Liberty & Justice…?

Once upon a time, a long, long time ago, I was a very naive person. In my sweet, sheltered, fantasy land, law enforcement was always right. Judges were always fair. Lawyers always did the right thing in working for their clients.

I didn’t have to grow up very much, however, to learn for myself that none of those things were always true. Sometimes law enforcement officers are bullies. Sometimes they profile people and harass them. Sometimes they’re just straight up tired and take shortcuts just to get a case done. Judges have egos, and personality flaws, and again, are just straight up human and don’t always get it right. And lawyers….let’s not even go there.

I support the work of the Innocence Project. They are an organization around the country that represents people on claims of actual innocence who have been wrongfully convicted. It happens. Sometimes out of racism. Sometimes because law enforcement just wants to get a distasteful case out of the way. Sometimes because a prosecutor wants a conviction to get support for re-election (and a big reason why I DO NOT think county prosecutor, or judges, should be elected officials.)

In real life, people get railroaded and wrongfully convicted. I’ve seen it close to home; I’ve seen it close to me. I had a domestic client who was wrongfully convicted (I did not represent him in his criminal case, btw–I’m not qualified for that type of criminal defense). His case was overturned on appeal, but not before he spent 3 years in state prison and was practically unemployable on release. You can read his case here, from the Utah Appellate Court (the State Supremes declined to hear it, because they felt the Appellate court got it right.)

Chris Tapp. He was 22 when he was convicted. That’s his entire adult life gone, folks.

And then there’s this case…Chris Tapp. Chris grew up in and now lives in Idaho Falls, Idaho. He was wrongfully convicted of rape and murder, and spent nearly 20 years in prison before his conviction was over turned and he was released. The Innocence Project, and a local public defender, worked his case tirelessly–because he didn’t do it. Sadly, however, when you erase 19 years of a person’s life, they can’t just come back out and pick up where they left off.

So not only do I support the Innocence Project, I support compensation for the wrongfully accused and convicted. It’s the least the community can do, after it’s ripped a person’s life to shreds.

To support the Innocence Project’s work, go to their website, www.innocenceproject. org, and see what you can do to help.

Just so you know…

Be Brave…Report

If you are the victim of sexual assault, and you have the courage to go to a hospital and ask to have a rape kit collected, PLEASE know that law enforcement will be more concerned with the fact that you are a victim of a horrible violent crime, and NOT with the fact that you’re under 21 and have alcohol in your system. Or that you’re in a state where pot is illegal (or you don’t have a green card) and you have marijuana show up in your system. Yes, the hospital may tell the police you tested positive for some illegal substances, but it is SO MUCH MORE IMPORTANT to get a rapist prosecuted than it is for the police to hassle you over so much less terrible things!

…and if you’re in Western Wyoming, and you DO get charged with one of these minor things after you’ve been tough enough to do the super difficult, invasive, important thing of getting a rape kit taken and reporting a rapist to law enforcement, get ahold of me. I’ll represent you in your justice court case for free. Because it is important enough to ME that you do what you need to to get a rapist off the street.

Don’t think this is just a women’s issue either. Men are also victims of sexual assault, though they report less often than women.

But that doesn’t mean it’s not happening to them…

And just in case you were wondering, there is no statute of limitations in Wyoming or Utah on rape. Here’s a little more info on that. Keep in mind, though, that it’s much harder to prove in court that a rape occurred if you wait too long. (In Idaho, depending on how “rape” defined, there is either no statute of limitations, or you have 5 years from the date of the commission of the crime.)

Be brave. You’re not alone.

If you or someone you know needs help, call the Rape & Sexual Assault Crisis Line 1-888-421-1100, or you can contact CAPSA in northern Utah/southern Idaho, at 435-753-2500.

The Actual Clean Slate: Expunging a Criminal Record (UTAH specific)

(Note:  This is a UTAH specific article, but there are processes in other states for expunging your criminal record as well.  Go to your state’s courts website for more information, or contact an attorney.)

While I’m not in private practice anymore, I still do some private representation on the side.  Little things, ya know?  Like pro bono misdemeanor defense in justice courts.  For people’s Wayward Children who aren’t technically children as far as the legal age of majority is concerned.  The occasional possession of drug paraphernalia, drug possession, speeding way too fast in a construction zone in the middle of the night…you know, things that are done by young adults before their frontal lobes fully develop, and before they have the capacity to use a little better judgment (and remember not to talk to cops!)

