Wednesday, September 18, 2013

WALK THIS WAY! Defense Verdict in Pedestrian vs. Van Accident

Personal Injury
Clarence Crowe, my happy and vindicated Client
69 years young, Clarence Crowe and I sit on a bench (right) waiting for his family members to pick him up at the Clinton County Courthouse after a victorious day.  Almost three years ago, on November 12, 2010, at the Marathon Station in Mulberry, Indiana, Clarence purchased a fountain Coke to take home. He was driving a 2008 Dodge minivan.  As he left the station, Edgar Baker, another gas station patron, was walking through the parking lot, directly into the path of Clarence's van.  Oddly enough, Mr. Baker was also going to the gas station to get a fountain Coke to take home to his wife and proceeded to walk diagonally, right through the parking lot of the gas station.  As Clarence backed up, after looking in both side-view mirrors, his rear-view, the back-up camera, and over his shoulder, Baker walked right into the path of Clarence's van as he backed-up. Clarence, admittedly never saw Baker, and Baker hit the back of Clarence's van, causing injury to Baker's left knee.

Personal Injury
Satellite view of Marathon in Mulberry, IN
Baker testified he was always vigilant, while walking through the parking lot of the gas station, looking around and talking or waving to those he knew. He also indicated he would never, not even for a second, look down.  However, he never saw Clarence's van until it was too late to move out of the way.  Further, an independent witness, a 15-year-old kid (12 at the time of the accident) testified he was across the street and saw Baker looking down while he hit the back of Clarence's van.  The kid had done a few odd jobs for Clarence but had no personal ties to him. 

Despite heavy exhorting by Mr. Rivera, of Ken Nunn Law, to the jury, to "do the right thing" and to send Clarence a message that he was "wrong"; the down to earth, common sense-based, Clinton County jurors saw through the charade and listened to the cold hard facts,  interpreting them in conjunction with the law in Indiana.  The law does not say, when you are a pedestrian, you get to walk wherever you want or do whatever you want and not pay attention. Rather, a pedestrian has a duty of care. That duty of care is the same as that of a driver, to act with reasonable care.  While Clarence and I expressed our sympathy for Mr. Baker's left knee injury, we maintained that Baker had the majority of fault in this accident.  The jury agreed, assigning 75% fault to Baker.  Baker made no recovery, and Clarence was able to go home and get a good night's sleep with no more concerns of a verdict hanging over his head.




Wednesday, August 28, 2013

Backwards Again, In Indiana....

Well, folks, I have to make some comments about being back home again, in Indiana.  Yep, I'm glad to be home, closer to family and lifelong friends, but I'm absolutely confused and disappointed in ye ole home state.  Yes, this is a law blog, but you have stepped right into massive opinion station on this post.

If you're a loyal blog reader, A. I appreciate you, and B. you'll recognize the topic.  If you're not, you will either promptly delete me from your life, or you will decide I may not be half bad to read. I'm not really concerned with mediocre feelings and don't tend to evoke them.

In my previous post, on June 26, 2013, regarding the United States Supreme Court chiseling away at DOMA, a/k/a the Defense of Marriage Act, I mentioned several possibilities about our nation's potential move toward equality for same-sex marriages, as well as the interplay of the Full Faith and Credit Clause with DOMA's evil section 2, which allows State's to continue to discriminate against same-sex marriages, despite the Feds finally getting a small, but forceful clue on the situation.

Meanwhile, back at the ranch, farm or cornfield, otherwise known as the Indiana House of Representatives, and Senate, HR-6, a/k/a House Resolution 6, purports to change the Indiana Constitution Article 1 by adding a Section 38, declaring as follows:



     Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a         
     marriage in Indiana. A legal status identical or substantially similar to that of marriage for 
     unmarried individuals shall not be valid or recognized.

To be clear, I have nothing against ranches, farms or cornfields, as I've lived near them all of my life and believe they are vital to the economy, our ability to feed the masses, etc.  However, I do have something against government and the general public having so much to say about what occurs in the bedrooms, living rooms and kitchens of the aforementioned ranches and farms with cornfields, livestock, etc.  The problem I have is:  WHY DO WE CARE SO MUCH?  

Domestic and family violence is a horrific plague upon homes in all socioeconomic classes. As a former prosecutor, I attest to the inadequate resources that exist for law enforcement to adequately handle these cases, and the inadequate community resources that exist to aid in prevention.  However, there is no publicized and radical legislation to increase penalties for repeat offenders.  There is no legislation affording funds to provide for training of prosecutors, law enforcement, and counselors to deal with these types of crimes and their aftermath.  Yet, we have a constitutional amendment proposed, to place in the Indiana Constitution, an amendment indicating two persons of the same-sex may not be married in Indiana, and any previously obtained marriage, valid in another state, may not be recognized.  Indiana already has (unfortunately) laws, invalidating and disallowing same-sex marrage.  For a review of these antiquated laws, click on the following Indiana Code Sections: 31-11-1-1, 31-11-4-2, and 31-11-11-7.
 
