We have barely seen the full legal impact of the Nasser-gymnast sexual abuse cases: Over 140 girls claim he abused them.

I have not seen this covered very much on broadcast television but an horrifying case is playing out in a Michigan court room.

A sentencing hearing that started as four days and now is expected to last five days for former MSU doctor Larry Nassar continued today in Ingham County Circuit Court.

Nassar, 54, of Holt, pleaded guilty in November to 10 counts of first-degree criminal sexual conduct, with seven in Ingham County and three in Eaton County. The low end of his sentence will be between 25 and 40 years in prison, and the maximum sentence can be up to life.

The Michigan Attorney General’s Office, which prosecuted Nassar, said Thursday that it expects 120 women and girls to now give victim-impact statements. More than 140 women and girls have said Nassar abused them.

First, the criminal prosecution will likely not end in Michigan.

Nassar, 54, will almost certainly spend the rest of his life in prison. He has already received a 60-year prison sentence for child pornography charges and he will soon face sentencing in two Michigan counties for seven felony counts of criminal sexual conduct and three counts of criminal sexual conduct. All told, he could end up with prison sentences totaling 150 years to 200 years—and it’s possible he could be prosecuted for still other sexual crimes, including in Texas. Of course, for the more than 150 women who accuse Nassar of sexual assault under the perverted guise of “medical treatment”, no amount of prison time can account for the harm he caused.

Second, Nasser himself is already facing a pending civil lawsuit, too, by one victim. I have recommended this for sexual abuse victims. Unlike Nasser, most sex offenders likely will be released in their lifetime. Adult survivors of childhood abuse can still bring suit.

One of the things that has struck Foote the most in his line of work on behalf of victims of sexual abuse is the gaping power disparity that exists between the victims and their abuser. That can be the biggest impediment to bringing such allegations to light; so often, the accused’s status may deter victims from coming forward in the first place.

“The nature of abuse is such that they sort of feel powerless,” Foote said. “It takes a long time for people to come forward. It’s even more pronounced when you’re dealing with someone that’s powerful, well-respected, who works for or is associated with a big institution, and that’s really damaging for people.”

In these instances, Foote has witnessed an interesting phenomenon when victims do come forward, and, as is often the case, connect with each other. Even the simple act of uniting in solidarity, retaining counsel and filing the lawsuit itself, regardless of outcome, can have a cathartic and empowering effect. Several well-known gymnasts such as Raisman, McKayla Maroney, Gabby Douglas and, most recently, Simone Biles have spoken out about Nassar’s abuse and finding strength in rallying together with fellow victims.

The facts of the case have most legal scholars willing to believe there will be very serious consequences for all parties complicit in the abuse. Bringing those parties to account, as well as putting mechanisms in place to prevent it from happening again, needs to be the top priority.

Thirdly, and most interesting to watch, there are major institutions which have the ability to pay substantial sums. “More than 140 people have filed civil suits against the doctor and the institutions that employed him for so long, most notably USA Gymnastics and Michigan State University. Some of the victims coaches and administrators were aware of complaints against Nassar, but no actions were taken against him. The victims, all women, include notable US Olympians. Aly Raisman, Gabby Douglas, and McKayla Maroney, Jordyn Wieber, four members of the “Fierce Five” 2012 gold medal-winning team stated publicly that Nassar sexually abused them.”

Legal responsibility for Nassar’s crimes doesn’t necessarily end with him. USA Gymnastics and Michigan State both employed Nassar for extensive periods of time. They were legally responsible for supervising his work and investigating allegations of misconduct. Both are defendants in federal and state lawsuits brought by Nassar’s victims, and both could ultimately pay many millions of dollars to Nassar’s victims.

These institutions had legal duties imposed by statute and general case to protect these girls:

“There should have been mechanisms in place to protect these young women when they came forward and there weren’t, and that’s going to give rise to liability,” said Angela B. Cornell, a clinical professor of law and founding director of the Labor Law Clinic at Cornell Law School. “If these allegations are proven, this is a very damning case. We’re not talking about the he said-she said scenario. … This is way beyond that. This is a very damning case at what appears to be every level.”

This should be a lesson to school boards, recreation leagues, and Upward programs. Under Federal Title IX law, any educational institution, whether it be K-12 or a university, is compelled to investigate any complaint of sexual abuse or sexual violence both promptly and equitably.

Fourthly,  the leaders from these institutions have incentive to settle quickly. Following the civil cases, others may be criminally charged:

Emails, notes and witness statements could all come to public light. Distinguished academic and professional careers could be destroyed. Even more threating, evidence could surface that leads to criminal charges of USA Gymnastics and Michigan State officials. Look at how the investigation into former Penn State football coach Jerry Sandusky led to criminal charges against Penn State president Graham Spanier. While the Sandusky case was different in many ways, the idea that senior university leadership could become embroiled in a criminal investigation is surely concerning to Michigan State’s leadership.

Relatedly,

Earlier this month, reports surfaced that the AG’s office is considering launching its own investigation to uncover how this abuse was allowed to go on for so long, whether Michigan State was aware of it, and if so, what it did when it became aware of such information.