These kinds of things can really mess up your life if they’re not handled properly, which is why I do pro bono representation.  But I also know that these sorts of crimes don’t have to stick with you for the rest of your life, especially once you’ve grown up, are using better judgment, and don’t keep getting in trouble.  You can wipe this sort of thing away, by getting an expungement.  This is a legal way of getting your past criminal/arrest history sealed, so that it can’t come up against you when you’re looking for a job, trying to get financial aid at a college or tech school, etc.

The process is described at Title 77, Chapter 40 of the Utah Code, called the Utah Expungement Act.  The statute says who can get one, and what the process is, but it’s a little hard to follow.  The Utah courts website, however, has instructions on how to get it done, what you need to do, and links to the Bureau of Criminal Identification (BCI) websites with more info and forms, AND it’s written in plain English (but use this link above to the BCI website, because it goes directly to the expungements info page with links and instructions).

You CANNOT expunge everything, and the BCI page and Utah courts website spell out what all you can’t.  You CAN, however, expunge some sex offenses, just not ones that are “registerable” offenses (a list of registerable offenses is found at U.C.A. 77-4-106).  Check the statute you were convicted under; if it wasn’t one in the list, or if you don’t have to register as a sex offender, you may be able to get that expunged as well.  Definitely worth a look.

A lot of us have done dumb things at different times in our lives.  That Dumb Thing need not define YOUR life.  Look into it; BCI was even nice enough to put together a pamphlet with basics on getting an expungement.

And by the way, you don’t need a lawyer to do this, but I’m always happy to answer questions of you have them.

Do it Today.

To Talk to the Cops or Not: What are you REQUIRED to say?

So I have teenaged sons.  And it appears from my experience with them and law enforcement that they, being teenaged boys, are cop magnets.  I’ve had my kids report to me that they were stopped by police for some of the slimmest of reasons. Legitimate reasons for the stop include going a mile over the speed limit, having a tail light out, failure to illuminate a license plate, etc.  While these may seem weak, they do give law enforcement justification to effect a stop, as they have reasonable suspicion to believe that the person has violated some law.

Following this encounter between law enforcement and some kids

These aren’t the kids involved, but they ARE sitting on a red truck, and they ARE guilty of being teenaged boys.

my middle child was hanging out with last Friday night (my kid was NOT in one of the cars, thank heavens), a discussion came up between me and my boss about whether one MUST provide identification during a stop.  There’s a lot of myth and misunderstanding about this, so I decided it was time to do some research.  (I’ve gotta know what to tell my kid, ya know?)

This is state of Utah specific, and the statutes cited are Utah Code.  Every state’s a little different, so you’ll have to do your own research if you’re  not in Utah.

In a case decided by the United States Court of Appeals, Tenth Circuit (of which Utah is a part), the court worked through whether one is required to provided identification to law enforcement in the course of a stop.  The case is Oliver v. Woods, 209 F.3d 1179 (2000). The case revolves around whether Oliver’s 4th amendment rights had been violated by the stop and detention, and then if the stop WASN’T justified, whether he had to provide identification to the officers or not (he had refused).

…and this isn’t Centerville or Farmington city…just for the sake of full disclosure.

The Utah Code sections that were cited in the Oliver case are U.C.A. §§ 53-3-217, 76-8-301.5, and 77-7-15.  And the sum up is this:

1. You’re required to carry your license with you at all times while operating a motor vehicle (UCA 53-3-217), AND you are also required under that same statute to present it “upon demand of a…peace officer…” This means that the drivers license code requires you to provide ID to a cop.
2. If you are subjected to a lawful stop, the officer “may demand [your] name, address and an explanation of [your] actions.” ( UCA 77-7-15). And this is a lawful stop: “A peace officer may stop any person in a public place when he has a a reasonable suspicion to believe he has committed or is in the act of committing or is attempt to commit a public offense.”
3. Failure to provide your name to an officer during a *lawful stop, after being asked for it by law enforcement, is a class B Misdemeanor. (UCA 76-8-301.5)

So there ya go.  Yes, you have to give the cop your ID, and yes, you may have to tell him what you’re doing wherever it is that you are.   BUT you don’t have to say anything else.  So please, for the love of all that is good and holy, recognize that you have a right to remain silent, that officers are not allowed to question minors outside of the presence of their legal guardian or parent, that if you’re over the age of 18 you are not obligated to say anything beyond the above (don’t elaborate!!), and that you do not have to consent to a search of your vehicle.

