Saturday, January 13, 2018

Release Me --- Post-Conviction Relief is not for the Faint of Heart

Wilson Phillips hit, Release Me, is about love and loss of a romantic relationship. You and your loved ones may have lost relationships due to the court process and be looking for release of another sort. You may seek to obtain a new trial for a loved one who was wrongfully convicted of a crime.

You may want to tell the court that it did not really find what it was looking for, so release your loved one, and let a new trial occur. The problem --- it's not that easy.  The standards for post-conviction relief proceedings are stringent and do not rely upon the adage - "he didn't do it, so let him go."

After an appeal, a post-conviction relief motion may be considered, generally, for newly discovered evidence; for ineffective assistance of trial counsel; and ineffective assistance of appellate counsel.  When you argue your counsel was ineffective, you have to prove that counsel's performance was below standards of reasonableness that cannot be explained by ANY strategy, and that the deficient performance led to a different result in the trial. So, not only must the post-conviction attorney prove that your loved one was convicted of burglary with an attorney who was so bad they had no redeeming qualities, but the quality of your loved ones' attorney was so bad, that is the only reason for the guilty verdict.  This is a pretty hefty standard. This begs the Court to uphold counsel's effectiveness.  Ineffective assistance of counsel will generally only be a grounds wherein there are cases that are likely won and lost on evidence that is based upon credibility of witnesses and wherein there is not a lot of solid physical evidence to corroborate witness testimony.

*The opinions expressed are of the blogger only and were not intended as legal advice or as an avenue to open a lawyer-client relationship.

Tuesday, October 18, 2016

Just Like Fire


https://www.youtube.com/watch?v=5Nrv5teMc9Y&list=RD5Nrv5teMc9Y#t=0

Pink has it right... The world is madness and a colorful charade. The world tries to fit you into a box and make you play THE game, but it just does not work that way. The end result:  when the fire gets too hot, you end up in court, even though you should maybe end up in therapy...  This blogger sees the results day in and day out, and today, the fire was hot.

Courtrooms are the worst place to solve life problems, but they are also the place where many people end up doing that very thing. The problems range from inability to control impulses, which typically ends you up in criminal court, to inability to do the right thing for a child or family member, which ends you up in family court or probate court for custody issues or guardianship relief for a child or elder person.  Unfortunately, this is our world and society.  Lawyers, trained to argue, point out procedural issues, and to deal with the nit-picky areas of life, are the ones people come to when life just needs to be sorted out by a third party because the people on the front lines will not cooperate in the best interest of their own life, the life of a child, the life of a grandparent or older aunt/uncle, or the wishes of a deceased relative.  While this blogger appreciates the work and understands where her bread is buttered, she thinks, sometimes, there are steps left out, and worries that people do not get the assistance they need prior to leaving major life decisions up to another lawyer (the judge) to decide. 

Lack of mental health treatment, awareness, and assistance in our country seems to be a very serious problem.  When a bone breaks, we take ourselves to the urgent care or ER and get it fixed. We get a cast, have people write on it, get special treatment, and follow-up with our care providers to ensure that the bone works right again, as best as possible. When our spirit breaks,  our home breaks down through divorce or death of a loved one, our psyche breaks, a disorder becomes apparent, the chemicals in our brains jumble or are different than "the norm", we often keep this private, feel shame or have nowhere to turn. We may end up in court after committing a crime, for a divorce, or to be committed due to mental illness.  The problem is -- where did any assistance occur?  Often, no assistance occurred, and the answer is incarceration, familial breakdown with no counseling or  support, and commitment with no good prognosis in a facility with no good care options that will turn you back out as soon as it can claim you are somewhat stable.

The bottom line, in this blogger's opinion, is that people should not be "thrown" away and divided (jail/commitment/nasty divorce isolating families/estate contests after deaths in families) without significant effort. However, that does not seem to be the American Way. Whether attorneys should have more training in mental health principles or mental health providers should be required in court settings, who knows, but it seems obvious to this blogger that something's got to give.  A court of law should not be where people deal with mental health issues as a first stop.  It should be a final resort, and it does not seem to be...

Do not get this blogger wrong -- there are absolutely times when the criminal has been helped ad infinitum; the family going through a divorce has gone through the steps, attempted resolution and must be in court, or the person needs to be committed, etc.  However, we all take a lot of shortcuts...  Shortcuts, in school, were never allowed. We had to show our work in reading, writing and arithmetic.  Shouldn't we have show our work in life?

Thanks for listening to this rant, blogosphere...

*The opinions expressed are of the blogger only and were not intended as legal advice or as an avenue to open a lawyer-client relationship.

