Wednesday, May 29, 2013

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 attorney may be able to assist you in reviewing your case.  You may appeal the conviction within a certain time, and you may also file for post-conviction relief, under certain circumstances. There are other avenues for review, including writs of habeas corpus, which are beyond the scope of this blog post.

In an appeal, an attorney may bring up certain errors in your trial that bear upon your constitutional rights.  The attorney reviewing your case should review the trial transcript and the discovery your attorney had prior to the trial, in addition to all objections and claims of error your trial attorney made on your behalf at trial.  Further, the appellate attorney should review the trial transcript and case handling for plain error.  The appellate process begins with the Indiana Court of Appeals, in state cases, and may proceed to the United States Supreme Court in rare cases.

If you have already appealed, or are outside of the time limits for appeal, you may be eligible to file a motion for post-conviction relief.  Post-conviction relief is a form of relief wherein a convicted person may challenge his or her conviction, generally, based upon Constitutional or Jurisdictional problems with the conviction; allegations the sentence levied exceeds that constitutionally allowable, is subject to attack, or has expired; or that there is new, material evidence, that was not available at the time of trial.  Post-conviction motions are also used to request DNA testing in cases where DNA evidence existed but was unable to be tested, or was not tested, at the time of trial.

One very specific ground found in many post-conviction relief motions is ineffective assistance of counsel.  This ground is based upon Article 1 Section 13 of the Indiana Constitution and the Sixth Amendment of the U.S. Constitution, guaranteeing the right to counsel in criminal proceedings.  The  standard for ineffective assistance is extremely hard to prove and requires, pursuant to a test developed in a United States Supreme Court case, Strickland v. Washington, that the attorney acted deficiently, and that said deficiency led to error.  The burden rests with the person who was convicted to show both that his counsel did not meet reasonable professional standards,  and that there is a reasonable probability that a different outcome would have resulted, had his attorney met said professional standards.  Thus, the bottom line is; it is an uphill battle to prove ineffective assistance of counsel.  However, with the right attorney, you will receive a comprehensive review of your case and forthright advice regarding what can and cannot be done, realistically, on your behalf.

Another ground frequently referred to in post-conviction cases is that of newly discovered evidence.  The ground for new evidence is rooted in the rights to Notice and Due Process pursuant to Article 1 Section 13 of the Indiana Constitution and the Fourteenth Amendment of the U.S. Constitution.   The standard for new evidence is not self explanatory.  Just because you discover something, after trial, that you did not know before, does not make it newly discovered evidence, pursuant to the standard in post-conviction relief actions. Rather, a person asserting the same must show the evidence is newly discovered and material.  The evidence must also raise a strong presumption that it would probably change the result of the trial.  Additionally, you must show the evidence could not or would not have been discovered before trial if you exercised due diligence.

I've provided an overview of some remedies you may have if you, or a loved one, fought the law, and the law won.  I then provided the harsh truth about the intricate proof problems associated with those remedies. Now, it's time for you to explore your options and contact an experienced criminal defense attorney to review your case and assist you in determining what, if any remedy you may have.  Whether you're reading this for yourself, a family member, or friend, ensure you find an attorney who will talk straight, give you the information you need, and be blunt with you regarding the available  remedies. 

*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.

Thursday, May 23, 2013

Crime and Punishment: Read and obtain the full Discovery, not the Cliff's Notes Version!

When you are charged with a criminal offense,  I bet you hope and assume the prosecution has reviewed the case thoroughly, considered the effect wrongful accusations would have on both your life, and the victim's, and ensures its officers and agencies have conducted a thorough investigation.  Well, don't count on it.  That is why you will need an experienced attorney who is not afraid to point out deficiencies in the State's case and discovery process.  You have to find someone to crack the book all the way open, not the attorney who will look to the Cliff's Notes!

Discovery is a broad term for the State's evidence in the case. The State (embodied in the prosecutor in your case) has a duty to provide Defendants with any and all relevant evidence in the case, including but not limited to, all evidence regarding witnesses' statements, criminal histories, investigative notes, reports, testing completed, and any and all exculpatory evidence.  Exculpatory evidence is the fancy way to say any evidence that may be helpful to the person charged. 

The State's duty does not end with what an officer gives the prosecutor.  The State, in most instances, is charged with providing all evidence within their possession and control.  Frequently, in some counties, the State is not very good at rooting out all of the discovery it should have; thus, many Defendants do not receive full and fair disclosure of discovery without someone to fight on their behalf. 

Sometimes, defense attorneys do not get all of the discovery for their clients due to lack of knowledge about the type crime, or the law regarding discovery.  Sometimes, defense attorneys just give in and take the easy way out in order to pacify the prosecution for "all the other cases" they have together, at your expense...  This is why it's very important to find an attorney who will fight for you, asserting your rights in the face of great odds.

