As you probably know, criminal cases often resolve before trial. This is usually by way of a plea bargain. Often, at least the first offer made by the prosecution is not to the defendant's liking. I have had many client turned to me and asked, "What do they want from me? Haven't I suffered enough?" Much more often than not, I am able to change the offer to one everyone can live with.
That being said, I am reminded of another criminal justice conundrum. Sometimes, one suffers a tragedy of unspeakable proportions. Sometimes the person involved in such a tragedy also faces criminal charges for the tragedy.
Such is the case of a Worcester woman, Christina Castro (hereinafter, "the Defendant"), who was behind the wheel of her vehicle when it had a horrible accident. After pleading not guilty to a number of charges including vehicular homicide, she was held on $50,000 bail. Those injured, or killed, where her children. Killed was her three-year-old son.
According to law enforcement, The Defendant may have been driving more than 70 miles per hour when she allegedly fled the scene of a minor accident. It was then that the accident apparently happened. To make the accident worse, the children were not properly restrained in the car according to the police.
The result of the accident was that The Defendant's five-year-old son suffered critical injuries while the Defendant and her five-year-old boy, both thrown out of the vehicle, sustained minor injuries. The three-year-old was killed
Attorney Sam’s Take On Human Suffering, Tragedy And The Justice System
You can almost hear the mother's plea right now. "What on earth do they want from me? I have lost one child and injured it to others! Have I not suffered enough?"
And you can hear the prosecution answer, "apparently not."
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A WORCESTER WOMAN IS CHARGED WITH MOTOR VEHICLE HOMICIDE IN ACCIDENT WHICH KILLS HER OWN CHILD
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A Really Hard Fall (Update: The Police Definition of a Fall)
<font style="FONT-SIZE: 12px" face="Arial">According to the <a href="http://sacurrent.com/news/a-curious-case-of-alleged-police-brutality-1.1456786" target="">San Antonio Current</a>, the
hospital staff was under the impression Diego Martinez had been hit by a motorcycle. After all, how else to explain his injuries?<br></font>
<blockquote><font style="FONT-SIZE: 12px" face="Arial">When his girlfriend tracked him down at University Hospital three days after the arrest, doctors mistakenly said Martinez had been “admitted
because he was hit by a motorcycle,” and was in serious condition. McDaniel, the lawsuit charges, “knocked out all of [Martinez's] teeth.” Martinez also suffered “nasal ...</font></blockquote>
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As Maryland takes another step toward capital repeal, limbo looms for five on state's death row
As reported in this AP article, the Maryland House "on Wednesday night advanced legislation to repeal the death penalty in Maryland after delegates rejected nearly 20 amendments, mostly from Republicans, aimed at keeping capital punishment for heinous crime." Here is...
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"Rethinking the Use of Community Supervision"
The title of this post is the title of this important new paper now available on SSRN and authored by Cecelia Klingele. As practitioners and policy-makers know, the back-end of the criminal justice system and the use of alternatives to...
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Judge Jed Rakoff: Scrap the Guidelines
<font style="FONT-SIZE: 12px" face="Arial">Following on EDNY Judge John Gleeson's <a href="http://blog.simplejustice.us/2013/01/30/judge-john-gleeson-not-done-yet.aspx" target="">scathing
"expose"</a> of the United States Sentencing Guidelines as to drugs in <a href="http://sentencing.typepad.com/files/us-dossie-opinion.pdf" target="">Dossie</a> and <a href=
"http://sentencing.typepad.com/files/united-states-v.-ysidro-diaz.pdf" target="">Diaz</a>, SDNY Judge Jed Rakoff <a href=
"http://newsandinsight.thomsonreuters.com/Securities/News/2013/03_-_March/Rakoff_says_sentencing_guidelines_should_be__scrapped_/" target="">offered his views</a> at the National Institute
on White Collar Crime conference sponsored by the American Bar Association in Las Vegas.</font>
<blockquote><font style="FONT-SIZE: 12px" face="Arial">"My modest proposal is that they ...</font></blockquote>
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Recent Issues Related to Pennsylvania Prenuptial Agreements
A recent article published at the Yahoo! news website titled, Wife of Millionaire Wins “Unprecedented” Case to Overturn Prenup Agreement detailed a story about a woman who was successful in overturning a prenuptial agreement despite representing herself and with no legal training. The story explains that a “prenuptial agreement” had been signed four days prior to [...]