I expect additional lawsuits to be filed, perhaps class actions. Suprisingly, I expect MSU and others want a class action. They don’t want to have to be embroiled in lawsuit after lawsuit. Per Maureen Carroll, an assistant professor at University of Michigan’s law school:

But whereas class- action suits are bound by a baseline of commonality among plaintiffs, with one person serving as the lead plaintiff on other plaintiffs’ behalf, this is not the case in the Nassar lawsuits, because not all of the victims sustained abuse in a similar set of circumstances. Some were MSU student-athletes, some were members of the U.S. National Olympic team program, for example.

Accordingly,

“The cases will settle. I doubt we’ll see any go to trial,” said Henning, who predicts that MSU will opt for a similar remedy to what Penn State did, called global settlements.

Global settlements would mean the university would identify as many victims as it can and make an offer to pay them.

“They’ll do what every institution wants to do, which is to put it behind them. You don’t need these kinds of articles. They’d much rather have their name in the news with Tom Izzo,” Henning said. “You want everyone talking about the basketball team, not Larry Nassar. And that’s going to probably require a pretty substantial payment.”

In the case of Penn State, recent reports indicate the university has paid out north of $100 million in settlements to victims of Sandusky. Washington, D.C.-based attorney Kenneth Feinberg, who also was involved in the September 11 victims fund, was involved in that process, so he understands what goes into determining whether the university finds that within its own best interests.

But at this point, MSU is litigating the claims:

On Friday, MSU filed a motion in federal court to dismiss the multiple lawsuits standing against the university, arguing that the university should not be a defendant in those suits for a variety of reasons: the statute of limitations, the protection under Federal Title IX law and the “immunity” the university believes its employees deserve.

 

 

Another Successful Non-Money Bail Pre-Trial Release Program

Most people released under Yakima County’s pretrial release program did not go on to commit new crimes while awaiting trial — similar to the rate of people released on bail before the program was implemented, a recent study of the program revealed.

Across the nation, money bail is being challenged. Alternative programs exist. This article details the success of the Yakima County.

Since February 2016, Yakima County has been allowing low-risk offenders to be released from custody pending trial, with varying degrees of court-mandated supervision based on the nature of the crime and how likely they were to commit another offense or skip court dates if released. Some defendants only received reminder phone calls about court dates, while higher-risk offenders were required to check in with court staff on a weekly basis and undergo drug testing.

A telephone call seems a lot less expensive than holding these inmates in jail.

The pretrial assessments should be a piece of the broader puzzle for improving American pre-trial procedures. As argued by these statisticians:

Bail decisions have traditionally been made by judges relying on intuition and personal preference, in a hasty process that often lasts just a few minutes. In New York City, the strictest judges are more than twice as likely to demand bail as the most lenient ones.

To combat such arbitrariness, judges in some cities now receive algorithmically generated scores that rate a defendant’s risk of skipping trial or committing a violent crime if released. Judges are free to exercise discretion, but algorithms bring a measure of consistency and evenhandedness to the process.

The use of these algorithms often yields immediate and tangible benefits: Jail populations, for example, can decline without adversely affecting public safety.

In one recent experiment, agencies in Virginia were randomly selected to use an algorithm that rated both defendants’ likelihood of skipping trial and their likelihood of being arrested if released. Nearly twice as many defendants were released, and there was no increase in pretrial crime.

New Jersey similarly reformed its bail system this year, adopting algorithmic tools that contributed to a 16 percent drop in its pretrial jail population, again with no increase in crime.

See also the positive reports from New Orleans as well:

The bail bonds industry has argued that financial collateral is the only effective way to ensure defendants return to court for their trial. Starting in the spring, the Orleans Parish criminal district court decided to test this theory with a pilot program that came close to approximating what it would be like if the court eliminated bail altogether. It used a risk assessment tool to identify who was most likely to return to court without incident—and then it released them without making them pay.

The result? People released in the pilot returned to court at roughly the same rate as defendants in other commissioners’ courtrooms, according to a new report by the civilian court monitoring group Court Watch Nola. The rearrest rate was also comparable, although somewhat higher, at 4.5% rather than 2.9%. In all, 9 people out of 201 people in the program were arrested again after they were released without bail.

The findings help debunk warnings by opponents that replacing money bail will release dangerous criminals into the streets and allow fugitives to flee from justice. . .

“This means that the biggest reason we are paying so much for unnecessary incarceration is to incarcerate defendants who will likely return to court and are not a danger to public safety,” Levine said.

“Low risk” is defined in New Orleans by a risk assessment tool developed by the Vera Institute that analyzes data like prior missed court appearances, criminal history, age, and residency to predict the likelihood that a defendant will be re-arrested or fail to appear in court if released before their trial.

Over the six months of the program, jail stays dropped dramatically for these defendants. In March, before the program began, low-risk defendants were sitting in jail for an average of twelve days–plenty of time to destabilize a life. That quickly dropped to four days. By June, the average jail stay was two days.

Historically, Alabama has merely employed a money bail schedule. This bail schedule needs to be challenged at every opportunity. Rule 7 states as follows:

The following schedule is established as a general rule for circuit, district and municipal courts in setting bail for persons charged with bailable offenses. Except where release is required in the minimum schedule amount pursuant to the Rules of Criminal Procedure, courts should exercise discretion in setting bail above or below the scheduled amounts.

