Without commenting on whether I believe the Court reached the correct result, the Third District of the Appellate Court of Illinois issued an interesting opinion in People v. Costello, 2014 IL App (3d) 121001 (October 23, 2014). Without getting too much into the background of the case, an Order of Protection was issued against the Costello Defendant, and one of the provisions of the Order of Protection ordered the Defendant was to surrender all of his firearms to the Sheriff including certain named firearms. On the date that the Sheriff came for his weapons, the Sheriff found none.
It seems (at least from my brief reading) that the Costello Defendant’s trial strategy was taking the 5th and forcing the State to prove its case against him, leaving the finder of fact to wonder where the guns went (i.e. were the hidden, sold, transferred out of state, etc.). Well, that strategy blew up in his face. The Appellate Court found that the mere failure to turn over any firearms (whether there were any guns in the possession of the Defendant or not) established a prima facie case for a violation of the Order of Protection. It then became the burden of the Costello Defendant to plead the affirmative defense of impossibility (i.e. present evidence that it would have been impossible to commit the offense because the Defendant had no guns in his possession).
You’re innocent until you are proven guilty of a crime, right? Well, I guess this case creates an exception to that rule. Expect to see an appeal to the Illinois Supreme Court.