So, it's interesting in times of economic strife, health care strife, arguments and all around buzz, and state budgets dwindling, that some groups in Indiana decide to attempt to un-Constitutionalize same-sex marriage, you know, the type of marriage that was already illegal.  It's also interesting that two people's relationship, if they happen to be of the same sex, takes up so much congressional time, both in Indiana, and federally. Frankly, I should think we have actual issues to deal with in our less than perfect world.   Why the consistent begrudging of people's happiness?  

I know my questions have been asked before, and I'm may not be bringing anything all that new to the table. But, I had some outrage, and I felt like sharing.   I appreciate your time.

Food for Thought:

*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, August 6, 2013

The Dog's were Let Out, and the Cat's out of the Bag -- What can ya do? (aka Who Let the Dogs Out Part Two)

attorney, central indianaEarlier, in a blog post on July 16, 2013,  I discussed when dogs could be used in searches in criminal cases.  Now, we need to discuss what happens when a dog "alerts" on your person, your car, or in your home.  The alert of a dog may let the cat out of the bag in your case.

All amusing animal references aside, if the officers have validly stopped you, or come onto your property, and validly use a canine sniff during the stop or visit, the next consideration in your case would be whether the canine used actually made a valid alert.  There are several things you will want to discuss with your attorney, and you want to ensure the attorney you choose asks you about those things.

First, through the process of discovery, your attorney should obtain records regarding the canine's training, experience, and false alerts.  Without this information, neither you, nor your attorney may properly evaluate the accuracy and ability of the canine who performed the sniff search in your case. Most attorneys do not push for this information, as it's kind of a pain in the butt to get from the prosecutor. However, the information is out there, and you are entitled to it!  If the officer's canine allegedly "alerts" on your vehicle and smells "pot", your attorney better know if the canine always alerts accurately to the presence of pot, never alerts to the presence of pot, or falsely alerts to the presence of pot.

Second, you and your attorney need to learn, in the discovery process, what the dog's "alert" is, and when the dog alerts versus when said alert may be prompted or something else entirely. Training records of the dog are absolutely integral to this analysis. Your attorney needs to know how the dog is positively reinforced, and how the dog is to be handled when sniffing for the drugs in question.  This will allow your attorney to question the officer's actions, effectively, when the officer discusses the dog sniff in the case.  Whether the officer was either purposefully or inadvertently breaking protocol, knowledge; of any tells or hints an officer provides to his canine, or breaches in search protocol the officer uses with the canine; is a powerful cross-examination tool that allows juries to see just how fallible the canines and their humans are, possibly providing you with relief from the legal system.

Third, you should work with your attorney to determine the best use of the information obtained, whether it be through pretrial motion practice, impeachment of the officer at trial, or in negotiation of a plea. 

*Nothing written or stated in this blog is meant to be legal advice forming an attorney/client relationship.  The statements are the opinion of the blogger only.

Monday, July 22, 2013

Hoosier Daddy? Paternity - Your Rights vs. Your Responsibilities

How do you ensure you are a part of your child's life?  Can you lose rights to your child if you do nothing?  These are very important questions for Hoosier men.  The answers are complicated but will be addressed in a somewhat general fashion in this blog post.

Father's Rights, Birth CertificateIf you sign a paternity affidavit at the hospital, you will be placed on your child's birth certificate.  This documents that you have admitted paternity.  It provides you with some measure of assurance that you will be able to be a part of your child's life.  It does not, however, ensure that you may have parenting time (visitation) at certain times if you and the child's mother do not see eye to eye in the future. It also does not institute any formal child support obligation upon you.  You will have no actual custody or parenting time rights to your child solely because you have signed the affidavit and have been listed as the father on the birth certificate.

In order to cement your role and establish parenting time, attempt to obtain custody, and establish child support, you must file in court to establish paternity, parenting time, child support and custody. In a paternity action, the mother will be presumed to have sole custody of the child, and you may have limited parenting time, to begin with, depending on the age of the child and your prior interaction with the child.  However, you may argue for joint custody, or sole custody, should either apply in your situation.  Joint custody provides you with more say in your child's upbringing regarding things like school, religion, and medical decisions. Various factors would go into a determination about whether or not a judge will grant you joint or sole custody.  You should seek an attorney knowledgeable in family law with the ability to assist you in analyzing your situation and bringing forth facts and evidence to show why you obtaining joint or sole custody would be in the best interests of your child, the standard the judge must use.