BAIL SCHEDULE

Recommended Range

Felonies:

  • Capital felony: $50,000 to No Bail Allowed
  • Murder: $15,000 to $150,000
  • Class A felony: $10,000 to $60,000
  • Class B felony: $5,000 to $30,000
  • Class C felony: $ 2,500 to $ 15,000
  • Drug manufacturing and trafficking: $5,000 to $1,500,000
  • Class D felony: $1,000 to $10,000

Misdemeanors (not included elsewhere in the schedule):

  • Class A misdemeanor: $300 to $ 6,000
  • Class B misdemeanor: $300 to $3,000
  • Class C misdemeanor: $300 to $1,000
  • Violation: $ 300 to $ 500
Municipal Ordinance Violations: $300 to $1,000
Traffic- Related Offenses: DUI: $1,000 to $7,500

 

New Law: Alabama Legislature Enables Digital Assets to Be a Part of Your Estate Plan

With little fanfare, the Alabama legislature passed the Alabama version of the Revised Uniform Fiduciary Access to Digital Assets Act. Most every Last Will and long-term Power of Attorney and Living Trust going forward will need to have express language authorizing the Executor or Attorney-in-Fact (under a Power of Attorney) or Trustee to access their Facebook, Instragram, online bank accounts, smart phones and other online accounts. This Fidelity article highlights what’s at stake:

You may have planned for your loved ones to eventually inherit your house, the Steinway grand piano, your Dad’s 88-year-old Swiss watch, or other family heirlooms, but with life increasingly being lived online, you may be overlooking an increasingly important kind of property— digital assets.

If your estate plan doesn’t account for digital assets properly, your heirs may not have access to them. Family photos and videos could be lost forever, social media accounts could stay up long after you’ve passed, and your heirs may not receive all the money that you’d like to see come their way.

Estate planning attorney James Lamm, with Gray Plant Mooty in Minneapolis, Minn., has seen such problems firsthand. He first noticed the importance of digital assets in estate planning a few years ago. “A client had passed away, and there were no paper records,” says Lamm, a nationally known expert and author of the Digital Passing blog. “All of the client’s financial information was stored on computers and protected by passwords. This really opened our eyes. We’re dealing with a new world.”

It has become the norm to store financial records in smartphones, computers, or the cloud, and to conduct financial transactions electronically. Most people also own a trove of digital assets, which can include anything from domain names to electronically stored photos and videos to email and social media accounts.

The upshot: Accounting for digital property in your estate plan has become essential. Fortunately, it’s relatively simple to do.

With the passage of this new law, Alabama has made made the process for avoiding these issues much more easy. The act somewhat requires express action on the part of those with existing (and to be drafted) Last Wills, Durable Powers of Attorney, and Trust Regardless: Its still important to keep an updated list of valuable and significant digital assets, including accounts, user names, passwords, and so on. This list can be written, stored electronically, or be a hybrid of the two. Per Kiplinger,

Your estate plan should be designed to make the administration process as easy as possible for your loved ones. This includes making it convenient to manage your assets upon your incapacity or death and saving them the hassle of sorting through your paperwork to collect assets and pay your bills. Without specific provisions in your estate plan and careful planning, access to this critical information can become difficult for your family or loved ones.

This is equally advisible for your adult children to have given you access to these digital assets; I am especially thinking of your children at college or not married. Here is Financial Advisor discussing the need for a power of attorney for digital assets:

“It’s not about money; it is about the administrative aspects of a life,” Edelman says. That includes the administration of young people’s personal items—things they are likely to have strong sentimental attachments to.

It also means administering young people’s virtual lives, he says.

“Millennials and Generation X lead their lives online.”

That means a parent or another person needs to know how to preserve the pictures that are posted on social media accounts and any writing the person may have done. For that, estate planners need to know not only passwords but the answers to security questions.

Social media accounts can be saved by arranging ahead of time, Edelman says.

“If the young adult feels uncomfortable revealing information to a parent, the information can be given to the attorney who does the estate planning with the condition it be opened upon death,” he adds.

 

New Laws Affecting Divorce Litigation in Alabama (Alimony)

As I discussed in a previous post, the Alabama legislature passed new legislation affecting several areas of divorce litigation. Today, I will discuss the substantial changes to alimony rules. Major caveat: The new statute applies only to divorces filed on or after January 1, 2018. (At the end, I also briefly mention the impact of the new tax bill for alimony as well.)

Alabama’s law governing alimony is covered in Ala. Code §§ 30-2-51 through 30-2-55. 30-2-51 still covers the rules for alimony upon divorce. On Jan 1, 2018, a revised § 30-2-51 took effect.

But first, what is alimony? Alimony is separate and distinct from the equitable division of marital property. Alimony is an amount the court orders one person in a divorce to pay their ex-spouse in order to maintain their spouse in the standard of living they were accustomed to during the marriage.

In Alabama, there is no statutory for formula like other state. (See this multi-state calculator for a sample.) The American Academy of Matrimonial Lawyers suggests the following formula:

Take 30 percent of the payer’s gross income minus 20 percent of the payee’s gross income. That amount, when added to the gross income of the payee, should not exceed 40 percent of the combined gross incomes of the parties. The AAML suggests calculating duration of the award by multiplying the length of the marriage by a certain numerical factor.

