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Whether the topic is philosophical or a "thought of the day" on a particular legal issue, we'll explore our views here!!

By the folks at Betters Weinandt, Jan 8 2016 06:03PM

You’ve binged on Making A Murderer. You think you get it. You go online and either express your opinion or take in the opinions of others about Steven Avery’s guilt. But you still don’t get it - we still don’t get it. In fact it’s extremely difficult to “get it” unless you’ve also watched The Central Park Five, a 2012 Ken Burns documentary currently available on Netflix. Let me explain.

When an attorney attempts to use evidence of something that isn’t on point, that evidence is rejected as being “irrelevant.” Irrelevant evidence not only wastes time, but it can also distract someone from the actual fact that needs to be determined.

Consider: In determining whether Joe Schmoe stole a candy bar from a store, it is irrelevant that Joe Schmoe ran a stop sign on the way to the store. However, is it relevant if Joe Schmoe was convicted of stealing food from a friend the year before? Maybe. But would Joe Schmoe be convicted for what happened at the store (even if it wasn’t clear) based upon the disapproval of Joe Schmoe’s past? Maybe. The Point: The more sensational the “irrelevant” evidence, the more distracting it becomes.

Now, if you have a hard time talking about the systematic failings in Making A Murderer without feeling or saying, “yeah, but I know he did it,” or “there’s no way he did it,” then you have been duped by a classic example of being distracted by sensational irrelevant evidence. No offense, but you don’t get it – not yet. There’s a film that has received far less attention, but has nonetheless highlighted failings in our criminal justice system with far more clarity than Making A Murderer. You need to watch The Central Park Five.

90 minutes. The opening credits are hardly complete when you realize that in The Central Park Five, the accused didn’t do it. I’m not talking “not guilty beyond a reasonable doubt” – rather, it’s an accepted fact that they are innocent. Accordingly, you wont’ be distracted wondering “who dunnit?” You’ll have your sole focus on the failings of the system. In fact, compared to The Central Park Five, Making A Murderer is little more than a legal drama ending with a cliffhanger.

Be prepared. You won’t be thrilled with The Central Park Five like you were with Making A Murderer. Why? Because Making A Murderer distracted you from the depressing injustice sometimes perpetrated by our criminal justice system with the question of Avery’s guilt. You will have no such distraction in The Central Park Five. There is no cliffhanger. You will simply be left pondering what to tell your children.

Peace.

By the folks at Betters Weinandt, Jan 5 2016 08:22PM

The holidays have once again come and gone. This year I engaged in what can only be referred to as “binging.” However, unlike the classic binging that involves eating sweets and treats until my pant button quakes, this year my binging took a different form – Netflix. I had heard about the “Making a Murderer” documentary on Netflix, and when I initially decided to take a look (at about 5:00 p.m. on a quiet night), I had no idea that I would be crawling to my bed at 3:00 a.m. with bloodshot eyes and a head full of questions.

If you are familiar with “Making a Murderer,” than you are no doubt aware of the firestorm of online commentary it has garnished – mostly by spectators with little to no knowledge of the case beyond what was presented in the Netflix documentary, and perhaps with some “rebuttal” commentary (supportive of the prosecution) that has surfaced since the show was released in late 2015.

If you haven’t watched “Making a Murderer,” you should. After taking it in, you may be distracted with the question of the guilt or innocence of those accused of the crimes. But the primary issue of the documentary is not whether the defendants are guilty. Rather, the question that lingers far beyond the scope of the specific crime addressed in “Making a Murderer” is this: Is our criminal justice system broken?

Be they a judge, attorney, defendant, or other participant, anyone who has had intimate dealings with the criminal justice system has pondered whether the system is broken. After all, attorneys and judges quietly understand that individuals are convicted of crimes they did not commit on a daily basis – and individuals are also acquitted of crimes they did in fact commit. Suffice it to say that with rare exception, these cases do not attract attention from documentary filmmakers.

