Tuesday, August 28, 2007

That Lawyer Dude's Favorite Answers to Lawguru.com Questions

As Promised in the last post, I am going to repost some of my favorite Q & A from questions posted at LawGuru.com. These will be my answers to these questions.

Feel free to send in your own questions to this blog by writing me at Catlaw1@yahoo.com. I will respond to everyone that I can. The best ones I will repost here. I reserve the right to clean up language and change some of the question to preserve the "dignity"(?) of this blog...

A. The Nasty Neighbor.
A homeowner writes:
Q: I have a neighbor that has been writing anonymous letters to us and other neighbors (Yes we know who it is) and this last letter that I rec'd was slanderous and disturbing. It made us aware that she has been keeping track of us. She has knowledge of personal things that she should know. It was very disturbing and upset my entire family. She made reference to making a former tenant from the one rental house on the block ''sorry'' for having accused her of saying that she has been writing these letters. She also said that my ex husband should have physically abused me. Sick stuff! Is there anything we can do to make this stop. P.S. She is obviously mentally ill, but we shouldn't have to keep the blinds shut during the day, Right?

I responded:
Correct. She is guilty of Aggravated Harassment. It is an A misdemeanor and can cause her to be incarcerated for up to 1 year. Get to the police. Each letter to each neighbor is a separate count. You can also bring a cease and desist order and seek orders of protection.

B. The Overprotective School District.
A Parent writes:
My child's public school in upstate NY is hosting an after-prom party at the school. One of the party stipulations, which parents & students are required to sign, states that students will not be allowed to leave unless picked up by a parent. I think this is fine, except in the case of those students who are 18 and legally adults. This includes my child. I have 2 questions: 1) since my child is 18, how can I legally authorize the school to keep my child there?, 2) how could the school legally prevent anyone 18 & over from leaving any time they desired?

A:Technically they cannot. I am told that Aerodynamically, a bumble bee should not be able to fly...except no one tells the bumblebee. I have a feeling that your local HS is working under the same theory.

C. The Absent Social Host.

A concerned Parent(?) writes:

If a parent is away on vacation and their child has underage kids drinking at their house, are they liable under the law?

My Answer:

I assume you are speaking of the new social host laws in Nassau county and in some of the cities therein.
By way of the Nassau law, it seems that there are facts that could result in a conviction for an absent parent in your scenario, the parent would in fact be liable if he knew or had reason to know that underage minors were drinking in his home.

It will be a tough case in some instances, but yes a district attorney could conceivably get a conviction if the minor giving out the alcohol had done it before, and if the liquor was readily available in the home etc. etc.

I do not know if the courts will find this law constitutional or not, although I would love to handle the test case.

Be advised.

Well not bad for a first time out. Let me know what you think of this as a feature. I look forward to hearing your responses.

Thank You Dennis Kennedy... And LawGuru.com

I have been very busy on the Internet, especially of late. I am in year three (3) of my Internet based Marketing Plan. I now market our firm's services through the Internet only. I use a Findlaw website, a blog (your reading it), and I answer questions posed on a few legal sites such as Findlaw's forums, Court TV forums, LinkedIn's Q & A andLawGuru.com. I find I like LawGuru.com the best (probably because of this thing they have called the Attorney Control Panel.)

I also like Lawguru and LinkedIn because nobody lights up after others. I hate flame wars.

Not only that, but I can attract 2 different, but important groups, through using both sites. Lawguru.com is a consumer site, LinkedIn a Business to Business site. Both reward good answers and recognize the free work I do in answering the questions of others. (Lawguru.com publishes a list of those that answer the most questions, LinkedIn allows questioners to extol the answers they like the most. I am uncomfortable with LinkedIn referring to the best answer as an "expert", but since I am not conferring this on myself, and have no power to stop it, and because the LinkedIn user is a sophisticated business user, I go along with it, though I am hoping they find another way to acknowledge good answers.)