All too often, people are over-charged or charged wrongfully because over-worked, and often underpaid, state employees rush to judgment and may be too overburdened or "under-caring" to fix their rush to judgment after it has been made.  The problem with this is, there is no excuse for sloppy work when charging someone with a crime.  The charge may follow a person for life, regardless of the outcome, and fighting the charges may cost you, whether you have to obtain private counsel or a public defender.  The emotional charge, alone, of being wrongfully accused, or overcharged for your transgressions, far outweighs any monetary debt.

I've been a prosecutor and public defender, in the past. They are both wonderful, rewarding jobs and allowed me to give back to my community.  However, in both capacities, I can honestly say I was overworked, underpaid, and highly overburdened.  However, that, to me, was never an excuse to slight someone when their liberty was at stake.  We all make mistakes, and we all will learn or earn our lumps for them. However, the mistakes we make should be the ones we pay for...we should not pay for the mistakes of others.  That's why you have to get a lawyer who knows to read the whole book -- not the Cliff's Notes Version.  Cliff's notes give you the main idea, but the devil is always in the details, especially in the courtroom...

*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, May 20, 2013

We Are Family: Part One, Living Wills and Powers of Attorney

After attending a family reunion this past weekend, I realized there are things many of you need to think about as you and/or your family live through the challenges of today and continue to change and age. Chiefly, you need to determine your wishes regarding how you will be treated medically, your wishes regarding care of your minor children, as well as your desires regarding the disposition of your property.  In this three part series, I will discuss living wills and powers of attorney, options for the care of your children in the event of a catastrophe or death, and finally, wills.  First things first, let's discuss living wills and powers of attorney. 

Sure, it's a lot easier to avoid these topics when things are going well. However, when things are going well, you are able to express your wishes and let your loved ones know how you want things handled.  An attorney can assist you in safeguarding your loved ones from headaches if something were to happen. 

You should consider having an attorney draft a living will and/or a durable healthcare power of attorney for you.  In a living will, you may designate a person to make decisions on your behalf, medically, should you no longer be able to do so.  You may also determine what measures you will allow to prolong life in the face of a terminal illness or an emergency medical situation.  The living will or healthcare power of attorney would provide your family clarity and information regarding your wishes and beliefs related to medical care. It would also allow a designated person or  persons to make medical decisions on your behalf when those decisions are necessary.  This would provide clarity to both your family members and your medical providers, in addition to assisting you in attaining the best healthcare in a timely manner, should you be incapable of consenting to certain necessary procedures.  There would be no question as to whom the doctors or other treatment providers could turn if decisions were needed, as you would have already designated an appropriate person.  No court or other body would decide who had this power in your life. You, with careful and strategic planning, would make these decisions before the emergencies happened.

An attorney may also draft a power of attorney allowing a personal representative, of your choosing, to handle finances and other aspects of daily life, short of medical decision-making.  It is a good idea to have a power of attorney designated in case you become incapacitated.  If your mental faculties or health decline, and you have an appointed personal representative with power of attorney to deal with your day to day decisions, your bills would be paid; your care would be seen to, and you would have made the decision about whom to designate with these powers when things were going well for you; rather than have a court or someone else determine who shall make the decisions.

As I visited with family from all over the country at the family reunion, I realized, while not fun, it is sometimes good to think about how you want to deal with things when life is not optimal.  I have spent some time discussing these issues with family members, as it is important for all of us to be prepared in the event something were to happen.  I'd take the bull by the horns and get in to see an attorney before the emergencies of life happen.  Planning can both allow your wishes to be followed, and allow your family to have clarity and understanding about how to proceed should you not be able to do things on your own.

Stay tuned for the rest of the "We are Family," series.

*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.


Tuesday, May 14, 2013

Got DNA?


DNA-OFTEN MISUNDERSTOOD EVIDENCE

NCIS, CSI, Law and Order Special Victims Unit, and other investigative criminal law shows exaggerate and magnify DNA evidence. DNA evidence is not the lock and key, smoking gun evidence that these shows make it out to be. Rather, DNA, in some cases, is really nothing other than another piece of evidence that may not actually be very probative.  A good criminal defense attorney, with experience in cases involving DNA evidence, will assist you in determining what the DNA evidence in your case means for you.

