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Should Witness ‘Flipping’ Be Illegal? — via Timothy T. Brock

FindLaw Blotter - The FindLaw Crime and Criminals Blog

 

Should Witness ‘Flipping’ Be Illegal?

Even if you’re not a criminal defense attorney, watching a couple episodes of “Law and Order” will probably introduce you to the concept of police and prosecutors going after “small fish” in order to get the “big fish,” criminally speaking. This process involves lower level suspects or defendants exchanging testimony against higher level targets for lighter sentences or immunity.

The practice of flipping has become especially prominent in the investigation headed Robert Mueller looking into possible collusion between Russia and the Donald Trump presidential campaign. In fact, in the wake of news that Trump longtime lawyer and “fixer” Michael Cohen would be cooperating with federal prosecutors, the president decried the practice of witness flipping, claimed it encourages criminal defendants to unfairly “make up stories,” and asserted that “it almost ought to be illegal.”

Flipping may have its issues, but should it be outlawed?

The Force of Flipping

Much of the incentive to cooperate with law enforcement comes from the amount of power and discretion prosecutors have in determining both criminal charges and the possible sentences for convictions or guilty pleas. As criminal defense attorney Ken White pointed out at the Washington Post, “Federal prosecutors could flip Cohen because they had broad discretion to charge him with dozens of crimes or none; they alone decided how sweet a deal to offer and how ugly the alternative was.”

When faced with myriad possible criminal charges and years or decades behind bars (not to mention days and nights in jail until their case is resolved), defendants often feel they have little option but to give prosecutors any information they can, even if that information isn’t always accurate.

It doesn’t help that many of those targeted for flipping lack the financial resources to mount an adequate defense, and public defenders, too, are often underfunded and overworked. The choice of whether to flip or stay quiet and fight criminal charges is, more often than not, no choice at all.

Running on Flipping and Reform

“The criminal justice system,” White asserts, “runs on flipping defendants. If we want fairness for both the cooperating defendants and the people they implicate — if we want faith in the results — we need serious reform.”

Reform will almost certainly not include President Trump’s suggestion that flipping be outlawed, better funding for criminal defense and more transparency and consistency in charging and sentencing can be positive steps to, if not eliminating flipping, ensuring fairness for both those offering evidence against other criminal targets and those against whom that evidence will be used.

Related Resources:

via Should Witness ‘Flipping’ Be Illegal? — timothytbrock

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Community Property – California Estate Planning Laws — The Kate’s Vine

There was a recent story about a California man who was a high-level Silicon Valley executive. He met his sixth wife when he went to a bar where she worked as a waitress. They married. The honeymoon was short-lived. They battled for a while. The man passed away and left his $100 million to each […]

What Is the Community Property Law in California?

Written by Jane Meggitt; Updated June 20, 2018

Most couples entering wedlock in California know that it is a community property state, but may not know exactly how that affects them should they ever divorce. Basically, once a couple marries, or enters a domestic partnership, they are no longer two separate units but one legal entity. Community property is all property and all debts acquired during a marriage or partnership. There is an exception for inherited property and gifts.

 

Community Property

Property is virtually anything that can be sold or bought. Couples may think of community property in terms of real estate, bank accounts, retirement and pension plans, stocks and bonds and the like, but it also applies to cars, furniture and even clothing. When a couple divorce in California, the court decides how the marital property and marital debts are divided. It doesn’t matter if only one spouse incurred debt, as both of them are responsible for it. The mortgage on the family home is one such debt.

Separate Property

Property that a spouse acquired before a marriage is not part of community property. If one spouse had their own home prior to marriage, for example, and continued to own it and rent it out, not only is the dwelling not considered community property but neither is the rental income. Inheritances are always exempt from community property, and so is property purchased with inherited funds, as long as that is provable. Once a couple legally separates, their earned income becomes separate property, so that separation date is crucial.

Commingled Property

Some property becomes commingled during the course of the marriage, and legal help is generally needed to sort this out. For example, if a spouse had their own home before they married, but sold it and used the proceeds toward the martial home, that is separate property. If there’s a mortgage on the house, the resulting equity in the home is community property, and that means commingled equity. Pension plans are another tricky area, since one spouse may have contributed to the plan prior to marriage, making that separate property, but continued to contribute to the plan after marriage, making those contributions community property. Pension plan rules are quite detailed and an attorney may be necessary to ensure the property division meets all legal requirements.