Anyway, I have also been using Facebook.com because it is in my opinion one of the coolest sites. I keep up with a bunch of my favorite blawggers, my family members and co-workers. It is a lot better than MySpace in that it is less stalkable and requires a lot more maturity from its users. Again the demographic is good for my firm too. It hits college and High School students. These 4 groups (families, Businesses, College/HS students and the Tech savvy) are the main parts of my business (along with adult entertainment individuals and companies.)

The problem is that while I love blogging, it is not always the best way to attract my clientele(or at least most of it.)

Anyway, leave it to my friend Dennis Kennedy to spark an idea in my mind. We have been speaking about the future of blogging on a Facebook group Between Lawyers in a discussion entitled "Ask Between Lawyers for Blawg Advice." In the string, I spoke about my frustration with the lack of readership from blogging as opposed to answering queries on LinkedIn etc. Dennis noted that for non-business or Techie oriented law firms, blogging might not be the best answer for gaining business...

Then it hit me, I can do at least a column a week of my favorite Lawguru questions and answers. An extra Blog post, focused on my clientele, Dennis your brilliant Thank you Thank you Thank you!!!


Monday, August 20, 2007

The Week in Review

These stories got my attention this week:

1. Perverted Justice.

Ted Rall a Pulitzer Prize nominated editorialist and cartoonist, rails against the prosecution of "Mahmud Faruq Brent, a 30-year-old D.C. taxi driver, is about to spend the next 15 years behind bars for 'conspiring to support a terrorist organization'."

Seems Mahmud had the temerity to attend a terrorist training camp for a group that terrorizes the Pakistani Junta. Now while the Neo-cons in the White House want to promote democracy... they just don't want to do it in Pakistan, where the junta supports the US!! Rall says ok, ship him to Pakistan, let them deal with it. Nope, that might make him a martyr to the cause... lets pay to keep him in one of our jails...

Mahmud, never did anything. He just seemed to check it out. Nevertheless, this is something someone does before becoming a terrorist... I figure that most people who do this type of training become terrorists...Some don't. We are not supposed to incarcerate people for thinking bad thoughts. If we could, Karl Rove would already be in jail.

Another thing, HOW ABOUT SOME FREAKIN' HONESTY FROM THE WHITE HOUSE!!! We only want democracy where that democracy favors our interests...Hey that's ok boys, Our leaders are supposed to care about our interests.

Can't we just be Machiavellians? Let's just admit it, all this nation-building garbage is about our interests and nothing more. If all the dictatorships in the world would support the USA then we would support them?

The people of the world wouldn't like us any better, but at least they couldn't say we are a bunch of two faced liars...

2 Why Just Pick on Bush, The Democrats In Congress are Stupid Too.

Just when you thought Congress was beginning to understand the disaster we call the Patriot Act... the new democrat congress actually passed a bill giving the President more power to spy on us than he asked for (check out this NY TIMES story.)(BTW check out the photo that accompanies it. Tell me Bush, Cheney, Gonzales and the fourth guy don't look like the Four Horsemen of the Apocalypse.)

The legislation changing the FISA law, now allows the government, to demand the business records of "an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is outside of the country." NO WARRANT=NO OVERSIGHT. Thanks Congressmen, Senators. What were you guys thinking???

Here's your money quote:
"The dispute illustrates how lawmakers, in a frenetic, end-of-session scramble, passed legislation they may not have fully understood and may have given the administration more surveillance powers than it sought."

Ok, you're a Congressman or Senator, you have basically one job, pass laws. How the HELL do you pass laws you don't understand?????
GIVE US BACK YOUR SALARIES!!!! Evidentially any idiot can be elected to Congress.


This one hits close to home on so many points it is painful to write about.

According to the CATO INSTITUTE the DC Circuit Court of Appeals' ruling in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach That dying people had no right to experimental drugs until the FDA (Federal Drug Admin.) says they do.

Roger Pilon CATO's head guy, goes on to discuss how it is, that liberals and neo-cons actually came to the same conclusion on this, leaving libertarians in the learch.