A most helpful case in understanding periodic alimony is the case of Rieger v. Rieger, 147 So. 2d 421 (Ala. Civ. App. 2013). The Rieger Court began its analysis by noting that not every divorce spouse is entitled to periodic alimony, thus it is not mandatory. Instead, the decision of whether to award period alimony rests solely within the discretion of the court.

While I think the practically remains the law, this technically has changed. The new statue requires  the court to award (“the court shall award”) rehabilitative or periodic alimony the court “expressly” finds certain conditions are present in the case. (The conditions give judges a lot of wiggle room through broad language.) If those conditions are present, the judge is mandated to award rehabilitative alimony, unless he expressly finds its not feasible, for a period not to exceed 5 years. If the court finds rehabilitative alimony is not feasible, then the court shall award periodic alimony. Otherwise, if a party can prove that they cannot maintain the “status quo” yet the other side can’t pay, the court can reserve jurisdiction for alimony.

The statute no where defines rehabilitative alimony versus periodic alimony. The statue critical distinquishing features as to each. Prior cases have defined rehabilitative alimony as “a sub-class of periodic alimony” that allows a spouse “time to reestablish a self-supporting status.” See Giardina v. Giardina, 987 So. 2d 606

The Reiger court noted that property divisions should be equitable, not equal, and lists a series of factors which a court should use to determine alimony. Id. These factors include: “the earning capacities of the parties, their future prospects, their ages, health, and station in life; the length of the parties’ marriage; and the source, value, and type of marital property.”

The goal of the court, then, should be to determine whether the spouse petitioning for alimony has demonstrated an actual need for support in order to sustain the standard of living enjoyed during the marriage (“preserve the economic status quo” in language of the new statute) and whether the responding spouse can and should meet that burden.  While a divorce judge has a great deal of discretion in deciding whether to award alimony, the court may act arbitrarily and capriciously by denying it when the petitioning spouse has shown a need and the responding spouse has the ability to
pay.

To prove the need for periodic alimony, a spouse must show that he or she will be “unable to sustain the parties’ former marital lifestyle” absent the support. The party must establish what the standard and mode of living was during the marriage as well as the nature of the costs of maintaining that standard. The spouse should then show his or her own individual assets, including the separate estate, marital property received as part of the
settlement or property division, and wage-earning capacity, again, taking into account the age, health, education and work experience of the petitioning spouse as well as prevailing economic conditions, as well as any rehabilitative alimony or benefits used for assistance in maintaining
and obtaining employment. There is an express list of items now including the special one: “if the party has primary physical custody of the child of the marriage whose condition or circumstances make it appropriate that the party not be required to seek employment outside the home.” If the spouse can show that, while using his or her assets, there is an inability to routinely meet all of the financial costs of maintaining the former marital standard of living, then the need for additional support is proven.

The second major step: the judge must next determine whether the other spouse can pay that amount and, if not, what amount the spouse could regularly meet.  The Rieger suggested judges should use net, rather than gross, monthly income as the basis for their calculation. The statute now mandates net income. In determining ability to pay, the court should take into account all of the responding spouses financial obligations, including those created by the divorce. The court must take into account the responding spouse’s ability to maintain the former marital lifestyle as well.

Per the new statute, lastly the court must determine the “equitable amount.” Since it is rare that one income is as good as two, it is rare that a responding spouse will be able to fully meet the needs of the petitioning spouse. Id. Because of this, the court should determine the amount that the responding spouse can “fairly pay” consistently.The new statute delineates matters such as length of marriage, relative fault, prior contributions, lost opportunities, and excessive expenditures during the marriage.

Duration of alimony obligation, per the new statute, is now presumptively the length of the marriage. Unless however, the marriage lasted longer than 20 years, then there is no time limit.

The new statute does not alter these broad principles which have been present in precedential case law, but have irregularly been applied.

§ 30-2-52 remains unchanged; it still states that if the divorce is granted in favor of one spouse due to misconduct by the other spouse, the court may take that into consideration when determining the amount of alimony, but may not include any property acquired prior to the marriage or by inheritance or gift.

§ 30-2-55 similarly remains unchanged: it still states that periodic alimony shall terminate upon petition showing proof that the spouse receiving alimony has either remarried or is cohabitation with a member of the opposite sex. However, the new statue states that alimony can be modified on a showing of material change of circumstances.

Another major change, I think, in the new statute is a specific provision which allows a party to specifically obtain alimony and recover court expenses incurred in pursuit of pendente lite alimony or “equitable access to the marital property” before trial. Often, one party will leverage control of assets so that their spouse cannot retain counsel. The statute seems to grant an ex parte (without notice to the other side) right to obtain pre-trial alimony “in case of an emergency.”

IMPACT OF NEW TAX LAW ON ALIMONY

On top of these state level changes, Congress passed a new tax code which impacts alimony. Per CNN Money:

The final version of the tax plan . . . eliminates the tax deduction for alimony payments. Divorce lawyers say this move could make ending marriages an even more drawn-out and expensive process, and the change could be particularly painful for lower-income couples.

How will this impact alimony litigation? listen to this one divorce attorney:

“This deduction is a major, major factor in negotiating a settlement, and in terms of what a judge will give. This will dramatically change the landscape,” said Taub.

