Monday, August 12, 2013

Some source documents on New York City's Stop and Frisk program

Because of the Internet, we have unprecedented access directly to information, unfiltered by media sources. A good example is New York City's Stop and Frisk policy, which has been declared unconstitutional.

Here is the original opinion, courtesy of Google Scholar. Of course, legal opinions have been available on the Internet for a long time.

What is truly surprising that the actual Stop and Frisk statistics are available on the Internet, courtesy of the NYPD. Unfortunately, the statistics are in SPSS format, which appears to be a proprietary file format. However, everyone with IBM SPSS software and a little statistics knowledge can analyze the Stop and Frisk program for themselves.

Tuesday, July 23, 2013

Jury Instructions from Florida v. Zimmerman

Last week, I quoted from the standard jury instructions that are available on the Florida Supreme Court web site. Yesterday, I found the actual jury instructions given to the Florida v. Zimmerman jury. It, and many other primary documents from the trial, is available here, at the Palm Beach Post.

Friday, July 19, 2013

Florida's Standard Jury Instruction on Self-Defense

In a jury trial, the jury renders a verdict. Before the jury deliberates on its verdict, the trial judge instructs the jury on the law that the jury is to apply to the facts of the case. If a judge misstates the law in giving the instructions, then the jury's verdict may be overturned on appeal. The legitimacy of the jury verdict depends in large measure upon the correctness of the instructions. Judges are understandably cautious in giving jury instructions.

In most jurisdictions, judges use "pattern," "model," or "standard" jury instructions. These instructions are generally compiled by the jurisdiction's supreme court. The instructions represent language that the appellate court has approved. If a judge follows the language of the pattern jury instructions, then presumably the instructions will withstand appeal.

Before giving instructions to the jury, the judge holds a conference with prosecution and defense counsel. The judge, the prosecution, and the defense propose and argue which instructions to give, and whether they need to be modified. An erroneous inclusion, exclusion, or modification of an instruction may lead to the verdict being overturned.

Since the conclusion of Florida v. Zimmerman, there has been much public scrutiny of the jury's verdict. Considering the grave interests involved, this scrutiny is certainly appropriate. It would be appropriate to consider the jurors' actions in the context of what the judge instructed them to do.

Florida's jury instructions are available online. The instruction on self-defense is set out below. The judge would have given many other, standard instructions in addition to the self-defense instruction. For example, every charge to the jury would include an instruction on the burden of proof. However, the self-defense instruction seems to be the one that is of foremost importance in this case.

I do not know what, if any, modifications the trial judge made to the pattern jury instructions. I have edited the instruction only in three ways. First, I deleted parenthetical instructions to the judge. Second, I deleted citations to cases and statutes. Third, I deleted sections that appeared to be irrelevant to the specific case. I have probably modified the instruction less than the judge would have.
An issue in this case is whether the defendant acted in self-defense. 
‬It is a defense to the offense with which‭ Zimmerman‬ is charged if the‭ ‬death of Martin‬ resulted from the justifiable use of deadly force. 
"Deadly force" ‏means force likely to cause death or great bodily harm. 
A person is justified in using deadly force if‭ ‬he ‬reasonably believes that such force is necessary to prevent imminent death or great bodily harm to‭ ‬himself,‭ ‬or ‏the imminent commission of‭ a forcible felony ‬against‭ ‬himself.