Our Fourth Amendment right to be free from unreasonable search and seizure has been fairly tightly defined by the courts, but it’s not always easy to determine what’s an unreasonable seizure/detention and what is not, especially in the moment.  That doesn’t mean you don’t have that right.  At least invoke those rights to remain silent when reasonableness of the stop is in question.

To wrap up:  PLEASE PLEASE PLEASE be courteous to law enforcement.  Be respectful.  Whatever your opinion is of the police, they deserve to be treated with respect AS DO ALL OTHER HUMANS.  And you have a much better chance of NOT getting arrested or yanked out of your car and tazed if you’re not a jerk about the stop.

Officers are people too… So don’t act like a total jerk when you’re pulled over, m’kay?

*Note:  There is a line between whether the stop is “lawful” or not, but it’s a fine line, and one that you really don’t want to risk testing given that the courts may or may not decide you were right.

Personalities and Payment (or, Just because you refuse to have reasonable expectations doesn’t mean you don’t have to pay.)

During the time I was practicing law, I had a wide range of client personalities to work with.  They ran the gamut from the Terrified & Will Do Anything I Say As Long As I Hold Their Hand; to the Super Organized, Gets Me Everything I Need Before I Need it Just In Case and It’s Organized and Tabbed to Boot; to the I Don’t Trust a Damn Thing You Do and Won’t Sign Anything Even Though I Already Agreed to It Because The Internet Told Me That You’re Wrong.  It’s this last category of personality that I’d like to speak to right now.

Not helping.

My goal in all of my cases was to instill in my client reasonable expectations regarding the outcome of their case, so that they would not be disappointed with the (inevitable) outcome.  Some were not going to end well, and that was known from the start.  There are statutory limits on how things will go down, and I do my best to minimize the damage to my client, but that doesn’t mean worst case scenario won’t happen to you.  Further, in a lot of divorce cases (most of them) that I handled, the parties did not have enough combined income to maintain anything that remotely resembled the lifestyle that they were accustomed to, because they were barely scraping by before the divorce. The court will generally not order one party to live the same lifestyle to the detriment to the other.  Divorces are between the married parties, NOT the kids, and so division of assets only considers the couple. There is absolutely nothing your lawyer can do to create more money/assets/stuff where none existed in the first place.  And thinking that he/she can is just setting yourself up to be let down. In a BIG way.

It goes without saying that the marriage wasn’t the best; there may have been issues that involved getting protective orders put in place.  That doesn’t mean there would’ve been sufficient evidence to get a criminal conviction, and even if there were, I can’t control how the other party’s defense attorney and the prosecutor on that (totally separate criminal case) will work together to resolve the criminal charges.  I can’t do anything there.  I can only work with my part, the divorce action, and do the best I can from there.  A divorce is NOT the place to prosecute domestic violence allegations, especially ones that the criminal process determines are not cut and dried.  So realistic expectations are needed in those situations as well.

I had clients who wouldn’t listen to a thing I said; who refused to sign off on things they’d already agreed to in mediation; who created conflict with their estranged spouse at any time they could (for the benefit of the children, of course), then screamed at me

Still not helping.

because I couldn’t get them their own way; and who wouldn’t even listen when the court told them how it was.  These were the clients who were abusive during the course of my representation of them, and who were livid in the end when it all happened like I said it would.  To these clients, I say this:  I do not work for free.  You knew that up front; there’s a clause in my retainer contract that says you pay me even if you don’t like how it all ends up.  Just because you don’t like how your life turned out, does not mean it is either my fault, or that you are absolved from a responsibility to pay your bill.  Would you honestly expect any other person providing a service to you to work for free if you are even marginally dissatisfied with the service?  No.  You wouldn’t.  And if you failed to pay them, you’d get sent to collections.

 

Which is how it works with me, too.

