#before people ask i do a specific civil matter within criminal cases after sentences are complete

[crocodilefundie]

More things to keep in mind now that we are hearing more about what the defense expert is testifying to -

First, we're just getting media updates. We are not actually hearing everything the jury is hearing and more importantly we aren't hearing what things are being objected to and how the judge is ruling on those things.

Second, the prosecution has not crossed this witness, or at least has not done so fully. They have all night to construct their cross. They already had her report so they already knew what she would testify to

Further, they can re-call their expert as a rebuttal witness if they feel the need to do so

As a side note - there is a tiktok lawyer who somehow has time to not work for a week and instead watch this trial. I checked out her website, she's a person injury/family/criminal practice with one associate who's bio reads pretty new and she's a member of the NRA. I have thoughts I will not type out but uh there's a reason her recaps have, as some have noted, seemed to bias towards the defense

And finally, a reminder of my earlier post - everything comes together in the closing, which is also the prosecutions opportunity to clear up the confusion this witness is likely causing and again - prosecution gets the last word.

Edit: I took out "usually" because prosecution does get the last word, as @duggardata pointed out! (I blame my practice area where it's more up to the judge who gets the last word between me and the state for my adding in the usually but it's important to have this right when I'm trying to clear things up for you guys!)

[greenwaterskeeter]

I took fairly complete notes from an informational session held by local organizers and lawyers with relevant experience from the National Lawyers’ Guild. I learned a lot! At the beginning, it also includes some notes on how to approach going to actions regardless of outcome. Some portion of the information is Chicago-specific, but not all, and most of it translates within the US, I think. It’s at the link above, and also under the read more:

[missed first 5 minutes]

At Actions:

-wear nondescript, practical clothes. pants that allow motion: close to skin so as not to get caught. Jeans are better than sweats. Shorts are great, except that they don't protect you from sprayed chemicals. Wear pants that stay on, unless leaving them behind is something you're willing to do in a pinch (a strategy that Has Worked). Try not to have holes in clothes (they get caught on things). no jewelry, layer up. Ok to wear belts, although [presenter] doesn't like to need to wear one. Best to have as little as possible on you in case of arrest.

-if you have long hair, put it up out of your face. Hats are good: they can be taken off to change your identity if need be. Never ever wear sandals to an action. They will be lost and either way your feet are vulnerable. Wear shoes you're able to run in: shoes that tie. Broken-in tennis shoes are good. Boots, especially steel-toe boots, are very good, but only wear them to actions if you're used to wearing them (and running in them).

-Helmet: for batons and thrown objects. Bike helmets have limited usefulness bc they only take one hit. Skateboarding and skiing helmets take multiple hits. Construction helmets can work ok but don't stay on well usually. Spin is giving away helmets right now, all you have to pay is shipping.

-always bring goggles: not swimming goggles, not construction glasses. Goggles that 1. seal to keep out gases and 2. can handle high impact. Don't wear contacts either, and try to bring glasses that can break and not leave you without a pair.

-Gloves: go a size down from normal so they fit snugly. Welder's gloves are good for protection, including for picking up tear gas canisters. Any gloves are good for keeping your fingerprints to yourself.

-Multitools are useful, you never know when you'll need it. Umbrellas can be useful too.

-Backpack contains: snacks, water bottle with nozzle for washing out tear gas, gauze and bandaids, little towel (like a tea towel), extra N95 masks/respirators (which can be found at hardware stores and paint stores-- it's hard to keep moving when you can't breathe!), anything else you want.

-Tell people before actions that you're going, and make sure someone else at the action knows your full legal name and birthday so you can be gotten out more quickly in case of arrest

Social media: don't post videos or photos of yourself or others at actions, especially ones in which people are identifiable. This amounts to snitching. Don't wear logos or other identifiable clothing (see Etsy arrest and conviction). Also, don't post pictures of yourself or others NOT at actions but showing off stuff taken from cops etc.