However,‭ ‬the use of deadly force is not justifiable if you find:  
Zimmerman ‬initially provoked the use of force against‭ ‬himself‬,‭ ‬unless:  
‬The force asserted toward the defendant was so great that‭ ‬he ‬reasonably believed that‭ ‬he ‬was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger,‭ ‬other than using deadly force on‭ Martin‬. 
‬In good faith,‭ ‬the defendant withdrew from physical contact with‭ Martin ‬and clearly indicated to‭ Martin‬ that‭ ‬he ‬wanted to withdraw and stop the use of deadly force,‭ ‬but‭ Martin ‬continued or resumed the use of force. 
‎‏In deciding whether defendant was justified in the use of deadly force,‭ ‬you must judge‭ ‬him‭ ‬by the circumstances by which‭ ‬he ‬was surrounded at the time the force was used.‭   
‬The danger facing the defendant need not have been actual‭; ‬however,‭ ‬to justify the use of deadly force,‭ ‬the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force.‭   
‬Based upon appearances,‭ ‬the defendant must have actually believed that the danger was real. 
‬There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crimes ‬for which the defendant asserts the justification. 
If the defendant‭ ‬was not engaged in an unlawful activity and ‬was attacked in any place where‭ ‬he ‬had a right to be,‭ ‬he ‬had no duty to retreat and had the right to stand‭ ‬his ‬ground and meet force with force,‭ ‬including deadly force,‭ ‬if‭ ‬he ‬reasonably believed that it was necessary to do so to prevent death or great bodily harm to‭ ‬himself ‬or to prevent the commission of a forcible felony. 
‎‏In considering the issue of self-defense,‭ ‬you may take into account the relative physical abilities and capacities of the defendant and‭ Martin‬. 
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force,‭ ‬you should find the defendant not guilty. 
However,‭ ‬if from the evidence you are convinced that the defendant was not justified in the use of deadly force,‭ ‬you should find‭ ‬him ‬guilty if all the elements of the charge have been proved.

Tuesday, June 18, 2013

Who can sue for child custody and visitation?

It may take a village to raise a child, but the legal system doesn't think so. Legal standards generally limit who can come into court to ask for custody or visitation of a child. At the same time, judges do want to protect children. The result of this tension is a patchwork of rules that can confuse family law attorneys, much less laypeople.

Default: Parents win

For many typical child custody cases, the first step in this analysis is also the last step. In other words, parents automatically have standing to sue for custody, and parents have priority over everyone else, subject to some exceptions that we will discuss later.

[A] natural parent has a constitutionally protected paramount right in the care, custody, and control of his or her children which rises to the level of a liberty interest and is protected by the Due Process Clause of the Fourteenth Amendment.

Penland v. Harris, 135 N.C. App. 359, 362, 520 S.E.2d 105, 107 (1999). All other things being equal, then, a parent will win over anyone else in a child custody case. As with most things having to do with the law, however, there are complications.

Who is a "parent?"

If parents almost always win over non-parents, then deciding who is a parent becomes one of the most important steps in a case.

The people who biologically created the child are usually the child's parents, but there are exceptions to that rule. A sperm donor whose parental rights have been terminated is no longer a parent. A biological parent whose parental rights have been terminated, for abuse or neglect, for example, is also no longer a parent. In states that allow surrogacy, the surrogate mother, at some point in the legal proceedings, will no longer be considered a legal parent. Biology alone sometimes does not settle matters.

One increasingly common fact situation that is beyond the scope of this introductory article concerns same-sex female couples. When one person supplies the egg, which is artificially inseminated by donated sperm, and the embryo is implanted in the other person, we speak of "biological" mothers and "gestational" mothers. Unfortunately, some states have decided that only one of those can be the child's parent.

Other people can also be parents of a child. People who have legally adopted the child are the child's parents, for example. People who have been judicially determined to the parents in a parentage order under the Uniform Parentage Act are also the child's parents. These cases are comparatively easy, since a court has already bestowed the title of "parent" upon these people.

Some people that we would popularly consider to be parents are often not parents for legal purposes. Step-parents are not legal parents by virtue of being step-parents. Step-parents can be parents by adopting their step-children, or by qualifying as "de facto" parents, as we will discuss later. In many states, same-sex partners are not automatically parents, unless they have adopted, been granted a parentage order, or qualify as a "de facto" parent.

