Friday, May 27, 2011

Anthony Trial - Day Three

Yesterday was the most interesting day yet of the Anthony trial. The state continues to build on the story that they told during their opening statement by presenting witness testimony regarding Ms. Anthony's activities while her daughter was missing (or after she drowned if you believe the defense theory).

The interesting parts came from the defense. As part of their case, the state recalled Mr. Anthony to the stand. Mr. Anthony is the person who the defense says found the girl's body and then covered up the death. If the defense stands any chance to make that theory work, they must be able to make Mr. Anthony look like someone who would do such a thing. They are going to have to confront him and win the battle of words.

Well, it appears from yesterday that they won't be able to do that. Yesterday's testimony concerned two gas cans and the duct tape that was found on them. When the defense attorney cross-examined Mr. Anthony on these issues, Mr. Anthony was able to turn the tables and absolutely dominate Mr. Baez. The question that needs to be asked is - if you can't get control of the witness and keep control of the witness when you are discussing gas cans and duct tape, how will you be able to do it when you are making accusations of abuse and covering up the death of a child?

Other cracks appeared in the defense, too. Mr. Baez simply does not seem to know his way around a courtroom. He doesn't seem to have a good grasp of the rules of evidence. At one point, he attempted to question Mr. Anthony about a photograph. However, he didn't lay the proper foundation for the admission of the photograph into evidence. The judge sustained objections. The attorneys approached the bench for a sidebar. He kept trying to ask the questions. Finally, the judge sent the jury out and basically took Mr. Baez out behind the woodshed in open court and on the record.

Another example came when Mr. Baez wanted Mr. Antony to mark on a calendar that they set up as a demonstrative exhibit. He approached Mr. Anthony and gave him a marker and instructed him to move to the exhibit. At that point, the judge told Mr. Anthony to sit down and asked Mr. Baez if he had anything he wanted to ask him (the judge). Mr. Baez looked confused for a few seconds before finally asking the judge's permission for Mr. Anthony to step down to the exhibit.

Perhaps this last is picking nits, but the cumulative effect of all these missteps on the jury will likely be profound.

But perhaps the most telling thing about the defense is something that came into play after the jury was excused for the day. The defense made a motion to strike all the testimony related to the defendant's activities during the time between the girl's disappearance and the time that the disappearance came to light. They argued that the evidence was inadmissible because it was calculated to show a lack of remorse on the part of the defendant. Evidence of lack of remorse is not admissible in the guilt phase of a trial because the defendant has not yet been found guilty of anything for which she should feel remorse. The prejudicial effect of such evidence outweighs its probative value. The defense presented case law from the Florida Supreme Court to that effect.

Talk about closing the barn door after the horses get out. Why didn't they make this motion pre-trial? Waiting until the end of three days of this kind of testimony tells me that they are disorganized. The jury has already heard it and you can't unring that bell. The only remedy would be a mistrial. So, the judge denied the motion.

It is easy for me to sit here and judge. I know far less about this case than the defense does. It just seems to me that the defense is stumbling around in the dark, while the prosecution has a well designed game plan and is executing it perfectly.

It does not look good for Ms. Anthony.


Thursday, May 26, 2011

Anthony Trial - Day Two

Day two of the Anthony trial in Florida was uneventful. The state is presenting its case exactly as they laid it out in the opening statement. They began by focusing on showing the jury how Ms. Anthony went about living her life and seemed to enjoy it with no concerns at all, when all the time her daughter was missing. This is something that the defense will absolutely have to overcome if they are to get a favorable outcome.

The defense's strategy on this point was laid out in their opening statement. They contend that her behavior was a result of sexual abuse by Mr. Anthony. They reason that Ms. Anthony was used to hiding traumatic events in her life and that the death of the child was just another in a series of such events.

I have to tell you, I don't buy that. And I am a defense attorney. If they can't convince me, I doubt that they will convince a juror. But, the evidence is not all in so we should wait to draw conclusions.

The defense didn't have much to do with these witnesses. Basically, they are conceding that their testimony is true and correct and will be presenting their explanation when it is their turn. It looks like they will have to put Ms. Anthony on the stand, which will open her up to cross-examination by the state - always a risky proposition.


Tuesday, May 24, 2011

Anthony Trial - Day One

While working today, I set up a feed of the Anthony trial in Florida on my monitor so I could watch it. Today was opening statements. It is a fascinating case. The defense has a very interesting theory of the case and I am going to enjoy watching them try to prove it. Basically, they are now saying that the little girl died in an accidental drowning and that the defendant and her father tried to cover it up.