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Johnson and Johnson Loses First Defective Hip Implant Case
Last week, a Los Angeles County jury awarded 8.3 million dollars to retired Montana prison guard Loren Kransky for pain and suffering and medical expenses he suffered from a defective artificial hip implant manufactured by a division of Johnson & Johnson, which has since been recalled. The implant is known as an Articular Surface Replacement or A.S.R., and was manufactured by the company’s Depuy orthopedics unit from 2003 until 2010, when Johnson & Johnson ordered a recall of the product. Mr. Kransky’s lawsuit was the first of approximately 10,000 that Johnson & Johnson is facing, with another trial set to start in Chicago on March 11, 2013, and numerous other cases scheduled for later this year.
The Depuy artificial hip is made of all metal, and the design would cause the cup and ball to rub against each other as the person moved, leading to some splintering of metallic debris, which caused damaged to tissue and bone, severe pain, and in some cases, permanent injuries to patients. The 12 member jury in Mr. Kransky’s case ordered the company to pay him 8 million for pain and suffering, and $338,000 for medical expenses. Defense lawyers for Johnson and Johnson were unable to overcome evidence which showed that the company was told by surgeons that the design of the Depuy implant was flawed. Consultants to the company had recommended slowing sales of the devices, which was ignored, and Johnson also been considering redesigning the implant but decided against this measure due to a costs benefits analysis that unimpressive sales of the implant did not justify the costs of the redesign.
The A.S.R. is part of a group of extensively used hip replacements with an all metal design, which replaced the design which used metal and plastic. Presently, all metal hips are rarely used by surgeons. Traditional hip replacements are expected to last 15 years before a replacement is recommended, and generally, their failure rate is approximately 5% after five years. Jurors in the Kransky case saw an internal memorandum that Johnson knew that 40% of patients who had an A.S.R. would require a second operation within 5 years to have the Depuy implant removed and replaced. The jurors deliberated for a full five days before reaching their verdict. Mr. Kransky’s lawyers had requested that the jury award him between 36 and 144 million, and award punitive damages to punish the company for intentional and egregious conduct. However, jurors declined to award punitive damages, and their verdict, while substantial, was certainly not anywhere close to the amounts requested of them. Mr. Kransky's case was expedited as he is suffering from terminal cancer and it was unclear if he would survive until the trial.
Thousands of the other cases against Johnson & Johnson have been consolidated into a class action in federal Court in Ohio. If those cases are settled, it may lead to an analysis of how to calculate the remaining plaintiffs’ damages and a basis for a settlement of the remaining cases. Despite dodging a proverbial bullet in the size of the Kransky verdict, Johnson & Johnson has announced that they will appeal and argue that the design of the Depuy implant was not defective. That could lead to a settlement of the Kransky matter in that if Mr. Kransky is that ill, he will probably not survive until the resolution of the appeal, which can take at least several months to a year for a decision in many Appellate Courts.
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Third Circuit Rules that Contraband Found in Shared Cell is Sufficient to Warrant Loss of Good Time Credits
In Denny v. Schultz, No. 11-1450 (3d Cir. Feb. 15, 2013), the Third Circuit considered the question of what limit the Due Process Clause places on the constructive possession theory in the prison context. Inmate Denny shared a cell with one other inmate. During a routine search of the cell, a corrections officer found two metal shanks located in the duct work of a ceiling vent. The duct was accessible from both Denny's cell and the adjacent cell, which housed an additional three inmates. Denny and his cell mate were both charged with possession of a weapon, but the inmates in the adjacent cell were not charged. Denny was sanctioned and received sixty days in disciplinary segregation and the forfeiture of forty days good time credit.
After exhausting his administrative remedies, Denny filed a 28 U.S.C. § 2241 petition. The district court sua sponte dismissed the petition, finding that the Disciplinary Hearing Officer's (DHO) findings were supported by "some evidence," including the fact that the contraband weapons were found in the duct work of Denny's assigned cell (citing Superintendent v. Hill, 472 U.S. 445, 454 (1985)). Denny appealed.
On appeal, the Third Circuit agreed that the "some evidence" standard applied and that it need only find that the DHO's decision had "some basis in fact" in order to affirm the decision as comporting with the Due Process Clause. The Court then noted that other courts to have considered this question have uniformly held that the discovery of contraband in a shared cell constitutes "some evidence" of possession sufficient to uphold a prison disciplinary sanction, including the loss of good time credits, against each inmate in the cell under a theory of collective responsibility or collective guilt. Applying this theory, the Court concluded that the undisputed discovery of two shanks in a space accessible within Denny's cell constituted "some evidence" that Denny possessed the weapons in question. Accordingly, the DHO did not violate Denny's due process rights by finding he had committed the prohibited act and sanctioning him with a loss of good time credit.
