Attorney Find Blog

David Hicks, the Australian native being held as a terrorist at Guantanamo Bay, was sentenced for commission of war crimes to only 9 months in prison. David Hicks is one of the worst-of-the-worst, but he’ll be out of jail before the end of this year. If this doesn’t sound right to you, join the club.

Hicks’ tribunal was the first to be completed since the White House overhauled the system following a Supreme Court holding that the tribunals violated Constitution protections and the Geneva Conventions protecting soldiers and others captured on the field of battle. Hicks’ plea bargain and nine month sentence shows just how screwed up the tribunal system remains.

Hicks arrived at the courtroom with three lawyers, one Marine Major and two civilians. By the end of the day, he had only the Marine Major to protect him. The judge dismissed both civilian attorneys on questionable premises. The judge also berated Hicks for his attire. He explained that Hicks should be wearing business dress rather than the short-sleeved, khaki prison garb he had on: Such proper attire would ensure that Hicks was adequately protected by the presumption of innocence.
Hicks then signed a plea agreement, admitting he had trained with Al Qaeda, guarded a Taliban tank, and had scouted a closed American embassy building. Hicks had fought on the battlefield for a mere two hours, before selling his weapon to raise cab fare to flee to Pakistan. Fighting in battle has never been considered a war crime, until now.

His plea agreement has a unique feature. Hicks agreed to recant his allegations of abuse while in detention and not to speak to reporters for one year. Jennifer Daskal of Human Rights Watch said this unusual agreement for Hicks’ silence indicates that the primary goal of the US Government is protecting itself from the “disclosure of abuse.”

Meanwhile, the Government continues to try to scare lawyers off. Recently, Cully Stimson, deputy assistant secretary of defense for detainee affairs, publicly called it “shocking” that major American law firms could represent Guantanamo Bay detainees free of charge and said they would likely suffer financially after their corporate clients learned of the work. He said, in an interview on Federal News Radio: “I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms” He added that he thought some law firms were not actually representing clients free of charge and were “receiving money from who-knows-where.” Who-knows-where is obvious code for Al Qaeda.

If the US Government really wants to stop terrorism, that means preventing the next generation from growing up as terrorists. The way to stop a new generation of terrorists is to be all we can be, to hold these trials fairly and above board. Muslims throughout the world want to see the bastards that killed three thousand people on September 11th punished for their deeds, but they also want the United States to lead, to show their own governments how to hold a fair trial.

We’ve all encountered clients over the years who have created terrible messes for themselves–sometimes messes we can’t fix, and sometimes messes that take months and thousands of dollars to untangle when the initial process would have been very quick and inexpensive by comparison.  It’s certainly understandable when consumers, unfamiliar with the intricacies of the legal process, hope to simply handle things on their own and save some time and money.  It often works out very poorly, but it’s an understandable impulse.

The impulse to profit off of those very people by promising them something comparable to legal services without the necessary qualifications is less understandable in my book.  In fact, it’s reprehensible.  We saw a version of this in February, when the Ninth Circuit Court of Appeals upheld a ruling that a seller of bankruptcy petition software was a “bankruptcy petition preparer” under the law. 

In that case, bankruptcy petition software had been touted as “an expert system” that could aid the consumer in selecting exemptions, populate information entered by the consumer to the right areas of the petition and schedules, and even provide “stealth techniques”.  Ironically (but not surprisingly) the software came to light when a trustee discovered errors in a petition and learned that it had been prepared using the “expert system” in question.

Now, the Minnesota Attorney General is suing two California companies who have taken the same concept to a much more profitable level.  American Family Legal Plan and Heritage Marketing and Insurance Services, Inc. aren’t preparing bankruptcy petitions, though–they’re preparing trusts.

According to the Attorney General’s office, the companies market estate planning services to senior citizens by direct mail. Then, an agent purporting to be an estate planner meets with the prospective clients at home and distorts and misrepresents the impact of probate fees and estate taxes.  The agents then sell boilerplate “living trust” plans to each client, regardless of assets, marital status, existing estate plan, etc.  The plan is “approved” by an attorney who never meets with the client, and the agent receives a commission of $600-800.