"De facto" parents

"De facto" parentage is a legal concept that is relatively easy to describe, but quite difficult to prove in court. A "de facto" parent is someone who is a parent "in fact." ("De facto" is Latin for "in fact," and lawyers like to revert to Latin to make simple things sound complicated. "De facto" parents are also called "in loco parentis," which is Latin for "in the parent's place.") When a person has taken on the parental role and parental responsibilities, or when the child looks upon a person as a parent, a court may find "de facto" parentage. See Price v. Howard, 346 N.C. 68, 83, 484 S.E.2d 528, 537 (1997).

It is important to keep in mind what a finding of "de facto" parentage does and what it does not do. A "de facto" parent has access to the court and can sue for custody. However, a "de facto" parent is not on a level playing field with a parent. The legal standard for custody fights between parents is, what is in the child's best interest? The legal standard for custody fights between a parent and anyone else, on the other hand, is the parent unfit or otherwise not entitled to the parental priority? We will discuss that in more detail later.

A whole lotta exceptions

So far, we have been discussing how parents win over non-parents in custody cases. In several places, I promised to discuss the exceptions to that rule. Here we will discuss some of those exceptions.

Grandparents can get visitation, but not custody, under certain circumstances. However, there must be a custody proceeding underway between the parents, and the child must not be living in an intact family. See North Carolina General Statutes § 50-13.1(a); Penland v. Harris, 135 N.C. App. 359, 361, 520 S.E.2d 105, 107 (1999). Grandparents who can meet the "de facto" parent test, however, can sue for custody based upon that standard.

Assuming that a non-parent has established one of the grounds to sue for custody or visitation that we have already discussed, the non-parent has one more legal hurdle to surmount before getting to the actual question of custody or visitation. The non-parent must prove that the parent is unfit, or

that the natural parent has acted in a manner inconsistent with his or her constitutionally protected status.

Id. What is acting "in a manner inconsistent" is a complicated question that is beyond the scope of this informational article. Help from an experienced family law attorney is almost certainly necessary in cases that involve this issue.

Once a non-parent has established standing to get into court, and then established either parental unfitness or acting "in a manner inconsistent," then, finally, the court can address what custody or visitation is best for the child.

Where such conduct is properly found by the trier of fact, based on evidence in the record, custody should be determined by the “best interest of the child” test mandated by statute.

Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534-535 (1997).

Practical suggestions

There are a number of things that you might be able to do to protect yourself if you find yourself in this situation. If you are able to legally adopt the child, or to be declared a parent in a parentage order, you should consider doing that. If that is not possible, you should consider entering into a custody order by consent while you and the other parent are in agreement about what is in the child's best interest. If that is not possible, a custody agreement, while not legally enforceable, might at least lay a foundation for a later "de facto" parent case, by showing that you and the other parent intended for you to be a "de facto" parent, and what you and the other parent considered to be in the child's best interest. There may be other options in your jurisdiction. You should discuss these options with an experienced family law attorney in your jurisdiction.

Disclaimer:This article, and all other materials on this blog, are provided for general information only, and are not intended to be legal advice or to substitute for the advice of an experienced attorney licensed in your jurisdiction. No attorney-client relationship is intended, nor should any such relationship be assumed. For legal advice, please consult with a competent attorney licensed in your jurisdiction.

Wednesday, May 29, 2013

Cohabitation Provisions Do Not Make Sense

The piecemeal, state-by-state nature of same-sex marriage often causes problems. The Associated Press describes one such problem succinctly:

A judge has ruled that a North Texas lesbian couple can't live together because of a morality clause in one of the women's divorce papers. The clause is common in divorce cases in Texas and other states. It prevents a divorced parent from having a romantic partner spend the night while children are in the home. If the couple marries, they can get out from under the legal provision — but that is not an option for gay couples in Texas, where such marriages aren't recognized.

I often see cohabitation provisions in custody orders, but they are less common than they used to be. The rationale behind cohabitation provisions is to protect children from their parent being distracted by a new lover, or from a succession of sketchy characters drifting in and out of their lives. Nevertheless, I believe that cohabitation provisions are poor tools. It would make more sense to evaluate mommy or daddy's new friend based upon his or her particular character. Cohabitation provisions are blanket restrictions on a parent's right of association without discerning the good from the bad.