As I was watching, I thought how much fun it would be to take one trial, like this one, and teach a class dissecting the video once the case was over. You could make a whole semester out of a long trial, like this one is bound to be, or a shorter seminar out of a smaller trial. If the class was composed of practicing attorneys, everyone would come away as a better lawyer.

For today, I would give the prosecutor a B+ and the defense a C-. The prosecutor told a compelling story in her opening. The technique of going through each day that the girl was missing and showing the defendant's activities on that day was masterful. It told exactly the story that the state wants to tell.

The defense fell short of telling a compelling story. It was only near the end of the opening that I could really tell where he was going. He failed to reach out and grab the audience from the beginning. Their story is that the girl died in a drowning and that the mother lied about it because she was sexually abused and hiding things was normal for her just doesn't resonate. There is also an issue with the facts, as I understand them. If the mother and the grandfather hid the body, and someone else came along later and placed the body where it was ultimately found, why would the mother not have informed police long before now of this fact? Would she not have wanted a forensic examination of the original disposal site made to discover any evidence that would support her story? Answering those questions in a believable manner will be critical to the defense.

Day one caught my interest enough that I will be watching tomorrow, as work permits.


Tuesday, February 15, 2011

A Judge Does the Right Thing

I was just reading that a judge in Virginia refused to follow a ruling by his state Supreme Court because that ruling would result in a violation of a criminal defendant's rights as established by the United States Supreme Court.  At issue is the obligation of an attorney to advise his criminal clients of the immigration consequences of a conviction or guilty plea.  That obligation was imposed by the United States Supreme Court in Padilla v. Kentucky.

The Virginia Supreme Court ruled that certain procedures are not available to raise the issue in state court post conviction relief proceedings.  Judge Dean Worcester disagreed and permitted a criminal defendant to raise the issue.  His rationale was that not permitting the issue to be raised is the equivalent of denying the right in violation of the holding in Padilla.  His opinion can be found here.

Without taking a position on whether he is right or wrong, it is nice to see a judge who understands that he has the same responsibilities as appellate court judges when it comes to following the constitution.  I am reminded of a hearing on a motion to suppress that I had in a case in east Tennessee a year or so ago.  The issue there was the recording of a criminal defendant in her home by a paid informant.  Many states have held that these recordings are inadmissible.  Tennessee has never ruled.

After completing my argument, the judge stated that he thought that it had merit but that he was going to deny the motion because, he said, these matters are best addressed by the court of appeals not trial judges.  I pointed out to him that he took the same oath to uphold the constitution as did the appellate judges but he was not swayed.

The rule of stare decisis, following the court decisions that have come before, is necessary in our legal system.  It is what brings stability to our rule of law. But blindly following precedent is just as damaging.  A judge must be free to uphold his oath to the constitution, no matter what level of the system he represents.  It is nice to see that at least one trial court judge agrees.


Friday, February 4, 2011

Observations about a Divorce Case at the Court of Appeals

I recently attended a Court of Appeals session to observe my husband, also an attorney, make his first Court of Appeals oral argument.  While we were anxiously waiting for his case to be called, we had the opportunity to watch other cases.

One case in particular was very interesting to me.  The facts as follows:  couple dates for 1 year; wife has debilitating stroke; couple continues dating for 4 more years; couple gets married; couple stays married for 20 years; couple gets divorced.

The marital estate at issue in this case was rather large and valued at over $7,000,000.  The husband made the argument at trial that because the wife did not contribute to the marital estate (because she had a stroke that he clearly knew about before they got married) by working or raising children (they were married in their mid-40s), that she should get less of the estate.  The trial court awarded the husband 60% of the estate, plus a large amount of stock options and the wife 40% of the estate.

The husband appealed the trial court.  His attorney stated that the husband felt like he was entitled to 70% and the wife should have only gotten 30%.  In my opinion, the husband won at the trial court and this appeal was just adding insult to injury.

During the wife’s attorney’s defense of the case, she stated that she felt like she “got a whooping” at the trial court and was embarrassed to have to defend this case in front of the Court of Appeals.  I was very impressed by her conversational style and preparedness.
Another fact that made this case memorable is that the wife’s attorney stated that the husband’s attorney was paid $130,000 in fees out of the marital estate before the division, and her attorney’s fees had not been paid out of the marital estate.  For a $130,000 fee, I expected to see some spectacular rhetoric and wit, or, at the very least, extreme preparedness.  Instead, I witnessed an attorney who was not even able to recall the value that his client had been awarded at the trial court level.
The Court of Appeals does not rule from the bench, and the parties in this case may not get a ruling for a few months.  I am interested to see how the case turns out.

