New Year's Resolutions for wise souls

Each new year brings on the inevitable. The health clubs will fill up to capacity in January, then empty out again in March. We make promises to loved ones and ourselves to be better people in the new year, to eliminate bad habits and replace them with new ones, then find ourselves in the same old rut by June. Personally, I'm not big on the "resolution" thing. I think it's a much better idea to have reachable goals that, when reached, will make us more secure and more prosperous. May I make a few suggestions from attorney to client?

(1) If you do not have a will yet, get one. It's always better to consult an attorney and have him draft one based on your actual needs. It's also best to do your whole estate plan, including a Living will, Powers of Attorney, and the Will or Trust itself. At the least, there are a few on-line legal form options. It's better to have any will than no will at all, but you and your family will still be better served if you talk to an attorney about this very important responsibility.

(2) Shed bad habits and replace them with good ones. Do you drink too much? Stop before you face bigger problems, like the DUI that will change your life for years to come (as in conviction and DL suspension). Studies show that children of people with drinking problems will have drinking problems too. Do you want that weight on your shoulders? Do you smoke pot, or use other illegal drugs? They are illegal so you should reconsider the wisdom of imbibing in them. Did you know that marijuana is one of the few smells that will give an officer more than sufficient PC to search your car? Get stopped after lighting up a reefer and you will get busted. A second pot bust in Kansas is a felony. For the regular recreational smoker, it's just a matter of time before you get convicted of felony possession. Unless you are a professional sports star, you will immediately see your career options diminish. Not a habit worth the cost.

(3) If you operate a sole proprietorship business, get protection for your family and personal assets. Set up an LLC or a corporation. Otherwise, if you or your employees mess up and hurt someone or cause damage to property, the client won't be able to sue you personally. Your family's savings and investments will be protected.

(4) Get out of debt. Car loans, boat loans, credit cards, and even a residential mortgage sucks money out of your bank accounts. The things you buy with such debt are not investments. (Even your house! Ever get money back at the end of the month on your home? No.) The interest on these debts makes the price of the items purchased pale by comparison. Get rid of debt and you can put that money into savings and investments.

Here's a promise from an attorney who sees what happens when the stress caused by not considering the above in one's goals and objectives becomes overwhelming. You will eliminate many of the stupid choices people sometimes make that end up with them being hauled into court, whether as a criminal defendant, heir of an estate tied up in probate, as a businessperson being sued by clients with everything on the line, or as a plaintiff in a personal bankruptcy. Hit those objectives running in 2011 and not only will 2011 be a good year, but the next few decades of your life will be much smoother than if you did nothing. If you need help with the legal matters involved with the above, call me. I will be glad to help.

Have a Happy New Year!

You have the right to physically discipline your children, but use wisdom

I have lots of friends who believe in the biblical maxim "spare the rod and spoil the child." Indeed, I share this belief. Fortunately, wise parenting usually results in the rod gathering dust after one or two uses. Sadly, not everyone out there accepts this truth. The horror stories of clerks in grocery stores reporting moms who pat their young ones on the rum when they misbehave in Kroger are too numerous to list here. SRS, it seems, appears to believe that anything other than a cross look at a child is tantamount to abuse. Maybe this "Dr. Spock" mentality is why we have such a problem with slackers in the past generation or two of our young people? I digress.

Yesterday the Kansas Appeals Court issued an opinion that gives us parents committed to effective discipline some protection against overzealous SRS case workers and county prosecutors. In State v. Wade, No. 102,433 (Kan. App. Ct. December 30, 2010), the Court considered whether the judge should have instructed the jury that it was an affirmative defense to exercise force as a form of discipline (defendant was charged with misdemeanor battery for striking the child) when the facts support such an argument. In Kansas there is no statutory defense. It is embedded in case law opinions going back a hundred years or so, hence, it is what is called a "common-law defense." As the court held in syllabi 4:

In Kansas, the affirmative defense of parental discipline is based on an objective standard. It is a defense to the charge of battery if a parent's use of physical force upon a child was reasonable and appropriate and with the purpose of safeguarding the child's welfare or maintaining discipline.