While alimony is getting statistically rarer, Taub said it still figures into most of the divorces he works on in his New York-based practice. Many of his cases involve long-term marriages and high-earning couples where one spouse — typically the wife — stayed at home to raise children.

Some 12 million tax returns claimed a deduction for paying alimony in 2015, according to IRS statistics. . .

“Payers will be less likely to agree to pay alimony because they will not get the tax break that they had previously received and judges will take the tax consequences into consideration as well, and I believe will order less alimony,” said Mary Kay Kisthardt, a professor of matrimonial law at the University of Missouri-Kansas City School of Law.

Former Crimson Tide LB Reuben Foster Arrested for Marijuana. What does Alabama law say?

Two high-profile misdemeanor marijuana cases have put the new, progressive District Attorney in Tuscaloosa County in the spotlight.

Last, week WBC heavyweight champion Deontay Wilder was sentenced in a marijuana case arising in Tuscaloosa.

Now we learn that former Crimson Tide standout and current 49ers rookie linebacker Reuben Foster has been arrested in Tuscaloosa for Possession of Marijuana in the Second Degree.  Per Al.com,

A former Alabama star linebacker was arrested in Tuscaloosa on Friday.

Reuben Foster, who just finished his rookie season with the San Francisco 49ers, was arrested and charged with second-degree possession of marijuana, according to the Tuscaloosa County Sheriff’s Office arrest database.

Bond was set at $2,500 for Foster, who was a first-team All-American for the Crimson Tide in 2016 and also won the Butkus Award.

First, we do not know the specific facts of this arrest, but remember the difference between constructive possession vs. actual possession. (Wilder’s case involved marijuana which belonged to someone else but was found in the vehicle in which he was driving.)

In Alabama, there are three basic charges for possession of marijuana. Foster has been charged with the lowest level offense. Unlike other states which have a quantity threshold between misdemeanor and felony marijuana cases, Alabama has a mere purpose distinction; the purpose is derived from the circumstances. Foster has been charged with violation of 13A-12-214, Possession of Marijuana in Second Degree, which reads:

A person commits the crime of unlawful possession of marihuana in the second degree if, except as otherwise authorized, he possesses marihuana for his personal use only.

“For personal use” is usually charged in cases where there is a joint found or maybe a single baggie containing marijuana. The range of sentence is up to 12 months in jail and/or up to a $6000 fine plus court costs. Normally, a first time POM2 case will lead to a 60-90 days sentence, suspended, placed on probation, and a few hundred dollars in fines. (Wilder received a 30-day suspended sentence and two years of probation and 60 hours of community service.) Often drug education and screening is mandated.

Compare and contrast that with Possession of Marijuana in the First Degree, 13A-12-213(1):

A person commits the crime of unlawful possession of marihuana in the first degree if, except as otherwise authorized: 1) He or she possesses marihuana for other than personal use

These cases usually include a larger quantity of marijuana. The way marijuana is bagged can also evidence an intent for use other than personal use; marijuana in multiple baggies may evidence an intent to distribute. This is a class C felony.

However, although not seemingly at play in this case, a small amount can translate into a felony, too. 13A-12-213(2) states:

A person commits the crime of unlawful possession of marihuana in the first degree if (2) He or she possesses marihuana for his or her personal use only after having been previously convicted of unlawful possession of marihuana in the second degree or unlawful possession of marihuana for his or her personal use only.

For instance, if Deontay Wilder is convicted later for another small amount of marijuana for a personal use, the charge would be a Class D Felony instead of a misdemeanor.

All that being said, you can be charged with trafficking regardless of purposes if a person possessed more that 2.2 pounds of marijuana and/or its oils and refuse. (And this includes seeds, roots, plant stalks, etc.)

Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of any part of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin including the completely defoliated mature stalks of the plant, fiber produced from the stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination is guilty of a felony, which felony shall be known as “trafficking in cannabis.” Nothing in this subdivision shall apply to samples of tetrahydrocannabinols including, but not limited to, all synthetic or naturally produced samples of tetrahydrocannabinols which contain more than 15 percent by weight of tetrahydrocannabinols and which do not contain plant material exhibiting the external morphological features of the plant cannabis

Alabama does have a very narrow medical marijuana statute:

In a prosecution for the unlawful possession of marijuana under the laws of this state, it is an affirmative and complete defense to the prosecution that the defendant possessed cannabidiol (CBD) because he or she is the parent or caretaker of an individual who has a debilitating epileptic condition and who has a prescription for the possession and use of cannabidiol (CBD) as authorized by the UAB Department, and where the parent or caretaker’s possession of the CBD is on behalf of and otherwise for the prescribed person’s use only.

On a related note,

An Alabama lawmaker believes it is time to decriminalize some of the state’s drug possession laws, especially those dealing with marijuana.

Birmingham Representative Patricia Todd said there are people in courts and jail on drug convictions.

She said some of those folks were busted for a small amount of marijuana and she doesn’t believe that is fair. “This would be if you had an ounce or less you would just get a citation like a speeding ticket,” Rep. Todd said.

Todd plans to push a bill in this legislative session to scale back the penalties for marijuana possession. “The court system is so clogged with a lot of these possession charges. So we need to clear some of that out of the court system. Let’s follow the movement across America,” Todd said. . .

