FAMILY: Parental Alienation

Some parents are just crazy. They are unreasonable and will use their children to further their venomous attacks on the other parent. They will accuse the other parent of child abuse. They may even manufacture evidence to hurt the other parent. The scary thing is, these hostile parents often come off as credible in the courtroom.

They can be believable by keeping journals of fictional accounts where they claim the other parent yelled at them in front of the child, or threatened them, etc. They will have family members vouch for them in court and lie on the stand.

This all being said, the court is faced with a serious dilemma, whom to believe. It is therefore recommended that both parents keep journals detailing the raising of the children so that memories cannot fade. One reason people appear to lie on the stand is that they have forgotten something from the past. I also strongly encourage parents to video tape all exchanges and activities.

Parental alienation, however, is even more insidious than accusations of abuse or neglect. It is a form of conscious or unconscious mental and emotional coercion where one parent will cause the child to believe certain things about the other parent, causing the child not to want to be with the other parent.

A few examples include:

--Spoiling the child with material possessions with full knowledge that the other parent does not wish to spoil the child. The child will then favor the parent who gives in to all the material demands of the child and will dislike the parent who is trying to teach patience and humility.

--Speaking badly of the other parent. Suggesting the other parent does not really love the child or that the other parent is very immoral or evil human being.

--Undermining the other parent's efforts to teach morality by teaching a counter-morality.

Conclusion

A parent who has to deal with another parent who alienates their child should take steps early on to prepare for court battle. The more evidence presented at court by one parent will cause the court to believe the presenting parent. A child should not be a pawn in a battle for vengeance and the parent who clearly has the child's best interest at heart should win with the proper presentation.

CRIMINAL: Sealing or Expunging a Federal Criminal Record

You want to be an upright citizen with opportunities for a good career, however you have a criminal record which you feel will bar you from advancement in life. In State courts you can often seal a State record after a certain length of time and depending on the crime. An attorney can aid you through the procedure.

However, if your crime happened to be a federal offense, be prepared to spend enormous amounts of money just at the chance to seal your record. The odds are against you because the federal courts have ruled that only in rare situations will the court seal a record-and I mean rare.

Your crime could have been minor, it does not matter. A less expensive and perhaps even better gamble would be to write a personal letter to the President of the United States asking for a presidential pardon.

Sorry folks. Once you are branded by the federal system it is likely a lifetime stain. It reminds me of the novel Les Miserable in which the hero was thrown into prison for many years for stealing a loaf of bread to feed his family. Once he served his time, no one wanted to help an ex-convict and the police were always suspicious of him. He eventually changed his identity in order to get some semblance of a good life. However, even then he eventually ended up dying at the hands of an overzealous cop.

My advice to you is to fight any federal charges from the beginning and not to plead guilty, unless you truly believe that the deal offered by the US Attorney's office is good and your chance of a conviction and severe punishment is high.

If you find yourself in the unenviable position of having a federal criminal record, all I can suggest would be to do your best to explain the circumstances in a light favorable to you when a nosy employer asks. Write a summary of the incident explaining it from your point of view and attach it to your job application. If it is well written, it may even improve your chances of getting the job.

As our government churns out more and more criminals with its arbitrary enforcement of arbitrary laws, more and more employers will become more and more understanding of your plight. Good luck.

GENERAL: Arguing in the Alternative: Spirit vs. Letter of the Law

In law, judges often face the issue of whether to follow the letter of the law or to follow the spirit. This issue is by no means a new one and has probably been around since humankind first learned to write. It is one of the major reasons to have lawyers.

Judges are supposed to interpret laws; this is their primary function. Judges generally are not supposed to create law; that is the job of the legislature. However, sometimes legislatures draft laws without really thinking about all of the potential problems with interpretation. Savvy lawyers will use these loopholes created by confusing language to influence a judge's decision.

