Indiana’s Civil Forfeiture Laws Being Challenged

We all make mistakes in life, and it’s how we learn from them that largely determines our character and future. Criminal defense attorney Jeff Cardella works with clients every day who have found themselves on the wrong side of the law. While it’s important they receive fair punishment, Cardella feels that civil forfeiture is taking things too far.

Recently his client, Leroy Wilson, was charged with resisting arrest, dealing marijuana, and obstruction of justice. In addition to jail time and other penalties, law enforcement seized his vehicle. There is a law protecting this action, and Cardella and his client are challenging it with the argument that it’s a violation of the constitutional right to due process when this occurs.

The complaint states that the law currently “allows the executive branch to seize and hold the vehicle of an owner for several months without affording the owner the right to a postseizure preforfeiture hearing to challenge the seizure.”

The motivation for the lawsuit is not a monetary one. The defendant in this case simply wants his vehicle back, and Cardella truly feels the current laws are wrong and violate the rights of his client and so many others across the country. While the suit is currently limited to the Indianapolis Metropolitan Police Department, which seized around $48,022 in personal property in 2014 alone, the outcome could set a precedent for the rest of the country.

Across the country, there are nearly 400 statutes regulating federal forfeiture, and every state in the nation allows for forfeiture to take place. While there are arguments being made to defend civil forfeiture, Cardella and his client hope to at least make changes to the time allowed to hold seized property.

In Indiana, a vehicle can legally be held for up to six months by the executive branch. However, this time can be further extended when a forfeiture claim against said vehicle is filed within 180 days. While proponents of current laws argue that it’s only “drug dealers and the like” who are impacted, Cardella feels nobody deserves to be subjected to such treatment.

Preliminary Injunction Against Overtime Rules to Protect Employers

An Indianapolis federal judge has rejected the proposal of an extension to the mandatory overtime pay rule. This decision will impact the entire country as it will delay the implementation of the rule across the nation.

Twenty-one states took part in a lawsuit that was geared toward changing the fact that employers have been able to neglect paying overtime compensation to those making $23,660 or less. By classifying them as exempt, employers are able to get more than 40 hours of work out of salaried employees without having to compensate them for their added time.

There are many things that led to the deterioration of the traditional 40 hour work week, and a growing number are being asked to put in more hours. While this can be an incentive for hourly employees, salaried employees make the same amount of money regardless of how much effort they put into the job. The new rules are pushing to require employees to pay overtime to salaried employees making less than $47,500.

Included in the states that are pushing to pass the new rule are Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas, Utah and Wisconsin.

Just one of the reasons implementation of the rule has been delayed is to protect employers and give them more time to prepare for the added expenses in pay for employees. However, it’s also expected that receiving compensation for overtime work will boost the morale of employees, and this can easily provide enough of an impact that will make the new expense one that can be viewed as a beneficial investment worthwhile for the company to make.

The new rule was supposed to take effect on December 1. The recent preliminary injunction impacts millions of workers across the country with around a quarter of a million in Indiana alone. In response to this action, Arkansas Attorney General Leslie Rutledge reports that she feels the judge’s decision is one that will help determine the full legality of the rule.

Efforts Made to Draft Helmet Laws in Indiana

Indiana state lawmakers have partnered with a mother whose daughter died in an all-terrain vehicle crash while not wearing a helmet. It’s her goal to have a helmet law along with mandatory safety education drafted before children can be allowed to ride ATVs.

Capt. Bill Browne supports Play for Kate, and he acknowledges that the lack of proper safety precautions accounts for a large number of accidents involving ATVs. The efforts are making headway, and Rep. Ron Bacon has already begun the process of drafting a bill that would establish rules to make the enjoyment of ATVs safer for kids.

According to the preliminary draft, children under the age of 16 or 18 would be required to wear protective headgear. Browne argues that, just as those preparing for the operation of a motorcycle, anyone seeking to use a large ATV needs to display that they understand the potential dangers involved as well as the proper safety precautions to employ to minimize dangers. He has included the requirement for education for riders and families as part of his draft.

Opponents to the movement argue that helmets limit peripheral vision, and this in itself is a more eminent danger. Patty Reyling also lost her son in an ATV accident, and she blames helmets. She said, “My own son will argue that (a helmet) cuts out your peripheral vision.”