Nonetheless, although individuals are regularly convicted of crimes they did not commit, the vast majority of individuals convicted of crimes in our system are in fact guilty. As a result, our system functions everyday with the hope that a reasonable (although admittedly imperfect) balance has been struck between these two undeniable truths: Some are convicted although they did not commit the crime, but most of those convicted did in fact commit the crime. So does that mean the system is broken?

In the aftermath of “Making a Murderer,” I had the opportunity to listen to an interview of one of the primary attorneys from the show, Dean Strang. One of the questions posed to him was “is our system broken?” Mr. Strang explained that, to the degree that all human undertakings are “broken,” our criminal justice system should similarly be considered broken – a premise that I believe most would accept as accurate, myself included.

But in that moment, the following question came to me: Would the Wright Brothers have considered their initial unsuccessful machines to have been “broken” merely because they did not achieve that which was the goal (controlled fixed-wing flight)? The answer is unequivocally “no.” In fact, in order for a machine to be “broken,” the machine must first have worked as intended – otherwise the machine is merely a work in progress. To the same extent, our criminal justice system must be viewed as a work in progress rather than a system that worked but is now broken.

Now, the Wright Brothers had an easily identified goal: if the machine flew, it worked. As it pertains to our criminal justice system, it is important to understand that the “goal” of the criminal justice system differs depending on whom you ask. Some would say that the goal is the illusive quest for perfection in determining truth. Some would say that the goal of our system is the pragmatic hope of trying to be fair, regardless of who the defendant may be.

Alas, quit asking if our system is broken. The system is incomplete and hasn’t yet had the opportunity to be broken. Rather, ask yourself if we are adequately dedicated to the ongoing commitment to assist, nurture, and help this “work in progress” to achieve that which it is so intended to achieve. If we lose this ongoing dedication, than the system isn’t broken – it simply isn’t working and never will work.

To be clear, this dedication is messy. It requires us to hold accountable all of those involved in our system - attorneys, judges, defendants, and law enforcement alike. It requires us to admit our own insecurities and explore the reality that we too often claim to know something that we do not know simply to make ourselves feel better – a mental self-preservation if you will. It requires us to admit that as a society we are capable of committing unfathomable atrocities while ignoring it because facing our atrocities is horribly inconvenient. It requires us to accept that as a society, we find such entertainment in assault, rape, and murder, that we easily sacrifice truth if it allows us to perpetuate a more exhilarating fictional narrative. Ultimately, recognizing or questioning our prejudice is not enough – we must actively and aggressively engage and conquer our prejudice as we would approach our most threatening enemies.

In the meantime, I want to share a paraphrase of a comment from Dean Strang that truly resonated with me. Justice is not so much a commitment to determining the truth. Rather, Justice is the unwavering commitment to principles of fairness to be used when faced with uncertainty, regardless of how unpleasant you may find the defendant.

How committed are you to applying principles of fairness to those who you most loathe?

Peace.

By the folks at Betters Weinandt, Dec 11 2014 08:24PM

Expungement. If you have a criminal record, you’ve probably heard this term. Basically, to “expunge” means to “seal” a criminal record, making it unavailable to the public (including employers performing background checks). Employers typically conduct background checks using records from the Bureau of Criminal Apprehension (BCA). Several years ago, the law in Minnesota made it impossible for the court to order the BCA to seal convictions. Therefore, no matter how much your life had changed since your conviction, your employer was still able to hold your past conviction against you.

But now there’s hope…

Effective January 1, 2015, under the new Minnesota law, expungement of ALL government criminal records is now available to qualifying individuals who were convicted (or admitted guilty in anyway). This is a radical shift in the law and if you have a criminal conviction that is interfering with your ability to obtain meaningful employment, you need to talk to an attorney. This means that not only will the judicial records be sealed, but also the BCA records that are generally relied upon by employers. There’s a reason why this new law is referred to as the “Second Chance” law and you may very well be eligible to get help.

BOTTOM LINE: Even if you have been told in the past that you cannot expunge your criminal records, this is worth a fresh look.