Lawyers who say that a law is black and white do not want judges to interpret beyond the "four corners" of the statute. They will argue that if the legislature wanted the law to be different, then they should revise the wording. Until then, the judge should apply the law in the strictest sense.

Lawyers who want the spirit enforced wish to make the judge consider why the law was enacted in the first place. They argue that the motivation for the law is more important than the actual language.

By way of example, let us say a statute declares, "Any person caught drinking and driving is guilty of a misdemeanor, for a first offence, punishable of up to a year in jail, or for a second offense, is guilty of a felony, punishable of not less than one year and not more than 5 years."

Willy is pulled over by a police officer and is cited for drinking while driving. Willy was in fact drinking water out of a plastic bottle while stopped at a red light.

Willy hires me because the prosecutor wants to make an example out of him and send a message that violators will be punished. I read the statute and laugh at how stupid the legislators were in drafting the statute.

I decide that I want to influence the judge by making the judge consider the spirit of the law. The legislature wanted to punish people for drinking alcoholic beverages while driving the vehicle, but the legislature neglected to clarify this in the statute.

The prosecutor does not care about the motive. He wants a conviction because he believes that drinking anything while driving is dangerous. He tells the judge that if the legislature meant "alcoholic" beverage then it should revise the law, in the meantime Willy must go to jail.

The judge appears to believe the prosecutor's viewpoint. I can see it in the glint of his eye. The judge has been embarrassed in the past because he did not follow the statutory language to the letter and a higher judge overturned his decision. Now, I am beginning to feel like I am losing.

So I might say, "Your honor, I fully understand that the letter of the law should be applied even if the intent was to curtail alcohol consumption while driving. If we are going to look at the plain meaning of the statute and not consider the motivations of the legislature, then it is important to consider that Willy was not in fact driving when he drank. The statute clearly states that a person must be driving, however Willy was stopped at a stop light. Thus, by the very language of the statute, he is not guilty of violating the law."

The judge's grimace lightens, his face softens. He never wanted to agree with the prosecutor but felt he had to because the statute seemed clear. My argument, however weak, would be enough to get Willy off.

The prosecutor might argue that Willy simply being in the car with the motor running was "driving" but because the statute did not define the word "driving" the judge is free to interpret the word. The judge could say "driving" meant only the condition of being in motion.

So, in this example, I might have lost on the strong argument that the spirit of the law was more important than the letter of the law, however I won on a much weaker argument. This is sometimes the case.

There was a time about 2000 years ago when a group of legal interpreters focused so much on the letter of the law that challengers were killed. These scholars went through hundreds of scenarios to determine if people were guilty of violating the word of the law. Now, the really interesting thing about the words of these laws were that they were considered holy, direct from the mouth of God. Thus, the scholars wanted to make sure that they interpreted correctly. How better to make sure the word of God was followed than to strictly construe the meanings of the words?

Therefore, according to their interpretation, a person who saved his work camel from drowning in pouring rain on Saturday was guilty of working on the Sabbath and punishable.

Then came a guy who said that the spirit of the laws was more important then the literal meaning of the writing. He explained that the motive behind the laws was to create a happy life for the adherents and give believers hope and joy. The scholarly interpreters (aka "the Pharisees") did not like this obnoxious trouble maker who thought he understood better than they, so they called the police and had him arrested. Then they told the judge that he was causing too many problems with his ideas. If the government wanted peace, they would have to silence this interloper. So they did. They killed him.

Whether this story about Jesus and the Pharisees is literally true does not matter. The spirit of the story tells us that lawyers, like Jesus, can get in a lot of trouble for upsetting the time-honored ways of doing things.

Lawyers know that whether you argue for letter or for spirit, you must be prepared to suffer the consequences, so, they argue for both. You will note that in my example about drinking and driving, I explained how I would use both tactics. I argued spirit first and word second because my goal in this one instance was not to change the stupidly drafted law. Nope--my goal was to free Willy.

