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The American bail system is based on medieval principles of English common law that have been modified over the centuries. The first major modification was the 1628 Petition of Right, which limited the ability of sheriffs and the crown to impose punitive bail.
That was followed in 1689 by the English Bill of Rights which stated that “excessive bail” should not be imposed. This notion was then enshrined in the 8th amendment to the US Constitution. In 1966, the US Bail Reform Act provided defendants a statutory right to bail and the Bail Reform Act of 1984 made it possible to deny bail to violent offenders.
The result of all this tinkering is a bail system that is a melange of state and county laws operating more or less within the broad framework laid down by the Bill of Rights, legal precedent and the 1984 law. It’s a system with so many grey areas that the whole thing has become an exercise in legal dysfunction.
What’s Wrong with the American System of Bail?
In a nutshell, the problems with the US bail system come down to a few essential points:
1: Bail is Still a Subjective Decision
The 8th amendment states that “excessive bail” shall not be charged. What it doesn’t state is that the “right to reasonable bail shall not be infringed”. The difference is important. The first simply establishes a constraint on a common practice while the second states unequivocally that you have a constitutional right to reasonable bail. So, since a Constitutional right to bail hasn’t been established, judges are often able to deny bail as they see fit.
2: The Presumption of Guilt
You often hear about the problem of overcrowding in American jails but did you know that 70 percent of people being held in local jails today are there simply because they can’t afford bail? This raises a thorny legal question: If bail is the way our system guarantees the presumption of innocence (bail is supposed to allow the “innocent” person to resume their normal life while awaiting trial) does that mean a person who can’t make bail is presumed guilty?
3: Bail as Coercion
Once arrested many poor defendants face a stark choice: either fail to post bail and remain locked up until their trial, (which could be many months), or cop a plea and accept a short sentence or probation. The problem here is obvious: the inability of some people to make bail can potentially be leveraged by the state to gain convictions and close cases. Even if the person is innocent they may agree to plead guilty if it means they’ll get out of jail.
4: The Bondsman
I should state up front that I’m not here to bash bail bondsman. They work within the system as it’s constructed and countless people are glad they exist. That said, we have bondsmen because most people can’t afford to bail themselves out. The bondsman charges a non-refundable fee of about 10 percent of the bail then posts a bond for the full amount and the accused is released. So, what’s wrong with that? What’s wrong is that the bail bondsman has become a kind of private toll collector who stands between the poor and freedom.
But What About Lawyers? They Profit Off the System Too
A common rebuttal to the argument that bondsman shouldn’t be allowed to profit from people’s legal woes is that many lawyers make a handsome living doing just that. But this argument ignores a fundamental difference between the two: if you can’t afford a lawyer one is provided for you free of charge. If you can’t afford bail you rot in jail, while those who can afford it walk free.
Leading the Way to A Similar Future
Earlier this year California Governor Jerry Brown signed a bill that eliminated the cash bail system in the nation’s most populous state. In its place will be a new system based on risk assessment. Defendants will now be released or held based solely on whether they are judged to represent a flight risk or danger to the community. Many hailed the move as an important step toward re-establishing fairness in the judicial system. But others point to potential problems with the new law.
Problem 1: Judges are Human
By eliminating cash bail California has given judges broad new discretionary powers to hold people awaiting trial. This is complicated by the fact that judges in California must stand for re-election after being appointed by the Governor. So, with their job on the line, judges may use their new power to hold a defendant in a high-profile case just because they fear that releasing him may jeopardize their chance at re-election.
Problem 2: Still Guilty Until Proven Innocent
Many people rail against the current bail system because of its tendency to undermine the presumption of innocence. But the new California law does the exact same thing by subjecting people who have been released awaiting trial to probationary-type measures like mandatory drug testing, curfews, and electronic surveillance. All before the person has been convicted of anything.
So, How do We Fix the Bail System?
The purpose of bail is to ensure the accused appears in court to face the charges against them. If they don’t their bail is forfeited. But in many ways, the US has come to resemble medieval England where bail is being used as a tool to detain people indefinitely.
In an attempt to create a fairer system most other countries forego cash bail. Yet for the most part, their record of pretrial release is no better than that of the US and worldwide the detention of innocent people is reaching epidemic proportions.
Supposed remedies for the dysfunctional bail system in the US seem like little more than wishful thinking while others trample on the presumption of innocence (hello California). As such, the debate about how to fix the American bail system rages on, mostly because the alternatives currently being tabled range from bad to worse.
A partnership is created when two or more individuals decide to become co-owners of a business to make a profit. Partnerships can be formed by verbal agreement between the parties, making it one of the easiest forms of businesses.
