Indicting insanity defense

Has the constitutional right to plead insanity as a defense to a criminal trial gone so awry that the justice system continues to take a blind eye? More than three decades since John Hinckley Jr. was acquitted for the attempted assassination of President Reagan by reason of insanity, the M’Naghten rule or insanity defense remained in the public stand facing trial.

Image Source: midtownmiscreant.blogspot.com

The post-John Hinckley era seems a little more resolute to sidestep a fundamental right of an accused in exchange for an outright justice designed, in most cases, to satiate an outraged public. In view of the spate of violence that rocked the country in the past months, it would just be a matter of time before any criminal would be hurled with the whole weight of justice not crazy enough to accept a plea for insanity defense. Just last year, the Supreme Court conveniently upheld the Idaho court ruling against John Delling, a paranoid schizophrenic who pleaded for insanity defense but was still convicted for the 2007 gruesome murder of his friends whom he believed were “zapping” his energy. While Delling’s crimes are unforgivable, the Supreme Court’s decision sparked debates for its delivery of a clear and overwhelming miscarriage of justice.

Image Source: midtownmiscreant.blogspot.com

Despite the past abuses on the use of the M’Naghten rule, the one thing that remains certain is the moral nature of criminal responsibility which seems to have been forgotten by a system already fortified by a culture of retribution. At present, no one is fully certain if the criminal justice system could also pass the “right-wrong" test. When such system denies a fundamental right enshrined in the law and punishes a person who truly doesn’t appreciate the merits of his or her actions, justice is likewise impaired. In a moral and legal standpoint, it’s could be considered insane.

Image Source: talesfromthelaw.wordpress.com

This Evan Granowitz Twitter page contains updates and links to articles on related topics.

Understanding product liability claims: The three basic categories

Image Source: OnlineInsurance.co.uk

Ever bought a product that the manufacturer claimed was fine but is actually not? Did a product cause injury or harm to you or your family? If so, then you can sue for a product liability claim.

There are three categories of product liability claims:

Defectively manufactured products.

These are products that are flawed because of some mistake or error in manufacturing them, such as fabrication machine problems or part installation problems, so much so that they cause harm to people who use them. Instances include a TV that exploded due to faulty wiring, cracked chains on bicycles, cellphone batteries that explode during prolonged use, tainted medicine, and broken condoms.

Image Source: SubrogationRecoveryLawBlog.com

Defectively designed products.

These are products that are faulty by design and not because of faulty manufacturing process. Examples include a car with a gas pedal that sticks, a children’s toy with sharp edges, and a phone that dies after just an hour even without use.

Failure to provide enough warnings or instructions.

Manufacturers will be liable should they fail to provide enough warnings or instructions on how to properly use their product, as improper product use due to missing warning labels or instructions can lead to accidents.

Image Source: WarnerandWarner.com

Knowing these categories can help you and your lawyer find out whether you have a case or not and what strategies your lawyer needs to use.

Atty. Evan Granowitz of Wolf Group LA is a highly respected lawyer who specializes in civil litigation. This website provides more information on civil litigation cases.

Insurance coverage disputes: When your insurer goes bad

Image Source: Mashable.com

You use insurance coverage as a means of managing risk for a lot of things, including your house, car, and even health. In exchange for premiums, your assets will be protected from certain risks.

Although a lot of insurance companies honor their obligations when the time comes, there are times when insurance companies deny valid insurance claims, as these companies have a financial interest not to offer you compensation or payment. Insurance companies have cash reserves that they have to maintain. Providing you with compensation will cost them money, and they will have to replenish those cash reserves by either reducing profit or raising your premiums.

Image Source: ParkDurham.com

The first thing you need to do if an insurance company denies you compensation is hire the services of lawyers, like Evan Granowitz and Timothy Pagel, who are well-versed in insurance coverage disputes and litigations. Second, you need to be steadfast. Just because an insurance company denied you compensation because it interpreted your policy in a manner which they can deny you coverage does not mean that they are right. Third, let your lawyer review your policy and your claim when your insurer denies your claim.