Lawyers are often accused of speaking out of both sides of their mouths. Incidentally, most politicians are lawyers too. There is a reason for it. We want to cover all of our bases. If one argument won't win, try another even if it seems contradictory. Its called, "arguing in the alternative". Have a nice day!

Copyright: May 2007

By: Anthony M. Wright, Juris Doctor

CRIMINAL: 'I didn't know': What Young Thugs Should Know But Aren't Taught

"I didn't know." This is the excuse many criminals give when they did something that violated the law. The excuse is most often used when a misdemeanor occurred and the misdemeanant did not know what he did was wrong.

An example would be not coming to a complete stop at a stop sign, which is a crime in Las Vegas, Nevada . A person from California , where rolling stops are legal, might not know that they are illegal here. It does not matter, however, that the person did not know because ignorance of the law is no excuse.

Most often people feel that their lack of knowledge ought to be an excuse to pardon them from their behavior when the crime was what we in the legal profession call "malum prohibitum", which is Latin for "bad because its prohibited".

Malum prohibitum laws come about when our law makers have, in their infinite wisdom, decided that some actions or inactions should be unlawful because they harm or have the potential to harm society in someway. An action or inaction is deemed wrong for public order even it there is no discernable victim.

A rolling stop in Nevada could be dangerous, so it is prohibited and you are a criminal if you violate this law whether you knew better or not and whether an accident occurred or not. The problem is that there are so many laws created by so many law makers, that no one can really knows them all and many otherwise law-abiding citizens become criminals.

Most often, malum prohibitum crimes are also classified as "strict liability" crimes in which the criminal's intention does not matter. It does not matter that you knew that you were committing a crime, all that matters is that a crime was committed. You did not see the speed limit was 25 miles an hour when you were flying by at 75 miles an hour. Too bad, reckless driving-no defense.

Another common example of malum prohibit crimes would be statutory rape. States set age limit on who can have sex with whom. If an adult has sex with a 13 year old and the age of consent is 16, like in Nevada , then the adult is guilty of statutory rape even though the adult thought the minor was 18. A mistake of fact is not an excuse for a strict liability crime.

On the other hand, we have another category of crime which is called "malum in se." Malum in se means "evil in and of itself". These crimes are crimes that people should know are wrong because their conscience tells them so. Our lawmakers have codified these crimes, but even if they hadn't, we would still know the crime to be wrong based on our morality. Such crimes include murder, rape, mayhem, robbery, arson, and others. One problem is that many of our young are not taught morality-anywhere.

Malum in se crimes are generally not strict liability crimes because we want to make sure that the person who did the act had the intent of committing it. In the case of murder, a person is found dead and another person is charged with the murder. The charged person says that the death was accidental and that he did not intend for the person do die. Because murderers have done the ultimate human atrocity, we want to punish them severely; however, we want first to make sure they were in fact responsible.

Therefore, the prosecutor must prove beyond a reasonable doubt that in fact the death was the result of an intentional act and that the desired result was death. The prosecutor has the burden of proving the criminal elements of "mens rea," "actus reus", and a concurrence of actus reus and mens rea. (aka: mental intent, physical act, and the coming together of the mental intent and physical act.)

The above is the background for the lesson of this article, which is that our public schools do not teach our students to know the basics of the law of the land. As a result, young hoodlums go too far in carrying out their little crimes because they do not know the full ramifications of their actions.

Many criminal lawyers believe that there is one crime where the excuse of "I didn't know" really ought to be taken seriously, and that is the crime of felony murder. Unless you are a crime buff or have gone to law school, you probably do not have the first clue of what felony murder is. And yet, many young thugs who are just high on the idea of doing a minor, yet forbidden, crime end up guilty of felony murder which carries, in many jurisdictions, the same punishment as cold blooded, first degree murder.

You see, even though the word "murder" is in the name and murder is ordinarily characterized as a "malum in se" crime requiring mental intent, in the United States we treat felony murder like a strict liability crime.