Partnerships have several advantages over other types of businesses ranging from flexibility to the simple organizational structure. However, depending on the type of partnership business you intend to establish, partnerships can also be a risky affair.
It’s important to understand the legal implications of a partnership, the risks involved, and how to protect yourself and your possessions against the liabilities of the business.
How to Form a Partnership
A partnership can be formed in any way convenient for the partners. You can form a partnership with a handshake, oral agreement, or a written partnership agreement. However, starting a relationship that involves money and sometimes personal assets without spelling out the details is risky and can lead to bitter disagreements which can cause the dissolution of the partnership.
To avoid such problems in the future, it’s essential to have a written partnership agreement with legally binding provisions on the duties and responsibilities of each partner. While you can find several partnership agreement templates on the internet, you will be making a big mistake if you use them.
It’s better to hire a local attorney who is conversant with the local corporate laws and their implication on partnerships. An experienced attorney can help you draft a legally binding document that will spell out who does what, how profits will be shared, liabilities, and every other important aspect of the business.
Forms of Partnerships
There are various forms of partnerships, ranging from the simple general partnership, the limited partnership to the limited liability partnerships.
A general partnership is the default legal status of every partnership. Of all partnerships, the general partnership is the simplest with regards to its management structure, legal status, and tax status. A general partnership can be formed through an oral agreement.
All the partners in a general partnership share the management duties and profits based on their percentage ownership. However, a general partnership doesn’t protect its owners from its liability. While the partners can do as they please with the finances and management of the business, they are also personally liable to the business. The implication is that the personal assets of each partner can be used to settle the debts and liabilities of the partnership.
General partnerships and other types of partnerships do not pay taxes. The profits, losses, and liabilities of the enterprise are passed through to the partners. As such, partners pay the business tax through their personal income tax.
The structures of a limited partnership are more complex than that of a general partnership. In a limited partnership, there are two classes of partners including the general partners and the limited partners.
The general partners are responsible for managing the business and are personally liable for its debts. On the other hand, the limited partners have no management responsibilities, and their liabilities to the business are limited to their financial contribution.
Unlike general partnerships, a limited partnership must be registered with the state where it hopes to operate.
Limited Liability Partnership
A limited liability partnership is usually formed by professionals who are licensed to provide specialized services such as doctors, accountants, attorneys, and architects. A limited liability partnership protects each from the misconducts of other partners, but each partner is personally responsible for their actions regarding the business.
An example is a limited liability partnership formed by a team of doctors. Each doctor is protected from any lawsuits that arise from the professional misconducts of others but still personally liable for his own actions.
It’s for this reason that states require partners or members of professional associations to buy professional liability insurance to protect them against claims leveled against their person in the course of discharging their professional services.
Management of Partnerships
In general partnerships, all the partners share management responsibilities, like they share personal liabilities and profits of the business.
However, the partner with the majority stake in the enterprise has an advantage over the minority interests. The partners also manage other forms of partnership businesses based on their ownership interest.
Partners can enter into agreements on behalf of the partnership, except where the partnership agreement states otherwise. When important decisions concerning the business are to be made, or disputes arise, partners can take a vote. However, the partners with majority interest will always carry the day.
Partnerships are subject to state laws. However, partners can decide to override the provisions of state laws.
A partnership agreement is a written document that spells out the ownership interests and duties of partners who formed the business. The document is legally binding according to the laws of the state where the partnership is operating and serves as a code of conduct for the partners.
A partnership agreement should be prepared immediately the partners have decided to form the enterprise, preferably by an experienced attorney. The partnership agreement covers some the following:
The purpose of the partnership
Sharing formula for ownership interest- Spell out each partner’s share of ownership
Profit/salary distribution- How to withdraw money from the business
Withdrawals/Entry of Partners-State how partners will leave or become partners in the enterprise
Death/Disability-How to manage the shares and capital of a dead or disabled partner
Dissolution- How to dissolve the partnership if differences become irreconcilable
Tax Status of Partnerships
Partnerships don’t pay business income tax. Rather, the profits and losses of the company are passed to the partners who pay it through their personal income tax filings. This is one of the advantages of partnership compared to LLCs and corporations.
Personal liability means your assets can be used to pay off the debts and liabilities of the partnership if the business assets can’t cover its obligations. In that case, creditors can go after your bank accounts, shares, automobiles, and property to offset the balance of the debt owed by your partnership.
Should You Start a Partnership?
Partnerships are easy to form. The business does not require elaborate registrations and enjoy low taxes. However, partners are subject to the liabilities of the enterprise. If you wish to form a partnership business, it’s important to hire an experienced attorney to draft a sound partnership agreement to protect your interests and assets before committing resources to the business.