Reyling is also an activist, and she operates a website, Know Your Limits, Learn to Ride to Live. While she argues this potential new legislation, she does believe there could be a middle ground that should be reviewed. She believes there needs to be a change in the design of helmets for ATV drivers and riders.

State officials report that 16 fatalities were directly related to ATV accidents last year, and there have already been six statewide as of June 9, 2016.

A Recipe for an Effective Closing Argument

20120115-144530.jpgBelow is a summary of some thoughts dealing with closing arguments which I would like to share.  Like a good meal, a closing argument is something which requires careful preparation and a judicious mix of ingredients in the appropriate quantities.   Below is my recipe for an effective closing argument.

Goals

            While it may seem intuitively obvious, the central goal of any closing argument is to prevail on behalf of your client. Any other objective is secondary. This is your last opportunity to speak with the jury and you don’t want to waste it. Below are some thoughts concerning how to best compile the central goal on behalf of your client.

Strong Opening Grab their Attention

As far as I am concerned, you want to begin strong and end strong. You are the director, producer and central author of the closing argument. Syd Field is the author of a number of books on screenwriting. His principles have equal application to the formulation of closing argument. In his book, Screenplay: Foundations of Screenwriting he talks about how important the first 10 minutes (approximately 10 pages) of your script are.  Screeners of scripts will typically look at the first 10 pages of the screenplay and if they don’t like it, they quit reading and toss the script to the trash pile.

Jurors are not much different. If you haven’t caught their attention in the first few minutes of closing argument, they are probably going to start daydreaming about what they will do once they’re out of the trial. Instead of spending a bunch of time at the beginning of closing thanking jurors or their service, I would recommend grabbing their attention with a snappy introduction while you have their undivided attention.

Themes

Themes act as a unifying thread of your case. It is a thing that motivates the jurors to take action. There are number of potential themes.  Watch movies and see how things are developed and the best ones. In fact, I have a book that contains nothing but quotes from various movies which I tried to interject in my closings to make them more interesting and compelling. Below is an example of a closing argument that I gave which dealt with the themes “profits over safety” and “accepting responsibility”.  This is the same case discussed earlier in my materials on direct and cross examination.  Here is the introduction:

This is an important case.  It’s important for a lot of reasons – most importantly, as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. King did not accept responsibility.  Mr. King ignored facts.  Mr. King ignored laws.  Mr. King was concerned about one thing and one thing only and that was himself.  One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety.  There are a lot of good reasons why we have our safety laws, but as I discussed you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible.  Below is a short list of some common themes:

Safety –  We do not allow profits to take priority over safety.

Keeping Promises – A man’s word is bond.

Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.”  That is what happened here.

David & Goliath [Right v. Might]  –  Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.

Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.

 Right vs. Wrong –  You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.

Failure to Accept Reality –  Don’t Confuse me with the facts, my mind is made up.

Greed/Selfishness –  Such things often lead people to take short cuts and ignore their responsibilities to others.

Struggling to Overcome Impossible Odds –  Everyone cheers for a person who bravely soldiers on against difficult circumstances.  Perhaps your client was seriously injured and has struggled to regain some semblance of his life.  His efforts are heroic and worthy of the jury’s admiration.

Themes in cases are virtually endless and only confined by your imagination.  All great literature, including the bible, strike various themes that describe why we and what we should do.  Tap into these themes and use them to unify your argument.

Keeping Your Promises

As you move through your closing, it is important to link back to the themes and promises you made in your opening statement to show that you have fulfilled the obligations assumed in your opening statement. That is one of the reasons why you don’t want to promise anything in your opening statement that you can’t deliver on during the course of the trial.

Likewise, if your opponent has made promises and failed to fulfill them, you want to be able to point this out to the jury.  That’s why you always want to keep good notes of your opponent’s opening and in some instances you may even want the court reporter to partially transcribe the opening to drive the point home so that it can be quoted verbatim from the official transcript of the court.