Civil Procedure in Divorce/Child Custody Part 1: Certificates of Service

In any court proceeding, there are rules regarding how and what you have to do–the Rules of the game, if you will.  The point of the Rules is to make sure everyone is given their constitutionally guaranteed due process rights  under the law.  The other party must be “served”–initially either by the sheriff, a private process server, another adult who is NOT involved in the court case, or via certified mail.  “Serving” the other side after that just requires that you (regular) mail or hand deliver the document to the other side.  You don’t have to have a process server deliver every document to opposing party–just the initial petition/complaint.

Any court proceeding that has parties in opposition to each other requires that certificates of service are included with each filing.  This is not just a family law thing.  A certificate of service is included generally on the last page of any pleading, and it usually says something like this:

A Certificate of Mailing is the same thing as the Certificate of Service…just depends on what you want to call it. This one would be for Initial Disclosures, but you’d fill in whatever the document’s title is.

“I certify that on the (nth) day of (month), (year), I delivered a true and correct copy of the foregoing document via (hand delivery/US Mail/carrier pigeon, etc.) to the following individuals:

(name and address of person who you sent it to)

(Your signature)”

If you’re representing yourself in your court case, on the day that you are going to mail or hand deliver the document to the other side, fill out the certificate of service first, and then make 2 copies of the document.  The original document is filed with the court.  One copy is sent to the other party, and you keep one for your own files. Always keep a copy of everything you file with the court–that way you have a record of it that you can refer to yourself.

You can serve the other party by emailing the documents to him/her if he/she says that he/she will accept that as service.  You would initially email him/her and ask if they agree to accept service via email, and keep the response he/she sends back stating that they agree to that.  If the other party agrees to accepting service via email, you’ll only need to keep a copy for yourself and send the original to the court–just email a scanned copy of the filing to the other side, and keep the email you send, showing that you DID in fact send it.

The point behind all this is to tell the court, in a sworn court document, that you told the other side what you told the court.  Talking to the court without telling your opponent what you said is called ex parte communication with the judge, and it’s illegal.  Everyone is entitled to notice of ALL communication with the court in any legal case…That’s the whole due process thing.  If you don’t know what’s been filed, you have no way of responding to it.  Failing to respond affects your rights.  A lot.  Which is why if you don’t send the other side a copy of everything you file with the court, the court won’t act on your filing.  It’s as though you haven’t filed it yet.  Which stalls your case.  Nobody wants that.  Save yourself time and energy and do it right the first time.

 

 

An Innocent Man

An innocent man went to jail today, for a crime he did not commit, because of the illness of another person.  It got me thinking about “The Lincoln Lawyer.”  If you haven’t seen that movie, you should.  I don’t care if it’s rated R, folks–It’s the most “real” lawyer movie I think I’ve ever seen.

This scene haunts me.  And I am weeping for the innocent wrongly convicted.

Cohabitant Abuse in Utah: “They don’t DO gays.”

[**Note:  I post this story with permission from my client, whose name and the name of the other party have been changed to protect my client’s privacy.  I’ve left out jurisdictional identifiers for the same reason. The picture that accompanies this post actually IS my client.  I saw the photos of her injuries prior to meeting her.  I did not recognize her when I met her from seeing this/the other pictures, and felt that no one else would either.]

I recently finished up my second non-prosecutorial criminal case.  My client, who we’ll call Beth, had been cited for domestic violence assault as a result of an altercation with her girlfriend, who we’ll call Sue.  Yes, you read that right:  my client was in a homosexual relationship where there was domestic violence.  But I’m getting ahead of myself. . .

My client retained me after being cited in this case.  What happened was this:  Beth had had previous interactions with Sue, her girlfriend, that indicated to her that Sue was trying to exert control over her.  Sue had already been verbally abusing Beth, but had never struck her.  On the day of the incident, back in November of 2010, Sue had started arguing with Beth in their bedroom about Beth’s 14-year old son.  The argument escalated, and Beth tried to leave the room and the argument.  Sue became angry and blocked the doorway.  Beth, who is 7 inches shorter than Sue, and was outweighed by 30 pounds, tried to duck under Sue’s arm.  Sue pushed her back, and then began punching Beth in the head.  Beth felt 2 blows before she was knocked to the floor.  Sue jumped on top of her, straddling her, and began punching her in the head and face.  At this point, Beth’s 14 year old son came into the room, screaming for Sue to get off of his mom.  Sue jumped up and ran out of the room, and then immediately called the police, claiming that Beth had assaulted her.