Additionally, as to whether the court erred in failing to instruct the jury on the defense, the Court held in syllabi 5:

Under the facts of this case, we hold the trial court had a duty to instruct the jury on the affirmative defense of parental discipline and the failure to properly instruct the jury denied the defendant due process of law.

To summarize, yes, you may use physical force to discipline your children, and, if you get charged for carrying things a bit too far, you can claim the defense of corporal punishment. However, it is important for all of us to not go too far in physically disciplining our children. Both as a prosecutor and as a defense attorney, I have seen numerous cases where children were forced to grow up in homes where fear of physical abuse (not sexual abuse just discipline-focused abuse) had turned their childhood into a very long nightmare. What do such children do as soon as they are old enough? They rebel against what they perceive as ungodly, unloving and totally illogical authority. Many end up my clients. They are often treated better in "the system" than by their own parents.

For my own home, I cannot recall the last time we actually had to spank one of our daughters. Years ago perhaps, but so long ago that the moment doesn't come to mind. Suffice it to say it only took one or two wise uses of the rod to make the lesson stick. My three daughters aren't perfect children, but they are pretty close to perfect. I do recall my own childhood and one incident. My mom was at wits end and reluctantly spanked me (truly, it hurt her more than it did me!). I didn't follow her instructions during this spanking and put my hand in between my bottom and the paddle. The paddle struck my knuckles. It really hurt. It was the first and only time I was spanked. Lesson learned.

Spare the rod and spoil the child, but only use the rod sparingly. If you do, you won't have any problem defending yourself in a court of law if it comes to that.

Unlike professional athletes, attorneys who drive under the influence of alcohol get suspended for more than a few games or even one season

In re Johns is an interesting case for consideration. (Click on the title of this post to read the entire Kansas Supreme Court opinion.) A lawyer picked up a third DUI. As a result he lost his ability to practice law for two years. It seems to me that if our sports stars and hollywood actors received similar punishments, our children might behave better. Just a thought.

We are our brother's keeper

The Wichita Eagle ran a series on child molestation the past few weeks. For details, click here. It is a heart wrenching account of two twin sisters who were terrorized, brutalized, raped and sodomized by their brothers from an early age all the way up to their teen years. Only after a neighbor reported the abuse did it stop. Suffice it to say that the damage inflicted on these poor girls will last forever. They will never fully recover from the horror of what went on under the ignorant eyes of their own parents (the mother was beaten and abused by the father, so there's at least some sympathy due her too, although not much).

Years ago I believed that every single person facing criminal charges deserved the "benefit of the doubt." An attorney had to believe the client. I learned something early on. This might be applicable to the DUI or DRUG defendant, and even most of those charged with battery, assault and other crimes where there are two sides to a story, but something interesting happened on the one case I took involving child sexual abuse. Upon review of all the reports, witness statements, and other evidence I found the client harder and harder to believe. In the end he left a suicide note that blasted the stepdaughter who had leveled the charges, claiming that she was trying to break up the marriage between her mom and the client. But giving up before his day in court left me wondering...

If I were falsely accused of a crime, would I kill myself before getting the chance to prove my innocence?

There was something else about the case that bothered me. Pornography. The man's dresser was stuffed with pornographic movies. Part of the allegations was that he would have the girl come into his room when mom was away and they would watch the movies together. He denied doing such a thing, and even claimed that he was a "Christian." So then, why did the police find porn in your room? He claimed it was something he and his wife enjoyed together. Really? Still porn. Still sin. Still disgusting.

After he killed himself I reviewed the case file even deeper, and made a few follow up phone calls. a few years before the man was brought up on abuse charges while working as a guard at a state correctional facility. There were some sexual offense allegations then too. In the end I found myself believing the victim and her mother. In the end I realized something I had been warned about. Sex offenders almost always lie. They do what most defendants do, try to justify their actions, but go one step further by lying to cover up the truth. Other cases involving drugs or even crimes of violence involve truth with justification. Sex crimes involving minor children never include truth coming out of the mouth of the defendant. They know that even the smallest degree of truth will fry them. The crime is that heinous.