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The Advice-of-Counsel Defense
In the federal case of the United States versus Michael McIntosh, Mr. McIntosh was charged with committing the crimes of bankruptcy fraud and money laundering because of his failure to disclose during his bankruptcy proceeding that he had received certain money and deposited some of that money into a bank account that he controlled through an unincorporated business that he managed.
McIntosh's bankruptcy lawyer testified that he was aware of the existence of the unincorporated business but failed to inquire further and determine if its existence should have been disclosed to the Bankruptcy Court. The lawyer's failure to do that provided McIntosh with a legal defense, and the trial judge compounded the error by failing to tell the jury about McIntosh's defense.
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Hopkins Researchers May Have Knowingly Provided False Results
Today's Washington Post includes a tragic story of a researcher who apparently committed suicide after being confronted with questions about the validity of his study.
The Post story by Peter Whoriskey, presents us with gruesome details, including a beyond the grave email to the main critic of the research Daniel Yuan.
The research study was published in the prestigious scientific journal Nature and it focused on detecting interactions between genes. However, Daniel Yuan wrote to Nature's editors to say the results were overstated and also that he found no evidence that the analyses described had actually been conducted.
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Lawyer Sentenced for Mortgage Fraud Conspiracy
Neal Sultzer, Plainview, New York, has been sentenced for his role in a to conspiring to commit wire fraud and bank fraud in connection with a $66 million mortgage fraud scheme involving over 100 home mortgage loans for residential properties in the New York City area, Westchester County, Dutchess County, and Long Island.
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Constructive Possession: Intent Required, Not Just Proximity and Knowledge
That a controlled substance can be possessed constructively as well as actually is a court-made decision. As Judge Ruiz put it in her concurring opinion to Rivas v. United States, 783 A.2d 125 (D.C. 2005), the “doctrine of constructive possession is a judicially developed theory of liability designed to be a ‘proxy’ for actual possession.” [...]
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Reauthorized Law Gives Indian Tribes Greater Powers to Prosecute Domestic Violence
In 1978, the U.S. Supreme Court ruled that American Indian tribes could not prosecute non-Indians for crimes committed on Indian reservations. Instead, those prosecutions had to be carried out by a federal U.S. Attorney’s office.
The reauthorized Violence Against Women Act (VAWA) recently passed by the U.S. Congress, however, gives tribal courts new powers to prosecute non-Indians who commit domestic violence or violate personal protection orders on reservations. For the first time in many years, non-Indians may be charged with these crimes by tribal courts.
The update in the VAWA was based on statistics showing that Native American women suffer domestic violence at more than twice the national average rate. Because tribal courts have not been allowed to prosecute suspected incidents of domestic violence and because U.S. Attorney’s offices often lack the resources, over half of domestic violence cases are believed to go un-prosecuted.
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Kansas City Metro Weekend DUI Checkpoint Update: 3/15/13 - 3/17/13 (Big XII Tourney & St. Patrick's Day Edition)
Kansas City Metro Weekend DUI Checkpoint Update: 3/15/13 - 3/17/13 (Big XII Tourney & St. Patrick's Day Edition)
It's going to be a busy weekend around the Kansas City Metro area with warmer weather coming in, and both The Big XII Basketball Tournament and St. Patrick's Day going on this weekend. You know what that means, and so do the police. It means people are going to be drinking and partying all weekend long. Here is what we know so far:
1. Kansas City Missouri Police Dept. has announced they will be conducting DUI checkpoints sometime this weekend at an area known for
drunk driving related accidents. There is a lot of activity this weekend so there is going to be a lot more enforcement out looking for
DUI's along with the the potential checkpoints.
2. Independence Missouri Police Dept. has announced they will be conducting both a DUI checkpoint this weekend, along with a
DUI Saturation Patrol. Remember the checkpoint is a set location, where the Saturation Patrol is extra units on patrol specifically looking for signs of
impaired driving.
As always we will update as we learn more.
If you do find yourself in a situation where you are being pulled over know your rights! Read our article on Field Sobriety Testing in Kansas. Remember the easiest way to avoid getting a DUI is to designate a driver, or take a cab! But if you need some extra motivation look at our page on
DUI Penalties in Kansas.