Wednesday, August 17, 2016

Born This Way - You're on the Right Track

defense attorney; school law
What's all the fuss with schools and your friendly neighborhood Target allowing people to go to the restroom in the restroom within which they gender identify?  It's such a big issue that 11 states have sued the Obama administration for Obama's stand on allowing kids to go to the bathroom based upon their gender identification, rather than their biology. And, lots of people are angry with Target because Target allows the same.  This blogger thinks Lady Gaga was on to something -- if you're born that way, i.e. identifying one way, despite biology, so be it. Who cares where you go to the bathroom?  What right do we have to tell you differently? Haven't we already provided enough trauma and divisiveness in our society to people based on gender, race, religion, etc.?  Perhaps we should stop, review history, and grow up as a nation, like Obama and some progressive courts in our land are trying to do. 

Obama wrote an executive order providing guidance in education circles regarding transgender bathrooms, etc. Now, states are suing the feds to say, "Hey, step Off.."  Obama, progressive in thought, albeit flying in the face of Congress, who is too busy yelling at each other to do anything, said, take people as they come, i.e. as they identify.

When this post was started, the heat was on to accept the new status quo. Now, there is a case ongoing that is calling this order into question. The Supreme Court granted a stay (or hold) in this case, in order to determine if it is going to take a case about a 17 year old transgender boy (born female but identifies male) who wants to use the boys' bathroom in his Gloucester, Virginia school. He was to be allowed, but people made a fuss in Court about it, and now, it's up for review before the Supremes.  Until the Supreme Court granted the stay for review, the Department of Education was telling folks to allow transgender students to go to the bathroom at which they identified, just like Target. But, now, we are in a holding pattern.

The problem is, we are at another crossroads for discrimination based on gender.  What are we doing about it?   We are spending, as a nation, a lot of money; that's what we're doing. Appeals, writs of Certiorari (how you get the case to the Supremes), and having an attorney write for the Courts is not cheap. So, rather than live and let live, we'll spend and spend to argue about how a kid, already going through hell, should be able to or not be able to go to the bathroom.  The playground bully is bad, but society's fight to keep a kid out of a bathroom is terrible.  If you're born this way, why can't you live this way -- the way that allows you to be a person that others respect for yourself, not because you fit in a mold that someone finds acceptable?

*The opinions expressed are of the blogger only and were not intended as legal advice or as an avenue to open a lawyer-client relationship.

Wednesday, March 30, 2016

Legal Talk: Straight Up -- A B-Town Lawyer's Blog: Mike Pence and Co. - Take if from Lesley Gore -...

Legal Talk: Straight Up -- A B-Town Lawyer's Blog: Mike Pence and Co. - Take if from Lesley Gore -...: You Don't Own Me DEAR MR. PENCE and CO.: Normally, this blog doesn't address one particular person, but this one will. You&#...

Mike Pence and Co. - Take if from Lesley Gore - You Don't Own Me

You Don't Own Me
DEAR MR. PENCE and CO.:

Normally, this blog doesn't address one particular person, but this one will. You've really done a doozy on things over the last year/year and a half. First, you make Indiana look ridiculous on a national level with your Religions Freedom Act. That was brilliant (insert sarcasm and disdain here).

Now, you are signing into law, after your brethren in state Congress thought it was a brilliant plan, an entirely unconstitutional and ridiculous bill attempting to change settled law on abortion.  Have you guys (yes, guys, white, male, religious conservatives) read Roe v. Wade (1973), and Planned Parenthood v. Casey (1992)?  A. Our nation was founded on separation of church and state, which you guys keep forgetting, which means, you have your religious thoughts and I have mine, but the law is separate... B. The Supreme Court, you know, the one in Washington D.C., with the pillars and all, they even said, as long as the baby is not viable, a woman's right to privacy, under the US Constitution, as provided to the states through the 14th Amendment, is paramount.  This gives the woman (whose body and health is affected here, let's be real) the right to choose, period. The fight has been lost, gentleman (the term being used loosely here).

Whether people out there in the blogosphere are pro-choice or pro-life, which are monikers to which this blogger does not subscribe, people ought to all be pro-health, pro-good-decisionmaking, and pro-constitutional rights. These should be consensus points.  The new law you've signed now requires a woman and her family, should she be in a committed relationship when pregnant, to either lie to her doctor about reasons for abortion, decide not to obtain information regarding the health and welfare of her child, or to force a woman to give birth to a child who may never be able to survive after birth. Any of these situations is untenable, and in complete violations of a woman's right to privacy, and of any family's right to privacy, should the family be making the decision about pregnancy termination.  No matter how you slice it, no one should be forced to go through a full term pregnancy, only to be required to secure postnatal hospice care for their newborn because you, sir, and your buddies, have decided you know more about the woman's choices, or the family's choices, than those directly involved.

It's unreal to this blogger that Lesley Gore, in 1963, the Supreme Court in 1973, and  again in 1992, got it, YOU DON'T OWN ME.  Women are independent beings.  People are independent beings. They are not props and toys for you to make decisions for, Mr. Pence. Shame on you for forcing your religious beliefs on a whole population.

