The Illinois Supreme Court handed down two opinions on Friday, October 18. In People v. Murray, the court reversed a defendant’s conviction of unlawful possession of a firearm by a street gang member on the basis that the Illinois Streetgang Terrorism Omnibus Prevention Act requires proof of specific offenses in order to satisfy the “course or pattern of criminal activity” element necessary to establish that an individual is a street gang member. In People v. Austin, the Supreme Court rejected a circuit court’s determination that a criminal charge against a woman who distributed private sexual images of her ex-fiancee’s lover violated her first-amendment rights.

People v. Murray

By Kerry J. Bryson, Office of the State Appellate Defender

Deontae Murray was convicted of murder and unlawful possession of a firearm by a street gang member. In the Illinois Supreme Court, he challenged the firearm offense arguing that the evidence was insufficient to establish the element that he was a “street gang member” as defined by statute. 720 ILCS 5/24-1.8(a)(1) (2012); 740 ILCS 147/10 (2012).

For purposes of the criminal offense at issue, “street gang” is defined by the Illinois Streetgang Terrorism Omnibus Prevention Act (or STOP Act) as “any combination...of 3 or more persons with an established hierarchy that, through its membership or through the agency of any member engages in a course or pattern of criminal activity.” And, a “course or pattern of criminal activity” is defined, in relevant part, as: (1) two or more gang-related criminal offenses committed at least partially in Illinois; (2) at least one of those offenses committed after January 1, 1993; (3) both committed within five years of each other; and (4) at least one involving the solicitation, conspiracy, or attempt to commit, or the commission of, any felony or forcible felony. 740 ILCS 147/10.

At Murray’s trial, a Belvidere Police Department detective testified to his experience, including that he was a member of the street gang unit, had been involved in several hundred gang crime investigations, and had received specialized training in street gangs and gang activity. He also testified to having had contact with Murray during prior gang investigations. The detective was permitted to testify as a gang expert, over Murray’s objection. Murray admitted to being a member of the Latin Kings, and the detective testified that the Latin Kings are a street gang as defined by statute.

Murray argued that the detective’s testimony was insufficient to establish that the Latin Kings fit within the STOP Act’s definition, while the state argued that it was not required to present any evidence of specific crimes committed by the Latin Kings to satisfy the act. The Supreme Court majority agreed with defendant and reversed his conviction, concluding that the plain language of the act requires proof of specific offenses in order to satisfy the “course or pattern of criminal activity” element necessary to establish that an individual is a street gang member.

Further, while the detective described “in broad terms” the information and facts underlying his opinion, he did not explain the reasons for his opinion and therefore his opinion failed to comply with Illinois Rule of Evidence 705 (requiring that expert articulate reasons for his or her opinion). More specifically, the detective discussed LEADS reports, gang databases, and notes from other cases, but failed to offer any explanation for how this information established that the Latin Kings were a street gang engaged in a “course or pattern of criminal activity.” (And, to the extent the detective’s testimony relied on gang databases, the Supreme Court took judicial notice of an April 2019 report finding that Chicago’s gang database lacked sufficient safeguards of reliability.)

The state also argued that Murray had not cross-examined the detective regarding his opinion that the Latin Kings are a street gang. As the Supreme Court noted, however, the burden of proof cannot be shifted to defendant, and cross-examination of a state witness is not intended as an alternative means of establishing the elements of the offense. Because the detective’s testimony failed to satisfy the “course or pattern of criminal activity” element, cross examination was not necessary.

Finally, the majority rejected the state’s argument that evidence of other offenses committed by defendant satisfied the requirements of the STOP Act. Specifically, the state referenced defendant’s conviction of murder and aggravated unlawful use of a weapon, both resulting from the same incident as the offense in question and both of which were tried simultaneously with the “street gang” offense. Because there had been no conviction on those offenses prior to trial, and because there had been no finding that those charged offenses related to the Latin Kings, they could not be used to establish the “course or pattern of criminal activity” element.

Justice Kilbride authored a special concurrence explaining that he did not join the majority’s discussion of Illinois Rule of Evidence 705. Justice Kilbride would not have reached the question of whether Rule 705 applied because the parties did not address it in their briefs or argument, and the state’s evidence was insufficient to satisfy its burden regardless. Justice Kilbride also elaborated that while defendant admitted being a member of the Latin Kings, the statute in question demanded “painstakingly” specific evidence which was not produced here.