The Minnesota Attorney General’s office also indicated that the companies were the subject of lawsuits in at least two other states, North Carolina and Pennsylvania.

Sadly, in many cases the senior citizens apparently victimized by these companies could have received personal estate planning advice and document preparation from a qualified estate lawyer for about the same amount of money paid out to these companies for one-size-fits-all documents that might not protect their particular interests at all.

Joseph Kopera, a state police ballistics expert who testified throughout the state of Maryland, reportedly committed suicide last week after defense attorneys uncovered apparent discrepancies in Kopera’s educational records.  Attorneys working with The Innocence Project were reviewing transcripts of Kopera’s past testimony when they noted that his representations regarding his degrees were inconsistent from one case to another. 

Colleagues insist that Kopera was a skilled and dedicated professional, and that with or without degrees his work was above question, but from a legal standpoint it won’t be quite that simple.  The fact that Kopera apparently perjured himself in various court appearances will undermine the credibility of his testimony, even if was qualified to make the determinations he made. 

The Baltimore County Prosecutor’s office and the U.S. Attorney for Maryland have both reportedly indicated that they would be reviewing cases in which Kopera had testified.  While Prosecuting Attorneys have been quick to attempt to limit the scope of the inquiry and to point out that the revelation that Kopera’s credentials were not as they were presented might not have any significant impact, at least one former assistant state’s attorney sees it differently, and reportedly told the Baltimore Sun that the problem “cannot be overstated”, and that prosecutors around the state would likely be dealing with the fallout for years to come.

The Maryland State Police have been notifying prosecuting attorneys and defense attorneys across the state, while

Michelle Rodriguez offered a lengthy explanation for the fact that she’s still wearing an alcohol monitoring device on her website this week.  There’s a lot of information about false positives and shampoo and lemon water and Rodriguez’s purported offer to serve jail time instead of wearing the monitoring device, but the crux of the 1000+ word explanation seems to be that this kind of treatment just isn’t right for Michelle Rodriguez.

Her words:  . I think that level of vigilance is great for alcoholics, druggies, and heroin addicts. Yet I felt for someone like me, who loves her life too much to f*ck it up for a sip of a beverage, this level of control just isn’t necessary.

What’s especially interesting is that Rodriguez’s declaration that this kind of monitoring is “great” for the real bad guys, just not for her, comes on the heels of her argument that it doesn’t work, and that her whole experience has been a string of false positives.  She says that she feels like a guinea pig for new technology and then, in the very next sentence, tells us that’s great for other people, but not for her.

The technology either works or it doesn’t. I haven’t heard a lot of reports of false positives, but it is a new device and there may still be bugs.  If there are still bugs, those bugs will likely occur just as often when the device is attached to a lowly heroin addict as they do when attached to Michelle Rodriguez.   One thing we know about the device is that it monitors ALCOHOL content, not heroin, so Ms. Rodriguez’s reasoning may be a little questionable when she suggests that it makes more sense to put an alcohol-detecting device on a heroin addict than on a repeat drunk driver–which, in case we’ve lost sight of that fact in the face of all this drama, Michelle Rodriguez is.

Even if she does assure us that she “loves her life too much to f*ck it up for a sip of a beverage”.

For celebrity DUI news, visit our affiliate’s Celebrity DUI Spotlight

Recently, we talked about the Florida legislature’s issues with the state’s personal injury protection law, which will sundown in October. While the debate over whether or not personal injury protection should be required rages in Florida, Michigan lawmarkers are debating another facet of n0-fault insurance: the prohibition on lawsuits for all but the most serious of injuries.

In Michigan, personal injury protection covers not only medical bills but up to three years of lost wages. But in order for a car accident victim to sue for additional damages such as pain and suffering, the injury must impair the victim’s “general ability to lead his or her normal life”. A restrictive State Supreme Court ruling in 2004 determined that the injury must affect “the course and trajectory” of one’s general life. According to a representative of the Coalition Protecting Auto No-Fault, the State Court of Appeals has ruled against injured parties and in favor of the insurance company in 140 of 165 cases heard since that ruling.

Now, some lawmakers are attempting to reverse the impact of that decision, but Michigagn Republicans and automobile insurance companies say that reform would bring a flood of lawsuits.