For those, besides Mr. Pence, who've read my rant, thanks for your eyes.  For those who are mad at me, thanks for your anger.  I'm just glad I'm still allowed my opinions. I'm terrified you, Mr. Pence, will try to mess with the First Amendment next...  You've tried it with religion and privacy... I don't think it's a stretch.

Thanks,

A Concerned Indiana Citizen.

*This blog was written prior to any attempt by current state governmental authorities to repeal of the Indiana Constitutional Rights under Article One, Section 9, and the U.S. Constitution's First Amendment Rights to Free Speech (via the Fourteenth Amendment) as well as prior to attempts to repeal provisions for protection from ex post facto laws found in the US Constitution.  The opinions are of the blogger alone and are not legal advice.  

Monday, March 21, 2016

Baby Got Back - Not Appropriate for the Workplace


While we may all giggle at Sir Mix-A-Lot's lyrics, it's fair to say your workplace should neither sound like nor have the atmosphere of his song, Baby Got Back.  What may be funny in a song is neither kosher nor acceptable in the workplace.  If you've got a workplace that has more than 15 employees, you are exposed to  liability under Title VII of the Civil Rights Act, which protects against Harassment based upon a protected class, including race, gender, ethnic group, nationality, and age.  There are several outfits that provide training for sexual harassment, and the law firm this blogger works for is one of them. We see a lot of great workplaces fall prey to just not knowing the rules and getting into trouble because of it.  So, we decided we would offer training to employers on harassment cases, including sexual harassment, other types of harassment, and disability harassment. 

The law treats these types of harassment in a similar manner, but this post will focus on sexual harassment.  Because it is typically federal law, we have to look at law from several jurisdictions.  Mainly, though, in Indiana, the Seventh Circuit law will be the most applicable.  The main thing one can say about federal law in the Seventh Circuit is, the range of conduct that IS AND IS NOT determined to be found sexual harassment is varied.  There is no easy template to follow. However, there are several things you can do to protect yourself, whether you are an employer or an employee.

To protect yourself from the harm of sexual harassment in the workplace, as an employer, you need to ensure that you have a policy that has been reviewed by an attorney. You should ensure that you provide adequate training to employees. You need to ensure that you have adequate and confidential grievance procedures, and you need to ensure you are not a part of the problem. You should also ensure you take consistent and fair action regarding accusations of sexual harassment in the workplace to protect yourself in any potential future suits. Likewise, an employee must report any harassment, follow the grievance procedure outlined, and document any and all instances of harassment. Failure to do so could result in your potentially foregoing claims due to failure to report. Some Seventh Circuit Cases were denied to Plaintiffs (employees who brought suit) because they failed to report close in time to the harassment, which muddied the claim for the Court.

The bottom line is, do not let your workplace be a Sir-Mix-A-Lot song.  Stick up for yourself. Baby Got Back is a song for a bar, not your office, fire station, police department or factory floor. 

*The opinions expressed are of the blogger only and we're not intended as legal advice or as an avenue to engage in a lawyer-client relationship.


Friday, November 20, 2015

Love this Bar

southern indiana attorney
Toby Keith loves this bar, but what happens to you, after you leave the bar?  You know not to drive, as you don't want to deal with an Operating while Intoxicated, so you might call for a cab or walk home.  You are not out of the woods. The next consideration is, are you at risk for public intoxication in Indiana?  The law is tricky here, but you need to know that, despite the idea that you want to do the right thing and take the walk... Consider that you need to do to also ensure you're following the law.  College towns, in particular, like to pass out the public intox tickets to "police the streets",  but many officers forget the intricacies of the law. So, you should likely consult your friendly neighborhood lawyer.

The Indiana Courts have had to really look at the language of the public intox statute, as it's pretty broad.  In 2012, the public intox statute changed to ensure that merely being drunk in public was not a crime. This is to ensure that people are encouraged to walk or get a cab when drunk, instead of trying to hide away in their own car, potentially driving while intoxicated, a much more dangerous feat... This is just good public policy.  But, you will still get stopped for the infamous PI ticket, especially in college towns, or small towns that want to make money for their coffers. So, what do you need to know?

The State has to prove that you actually endangered yourself or another person, harassed or annoyed another person, or breached the peace.  Frequently, officers tend to forget these elements, and/or decide that you are just annoying and charge you. This simply is not the standard the Court has set forth in case law. Furthermore, you can be as annoying as you want in your own home, and it's not public intoxication, as it's not taking place in public.

Now, all of this is information that's good to know, but just a friendly neighborhood reminder -- it's not information to spout off to officers if they are giving you a ticket for public intoxication.  It's best to take your fight to Court, not to the officer while they are dealing with you in an inebriated state...  When you hire an attorney, we can do a lot more for you if you haven't tried to "teach" the officer what you know about the law.  While this should not matter, sometimes, it could.

*The opinions expressed are of the blogger only and were not intended as legal advice or as an avenue to open a lawyer-client relationship.