Provide a Clear Request for Action

At the end of your closing argument, you want to clearly request the jury to take particular action on behalf of your client. This request for action can be addressed as you move through your closing. However, I always have a strong ending in my closing requesting action on the part of the jury.  Closing argument is similar to a pregame speech provided by a coach to his/her players. You want to motivate the jurors to take the action desired on behalf of the client.

If you can’t clearly request action on behalf of your client, how is the jury supposed to do so?  Here, is an example of such a call to action:

Our client would rather have his life back than a $1,200,000 verdict.  I suggest to you this is a seven-figure case.  I’ll leave it to your discretion to go through and look at these damages and analyze the jury instructions.  This case has been a heavy burden on our client.  It’s been a heavy burden on the attorneys to work it up, as you’ve probably seen these last four days.  But today we sit down and the job becomes yours.  And we appreciate your time and your attention to the case and know that you’ll do justice for him.

How Can I Help You?

I remember seeing Kent Rowe Sr. of South Bend, Indiana give a fairly dramatic introduction to defense closing argument in a serious personal injury case.  He looked at the jury and  asked:  “How can I help you?”  He stood there a moment, paused, and once he had the eyes of all of the jurors he moved forward and did just that… helped the jurors.  He answered questions about how they go about their job in looking through the evidence and applying the facts to the Court’s instructions.  He showed them how to handle the form of verdicts.  He posed and answered questions that were likely on the jury’s mind concerning the issues in the case.  By opening in such a fashion he crawled into the jury box and truly helped them to fulfill their duty to the justice system.

That is what we are called to do every time we deliver a closing argument… Help the Jury   reach the outcome we desire for our client.

Looking Good and the Art of Cross-Examination

Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it. – John Henry Wigmore

There are a number strategies out there regarding cross-examination. One of the more advanced theories of cross-examination consists of the simple objective of “looking good.” This theory of cross-examination is touted by Terry MacCarthy in his book MacCarthy on Cross-Examination, American Bar Association, 2007. His book outlines a simple process which allows the cross-examiner to look good while exercising maximum control over the witness through the use of short declarative one fact statements which require the witness to answer “yes”, “no”, or “I don’t recall/know”. The essential strategy, begins by defining the area of questioning in the following way:

Q. I am going to ask you some questions about [the topic in question]. Understand?

Once the precise area of questioning has been defined, the questioning begins. Below is a short example of this form of questioning:

Q. I am going to ask you some questions about the car that drove past you that night. Understand?

A. Yes.

Q. It was a Ford?

A. Yes.

Q. Red color?

A. Yes.

Q. Two-doors?

A. Yes.

Q. Male driver?

A. Yes.

Terry MacCarthy demonstrates how this simple format confines the witness and allows you to control the course of examination. In addition, the use of the short one fact questions allows you to be the storyteller and prevents the witness from taking control of the examination. Even if you are not scoring any particular key points, this format of questioning will allow you to look good as an advocate and speak directly to the jury. He suggest that you deliver the questions to the jury and look to the members of the jury panel instead of focusing your attention on the witness. This allows you to build report and credibility with the jury the process of questioning the witness. Throughout the course of his book, MacCarthy covers various nuances of the basic system. However, the anatomy of the examination always follows the format outlined above. in this book, MacCarthy emphasizes the need to frequently define each new area of questioning through the basic setup question: I am going to ask you some questions about [the topic in question]. Understand? If the witness fails to cooperate answer the question, they will look bad. The attorney on cross examination, can simply come back to the short leading question and ask for example:

Q. Mr. Smith, I am asking you questions about the car that drove past you that night. Understand?

A. Yes.

Q. The car was red?

If the witness quarrels with the examiner, the witness looks bad while the questioner continues to look good because there is no excuse for failing to give a straight answer to such a short and direct question. Terry MacCarthy’s method of cross-examination is covered in a series of YouTube videos. The link to the videos is listed below:

Part 1: https://www.youtube.com/watch?v=QcOkG9-TpEo&index=15&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 2: https://www.youtube.com/watch?v=f1kTgKZuQjY&index=14&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 3: https://www.youtube.com/watch?v=XzzvvtJEtDo&index=13&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 4: https://www.youtube.com/watch?v=BcTTakWYlbs&index=12&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 5: https://www.youtube.com/watch?v=V3geSkXvS7g&index=11&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 6: https://www.youtube.com/watch?v=LTWr03VIS2E&index=10&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 7: https://www.youtube.com/watch?v=yuCF078wooo&index=9&list=FLpWQuA5b8JFENHxyeOk2mZg

The lectures by Mr. MacCarthy took place at Case Western University School of Law over the course of a week. As a federal public defender Mr. MacCarthy knows how important it is to look good since oftentimes as a criminal defense attorney you have little to work with in defending your client. If you are interested in purchasing the book, then click the title above and you will be redirected to Amazon where you can purchase the book for approximately $80. I trust you will find this method of cross examination both easy to employ and effective to use with all sorts of witnesses.

