Saturday, September 19, 2020

I'll Be Missing You -- RIP RBG

The Notorious "RBG" has left this Earth, leaving a large gap to be filled in the legal heart and soul of our society.  As Puff Daddy will miss the Notorious "BIG," I'll be missing RBG with every breath, step and move I make in court and elsewhere.  RBG was a trailblazer for women's rights, equal rights, equal pay, rights for disabled persons,  LGBTQ rights, marriage equality, and environmental protection.

 RBG was a strong, independent woman who provided significant service to this nation for over two decades. She brought strength, dignity and forceful vitality to each opinion and dissent she wrote.

What will happen now to RBG's legacy? RBG famously said "Fight for the things you care about, but do it in a way that will lead others to join you."  I know I will continue to try to live up to this sage advice. I will try to fight for continued improvement in the justice system; for equal rights for ALL, not just some; for better care and treatment for children in the system; and for our democratic principles, which seem to continually be eroded.

 I hope I can do so in the spirit guided by RBG's quote - "in a way that will lead others to join me," as I would like to effect as much change as I can rather than promote more division.

Friday, September 11, 2020

Are We There Yet? - Glory Not Found...

 My name is Megan Schueler. I'm the white daughter of a Welsh/Irish descent mother and German descent father. I have fair, rosy skin, blond hair and blue eyes. I grew up in a middle to upper middle class home; I had it pretty good.  I am privileged, and I know it.  I neither created my privilege, nor do I try to take advantage of it, but I know it's there and have seen it in action.  If you haven't figured it out already, this blog is going to be different from the normal blog I write.

As my readers know, I am an attorney. What you may not know is that my family adopted three kids from Korea. My sisters and brother from Korea have experienced systemic racism. They do not get the same treatment as other people of color, but I have witnessed my sister get followed around in department stores because they assume she will steal. I have heard my other sister tell me that she has been asked what country she comes from over and over at her job, including people telling her she speaks English well for a foreigner.  My brother has expressed feeling he has missed out on opportunities and being looked at differently because of his race.  Since 2016, I have been concerned for my siblings, as there has been a significant amount of anti-foreign sentiment in the U.S., and one of my sisters was told to go back where she came from while she was at a store. Moreover, one of my sisters, a U.S. citizen, had to provide extra documentation to enter into the new health insurance plan at work because of her naturalization status, despite having worked at the company for over 10 years.

I have represented people of color for divorces, criminal cases, orders of protection , and various civil matters in several jurisdictions in four states. I have witnessed the different reactions in our justice system when people of color enter it.  If a person of color enters, assumptions are made - sometimes more bailiffs are called to be in the courtroom or  asked to be available. Judges or court staff may ask if the person needs an interpreter if the person looks differently. Looking differently means not looking like a Caucasian.  In criminal matters, a person of color starts at a disadvantage.  

In 2017, Black people had six times the incarceration rate of White people, and Hispanic people had double the incarceration rate of White people according to pewresearch.org.  While people of color consisted of 36% of the adult U.S. population in 2017, they represented 70% of the prison population, according to pewresearch.org.  In 2017, White people made up 64% of the adult population but only 30% of the prison population.  A Counsel on Criminal Justice study revealed that, while some disparities have lowered between 2000 and 2016, regarding incarceration rates, they remain disparate, as noted by Pew, and people of color would look at a longer incarceration stay for similar classes of crimes committed by white persons.  

When I worked in as a federal public defender, I personally witnessed that white collar crimes are committed, on the whole, by Caucasians, more often than by people of color;  this is also born out by statistics, with which I will not bore you. This "white" crime is treated far less severely than other general offenses. For instance, in a battery offense, only one individual is harmed. In a drug offense, there is usually a small group of persons harmed (unless there is a drug network in play).  In property damage cases, typically, property of one or a few persons is damaged, and so on. In the white collar crimes, like fraud, mortgage fraud, securities fraud, "Ponzi" scheme cases, etc, large swaths of people are damaged. Life savings, homes, pensions, investments, and ways of lives are damaged by a (typically) white guy sitting in an office, cooking up a scheme.  That behavior destroys more lives and causes more overall damages to society as a whole than the typical assault or battery; however, that behavior is treated with less prison time, less culpability and gets "white-washed."  