There’s an interesting post on The Divorce Blog about a proposed Maryland law that would require Orthodox Jewish men filing for divorce to sign an affidavit indicating that they had removed all religious barriers to remarriage for their wives. Under Jewish law, a man must release his wife before she can remarry after a divorce, although there is no such restriction on remarriage by the husband.

The proposed legislation raises interesting questions about the already murky division between state authority and religious commitment in the marriage arena.

Last week, the California Supreme Court unanimously rejected a tobacco industry claim that the statute of limitations in tobacco limitations cases should start running when the plaintiff first becomes aware of the addiction. The argument wasn’t unfounded–it has roots in a 2002 9th U.S. Circuit Court of Appeals ruling that has stopped other similar cases over the past several years.

The California Supreme Court ruling opens the door for those and similar cases to go forward. The plaintiffs’ attorneys successfully argued that a plaintiff who discovered him or herself addicted to tobacco couldn’t reasonably be expected to guess the he or she might one day develop cancer or emphysema and file suit. In fact, such claims would likely be dismissed as frivolous, since evidence of any damages would be lacking.

The California Supreme Court ruling provides a green light for stalled tobacco litigation in California.

Those of you who practice bankruptcy law, or who have filed for bankruptcy protection, or who have simply taken the time to educate yourselves about the bankruptcy process have probably noticed a definite tendency in the mainstream media to mischaracterize the process and its outcome. For instance, despite the fact that numerous studies have indicated that, after the initial flood and then drop-off in bankruptcy filings before and after the October 2005 law change, there has been a steady increase in filings, newspaper headlines continue to scream “Bankruptcy filings have declined by more than 50%” and such.

And although most experts agree that while bankruptcy is more complicated, more time-consuming, and more expensive than it was before the “reform”, most data suggests that the actual impact in terms of qualifying for bankruptcy protection has been virtually non-existent–credit counseling agencies charged by the U.S. Trustee’s office with helping pre-bankruptcy candidates assess their options have indicated that fewer than 5% of them have any other realistic option.

Perhaps that’s not surprising in view of the size and power of the public relations machine controlled by the consumer credit industry–the industry that stands to gain the most is the average consumer in financial trouble believes that he can no longer file bankruptcy.

Even in view of all that, I was surprised to view a press release this morning that announced “Bankruptcy Won’t Stop Foreclosure for Troubled Borrowers”. A careful reading of the article reveals that the headline is ever-so-cautiously balanced on the obvious fact that bankruptcy won’t allow a homeowner to simply keep his home and stop making payments on it forever…a far cry from “won’t stop foreclosure”. Unfortunately, many consumers won’t read the article carefully, and will only absorb the misleading headline that gives the false impression that their options are more limited than they might have believed.

Last spring, the Illinois legislature received a report based on a year-long pilot program designed to test a different procedure for police line-ups and photo identifications. Instead of including a suspect in a traditional line-up or a photo array, a witness would be shown photographs, or live participants, sequentially. Researchers generally agreed that sequential exposure should result in a smaller number of false identifications, both because participants would study each candidate more carefully and because comparative evaluation (wherein a witness compared photographs or participants to one another and would be more likely to choose the “closest” one) would be avoided.

However, the report to the legislature included surprising findings, and those findings, the NACDL says, are being used to fuel resistance to line-up procedure reform across the country. Thus, the organization wants access to the data used to support the reports conclusions.

In response to the skyrocketing number of subprime mortgage foreclosures across the country, the U.S. Senate Committee on Banking, Housing, and Urban Affairs held hearings this week on the issue of predatory mortgage lending practices. Senator Christopher J. Dodd said in his introductory statement that “this important source of wealth [home ownership] for so many American families is under a grave threat from predatory, abusive, and irresponsible lending practices undertaken by too many subprime lenders.”

The Committee heard or gathered written testimony from representatives of the National Association of Mortgage Brokers, the Mortgage Bankers Association, AARP, Rainbow PUSH Coalition, and the Center for Responsible Lending.

The Center for Responsible Lending has projected that foreclosures on subprime loans will soon reach 20%, and several consumer advocacy organizations have pointed out that these loans are made disproportionately to minority applicants, without regard to credit history or ability to qualify for more favorable loans.