Todd realizes her bill faces an uphill fight in the Alabama legislature but she believes its time has come considering the mood of the country.

Thirty states and the District of Columbia currently have laws broadly legalizing marijuana in some form.

Several states including Oklahoma and Utah are set to possibly legalize it in 2018.

 

 

 

Alabama law enforcement are already empowered to release without arrest. How many do it?

We have seen money bail end via legislative acts and via judicial intervention.

Now we have evidence of a third option: executive action.

Defendants in most low-level cases in Manhattan will be released without bail—a historic change that could reform a system that regularly imprisons poor people for long stretches simply they can’t afford to pay.

The move by Manhattan District Attorney Cyrus Vance to stop asking judges to hold prisoners on bail is part of a national push towards ending imprisonment of misdemeanor suspects simply because they can’t afford bail.

“When non-violent New Yorkers are jailed as a function of their inability to pay, we perpetuate inequality and mass incarceration,” Vance said in a statement on Tuesday. “Beginning today, we will be guided by the presumption that bail is not appropriate for misdemeanor cases.”

Frustratingly, in Alabama, arrest is not required on any case. Rule 4 of the Alabama Rules of Civil Procedure declares:

(1) A person arrested without a warrant: (i) May be cited by a law enforcement officer to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of and may be released; or (ii) May be released by a law enforcement officer upon execution of an appearance bond or a secured appearance bond in an amount set according to the schedule contained in Rule 7.2, and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of;

I would wonder how many sheriff and police departments have educated their officers of this option. The law is already in place in Alabama; however, I am unaware of any jurisdiction in Alabama which presumptively actuates this provision. in 19 years of practice, I cannot recall more than 10 tens times that a misdemeanant wasn’t arrest and just issued a citation.

On a related note, Atlanta is being pressured “embrace a national wave of bail reform that has already taken hold in places like Chicago, Houston, New Jersey and, most recently, Alaska.”

The police arrested Randall McCrary, a mentally ill man, at a gas station on Oct. 22. They found him covered in his own waste and screaming at customers.

What happened next to Mr. McCrary, advocates say, was a depressingly common reality for poor people charged with minor crimes in Atlanta. The municipal court set his bail at $500, the predetermined amount for a disorderly conduct charge. Mr. McCrary, 45, is indigent and could not pay.

So he waited, in jail, for more than two and a half months, at great cost to both local taxpayers and Mr. McCrary himself. While he was detained, the federal government discontinued his disability checks, said Sarah Geraghty, a lawyer for the Southern Center for Human Rights, who filed a petition Monday demanding his release.

Ms. Geraghty said Mr. McCrary’s case exemplified the injustices inherent in Atlanta’s misdemeanor bail system, which resulted in hundreds of poor people being locked up each year, sometimes for long stretches, because they had been assigned bail amounts they could not pay. In 2016, at least 890 people were transferred from the city to the county jail after failing to make bail, the center found. They were held, many of them on minor charges like littering or driving without a license, for a total of 9,000 hours, costing taxpayers roughly $700,000.

The petition for Mr. McCrary generated some publicity, and on Tuesday, he was released after an anonymous donor posted his bail.

 

NY may eliminate money bail for low level offenses

Early this week, I reported that Alaska joined a growing number of states eliminating their money bail systems.

Now New York state may join the ranks as well as reported by the New York Times:

Gov. Andrew M. Cuomo plans to ask the New York State Legislature to eliminate cash bail for many crimes and to speed up the disclosure of evidence in trials as part of a package of proposals intended make the criminal justice system fairer for indigent defendants, his aides said.

The proposals will likely be similar to what has been in place in New Jersey and Kentucky and Alaska:

The measure that Governor Cuomo is proposing would eliminate cash bail for people facing misdemeanor and nonviolent felonies. Instead defendants would be released, either on their own promise to return to court, or with some other conditions imposed by the judge. Judges could still impose bail for serious violent crimes, like felony assault or rape, but only after reviewing a defendant’s finances.

Cuomo, a Democrat, follows the lead of three Republican governors in Alaska, New Jersey, and Kentucky in eliminating cash bail and/or substnatially modifying their pretrial bail procedures. In Alaska,

With the new reforms in place, PEW estimates that the number of inmates will decrease by 13 percent and that the state will save $380 million. The state plans to reinvest $98 million of that total over six years in crime victim services, pretrial services and supervision, re-entry support, substance abuse and mental health treatment in both prison and communities, and violence prevention.

New Alabama Law Affecting Divorce Litigation and Retirement Accounts

Two new laws went into effect January 1, 2018, which will affect divorce litigation. The Alabama legislature sought in these new laws to more precisely direct certain practices within Alabama courts: one dealing with equitable division of retirement accounts and the second, dealing with alimony. I have broken the discussion into two posts; today, I will discuss the changes to the law concerning retirement accounts in divorce litigation.

During my initial consultation with a client about divorce, I detail each of the main categories or issues which must be addressed by the court in a divorce case. Those categories can be broken down broadly as follows:

  1. Legal and Physical Child Custody, if there are minor children, of course.
  2. Visitation Rights, if there are minor children.
  3. Child Support, if there are minor children.
  4. Determination and Equitable Division of Marital Assets
  5. Determination and Equitable Division of Marital Debts
  6. Lastly, Alimony

Discussion about retirement accounts falls into the determination and equitable division of marital assets. Generally, Alabama law requires a divorce court to first determine what are the marital assets, as distinct from separate property of the parties. “Marital property” is simply anything owned by the husband or wife which has been used for the benefit of the marriage. It does not matter whose name is on the title.