If you or someone you know has been charged with a DUI or other
Criminal Charges in Kansas,
contact our office for a free
case evaluation today. We are located in historic Downtown Overland Park, KS.
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DUI Results in Death of Mississippi Man; South Carolina DUI Laws
Police report that a Columbia, South Carolina man was charged with Felony DUI after an accident that left one person dead. The accident occurred at the corner of Meeting Street and Sunset Boulevard.
According to the Lexington County Coroner’s office, the victim was from Hattiesburg, Mississippi, and died from his injuries at the Lexington Medical Center. Thereafter, the driver was transferred to the detention center where he will face charges.
If you have been involved in a drunken driving accident, it is possible that you face criminal penalties for the situation. When the accident causes an injury to another party, the punishments ...
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Monmouth County Driver Assaults Police Following Drunken Driving Accident in Red Bank, NJ
There are laws and there are laws. As most people know, driving under the influence (DUI) or driving while intoxicated (DWI) are terms used to describe a motor vehicle violation here in New Jersey. The details and language used to define drunk driving law are laid out in N.J.S. 39: 4-50. This includes a range of monetary fines and maximum jail time based on the defendant's level of intoxication (as measure by blood-alcohol concentration, or BAC), as well as guidelines for license suspension, among others.
Aside from the obvious public safety concerns that driving while impaired by alcohol or drugs presents on the road, over the past several decades, drunken driving has become a much less socially acceptable activity. The negative affect that a drunk driving arrest can have on one's career or social standing in the community, and even on personal relationships, has been growing as well. This is certainly reflected in the way in which law enforcement agencies conduct anti-drunk driving campaigns all through the year and especially during holidays.
As New Jersey DWI-DUI defense lawyers, we understand how average people can find themselves arrested for drunken driving for the first time without really having thought they were impaired when they got behind the wheel of their car, truck or SUV. But it does happen, and that is why we offer our services to help people fight for their rights under the law. Apart from advising everyone not to attempt to operate a motor vehicle after having any amount of alcohol is to not compound one's troubles should you be unlucky enough to be stopped while possibly inebriated.
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Man Sentenced to 33 Years For Cocaine Distribution
A South Carolina drug dealer, who consumed a large quantity of cocaine during a police chase, will be spending the next 33 years in prison. The man was charged this past November for conspiracy to distribute five kilograms or more of cocaine and 280 grams or more of crack-cocaine, possession of a firearm in furtherance of drug trafficking and use of a communication device in furtherance of drug trafficking.
During the police chase, the man consumed such a large quantity of cocaine that he spent the next two weeks in the hospital recovering from the effects. It is also reported that, ...
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Can they press charges if I was defending myself in a fight?
Free legal answers from attorneys - I was out at with friends last night and was outside smoking when this drunk guy came out of the club and started actin
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Static on the Line?
Yesterday, I received a phone call from a Fresno County Sheriff’s Deputy. The stated purpose of the call was to follow up on whether or not I am a threat about which the Sheriff’s Department should be concerned. The unstated purpose appeared to be “evidence gathering.” For what, I don’t know. I would have thought [...]
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Harvard Federal Policy Proposal Suggests SSDI Reform
As part of an effort by Harvard University researchers to affect change regarding our approach to the federal budget, two researchers with the Brookings Institution have posed a series of more than a dozen ways to rethink our financial state. ![pileofcoins.jpg]()
Los Angeles Social Security Disability Attorney Vincent Howard of HOWARD LAW understands that one of those 15 areas that researchers believe requires attention is the Social Security Disability Insurance budget.
Now usually, when there are calls for reform with SSDI, the approach is to arbitrarily start hacking it to pieces, leaving a substantial number of folks disenfranchised and ultimately costing all of us more in the end.
This approach was slightly different.
Researchers Jeffrey B. Liebman and Jack A. Smalligan have made two recommendations based on a careful consideration of the problems at hand.
The pair starts by offering a definition of the three biggest problems with the program.
The first, they say, is that there is a large swath of those who receive SSDI who might be better off with a different kind of assistance. That is not to say that they don't need help, but some may need more and some may need less. Yet the current system doesn't allow for degrees of impairment. Additionally, the restrictions that bar recipients from being able to work at all may actually be harming people. It serves as a disincentive for those who might otherwise be able to work for shorter bursts of time or on a more irregular basis. These folks may see themselves increasingly unemployable in the future because their skill sets continue to grow even rustier.