-National Lawyers' Guild > National Bar Association

If Arrested (in Chicago):

The result of being stopped by police is only likely to result in a ticket and immediate release at actions organized with the input and approval of police: scripted demonstrations. At other actions, if they arrest you, they take you into custody and then to the station. The point is to intimidate you and your comrades. There are things you can control about the situation.

What you should do depends on what your goal is. If you want to get out asap, that's one track. If you want to make a point of being arrested, that's a different track.

Sometimes they use metal and sometimes they use plastic cuffs.

When you get to the station they'll take your address, name, and fingerprints-- these are the only demands you should grant. They are not covered by your constitutional right to refuse to answer (that only covers information that could be used as evidence to incriminate you, not information used to identify you). Speaking of: they will not read your Miranda rights right away, if at all. They only are supposed to do that right before asking incriminating questions.

Being arrested typically leads to lots of waiting. People who have been arrested more times usually get out quicker (their fingerprints are already in the system, and they can check for warrants easily). This is largely what they are making you wait for: checking to see how high to set your bond based on any warrants you may have.

They will put you in a cell and not give you food or medicine, typically. If you get food it will not be tasty, so eat right before the action and bring food with you.

If they've arrested a bunch of people at once, it might be 12-14 hours before you're released.

I-bond: they release you without you having to pay money for it. The bond consists of a promise to attend court later. The bond slip may not be legible (it should have the court date, place, and maybe the charge on it), but don't worry about that. It can be figured out.

D-bond: They make you pay to leave as a punitive measure. Still trying to intimidate you. The Chicago Bond Fund has covered all such bonds resulting from arrests at actions so far.

Don't count on getting a phone call, especially in case of mass arrest. If you get it, call a trusted person or the National Lawyers Guild, who can take care of getting you out. Tell whoever you call: where you are, if there is anyone with you who is injured, names of any other people you know who have been arrested.

Even though they won't offer it, if you need medical care, request it. They might tell you getting treated will make releasing you take longer or some other reason you shouldn't get treated: they are probably lying, and in any case, it's worth it to A. get the care you need, B. get it on record that they hurt you, and/or C. get it on record how long they put you off/that they refused to get you care. These records can be used in civil cases.

When you're released, they give you your stuff back that they confiscated, unless they're keeping it as evidence in charges (cellphone, shoelaces, belt. They take the laces and belt in an attempt to prevent suicide)

Would not advise taking cellphone to demonstration. Take a burner phone if you must. If you're arrested, the police will definitely take it and will try to get into it. They technically need a warrant to do that, and they may get one. In general, don't bring anything you'd be sad to lose or can't replace.

Charges: most common ones put on protestors are misdemeanors. The difference between a misdemeanor and a felony is that the maximum sentence on a misdemeanor is 364 days, and the minimum sentence on a felony is 365 days. It's very unusual as of now for a protestor to actually go to jail. The common misdemeanors applied to protestors are disorderly conduct, mob action, and destruction of property. They require different kinds of evidence but result in the same punishment. Earlier this year they charged more people with disorderly conduct, but the sentences weren't harsh enough/ too many people's charges were dismissed, so now they're charging people with mob action, since "mob" has a violent connotation.

Felonies: include theft, criminal damage to property, aggravated battery, resisting arrest. What defines felony theft and felony property damage is how much money is "lost" (more than $300 for a felony. Might have been increased to $500 or $800 recently). No matter what you do to a cop, if they are injured at all or perceive or can suggest that you tried to hurt them, that will be aggravated battery. Resisting arrest is rarely made a felony but it can be if the cop is particularly offended.

Resisting arrest carries more weight than other misdemeanors because police take everything personally. The punishment is harsher than for other misdemeanors. Technically the arrest has to be legal for resistance to count as resisting arrest. In practice, they will not respect any refusal to be arrested. The best thing to hope for if they do arrest you while you're resisting is that you'll be declared innocent later due to unlawful arrest. Resisting arrest can be a lot of things: jerking away, refusing to stand up to be arrested, taking too long to stand up... They can definitely charge you with resisting when you're not resisting. If you are resisting (by the legal definition), you'll know you are because you'll be doing it on purpose. If they order you to move and then push you and you fall over, that can't lawfully be considered resisting, but it has.