Spousal Death

Community property discussions tend to focus on divorce, but the laws also come into play when one spouse dies. Assuming that the spouse left a will, he or she can only transfer half of the marital community property to other parties. The surviving spouse still owns the remaining half. If the spouse dies without a will, or intestate, that’s where problems can really arise. California laws of intestate succession, or who is entitled to the property of someone dying without a will, grants the late spouse’s property entirely to the surviving spouse only if there are no surviving children, grandchildren or other members of the immediate family such as parents. If there is one surviving child or other immediate family members, half of the late spouse’s property goes to the surviving spouse and half to the child. If there are multiple children or grandchildren, the spouse receives just one-third of the late spouse’s separate property, and the rest is divided among the children and grandchildren.

Opting Out

While community property is the law in California, there are ways for married couples to avoid it. For couples who have not yet wed, the answer is a prenuptial agreement, also known as a premarital agreement. Both parties must have their own attorneys to ensure fairness regarding the agreement. Those who are already married may enter into an antenuptial agreement, also known as a martial agreement. These agreements spell out what belongs to each member of the couple. Keep in mind that under California law, any type of pressure or duress in signing these agreements may invalidate them, so this is not a document put together the day before the wedding.

via Community Property – California Estate Planning Laws — The Kate’s Vine

Bend the curve with Average Contract Value (ACV) — with me

SaaS entrepreneurs know how hard it is to scale their companies from zero to their first few $M in revenue. I’ve posted before about misconceptions about scaling SaaS businesses – namely that adding more sales pods will lead to exponential growth. While pod additions are part of it, the single most powerful lever in driving exponential […]

via Bend the curve with Average Contract Value (ACV) — vcwithme

Lawsuit: Insurer Anthem Misleading California Customers

SACRAMENTO, Calif. (AP) — A California consumer advocacy group is suing Anthem Blue Cross over allegations that the health plan is misleading several hundred thousand customers about changes in their policies for next year.

Consumer Watchdog filed a lawsuit in Los Angeles County Tuesday claiming Anthem is charging more for inferior coverage and burying the changes in a mountain of paperwork.

In most of California, Anthem is changing its “preferred provider organization,” or PPO, plans that provide coverage for out-of-network doctors to “exclusive provider organization,” or EPO, policies that do not.

Consumer Watchdog says many customers chose PPO plans specifically for the option to use out-of-network providers and will be surprised when their bills are no longer covered.

Anthem says state regulators approved the changes and the lawsuit is without merit.

via Lawsuit: Insurer Anthem Misleading California Customers — FOX40

Exxon Legal Issues with Establishing Environmental Accountability:

Watts Up With That?

This is in the news today via “Climate NEXUS”, which is a Madison Ave. PR firm:

New York Attorney General Eric Schneiderman announced that he is launching a legal probe into Exxon’s climate denial. The inquiry will look into both consumer and investor protection laws, covering the oil giant’s activity dating back to the 1970s. Schneiderman’s investigation could open “a sweeping new legal front in the battle over climate change,” says the New York Times, which broke the story. Two separate reports by InsideClimate News and the Los Angeles Times uncovered that Exxon has known about the dangers of climate change since the 1970s but sowed doubt by funding climate change skeptics to preserve its business. Exxon has been compared extensively to the tobacco industry, which was convicted of racketeering in 2000 for deliberately deceiving the public about the dangers of its products.

It seems all this is part of…

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The difference between survival action and wrongful death?

The days where a personal injury claim dies with the victim are long gone. Various states have passed laws that recognize both survival action and wrongful death claims. These two, although tied together in preserving the rights of the deceased, cover different forms of damages.

The major differences between these two are the key elements probed for the validation of the claim, damages covered if each claim has been proven, and the aspect of distribution of the said damages.

Key elements

In a wrongful death claim, breach of duty and causation are the burden of proof established throughout the case. The basis of damages to be covered by the claim is the act or lack of action of the entity at fault.

In survival action, the inquisition goes beyond the negligence of duty. Survival action takes into consideration the difficulty experienced by the victim between the accident and death.

Damages covered
Designed as reparation to the family or dependents of the victim, a wrongful death claim covers lost wages, medical expenses, and other financial issues that the death has brought to surviving relatives or dependents.

Meanwhile, survival action doesn’t merely focus on the aftermath of the death. It covers the probable damages that the victim would have been able to fight for if he or she had survived. Laws.com describes this as “the continuation of tort actions that the victim would have been entitled to raise in life.” In Washington, survival action also considers the expenses incurred by the victim while the person was struggling for life at the hospital, regardless of the duration of the stay.

Distribution of claims
In wrongful death cases, relatives (immediate or distant), and rightful dependents may receive the settlement in behalf of the victim.