Alabama law requires the judge to then equitably divide all the marital property. A division of marital property in a divorce case does not have to be equal, only equitable (or fair) considering the facts of the case. When deciding what is a fair division of marital property, a judge considers several things: the length of the marriage; the age and health of the parties; the future prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage. See Golden v. Golden, 681 So. 2d 605.

So aren’t retirement accounts treated as marital property? This has been a tricky question in Alabama cases, especially regarding military retirement accounts. Until 1993, retirement benefits could not even be considered for ordering property division or alimony. “Alabama was the last state in the country to recognize retirement plans and pensions as marital property.” Family Law in Alabama: Practice and Procedure In 1993, however, Congress passed federal legislation addressing military retirement. And in 1996, the Alabama legislature made its statutory entry into the area; that law was effectively unchanged until January 1, 2018.

Under the old law, retirement accounts were to be divided only if the parties had been married for 10 years. Also, the court could not consider amounts funding those accounts from before the marriage.  Retirement accounts could not be divided even if used for the benefit of the marriage. See Smith vs. Smith, 964 So.2d 663.

So what has changed on January 1, 2018?

Now, the judge may not consider any property acquired prior to the marriage or by inheritance or gift unless the judge also finds from the evidence that the property (including retirement accounts), or income produced by the property, had been used regularly for the common benefit of their marriage. The new law also now expressly states that marital property includes any interest, acquired, received, accumulated or earned during the marriage in any retirement account.

This new law also eliminates the requirement that the parties must be married for 10 years before the court may award retirement benefits. For the new statute, I think this actually may be the most critical practical change.

The revised statute also expands or clarifies the definition of retirement accounts to include not just retirement plans or accounts, but pensions, profit-sharing plans, savings plans, annuities, or similar benefit plans from any type of employment including self-employment, public or private employment, and military employment.

Lastly, the new statute also expresses that post-divorce passive increase or decrease in the value of retirement benefits shall borne by the parties on a pro rata basis.

(On a side note, if your divorce includes retirement accounts, make sure you include a “qualified domestic relations orders” (Q.D.R.O.) The Q.D.R.O. does nothing more than implement the division of property as stated in the divorce order for third party ERISA managers.)

For most of my cases in east central Alabama, I think courts were operating within the terms of this statute implicitly before its enactment, so I do not see much of change of practice.

Next week, I’ll discuss the changes to the alimony rules which may certainly prove to be a dramatic change in practice.

 

Lessons in “Constructive Possession”: Less Than 1 Ounce Of Marijuana Leads To Arrests Of 70 Georgia Partygoers









How can 70 people be charged with possession of a single ounce of marijuana? Well, it happened over in Georgia.

At least 63 people were arrested over the weekend on suspicion of possessing less than an ounce of marijuana after police were unable to identify the actual owner of the drug stash found at a house party in Cartersville, Georgia, over the weekend. . .

Officers also found less than an ounce of marijuana, reported the Cartersville Daily-Tribune. When no one admitted to owning the weed, everyone still at the party was arrested.

“All the subjects at the residence were placed under arrest for the possession of the suspected marijuana which was within everyone’s reach or control,” said the Bartow Cartersville Drug Task Force in a news release.

I will say this may be the most extreme case of “constructive possession” I have ever seen.

In a fair majority of drug possession-type prosecutions, the accused Defendant did not have drugs in his pockets or in his hands (or in his mouth as have several of my clients). In the initial consultation, I always have to discuss what is called “constructive possession.” The Supreme Court of Alabama has held that “[i]n order to sustain a conviction for possession of controlled substances, there must be sufficient evidence of either actual or constructive possession.” Radke v. State, 52 Ala.App. 397, 293 So.2d 312 (1973), affirmed, 292 Ala.290, 293 So.2d 314 (1974).

Constructive possession of a drug is a legal conclusion, derived from factual evidence, that someone who does not have physical possession of a thing, in fact, has legal possession of that thing. This is fancy legal language which means that the law will presume you possessed something even if its not in your pocket.

First, the courts require that “[w]hen constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substance. Campbell v. State, 439 So.2d 718 (Ala.Cr.App.1983)  However, “[t]his knowledge may be inferred from the accused’s exclusive possession, ownership, and control of the premises” Meeker v. State, 801 So.2d 850, 853 (AlaCr.App.2001) Often, the prosecution’s evidence will included facts that multiple persons were in a residence, car, or place other than the accused Defendant. Therefore, that accused Defendant is not in “exclusive possession” or control of the residence, vehicle, or place. Sometimes, the prosecution’s entire theory will revolve around joint occupancy and possession of the house or car.