Rachel Rieger

Wednesday, February 2, 2011

Always Learning

I was in court this morning to do a plea in a theft case.  While waiting to get the paperwork in order, I was able to watch the jury selection in a DUI case.  It turned out to be one of the best voir dires that I have ever heard.

One of the things that made it interesting was the defense attorney's education of the potential jury as to the burden of proof requirements in a criminal case.  As most people know, the state has the burden of proving facts to establish all the elements of a crime, while the defendant has no burden to prove anything.

The defense attorney asked the standard questions:

If my side doesn't even put on a case, would you find him guilty just because of that?  No hands popped up from the jury.

Do you promise to acquit him if you don't feel that the state has proven all the elements of the crime?  All hands held up.

What if the state doesn't put on any case at all, could you still convict him?  At this point, the jurors all raised their hands indicating that they could indeed convict.  That's when the defense attorney told him that they had been tricked and that this goes to the heart of burden of proof.  He then educated them by telling them that the state was required to put on a case, else they were not permitted to return a guilty verdict.

It was really much more effective watching it in the courtroom than it comes across in writing.

Here is the real point - I hadn't been up in a courtroom to watch a case in a very long time.  I used to go watch frequently, but as business picked up I simply didn't have the time to keep that up.  I think that's a mistake.  I think that you learn far more from immersing yourself in the courtroom on a regular basis than you do by taking continuing legal education courses or even by trying cases (you are too wrapped up in your case to really learn - unless you make a mistake, that is.  You always learn from mistakes).

I am seriously considering making it a requirement of this firm that every lawyer attend at least one jury trial per month.  Including me.  I think that would be a great way for each of us to develop, and keep, the skills we need in order to try cases.


Tuesday, January 25, 2011

Wrongful Denial Settlement

Today the firm settled the first of three pending wrongful denial of insurance claims cases that we are currently handling.  This one involved the theft of an automobile and the insurance companies denial of coverage for the claim.

It seems more and more insurance companies are denying claims out of hand.  We are close to settling both of the remaining two cases.


Saturday, January 22, 2011

First Win

Last week Rachel picked up her first win in a juvenile criminal case by getting a dismissal in a contributing to the delinquency case. Congratulations Rachel.  I am sure it will be the first of many.


Saturday, January 15, 2011

Judge Acknowledges Inequality of Representation

It has long been obvious to us little guys how difficult it is to file lawsuits on behalf of individuals against either the government or big business. Defendants like those have enough money to hire experts and obtain legions of lawyers who can generally bury us in paperwork and expense of litigation.

This week Federal District Judge Nixon, here in the Middle District of Tennessee, acknowledged the problem when he ordered a plaintiff's counsel to get more help. The case involved a challenge to the redistricting of a school district. Of course the school district, despite their constant claims of being strapped for cash, hired the biggest and most expensive law firm they could find (from Washington D.C. no less). That law firm hired what was described as a "handful" of experts.

Of course, the plaintiffs couldn't afford to compete with that, so when they showed up at the hearing with only a local lawyer and no experts, the judge noted the disparity. He then ordered the plaintiffs to seek the assistance of the NAACP Legal Defense Fund. Plaintiffs' attorney stated in comments after the hearing that he had already sought such help and was turned down.

This is, of course, a problem with the system. It seems that, if you have the resources, you can simply buy a victory - unless the plaintiff is very lucky. That's not always true, many times defendants attorneys will recognize the equities of the situation and settlements can be reached. But it is true enough of the time to present a problem.

I am not sure that Judge Nixon's solution will work - what happens if the plaintiffs can't find any organization to help? But it at least acknowledges the problem.

A newspaper article about the case appears here.


Friday, January 14, 2011

The Right to Appointed Counsel in Civil Contempt Matters

In a recent South Carolina Supreme Court case, Turner, the defendant, failed to pay child support in the amount of nearly $6000 and had not made payment in about a year and a half. The lower court held him in willful contempt of court and sentenced him to twelve months in jail, and this sentence was upheld by the South Carolina Supreme Court. (See Price v. Turner, South Carolina Supreme Court Opinion No. 26793).

The United States Supreme Court will hear the case to determine if an indigent defendant charged with civil contempt, as in Price v. Turner, is entitled to an appointed attorney to represent him or her in the case.

The American Bar Association recently filed a United States Supreme Court amicus brief in which they make the argument that appointed counsel should be provided by and paid for by the court when the indigent defendant faces incarceration for contempt, civil or criminal, of court.