Justice Garman authored a dissent, joined by Justices Thomas and Theis, concluding that the detective’s expert testimony was sufficient to prove that the Latin Kings are a street gang. The dissent explained that Rule 703 allows expert opinions based on facts not in evidence and that the actual evidence is the expert’s opinion, not the underlying facts. Because the detective provided expert testimony on the street gang element, it was defendant’s burden to cross-examine the foundation for that opinion.  The dissent cautioned that the majority’s opinion would “require[ ] the introduction of potentially grossly prejudicial evidence” of other crimes risking conviction on the basis of “guilt by association.”

People v. Austin

By Jay Wiegman, Office of the State Appellate Defender

In People v. Austin, 2019 IL 123910, the Illinois Supreme Court considered “a unique crime fueled by technology,” colloquially referred to as “revenge porn.” Generally, the crime involves images originally obtained without consent, such as by use of hidden cameras or victim coercion, and, as in Austin, images originally obtained with consent, usually within the context of a private or confidential relationship. The concern in such situations is that even though the victim may have consented to the recording or may have even taken the pictures, the victim did not consent to its distribution.

The defendant in Austin was engaged to a man who received text messages that were stored on an account Austin and her fiancee shared. The texts included nude photos of the victim. After the defendant and her fiancee ended their engagement, Austin attached the pictures and texts to a letter she sent to a family member of her ex-fiancee in an effort to explain their break-up. The defendant was then charged by indictment with one count of nonconsensual dissemination of private sexual images, a Class 4 Felony.

The statute under which the defendant was charged, Section 11‑23.5(b) provides as follows:

“(b) A person commits non‑consensual dissemination of private sexual images when he or she:

(1) intentionally disseminates an image of another person:

(A) who is at least 18 years of age; and

(B) who is identifiable from the image itself or information displayed in connection with the image; and

(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and

(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and

(3) knows or should have known that the person in the image has not consented to the dissemination.”

Ruling on the defendant’s motion to dismiss the criminal charge, the circuit court determined that the statute imposes a content-restriction on speech and is not narrowly tailored to serve a compelling governmental interest. Because the circuit court found the statute facially unconstitutional, the state appealed directly to the Illinois Supreme Court.

In a 5-2 decision, the Illinois Supreme Court reversed and remanded for further proceedings. Writing for the majority, Justice Neville described the “staggering” breadth of the problem, which has victimized one in 25 American internet users. Ninety percent of the victims are women. In the last 15 years, 46 states have enacted laws criminalizing the nonconsensual dissemination of private sexual images. As a result, the court readily found that section 11-23.5(b) is justified by the compelling state interest in protecting privacy. Balanced against the compelling state interest, the majority recognized that section 11-23.5 implicates the freedom of speech and that the speech at issue requires First Amendment protection.

Thus, the court next addressed the level of scrutiny to be applied. To determine that, the court first considered whether the statute was “content-based,” and determined that it was not. Rather, the majority determined that the statute is a content-neutral, time-place and manner restriction. Further, the majority determined that the statute regulates a purely private matter. Having so found, the Supreme Court rejected the circuit court’s determination that strict scrutiny is to be applied. Instead, the majority applied intermediate scrutiny.

To survive intermediate scrutiny, the law must serve an important or substantial governmental unrelated to the suppression of free speech and must be narrowly tailored to serve that interest without unnecessarily interfering with first amendment freedoms. As the court had already determined that the law involved a substantial government interest, Justice Neville next focused on whether the law was narrowly tailored, and determined that it was, in part because civil remedies do not provide sufficient deterrence.

The court then considered whether section 11-23.5 substantially burdens more speech than is necessary. The majority concluded that the elements set forth in the statute sufficiently narrow the proscribed conduct in a way that does not burden substantially more speech than is necessary. In discussing overbreadth, the court addressed the circuit court’s concern that the statute, unlike those in most of the other states does not require a “malicious intent.” While finding that a malicious purpose is not expressly mandated, the majority concluded that section 11-23.5(b) is effectively limited by the five elements and conditions that define the prohibited conduct. The majority also dismissed the defendant’s arguments that the statute is unconstitutionally vague.

Justice Garman wrote a dissent, in which Justice Theis joined. The dissent would find that the statute is not content-neutral because it criminalizes the dissemination of images based on their content: private sexual images. As a result, the dissent would apply strict scrutiny.

Applying strict scrutiny, the dissent would find that the statute is neither narrowly tailored nor the least restrictive means of dealing with the nonconsensual dissemination of private sexual images. In the absence of an intent element or any need to demonstrate harm to the victim, the dissent found the statute to be overbroad, and expressed concern that simply viewing an image sent in a text message and showing it to the person next to you could result in felony charges.