In such situations, when the accused is not in exclusive possession of the premises, the requisite knowledge for constructive possession may not be inferred unless there are other circumstances tending to buttress this inference. Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986) The courts require some evidence that connects the defendant with the contraband. Grubbs v. State, 462 So.2d 995 (Ala.Cr.App.1984) In Posey v. State, 736 So.2d at 656,658-659, the Court affirmed “a non-exclusive list of circumstances that may establish such a connection between a defendant and the contraband found in a non-exclusive possession situation. The Court stated:

The kinds of circumstances which provide such connection are: (1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the Defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the Defendant is confronted with the possibility that an illicit drug will be found evidence that debris of the contraband was found on the Defendant’s person or with his personal effects; (6) evidence which shows that the Defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.

Additionally, when a person is not in exclusive possession of the residence or vehicle, “the circumstantial evidence had to establish a connection between [the defendant] and the marijuana that excluded every reasonable hypothesis except guilt.Goodloe v. State, 783 So.2d 931,935 (Ala.Cr.App.2000)

A good example of this type of case is Meeker v. State. In Meeker, the Defendant was convicted based upon the evidence that showed he had visited the residence on a couple of occasions and was possibly staying in a third bedroom. The evidence showed that clothing was found in this room, Meeker’s driver’s licence, a mattress and marijuana were found in the third bedroom. This Court overturned Meeker’s conviction, finding that since he was not present at the time of the raid and since “there was no evidence indicating when or how the license came to be in the room, whether seized marijuana was in the room at the time the license was placed there, or whether [Meeker] had any knowledge that drugs were present in the residence on the . . . the night the residence was searched.” Meeker at 854.

I question in this case whether there is even probable cause to arrest a majority of the 63. I highly doubt many convictions will arise from this slew of arrests. How do the police even suggest knowledge of the marijuana, much less actual dominion over the drugs.

I expect there may be some lawsuits against the police department in this instance.  What if some of those arrested can’t make bond? As the video shows, many were still being detained nearly 18 hours later.

The January Talk Every Family Should Have: The Possible $77,563 Annual Nursing Home bill

There is an article in Forbes which aptly raises the “The January Talk Every Family Should Have.” The articles leads off:

It doesn’t matter where you are in life, you need to look ahead. Getting old is no ice cream cone and you need to talk about it.

When it comes to long-term care, the subject will impact every family. That’s a guarantee. You will have to manage or care for older relatives — and yourself. With Americans living longer, it’s a given. . .

The reason why you need a January family pow-wow on this subject is that there is no long-term care safety net in the U.S. Social Security and Medicare don’t cover it and most of it is paid for out of pocket by families.

Long-term care is possibly the most critical threat to a family’s long-term financial well-being. Many plan for retirement and even heavily invest in life insurance; however, the possibility of the need for a nursing home or even assisted living is completely overlooked. Why is this converasation so hard?

Kathryn Lawler, who manages aging and health resources for the Atlanta Regional Commission in Georgia, says, “Even in my own family, as an aging professional talking with my own father, I find it remarkable how much anxiety I have about returning to this conversation that, yes, we had a couple years ago, but you have to keep having it: ‘Has anything changed in your plans, Dad? Do these documents need to get updated?’ I mean, who wants to keep doing this? It’s so hard.”

Let’s look at the numbers:

Long-term care expenses are running more than double the rate of inflation. A decent nursing home costs more than $100,000 a year.

Assisted living and home care are less expensive, but are not covered by Medicaid, which only kicks in if you’ve spent down most of your nest egg.

Long-term care is highly fragmented in this country, but there’s almost no public funding for it. Veterans can obtain some help and it really helps if you have a guaranteed pension.

Many expect Medicare to pay for long-term care, but it does not except in a very narrow set of circumstances and then only for up to 100 days.

The Genworth Cost of Care Survey for 2017 found the following median costs for long-term care in Alabama:

  • Homemaker Services: $106 per day
  • Adult Day Health Care: $26 per day
  • Assisted Living Facilty with Private Bedroom: $36,684 per year
  • Nursing Home, Semi-private room: $73,000 per year
  • Nursing Home, Private room: $77,563 per year

Can your family cover these costs for 2, 3, 5 years? The average stay in a nursing home is 835 days, according to the National Care Planning Council. A separate statistic provided by the National Investment Center (NIC) in their 2010 Investment Guide cited the average length of stay in assisted living as 29 months. A few years of long-term care can easily exhaust the entire value of a family’s life savings.

In another article entitled “Talking to your Parents about Ling Term Care

Of all the reasons people find it hard to plan for their later years, the hardest to overcome might be a degree of disbelief that life will change.

The parents of accountant Carolyn Kramer’s “were never going to go to a nursing home,” she says, because “nothing was ever going to happen to them.”

They worked hard, saved diligently and expected to live out their days in their home in South Wales, N.Y. They made it clear that if their children ever placed them in a nursing home, they’d take it as a betrayal.

But they never talked about alternatives, or a Plan B if living self-sufficiently at home was no longer possible.

“[Most people] have no clue that there are all of these different levels of care, and what’s provided at each level,” says Menzies, who helped Kramer’s family make a Plan B when the need became urgent. “They hear ‘nursing home’,” Menzies adds, as soon as there’s any need for help.

What is your family’s game plan? What contingency planning needs to be performed? What happens in the case of dementia, debilitating conditions or Alzheimer’s? What happens when the elder spouse can no longer physically maneuver their husband around the house safely?

There are options: personal service contracts, life estate deeds, etc.