Image Source: TheWellsLawGroup.com

 If the facts are straight and there is evidence that you are being deceived by your insurer, then your lawyer can take the appropriate action to ensure that you get what you are owed.

The Wolf Group LA website is an excellent resource for people who need expert legal assistance.

Defending yourself from breach of contract lawsuit with an affirmative defense

Image Source: mybussinesstravail.blogspot.com

Saving yourself from a breach of contract lawsuit involves having several affirmative defenses. This blog article explains how you can get out of a contract by taking advantage of those defenses. The courts of California afford defendants with several defenses in breach of contract actions. Among these are:

• The contract was ambiguous. The plaintiff did not clearly state some aspects of the contract. Ambiguity makes it hard for you, as the defendant, to respond.

• There was breach of contract by the plaintiff. The plaintiff failed to comply with the terms of the transaction by changing the terms of the contract without your consent or failing to pay you.

• You were induced to enter into a contract. A contract will be invalid if it was induced under duress or undue influence. The plaintiff made you enter into the contract against your will by taking unfair advantage of your mental incapacity or by using threats or force.

Image Source: giddenslaw.com

• A mistake was made. There’s a mistake involving the terms that were agreed upon by the contracting parties. You can defend yourself by proving that the mistake was mutual.

• There was fraud, deceit, or misrepresentation. Part of the contract, if not all of it, resulted from fraud, deceit, or misrepresentation by the plaintiff or another party.

If you’re charged with breach of contract, the law allows you to claim as many defenses as possible. Deciding which defenses work best for you is crucial, and seeking help from legal experts like Evan Granowitz and Thomas Gallagher is a wise move.

Image Source: derbylawyers.net

The Evan Granowitz Twitter page offers some helpful information about breach of contract and other legal matters. TAGS: breach of contract, breach of contract defenses, breach of contract affirmative defenses, contract breach defenses, contract defenses, breach of contract lawsuit

REPOST: Debt ceiling FAQs: What you need to know

What do you need to know about debt ceiling? What is its importance in today’s economy? This article from CNN.com has the answers.

 

Image Source: money.cnn.com

Just a few weeks ago, Congress narrowly avoided pushing the country off the fiscal cliff. Now it faces a potentially bigger risk to the economy: the need to raise the debt ceiling.

To help separate fact from fiction in the battle, here's what you need to know about the issue.

What is the debt ceiling exactly? It's a cap set by Congress on the amount of money the federal government may borrow. The limit applies to debt owed to the public (i.e. anyone who buys U.S. bonds) plus debt that the Treasury owes to government trust funds such as those for Social Security and Medicare.

Why does it need to be raised? The debt ceiling needs to be raised periodically because both parties in Congress have approved tax cuts and spending increases over the years, knowing full well they will add to deficits. By doing so, they increase the country's future borrowing needs.

That's why raising the debt ceiling is not a "license to spend more," as some Republicans assert. It simply lets the Treasury Department continue to pay all the country's obligations that Congress has already approved -- whether it's a payment to a federal contractor, aSocial Security check to a senior, or interest on the debt to a bond investor.

Since March 1962, Congress has raised the debt limit 76 times, according to the Congressional Research Service. Eleven of those times occurred in the past decade.

How high is the debt ceiling now? The ceiling is currently set at $16.394 trillion. The country's borrowing hit that mark on Dec. 31.

As a result, Treasury can't borrow any new money in the markets (although it still is allowed to rollover existing debt). So it has begun to use "extraordinary measures" to temporarily stave off the risk that the country will default on any of its obligations.

What are "extraordinary measures" and how much time can they buy? Treasury has four options, which combined can raise $200 billion.

The biggest of them is to temporarily stop reinvesting federal workers' retirement savings in special-issue short-term bonds.

Treasury has said that normally $200 billion can cover federal borrowing needs for about two months. But how much it buys this time around remains uncertain.

Treasury said on Jan. 14 that it expects to exhaust its extraordinary measures sometime between mid-February and early March. Earlier, the Bipartisan Policy Center had estimated the deadline would come as soon as Feb. 15 but no later than March 1.