Grand juries: have been called for actions around [George] Floyd. Whatever they may once have been, they are now used to repress and that's about it. The city can't call one, but the feds and state can. Technically, must be composed of fellow citizens called to evaluate evidence for felony charges. In practice, the people they put together listen to the state's attorney, who tells them what to do. If you're subpoenaed to a grand jury, they're not trying to get you personally (or at least not only trying to get you personally), they're after information. They want you to give people up. Police want to know who's organizing. Compliance is snitching. No matter how clever you are, trying to act compliant but keep information back, if you answer at all they will get more information out of you than you want them to have.

If you do comply, they'll get what they can out of you. If you refuse, they can charge you with contempt and imprison you up to the length of the grand jury or 18 months (or until you snitch). They can charge you with either civil or criminal contempt.

Information security: Police put a lot of effort into tracking data. They also make attempts to infiltrate and get informants. Sensitive information can't be said over the phone or texted, not even on Signal. Meet in person to plan.

Nothing you say to police will help. They are only looking for evidence against you, and will do everything they can to use what you say as evidence. There have been many cases of people thinking they can explain and show that they're innocent, only to have their own words used as the evidence that puts them in prison.

When they confiscate your things, police can also confiscate any protective gear (and of course weapons) you have as evidence that you came to start a fight. (they did this at Standing Rock).

When police give you an order to leave, they lawfully must 1. give an order to disperse 2. that everyone can hear and then 3. wait a reasonable amount of time for you to follow the order. If you don't have the ability to leave, they legally cannot arrest you. This doesn't mean they won't.

While filing a complaint against police with COPA is an option that gives lawyers evidence they can use in your favor, there are problems. 1. it will ensure that your charges won't be dropped, because police take these claims personally and 2. COPA requires people who file complaints to come and give evidence under oath (which they will make you do under unfavorable conditions and mess you up). Don't file a complaint with COPA in criminal cases, they will use it against you. Don't do it for civil cases except for very specific circumstances, since they will try to use it against you there too.

If you are not a citizen / do not have a green card, being arrested can be a longer-term problem even if they don't charge you. There are ways around it (ask an immigration attorney).

If you have a previous misdemeanor or arrest, this will not increase your chances of being arrested again, since they almost certainly won't recognize you. It won't increase your chances of being charged again either, since they decide whether or not to charge you before they look up your record. However, once they do look up your record, it may increase the chances of them deciding to increase your charge from civil to criminal.

Typically, they will put more charges on you the more you do to get away (if you are not successful or they get your identity). Any struggling will likely be construed as "aggravated battery on a police officer" (a felony). Attempts at dearrest, when not successful, are charged as aggravated battery on a police officer. For this reason, practice dearresting ahead of time, run, drill, drill, drill.

What you bring can be seized as evidence, yes, but that doesn't mean you shouldn't bring it. The point of all this is that you can go into it with your eyes open, making informed choices. Practical advice and legal advice do not always agree.

Dearrests: person initially being arrested may be charged extra if the dearrest is unsuccessful or if their identity is known/found out. Police will definitely charge them if possible, as they are easily offended.

Court: don't worry about finding or paying for representation. The National Lawyers' Guild has plenty of volunteer attorneys working pro bono representing activists. You can talk to an attorney and go over your options over zoom before court. Court is also on zoom these days. Lots of waiting involved in this. One person is known to have mown their lawn while in court over zoom.

You can refuse an attorney to go to trial; there is empowerment in this option. May be most prudent to do this only if you've been to court several times.

You can talk to the corporation [illegible] (who covers city law) or the state's attorney (covers state law) and see whether they're going ahead with your case. 1/2 of cases involving protestors have been thrown out so far. If they throw it out, there's nothing else you need to do to prevent being convicted.