The  Declaration of Independence says that "all men are created equal" and "are endowed by their creator with" ... "life, liberty and the pursuit of happiness."  Yet, the United States Constitution still required the 13th Amendment to abolish slavery -- with the caveat that a person could still be enslaved if they were a criminal or owed money... So, which is it?  Also, what about women? Are we created equal too?  America has an unfortunate history of making bold assertions but failing to live up to its promise of freedom and liberty for all. America is often a shining beacon of hope and democracy; however, it simply has never been that beacon for all of its people at once, especially not for those persons of color that live within its borders.  The blindness to this false dichotomy of treatment now has our nation in uproar and tumult. The "justice" system clearly does not treat people of color the same as Caucasians.  The police do not treat people of color the same as Caucasians.  People of color deserve to be treated with the same dignity, respect and acceptance!  The American promise of equality, equal protection and pursuit of happiness needs to be examined, upheld and kept...  The problem is, we all have to take a good hard look at ourselves, our neighbors, and our society. That's hard work, but it's something we are all capable of, if we take ego and political ideology out of it.  We just need to be people, trying to move forward as a nation.

I find that many of my fellow white people find it difficult to hear "White Privilege" and misunderstand the anger and frustration behind Black Lives Matter and protests.  This bothers me more than I can say. Look, if the biggest issue is property destruction for you, I get that. No one likes it; it's not cool; I do not advocate it on my blog.  However, the protests, the outcry,  and the concerns felt by many Americans are about much more than making someone feel uncomfortable about talking about any privilege.  I get that there are poor White People who say - "What the heck, I had nothing -- Where's my privilege?" There are middle class and well-off white people saying - "Hey, I worked for my things - Where's my privilege?" 

The privilege I am talking about is not monetary or material -- it is an intangible you never had to think about at any time.  When you go to work and most people look like you because you are white (yes, there are exceptions), you experience a sense of belonging and do not have to adjust yourself to fit a mold made by the majority. When you went out to ride on your bike or drove your car, your mom or dad didn't need to be concerned about you getting stopped by the police.  This is not true for people of color.  

This doesn't mean that moms and dads of people of color think their kids are going to do something bad -- no, it means they know what their kids are up against when they go out into the world.  A person of color cannot hide the color of their skin - it's always there, open and notorious for the world to see.  While there are, as you will be saying to yourself (if you are denying your white privilege or feeling uncomfortable), plenty of good cops, there are plenty of cops who -- good or bad -- are either purposefully rascist or who have fallen victim to the structural racism inherent in our system.  We live in a world where there are so many shades of gray, but people have dug into seeing only black and white. Ironically, that is our biggest problem.

 Change does not come without pain. Change does not come without cost. Change is hard work, and we can do it together.

*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.

Thursday, May 7, 2020

Bridget jones all by myself tom cruise GIF on GIFER - by Mirazius"All By Myself"

The Covid-19 situation has everyone living in  different way. Indiana's Counties are living some version of Governor Holcomb's Phase-In plan, and your county may be opening up certain business sectors sooner rather than later.  What do we know?  We know people are not in the mood to be  all by themselves anymore!  Yes, we've been on lockdown since March 20, 2020. Yes, many people have observed this pretty strictly. Yes, many have not. Regardless, your life has not been the same as it was prior to March 20, 2020.  What do you need to know?

The governor of Indiana has ordered a phased-in approach to re-opening business sectors in Indiana. Counties and towns have their own statutory authority to deviate from the governor's authority.  You must review your county's webpage to determine if there are new rules that apply in your county.  Generally, it's recommended that you wear masks in public places to protect others.  If a business requires you to wear a mask, do so, or do not go to that business. To fail to follow the rules places others at risk, which has been made known by the governor, the CDC, and the person asking you to put the mask on in the public place.  If you refuse to do so, you could be guilty of a battery, i.e. knowingly touching someone in a rude or angry manner and/or rudely or angrily placing bodily fluids on another. As has been indicated, when one talks, breathes, sneezes or coughs, "droplets" get into the air that are microscopic and can infect others with Covid-19, whether you are symptomatic and know you have it, or not.  Thus, let's all just put a mask on our faces to protect others. You'd want the same done for you, right?