What happens if Congress doesn't raise the debt ceiling in time? It's impossible to say with certainty. But generally speaking, nothing good will come of it.

Treasury would not be permitted to borrow. So it would only be able to pay those bills for which it has enough revenue on hand. Problem is, there won't be enough revenue on hand to cover the payments due on any given day.

So who would get paid and who would get stiffed? Treasury would be forced to make legally questionable decisions -- either picking winners and losers, or choosing to delay payments to everyone. "The reality would be chaotic," the Bipartisan Policy Center concludes in an analysis of Treasury's cash flow.

Some say the country could avoid default if Treasury simply chooses to pay interest due to bondholders first. It's not as simple as it sounds, but that is what most experts expect Treasury would do since defaulting on U.S. bonds would cripple the economy, send markets into a tailspin and potentially "trigger another catastrophic financial crisis," in the words of the Treasury Borrowing Advisory Committee.

But if the debt ceiling standoff persists, there's no guarantee that paying interest but shirking other legal obligations will protect the country from the perception of default or at least instability.

If the debt ceiling isn't raised in time, will there be a government shutdown? Not technically, but effectively it may feel like a partial one.

A real government shutdown occurs if lawmakers fail to appropriate funds for federal agencies and programs. Without appropriated funding, government operations would cease, except for essential services.

By contrast, if the debt ceiling isn't raised in time, the government remains open and Uncle Sam has revenue coming in to pay for government services and agencies. Just not enough revenue to pay for everything.

"There would have to be severe cutbacks, but it is unlikely that large parts of the government would be shut down completely," said former Congressional Budget Office Director Rudolph Penner.

But the longer the debt ceiling crisis lasted, the harder it would be to keep government operations running. "After two weeks you'd have absolute paralysis in the federal government," said Steve Bell, economic policy director at the Bipartisan Policy Center.

What's all the noise about the 14th Amendment? If Congress fails to raise the debt ceiling, some believe the president could choose a "nuclear option" and invoke the 14th Amendment.

That amendment states: "The validity of the public debt of the United States, authorized by law ... shall not be questioned."

By invoking the 14th Amendment, the argument goes, Obama could direct the Treasury secretary to keep borrowing in order to pay the country's obligations.

The White House has rejected the suggestion several times. But minds may change, experts say, if the country is really on the brink of default.

It would, however, be risky politically.

And the country could still be hurt financially. Invoking the 14th Amendment could spark a constitutional showdown -- not exactly an affirming message to send markets already questioning Washington's ability to govern.

What about a $1 trillion platinum coin? Another instant-presto fix that some experts believe could be used to avert default is the creation of a $1 trillion platinum coin. Then again other experts think the idea is legally questionable and in any case not a bright move.

The idea goes like this: Treasury is not allowed to print money. But because of a legal loophole it is allowed to mint platinum coins. If it opts to mint a $1 trillion coin, it could deposit it at the Federal Reserve and thereby keep paying the country's bills even though the debt ceiling hasn't been raised yet.

"Minting a $1 trillion coin sounds like the plot of a Simpsons episode or an Austin Powers sequel. It lacks dignity," writes Donald Marron, a former Congressional Budget Office director, in an opinion piece.

Treasury beat back expectations and rejected the idea in a statement on Jan. 12. "Neither the Treasury Department nor the Federal Reserve believes that the law can or should be used to facilitate the production of platinum coins for the purpose of avoiding an increase in the debt limit," Treasury said.

This Evan Granowitz Facebook page shares the latest financial and legal news nationwide.

Reliving the moot court experience

Image Source: MotionsOnline.org

One might often wonder how great lawyers such as the likes of Evan Granowitz and Michael Schwimer got to be so good in defending their cases in front of a judge and a jury. Surely, their expertise must have come from years of experience in the courts, each trial providing a set of legal skills that accrue over time.

True enough, these skills go all the way back to their law school education where budding lawyers are given a taste of what it is like to be in a real court via a moot court.