No one likes to be a victim of an accident, but sometimes you cannot escape a scenario and you end up in the middle of one.
According to the National Highway Traffic Safety Administration (NHTSA), there were approximately 6,296,000 police-reported crashes in the United States. That comes out to about 17,250 accidents per day.
With more cars on the road and more drivers than at any time in recent history, the odds of a person getting into an accident are pretty high. The best you can do is to practice defensive driving as much as you can and be aware of the other drivers around you.
Despite your best efforts, however, there may come a time when you are involved in an accident. Hopefully, it will be a minor one and your injuries will not be serious. If you are involved in an accident, it is extremely important to seek legal help as soon as possible.
There are eight things you should do if you get into an accident:
1. NEVER admit fault at the scene of an accident
Every attorney on the planet will advise you to NEVER admit fault when you are involved in an accident. There are always circumstances that you may not be taking into consideration, and emotions are running high. In every state, you are only required to exchange insurance information and cooperate with any police investigation.
2. File an accident report as quickly as you can with your insurance company
The police on the scene will fill out an accident report, and you will receive a copy. Be sure to call your insurance company and give them all of the details as calmly and as quickly as possible. In some rare cases, your insurance company can refuse to protect you if you don’t report the accident on a timely basis (refer to the fine print in your insurance policy for all of the details).
3. Be sure to take advantage of ALL of your insurance policy benefits
Most people will have coverage for a rental car, but be aware that some policies may limit how many days they will cover. Look into what medical claims and deductibles your policy covers, as well as loss of wages if you are out of work.
4. When safely possible, document everything
Use your cell phone camera to take as many pictures of the accident scene as possible. Use various angles, and record everything in the scene. Make notes as well. Some insurance companies even give you “what to do at an accident scene” instruction papers.
5. NEVER sign documents for the other driver without first seeking legal advice
Many people have mistakenly signed documents at the scene of an accident without realizing what it is they are doing. Consult with an attorney before signing ANYTHING after you have been involved in an accident.
6. Seek medical care as quickly as possible
Make sure that everything is documented and recorded, including all medical tests, medications and treatments (including recommendations for physical therapy, etc.). Some of those documents may be needed if your attorney has to file a claim against the other driver.
7. Do not allow anyone to record you or your voice at the scene of an accident
There are no state laws on the record that require you to give a statement that will be recorded at the scene of an accident. The other parties may try and pressure you into admitting something on a recording, but stay confident and calmly state that you will be consulting with an attorney who will answer any questions they may have.
8. Seek the advice of an attorney as quickly as you can
Some people think they can handle their own accident claims, but the legal system can be confusing so you need an expert on your side that can make sure you are being compensated for all of your claims.
As if being in an accident isn’t bad enough, unless you are friends with an attorney who is well versed in those types of cases, your next challenge will be to find someone who can represent you against the insurance company of the other driver. No doubt you have seen commercials on television with local attorneys who claim “they know how to take the insurance companies to court…and get you the settlement you deserve.”
But the truth is, it is estimated that 80 to 90 percent of all personal injury cases are settled before going to trial.
Here are some tips to keep in mind when searching for an attorney to handle your accident case:
Find an attorney who specializes in personal injury cases
Try and avoid selecting an attorney who “does it all,” including wills, contract law, estates and everything else in the book. You really need someone who is well versed in personal injuries to represent you.
Find an attorney who has a track record of high verdicts and settlements
Insurance companies will have experienced attorneys on their side who will try and prevent you from receiving a high settlement. If your case warrants it, look for an attorney who is a member of The Million Dollar Advocates. It is a renowned organization of attorneys who have settled or tried cases worth a million dollars or more. (More information can be found at https://www.milliondollaradvocates.com/)
Find an attorney who will let you talk to past clients
Every attorney who has done a great job for past clients will be proud of their accomplishment and give you references. If they try and tell you that information is confidential, then it is time to search around and find someone else to represent you.
If you are involved in an accident, be sure to seek legal help as soon as you can.
Child support is money paid from one parent to another to help support their mutual children in cases where the parents do not reside together.
Each state sets rules about how child support is calculated, but generally, the parent with the higher income pays monthly support to the other parent. Child support can be a point of contention between parents. Understanding these five basic facts about how support works can alleviate some of those concerns.
1. Money – Not Parenting Time – Determines Amount
A common misconception is that if each parent spends equal amounts of time with the children, the child support zeros out in a “you pay for their needs when you have them, and I pay for their needs when I have them”, mentality. All states, including Florida, calculate support by income. This inevitably means one parent will pay the other.