You can request discovery (access to evidence) which will tell you how likely you are to win. It will also tell you how bad police records are. Another thing that can make you more likely to win is if a different cop arrested you than wrote the report about it.

There's no one right answer to how to approach this, whether to prioritize getting it over with or making a point. That depends on your goals. If you're going for quick, that will usually involve a plea deal. They may assign you 3 months to a year of "supervision." This means that if you don't make trouble in that time (specifically, if you're not convicted of breaking the law in that time), they'll clear the present conviction from your record in 2 years.

State cases are supposed to prove guilt beyond a reasonable doubt. Smaller cases can be decided by "a preponderance of evidence."

necessity defense- "I did it, but I felt that I needed to do it to prevent further harm or illegality from ocurring." This is a common defense for activists, and can be a good strategy.

Even if your case is thrown out, arrests stay on your record unless expunged. If your case is thrown out, if you undergo supervision, or if you are found not guilty, you can get the arrest expunged. It's something you have to do on your own initiative. Cabrini Green Legal Aid will help you do this for free. It's easy, it's a form you fill out, but processing can take a year or two (backlog).

If you're arrested during a protest, you can contact the National Lawyers' Guild as soon as you can, or have someone do it for you, and they'll help you get out. hotline 773-309-1198

Before an action, if you're putting one together, you can contact the National Lawyers' Guild and they'll help with jail support (it helps to specify whether you expect arrest).

Don't use 1800 law rep 4 anymore

If you're arrested NOT at an action, the Cook County Public Defender hotline is 844-817-4448

They gave personal contact info for the people who presented all this information, but I'm not going to share that here. They were local organizers and lawyers from the National Lawyers' Guild (with experience defending activists and being arrested themselves).

[shirleydazzle]

How Far Back Can Child Support Go?

As a Child Support Lawyer, I’ve been asked before – How far back can I get child support? It’s a good and a complicated question.

How far back can child support go in Utah?

I didn’t even know about this baby, and now, 10 years later she is going for child support all the way back to birth.  Can she do that?

In Utah, is there a certain age where, if you haven’t already applied for child support, you can’t get back support?

Is there a statute of limitations on child support in Utah?

The key to answering all of these questions is PATERNITY.  Whether or not paternity has been established is the primary factor in determining how far back child support can go in Utah.  The secondary factor in determining how far back child support will go is whether you request child support through the child support enforcement agency or file a Complaint (or Motion) in court.

An action to determine the existence or nonexistence of the father and child relationship (paternity, or parentage) may not be brought later that five years after the child reaches the age of 18. That means that in Utah paternity can be established up until the age of 23.

What does paternity have to do with back (retroactive) child support?  In Utah, Paternity MUST be established before a court or a child support enforcement agency can make a child support order.  In addition, in Utah, a child support order can ONLY BE retroactive if made in conjunction with a determination of paternity.

   Who can file an action to establish paternity in Utah?

The following people can bring an action for paternity:

the child or the child’s personal representative

the child’s mother or her personal representative

a man alleged or alleging himself to be the child’s father or his personal representative

the child support enforcement agency of the county in which the child resides IF the child’s mother, father, or alleged father is a recipient of public assistance or of services under Title IV-D of the “Social Security Act,” 88 Stat. 2351 (1975), 42 U.S.C.A. 651, as amended.  Public assistance, as used in this statute, means:

Medicaid

Utah works first

Disability financial assistance

 Once paternity is established, how does a court decide whether or not to order retroactive child support?  

A court should not order retroactive child support if both of the following apply:

At the time of the initial filing of the paternity or parentage action the child was over three years of age.

Prior to the initial filing of the paternity or parentage action, the alleged father had no knowledge and had no reason to have knowledge of his alleged paternity of the child.  (the mother of the child may establish that the alleged father had or should have had knowledge of the paternity of the child by showing, by a preponderance of the evidence, that she performed a reasonable and documented effort to contact and notify the alleged father)

Establishing Paternity as an Adult in Utah

The issue of filing a paternity action in order to seek child support after a child turns 18 is a murky issue in Utah, and the nuances of this issue are still being determined by Utah courts.