In a sexual assault case, for instance, DNA found at the "scene of the crime" may be a smoking gun, or it may be meaningless in the case analysis.  You must have an attorney who knows the difference.  If Harry and Sally are roommates, and Sally says Harry sexually assaulted her, Harry's DNA evidence in Sally's bedroom does not necessarily provide the State a "smoking gun."  Harry's DNA may not be a foreign substance in Sally's bedroom.  Harry could have legitimate reasons to be in Sally's bedroom.  Harry could have been in her room to obtain items for her; he could have done laundry for her and/or a DNA transfer could have occurred by touch, via skin cells sloughing off, by sneezing, by scratching himself on a dresser and causing his leg or arm to bleed, by fabric to fabric transfer, or by shedding skin cells due to a very bad sun burn, among other things.  The presence of DNA, in these instances, would not necessarily prove anything other than the fact that Harry lived in the same home as Sally and had been in or around her bedroom. 

LOCATION, LOCATION, LOCATION

CRIMINAL DEFENSE AND DNA CASES
DNA, Your Genetic Code




DNA evidence would be more probative, and worrisome, should Harry's DNA evidence be found on or in intimate portions of Sally's body, in her underthings, or in her bed sheets.  Surface areas in Sally's bedroom, like the bedspread, a blanket on top of the bed, carpeting, or other parts of the room would not really prove anything other than that Harry was in Sally's room, or that Harry had contact with something that was in Sally's room sufficient to cause a DNA transfer. 

The only way the DNA evidence would be more akin to the  "smoking gun" it is made out to be on television,  would be, barring issues with the lab conducting testing or police procedure,  if Harry's DNA, specifically semen, was found in Sally's body in a case wherein Harry adamantly denied having sexual relations with Sally.  Even under these circumstances, Harry may have denied sexual relations falsely; the police may have inaccurately recorded his statement, and/or there may be circumstances that arise through an investigation of the case that allow your lawyer to mitigate this type of DNA evidence.

The bottom line is, DNA evidence in a case does not equal a long slow guilty plea; although, all too often, clients are provided with this doomsday prophesy at the beginning of a case and offered no options.  So, if you "Got DNA,"  ensure your lawyer has training and experience in investigating and dealing with cases involving DNA evidence in order to counter DNA evidence with cold, hard facts.  Stay tuned for more DNA information, as there are many aspects of DNA usage in criminal cases that often make DNA a source of misinformation, rather than cold, hard evidence...

*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.

Thursday, May 9, 2013

You Gotta Fight for Your Rights--What do the Beastie Boys have to do with your Custodial Rights?

Are you a noncustodial parent who is being thwarted in your attempt at a relationship with your kid(s)?  You are not the only one, and the law may be more on your side than you realize.  I have had many fathers and mothers come into my office, at Noel Law, with just this problem.  I look them in the eye and quote those bastions of witty lyrics, the Beastie Boys, and explain, "You gotta fight for your right.." You catch my drift.

A noncustodial parent and/or father in a paternity action who desires a more active role, or any role at all in his/her child's life, has recourse in the law.  Will this be an easy road? No, as nothing that matters ever is; however, if you get the right attorney, she will work for you, evaluate your case honestly and fairly, and let you know what may and may not work for you.

In Indiana, unless a parent has given up rights to a child, a parent generally has rights to parenting time with the child.  A parent is also the presumptive placement, or the person with whom the child should be placed, for the child's best interests, in lieu of a non-parent, including grandparents and other blood relatives.  Thus, courts should, and mostly do, take interference with your parenting time rights seriously. 

There are several ways to bring issues related to parenting time to court.  An attorney, upon a consultation with you, would be able to tell you which is best suited to your individual case.  You may be in a position to do a motion to modify custody.  In order to do so, there would have to be a substantial change in circumstances.  This means you won't get very far in a modification action if you are just asking for modification because you are angry with the other parent or don't like how they make decisions.  A substantial change generally needs to be something major, like the child has needs that have changed and can be better met by you (not the child gets to do more if he/she is with you) or the other parent has lost a job and home and/or has ceased adequately caring for the child.  There are circumstances in between these extremes, but the extremes make the point -- the burden on modification is nothing to sneeze at, and modification should be requested only when legitimate.  An attorney may also advise you to file a Motion to Show Cause and Citation. This is an action allowing you to let the judge know the other parent is not complying with the Judge's rules.  This is a good way to get the issues that may not rise to the level of modification into court if the other parent will not be reasonable.  A Judge will want the other side to "show cause" why they are not following the judge's orders.

Court should be a last resort in child custody or paternity actions, as the best thing for the kids would be for parents to work things out amicably. However, that doesn't always happen.  When you do have a problem necessitating further action, don't give up and believe you have nowhere to turn or no recourse.  You have to FIGHT FOR YOUR RIGHTS.


*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.

Tuesday, May 7, 2013

Legal Talk: Straight Up -- A Kokomo Lawyer's Blog: Love Stinks -- The J. Geils Band had it Right. Di...

Legal Talk: Straight Up -- A Kokomo Lawyer's Blog: Love Stinks -- The J. Geils Band had it Right. Di...: Are you contemplating or going through a divorce?  Are there children involved?  You will need an attorney with experience, know how and the...