Many courts are closed for all cases except those which are emergencies, like child welfare cases or criminal cases that require bond. This does not mean that everyone gets a free pass with police officers. Courts are holding hearings via videoconference to keep up with both criminal and child welfare cases.  Thus, you could be facing a judge during this time of crisis over video from jail and /or your home.  It's important to both know your rights and observe what is actually required to avoid contact with the legal system. Of course, when in doubt, feel free to call an attorney who can fill you in on the details!

In an effort to stop having to be all by ourselves, let's behave accordingly and hopefully show this virus who's the boss!

*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.

Thursday, July 25, 2019

"Rock and a Hard Place"- Due Process and Universities  

The Stones knew what they were talking about in this gem of a song. Students accused of crimes or university infractions are in a delicate situation, or between a rock and a hard place, when it comes to the due process rights they are allegedly provided by universities. While the universities, such as Indiana University, Purdue University, or other major universities are required to provide Due Process, do they really? 

When a student can be kicked out of school with hearsay evidence, without the ability to confront witnesses against him/her, without a representative to ask questions on his//her behalf, due process appears to have been thrown under the proverbial bus.  Students are thrown into a quickly thrown together university proceeding without care for their potential criminal case ramifications. They are not allowed to question the authority of hearsay documents provided in the university proceedings and often not provided names of the parties accusing them of whatever misdeeds the university spokespeople indicate.

The Title IX sexual misconduct cases are particularly heinous, in that one accusation, with little back-up causes a person to be expelled and listed a predator without much in the way of evidence or confrontation. The university systems have gone from a failure to protect sexual violence victims to allowing the rights of many to be violated.

All in all, when faced with any sort of University Charges, speaking to an attorney who works on those types of cases is often a good idea. It is important to ensure your rights are preserved and that you are not compromising any co-ocurring criminal case.  Universities generally indicate they want these proceedings to be a learning experience; however, they have huge implications in the future of a student's education and life. Don't get your self stuck between a rock and a hard place. Work for your due process rights and ensure you are provided the rights you deserve as a human.  It's hard often hard to know what rights you ought to have, especially when your learning institution should be a trustworthy source of information...

*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.

Monday, November 5, 2018

How Will I Know? Get a Pre-Nup...

One of the late, great Whitney Houston's first hits leads to a very good question clients often have pre-marriage... How will you know if he/she really loves you?  How long will that love last? Before marriage, should you consider a pre-nuptial agreement, when everything is good between you, to protect you both agree you both in the event of a divorce?

It depends on your situation. If you both agree and decide together that a pre-nup is in the cards, an attorney can help you out on this. Several reasons exist for a pre-nup, not just a lack of trust.  You can still "fall in love whenever you meet," and have trust and a strong relationship, but you can also agree to go into the relationship with open eyes and honesty.

Pre-nups allow couples to keep the items they bring into the marriage separate in case of a divorce. They also allow couples to make determinations, when things are good and happy, about what property division may look like if things aren't so good and happy in case of a split. 

Additionally, pre-nups are useful to allow people to keep things like family heirlooms clearly separate that otherwise, in the State of Indiana, would be presumed to be a part of the marital estate in a divorce case. While there is a presumption that can be rebutted as to family heirlooms and inheritances, clear language in a pre-nup allows couples to have less to fight about when they may be at their worst, emotionally exhausted going through a divorce.

Pre-nups are also helpful to allow couples to be clear about intentions regarding pre-marital assets, estate planning, and taxation.  If you want to keep things separate for kids of a prior marriage or keep a business interest separate or your assets in a trust separate, a pre-nup can do that without the messiness that could later occur if divorce rears its ugly head.  Pre-nups don't plan for divorce; rather, pre-nups help in the event a divorce happens.

*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.

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.