Legal Briefs

Criminal Law: Clemency for Troy Anthony Davis?

Rob Turner — Mon, 19 Sep 2011 01:53:00 GMT

Life or Death? It's now up the the 5 member Georgia Board of Pardons and Parole.

Clemency

Clemency is the independent process of the executive branch of government constitutionally authorized to grant commutations of death sentences; commutation of a death sentence is a discretionary decision of the Board of Pardons and Paroles. The Board of Pardons and Paroles can only hear a case when all appeals have been heard through the court system. Whether to grant or deny commutation of a death sentence is based on a review of court, police, and prison records along with societal input based on the totality of the circumstances. The sole authority whether to grant or deny commutation of a death sentence is with the Board of Pardons and Paroles. When a request to commute a death sentence is received, the Board reviews its file maintained on every prisoner sentenced to death which includes the circumstances of the offense, the criminal history and comprehensive history of the life of the condemned inmate. Additionally, the Board will meet with the condemned inmate's attorney, representatives of the district attorneys office, and the victim's family. After the full review of the facts, the 5 members of the Board cast a confidential vote to grant or deny a commutation of a death sentence; 3 votes to grant commutation are required.

Why Commute Death Sentence of Troy Anthony Davis?

The jury imposed the death sentence to Troy Anthony Davis after hearing from multiple witnesses and jail house informants; now, over 20 years later, witnesses are recanting and changing their original testimony. Jurors from the original trial are coming forward and saying they would have made a different decision if they had known all the facts as they are coming out now. The Courts oftentimes wear legal blinders when reviewing a case; the Board of Pardons and Paroles are allowed to review the entire case without the blinders the Courts must wear. By reviewing the case based on the totality of the circumstances, the Board can arrive at a fair and equitable decision where the Courts have, in all honesty, failed.

Entertainment Law: The Copyright Fight is On!

Rob Turner — Mon, 05 Sep 2011 21:19:00 GMT

The Copyright War has Begun!

December 31, 2011 is the deadline for songwriters and performers to exercise their right to take back their copyright. Previous changes in Federal Copyright Law set this deadline to retain their copyrights. The change set a thirty-five year limit on copyright protection for music ownership.

The battle lines have been drawn between the record labels and the artists, songwriters and publishers of the music; battle lines that have become the "industry standard." The fight is, you guessed it, over money! Record labels typically are assigned the copyright and divide the profits with the artists; this change in the law allows the artist to get the copyright back and get all of the profit instead of a percentage of the profit. Record companies, in all likelihood, will not sit by idely while the artists are seeking return of their copyrights; there is too much money at stake for top performing songs.

If you are an artist or songwriter, please contact us immediately to file the Notice of Termination before December 31, 2011 to protect your rights.

Criminal Law: The Casey Anthony Case

Rob Turner — Thu, 07 Jul 2011 16:29:00 GMT

NOT GUILTY

Not Guilty was the Right Decision. The legal standard in a criminal trial is proof beyond a reasonable doubt and to a moral certainty. This is just shy of absolute certainty, but much higher than "she is probably" guilty. This legal standard prevents innocent persons from being imprisoned for crimes that they did not commit. The jury heard all of the evidence; none of us heard all of the evidence. The jury did not hear the media sensationalism and the almost constant editorializations of the media; they were sequestered. And, as Juror #3 stated, the jury did not find her innocent of the charges, they simply did not hear enough evidence to find her guilty!

Sentencing: The Longest Sentence Possible

No criminal lawyer was surprised at the sentence handed down by the presiding judge. This long, laborous trial did not end well for the state; the judge heard and saw all of the grotesque evidence presented at trial. He did all that he could do under the law to punish her and make the public feel better (and perhaps increase his chances for re-election); he gave her the maximum; 4-one year sentences ran consecutively, or one after the other. This was harsh, but given she has been in jail almost 3 years, she will be released next Wednesday; the sentence is almost "time served." He was clearly angry at the defendant, and he was the only one who could punish Casey Anthony for being a bad person.

Does the Verdict make you Angry?

Most people are angry at the verdict. Casey Anthony was not a likeable defendant; almost no one can believe her actions while her daughter was "missing." The main point is not to be upset with the jury system; it worked. If you want to be angry at someone, I suggest the following:

Orange County Prosecutors--for "over charging" and "under delivering"
The Judge--for allowing this case to go on for so long without sufficient evidence
Casey Anthony--for being a terrible mother and for all her misdeeds surrounding the death of her daughter

Although you may be mad as hell at the jury verdict, take a deep breath, relax, and be thankful that the jury system actually worked in this case. The defendant was not convicted because she was a despicable person, she was found not guilty because the state failed to put on sufficient evidence to prove her guilt beyond a reasonable doubt.

DUI: To Blow or NOT to Blow

Rob Turner — Sun, 03 Jul 2011 16:21:00 GMT

DO NOT Drink and Drive!!

The first rule is a hard and fast rule: DO NOT DRINK AND DRIVE!! This is the best legal advice that an attorney can give. If you are not the listening type, and you are stubborn enough to drink and drive, then you will want to continue reading this blog.