The ABA’s arguments state that deprivation of the defendant’s liberty warrants the appointment of counsel. In essence, the argument is that just because the contempt is labeled “civil” in form, the resulting jail time makes the appointment of counsel necessary. The blurring of the lines between civil and criminal matters, as in child support contempt cases, makes this discussion necessary. The U.S. Constitution’s Sixth Amendment provision for the right to assistance of counsel in criminal prosecutions comes into play as well. Just because these cases are being labeled “civil” does not mean that they are not actually criminal prosecutions, bringing with them Sixth Amendment protections.

An economical discussion also is found in the ABA’s amicus brief which states that while appointed counsel will cost the state money, appointed counsel will also be able to “guard against the improper use—and the costs—of incarceration.

In sum, this case will be heard by the United States Supreme Court and many questions will hopefully be answered to determine whether civil contempt defendants, when facing incarceration, will be entitled to appointed counsel.

Rachel Rieger

Thursday, January 13, 2011

The Impact of Ransom v. FIA Card Services on the Bankruptcy “Means Test”

The Bankruptcy Code uses a statutory formula known as the “means test” to determine whether a debtor qualifies for a Chapter 7 or Chapter 13 bankruptcy case. Simply put, the means test compares the debtor’s household income averaged over the past six months with the median income of the state in which they reside.  If the debtor’s income is higher than the median, there is a presumption that the debtor has the means to pay creditors and a chapter 7 is inappropriate.  The debtor is forced into a chapter 13.  The means test is also used, in some districts, to determine the amount of the debtor’s chapter 13 payment.

In determining the six month average income, the debtor is permitted to take certain deductions.  The law says that those deductions may be calculated using the IRS standard deductions that the IRS uses to calculate debtor income when making payment arrangements or forgiving taxes.  One of those deductions regards expense related to motor vehicles.  That amount can include the amount of a car payment.

In the recent Supreme Court case Ransom v. FIA Card Services, the question before the Court was whether the debtor could claim a car payment deduction for a car that he owned free of any debt. The Court held that the debtor could not take a deduction for a payment that he did not have: “A debtor who does not make loan or lease payments may not take the car-ownership deduction.” A person who owns a car free of debt is entitled to the “Operating Costs” deduction for all driving-related expenses. However, a person may not claim the “Ownership Costs” deduction because that allowance is for the separate costs of a car loan or lease.

This holding has several implications for debtors. First, debtors may now be forced to make larger chapter 13 payments to unsecured creditors.  Second, the debtor may be forced into a chapter 13 instead of a chapter 7. There is also currently a case before the Court to determine whether the means test is used to determine the chapter 13 payment or whether a debtor may use the difference between the amounts on Schedules I and J (income and expenses).  That case, together with Ransom, will have a big impact on a debtor's ability to file a chapter 7 or to afford the payments of a chapter 13.

Brad Russell
Associate Attorney
Tim Hatton & Associates
104 ½ Public Square
Lebanon, Tennessee 37087
Tel.: 615-453-9934
Fax: 615-472-7868 

Wednesday, January 12, 2011

Interesting Supreme Court Arguments

The U.S. Supreme Court heard arguments today in a couple of very interesting criminal cases. The first was Kentucky v. King, an appeal from a ruling of the Kentucky Supreme Court excluding evidence obtained when the Lexington, Kentucky police broke down the wrong door while chasing a fleeing felon. The facts of that case are straightforward, the police chased a suspect into an apartment building where they lost sight of him. There were only two doors into which he could have gone. They approached the wrong door, claimed to smell burning marijuana, knocked and claimed to hear sounds as if someone was "destroying evidence." They broke the door down and observed marijuana being smoked.

The Kentucky Supreme Court held the search to be illegal and suppressed the evidence. Kentucky appealed to the U.S. Supremes. From reading about the argument (wouldn't it be nice if they televised these?), it seems like Kentucky will win and yet another of our protections against illegal search and seizure will go away.

The second is Sykes v. United States, which presents the issue of whether fleeing from the police in a motor vehicle after being ordered to stop is a "violent felony" for sentence enhancement purposes under the Armed Career Criminal Act. Seems kind of a no-brainer that it isn't. Running away seems calculated to prevent violence.

You can read more about these cases here.


Tuesday, January 11, 2011

Appellate Court Win

I am happy to announce that my firm won a significant case in the Tennessee Court of Appeals last month. The case is Sabaski v. Wilson County Board of Education, et al. The appeal was from a dismissal by the trial court of our claims for false imprisonment and assault. The basis for the dismissal was the defendants' assertions that the plaintiffs must first exhaust their administrative remedies under the Individuals with Disabilities Education Act (IDEA).

