February 2011 Archives

February 24, 2011

Lawmaker Proposing Stricter Racial Profiling Laws

Rhode Island enacted the Racial Profiling Prevention Act in 2004 (under R.I.G.L. 31-21.1) in response to similar statutes passed in most States. The unfortunate reality is that racial profiling exists and happens everyday, everywhere. The racial disparity in the number of traffic stops, arrests, convictions, and length of sentence between whites and all other races can not be ignored. Some statistics from Amnesty International are hard to be ignored:

Racial profiling is a proven failure in the 'War on Drugs.' Statistics show that using racial profiling to interdict highway-bound drug couriers is not just wrong, but ineffective. A survey by the Department of Justice in 1999 reveled that while officers disproportionately focused on African American and Latino drivers, they found drugs more often when they searched whites (17%) than when they searched African Americans (8%). A similar survey in New Jersey found that although people of color were searched more frequently, state troopers found drugs in vehicles driven by whites 25% of the time, by African Americans 13%, and by Latinos 5%. According to a study of the US Customs Service's practice by Lamberth Consulting, when Customs agents stopped using racial profiling to target potential smugglers and began focusing on race-neutral factors such as behavior, they increased the rate of productive searches by more than 300%.

The Rhode Island General Assembly admitted that racial profiling existed in R.I.G.L. 31-21-2.2 (c) "In many communities nonwhite drivers in Rhode Island, subjected to discretionary searches, are twice as likely as whites to be searched." They also admit that racial profiling causes fear, anxiety, humiliation, and resentment among people unjustifiably treated as criminal suspects and can result in a loss of confidence and public trust in the police and criminal justice system.

The new proposed laws look to take an even tougher stance to combat racial profiling. Some of the suggested components include:

  • requiring officers to document in writing their probable cause for conducting a search during a traffic stop
  • bar police from requesting documentation other than license and registration without reasonable suspicion of criminal activity
  • bar officers for asking passengers for identification without probable cause
  • restrict searches on juveniles

While probable cause for search and seizure always plays a role in a criminal defense case, those who feel they have been subjected to racial profiling are also allowed to sue for damages in civil court.

February 20, 2011

Don't Wait For the Police Report Before Contacting Your Attorney

This week a new client came into my office following a very serious car accident. He suffered significant injuries and was rushed to Rhode Island Hospital. The accident happened over a week ago and he told me that he thought he had to wait for the police report before contacting an attorney. For my client, the delay did not effect the case, but it occurred to me that other people may also be under the belief that they need to wait for the police report.

This is absolutely untrue. In fact, in order to ensure that things go smoothly and that you receive fair compensation, it is best for your personal injury attorney to get started right away on your case. For my clients, I begin working cases immediately after the consultation. In addition, my office handles the property damage claim and we can get started on that right away so that you are not without your car for longer than necessary.

Your lawyer will obtain the police report when it becomes available. Depending on where in Rhode Island your accident occurred, the police report can take anywhere from 2-7 days to become available. It is not worth waiting this much time before calling your attorney. After all, police reports are helpful to identify insurance information and confirm the facts of loss, but they rarely make a major difference in a personal injury case.

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February 16, 2011

Herniated Disc Following an Auto Accident

A herniated disc is one of the more common serious injuries to occur following an auto accident. It is a potentially life changing injury that may require high risk spinal surgery. It is a more serious injury than ordinary whiplash and must be treated as such by your attorney.

What is a Disc Herniation?

Each of us has a small gel like cushion (the disc) between each vertebrae in our spinal column. This disc is what allows us to bend, twist, and turn our spine without pain. In a serious auto accident, the shock to the spine can cause this disc to rupture. This causes a great deal of pain for two reasons. First, you no longer have the necessary cushion to protect the vertebrae from "rubbing" against each other. Second, the herniated disc can move inside the spinal column and rub against spinal nerves causing a great deal of pain not only to the back, but radiating into the arms and legs. If your pain extends away from your back and into your limbs, your doctor will likely order an MRI to confirm the existence of a herniated disc.

The Insurance Company Will Almost Always Deny These Claims

If you have suffered a bulging disc (a disc injury that has not completely ruptured) or a herniated disc, you need to have an experienced personal injury attorney who understands how insurance companies think and who is willing to file a lawsuit to ensure you receive fair compensation. This is because insurance companies frequently deny that a herniated disc is related to an auto accident. Here's why...

The vertebral discs, like every other part of our body, tends to break down as we age. People as young as 30 can already show signs of disc deterioration and a high percentage of the population already have bulging discs. Men and women who are athletic or work in physical occupations are very likely to show some evidence of disc damage even before an auto accident. For this reason, insurance companies will always argue that the disc injury was pre-existing and unrelated to the auto accident.