On the one hand, there is a situation where a father, an adult child (any age), and the adult child’s mother all file a joint declaration in probate court alleging that the man is the child’s father and requesting that the probate court issue an order declaring the man to be the adult child’s father.  In that situation, the declaration must state

that the adult child’s birth certificate does not designate anyone as the adult child’s father (copy of the birth certificate must be attached);

the request for the order is made freely and voluntarily by all parties appearing before the court; and

genetic test results show the man is the adult child’s father. (A copy of the DNA test results must be attached)

If the mother is deceased, or has been adjudicated to be incompetent, the alleged father and the adult child can file an action together, without the mother.  The primary purpose for this type of action would be to formalize the father-child relationship and to establish rights of inheritance.  When an action is brought this way, the adult child and the adult child’s mother shall not be awarded child support from the man for the time the adult child was a minor.

Also, a paternity action can be brought by the mother, father, child or CSEA Agency until the child’s 23rd birthday (five years after the child turns 18).  Sounds simple enough right?  Wrong.  The tricky part is, that according to one Supreme Court in Carnes v. Kemp, if you are seeking child support after the child has turned 18, apparently that can only be done when the adult child files to establish paternity AND seek child support.

The issue presented to the Utah Supreme Court in Carnes was “Does a court have subject-matter jurisdiction to award retroactive child support payments in a paternity action initiated after the child has reached the age of majority?”  The Supreme Court of Utah answered the question with a YES.  The Court stated that a juvenile court has the authority to make a support order once a parentage determination is made, and that this means that it may extend the length of time in which to bring a parentage action.  This means that an adult, emancipated child can seek retroactive child support until his or her 23rd birthday.  If granted, the time period for retroactive child support could be from birth through age 18.

Okay, so, if you read the Carnes case, plus Utah law, you’d think that, since a mother can file an action for paternity until a child is age 23, that a mother would also be able to file for retroactive child support until the child turns 23, just like the adult child did in Carnes, right?   Maybe and maybe not.  In another case, the mother of J.V., filed for an action for retroactive child support.  The court of appeals said that because the child was over 18 the court lacked subject matter jurisdiction to award child support to the mother.  The court noted that unlike the Carnes v. Kemp case, no action for paternity had been filed, but said that even if the mother HAD filed an action for paternity, the Carnes case only held that an adult emancipated child could establish paternity and get 18 years back support after reaching the age of 18.  The Court of Appeals in In re J.V. said that the Carnes case did NOT say that a mother had a right to file a claim for retroactive child support after the child turns 18, only that an adult child has the right.  This interpretation of Carnes may not be completely consistent with the Supreme Court’s holding in Carnes, and it is very likely that there will be more decisions addressing this issue in the next few years.

Free Consultation with Child Support Lawyer

If you have a question about child support or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

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[shirleydazzle]

Debt and Bankruptcy

When I decided to ask my Wife to marry me I felt pressure to purchase a ring that – at the time – was way too expensive for me. I wasn’t a bankruptcy lawyer at the time. I loved her – so why wouldn’t I do everything I could to show my love? Right? I had access to credit. The bank reassured me that it would be easy to repay. Well, I was wrong. I made a stupid decision. I went into debt. I went into debt at the wrong time for the wrong reason with little to no income to pay it back. And that ring? Well, it was a really nice ring but my Wife later lost it – twice! (….a great story for another day).

The debt for that ring was hard to pay off. I remember struggling to pay back the debt and feeling like a failure. The harder I worked the more difficult it seemed. My entire paycheck was gone before I even received it! I had no control over my finances because the creditor controlled me.

Feeling ashamed for our debt is a real thing.