When the police officer arrived, he met a calm Sue outside the house.  There were some scratches on her chest, and her t-shirt was torn slightly at the collar.  Sue told him that Beth had scratched her and kicked her, and admitted to punching Beth, but just once, and just in self-defense.  Beth, in the meantime, was in a state of shock, and did not cooperate with the officer.  At that time, all that was apparent of Beth’s injuries was a goose-egg rising out of her left temple.

What it looks like when a woman’s girlfriend beats the hell out of her. . .And you don’t even see the height of the bump on the temple from this angle.

Not seeing a large differential in the severity of the parties’ injuries, and hearing opposing stories about what happened, he cited both Beth and Sue with domestic violence assault. (See U.C.A. § 77-36-2.2 for duties and powers of law enforcement when called to a domestic violence scene, including what to do when there are conflicting stories from the parties.)

Beth left the scene in an ambulance, and had a CAT scan immediately upon arriving at the emergency room.  As the bruising in her face developed, her eye, head, and cheek turned black from the injuries inflicted on her by Sue, her girlfriend.

Domestic violence, or cohabitant abuse, occurs anytime there is abuse between people who cohabitate–be they in a romantic relationship or just roommates. (See U.C.A. § 78B-7-102.)  The cop got it right when he issued citations for DV assault.  Whether the parties were gay or straight, they lived together, which qualifies as cohabitant abuse.  The prosecutor, on the other hand, didn’t see it the same way.  He worked a plea agreement (plea of guilty held in abeyance upon successful completion of one year probation) with Sue for simple assault–his theory was that since the homosexual relationship wasn’t recognized by the state (at that time), DV assault wouldn’t stick.  He told me this himself–in front of the cop as well, who looked at me, smiled a little, and shook his head.  I said, “It’s a cohabitant abuse statute.”  “It is,” said the cop, “which is why I cited them with dv assault.”  The prosecutor, sadly, wasn’t. . .*something* enough to see that.

You might wonder what the big deal is with calling it assault or dv assault.  Under the statute, repeated domestic violence assault convictions have enhanced penalties, as a deterrent to re-offending (see U.C.A. § 77-36-1.1).  By not prosecuting Sue on a dv charge, she will not have the enhanced penalties for future offenses, which offenses are a real possibility, given her history and personality. Further, there are statutory protections put in place to protect victims of domestic violence that are not present for victims of assault.  These protections keep the victim from being further abused, and further traumatized by the system. (See U.C.A. Title 77 Chapter 36 for the Cohabitant Abuse Procedures Act.)

It’s also a slap in the face to the actual victim in a case–regardless of whether he or she is gay or straight.  Domestic violence is not a problem that is unique to the heterosexual population, but it’s largely seen as such by law enforcement.  We had a particularly open-minded cop in our case.  He was at least willing to give the DV cite out to a same-sex couple.  That said, had Sue been a man, and had my client been assaulted by her boyfriend, chances are she would not have been cited at all.

At our first pre-trial hearing appearance, I provided the prosecutor with pictures taken of Beth’s injuries after the bruising had developed.  He was not willing to dismiss the charge, or listen to any reason concerning the statute.  We re-scheduled pre-trial for March 18th.  I called the prosecutor a week prior to the pre-trial, to see if he would be willing to dismiss based on this new evidence (and on the fact that they had absolutely NOTHING that would stand up in court to prove the city’s case against my client.)  He was unwilling to discuss at all.  We showed up at the pre-trial expecting the worst.  The prosecutor met with me prior to calling our case and told me that he was going to move to dismiss the charge–but was very quick to point out that it had nothing to do with anything I’d argued to him.  Right.

Sue showed up at the court during our appearance.  She sat herself right down behind Beth while we waited our turn.  When the judge dismissed Beth’s charge, Beth got a look at Sue’s face.  She was angry.  She left the courtroom, but lingered in the lobby.  The responding officer was again in court with us, and he told us to wait a minute before leaving, then headed out into the lobby to usher Sue out.  He came back for us, and waited with us in the lobby until Sue got into her car and actually left the parking lot.  Sue sat in her car a full 5 minutes before leaving.  I appreciated the police escort.  Sue creeped me out.  And I’d never had any actual contact with her.