His analysis of the Neo-con view of Constitutional law which derives heavily from the writings of Robert Bork, contains a fundamental misunderstanding of the writings of James Madison, Father of our Constitution.

Money quote:
Yet in Robert Bork's The Tempting of America, where conservatives often turn, we find an answer. Describing what he calls the "Madisonian dilemma," Judge Bork writes that America's "first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities. The second principle is that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule." (emphasis added)

That turns Madison on his head. James Madison stood for limited government, not wide-ranging democracy. His first principle was that in wide areas individuals are entitled to be free simply because they are born free. His second principle was that in some areas majorities are entitled to rule because we have authorized them to. That gets the order right: individual liberty first, self-government second, as a means for securing liberty.

Then there is this quote from Janice Roger's appellate dissent.
it is startling, she noted, that the rights "to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one's own body have all been deemed fundamental, but the right to try to save one's life is left out in the cold despite its textual anchor in the right to life." Because the rights at issue here are "fundamental," she concluded, the court must apply, in judicial parlance, "strict scrutiny." The burden is on the FDA to show why its interference is justified — to show that its regulatory interests are compelling and its means narrowly tailored to serve those interests.

I am telling you now FDA or No, If Someone I love or me, needs a med and the FDA won't agree to release it, I will have no problem crossing this line. If arrested my plea will be based on self defense. The Constitution guarantees me a right to life. It doesn't mention the approval of the FDA.

4. Morality in Media Wastes 300k of the Public's Tax Money Trying To Find Porn to Prosecute...After Two Years of Looking, They Found None.

Governments can't help but find boondoggles to pander to. In this case the whackadoo's at Morality in Media, (a good name wasted on a bad right wing neo-con group that hates the First Amendment and believes that it is the final arbiter of morality) came up with a computer program to sniff out porn... Of course two years and 300k of our hard earned tax dollars later...THEY FOUND NONE THAT DOJ AGREED TO PROSECUTE!!! Yes ladies and gentlemen and kids of all ages, of 67000 complaints were referred over to DOJ, but the lawyers there could not find one to prosecute. They realized they couldn't win the cases. They found not one tape or website that could be prosecuted for being pornographic.

Alberto, George, Dick, could you spend a little more time finding this guy Osama Bin Laden and a lot less time telling adults what to watch in the privacy of their own homes??? Oh yeah, STOP WASTING OUR HARD EARNED TAX DOLLARS ON ASININE PROGRAMS LIKE THIS ONE!!!!!!

5. Child Sentenced to 11 Years for Manslaughter of Another Teen

We Americans are really completely uninformed about children and how to handle their criminal behavior. Everyday I hear about younger and younger kids getting more and more time for behavior that, while improper and dangerous, is not uncorrectable.

In this case, the losing pitcher (13) in a little league game,(Pony league actually) takes a bat to the head of a 15 year old opponent, who is teasing him about beating their team. The child claimed that the older boy was bulling him and that the kid felt threatened as the victim was One Hundred pounds heavier and a foot taller than him.

Either way, the court ruled that the child acted in the heat of passion and convicted him of Manslaughter 2d. The court gave the kid 11 years which probably makes the mom and dad of the dead kid feel like they got justice.

They didn't, the kid didn't and we didn't. What we got was useless retribution. Expensive and useless retribution.

I do not think that all heavy sentences for children are necessarily bad. However, does it seem so odd that a thirteen year old might do something unthinkable stupid during the heat of passion?

We already know that boys mature more slowly than girls and that their brain doesn't process impulsive behavior until they are in their mid twenties.

That doesn't mean that they cannot be taught to handle anger. It also doesn't mean that we as a society can mothball a young life so that it will be nearly useless until he dies.

How long would it take to correct the behavior? How long will it take for the work to be done to help this kid live with the serious thing he did to someone else? Eleven Years????

Nope this one is harsh for harshness' sake. It is a sentence to appease others. It will deter nothing and more importantly it will destroy the living kid while doing nothing for the dead kid.