Don’t believe me? Check this out:

“Money is also intimately linked with our inner lives. Its presence, or lack thereof, has profound physical, mental and emotional repercussions. Perhaps in more ways than we would like to admit, money has tremendous power over us. … Any of the aforementioned negative emotional responses to debt may be serious enough to require medical or psychological intervention.” from debt.org

National Foundation for Credit Counseling – “[C]onducted a poll asking participants to finish this sentence: “I’d be most embarrassed to admit my…” And respondents made it clear that debt shame in the United States is worse than even diet shame. A whopping 37% of people answered that their credit card debt was the most embarrassing, followed by 30% of respondents admitting they wouldn’t want to fess up to their credit score. Weight made only 12% of people sweat, and came in a distant third place.”

I don’t think anyone is immune to money problems. So I assume that you’ve all had some type of similar situation. Being in debt at the wrong time for the wrong reasons. You may or may not be to blame for the money issues (e.g. medical debt), but you know what it feels like to stay up late at night wondering how you’re going to get out of the situation you’re in.

You know what it feels like to feel there is no way out. You know what it is like to think about your debt hour after hour. You lose sleep over it. You think that people close to you judge. You may ever start to think that you are less of a person because of it.

Now, imagine being in that type of situation and then having a debt collector call you and appear to confirm to you all of the irrational fears mentioned above. You may be told that you are a terrible person. That you did this to yourself. That your family is embarrassed because of you. And for some reason, there are thousands of us who believe these debt collectors! A client recently told me that a debt collector threatened to call the police and have her arrested for not paying a debt! Can you believe that? It happens more than you would think.

It’s been my life’s work and passion to help people realize that no matter what life has thrown their way they shouldn’t feel embarrassed or broken when it comes to debt. I stress over and over to my Clients that they should not despair – there is almost always a way out that doesn’t turn out to be nearly as bad as they might think.

Sometimes the way out is bankruptcy and sometimes it is not. It all depends on the situation. Regardless of whether my clients end up filing for bankruptcy – all of us have the following rights when it comes to harassing debt collectors. To provide some sense of relief, here are some quick basics on the rights you do have:

The Fair Debt Collection Practices Act (FDCPA) is a federal law that can prohibit debt collectors from using practices that may be abusive, unfair or deceptive. In addition to the Federal law, your state should have a consumer protection statute that can also prohibit deceptive practices as well as unfair or unconscionable practices. You should become familiar with both the FDCPA and your state’s consumer protection law(s). A good way of doing so it to schedule a consultation with a local attorney

Make them prove it: If you receive a phone call from a debt collector demanding payment, demand to receive proof of the debt. Simply paying out of fear can be costly. You may be waiving your statute of limitations defense or paying a debt that doesn’t belong to you! A jury recently awarded a Kansas City woman $83 million against a debt collector suing for wrongfully suing her for a $1,000 credit card bill that wasn’t hers.

Phone Call Limit: I don’t believe any Court has ruled on a specific number of calls per day that would be prohibited. A court would likely look into the situation on a case-by-case basis to determine if the debt collector’s calls were harassing. In general, the FDCPA prohibits debt collectors from calling you with excessive frequency. This would include repeated calls or continuous calls so as to be annoying, harassing or abusive. Obviously, if a debt collector calls with a series of calls one after another this would be prohibited

Contacting you at work: The FDCPA allows a debt collector to call you at work unless the debt collector knows – or has reason to know – that you or your employer prohibit such contact. Simply telling the debt collector to stop calling you at work should do the trick. However, if you can get the request in writing you would be better off

Calling your cell phone: The FDCPA can prohibit debt collectors from calling your cell phone in certain situations. For example, a debt collector cannot call you at an inappropriate time. If you inform the debt collector that the call was made to your cell phone while you are at work this is an inappropriate time. Another federal law, the Telephone Consumer Protection Act can also prohibit certain debt collector contact to your cell phone

There are recent attempts to fix the wrongs committed by debt collectors. Debt collection practices are so horrible that the “U.S. Consumer Financial Protection Bureau has proposed new rules for the debt collection industry that include limiting collectors’ communication with debtors.”

Law changes can take time. So, until the laws tighten up on debt collectors use these tools and stop shaming yourself. There is a way out. And the way out will be easier than you think. Don’t let your debt define and control you.

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