My client was thrilled.  She thanked the officer, told him she understood his position.  She was very gracious.

Beth was in an abusive relationship with a man before she started living with Sue.  Law enforcement swooped in and protected her in that instance.  Not so this time.

She told me that she had been beaten by a man before, but it was nothing like what happened with Sue–Sue was utterly vicious, merciless.  She said it was absolutely staggering.  Domestic violence is not exclusive to heterosexual relationships.  The only difference between straight and gay DV is the reaction to it by law enforcement and the prosecution:  As Sue told Beth weeks before beating her black and blue, “Don’t bother calling the police for domestic violence in ________.  They don’t DO gays.”

What to Tell Your Lawyer

So you decided you need a lawyer, and you hired one.  Now–what should you tell him?  The short answer:  Everything.  Or at least everything that’s relevant.  What is relevant depends on the type of case you’re involved in, of course.  Regardless of the type of case, however, any bad action on your part is just as relevant to the case as all of the rotten things the opposing party has done.

One lawyer should NEVER “represent” both parties in a divorce action. Just sayin”.

We all want people to like us.  When we tell a story to someone about something that happened in our lives, we always spin it to make ourselves look flawless.  “He’s a terrible husband, he did X, Y, and Z.”  We neglect to tell any of the other side– “After I did A, B, and C, my husband retaliated by doing X, Y, and Z,” rarely passes the lips of any person recounting the events that so upset her or him.  It could be that A, B, and C were really minor things that did not merit the retaliation, and so that part is left out.  Or that the party telling the story feels guilty about those things, and is trying to avoid facing his or her own guilty feelings.

When it comes to representing your version of events in court, however, the things you did wrong are just as important as the things the other side did wrong to your attorney.  She needs to know all of the facts, even if some of those facts don’t make you look so good, because the other side is going to make sure you look as bad as possible.  Lawyers are great at spinning a story themselves, when they have all the facts.  They do need to know what they have to defend against.  Without having that information up front, from you, your attorney gets blindsided.  If that happens through motion filing, or the answer to a petition, damage control is less difficult, though still necessary.  If it happens in court, however, your attorney can only try and stop the bleeding in your case.

Some examples (and how it MAY effect a hypothetical case):

Contract case:  You go to your attorney and tell her that your contractor failed to complete work in breach of your contract.  You fail to tell the attorney that you didn’t pay the contractor the first 3 months he did work for you, but then caught up on the payments, prior to the contractor ceasing work.  You go to court and all of this comes out.  You technically breached the contract yourself before the contractor did.  Your case is tossed, and you get to pay the contractor’s attorney’s fees.

OR

You go to your attorney, tell the same story, but add that you had paid up what you owed, the contractor worked another month, and then quit.  Your attorney can put in the original complaint that the contractor continued working after being caught up, thereby waiving right to complain about your breach of contract.  You get a settlement.

Family case:  You hire a lawyer for a divorce, citing domestic abuse as a reason.  You tell your lawyer that the police were called to your home 6 times in the past 2 years for domestic disturbances.  You ask for a protective order in the interim while the divorce is being litigated, barring your spouse from seeing your children while the protective order is in place.  You state on the P.O. request that your husband is a violent person, and refer to the police coming to the house.  At the protective order hearing, your husband’s attorney brings in the police reports, and the responding officers to testify in your spouse’s behalf.  Turns out there was nothing to the calls to the police–their reports indicate as much.  The judge is Not Amused.  Your spouse is awarded custody of the kids on a temporary basis, pending completion of the divorce, and you get to pay child support.

OR

(There is no Other Side to the above example–lying to your lawyer to get actions filed in your case that are without merit is simply sabotaging your own case.  You may be ordered to pay your spouse’s attorney’s fees for having to defend against this meritless motion.  You also just threw your lawyer under the bus in front of the judge.  She’s not going to be happy about that.  She may even choose to withdraw from your case.)

The real point of telling your lawyer everything– the good, the bad, and the ugly– is so that your lawyer can represent you in the best light possible.  Attorneys are trained to spin the story to their client’s advantage, or at the very least do damage control.  Failing to be honest with your attorney will only hurt you in the long run.