In order to establish custody and parenting time, child support must also be established, resulting in an obligation upon you to pay the child's mother support for certain needs of the child, or vice versa.  There is a child support calculator located at IN.GOV, which would allow you to run some numbers to determine what child support may be, if you know the mother's weekly gross salary, yours, and any daycare expenses and insurance expenses for the child.

With regard to paternity, if you don't use it, you may lose it.  If you were not around at birth, or the baby's mother did not tell you about the baby, and/or you didn't sign the paternity affidavit, if you do nothing within the first two years of the child's life, by law, you lose the right to assert paternity.  If  the baby's mother later agrees to allow you to proceed in a paternity action, you would be able to pursue paternity subsequent to the two years passing, but only with her agreement.  If you signed the paternity affidavit and are on the birth certificate, you may establish custody, child support and parenting time at anytime during the child's life as a minor, as the paternity affidavit tolls the two year right to assert paternity.

Further, if the baby's mother intends to give the baby up for adoption, and you've done nothing to assert paternity, including putting your name in the Indiana Putative Father Registry, you lose the right to challenge the adoption.  Thus, you need to take affirmative action, close in time to the baby's birth, should you desire to be a part of the child's life. 

Being a father is important, as everyone needs their daddy...  Don't wait until it's too late to understand your rights and responsibilities.  To establish full rights to your child, you must be ready to take on the added responsibilities of child support, when applicable.  In order to fully understand and obtain the best situation for you and your child, contact an attorney who talks straight, listens to you, learns who you are, and applies that information in court to fight for you and your child's future or continued relationship!

*Nothing written or stated in this blog is meant to be legal advice forming an attorney/client relationship.  The statements are the opinion of the blogger only.

Wednesday, July 17, 2013

Same Sex Marriages in Indiana: The Indiana Lawyer

Dissolution of same-sex marriages a legal puzzle for lawyers, judges | The Indiana Lawyer

This article in the Indiana Lawyer refers to my DOMA post from June 26, 2013.  Check the article out, and feel free to check out my blog site, which contains legal information on various topics. I am very happy to be mentioned in the Indiana Lawyer.

Legal Talk: Straight Up -- A Kokomo Lawyer's Blog: I Fought the Law and the Law Won...

Legal Talk: Straight Up -- A Kokomo Lawyer's Blog: I Fought the Law and the Law Won...:   Have you or a loved one already been convicted?   Do you believe the conviction was wrongful, but you are unsure what you can do?  An at...

Tuesday, July 16, 2013

Who Let the Dogs Out? Part One


constitutional rights, central indiana, criminal caseI recently read an article on Facebook about a kid in Tennessee pulled over at a DUI checkpoint. The kid left his phone on video during the stop, and he politely, but firmly, refused to roll his window down any further than a few inches, and things degenerated from there. He was not asked if he had been drinking, and the officer, in his brash and loud voice, never commented that the kid smelled like alcohol, acted drunk, or had any contraband. In fact, the officer proceeded to force the kid from his vehicle, never tested him for alcohol, let his police dog scratch all over the vehicle (wherever the cop put his hand, which caused improper alerts by a canine trained for sweeps), and then searched his vehicle claiming the dog "alerted", all while another officer is saying something about the kid knowing his rights and being innocent...  The officers, according to the story, found nothing.  See the following link for more details from:  Huffington Post Crime.

This newsworthy article, brings up two very valid questions: when may the cops use dogs in order to search you, your vehicle, or your home?  And, when do the dogs actions warrant that more invasive search?  These are both good questions. Searches with dogs are a very tricky constitutional proposition.  This blog post will focus on the first question, when may the dogs be let out ... that is the initial question! 

The police frequently use their canine sidekicks to obtain a more invasive view into your personal space.  However, as you know, you have a Constitutional right, pursuant to the Fourth Amendment, to be free from unreasonable searches and seizures.  So, is using the superior olfactory senses of a canine unreasonable?  Essentially, the answer is, it depends!

Indiana Courts have determined a canine (sniff) sweep is not a search under the Fourth Amendment and its Indiana counterpart. If you have been lawfully detained, and the cops do a canine sweep prior to your lawful detention ending, the courts will say that the canine sweep is fine and not a "search".