Apparently, this county's local rules include a "standard" divorce order that includes a cohabitation provision. Is that order mandatory, or is it just a suggested example? If the cohabitation provision is not actually mandatory, did the mother have counsel at the time of the divorce? Did the mother's counsel try to strike the provision? If the provision is mandatory, would it have been possible to file the divorce in a different county? The best practice for lawyers might be to look at example orders with a critical eye, rather than unthinkingly copying them.

Going forward, I wonder if this mother could file a motion to modify the order to strike the cohabitation provision.

This cohabitation provision adversely impacts same-sex couples in Texas. It is true, as the judge and the father's attorney disingenously point out, that the provision is gender-neutral. However, in Texas, cohabitating opposite-sex couples can comply with the cohabitation provision by getting married. Same-sex couples cannot get married in Texas, nor will Texas recognize their out-of-state marriage. Same-sex couples are left without a remedy that opposite-sex couples have.

The tragedy in this case is that, by enforcing the cohabitation provision, the judge is creating a certainty of harm to the children by disrupting their home.

Thursday, May 23, 2013

What is Equality? Part 1

Attorneys see some fact situations with predictable regularity. What seems to be a novelty to the general public is, to us, an old, familiar song.

The New York Times reports that, in Florida, an eighteen-year-old girl is being prosecuted for a sexual relationship with a fourteen-year-old girl. In many ways, this story is unfolding just like any opposite-sex statutory rape case.

When interviewed by the police, Kaitlyn, the eighteen-year-old, allegedly admitted to the sexual encounters. As a criminal defense attorney, I always marvel, why do people talk to the police? Why do they admit to the essence of the crime?

Kaitlyn also stated that “she did not think about it [being wrong] because” the girl “acted older.” How many times have we heard older men utter those same words when caught with underage girls?

The state attorney has offered a plea bargain under which Kaitlyn would avoid jail time, and, more important, avoid sex offender registration. Kaitlyn's parents are against taking the plea bargain, but I hope that they will reconsider. If Kaitlyn has already admitted to the sex, then she has no defense to present at trial. Avoiding sex offender registration is a huge consideration. Most criminal defendants would snap up such a plea bargain immediately; unfortunately, they seem to be offered rarely.

Kaitlyn's parents criticize Kaitlyn's prosecution because, they say, she is being prosecuted solely because it is a same-sex relationship. I take that to mean that they are alleging selective prosecution: that a neutral law is being applied in a discriminatory fashion. Discussing the difficulties of such a challenge are beyond the scope of a simple blog post. More important, I doubt that they could factually prove selective prosecution. In my experience, prosecutors are just as eager to prosecute opposite-sex statutory rape cases, if not actually moreso.

One could argue for a change to the Florida law on the age of consent. I hope that any change would be gender-neutral. However, that change will not come (and should not come) from a trial-court judge.

Gays and lesbians are fighting for equality, and this is not a case that implicates equality. Equality means that, if something is illegal when straight people do it, then it is likewise illegal when gay people do it. If Kaitlyn were Kyle instead, an eighteen-year-old boy who had sex with a fourteen-year-old girl, then that situation would still be illegal under Florida law.

The problem with equality, however, is that there never seems to be enough of it to go around. Often, it seems that gays and lesbians are treated equally by the majority when there is punishment to be meted out, such as here. But when there are benefits to be conferred, gays and lesbians do not get in on equality there. Florida is a perfect example: It does not treat gays and lesbians equally when issuing marriage licenses, or adoption decrees.

I look forward to a day when the State of Florida treats its gay and lesbian citizens equally in every respect.