I made a decision after that case. I drew a line. Most defense attorneys don't draw such lines. They will take on any case that involves a fee. I will not take on sex cases, even adult ones. Read the Eagle series and you'll see why.

This post is a little different than others I've done. I wrote this post to make you think, to make you consider what you would do if you knew that some little girl or boy in your neighborhood was being abused. I hope you will do the right thing. I hope you will protect that child by reporting the situation to the authorities. We don't need witch hunts going on, so make sure it's a case of clear abuse and not just someone who does things differently than you do. We home school to protect our kids from the negative impact of government schools, be it poor education quality or bad influences from some teachers and classmates, and some might think us weird. This is not what I'm talking about. Read the series and you'll pick up some of the "tells" the Christian family across the street from the victims noticed. Then be vigilant. Be your brother's and sister's keeper, or at least their protector.

Know the foundations of your country and its laws, or else!

Listening to the talking heads on the TV and radio discuss the latest brouhaha on extending the tax cuts compelled me to consider one thing (among many others) our education system is grossly insufficient in teaching our children: the Constitution and the foundations of our Republican form of government.

When I was in a government school (K-12), I at least had the benefit of those Saturday morning cartoons. Check it out...



What if all of us were informed about what the Constitution actually means. For example, consider the concept of the enumerated powers. Article 1, Section 8 enumerates the powers of Congress. Moreover, it reserves all those powers not so enumerated to the states. Decades ago (roughly 4 decades after Woodrow Wilson pushed for public funded education), our so-called leaders began redefining what were once crystal clear terms, such as "The Commerce Clause." It reads, "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Back when the nation was founded this meant that the federal government was the only authority with the power to control the flow of goods to, from and between the states (such as regulation highways, roads and later, railroads). Now, our Congress is claiming that making you and I buy health insurance is also regulating commerce since allowing people to opt out will increase the premiums of others.

How are they able to get away with this? Simple. Starting with Roosevelt and his welfare state policies, we have allowed our self-interests to blind us to the million tiny cuts such manipulation of the words of our Constitution has inflicted on what were once clearly stated and precise words. Hence, it now means whatever politicians want it to mean. Now, what is the rule of law? It's amorphous, ever changing. In the words of the modern, left wing law professor, it's the "Living, breathing Constitution." Who needs amendments when all you really need is a judge who, with a wink and a nod, with let you manipulate the Constitution to mean whatever you need it to mean?

People, wake up! Read the Constitution. Do not let a few men whose knowledge represents a thimble of the wisdom of our Founding Fathers change what we are about. Let's take back America one election at a time.

You can no longer merely object to preserve an issue for appeal. Your attorney better have a stack of cases and statutes in hand.

Sometimes it is tempting to skim over case opinions. First glance tells us there's nothing relevant to our field of practice. DANGER! When this is our method or legal research we often miss the trees for the forest. This is not necessarily a good thing. Case in point is State v. England, No. 102,685 (Kan. App. Ct. December 10, 2010). Embedded in Syllibi No. 3 is the kernel of wisdom that will effect every case that goes to trial. To paraphrase, merely objecting to a witness, opposing counsel or the judge will no longer suffice to preserve an issue for appeal. The attorney must be able to cite to specific authority.

Lesson to learn? Hire an attorney with trial experience and ask him how often he reads his courts' case opinions.

DUI check lanes are constitutional if done properly

I read an article the other day about Texas moving to legalize DUI check lanes. As it stands now, Texas law enforcement is banned by statute from using this tool. The article quoted several sources who claimed that check lanes are unconstitutional. This is not the case if they are done properly.

Here's an example of one thing that will render such a check lane legal. The WPD announced today in the Eagle that they were conducting a check lane on Kellogg Drive this Thursday. This is called notice. This is not mandatory to uphold the legality of a check lane. If the road is big enough and signs are posted far enough up the road to allow a driver to avoid the lane, this also renders the resulting stop legal. See State v. Jackson, No. 77,376 (Kan. S. Ct. 1997), for a full analysis of what it takes to uphold a check lane stop as legal.