However, if your lawful detention has ended, an officer must have something called "reasonable suspicion of criminal activity" in order to subject you to a canine sweep.   For instance, at a traffic stop, an officer must have a reason to lawfully detain you, like speeding, driving left of center or failure to yield, among other things.  If the officer has a canine sweep (sniff) your vehicle while he's got you stopped for the offense, the canine sweep will not be considered a search. However, if the officer had completed your stop, received your information from dispatch, given you a ticket, and then decided to do a dog sweep, the dog's sniff of your vehicle, even if it resulted in a finding of pot or other drugs, will likely result in suppressible evidence, perhaps allowing you to avoid a conviction for the possession of said drug(s).

If the cops have "let the dogs out" on you, you need to have an attorney who knows the law accompanying searches and seizures, as well as the law regarding canine sweeps, in order to determine if procedure was correctly followed.  You will also need to carefully describe to your attorney all circumstances you remember about the stop or detention, as the next step in the analysis may be whether an officer had reasonable suspicion that criminal activity was afoot, and whether the particular canine in question was qualified/trained to do said sweep, actually alerted, and was properly handled at the scene.  These are other areas of the law that are highly subject to interpretation and should be scrutinized in each canine search case, in an effort to ensure your rights are preserved.

*Nothing written or stated in this blog is meant to be legal advice forming an attorney/client relationship.  The statements are the opinion of the blogger only.


 

Wednesday, June 26, 2013

DOMA - DID THE SUPREME COURT REALLY CALL B.S.?

central indiana attorney at law, kokomo-lawyer
We have entered a new world. 

This is a world wherein acknowledgement of institutional discrimination against legally married same-sex couples has been made and partially OVERTURNED...

Ironically, a case about estate taxes brought the Feds to their knees in a Supreme Court Decision that will change the landscape of the United States as we know it.  In United States v. Windsor, 570 U.S. ___ (2013), Ms. Windsor, who was legally married to her partner, Ms. Spyer, had to pay significantly more in estate taxes than other heterosexual couples who were married, as Ms. Windsor was not considered a "surviving spouse" and could not take advantage of the marital exemption to the federal estate tax. Ms. Windsor paid the exorbitant estate taxes and then brought suit to challenge the constitutionality of Section Three of DOMA (otherwise known as the Defense of Marriage Act) that excludes a same-sex partner from the definition of spouse and to recover her overpayment to the IRS of over $300,000.00 in estate taxes.

Generally, the laws regarding marriage and domestic relations are reserved to the states and are part of the states' sovereign powers. However, in 1996, when States began thinking about ratifying same-sex marriages, the DOMA was passed, which excluded, federally, same-sex partners from the protections, responsibilities, and benefits of marriage.  In fact, DOMA applies, as the Supreme Court pointed out, " to a class of persons that the laws of New York, and of 11 other States, have sought to protect."  Laws applying to a class of persons, when that class is based upon gender, race, ethnicity, or religion, trigger equal protection problems.

Blog, attorney at law, civil rightsIn a landmark decision, handed down today, the Supreme Court called B.S. on DOMA's Section
Three, based upon provisions of the 5th Amendment to the United States Constitution, providing the Right to Equal Protection under the law.  In fact, the Court stated,

 

 "The avowed purpose and practical effect of the law [DOMA] here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States ... The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law... DOMA writes inequality into the entire United States Code...  By this dynamic, DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.  This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify."


Clearly, the majority on the Supreme Court has had enough of Section Three of DOMA.  The majority astutely determined that calling out a class of persons, herein same-sex marital partners, was discrimination, plain and simple.  Not only was it discrimination, but it was also federalized discrimination, which is unconstitutional and insupportable.

While the Supreme Court ruled DOMA unconstitutional, the majority's opinion was very pointedly about Section Three of DOMA. Thus, until challenges are made and more information is discovered, it is unclear whether the entire act was declared unconstitutional, or just Section Three of DOMA,  to which the majority referred repeatedly.

The sleeper in DOMA, Section Two, allows States to refuse to recognize same-sex marriages that were performed under the laws of other States.  This also appears, to this attorney and blogger, to have the same problems as Section Three, hereinabove-mentioned.  Furthermore, Section Two would also appear to be in conflict with the Full Faith and Credit Clause otherwise in play between States regarding recognition of laws, etc.

The fall-out from this landmark decision will be far and wide and will have people guessing for quite sometime. The bottom line is, if you or your friends/family are in a same-sex marriage and seek to ascertain your rights with regard to divorce, custody, support, taxes, estate taxes, etc., you should see an attorney who is aware of these issues and can assist you in navigating these uncharted but wonderful waters.

*Nothing written or stated in this blog is meant to be legal advice forming an attorney/client relationship.  The statements are the opinion of the blogger only.