15.May.2012 Debtor’s Prison Is Back

We Americans tend to judge other cultures by how they treat their less fortunate. Do the powerful take advantage of the vulnerable?  But when our gaze turns to our own country, are we really that much better? I believe we are — but we must remain vigilant. And a disturbing new trend in America brings to mind the dark times of a Charles Dickens novel.

Consider the saga of Lisa Lindsay, a breast cancer survivor, who ended up in jail for failure to pay a $280 medical bill that she was told she didn’t owe. Read the story here. Essentially, Lisa Lindsay was sent to debtor’s prison. And other Americans could easily find themselves in this frightening situation if we don’t rise against it.

The modern incarnation of debtor’s prison is this: it’s not the debt that lands you in jail…  it’s the unpaid cost of the creditor’s lawsuits that land you there. For Lisa Lindsay, collection fees  brought about her ‘contempt of court’ charges for non-payment.

This is allowable in a third of U.S. states – including Louisiana – and is tied directly to the financial institutions that are directly responsible for our current economic situation.

One of the most unique, humane and successful aspects of our American culture is our belief in redemption. Once upon a time, we didn’t view financial mistakes as a life sentence. We allowed people to repay what they could. They would then take a penalty – usually a hit to their credit rating – and then we, knowing it was best for the whole, allowed them to rejoin the game.

Unfortunately, before their irresponsible business practices brought about economic collapse, the aforementioned financial giants partnered with Congress to create legislation severely limiting a citizen’s ability to find debt relief. They made sure you couldn’t find relief for your mistakes then took billions of our money in bailout funds when they made their mistakes.

Do you see the irony here?

07.May.2012 Next for Gun-Happy Vitter: Approve Gay Marriage?

In the tradition of The Clear Skies Act, Senators David Vitter, R-La., and John Thune, R-S.D, have introduced legislation that appears to have little or nothing in common with its title. The “Respecting States’ Rights and Concealed Carry Reciprocity Act” intends to allow gun owners to carry concealed weapons from state to state. This is a very interesting and very bad proposition that tears at the line drawn by all sides. More

How does this ‘respecting States’ Rights’ proposition respect the rights of states that don’t allow concealed weapons? If you’re conservative you have to oppose this as a clear cut violation of States’ Rights. The whole theory at the core of “states’ rights” conservatism is that states get to decide on laws so long as they don’t infringe on a constitutional right. This is one of those areas that states get to decide.

And a progressive will call it what it is: an expansion of gun rights.

I’ve had some spirited debate over this on my Facebook site and have run into two trains of thought. One: “Guns need to be treated like a driver’s license. More people are killed every year in auto accidents than by guns.”  I’m not sure that this is the best argument since a driver’s license is considered a privilege rather than a right. And if we were to have as many guns on the streets as cars, and were using them as often, I think those numbers would turn around real fast.

Two: “The constitution guarantees my right to carry a concealed weapon.” All I can say is that’s a pretty broad reading of the Second Amendment, which says nothing about a right to carry a concealed weapon.

I don’t begrudge anyone the right to have a gun if they wish, but this law fails on multiple levels and from multiple ideological viewpoints in my opinion. I’m not sure Sen. Vitter really wants to start going down the road where we demand that all states be required to respect the laws of all other states. Ask him, for instance, if he would extend marriage status in Louisiana to two men married in Vermont if you really want to see him back off of that proposition real fast.

He should likewise back off of this one…it’s just a bad idea.