However, in survival action claims, the victim’s estate will be the primary premise for distribution of damages. Only the heir or lawful dependent of the victim will be entitled to the damages recovered, as stipulated by the will of the victim.

Can representatives file for both? This depends on the statute governed by State law. Some states allow the filing of both claims and receiving the compensation for both. However, states like Virginia only allow the representative to recover either of the two.

Sheeley Law, LLC provides representation for the families or dependents of victims of wrongful death. To read more related topics on this legal matter, visit this blog.

Comments are closed. @annsheeley

Ann S Sheeley's Blog

The days where a personal injury claim dies with the victim are long gone. Various states have passed laws that recognize both survival action and wrongful death claims. These two, although tied together in preserving the rights of the deceased, cover different forms of damages.

The major differences between these two are the key elements probed for the validation of the claim, damages covered if each claim has been proven, and the aspect of distribution of the said damages.

Image Source: CosmosMagazine.com

Key elements

In a wrongful death claim, breach of duty and causation are the burden of proof established throughout the case. The basis of damages to be covered by the claim is the act or lack of action of the entity at fault.

In survival action, the inquisition goes beyond the negligence of duty. Survival action takes into consideration the difficulty experienced by the victim between the accident…

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How Judges can Avoid Decision Fatigue – RELY ON AND LEARN FROM YOUR IN-COURT CLERKS

June 25, 2015 MINNESOTA Update 15-12 Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309. How to Avoid Decision Fatigue

THE PROBLEM: In a perfect world judges make decisions by applying legal analysis to the facts of a case in a rational, fair and deliberate manner. But in the real world, we know that judges and judicial decision-making, despite their best efforts, are often subject to the same foibles, biases and imperfections that affect everything humans do. We would love to believe that a judge’s rulings are solely based on rational decisions and written laws. In reality, they can be influenced by a variety of non-relevant factors that may be so subtle that they go mostly unnoticed by attorneys, the parties and most importantly, judges themselves. In order to keep this update short and concise, these non-relevant factors are broken down into two main categories: 1) IMPLICIT BIAS; and 2) DECISION FATIGUE.

1) IMPLICIT BIAS & The Committee for Equality and Justice (CEJ): Explicit Bias: The problems of overt discrimination have received enormous attention from lawyers, judges, academics, and policymakers. While explicit sexism, racism, and other forms of bias persist, they have become less prominent and public over the past century. However, explicit bias and overt discrimination are only part of the problem – What about “implicit bias”? Implicit Bias: An implicit bias is a positive or negative attitude toward a person or group of people that a person holds at an unconscious level. An implicit bias is formed by a person’s individual developmental history, life experiences, and culture causing it to be so ingrained in a person’s personality that he or she is unaware of its existence. Over the past decade, researchers have provided convincing evidence that implicit biases exist, are pervasive, are large in magnitude, and have real-world effects. Since fairness and unbiased decisions are fundamental to the justice system, several studies and articles have been published that provide guidance and strategies to reduce implicit bias in the courts. Committee for Equality and Justice & “The Implicit Bias Bench Card”: Minnesota Judicial Counsel’s Committee for Equality and Justice (CEJ) is dedicated to eliminating all forms of bias in Minnesota’s judicial branch. The CEJ recognizes that detecting and eliminating implicit bias is difficult and there is no perfect tool to do so. Studies have shown that in order to combat the effects of our implicit biases, it is crucial to be aware that they exist and to actively question whether they are affecting our rationale. The CEJ offers the “Implicit Bias Bench Card” (see attachment) as a reminder that implicit bias exists in all of us and as a tool to help reduce its influence on our decision-making processes when possible. Please copy and distribute the attached bench card to anyone you think may have an interest. JUDICIAL TRAINING & EDUCATION UPDATE Prior training updates (103) can be accessed by clicking on: Judicial Training Blog JUDICIAL DECISION-MAKING Dangers of “Implicit Bias” & “Decision Fatigue” June 25, 2015 MINNESOTA Update 15-12 Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309