Most states do factor in the amount of time the support-paying parent spends with the children when determining what amount to order. For example, two neighboring, non-custodial parents have identical incomes. One parent sees the children for a weekend each month. The other parent has the children every other week, year-round. The first parent’s child support order will be for a higher amount than the second parent’s order, even though their incomes are identical. The same applies when parents share joint custody.
2. It Will Usually Fall Short of the Need
Stories abound of parents who pay child-support, grumbling that their ex lives off the support payments, however, in most cases, child support does not cover all of the child’s expenses each month.
When you factor in clothes, shelter, food, power, water, dance classes, karate, gas to get to school and back, cell phone bills and all the other things involved in the average child’s life, the support check is not enough. The receiving parent is expected to make up the difference and make sure the children have what they need.
3. It Doesn’t Have to be Spent on the Children
It can be frustrating for the paying parent to see the receiving parent show up in a new car or take an expensive vacation. An assumption might be made that the money is not being used for the children at all. As long as the children’s life needs are being met, the receiving parent does not have to account for where the money goes.
The parent who has the children the most takes care of the children’s needs including basic living expenses as well as things like gifts for birthday parties, hair cuts and other expenses. When the child support comes in that money is reimbursing a portion of those previously spent funds from the month beforehand.
4. Child Support is Not Tax Deductible
Child support does not count as income in either direction. This means that the paying parent cannot deduct if from his or her income taxes. It also means the receiving parent does not have to claim it as income for the purpose of income tax obligations.
5. Visitation and Child Support do Not Mix
If the parent ordered to pay child support does not fulfill that obligation, the receiving parent does not have the right to withhold visits with the children. Conversely, if the receiving parent is not being given the court ordered parenting time with the children, it does not cancel the ongoing support obligation. The two are separate issues to be handled through the courts.
Not paying child support is a serious matter. Each state sets the standard by which parents ordered to pay and do not suffer the consequences. Possible consequences to a parent who fails to pay child support include:
Driver license revocation
Professional license revocation (pilot, medical doctor, dentist, etc.)
A lien placed on any real property
Arrest and incarceration
Intercepted tax refund checks
Seizing lottery winnings, insurance settlements and other unanticipated windfalls.
Every state has its own laws when it comes to child support services but due to modern technology, all of the states work in conjunction with each other to ensure that it get paid.
A parent who works hard at avoiding the obligation. For these parents, the punishment can be harsh and include incarceration.
If you or someone you know has been charged with contributing to the delinquency of a minor, don’t make the mistake of thinking it is a small issue.
In some states, this is a felony charge and in the states where it is still a misdemeanor, the judges continue to take it seriously.
Each state designs its own laws about what actions constitute contributing to the delinquency of a minor (CDM), however, in most cases, any time you assist, encourage or facilitate a minor to commit a crime, you are contributing to that minor’s delinquency.
Some examples of CDM include:
Purchasing alcoholic beverages for minors
Allowing minors to use illegal drugs or drink alcohol while in your presence
Having a minor help you commit a crime (shoplifting, burglary, drug sales, etc.)
Assisting a minor in driving a vehicle without having a license or permit
Providing a fake ID so a minor can enter a bar or other adult only establishment
Furnishing illegal drugs to a minor
Accompanying a minor while the minor commits a criminal act
Persuading a minor to commit a crime
The first CDM crime statute was created in the state of Colorado in 1903. Today, every state has a similar criminal statute established, with individualized guidelines.
Who Can Be Charged
In some states, the CDM law is reserved for parents, guardians or other adults who at the time of the crime had custody and control of the minor. In other states, it can be any adult who contributes to a minor committing a crime and because the word “contributing” can be subjective, a judge or jury have some latitude in determining whether you, in fact, committed the crime of CDM.
In fact, in some states, the minor doesn’t even have to commit an actual crime, but merely think about doing it and you can be charged. For example, a minor starts asking friends where he can buy some burglary tools and is caught after getting the tools, but prior to committing a burglary.
Now, he tells the police that you told him about burglary tools, how they are used and suggested that he buy some and break into the local HVAC company and steal copper. You can, in some case, catch a CDM charge if the police believe it.
Exceptions To The CDM Law
Approximately 40 states have exceptions to the law, especially in relation to alcohol. Some examples include the consumption of alcohol for the following purposes:
Government research (working undercover in a sting or participating in a medical study) – 4 states
Parental consent at home – 6 states
Religious reasons (such as taking communion at church) – 25 states
Parental permission when the minor is with parents at a restaurant that serves alcohol – 11 states
Medical reasons (Alcohol within medications) – 16 states
Culinary purposes (Cooking with alcohol while in culinary school)- 7 states
The CDM law of the state in which the act took place is followed, regardless of where you live or the minor in question lives.