01.May.2012 Top Three Ways to Avoid Getting Arrested at Jazz Fest

UPDATE: This was originally posted two years ago, and again last year around Jazz Fest time. I feel like it is worth trotting out again with some updated information, most importantly to note that you will now likely receive a summons for Municipal Court for most minor offenses in lieu of arrest. You will probably still want to know the information, and get a lawyer involved to help however, so here goes…

There is no better way to ruin the best time of year in New Orleans than to spend a beautiful late-April or early-May afternoon and evening in jail instead of at the Fairgrounds. So here are my top 3 ways to avoid getting arrested at (and around) Jazz Fest, and some tips on what to do if it happens:

1. Watch what you put in your backpack. Remember, though it is only a cursory search, your bag will be searched before you enter the Fairgrounds. It seems to get more and more thorough each year, and plenty of people have had their day end real early when they tried to bring in something they should have thought twice about bringing (read: bong, for instance). More people get arrested trying to get in to the fest with contraband than get arrested once inside. Pack wisely.
2. Don’t be an ass. This is a two-way street, actually. Don’t be an ass (and I’m sure you wouldn’t) but just as importantly, don’t tell someone else they are being an ass. There are lots of written (and unwritten) rules about things not to do at the fest (like roping off space, blocking off too large of an area with an armada of chairs, popping open a giant beach umbrella and blocking everybody behind you, etc.). Most folk respect theses rules. But inevitably it happens right by you;  some giant d-bag decides to starts breaking all know codes of decency and reasonableness, and you feel compelled to call him on it, aggressively. Don’t. This can lead to fights (even if YOU are a lover), and fighting will get you arrested at Jazz Fest faster than anything.
3. Finally, remember that after you leave the fest, you are in the City of New Orleans, where all usual laws apply - even to you, you enlightened guardian of the groove, grand master of the funky nation… weed was not legalized because Widespread Panic just blew your mind. Have fun, but stay in touch with reality.

So what do you do if this horrible fate befalls you? Stay calm. Freaking out will only make it worse. For general tips on how to handle being arrested,  see this page of my website. But read on for more Jazz Fest specifics:

1. You’ll need to get someone involved ASAP to help start the process of getting you out of jail. Make sure a friend or family member knows that you are being arrested if at all possible. The quicker they start working to help you get out, the faster you will be out.
2. Assuming you are arrested in Orleans Parish, your friends can get your booking information online at the OPCSO Website. This will show them what you hve been arrested for, what your bond is, and whether or not a release has been posted. If you don’t have this direct link, you can access this and other helpful links on this page of my website.
3. Once your friends know where you are, and what you are charged with, the need to get you out of jail on some kind of bond. You have three options for making bond:

• Post the full amount of bond with the court;
• Pay a non-refundable bail bond premium to a licensed Bail Bondsman;
• Contact an attorney to help secure a release on personal recognizance

You should be aware that if you are from out of town, chances are that you will not be able to use a bail bondsman to make bond, as most bail bondsmen consider out of town defendants to be too much of a risk of non-appearance in court. In such cases, be prepared to post the full amount of the bond, or contact an attorney. For more help with getting someone out of jail, see this page of my website, and for out of town defendants, check out this page.

24.Apr.2012 A Shocking Fact About New Orleans

Fact: The United States has the highest incarceration rate in the world. Source

Fact: Louisiana has the highest incarceration rate in the United States. Source

Fact: New Orleans has the highest incarceration rate in Louisiana. Source

The NOPD regales us with programs and statistics making plausible connections between bicycle theft and murder. They have told us that partnerships with neighborhood populations will help stop both the rampant violence and runaway recidivism that is a plague on their homes, all the while ignoring the herd of elephants in the room– nearly 40% of the prison population suffers from mental health issues.

A part of Louisiana’s $39 billion budget deficit includes a corrections department budget of $520 million. This department oversees 38,000 prisoners, the highest prison population in the world, a population that has doubled over the last 20 years while costs have tripled. At an average cost of $30,000 per prisoner and a recidivism rate of more than 50%, we need to rethink how our judicial system works, and how our money is being spent.

New Orleans, how can we change this shocking fact about our city, that we incarcerate more of our citizens than almost any other city in the world? Is prison the place for sex workers and pot smokers? Are drug and alcohol addiction reasons to lock someone away for a multi-decade sentence? Have we decided that rather than treat the mentally ill, it is more advantageous to warehouse them in the prison system – out of sight and out of mind?