Here is an idea. Four years, mandatory counseling and therapy, Community service of 750 hours over the course of 2 years, and a judgement against the kid that will not be dischargable in Bankruptcy.

Why? Because there has got to be a positive outcome for this tragedy. Because otherwise the dead child died in vain. Because otherwise the child/defendant cannot ever improve the situation, and he is much to young to have to live with the realization that he did something that can have no bright side ever.

We should not be treating children like adults. If the child had been 15, maybe a longer sentence should be imposed. That sentence still needs to have opportunities for redemption included in it.

I wish I knew the families here. I wish Sister Helen Prejean knew them. She would know how to bring the dead child's family to the defendant child, how to start the healing. How to make this end better than the courts will allow it to. I hope there is someone like Sister Jean out there in California, or if not as good as her, maybe as willing as I am. It is important that we look to salvage as many children as we can. Children are too young to lock away on a shelf and pretend we did something good.

I will pray that these adult decisions do not come back to haunt society in the future.

Sunday, August 12, 2007

In Memoriam: Alva Mae Groves Another Casualty In the No Win War On Drugs

The Following is printed with the permission of Howard Kieffer of BOPWatch. When are we going to realize that we have got to approach the drug problem in America from a new and more understanding angle???

In Memoriam - Alva Mae Groves - Sentenced to 24 years in prison at at age 72.

Alva Mae Groves

Sentenced to 24 years in prison at age 72

Conspiracy to Possess with Intent to Distribute Cocaine Base

(Ms. Groves passed away on August 9, 2007, still incarcerated in federal
prison. Our condolences and sympathies to her family.)

"When I was arrested I had $1,000.00 in the bank from selling eggs and
candy. Most of it was deposited in change - nickels, dimes and quarters
- and the bankers substantiated this fact. I earned that money one egg
at a time, one soda pop at a time, one candy bar at a time. It wasn't
from selling drugs as the government contends."

I am 86 years old and have been incarcerated since 1994. I was charged
with Conspiracy to Possess with Intent to Distribute and Distributing
Cocaine Base, and I was also charged with possessing a gun. The court
sentenced me to 24 years in prison on these charges.

My real crime, according to today's laws of betrayal, was refusing to
testify against my sons, children of my womb, that were conceived,
birthed and raised with love, of which there were fourteen children in
all - nine girls and six boys. The government said I could have received
a reduction in my sentence if I would have testified, but since I
couldn't do such a thing, prosecutors then said I was a
manager/supervisor in this offense, thereby raising my offense level by
three points and increasing my sentence substantially.

Of course I didn't really understand all this talk about enhancements,
acceptance of responsibility, and so on, that had to do with my
sentencing. But I did understand that since I wouldn't turn against my
own family that I was going to receive a very lengthy prison term. Never
did I dream it would be twenty-five years.

On advice of my attorney, I accepted a deal for a sentence that also had
me signing all appeal rights away. I was also denied a three-level
decrease in my sentence for acceptance of responsibility because my
attorney advised me not to speak without him present. As I say, I didn't
understand all the legal jargon and totally relied on my attorney's
assistance. I still don't understand how one can sign their right to
appeal away when one hasn't even received their sentence. It's all
beyond me. I know I sat there and watched while my whole family was
buried by sentences of thirty years (my daughter Margaret),
seventeen-and- a-half years (my granddaughter Pam) and my other sons, one
who received a natural life. I still don't understand all of it.

When this all began back in 1994, I was 72 years old and lived out in a
trailer in Clayton, North Carolina. That trailer sat on a lot belonging
to my son, William Robert, where I lived with and cared for my two
granddaughters, Fontara (11 years old) and Jasmine (9 years old), my
youngest son's children. The only money I received came from SSI and
what money I could earn selling eggs from my laying hens (I had about
100 chickens). I also cleaned houses when I was able, and sold candy
bars and soft drinks to the kids coming from school in the afternoons.