It can happen. A kid gets caught with drugs or alcohol or committing a crime and in an effort to get out of trouble chooses to lie and say an adult was involved. Naturally, authorities want to know which adult and you might find the finger pointed at you.
This can be a scary scenario as well because you are in the position of having to prove the minor is lying.
The good news is with today’s technology, store security cameras, and witnesses to your whereabouts at the time can help prove your innocence.
Felony Or Misdemeanor
When you are charged with CDM, the level of the charge depends on the state that charges you. Colorado deems it a felony, whereas, Tennessee makes it a misdemeanor.
Misdemeanor – a conviction typically carries a year or less in jail or on probation and some court costs and fines. You might also
Felony – a conviction of a felony is more serious than a misdemeanor conviction and carries lifelong implications including having a more difficult time finding a job, not being able to work in certain professions and being sent to a state prison, not a county jail.
In many states, including California, you can be charged with Contributing to the Delinquency of a Minor if you are legally responsible to see that a child under 16 attends school and you fail to do so.
Some jurisdictions, such as Ohio, arm the school districts and juvenile courts by allowing parents to be jailed for CDM if their minors have more than five unexcused absences and other measures to change the minor’s attendance have been unsuccessful.
Contributing to the Delinquency of a Minor is a serious charge. A conviction can interfere with your future employment, social life, and volunteering opportunities. It can hurt your chances of becoming a foster parent, working in a school, volunteering at a children’s group home and many other things.
If you are separating from your spouse or getting divorced, you have most likely heard the term, parenting plan. A parenting plan provides a detailed blueprint of how you and your spouse will co-parent your shared children.
The legal requirements for a parenting plan are determined by each state, however, there are certain important basics that every plan should incorporate, including:
Who will be the primary custodial parent
The schedule of when each parent will have the children
A holiday schedule
How medical decisions will be made
The educational path for the children
Child support details
Details about the children’s future religious upbringing
Where and how children will be picked up or dropped off to each parent
1. Who Will Be The Primary Custodial Parent
While many states have laws in place providing joint custody of the children, some states require that one of you be named the primary residential parent, or primary custody parent.
This does not remove the rights of the other parent regarding access to medical records, school records and time with the children. It is usually based on which of you has the children more than 50 percent of the time, though some states, including Tennessee name a primary parent even when parenting time is exactly equal.
2. The Schedule Of When Each Parent Will Have The Children
Whether you will have your children every other week – only on weekends or by some other schedule, it is important to clarify it in the plan. This eliminates giving control to one of you over the other regarding parenting time. Things to consider in this section are:
Children’s school schedule (If you can each get them to school and back it is feasible to share the school week)
The proximity of where you live in relation to your spouse (near each other is optimal)
Each of your work schedules
Children’s extracurricular activities and who will be responsible for taking them back and forth
Ability to provide supervision or provide a caretaker during your days with the children
3. A Holiday Schedule
Holidays can be stressful under the best of circumstances. Toss into the mix a divorce, disagreements about which holidays the children should celebrate and the wishes of grandparents, aunts, uncles and the family dog, it can be a recipe for disaster.
Addressing holidays in the parenting plan eliminates the problems. Whether you and the other parent plan to switch holidays every other year or consistently each keep them for the same holidays, be sure to include pick up and drop off times to avoid miscommunication down the road.
4. How Medical Decisions Will Be Made
Kids get sick. Kids get hurt. Determine on the front end how these things will be handled so everyone is on the same page when it happens. Obviously, whoever the child is with at the time of illness or injury will act accordingly, but your parenting plan needs to include notification specifics.
Should the other parent be called/texted on the way to the pediatrician or after the visit has ended? Will email be required to be sure it is in writing? What happens if it is a trip to the emergency room? Think of likely scenarios and decide how they will be addressed and put it in the plan.
5. Educational Path For The Children
Hopefully, you and the other parent are on the same page when it comes to how you both want your children educated. Including it in your parenting plan ensures that drastic changes cannot be made without your consent. Basics include whether your children will be:
Educated in a public school
Educated in a private school
Some parents include exactly which school district or schools the children will attend. Consider a clause that allows different schools or districts if agreed to by both parents in writing prior to any changes being made. This keeps you both from being locked into something that might not work in the future.
6. Child Support Details
In almost all cases, one parent pays child support to the other parent. The parent who has the children the larger percentage of time typically gets child support, but depending on your individual incomes, that is not always the case. Each state has specific guidelines to determine support payments.