I have advocated programs that focus on treatment as opposed to incarceration for drug offenders and the mentally ill. I think that for $30,000 per person per year we as a society have to be able to do something more productive than just put a man in a cage.

I also think our money is better spent finding ways to put non-violent offenders to work and giving them a chance to be useful, as opposed to locking them up and keeping them useless. For $30,000 a year we could fund a full time job at $10/hr. for the entire year and still have money left over.

It’s time to start thinking seriously about things like this. We have tried, no doubt very hard in the last few decades, but the case is becoming quite clear – we cannot jail our way out of the crime problem. Why don’t we try something else?

13.Apr.2012 FAQs About Getting Arrested in New Orleans

Photo by Ray Devlin via FLICKR Creative Commons

Amazing weather we are having and festival season has been so much fun, so far. Parades, live music, awesome food…  French Quarter Fest started Thursday (they added a day!), Crawfest is April 21, and a few weeks later we’re hosting Jazz Fest. Daiquiris in the sun and go-cups on the run…. I think it’s a good time to share with my readers some FAQs from my website, http://nolacriminallaw.com/

Good people sometimes find themselves in bad jams… it happens to the best of us. In my work, I encounter all kinds of people — professionals, college students, young and old — who have gotten into a little bit of trouble. I get calls (or text messages, a lot of times) from locals and and tourists alike who need to know how to get their friend out of jail.  And I can pretty much guarantee you that most everyone I’ve worked with is an upstanding person.

$#!+ happens.

So, here is my information if you need to reach me in a hurry — 504.237.5245 (cell) — and below are some simple answers to the questions I commonly get asked. You can visit the website for more in depth answers.

What do I do if I get arrested, or my friend gets arrested?
First off, the best advice I can give anyone is this: DON’T TALK TO LAW ENFORCEMENT. You will not be able to talk yourself out of getting arrested or taken to jail, and I promise, your statement will hurt your case.  Second, call a criminal attorney. It is important to get a qualified criminal defense attorney involved as soon as possible after arrest to help protect the your rights, as well as to help friends and loved ones navigate the complexities of post-arrest court proceedings and the procedures associated with posting bail. http://nolacriminallaw.com/

What is the penalty in Louisiana for a DWI?
The penalty for a first offense DUI/DWI is ten days to six months (maximum) in prison, plus a fine that will range from $300 to $1000. If this is your first offense, it is possible to avoid jail time, but, again, you need an attorney to help keep you out of jail. Call me on my cell phone (504.237.5425).

What will happen to me if I get caught with marijuana?
1st offense possession of marijuana is a misdemeanor — a crime for which the maximum possible punishment is incarceration for a maximum of six months. Possession of marijuana is usually handled by summons in New Orleans, which means you won’t be arrested, but will still have to appear in court. You will want to have a lawyer there with you. If you are from out of town, a lawyer can appear for you in your absence.

Can I get this off my record?
In order to have a misdemeanor conviction expunged, the Louisiana State law requires that an individual first have the conviction dismissed and set aside under the provisions of Louisiana Code of Criminal Procedure, Article 894. In order to take advantage of this provision, your attorney must, at the time of your sentencing for a misdemeanor conviction, move the sentencing judge to allow you conviction to be entered under Article 894.

Having a criminal attorney on your side is always going to make things easier when you get arrested. I am here to help you through a difficult time; to guide you through the often uncomfortable journey into (and out of) the criminal justice system. Visit my website at http://nolacriminallaw.com/ for more information.

28.Mar.2012 Murder by Any Other Name: Trayvon Martin and the Law that Killed Him

Supporters of Trayvon Martin rally in Union Square during a "Million Hoodie March" in Manhattan on March 21.