Driving Under the Influence is a Crime

Driving Under the Influence (DUI) is a class A misdemeanor in Tennessee; DUI is the only crime where you can go to jail and lose your driver's license SOLELY based on the police officer's opinion that you were under the influence of alcohol and/or drugs while driving. From the very second that you are stopped, the police officer is observing you and gathering proof that you are under the influence. The only way to get out of a DUI if you are stopped is to NOT give evidence against yourself. If the police officer smells alcohol and has a hunch that you are driving under the influence, you ARE going to go to jail for DUI regardless of whether you do the Field Sobriety Tests or take the Breathalyzer. So, if you are going to jail anyway, why take the tests and prove yourself guilty?

Field Sobriety Tests

If you have had too much to drink and you do drive, do NOT do the Field Sobriety Tests. These tests are designed to make you fail and to provide evidence against yourself! The police officer is watching you, and probably recording you, and is grading you on your performance on these tests. These are divided attention tasks that are very difficult to do sober much less after having ANY alcohol.

Breathylizer

Tennessee has an Implied Consent Law which requires you to give a breath and/or blood test if requested by a police officer. Failure to do this testing can result in your driver's license being suspended for one year. It is illegal not to do the Breathylizer. Criminal defense attorneys can more effectively represent you after your DUI arrest if you have not done the Field Sobriety Tests nor taken the Breathalizer. If you have elected not to do the Field Sobriety Tests, then you should not do the breathylizer test. If you have a high Breath Alcohol Concentration (BAC), your case will not be reduced to Reckless Driving; however, if you have not had a lot to drink, and you think your BAC will be close to the legal limit (.08), then you should take the Breathylizer and hope that your criminal defense attorney can get the DUI charge reduced to a Reckless Driving charge.

Attorneys Fees: Don't Throw Your Money Away

Rob Turner — Sun, 26 Jun 2011 00:45:00 GMT

STOP THROWING YOUR MONEY AWAY ON ATTORNEYS FEES!!

Attorneys are expensive! Actually, it often takes a lot of time for attorneys to get even the simplest task done, and at the high hourly rate customarily charged, it can cost a lot of money. Clients can reduce their attorney fees without minimizing their legal representation; here are just a few ways to help your attorney and reduce your attorneys fees.

1. Prepare for your meetings with your lawyer

Bring all of your papers to your lawyer's office
Organize the papers by topic
Make a copy of all papers for your lawyer

Think about it this way: if you carry grocery bags or boxes of documents thrown together, who is going to take the time to organize your stuff in a meaningful way? The answer: someone in your lawyer's office who is billed at a minimum of of $95/hr. You don't want to waste your time organizing your stuff? No problem, your attorney will organize them, and will be happy to bill you for it. Copying is another area where you can save yourself some money. Law firms bill for a staff member to run the copy machine, and some charge you a per copy charge.

2. Think before you act

Don't get angry at the other party
Don't go to court over small issues
Don't call police unless you want someone arrested

Stress is normal when involved in a legal matter. Anger, however, is a useless emotion that does nothing other than drive your legal costs through the roof! Your legal situation is personal to you; it's business to everyone else. Anger clouds your judgment, and tends to have client's behave and act irrationally. Separate the main goals in your case from winning each and every small thing. Going to court costs a lot of money. There is time involved in preparation, legal research, producing exhibits, and actually sitting in court waiting on your case to be called; time IS money, especially with the hourly rates your attorney is charging. Finally, try to keep your matter in one court. Often in divorce situations, client's can end up in 3 different courts: 1) Divorce Court--where the divorce is filed, 2) Order of Protection Court--to keep one spouse away from the other, and 3) Criminal Court--for domestic violence assault.

3. Work with your lawyer, not against him

Don't call your lawyer repeatedly
Don't tell your lawyer how to do his job
Don't listen to your friends, listen to your lawyer

Do you get in a taxicab and tell the driver where to turn and what route to take? Would you tell your surgeon how to remove your appendix? Probably not! Why in the world would you even think of telling your lawyer what to do in your case? Why would you listen to your friends, relatives, or preacher about legal advice? You need to hire an attorney who you trust and with whom you are comfortable. If you are not going to listen to your attorney's advice, change attorneys and hire an attorney you WILL listen to.

4. Reach an agreement and settle whenever possible

Talk to the other side and reach an agreement
Only go to court over major issues that cannot be resolved

Your goal when you hire an attorney should be to get your case settled, not to go to court "over principles." Principles cost dearly! Taking a case to trial will incur attorneys fees and court reporters fees that are extremely costly. How much are you fighting over? Does it make sense to spend $25,000 in attorney's fees when you are only fighting over $5,000? Work with your lawyer to determine your best position. Ask your lawyer to try to settle under these terms, and if not, then ask your lawyer for mediation. Some issues have to go to court and must be tried; make sure you are not going to trial over everything. Make sure the only issues that go to trial are major issues, and be prepared to pay dearly to litigate the issues that are going to trial.