Secondly, the researchers say that there are competing incentives, with employers and private insurers pushing applicants into applying SSDI because it's better for their own bottom line.
And finally, the two found that the determination process was basically a mess. People wait far too long to get a decision, they said, and too many of those final decisions are ultimately appealed anyway - proving that the system doesn't appear to be set up to get it right the first time. Differing standards may be applied at different stages of the application process, and there is currently a 1.5 million continuing case review backlog.
The Harvard researchers, after a year of interviews, data collection, research reviews, policy analysis and field operation observance, say there is essentially a two-step process that could address a good portion of these problems. They are: Demonstration Projects;New Tools for the Social Security Commissioner.
The first is a focus on "demonstration projects" where the focus is early intervention. Usually, by the time a person has received disability benefits, it may be too late to help them return to work. Past programs like Ticket to Work weren't successful, yet forcing people not to work while their claims are pending causes them real financial harm.
One such demonstration would allow officials to pre-screen applicants for potential services while their claims are pending that could help them return to work, regardless of the outcome. If the applications were to be suspended, the government could offer a targeted benefits package, offering things like vocational assistance, health interventions, tax credits and emergency tax grants.
The second reform recommended by the researchers was offering new tools for the administration to be able to improve the disability determination process. The fact that it takes years in some cases to reach a conclusion, the researchers found, was often to the benefit of no one. And a failure to invest in continuing disability reviews, they found, actually costs the agency $9 for every $1 they fail to spend.
There is also, they found, a fair amount of inconsistency from state-to-state with regard to wait times and determination standards. The commissioner, the duo said, should be given the authority to streamline this process at the federal level.
Regardless of whether such reforms are implemented, we are here to aid you in the process.
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Los Angeles Social Security Disability Attorney Vincent Howard of HOWARD LAW understands that one of those 15 areas that researchers believe requires attention is the Social Security Disability Insurance budget.
Now usually, when there are calls for reform with SSDI, the approach is to arbitrarily start hacking it to pieces, leaving a substantial number of folks disenfranchised and ultimately costing all of us more in the end.
This approach was slightly different.
Researchers Jeffrey B. Liebman and Jack A. Smalligan have made two recommendations based on a careful consideration of the problems at hand.
The pair starts by offering a definition of the three biggest problems with the program.
The first, they say, is that there is a large swath of those who receive SSDI who might be better off with a different kind of assistance. That is not to say that they don't need help, but some may need more and some may need less. Yet the current system doesn't allow for degrees of impairment. Additionally, the restrictions that bar recipients from being able to work at all may actually be harming people. It serves as a disincentive for those who might otherwise be able to work for shorter bursts of time or on a more irregular basis. These folks may see themselves increasingly unemployable in the future because their skill sets continue to grow even rustier.
Secondly, the researchers say that there are competing incentives, with employers and private insurers pushing applicants into applying SSDI because it's better for their own bottom line.
And finally, the two found that the determination process was basically a mess. People wait far too long to get a decision, they said, and too many of those final decisions are ultimately appealed anyway - proving that the system doesn't appear to be set up to get it right the first time. Differing standards may be applied at different stages of the application process, and there is currently a 1.5 million continuing case review backlog.
The Harvard researchers, after a year of interviews, data collection, research reviews, policy analysis and field operation observance, say there is essentially a two-step process that could address a good portion of these problems. They are: Demonstration Projects;New Tools for the Social Security Commissioner.
The first is a focus on "demonstration projects" where the focus is early intervention. Usually, by the time a person has received disability benefits, it may be too late to help them return to work. Past programs like Ticket to Work weren't successful, yet forcing people not to work while their claims are pending causes them real financial harm.
One such demonstration would allow officials to pre-screen applicants for potential services while their claims are pending that could help them return to work, regardless of the outcome. If the applications were to be suspended, the government could offer a targeted benefits package, offering things like vocational assistance, health interventions, tax credits and emergency tax grants.
The second reform recommended by the researchers was offering new tools for the administration to be able to improve the disability determination process. The fact that it takes years in some cases to reach a conclusion, the researchers found, was often to the benefit of no one. And a failure to invest in continuing disability reviews, they found, actually costs the agency $9 for every $1 they fail to spend.
There is also, they found, a fair amount of inconsistency from state-to-state with regard to wait times and determination standards. The commissioner, the duo said, should be given the authority to streamline this process at the federal level.
Regardless of whether such reforms are implemented, we are here to aid you in the process.
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