Does it sometimes seem that as a society we’ve given up? That we’ve given up on the idea of the law, due process, and justice? Given in to fear and anger, and decided to institutionalize vigilante justice? The state of Florida seems to have abdicated its authority and bestowed upon its citizenry the right to prosecute and execute. They even gave this legislation a courageous sounding title: “Stand Your Ground.”

Passed in 2005, the law gives the right to use deadly force when confronted with the threat of violence. Unfortunately, it doesn’t fully define “threat of violence,” but it has tripled justifiable homicides in Florida since its passage.  Last year, twice a week there was a new “justifiable” homicide, justified by the statement of the living member of the altercation holding the weapon. This law “grants immunity from prosecution or arrest to suspects who successfully invoke the ‘stand your ground’ claim.” (Listen to NPR story) The law was even fine-tuned to allow immunity in civil suits.

Have we murdered common sense?

Most of us learned of the Stand Your Ground law due to the national attention of the Trayvon Martin case, where his assailant didn’t so much ‘stand his ground’ as stalk and shoot the teenaged boy who was armed with only a cell phone and a bag of Skittles.

Here are some other killings defended by the Stand Your Ground law:

• Reynaldo Munoz was killed by a shotgun-wielding 14 year-old Jack Davis and his mother Yasmin, who stated Munoz was stealing their jet ski. Miami New Times
• Greyston Garcia chased down a unarmed man  suspected of trying to steal his truck radio and stabbed him to death.  Miami Herald

What do any of these cases have to do with self-defense?

As a criminal defense attorney, I propose that it is important to have strong self-defense laws that allow individuals who are forced to commit violent acts to defend themselves the opportunity to defend themselves in court. But those laws go too far when they allow needless violence to be willfully perpetrated and then defended retroactively as self defense. It’s time to take a look at these laws, and to find ways to send a message to folks who might be emboldened to exploit them for their own aggressively violent agendas.

It’s time to draw a bright line that killing Trayvon Martin is not self defense – never was, never will be, never should be.  And if a law could ever be interpreted by anyone to say otherwise, that law most certainly needs to be changed.

23.Mar.2012 Should NOLA.com Ban Anonymous Comments?

“Mencken1951…” “campstblue…” “legacyusa…” and “dramatis personae…” Will the real Sal Perricone please stand up?

We’ve all been riveted by the unfolding drama surrounding federal prosecutor Sal Perricone, who resigned this week from his post with the U.S. Attorney’s office. Perricone has publicly admitted that he is Mencken195, notorious and lofty commenter who has regularly blasted landfill owner Fred Heebe and a host of federal judges, prosecutors, police and other public figures on nola.com’s comments section.

Now stories abound that he might have been using several other handles, including “campstblue” who said back in 2009: ” “For all of you who have a penchant for firearms and how they work, Ray Nagin lives on Park Island.”

Sordid stuff, and a terrible blow for the integrity of U.S. Attorney Jim Letten’s office.  The worst of it — besides Perricone’s arrogance (he was making many of these comments during work hours) — is that this is going to cause huge quagmires in the courts.  Perricone was using his alter egos to post inflammatory remarks on widespread issues, including pending federal probes. Investigations will show whether or not he leaked grand jury material or other confidential information.

So I have to ask the question: is it time for NOLA.com to do away with accommodating anonymous comments?

Not just because of  Sal Perricone’s irresponsible and inflammatory posting, but because of all of the venom-spewing flamethrowers who populate the nola.com forums, hiding behind secret aliases. The nola.com comments section is a breeding ground for racist and bigoted hate speech — I don’t think anyone could deny that. Yet, none of these crazy posters are held accountable for what they say. (Except maybe, soon, one federal prosecutor?)

Earlier this year, WWL switched its comments format to one that requires users to login using their Facebook accounts. In the announcement, they said, “”Many news websites, including the Los Angeles Times and the 41 Business Journal newspapers nationwide, have switched to using Facebook Comments in an effort to address complaints about bad commenting behavior resulting from the previous policy of permitting anonymous comments on stories.”