Monday, February 18, 2013

Using Written Contracts in States that do not Recognize Same-Sex Marriage

I spent this morning in a stimulating discussion with Dean Suzanne Reynolds' Family Law class at Wake Forest University School of Law. The students' questions were tough and insightful, and I enjoyed my experience immensely. The topic of the discussion was written contracts for same sex couples.

Such written contracts are useful, but parties' contracts can not totally substitute for marriage rights. For example, agreements can not provide for alimony. Likewise, courts are not bound by agreements regarding child custody and support.

Further, agreements do not bind the government. So, tax consequences are out of the parties' hands. Also, parties may still be ineligible for government benefits such as Social Security. Finally, parties may still have no standing for claims such as wrongful death or loss of consortium.

Parties can agree about the ownership of property. So, essentially, agreements substitute for equitable distribution. Agreements will provide for the acquisition, ownership, and dissolution of joint property.

The preface to the agreement should do three things. First, the preface should show how the property was acquired. Second, the preface should show what property will continue to be separate property. Third, the preface also should list the property that will be held jointly.

If one partner already owns the property, there may be negative tax consequences for the other partner. There may be a presumption that the joint property was a taxable gift from one partner to the other.

To avoid the presumption of a taxable gift, the agreement should show the initial contribution that each party made to the purchase of the property. The initial contribution may be an amount paid for the down payment, or sales proceeds from the party's other property.

Agreements should set out how the property will be held and managed. The parties may establish a joint account solely for joint expenses. They may agree to contribute a certain amount or a certain percentage to the joint account. The agreement may provide for sharing the cost of upkeep, maintenance, repairs, and improvements.

Agreements should set out how the property will be dissolved. Many events may trigger dissolution of the joint ownership. The parties might sell the property while remaining a couple. Due to aging, illness, or some other factor, one party may become incompetent. One party may predecease the other. The agreement should provide for each of these contingencies.

One party may be forced into bankruptcy. Since property owned by unmarried parties is held jointly or in common, instead of by the entireties, the property is vulnerable to a party's separate creditors. The agreement should provide a way for the other party to buy out the bankrupt party's share of the property.

Most contentiously, the parties may break up. The agreement should set out who gets to choose to stay, and who has to go. The one who has to go may have to continue to pay the property's joint expenses until the property is sold. The one who gets to stay may have to give the other party some credit for the fair rental value of the residence. Or, the one who stays may have to buy the other one out. The agreement may provide that the leaving partner has no financial obligation if the staying partner brings in a new girlfriend/boyfriend.

Generally, agreements give one party the right of first refusal to buy the other out. The agreement will have to set out how the property will be appraised. If the right of first refusal is not exercised, the agreement should set out how a Realtor will be selected, how the listing price will be set, and when an offer will be accepted.

To keep the parties' private affairs out of the public record, agreements should include recourse to mediation or arbitration, or both.

Agreements are not the last step. Parties may decide to be married, civilly united, or domestically partnered. While not recognized here and now, when recognition comes, these events may establish an early beginning date for tax purposes or government benefits. However, parties must be careful not to become "wed-locked:" unable to dissolve their marriage, union, or partnership.

Parties may decide to establish an inter vivos trust to substitute for alimony. Such trusts are sometimes appropriate when one partner earns substantially more than the other. However, unlike alimony, trusts are not as easily modifiable.

Parties must ensure that they actually title joint property jointly. Joint property may include real estate, time shares, vehicles, bank accounts, financial instruments, retirement accounts, life insurance, and closely-held businesses.

Parties may wish to execute reciprocal wills, living wills, powers of attorney, and health care powers of attorney.

Parties may have to do something to protect their children. They may consider adoption, second-parent adoption in another state, artificial insemination agreements, sperm donor agreements, parenting agreements, or "friendly" lawsuits.

Clearly, these agreements can become quite complicated. This general outline is not intended as legal advice, nor should it be relied upon as such. If you are considering whether an agreement might be right for your situation, I would be happy to discuss your particular situation with you in a private consultation; just call me to set up an appointment. Also, I welcome general comments and questions in the public comments section below.