We lived six miles out of town and there weren't any stores close by. My
children were always welcome at my home and would come to check on me
and help me as they could. My doors were always locked when I was gone,
but my children had keys to get in. The day I was arrested I was working
in my garden at my son's house about five miles from my home. I had
woods around my own home and no place for a garden. I was working in
this garden the day the Sheriff's department came and arrested me. While
I was gardening five miles away, the police broke into my home. They
said they had found drugs, but I don't believe that.

After I was arrested, they wanted me to testify against my son Ricky. I
worked hard all my life and I raised my children to be responsible and
to work for what they wanted. They all knew how I felt about an honest
day's work. If any of my children, including Ricky, were doing anything
less than that, they wouldn't have let know about it because they know
how I feel. If I can tend my chickens, clean houses, and sell soda pops
and candy to make money at 72 years old, they can all work too. I did
the best I could to raise my children and grandchildren. But just as it
is with anyone else's children, I had no control over what they did when
they were grown and on their own.

When I was arrested I had $1,000.00 in the bank from selling eggs and
candy. Most of it was deposited in change -- nickels, dimes and quarters
- and the bankers substantiated this fact. I earned that money one egg
at a time, one soda pop at a time, one candy bar at a time. It wasn't
from selling drugs as the government contends.

Six of my family members are in prison because the government wanted my
son Ricky. They offered me home confinement if I would testify against
him, but he is my son, and I couldn't do that anymore than I could do
anything else that would harm any of my children. When I refused to
testify against Ricky in exchange for home confinement, the police got
mad and said I was the drug kingpin and that my family was selling drugs
for me. I think this was the only way they could justify, or try to
justify, arresting a 72-year-old woman who sold eggs for a living. The
government gave other people all reduced sentences for their statements.
All these people belonged to the government. I've never even seen half
of them.

I have now been in prison for close to eight years. As I unknowingly
signed all my rights to appeal away, the only thing I could do was
petition the President of the United States for a Commutation of
Sentence. From FCI Tallahassee, I was transferred to the Medical
Facility in Carswell, Fort Worth, Texas, due to health problems. My
application for a Commutation of Sentence was submitted while there in
February of 2000. I have since been transferred back here to FCI
Tallahassee and my application is still pending.

I realize everyone has a day to die; death is a fate that will not be
cheated. But I don't want to die in prison. I want to die at home
surrounded by the love of what's left of my family. I do not have enough
years left of my life to finish serving this twenty-four year sentence
as I am already 80 years old. I'm appealing to anyone to write letters
for me to the Pardon Attorney's Office in Washington while my
application is still pending.

Thank you.

Alva Mae Groves 15230-056

Sunday, August 05, 2007

Around the Universe...Too Much News!!

Wow it feels like this was a huge week. Here I was in bucolic Woodloch Pines in the Poconos having the time of my life while the world was attacking freedoms and limiting liberty. So lets see what I missed:

1. Judge Okays an "Innocent Pedophile's" Right to Publish Clean Photo's of Children on His Blog.

This article from the ABA tells of how a good scare can completely destroy liberty among those that do not understand freedom.

Self-admitted pedophile Jack McClellan has been going around telling everyone he is ok with sex with little kids and that he is Sexually attracted to these kids... but there are no kids that have stepped up to admit being with him. Hence other than having weird thoughts he hasn't done anything wrong... except to scare the bejesus out of parents in Southern California.

Two parents of youngsters sought to restrain this otherwise homeless sycophant from coming near their children. They sought to stop him from loitering near places where kids gather, and to keep 30 feet away from children. They also sought to stop him from putting and publishing pictures of kids on his website. Now these were not pornographic pictures... these are ANY PICTURES.

I originally didn't think there was a problem with the 30 foot rule, but then again, I was barely awake when I first read this article. Not only is the restraint not limited to a specific child, but it also seems like a prior restraint which could basically keep this guy out of places to eat, receive health care, even use bathroom facilities. The guy sexually idealizes kids, but as far as we can tell hasn't acted on it. This order sets him up for being arrested.