The “moot court” is a law school-organized extracurricular activity that immerses law students into the court atmosphere by having them simulate court proceedings. During the entire process, students are required to employ their theoretical foundations in the practice of drafting briefs or memorials and participating in oral arguments. Incidentally, these skills are going to be useful in the students’ future practice, as they would later prove to be invaluable in any court proceedings that they would have to attend.

Image Source: Bond.Edu.com

Moot courts are often mistaken for mock trials; however, they differ in that while the latter simulates jury or bench trials, moot courts are more focused on appellate and arbitral cases. As such, no witnesses or pieces of evidence are presented in a moot court. On the contrary, proceedings are exclusively focused on a particular law’s applicability to a set of evidentiary assumptions which will be introduced to the participants.

Image Source: WebLaw.USC.edu

It goes without saying, but law students who would like to take their practice to the courts should try to engage themselves in the moot courts first.

Evan Granowitz is a California-based lawyer who specializes in civil litigation. This website provides more information about his practice.

REPOST: Self defense and stand your ground laws

What is the Stand Your Ground law? Read about it from this HG.org article.

Image Source: thinkprogress.org

The Trayvon Martin case in Florida has received national attention on the Stand Your Ground law and now many states that have the Stand Your Ground law in place are looking at their current legislation regarding the Stand Your Ground law. However, the Stand Your Ground law has a rational basis and dates years back. This is a discussion on investigating self defense cases under the Stand Your Ground statutes.

Many states have some form of "Castle Doctrine" or "Stand Your Ground" law in place. These states are Alabama, Alaska, Arizona, California, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin and Wyoming have adopted Castle Doctrine statutes, and other states (Iowa, Virginia, and Washington) have considered "Stand Your Ground" laws of their own.

While critics have rationalized the "Stand Your Ground" law as "shoot first" that is not the case. Many experienced criminal attorneys do not understand the "Stand Your Ground" law and many of their clients have plead guilty when the case could have been justified under Stand Your Ground. Self-defense and Stand Your Ground is nothing new. The Supreme Court of the United States ruled in Beard v. U.S. (158 U.S. 550 (1895)) that a man who was "on his premises" when he came under attack and "...did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm...was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground." Justice Oliver Wendell Holmes, Jr. declared in Brown v. United States (1921) (256 U.S. 335, 343 (16 May 1921)), a case that upheld the "no duty to retreat" maxim, that "detached reflection cannot be demanded in the presence of an uplifted knife". More than half of the states in the United States have adopted the Castle doctrine, stating that a person has no duty to retreat when their home is attacked. Some states go a step further, removing the duty of retreat from other locations. "Stand Your Ground", "Line In The Sand" or "No Duty To Retreat" laws thus state that a person has no duty or other requirement to abandon a place in which he has a right to be, or to give up ground to an assailant. Under such laws, there is no duty to retreat from anywhere the defender may legally be. Other restrictions may still exist; such as when in public, a person must be carrying firearms in a legal manner, whether concealed or openly.

The Stand Your Ground law is not an automatic defense. The claim of self-defense under Stand Your Ground must meet the rules of evidence to have some basis. The threat must be imminent and it must be immediate. Our job as professional investigators is to gather facts surrounding the case, seek video surveillance where the act took place, locate witnesses (if any), take statements, obtain video and photographs of where the act has taken place, collect the background of the defendant that is claiming self-defense as well as a background of the aggressor. If the evidence matches the claim of self-defense under Stand Your Ground, chances are the prosecutor will consider the act justifiable under the law. In the Tayvon Martin case as reported in the media, the evidence did not match the statement given by George Zimmerman, the defendant that claimed self-defense under Stand Your Ground.