Be sure to include in the parenting plan any extras in addition to child support such as:
Uncovered medical and dental expenses
Pet vet bills
Airfare for parenting time exchange (If applicable)
7. Details About The Children’s Future Religious Upbringing
If you and your co-parent are of the same religious beliefs, great, however, things can change down the road, so be sure to address this topic in the parenting plan. Is religious training important to one of you? Are you of different faiths or is one of you not of any faith at all? These are things that need to be addressed. In completing this section, consider:
Do you want to name a specific religion – Christianity, Jewish, Muslim, Buddhist, Bahai, etc?
Are you atheists and want your children raised without any training in particular faiths?
Are you two interfaith and would like the children to learn about both?
Whatever your beliefs, goals and wishes are when it comes to religious upbringing, be sure to include it here. In many states, the primary residential parent’s desires are followed if the parents cannot agree on this point.
Where and how children will be picked up or dropped off to each parent
It sounds so simple, yet, it can become a hot button very quickly, so it needs to be spelled out here. Things to think about include:
Which parent drops the children off and picks them up for each exchange?
Where does the exchange take place if not at each of your homes?
What time will drop off and pick up occur?
Is anyone other than the parent allowed to pick up or drop off – and if so, who is designated?
If one of you is in a relationship, is the boyfriend/girlfriend, new husband/wife allowed to come along to drop off or pick up – or are they to not be in the car, airport, etc?
8. Exceptions To The Rules
Work schedules change, vehicles break down, tickets to the 50-yard-line show up. Flexibility is important for things to run smoothly. A section of the plan should address what will happen if a temporary change is needed. For example, your co-parent holds tickets to a one time sporting event but it is not that parent’s day to have the children.
Are you willing to let them go and use one of the co—parent’s days next week to make up the time? Did your car break down and you will be late picking the children up on your day? Will your co-parent bring them to you?
These and other allowable changes should be addressed in the plan to avoid resentment in the future.
Jury nullification has taken place when a jury finds someone not guilty in spite of ample evidence to the contrary. The term means that by ignoring the facts and acquitting the defendant, the jury is nullifying the law in the case.
They might do so because they feel the law is morally wrong. It could also be that they feel it is being unevenly applied, or for any other reason, they see fit.
Instances of Jury Nullification
Jury nullification has been going on for centuries.
In the 19th century, many juries in northern states openly practiced nullification in cases where the government was attempting to prosecute people for breaking the Fugitive Slave Act of 1850. A law many in the North felt was immoral.
In the early 20th century, many juries refused to convict people being tried for violating laws based on the 18th amendment (prohibition). Prohibition was wildly unpopular and prosecutors found it extremely difficult to get convictions in many cases.
Many in the nation were shocked when it happened in the O.J. Simpson murder trial. The jury announced Simpson was “not guilty” of murdering his wife Nicole and her friend, even in the face of strong evidence to the contrary.
While the jury in the O.J. Simpson trial apparently felt Simpson was not being treated fairly by the law, the fact is, they reached their apparent nullification verdict organically. That is, they had not been instructed by the trial judge that they had the power to nullify. Why was that?
Nullification as Dirty Little Secret
In the early days of the republic, it was common for judges to inform juries of their right to nullify. However, as time passed judges became convinced that nullification was little more than a recipe for judicial chaos.
They simply stopped informing jury members of their right to vote their conscience. That practice of not informing jurors of their nullification prerogative has continued to pick up steam in contemporary courtrooms, although there are movements afoot to reverse this trend.
Nullification as a Defense Strategy
If you are thinking that perhaps you’ll walk free if your attorney can lay the groundwork for a nullification verdict, you might be right. Defense attorneys use several strategies to steer the jury to nullification, including:
Trying to fashion a jury composed of people who are most likely to be sympathetic with the defendant (which is exactly what O.J. Simpson’s legal team did) and
Focusing their defense strategy on the character of the accused instead of the crime they are accused of committing.
We’ve all seen them, those movie scenes where a police officer in pursuit of a suspect approaches a car, flashes his badge and tells the driver to get out.
Personally I’ve probably seen dozens of such scenes but don’t ever recall seeing one where the driver refuses.
But is that because it’s illegal to refuse or because it’s just not convenient to the plot?
A Different Kind of PC
While the sight of a police officer emerging onto a crowded street and commandeering a vehicle to pursue a fleeing suspect makes for great cinema it’s actually something that rarely happens in real life.
Most large police forces, after all, have more vehicles than they know what to do with, including some of the most powerful vehicles on the road. So the notion that an officer would need to take your ‘97 Honda Civic to pursue bank robbers stretches credulity to say the least.
Yet, although it is exceedingly rare the fact is it does happen from time to time and the law that allows it – called posse comitatus – can trace its roots to English common law.