In summation, don't go yelling your rights have been violated just because the police caught you driving drunk at a check lane. They may have done so, but you should probably hire an attorney who knows what to look for in the police reports and public records to be certain one way or the other.

NTSB pushes for more severe measures for hard-core drunk drivers

Don't even think about opening a business before you talk to an attorney

It's the American Way. You have a vision for a business that serves people. Maybe you are an outstanding carpenter or painter, or you just have the eye of a landscaper. So you hand out flyers in your neighborhood and church and start taking calls for jobs. You do well. You rake in several thousand dollars and are really busy. All your customers are satisfied. But then the unimaginable happens.

One of your workers, a so-called subcontractor, has a horrible accident at a work site. He loses an arm or leg, or maybe he dies. His family sues you. You didn't have workers comp insurance. Also, you are a "sole proprietor" and did not have adequate insurance. They take you to court and not only take your business, but your family's home and savings. Personally, I am tempted to call you "dummy" for letting such a thing happen. It was so easy to fix.

An attorney would have advised that you not even think about going into business without a corporation or Limited Liability Company filing. That is even if you don't have insurance. All the guy's family could do in such a scenrio is take away your business. Of course, you should have insurance too. That way you keep the company as well.

The above nightmare isn't limited to employees. The same logic applies to accidents that harm your client's property or even people who happen to he harmed by the wake of such negligence.

Simply put, don't operate any business without some sort of corporate umbrella protecting your own and your family's assets. The fallout is simply too great.

If you can't do the time, don't do the crime...unless the presumptive sentence is disproportionate to the facts of the crime charged

As a conservative I am often torn between my duties as a criminal defense attorney and my belief that one must reap what he sows. As Romans 13:1-7 tells us, the government bears the sword of justice for a reason, to punish wrongdoers. Hence, "if you can't do the time, don't do the crime." However, law should give judges some room for mercy and proportionality of sentences. For example, I am often frustrated by the DL suspension portion of DUI statutes. The idea that a first time offender who may have never been in trouble before will lose his DL for up to one year is absurd. Such disproportionate punishment often results in the loss of employment and all that goes with it.

Today I read a case opinion issued by the Kansas Court of Appeals that gives me hope that justice and mercy will once again be viewed together despite the existence of the Kansas Sentencing Guidelines (hereafter KSG). But first, know that the KSG typically binds judges to punishments dictated by the Kansas Sentencing Commission unless special findings are made to depart to probation or a cut in time. In State v. Dillon, No. 102,724 (Kan. Ct. App. December 3, 2010), the court considered whether a court had to consider a defendant's motion to depart based on an argument that the guideline sentence was disproportionate to the crime charged.

A brief of the facts of the case is in order. The defendant was a sexual offender. At the time of his initial sentencing the Kansas statutes required him to register with the county in his birth month and then every six months thereafter. Then the legislature changed the law assuming that the average criminal defendant not on probation could do complicated math calculations (I am being a little bit sarcastic here) by requiring birth month registration and every four months thereafter. Six months, easy. Four months, not so easy. Granted, the repercussions are such that you would think that a person would buy a calendar and make a note, but the reality of life often distracts. For proof just show up at traffic court and count the number of people asking the judge to lift warrants due to their failure to appear at initial appearances. Keep it simple and the purpose of such laws will be satisfied.

To make a long story short, Dillon missed the mark by a month or two. That's all. He merely assumed the birth month and every six months thereafter would suffice. It was the law in effect while he was on probation and he assumed it still was the year he missed his follow-up registration requirement. Given the fact that he wasn't on probation and therefore didn't have a PO to hold his hand, some leeway should be given, at least in the first year after such a change. Not so in the opinion of the District Attorney's Office. They came at him will all barrels blazing. Missing the mark by two months meant Dillon, under the guidelines, would have to serve 114 months in prison. So Dillon's attorney argued for a durational and dispositional departure. He asked the judge to reduce the time and put his client back on probation.