Don't Let the Insurance Companies Ignore Your Disc Herniation

Most auto accidents result in damage to the soft tissue of the neck and back, a so-called whiplash injury. A disc herniation is not the same as whiplash and your settlement amount should not be the same as a whiplash victim, either. As a former insurance adjuster, I know how the insurance companies approach spinal injury claims, and I will use that knowledge to obtain the best possible result for you.

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February 14, 2011

Does Our Country Need Comprehensive Criminal Justice Reform?

The simple answer to the above question would appear to be, yes. Prisons are overcrowded, millions of free citizens live with years of probation hanging over their head, prisoner reform does not work, and the Courts and public defenders in many States are completely overwhelmed.

A Bipartisan group composed of lawyers, judges, lawmakers, and civil rights groups called the Constitution Project, have issued their suggestions for comprehensive overhaul of the criminal justice system. While there was not unanimous support for every recommendation, some of the proposed reforms include:

  • Mandatory recordings of police interrogations
  • Improvements to and increased financial aid to Public Defenders
  • Increased efforts to improve prisoner reform and transition back into the world
  • Push Congress to create a bipartisan criminal justice commission
  • Evaluate and eliminate racial and ethnic disparity in criminal charges and sentencing
  • Address the current conditions inside the prisons

The criminal justice and prison system is in dire straits and is unlikely to change any time soon. The unfortunate reality is that politicians do not win votes by assisting prisoners and criminal defendants.

February 7, 2011

Trying Defendants Without Them Present in Court?

The strange idea actually comes from a Bristol County Massachusetts District Attorney. As with many counties across the country, Bristol County Massachusetts suffers from a high number of no-shows to Court. Defendants arrested or released on bail (most often personal recognizance) simply fail to show up for their next Court date. A bench warrant is almost certain to follow, meaning that the defendant can be arrested and imprisoned at any time. Absent an arrest, the underlying charges remain open while the defendant refuses to show for Court.

It is a big problem and I would be willing to guess that the number of existing bench warrants in Rhode Island and Massachusetts is staggering. A Massachusetts District Attorney, with seeming disregard for the Sixth Amendment of the Constitution, has suggested a novel approach to this growing problem... Proceed with the Defendant's trial without him!

The idea is to try criminal defendants who do not show up for their Court date, in absentia. In their absence. Since most of these defendants do not have criminal defense attorneys representing them, it all but ensures a conviction. Nevertheless, any conviction under such a statute would almost certainly be reversed as a Constitutional violation.

The Sixth Amendment of the Constitution ensures that a defendant has the right to confront his or her accusers:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

I can not see how any proposed statute to this effect could survive a Constitutional challenge. We simply can not waive our constitutional freedoms away, or have them brushed aside because of a failure to assert them.

February 4, 2011

Understanding A Plea of Nolo Contendre or No Contest

One of the most frequent questions I hear from criminal defense clients is: "What is the difference between a plea of guilty and a plea of nolo contendre?" There is quite a bit of difference, actually, and you should speak with your criminal defense attorney to discuss which is the best plea option for your case.

Nolo Contendre comes from the latin meaning, "I do not wish to contend." This is where the term "no contest" comes from. By pleading nolo contendre you are neither admitting or disputing the charges, you are telling the Court that you do not wish to fight the charges. It is, in essence, a guilty plea and the sentence will be imposed as such. The difference between nolo contendre and an ordinary guilty plea is whether the offense will count as a conviction in the State of Rhode Island.

If you plead guilty to a crime, it is a conviction in the State of Rhode Island. Under certain circumstances, however, you can plead nolo contendre instead, and the crime might not be considered a conviction in the State of Rhode Island. This could be a crucial difference during a job hunt when the employer asks if you have ever been convicted of a crime.

Under Rhode Island General Law 12-18-3, if you plead nolo contendre and are placed on probation, so long as there is no violation of the probation, then the offense will not be considered a conviction for any purposes. This means that you can rightfully tell current or prospective employers that you have never been convicted of a crime, and evidence of that crime likely can not be used against you in subsequent legal proceedings.

Pleading nolo does not always guarantee that there will be no conviction. If the plea is for a crime of violence, or if the sentence includes time to serve in the ACI, then even a nolo plea will be a conviction in the State of Rhode Island. There are other circumstances and factors that can effect your decision whether to plead nolo or guilty, but it is definitely worth exploring with your criminal defense attorney. Many misdemeanors for non-violent crimes will be plead out with nolo contendre rather than a straight guilty plea.

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