Predating the Cowboys
The American legal system has been influenced by a number of European systems that preceded it. Most notably English common law and both Spanish and French civil law. If you zoom the microscope in close enough you can also still find a hint of Roman law in there as well. For the purposes of this article though, its English common law we want to look at because it’s there that posse comitatus has its roots.
Back in medieval times English law required citizens to raise a ruckus if they became aware of a crime being committed in their hamlet or village. This hue and cry was supposed to rouse the sheriff and other civic-minded citizens to get on their horse (sometimes literally) and pursue the bad guy.
By the time of the English Renaissance this obligation of citizens to help the sheriff pursue the (alleged) bad guy had been pretty much etched in stone. To the extent that most large towns had designated groups of young men called the “posse comitatus” who were tasked with aiding the local sheriff in pursuing ne’er do wells.
Coming to America
This notion that citizens have a responsibility to aid law enforcement in the pursuit of suspected criminals made its way across the Atlantic and became a recognized aspect of American law as well.
It was particularly important on the Western frontier where spaces were vast, criminals were plentiful and the resources of law enforcement were stretched to the limit. Notable examples of the frontier posse included the 400-man posse that tracked down several members of the Jesse James gang.
Into the Modern Age
The Posse Comitatus Act was passed by Congress in 1878 and put strict limits on the ability of the government to use the army for law enforcement purposes. But it didn’t put any practical restraints on the ability of sheriffs to raise a posse to aid in manhunts.
One of the most famous examples of a contemporary posse was the one raised in 1977 by the sheriff of Aspen Colorado to pursue escaped, suspected serial killer Ted Bundy. Ordinary citizens were enlisted to show up with their own weapons and search the countryside for Bundy, who was eventually found and returned to custody. (He would escape again a few weeks later and successfully flee the state.)
Real World Examples
There aren’t as many real-world cases of police commandeering private vehicles to facilitate pursuits as movies and TV would have us believe. But there are some. And a few are particularly noteworthy.
One century-old case where a person refused to cooperate turned out to be instructive. The case involved an Alabama store owner who refused to assist a police officer who needed help subduing a suspect. The store owner felt his life might be in danger if he helped, but the police officer was not sympathetic. The store owner was charged with failing to assist the officer and the court didn’t buy his imminent danger defense. In fact, they rule that the perceived danger actually made it all the more important that the store owner help.
Three decades later a New York policeman hopped onto the running board of a taxi and ordered the driver to pursue another car that contained a fleeing suspect. The cabbie obeyed but soon after beginning the pursuit he collided with another car and was killed. The widow of the cabbie sued for restitution in a case that became known as Babbington v Yellow Taxi Corporation. The judge in the case ultimately ruled that the police officer was within his right to enlist the help of the driver. Citing nearly 900-year old English common law the judge declared that in medieval times “We may be sure that the man who failed to use his horse … would have had to answer to the King.” and then went on to state that the car was the modern equivalent of the horse.
In 2005 a sheriff in Kansas commandeered the airplane of local pilot to search for a suspect from the air. The small private plane wound up flying over the suspect who fired on it and wounded the pilot, who somehow managed to land safely. In this case though the pilot retained his sense of humor and told police “If you need me again, call me.”
The Bottom Line
If a police officer approaches you and requests you to aid in the pursuit of a suspected criminal by either acting as a driver or surrendering your vehicle so that the officer can use it, you are legally compelled to obey.
Each state deals with those who refuse to help in slightly different ways. But in most cases the person who declines to assist can be charged with either a Class A or Class B misdemeanor and/or fined anywhere from $50 to $1,000.
A plea bargain is an agreement between the prosecution and the defense that typically allows the defendant to plead guilty to a lesser offense than that for which he was originally charged or to obtain a lighter sentence.
Prosecutors often seek a plea bargain if they are uncertain about their ability to obtain a conviction on the original charge or if it will prompt the defendant to provide important information that might otherwise have remained secret.
Example: In 2003 prosecutors in Washington State offered a plea bargain to Gary Ridgway, the notorious “Green River Killer”. He would avoid the death penalty if he admitted to all his murders and led the police to bodies that had yet to be recovered. Ridgway wound up pleading guilty to 48 murders and received 48 life sentences. In this case, the state determined that getting closure for the families of the victims outweighed any societal gain from putting Ridgway to death.
In most cases involving ordinary people and less spectacular and grizzly circumstances plea bargains are a way for the overloaded court system to quickly process cases and avoid the expensive and time-consuming jury trial.
As such even if the prosecution is confident of convicting someone for say, simple assault, they may accept a plea of “no contest” and agree to a sentence that includes community service and probation rather than jail time, particularly if the defendant has no prior record.