The court refused to listen to the proportionality argument and imposed the presumptive sentence. The Court of Appeals held that "the district court denies due process if it refuses to even to consider the proportionality of the sentence." Ibid. at Syl.¶2. Simply put, the court should have at least listened to Dillon's argument.

So, take heart. If you ever find yourself staring down the barrel of a disproportionate sentence under the KSG, you can at least argue for a departure. Sadly, that doesn't mean the court has to depart, only that you can ask and the court must listen.

Don't drink and drive. AT ALL!

Several years ago I decided to stop drinking completely. Not a beer. Not a glass of wine. Nada. Why? One too many clients who up until that one night of partying had never been in trouble, then made a single mistake of driving under the influence which led to a loss of his DL and the job that required it. I vividly recall the tearful consult. The client made really good money, as in 6-figures, and he was the sole financial provider. They had just bought a new home that carried with it a $2k per month house payment. They had another $1k in car payments, and lots of other bills people have when they live the upper-middle-class lifestyle. He was a salesman who had to have his DL. Without it he was unemployed and likely unemployable at his current income level.

He lost his license for 1 year. He lost his livelihood for much longer.

I've seen this play out a few times. While many of those cases ended up in acquittals on the criminal side, the DL suspension is a much different matter. In Kansas we can't even challenge the legality of the traffic stop anymore, just operation or attempted operation of the vehicle and reasonable grounds to believe someone is under the influence, followed by protocol issues.

These cases usually end with the question, "Was it worth it?" The answer is always "no." Kids get pulled out of private school. Spouses have to work outside the home. Houses get sold and households downsized. Sometimes bankruptcy follows if the family is overextended in the first place (and most American households are).

Why do I no longer imbibe in alcohol? "There but for the grace of God go I." I do not have a religious objection to drinking alcohol. Even Jesus turned the water into wine, and not the cheap box or bag-o-wine, but the good stuff. See John 4:46. But back then you walked where you needed to go, or rode a horse or donkey. Riding under the influence wasn't a crime. Such modes of transportation don't kill people, unless you fall off the back of your beast of burden head first. For me the decision was easy. I will not let my addictive personality torture my loved ones. If I lose my license, at best I will inconvenience my wife from 30 days to a year by forcing her to drive me where I need to go. At worse I run the risk of having my law license suspended for an extended period of time and, therefore, face a dramatic drop in income (as in to zero dollars).

In my youth I am sure I drove at times when I shouldn't have. Had my youth been lived today, I am equally sure the increased scrutiny of intoxicated drivers would have likely resulted in a traffic stop and perhaps a DUI charge. Seeing what I see on a daily basis, it is simply not worth it. I have never had a DUI. Yet I already know better than to drink at all and then drive. The cops smell alcohol emitting from totally sober people. One beer? Forget about it.

Do you want to ensure that you will get a DUI in your lifetime, now or later? Keep drinking socially and driving home afterwards, one beer, two beers, or more. You will be subjected to field tests and you will eventually be charged for DUI. Do you want to ensure that you will never punish your children for your poor choice to drive under the influence? If you drink even one beer, let someone else drive, or call a cab. Or don't drink any alcohol at all ever again.

Finally, the above applies doubly so if you've received a DUI already. No matter the amount of alcohol in your system, you will be suspended for a year. If you manage to win the DL hearing, you have a chance to get restricted DL privileges after 45 days of suspension only if your BAC was under .15. If you refuse, you're done for 2 years. Is it worth it? I think not. Drink a Coke or Pepsi, for goodness sake.

To reiterate, don't drink and drive. AT ALL!

Drugs found in 33% of drivers killed in traffic accidents

USA Today reports today that one third of drivers killed in traffic accidents have drugs or alcohol in their system. Frankly I am surprised the number isn't higher. Indeed, as a DUI defese attorney, every time I hear of an accident where people are injured or killed, my first thought is always, "which car had the drunk driver?" Follow up stories almost always confirm this intuition.

In summation, don't drink and drive, or dope and drive. It's not worth the risk to you or others.