marijuana to her on two occasions and that she fabricated the assault story because she was caught cheating on her husband with him.
During jury deliberations, the jury indicated several times that it was split on all three counts. The jury eventually convicted Schaffer on aggravated criminal sexual assault, home invasion, and armed robbery. He was sentenced to 20 years and appealed, alleging that the state improperly cross-examined him.
Illinois wife's alimony award upheld by Cook County Court
A Cook County appeals court recently upheld an $800 monthly alimony award in favor of Amy Kawiecki.
Her ex-husband, David Kawiecki attempted to appeal the award but lost recently.
Issues of alimony and maintenance are a highly complicated area of Illinois divorce law. Appealing an alimony decision is also extremely difficult to do and requires an experienced divorce attorney.
Generally an appeals court presumes that a trial court's award of alimony is correct. An Illinois appeals court will only overturn an award of alimony due to an "abuse of discretion" of the trial court, which occurs when no reasonable person would have taken the view of the trial court. It is also up to the party appealing to prove that the trial court abused its discretion.
In the Kawiecki case, David alleged that the trial court abused its discretion in awarding maintenance because Amy received 63.5% of the parties' income after including her earnings, child support and maintenance. The appeals court noted that this disparity wasn't an issue because Amy worked part-time during their 17 year marriage and devoted much of her time to maintaining the household and helping raise their three children.
Appeals court severely restricts father's visitation rights
A Will County, Illinois, appeals court recently affirmed the severe restriction of a father's visitation rights to his children.
This case highlights the impact of mental health and substance abuse issues on a marriage and the effect that it can have in subsequent child custody and visitation orders.
The father and mother of the children were married in 2000 and had two children together. The mother filed for divorce in spring of 2009, alleging extreme and repeated mental cruelty and alleging that here was an irretrievable breakdown of the marriage.
As with many divorces, the couple quarreled extensively over child custody and visitation. Both spouses alleged that the other was mentally unstable and acted inappropriately around the children. Emergency orders flew back and forth and the courts had to decide which parent to believe.
In this case, the court eventually ordered the father to undergo a Rule 215 evaluation. The examining doctor said that the father had a mood disorder and character problems such as narcissism or paranoia. Although the doctor did not consider the father to pose a physical threat to the children, she was concerned with his breaks from reality and alcohol consumption.
Susan McWilliams's drunk driving conviction affirmed by Lake County court
The drunk driving conviction of Susan M. McWilliams was recently affirmed by a Lake County court. McWilliams was arrested in November of 2009 when an officer reportedly saw her weaving within her lane and crossing white traffic lines. The officer also claimed that McWilliams almost caused an accident with the car next to her.
When the arresting officer approached Susan McWilliams' car, the officer had to slap the truck of the car and yell her to park her car because it was rolling backward. The officer said that McWilliams was busy trying to put the parking brake on despite the car being in neutral instead of park.
The arresting officer also said that McWilliams had bloodshot eyes and slurred speech. She also found it incredibly difficult to find and produce her driver's license for the officer.
Despite claiming that she hadn't been drinking, McWilliams allegedly smelled strongly of alcohol and failed multiple field sobriety tests.
Prosecutors can use squad car video in DUI case, court says
A Cook County Appeals Court recently dealt a severe blow the defense in a drunk driving case. The case involves a man named Brandon Bailey who was arrested for drunk driving in 2011. The officer who arrested Bailey claimed that he was driving over 30 miles over the posted speed limit, made improper lane usage, and failed to signal in addition to driving while intoxicated.
During the discovery phase of the trial, Bailey requested the footage from the police car (in-squad video) which supposedly showed his stop and arrests. The state failed to provide the video in a timely manner so the trial court sanctioned the state by barring the video and anything it could have showed from trial.
The trial court also rescinded the summary suspension of Bailey's driver's license.
It appeared that Bailey would walk away from his criminal charges because the state was barred from presenting evidence including his field sobriety test and driving which could have been on the in-squad video. This harsh sentenced compelled the state to produce the video and ask the trial court to reverse the exclusion of the evidence.
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