There are many places on the web where people can gather and can post anonymously, using alter egos. But maybe NOLA.com, the online arm of our venerable Times Picayune newspaper, should no longer be such a place. NOLA.com should be reporting the news, not starring in it.

NOLA.com would be taking a big step in promoting a more civil culture in our local online community by making the change to Facebook-associated user profiles a requirement (they already have the functionality set as an option). What do you think? Would you feel comfortable speaking your mind if your good name was on the line?

14.Mar.2012 Shocker: Football is a Hitting Sport

Is the NFL too violent? Depends on who you ask. I imagine that if you asked the record numbers of fans who follow the sport (and consider it a wholesome, all-American family activity), they would answer, “No.” Ask Eldon L. Ham and the answer would be “criminally violent.”

In his op-ed piece in the New York Times he calls for state legislatures to adopt laws “defining and criminalizing something we can call ‘flagrant sports battery.’”

This call for sports teams to include municipal courts into their home and away schedules was precipitated by the coverage of the New Orleans Saints “bounty pool” currently scandalizing the nation. Ham has determined that the Saints defensive players have stepped over the line of competitive advantage and into the realm of criminal activity. “Those who participated in the Saints’ bounty pool should be prosecuted as well as fined or suspended,” wrote Ham.

Ham muddled his argument with this: “Had such behavior occurred in a school cafeteria or on the subway or in a dark alley, this is exactly what would happen. But because it was on television as part of a Sunday entertainment ritual, it may get a pass.”

Excuse me, but there are a lot of legal hits that occur on the football field that I wouldn’t accept in my child’s cafeteria. I would be the first one to call a cop if I was blindsided in a dark alley while headed to my car, but if it happens to Drew Brees on the field I’m not filling a legal brief. I’m blaming the left side of the O-line.

And guess what? The NFL knows better, too. (They ought to, marketing “best of” hits in highlight reels, week after week.) In fact, the NFL has said they have investigated and will punish Saints players and staff based on their improper pay-for-performance pool, rather than any criminal activity. This is the appropriate sanction.

Football is a hitting sport. Players constantly try and knock other players down for the competitive advantage. It is part of the game. All NFL players expect to be – and assume the risk of being – on both the giving and the receiving end of big hits.

Sure, players are prone to hyperbole when preparing for a big game. For the Saints (and I’ll bet my bottom dollar every other team in the NFL) this smack talk translated into steak dinners and cash pools — and the media has made it clear we should be shocked and outraged by this.

But, as the Wall Street Journal reported, a study of game film showed there weren’t that many knockout hits by the Saints in the time period in which they are accused of manufacturing “hospital hits.” Says the article, “A Wall Street Journal review of every regular- and postseason Saints game since 2009 makes clear what the NFL report didn’t: Seldom did a Saints-inflicted injury force an opponent to leave the field.”

Says Mr. Ham, “Video technology now gives courts the tools to intervene.” But guess what Ham? Video reviews during the seasons from 2009 to 2012 have shown, at no instance,  differentiation between the “customary hard hits, personal fouls or the normally accepted aggressive play that is part of the game” and your declared “vicious attacks meant to severely injure or paralyze.”

Thanks to video technology, when players cross the line it is obvious in an instant to NFL referees. That’s when a hit should be reviewed — in instant replay, by the league. Not three years later in a criminal court.

Let’s keep sports on the field and out of the courts.

05.Mar.2012 Adult in Every Way…

When you turn 18 you are expected to grow up. You are turned out into the adult world and you are expected to make your own way…. You have many choices.

Get a job — join the workforce and become a contributing member of society. Or go to college — higher education is calling.  Or you can join the military and fight for our country. Get married, have children, travel the world. Don’t forget to vote — you are now responsible for helping the rest of us choose the leadership for our nation.

You are now of the adult world, and we expect you to behave like one. And yes, you will be tried as an adult if you commit a crime.