Have Anti-Texting Videos Gone Too Far?

 

You know things must be getting serious when schools and police departments start publishing videos that seemingly broach the level of what many consider decency. This latest trend has been developed as a scare tactic to warn drivers (teenage drivers in particular) about the dangers of texting and driving. To see one of the most talked about videos of this kind click here.

How Big of a Problem Is Texting and Driving?

Though the numbers for 2013 are still out, statistics prior to a couple of years ago attribute cell phone use in one way or another to a whopping 23% of automobile accidents. That translates into over 1.2 million accidents in the United States alone. And if you think that teenagers are getting the message, in 2012, answering a text message while driving was still a problem among nearly 50% of driving teenagers. But texting is only part of the problem, because even talking on your cell phone – whether hands-free or not – can be just enough of a distraction to cause an accident. Almost 59% of people that drive will actually admit to having a conversation on their cell phone while doing so. And emails? Well, apparently only around 15% of drivers are guilty of that – or at least are willing to admit to it for a survey.

Drunk Driving, Elderly Driving And Cell Phone Use

Whether we like to admit it or not, as we age, our reaction time decreases. A person using a cell phone has the approximate reaction time of a seventy-year-old age impaired driver. And sadly, it’s not just drunk drivers and texting drivers that suffer the consequences. Young and old alike have sad, sad stories about losing a mother or father, grandmother or grandfather, sister or brother, or best friend to the actions of a texting driver. Just because you’re texting doesn’t mean you’re the one that’s going to survive of course, but you put so many other lives in your hands by simply answering your cell phone… why would you?

Pullover, park and answer your phone if you must. But while you’re driving, do the right thing people – put down the cell phone. Save a life.

From the Legal ‘Strange but True’ Files

Not all legal cases are those seen on the ever popular TV series Law and Order. As most lawyers know, many of the legal issues tying up courts today are nothing more than nuisance cases. But hey – it’s a living and even nuisance cases can pay the bills when you are a struggling new lawyer, fresh out of the gate. Just for fun however, here are couple of cases that probably shouldn’t have seen the inside of a courtroom… But did.

McDonald’s Didn’t Make My Wife Fat, Cable TV Did

It’s good to see McDonald’s getting a break from all of the “you made me fat lawsuits”. A guy in Wisconsin that apparently has a hard time getting up off the couch – for various reasons – decided to sue the cable company because his channel surfing kids were lazy and his wife had become extremely overweight. And he wasn’t suing for money mind you. Oh no, all he wanted was lifetime Internet service and three new computers. Apparently being parked in front of a TV screen trumps vegging out in front of the computer screen. The judge suggested that he and his family could’ve watched something else and possibly execute a little exercising while doing so.

The ‘Bear’ Facts

Nearly every lawyer knows that some people will sue absolutely anyone for absolutely any reason. One financially devastated beekeeper however decided that he would take on what he considered to be the reason for his financial struggle – a bear. Even though loud music and flashing lights were used as a distraction this poor beekeeper could not discourage the local bear from raiding his hives of all their honey. Oddly enough, he won his court case. Mother Nature was not forthcoming however with payment for any damages.

I suppose you have to give credit where credit is due – sometimes you get an ‘A’ for effort if nothing else.

Lawsuits That Were Just Plain Kid Stuff

 

It’s apparently the ultimate insult to say that something has gone to the dogs. Which undeservedly gives dogs quite the negative reputation. The following two stories involve not dogs but lawsuits that relate more to child’s play by taking the word ‘judicial’ and turn it to ‘juvenile’.