Love Stinks -- The J. Geils Band had it Right. Divorce and the aftermath........

Are you contemplating or going through a divorce?  Are there children involved?  You will need an attorney with experience, know how and the ability to both fight and achieve consensus.  A family break-up is an awful experience for everyone, and when children are involved, things can become dicey.  You need to separate property settlement issues from issues concerning what is best for the children.  You also need to ensure you have an attorney who is aware of local rules and practices, can maneuver and handle emotional situations in a calm and sympathetic manner while maintaining a firm hand in your favor.

Thus, if you are in Bloomington, Indiana, or the surrounding Southern or Central Indiana area, ensure you obtain the services of an experienced lawyer familiar with the area and the practice eccentricities therein.  This will both save you money (travel expenses cost you in fees), and afford you local credibility in court.

CUSTODY ISSUES -- When kids are involved, the Court will look to the best interests of the kid(s).  This is a very hard concept to understand, as often, Courts are looking at two parents who love their kid(s), who just don't love each other, or worse, can't stand each other by the time they get to court.  Generally, the courts will presume joint custody with primary physical custody with one parent, and the other parent to have, at a minimum, parenting time (formerly known as visitation) pursuant to the Indiana Parenting Time Guidelines, which may be found at http://www.in.gov/judiciary/rules/parenting/index.html.  The parenting times guidelines are a minimum guide and should be used when parties cannot agree to a different time schedule.


Courts will generally award primary custody to the primary caretaker of the child.  Historically, this was the wife.  As times have changed, this is no longer a given.  Fathers have rights and should not believe they will automatically be forced to concede on primary custody.  Similarly, professional and working mothers also have rights and should not be punished for their role in the market place.  Divorce is a process that affects every aspect of your life. Make sure you have an attorney who asks the right questions, obtains the necessary information, and will take your commitment to your children seriously.  To obtain a modification in custody, you will have to show a substantial change in circumstances.  If you do not achieve primary custody in your initial proceedings, a substantial and continuing change in circumstances is not easy to prove.  Filing for a custody modification based upon not liking the Judge's first ruling will get you nowhere...

PROPERTY DISPOSITION


In Indiana, the presumption in a property decree/settlement is that each party will obtain a 50/50 split of the marital pot.  The marital pot consists of all property, both real and personal, as well as all financial means and/or debt both parties have at the time of filing for divorce.  While there are certain items, like inheritances, property owned solely by the husband or wife prior to the marriage, and certain gifts which may be arguably removed from the marital pot, generally everything will be split 50/50.  Judges may deviate from this split  based upon parties earning capacity, a party's contribution in the home as opposed to obtaining education in furtherance of his or her career, and various other factors. Parties are free to enter into negotiated settlements wherein they agree to a settlement other than a 50/50 split for various reasons.

In order to make decisions on a property decree/settlement, your attorney should obtain comprehensive and detailed information about your spouses assets and liabilities, together with all property your spouse owns through the discovery process.  This includes all information regarding banking, retirement accounts, IRAs, stock portfolios, real estate investments, and any other discovered assets.  Further, your attorney should request detailed information, from you, regarding personal property items in the household. 

*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.

Sunday, May 5, 2013

OWI's -- Do you Need an Attorney?

You're driving down the road; it's two in the morning.  You just left work after pulling a 12 hour shift. Your eyes are blood shot; you are tired. You hit the wake-up strip (rumble strip for the technical folk) on your way home to Kokomo on the outskirts of Hamilton County.  You get stopped by a cop.  Are you getting stopped for an Operating While Intoxicated (OWI) --- probably!  Were you drinking -- Nope!

You will be asked to do field sobriety tests, likely right there on the side of the road. There may be a police light shining in your eyes, while the officer is attempting to do the eye test, otherwise known as HGN.  It's dark, but the officer will request you walk in a straight line, while following certain instructions.  The same flashing lights may or may not be on, and they may or may not illuminate the ground well enough to allow you to follow a straight line.  Will you pass the field sobriety tests under these circumstances -- maybe not...

If you take the breath test, will you pass it?  If you haven't been drinking, you should.  However, how old is the breathalyzer you are breathing into?  How many times has it been used that night? Do you have any medical issues, like diabetes? How many times do you have to breath into it in order to "provide an adequate sample?"

These are all problems real people, like you, have experienced.  That's why real people, like you, need to talk to an attorney who will talk straight.  You need to speak to an attorney who will evaluate your case, based on the facts, and provide an honest and fair evaluation.  Your attorney should provide you with a no nonsense assessment without sugar coating.  Mistakes happen, officers make them, we, as people, make them; however, you have the right to have an advocate on your side to ensure that other's mistakes do not affect your life permanently.

*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.