Our position was that IDEA only required exhaustion when the basis of the lawsuit was a federal statute that was enacted for the protection of disabled individuals (such as the Americans with Disabilities Act). Since the plaintiffs causes of action were grounded in state law, exhaustion was not required. The Court of Appeals agreed and reversed the trial court and remanded the case, which will proceed to trial.

Since this opinion is very detrimental to the defendant, far beyond the scope of this single case, I expect them to seek review by the Tennessee Supreme Court. It will be interesting to see if that court accepts the case.

Anyone interested can read the opinion by clicking here.

Friday, January 7, 2011

“Practice Points” for Dealing with Divorce

I am an attorney practicing primarily in family law matters, including divorce, child custody, child support, and other domestic issues. At the risk of sounding cliché, I enjoy this practice area because I love “working with people.” I have made some observations about particular behaviors people seem to fall victim to time and time again. This blog will give some practical advice to individuals who may be thinking about getting a divorce or who are currently going through one.

I offer the following “Practice Points” to get the discussion started:

1. Does your spouse call you constantly to attempt to harass or threaten you?

*Practice Point #1: You do not have to tolerate this harassment, abuse or threatening behavior.

As soon as your divorce is filed, a temporary injunction is put in place while the divorce is pending to prevent any harassment, threats, or abuse of any kind at any time, and the injunction also prevents disparaging remarks made while in the presence of your children or made in front of your employer.

If you have not yet filed for divorce, you still have the right to remain free from fear and harassment. If the threats are severe and cause you to fear for your safety or the safety of your children, you might consider filing for an order of protection, restraining order, or no contact order.

2. Does your spouse threaten to stop paying child support if you don’t comply with his or her latest demand or request?

*Practice Point #2: If the court has ordered child support, the spouse may not stop payments until there is another court order stating that payments may be modified or stopped.

If your spouse stops child support payments, he or she may be held in contempt of court for failure to comply with a court order. Your spouse is simply trying to manipulate you when he or she threatens to stop paying child support. He or she does not have the right to stop payments until there is a new court order in place to modify the support amount.

The consequences of being found in contempt vary, but a contempt charge may result in the violator being put in jail for up to six months for this violation of a court order to pay child support. In addition, the violator will be required to pay back the amount owed, and this “back child support” is commonly referred to as an arrearage.

I welcome the submission of any question concerning child support, divorce, or child custody matters. If any reader would like it to be addressed either in the blog or to the reader personally, please contact me and I would be happy to provide some information. My contact information is:

Rachel Rieger, Attorney
Tim Hatton & Associates
Phone: (615) 453-9934

Tuesday, January 4, 2011

Introducing Brad Russell

Brad Russel just made his first post to this blog. Brad is a new associate here who is focusing on consumer, small business and entertainment law. As part of our office new year's resolutions all associates will be making frequent posts to the blog.


The Difference Between Sales Tax and Use Tax and How This Can Effect Your Business

In today’s market it is common for even small local businesses to conduct their business all over the country. Modern technology allows orders to be received by phone, fax, mail, e-mail, and the internet from out of state customers. However, with great opportunity for profit comes great responsibility. When dealing with out of state sales, it is important to know the basic definitions of the two types of retail tax: sales tax and use tax.

Sales Tax is imposed on retailers for the privilege of selling tangible personal property at retail. The tax is measured by the gross receipts from retail sales. The obligation to pay sales tax is on the seller.

Use tax is imposed upon the storage, use or other consumption in this state of tangible personal property purchased from a retailer. The use tax rather than the sales tax applies to purchases shipped from an out-of-state point to an in-state consumer. The obligation to pay use tax is on the purchaser. However, many customers fail to report and that has resulted in recent changes to state laws.

The states that have changed their laws to place a duty upon out of state vendors to register, report sales, and collect sales tax have generally followed a single pattern. While the burden initially remains with the customer, if a company has a nexus within the state it is required to register and report sales and collect and remit the tax.

“Nexus” is a means of connection, a link between an in-state business and another state. What constitutes a nexus depends entirely upon the state’s law defining that term. It can be as little as making one sale in the state, or as much as maintaining an office there. The only way to find out if a business has a nexus with another state is to analyze the language of the state’s nexus definition. Because each state has a different nexus definition, this analysis must be done for each state individually.

It is important to note that the laws of most states require companies to respond to requests for information to determine whether they meet that state’s nexus requirements. Failure to respond to these requests could result in a company being sued by the taxing authority or having civil penalties imposed upon them.

As more and more states respond to their budget crises by attempting to increase sales tax revenues, it is important for every business owner to keep in mind that, even though they may not consider themselves to be doing business in a state, they might in fact meet the state's requirements for withholding sales tax. If there is any question, consult your business attorney.

Brad Russell