It's well settled that law enforcement is not constitutionally obligated to protect any individual citizen unless a "special relationship" exists. Warren v. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap. 1981). So, the logic behind self-defense and Stand Your Ground is that you have a right to defend yourself whenever you are in a permissible location, not just your residence or property. It is also well settled that an aggressor cannot claim self-defense under Stand Your Ground. It's important to note that once the facts and evidence are gathered on a claim of self-defense and Stand Your Ground and a defendant, or potential defendant satisfies the prerequisites that he/she was not the aggressor, was in a legal permissible place, and the evidence and facts substantiate a valid claim of self-defense under Stand Your Ground, then a very heavy burden is placed on the prosecutor to prove that it was not self-defense under Stand Your Ground. Many prosecutors, as well as defense attorneys, will try and convince their clients that they should have walked away or they cannot claim self-defense except on your own property and that is certainly not correct. The statutes are very clear and nearly all statutes have a "no duty to retreat" clause meaning a jury cannot consider that a defendant could have retreated from an encounter against an aggressor and the statues further the self-defense by stating "any place that is permissible" meaning that the defendant was not trespassing, etc.

Still, statutes go further as in the self-defense of others. If a bystander is witnessing someone being attacked then that witness is allowed to use reasonable force, including deadly, if he or she reasonably believes that the person being attacked is in danger of serious bodily harm or death. While the Stand Your Ground statutes are very clear and date back under United States Federal Case law to 1895, attorneys and legal scholars still find it difficult to interpret self-defense and Stand Your Ground statutes. For instance, one such law uses the terminology "A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force." Some attorneys and prosecutors have interpreted this section to mean that "equal" force can be used and not deadly force. That is a misinterpretation because it is in the same clause as "no duty to retreat." The legislative history behind such a clause states "force with force" meaning "no duty to retreat" or "Stand Your Ground." It would be illogical to expect an individual to defend themselves with a knife (especially if that person only has a gun) and the aggressor has a knife. The proper interpretation is if you fear serious bodily injury or death, you may use reasonable force, including deadly force to defend yourself. It does not matter if the aggressor has a knife or baseball bat and you have a gun. Self-defense and Stand Your Ground statutes, clearly written, not overbroad or vague, are still misinterpreted. These are complex cases that require professional investigators with a background in criminal defense and very experienced attorneys in criminal law. Most individuals that are arrested that have claimed self-defense under the Stand Your Ground statute will go through a preliminary examination and usually, at this stage, the charges are dismissed. However, some prosecutors prefer to allow a trial and a jury to decide if the defendant's actions were initiated through self-defense under Stand Your Ground. The evidence must match the facts of the case. Any discrepancy in the evidence or facts could lead to a murder or manslaughter trial. A full background of the defendant and the aggressor must be conducted first and foremost. The defendant's past must be scrutinized and examined thoroughly to determine if there is a history of violence. The same background must be conducted on the aggressor and facts must be established leading up to the incident.

While critics will verbalize that the Stand Your Ground has flaws, they will not idealize the good parts of laws like Stand Your Ground. For instance, should you allow an attacker to kill you while you are not allowed to defend yourself? Should you stand helplessly by watching your neighbor or a woman in a parking lot be assaulted while you are not allowed by law to assist? If we are to accept the critics' version that Stand Your Ground laws should be repealed, then law abiding citizens will have no recourse to protect themselves. It is not a "license to kill" but a fundamental right to defend your person, your property and if necessary, your neighbor or another person. Again, common sense dictates, and critics will not tell you that the Stand Your Ground affirmative defense is not automatic. The facts and evidence must match the incident and a full investigation must be commenced to determine if the incident is self-defense under Stand Your Ground. A good investigation will determine the facts and that is the best safeguard you can have in place to be sure that someone is not getting away with murder by using the Stand Your Ground law as a shield.

Therefore, there are safeguards in place to ensure that criminals do not kill someone in cold blood and claim self-defense under Stand Your Ground. Is it perfect? No it is not, but no law is perfect; but the Stand Your Ground statutes allow a person to justifiably defend themselves without fear of being arrested for having to defend themselves or another person. There is logic behind the Stand Your Ground law and dates back to 1895. We as citizens must have right to defend ourselves against an attacker and if Stand Your Ground laws are repealed, then we are at the mercy of an attacker.

Evan Granowitz is a California-based litigator. For more law-related updates, visit this Facebook page.