Now the problem is...what if he does. Do you want to be the judge who said we couldn't stop him until he hurt someone?

Evidentially neither did the judge in this case, one Melvin Sandvig of the LA Superior court. The problem of course is that the fear of what this guy could do is juxtaposed against the right of his to both espouse his views and at the same time be allowed the same rights as anyone else with a controversial viewpoint.

What is to stop the Judges from ruling that people who favor guns and gun usage could be effectively banished because they may massacre kids in a school?

Unpopular ideas, even illegal ones, voiced, are not a crime. If we begin to criminalize thought and speech we could easily and quickly become a totalitarian state. Ask anyone who studies Nazi Germany.

This case is not so much about pedophilia as it is about a kind of terrorism. It is actually easier in many ways to defend the active pedophile than it is to go to bat for McClellan. I think the terror of what might happens makes it different. This guy doesn't have the money to oppose the ruling. I wonder if the ACLU will step up to defend his civil rights. It has got to be a tough one. Nevertheless if it were happening here, I would agree to do it. I wouldn't like it, but I'd do it as hard as I can. The constitution, and the law requires it.
Which leads me to my next headline:

2. ABA Journal Ethic's Piece Highlights the Struggle of a Lawyer Who Did the Ethical Thing.

Calling it "The Toughest Call" ABA Journal Editor Mark Hansen recounts the tail of Frank Armani and Francis Belge two assigned counsel who were called on to defend a mass murdering rapist, Robert Garrow.

In conversations with Garrow, the lawyers learned he had killed and raped others and that he knew where bodies of other decedents were. He told them and then they (having the duty to preserve the evidence) went and took pictures of the "graves" and of the dead.

They refused to reveal the information received by them in confidence. They were reviled by the press and by their friends and neighbors for their ethical decision.

Belge went on to leave the practice. Armani slowly rebuilt his reputation in the Syracuse area. Both suffered unfairly for what was clearly the toughest, but the only decision they could make.

This case caused a book "Privileged Information", and a movie "Sworn to Silence." Actor Peter Coyote retells the story of making the film on his website here. If you are interested in the real practice of law, or in ethics, or just want to see a great movie, rent this one. I understand the book (which appears to be out of print) is a fascinating read as well.

By the way, Kudo's on the ABA Journal website . I just found it and I love it!!! Great place to stay up on legal news.

3. House Democrats Wimp Out on FISA Bill: Will Anyone Stand Up and Save the Constitution???

The NY Times reports (here) that the democrat congress refused to stand up to the President once again and agreed to a bill amending the FISA court and to allow greater domestic spying by the executive branch without the benefit of judicial supervision.

The administration wants the right to eavesdrop on conversations that are routed through US routers. They already can eavesdrop on calls not routed through the US. They need a warrant to eavesdrop on calls wholly within the US. But internet calls outside of the US which happen by one of our ISP's are now eligible for warrantless eavesdropping.

Here's the thing. They do not have the ability to differentiate between terror calls and non terror calls. If they listen into non terror calls, they shouldn't be able to use the information, and it should not be stored. I don't trust Gonzoles and company to do that, and apparently neither does anybody else.

Here's another thing. The Dems know that it's unconstitutional, and they had the power to stop it by not bringing it to a vote, They had a bill that was a good one, but the President threatened to veto it. Well that means that the President will be able to go around saying the Democrats refused to act to keep America safe. So they caved in.

Ok maybe we are safe from terror... (maybe) but who will protect us from the Bushies???

4. The Truth About Pot, Weed, Marijuana.

I am not in favor of continuing a drug war which frankly we are losing. I would rather educate and teach, and then tax and let Darwin work out the rest.

In that vein, here and here are two articles that tell you why Pot is bad for you... (1 joint is equal to five cigarettes!!!) Read them. Then try to figure out why you are so suicidal you would introduce this crap into your body.

Consider yourself more educated.

Ok I am back from vacation, lets see if I can get a couple of posts out this week.