Oh, but one thing… you are still just a kid! You can’t drink!

In this business of criminal law, I see a lot of clients who are classified as MIPs. Minors in possession. The 18-20 set, who get caught consuming alcohol. They are the easy arrest, after all. They are the bread and butter of my business, but I am telling you that this is nonsense.

We have created an entire class of criminals by setting what I see are arbitrary limitations on adults aged 18-20. Why have we categorized these three years of adulthood as “minor” in this one regard, when we expect 18-20 year-olds to be adults in every other way?

A few years ago, NPR did a story on underage drinking on college campus featuring John McCardell, former president of Middlebury College, a driving force behind a movement to change the drinking age back to 18.

“You know, the reality is that alcohol is a part of the lives of 18-, 19-, and 20-year-olds,” McCardell told NPR. “We can deny it, we can try to legislate it away, but in fact, it is a presence.”

We are not going to change the fact 18, 19, and 20 year-old adults are going to drink with their peers. It’s why my business continues to grow.

I bring all this up now because of a ridiculous ordinance that has been proposed to the New Orleans City Council by Councilwoman Jackie Clarkson, who just might be a little out of touch at 77 years old. Clarkson has suggested raising the admittance age to bars in New Orleans to 21 years old, which would mean that people we classify as adults in every other way no longer can see live music in the clubs of New Orleans. Read the student take in the Tulane Hullabaloo.

Clarkson’s proposal is a knee-jerk response to the spiraling violent crime rate in New Orleans. Her logic is that by banning 18, 19, and 20 year-old clubgoers from the clubs, underage drinking will cease, and all the bad people of the world will stay at home and off the streets.

I think it’s sticking our head in the sand to pretend that the New Orleans murder rate has any attachment to the patrons of nightclubs. MIPs are an easy ticket for cops, a good fundraiser for city coffers, and an easy scapegoat for crime rates. But c’mon, Jackie…. we’re going to have to work a little harder than that to effect true change on the violent crime rate of New Orleans.

28.Feb.2012 Serpas Hears the People

Lately NOPD Superintendent Ronal Serpas has been announcing and canceling so many programs that citizens of New Orleans have begun to question his leadership.

On 2/14/2012 Serpas announced that the NOPD would begin attaching saucer-sized bright orange stickers to houses they have searched for drugs, whether or not drugs were found or arrests were made. These searches would be executed would be made based on citizen tips through Crimestoppers. Serpas said the stickers would be visual proof that the NOPD was listening to the public’s complaints. Read the story in the Times Picayune.

The stickers read: “NOPD has served a narcotic-related warrant or checked this residence as a result of a Crimestoppers Hotline Citizens tip.”

On 2/15/2012 an NOPD spokesperson announced that the policy announced the day before was DOA due to a lack of public support.

Good.

It’s great that New Orleans citizens are speaking up, and making a difference. It’s great that our voices are being heard.

Just last month Serpas canceled another policy due to public opinion — the one where the NOPD published the criminal histories of murder victims in a press release. Kati Reckdal and others at the Times Picayune wrote about it, it went to the national press, I blogged about it, and hundreds of others tweeted their disgust with the policy.

And then Mike Ainsworth was shot and killed doing an heroic act, and crimes he committed decades ago — LSD and marijuana possession and distribution — were published in the obligatory press release.  God knows how many angry phone calls and letters the NOPD must have fielded after that.

Within days, Serpas reversed the policy. Read about it in The Lens.

In a nutshell: We here in New Orleans are screaming for real leadership to provide real solutions to our crime problem. Serpas heard us… and tried a few public relations tricks to appease us, collectively. He tried some very visible, very broad-stroked tactics to make it look like the NOPD are on it — but he’s learned that New Orleanianss can’t be placated like that. I am glad he’s listening to us.

Our next chorus might be to demand that Serpas hire more police. We’ll see how this all turns out over the next few months.