5. Don't be caught up in proving you're right

Courts decide matters based on the law and the evidence
Lawyers counsel clients based on the law and the facts of their case
Even though you may be right, is it really worth it?

Have a realistic understanding of the law and your likelihood of winning. If you lawyer tries to counsel you not to go to trial; listen to him. Just because you think you have enough charisma to convince the judge to rule in your favor does not mean it will happen. Hope springs eternal; use your hope on buying a winning lotter ticket, not hoping the judge will rule in your favor in a case where your lawyer has told you not to go to trial. Even if you have a high likelihood of winning, what are the true costs of winning? If winning at all costs is in your budget, GO FOR IT!

Criminal Law: The Right to Remain Silent . . . Use it or lose it!!

Rob Turner — Thu, 16 Jun 2011 03:19:00 GMT

The Right to Remain Silent . . . Use it or lose it!!

You have the right to remain silent. If you give up this right, anything you say can and will be used against you. Sound familiar? Everyone knows this, right? Believe it or not, a lot of people are convicted of criminal offenses because of their loose lips! If only they kept their big mouth shut, no criminal prosecution would have even been brought!

Anytime that a police officer wants to talk to you about something you have allegedly done, GET A LAWYER!! Here's why:

The police think you've done something criminally wrong; otherwise, they would not be talking to you.
When police are investigating, they do not have to read you your rights; they are looking to find something to cinch their case against you.
Even though you think you have done nothing wrong, you could be talking yourself into being arrested.
Nothing good comes from talking to the police; you are only providing more information for the police officer to continue investigating.

Over the past 20 years of practicing law, I have handled many cases where the client's words alone were enough to convict! I have even handled cases where I counseled with the client prior to police investigation, and the client, despite my best advice, talked to the police officer, and, you guessed right, talked himself right into being arrested! Don't fall for police tactics; don't talk to them!

TIPS WHEN THE POLICE COME KNOCKING AT YOUR DOOR

Be pleasant and cooperative; do not be angry or insultive.
Tell the police officer that you have a lawyer, and your lawyer will contact them.
Do not fall for the police tactic "if you are not guilty, why do you need a lawyer."
Do not lie to the police officer (remember Martha Stewart was not guilty of insider trading, she was guilty of lying to police officers).
NEVER, NEVER, NEVER talk to the police without your lawyer!

Contested or Uncontested (Divorce): That is the question!

Rob Turner — Thu, 09 Jun 2011 00:39:00 GMT

Client are often confused on what the terms "contested" and "uncontested" mean when it comes to divorce. Most clients think that uncontested means that their spouse is not fighting a divorce, and that contested means that their spouse doesn't want a divorce and wants to stay married. Also, a lot of clients use the terms "uncontested" and "irreconcilable differences" interchangeably. Lawyers define these terms very differently, and understanding the attorney's definition is helpful.

"Uncontested" means that husband and wife have agreed on every term of their divorce; the lawyer is doing nothing more than taking the agreement and writing the paperwork in a fashion that the court will approve. Uncontested divorces are inexpensive and quick.

"Contested" means that husband and wife have a disagreement on some term or terms; it does not mean that one of the spouses wants to stay married. Contested divorces are expensive, and take time, effort and energy to resolve. Most contested divorces involve pendente lite (temporary) hearings, written interrogatories and request for production of documents, and depositions. After all this work has been completed, most competent attorneys can resolve contested divorces, and the divorce is finalized on irreconcilable differences.

When you meet with your attorney during the initial consultation, let him know if your divorce is "contested" or "uncontested" as defined by lawyers. If your divorce is "uncontested", have notes jotted down for your lawyer so that you can tell him what your agreement is with your spouse. This time saving method reduces the work your attorney will have to perform, thus reducing the legal fees you will have to pay!

Alimony: Tennessee Supreme Court To Reconsider Alimony Awards!

Rob Turner — Wed, 01 Jun 2011 22:13:00 GMT

Alimony Awards Subject To Change!

The Tennessee Supreme Court heard oral arguments last Thursday that will surely change the alimony landscape in Tennessee. There are literally thousands of cases dealing with alimony awards from the Tennessee Appellate Courts; lawyers can usually find one that supports his client's position on whether to award or deny spousal support. The Tennessee Supreme Court granted certiori to settle the alimony dispute once and for all.

Top divorce lawyers are anxiously awaiting the decision of the Supreme Court, and are hoping for guidelines and formulas to use in alimony cases. Generally, there are two (2) inquiries in alimony cases: 1) what type of alimony to award and 2) how much alimony to award. Judges have almost exclusive discretion in awarding alimony, and lawyers hope that the Supreme Court will issue a specific set of guidelines to assist judges in determining the type and amount of alimony to award.

Currently, alimony is awarded to a disadvantaged spouse based on that spouse's need and the other spouse's ability to pay. If there is no need, then there is no alimony award. The current case before the Supreme Court is a request for a spouse to receive permanent alimony, not because she has a need (she makes $72,000.00 annually), but that she wants to continue to have the standard of living that she had during the marriage (her husband makes $137,000.00 annually). This is not the state of the law in Tennessee and, if granted, will be a big change in alimony law.