Every Little Girl’s Got a Barbie But…

You may or may not be familiar with the song ‘Barbie Girl’. It was a fun little number that skyrocketed to the top of the charts on radio stations everywhere. Unfortunately for the record label, Mattel, the makers of Barbie, were not amused. They were in fact outraged that the song not only infringed upon what they considered their right to the doll in the first place but they were less than happy with many of the lyrics. And of course the record company had to counter file with their own complaints. Not only the judge in the initial case but the Supreme Court judge told both Mattel and the record company to chill out – literally. You’ve got to love a judge that tells it like it is.

Divorced Dad Loses Lawsuit From Grounded Kid

There are certain people that you just don’t mess with. A 12-year-old is apparently now among them. Angry that her father grounded her (and did so because she posted some questionable pictures online), this little girl decided enough was enough. The child already had her own lawyer, as is common with many children of a divorce, so he was more than happy to assist. Apparently the rights of the child were being infringed upon by her father’s reluctance to let her post questionable things online and still be able to go on little excursions with her classmates.

It never ceases to amaze, the lengths to which some people will go. You just can’t make this stuff up!

Show Me the Money! Huge Financial Settlements Settled in Court

Sometimes going to court is the only way to get what’s coming to you. And oh boy, do some people ever get what’s coming to them… And then some! If you were devastated by a lawsuit in the past, you may be able to identify with the following cases. Chances are however, the price paid by these poor souls might actually make you feel a whole lot better about the loss of your case. It pays to have a good lawyer.

Lost at Love, and That’s Only the Beginning

Maybe you can’t hurry love, at least according to the Supremes, but contrary to what another popular music group says (The Knack) you can put a price on it. One of the largest money court cases ever revolves around divorce Australian style. An initial payment of $110 million was just the beginning. The final sum totaled out at over $1.6 billion. That’s what you get for choosing a 30-year-old youngster over your second wife. Seriously, the first wife didn’t teach you enough of a lesson? It makes you wonder what the first wife was thinking when she saw the settlement that the second wife received. Is there a statute of limitations on how much you can sue someone for in a divorce case?

Live to Ride – But Protect the Family Jewels

You probably didn’t hear about this and that comes as no great surprise. But Harley-Davidson, thanks to an accident involving an accelerator that had a tendency to stick, ended up paying out almost $10 million to a very sad individual that experienced the opposite effect of what most guys by bikes for. Let’s just say, he wasn’t going to be impressing the women anytime soon… in any way, shape or form. (Ouch.)

When it comes to millions and billions of dollars, it is most frequently a court case involving wrongful death or injury that brings in that kind of a settlement. But as shown by the divorce case above, a broken heart apparently qualifies as such.

Look up the Word ‘Frivolous’ and You Might See These…

 

Filing lawsuits is a serious prospect. It is not to be taken lightly and judges tend to frown on many of the frivolous lawsuits that are taking up the courts’ time and money these days. Whether it is a sue-happy generation in which we live or simply the lack of common sense and the ability to take responsibility for our own actions remains to be seen. The best non attorney advice available… Making a mountain out of a molehill is not what the United States justice system is for.

The Case That Started It All

… And would you like cream and sugar with that lawsuit? Yes, it is none other than the hot McDonald’s coffee lawsuit filed way back in 1992. It seems forever ago that poor old Ms. Liebeck decided to forgo the cup holder in her car and instead, in her infinite wisdom, placed the ‘contents may be hot’ coffee cup precariously between her legs while driving. Surely, you already know the rest. It didn’t stop there however. People continued to sue McDonald’s for that same hot coffee and for making them fat. Though initially decided in her favor, money totaling under $600,000 was eventually the settlement out of court. Quite a difference from the initial punitive damages/2.7 million dollars and compensatory/$600,000!

Definitely No Laughing Matter

When you hit and kill a boy on a bike with your car, one would think that the devastation alone would be enough to scar you for life. Being expunged of any responsibility because, technically, the boy was not wearing or using the appropriate reflective gear at night might make you feel less to blame… but the feeling of guilt may still eat away at you. Apparently however, that is not always the case. Additionally, the driver just described also tried to sue for damage done to his car during the mishap.

Is it possible, do you suppose, to counter sue someone for idiocy?