2) DECISION FATIGUE: In Judicial decision-making, decision fatigue refers to the deteriorating quality of decisions made by a judge, after a long session of decision-making. For instance, judges in court have been shown to make less favorable decisions later in the day than early in the day. Why? Judges, being human, were worn down by a day full of mental work. They had, as social psychologist Roy F. Baumeister states, fallen victim to decision fatigue. In other words, if judges don’t learn to manage their reservoir of mental energy, they won’t be able to manage their judicial decisions. That’s a lesson learned from a 2011 study on extraneous factors in judicial decisions, published in the “Proceedings of the National Academy of Sciences” (www.pnas.org/cgi/doi/10.1073/pnas.1018033108). Jonathan Levav of Columbia University and his colleagues analyzed 1,112 parole hearings for inmates of four Israeli prisons, made by eight experienced judges over a ten-month period. Prisoners who appeared early in the day or right after a food break received parole about 70% of the time, while those that came late in the day or long after scheduled food breaks or lunch had less than 10% chance at landing parole. This pattern is readily evident in the following 2011 graph published as part of the study. The graph is dramatic. It shows that the odds that prisoners will be successfully paroled start off fairly high at around 65% and quickly plummet to nothing over a few hours. After the judges have returned from their breaks, the odds abruptly climb back up to 65%, before resuming their downward slide. These rulings were made by eight Jewish-Israeli judges (two females), with an average of 22 years of judging behind them. Their verdicts represented 40% of all parole requests in the country during the ten months. Every day, each judge considered between 14 and 35 cases. They took two food breaks (a morning snack and lunch) that divided their day into three sessions. Judges had no control over the scheduling of cases. The study found that the three prisoners seen at the start of each “session” were more likely to be paroled than the three who are seen at the end. That was true regardless of the length of their sentence, or whether they had been incarcerated before. The following four findings are highly relevant for judges: 1. All repetitive decision-making tasks drain our mental resources. We start suffering from “choice overload” and we start opting for the easiest choice. For example, shoppers who have already made several decisions are more likely to go for the default offer, whether they’re buying a suit or a car. And when it comes to parole hearings, the default choice is to deny the prisoner’s request. The more decisions a judge has made, the more drained they are, and the more likely they are to make the default choice. Taking a break replenishes them

Judges, even experienced ones, are vulnerable to the same psychological biases as everyone else. They can deliver different rulings in similar cases, under the influence of something as trivial as a food break. Their training, their experience, and the weighty nature of their decisions do not insulate them from the sort of problems that plague our everyday mental abilities. The mental work of ruling on case after case can wear any judge down – even the best ones. This sort of decision fatigue routinely warps the judgment of everyone, executive and nonexecutive, rich and poor. Yet few people are even aware of it, and researchers are only beginning to understand why it happens and how to counteract it.  You can’t make decision after decision without paying a biological price. No matter how rational and high-minded you try to be, you can’t make decision after decision without paying a biological price. It’s different from ordinary physical fatigue — you’re not consciously aware of being tired — but you’re low on mental energy. The more choices you make throughout the day, the harder each one becomes for your brain, and eventually it looks for shortcuts, usually in one of two ways. a. One shortcut is to become reckless: to act impulsively instead of expending the energy to first think through the consequences. (Sure, tweet that photo! What could go wrong?); b. The other shortcut is the ultimate energy saver: do nothing or opt for the easiest choice. Instead of agonizing over decisions, avoid any choice or the more difficult choice. Ducking a decision often creates bigger problems in the long run, but for the moment, it eases the mental strain. You start to resist any change, any potentially risky move — like releasing a prisoner who might commit a crime. So the fatigued judge on a parole board takes the easy way out, and the prisoner keeps doing time. BEST JUDICIAL PRACTICE: One purpose for this update is to promote awareness of the increasing body of research that supports the view that all repetitive decision-making tasks drain our mental resources. Thus, when judges make repeated rulings, they show an increased tendency to rule in favor of the status quo (whatever that may be).  Research suggests that this tendency can be overcome by taking a break to eat a meal, or from other benefits derived from a short break, such as rest, physical movement and increased positive mood, all of which promote mental resource replenishment.  However, because none of these studies are definitive, perhaps the best judicial practice is for each individual judge to develop a sense of how much their decisions have fatigued them and to do whatever works best for them to bolster their mental energy supplies.

Read More: https://blogpendleton.files.wordpress.com/2015/06/judicial-training-update-15-12-implicit-bias-decision-fatigue.pdf

 

MINNESOTA JUDICIAL TRAINING & EDUCATION BLOG

NEWLY APPOINTED JUDGES – WHY THE RISK OF MISTAKES ARE HIGH: Judges have an incredibly difficult job. Most judges were appointed to the bench, in part, based on their training, experience and expertise in usually one or two areas of the law. Many judges come from a prosecution or criminal defense background with no significant civil experience. Many judges with a strong civil background have little or no criminal experience. And a large number of judges come onto the bench with no prior family law experience. And even those judges with a particularly broad background, few can boast of experience in areas such as: conciliation court, civil commitments, juvenile, probate, child support contempt and unlawful detainers, etc. This update answers the question why new judges should rely on and learn from their in-court clerks.

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PendletonUpdate14-14

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