The Three Forms of Plea Bargaining
In the contemporary criminal justice system there are three types of a plea bargain:
The Charge Bargain – With this type of plea bargain the defendant pleads guilty to a lesser crime than he was originally charged with.
The Count Bargain – With the count bargain a defendant will plead guilty to some of the charges against him with the understanding that others will be dropped.
The Sentencing Bargain – This is what Ridgway agreed to wherein he was spared the ultimate sentence in return for information.
Components of the Plea Bargain
A plea bargain is only considered valid if it meets the following requirements:
The defendant knowingly waives his right to a trial.
That waiver is completely voluntary and not the result of coercion or threats.
There is a factual basis to the criminal charges the defendant is pleading guilty to.
The Bargaining Process
Plea bargains may be announced in open court but they are arrived at in private. During the bargaining session only the defendant, his counsel, the prosecutor and on occasion the judge are present.
Both sides must agree to the terms of the bargain or it will have no weight. In addition, the judge can always reject the plea deal if he or she feels it is not in the public interest.
The Bottom Line
Though it remains controversial to many plea bargaining is practiced at every level of the justice system today and is considered an essential tool for prosecutors and defendants who wish to avoid long and expensive trials with uncertain outcomes.
Legal parents are individuals who have the legal to have the custody of a child. They have the power to make decisions about the child’s education, well-being, and health. Legal parents are the legally-recognized parents of a child.
Additionally, it is the responsibility of the legal to support the child financially. In given states in the United States, people who do not qualify as legal parents do not have legal decision-making authority over a child. Such people are not granted the right even if they live with the kid and function as the kid’s parents.
Moreover, non-legal parents may have no authority to visitation or custody of the child when something happens to the legal parents. Therefore, non-legal parents cannot claim the child as a dependent for health insurance. The child also has no power to inherit from a non-legal parent or relative.
Legal parents share equal rights to seek the custody and support the children. As a result, both biological and adoptive parents have equal rights when it comes to determining the custody of children. For example, lesbian couples who have children through donor insemination and completes the second parent adoption, both parents are considered equal under the law. Therefore, if the lesbian couple were to separate, each will be equally entitled to the custody of the child. It is upon the court to determine who will be granted custody of the child based on the best interest of the kid. The court does not give any advantage to either of the parents because they are equal under the law.
In same-sex marriages, the court presumes both spouses are legal parents by the virtue that they are legally married and got the child through the union. Therefore, during a divorce, both parents remain legal parents. However, the courts have the power to terminate both or one of their parental rights.
Second Parent Adoption
The Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriages. However, LGBT individuals still do not enjoy the fruits of equality under the family law. In most instances, LGBT non-biological parents establish a legal relationship with their children through “second-parent adoption.”
The Federal Constitution through the Full Faith and Credit Clause requires the states to recognize court orders. Adoptions are also considered as court orders thus legally binding to all states. United States recognizes final adoption by an LGBT parent. However, such adoptions are accepted to the extent if the laws of a given state could have allowed for the adoption to take place in their jurisdiction.
In the case of Embry v Ryan, a Florida Court of Appeal held that Florida is obligated to recognize second-parent adoption. The adoption was granted in Washington to the biological mother’s same-sex partner. The court further declared that the adoptive parent is entitled to all the responsibilities and rights of a legal parent under the laws of Florida.
The parentage action is also referred to as parentage judgment, and it is found under the Uniform Parentage Act. Non-biological parents are advised to get a parentage judgment to protect their parental rights when they travel or move. Parentage judgment or adoption protects non-biological parents. The name on the birth certificate does not entirely safeguard the legal rights when challenged in a court. Therefore, the perfect documents to protect parental rights are adoption and parentage judgment.
Visitation or Custody
Legal parents have the right to custody or visitation. The privilege does not discriminate based on adaptive, biological, or other legal parents. All the parties are entitled to equal rights to seek the visitation or custody.
Additionally, most states have enacted statutes that grant de facto parents who assume parental roles in a child’s life the right to request for custody or visitation. The term “de facto” parents describes someone who assumes the full responsibilities of a parent. The conditions to qualify for a de facto parent in the District of Columbia include:
Lived with the child since adoption or birth
Lived with the child for ten months out of the last year
Formation of a strong emotional bond with the child through the encouragement of the other parent
LGBT couples who are unmarried during the birth of their children and live in states that do not permit parentage judgment or second parent adoption are required to draft a parenting agreement.
The agreement does not qualify one to be a legal parent. However, such agreements may be enforceable in court and allow people to seek custody or visitation. The agreement should clearly state the couple’s intention to continue co-parenting during the dissolution of the relationship.