The best way to describe felony murder is by way of example:

Three eighteen year old high school seniors on Spring break decide they want to have fun and do what they've seen in the movies. They decide to go hold up a convenience store with a gun one of them "borrowed" from his father. The kids figure if they get caught the worst time they would do is maybe five years, but the chances of them getting caught are slim if they keep quiet about the crime. They make a pact that it would be their little secret.

They enter the convenience store with masks. Three other people are in the store: the clerk, a customer in the isle, and a gambler at a slot machine. One of the boys whips out the gun and demands that the clerk give them all the money in the cash register.

The gambler immediately has a heart attack from fear of the hold up. The gambler dies.

The customer in the isle whips out her gun and shoots one of the gangsta boys. The hoodlum dies.

The boy holding the gun panics and fires, striking the clerk. The clerk dies.

The two remaining hoodlums flee but are later identified when the bullet from the clerk's body is identified as belonging to the gun owned by the boy's father.

Question: How many murders can the two boys be charged with? The answer is three. Even though the gun toting hoodlum actually only killed the clerk, both boys can be charged with three murders because three deaths occurred during the felony of armed robbery.

The gambler died of a heart attack that he would not have died of but for the robbery-felony murder.

The hoodlum died when the customer shot him and this would not have happened if the boys hadn't held up the store-felony murder.

The clerk was accidentally killed by the hoodlum who panicked, but it does not matter because the death occurred during the commission of a felony, thus felony murder. The boy who did not fire the gun is still guilty of felony murder just as if he was the one holding it.

The two surviving hoodlums could be locked up for the rest of their lives for an indiscretion they did at 18 years old due in part because of the negligence of our education system. Our educators failed to inform our youth that even a crime where no one was supposed to get hurt could end up being felony murder. Our prisons are crowded with some of these wrong-headed kids who might have otherwise been good citizens.

As a nation, we punish our criminals as a deterrent to prevent other would be criminals from committing the crimes. How can we expect to deter would-be criminals if we do not educate our young people? Some of what is taught in law school should definitely be taught in junior high and again in high school.

Conclusion

Do not commit a felony such as robbery or rape because if a death results, you are a murderer whether that was your intent or not. Felony murder is tried by the prosecutors like a malum prohibitum traffic citation, but punished severely just like malum in se murder. The excuse of "I didn't know" will not help you even if you are justified in believing it would because of the failure of our education system. Felony murder is an example of what happens when our government's justice system meets up with our government's education system-tragedy!

http://www.wrightlawnv.com

FAMILY: Las Vegas Divorce in Two Months

Las Vegas is the town of quick marriages and quick divorces. Many States in the United States require a person to have resided in that State anywhere from six months to several years before a divorce court will exercise jurisdiction over a divorce.

Not so in Nevada. You need only have lived here for six weeks before you can file a Petition for Divorce. Once the petition is filed, the actual divorce date will depend on several factors including whether the spouse will cooperate, the court's calendar, and amount of property in dispute, and disputes over child custody. However, if both spouses can agree on everything, then a divorce decree could be filed within a couple of months.

However, there are a few caveats regarding the six-week residency rule. For instance, Nevada law requires that a person reside continually in the State for the six weeks. This means that one cannot go to Vegas, leave immediately for several weeks, then come back and claim to be a resident for purposes of jurisdiction.

Another caveat is that you must have the intent to remain indefinitely. This means you have to show that you intend to really make Nevada your home. One can do this by getting a Nevada's Driver's License, renting a place (I recommend month to month leases). and getting a job.

You must also provide a witness who will testify that you have lived in Vegas for six weeks.

I always recommend that a Nevada attorney handle a divorce. However, fast, easy divorces, such as the ones contemplated in this article, should not be expensive. An attorney should charge between $1600 and $2500. More would be expensive for the work involved.