By the folks at Betters Weinandt, Dec 4 2014 03:34PM

Getting Started:

In Minnesota, calculating child support requires a determination of the income of BOTH parents, regardless of which parent pays or receives child support. Calculating child support for a parent that is self-employed is far more complicated than simply using the paystubs that may suffice for the traditionally employed parent. The information you need includes AT LEAST the following: 1) tax returns with all attachments and schedules; 2) reliable documentation of gross receipts for the business; 3) reliable documentation of the costs of goods sold; 4) documentation of business related expenses claimed; 4) detailed income and balance sheet statements for the business; 5) knowledge about who is responsible for putting together the financial statements for the business (particularly the income statement and the balance sheet); and 6) documentation sufficient to identify what particular expenses are claimed - as compared to summary documentation that might simply state "utilities = $3,750." A family law attorney will be required in order to properly use the documentation to assess what income should be used for the self-employed parent. In more complex cases, it would be wise to obtain the assistance of an accountant in order to have expert feedback on what expenses are being claimed and how they are being claimed.

Taxable Income vs. Child Support Income:

Tax returns (including all attachments, such as W-2's, 1099's, Schedule C's, etc.) are essential in properly determining the income of a self-employed parent. However, the tax return is NOT the determining factor of income because there are deductions allowed by the IRS that are NOT allowed for the purposes of calculating income for child support. The most common example of income that may not be easily identified on a tax return but still needs to be ADDED back into the self-employed parent's income for child support consists of "in kind benefits" that actually REDUCE necessary personal living expenses for the self-employed parent. For example, if the self-employed parent has a car in the name of the business, but no personal vehicle, then that "benefit" needs to be assigned a dollar amount and then added into the self-employed parent's income.

Getting Reliable Determinations:

When a parent is self-employed at a very small business (perhaps they are the sole employee or worker of the business), it is common that the self-employed parent is also the one assembling the "books" and other numbers necessary to calculate child support income. Often these parents may have a special skill that helps them at their business, but they may be untrained or unorganized in the area of bookkeeping. The reality is that this may require more legal work and expense in order to adequately determine accurate numbers. This extra effort may include depositions to question the parent about expenses claimed, or hiring an accountant to review the parent's business books. In the end, you will want to consult with a family law attorney to get a fair idea of whether or not the child support income is adequately reliable.

Final Process:

There are several pitfalls and potential errors that can occur in calculating income of the self-employed parent. In the end, the process is relatively simple to summarize. Start with the gross receipts, then subtract the costs of goods as well as the reasonable and necessary business expenses. However, although this is easy to summarize in a sentence, it is wise to retain counsel to make sure this "easy" process is done correctly.

This is all harder than it looks... Peace!

By the folks at Betters Weinandt, Dec 3 2014 03:40AM

And so we find the Smiths. Adored by many the world over, the Smiths were known for their vast wealth, which was on display for all to see at their breathtaking mansion.

Curiously, there existed a unique “geological treasure” (so claimed by the “Wall-Drug-like billboards) in the front yard of the Smiths’ mansion that often was the primary draw for the visitors who traveled near and far. This “geological treasure” was a patch of land that allegedly defied the laws of physics. Specifically, the patch of land not only seeped clean water up to the surface (no matter how dry the season), but to the complete bewilderment of the science community, the seeping water froze to ice upon the patch of land, no matter how hot the weather. The result was a beautiful display of deep-blue ice that would defy the summer’s heat looking like nature’s ice rink right there in the Smiths’ front yard. Naturally, people traveled from near and far to observe the beautiful phenomenon. (More inquiring minds would have surmised that the Smiths industrial strength ice compressor, poorly hidden behind a small chain-link fence, clearly explained the ice, but that would be much less entertaining!).

Realizing the massive financial potential of the millions of visitors, the Smiths charged a nominal sum for the privilege of seeing the mansion and the ice “phenomenon” created and maintained by the Smiths.

Here’s where things get tricky. Each year, many traveled to see the ice treasure and venture onto the ice. Although the danger of slipping and falling was easily identified with minimal common sense, the Smiths still placed a small sign warning of the obvious danger of falling on slippery ice.

However, not so obvious was the danger of falling through the ice and drowning. In fact, it was a rare visitor (if any) who could have possibly appreciated or understood that falling through the ice and drowning was a risk at all, given that the area appeared to be more like an “ice rink” than anything that would have had depths of ice-cold water more than 10 feet deep.

The Smiths illogically rationalized the risky depths. Although year after year, a few unsuspecting visitors fell through the ice, the Smiths insisted that the holes should not, and could not be filled because many of the visitors came to try their hand at “ice fishing” and filling in the deep hole would ruin this portion of their business. Oddly, the Smiths actually knew the opposite to be true – they had conducted their own business studies and found that the visitors were there to see and walk on the ice, but not to ice fish. Yet year after year, when people drowned falling through the ice, the Smiths successfully and secretly avoided liability – after all, when you walk on ice, you risk injury – what jury would believe otherwise?

And so we find Edna. Edna, at the wise age of 79, traveled with her two sons to see the Smiths’ mysterious ice – maybe even walk on the spectacle! Just like the other visitors, Edna had never heard of the danger of falling through the ice. Also like the other visitors, Edna saw the sign warning of the obvious danger of slipping on the ice, so she assumed that walking on the ice wasn’t all that uncommon (and likely reasonably safe if one took the proper precautions). So, Edna with the strong assistance of her sons stepped out onto the ice (perhaps to relive her younger days). She wanted to be extra careful, so she wore an old hockey helmet to protect against head trauma if her sons lost their grip. It was then that Edna’s tragedy began. Before she completely understood the sound of the ice cracking below her, Edna found herself over her head in freezing water frantically fighting for her life as her lungs bit in pain as water filled the space where only air was meant to thrive. Her sons watched horrified – suddenly going into rescue mode while shock reared its ugly head.

Edna survived. Her legs did not. She was permanently disfigured and even permanently shamed – how could she have been so stupid so as to risk the injury of walking on this icy patch? She was a double amputee and she felt horribly stupid – preferring to not talk about the ordeal, much less have it publicized.

Notwithstanding her shame, Edna sought financial payment from the Smiths for her medical bills incurred. Edna’s theory was that, although she might be partially to blame for going on the ice, the Smiths should have warned her that the “ice-rink-looking” patch in the front yard actually had hidden thin patches of ice which could lead to serious injury or death when the ice cracked – and the Smiths knew because they had convinced numerous prior victims to “go away” because few could afford to litigate against the Smiths’ high powered legal team. Although Edna could have sued for far more, Edna only sought the $15,000 in medical bills that she had to pay out of her own pocket.

The Smiths offered Edna $600 and told her she was a fool – she should have known better (doesn’t everyone?). Edna decided she needed legal counsel and hired an attorney. But even with the attorney, the Smiths wouldn’t budge – so, the case went to trial. The jury was appalled.

The jury saw that the obvious danger of walking on ice in someone’s front yard is completely different than a “sink hole” that no one knew about (except the Smiths). The jury lashed out at the Smiths for their fabricated reason for refusing to fill in the holes after hearing the evidence showing the Smiths knew nobody ice-fished at the attraction and that several others had lost their lives or had been seriously injured – yet the Smiths refused to fill in the hole.

The jury awarded $150,000 in medical damages, but the jury really went after the Smiths to punish them, awarding $2.7 million in punitive damages (which turns out was the equivalent of only one week of profit typically generated by the amazing ice attraction). The next day the paper read “Women Gets Millions For Falling On Obvious Ice.” What the paper didn’t explain is that the jury award was reduced by the judge to about $500,000. Then, before the Smiths paid the amount awarded, Edna reached a confidential agreement with the Smiths to pay some undisclosed amount, otherwise the Smiths would have dragged the case through countless appeals, which the Smiths could afford, but Edna would likely not survive. No one knows the terms of the settlement.

If you read this story and find yourself upset at the Smiths, then you have taken the first step towards undoing the false information so often perpetuated about the McDonald’s Coffee case. The next step is to do your own research about the real facts of the McDonald’s coffee case in order to fully understand how analogous the Smiths and Edna are to McDonald’s and Ms. Liebeck. Peace!

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