Mr. M's Blog

Sueing in civil court from criminal acts & Prosecutorial Discretion

2012-05-25T22:40:58Z

Suing in civil court from criminal acts and prosecutorial discretion.

Prosecutorial Discretion

I never see prosecutorial discretion come up on TV Shows or movies. If it has, I missed it. Prosecutorial discretion just means that I could walk out of a bank with a gun, a bag full of money, get into a get-away car and the prosecutor could say, "Eh, so what?" and not charge me at all. True, but not likely. If it is an elected Prosecutor--many are--they would never get reelected if they let bank-robbers go, but yes, legally they could do it. But prosecutors can also be very aggresive if they want to. In the Casey Anthony trial, I think most of America thinks she is guilty or was at least heavily involved. The State Attorney of Florida (the prosecutor) went for a first degree murder charge. I cannot remember if she was offered any plea bargain--probably not. So, in a situation like this, you have to go to trial because the prosecutor is not giving you a choice. My point is that the State Attorney could have gone for second degree murder, third degree murder, or manslaughter, which is easier to prove. First degree capital murder is not supposed to be easy to prove. That is why only the most experienced and senior prosecutors will try those types of cases. The point is that with prosecutorial discretion, some prosecutors in State or Federal Court are more aggressive than others.

Suing in civil court from criminal acts

Sometimes prosecutors decide not to sue (file criminal charges) somone and you want them to. This is because some prosecutors offices prefer to prosecute certain types of crimes and other prosecutors offices prefer to prosecute other types of crimes. One office may be big on prosecuting street crimes, but not big on white-collar crimes. One office may be big on prosecuting cocaine, but not marijuana. All prosecutors offices will prosecute alleged drunk drivers--all of them. The reasons for this selective prosecution could be the budget, public opinion, pressure from the media, pressue from voters, pressure from the head prosecutor like the Attorney General for the State of Florida, the Attorney General for the Commonwealth of Kentucky, or maybe the U.S. Attorney General when in Federal Court. Or, it could be a pet-peeve of the prosecutor that runs that particular district, circuit, county, branch, division . . .whatever. If a prosecutor will not file charges against somone, and you have been "harmed" physically, mentally, monetarily, most all states and jurisdictions permit you to "take the law in your own hands"--no, not like that--by suing somone in civil court. I will use the Florida and Kentucky and Kentucky statutes because that is where I am licensed for now.

Florida

In Florida the relevant statutes are Chapters 772.101 and 772.102

Kentucky

In Kentucky, the relevant statutes are Chapters 431.080 and 431.082 I hope suing in civil court from criminal acts is something new and that you can use, if necessary. But use it wisely and carefully as you cannot sue someone for fun or to get even or to teach them a lesson. There are claims called, malicious prosecution, vexatious litigation, and abuse of process that could then be used against you. Always consult with an attorney.

Hearsay evidence rule helps motion to suppress evidence

2012-03-10T01:31:48Z

Traffic Stops

Traffic Stops lead to traffic tickets, searches, seizures, arrests, jail, criminal charges . . .everything. The rule against hearsay evidence being used in a fellow officer rule case was announced in State v. Bowers. More on this soon.

The Fellow Officer Rule

    To understand how the hersay evidence rule Ch. 90.801 Hearsay Rule helps a motion to suppress evidence, we first have to make sense of the fellow officer rule. Because normally, the fellow officer rule would have let this evidence in and the motion to suppress would not have worked. The fellow officer rule allows one officer to get out of needing to have personal knowledge Ch. 90.604 Personal Knowledge.
    A normal witness is supposed to have personal knowledge, but not a police in the fellow officer rule. With police, if there is a chain of evidence from other police officers that would allow the officer to come up with probable cause, then the police officer does not have to have personal knowledge. The police officer does not even have to have every "link" in the chain to come up with his own probable cause.
    For example, in the Bowers case, the second police who came along later to see if Ms. Bowers was drunk and who probably give her a field sobriety test could come up with his own probable cause to arrest her for drunk driving DUI, but he still does not have personal knowledge of why the first police officer pulled her over in the first place under the 4th Amendment.
    So when the first police officer did not come to the motion to supress hearing, and the second police officer at the hearing tried to say what the first police officer said OR what Ms. Bowers said to the first police officer, it would be hearsay. One of the things the 6th Amendment deals with is the confrontation clause and is basically the reason behind the hearsay rule. The person accusing you of a crime has to come forward, not someone else for him.

Hearsay

    Hearsay is tricky, tricky, tricky. . . the hearsay rule is difficult, all the exclusions are difficult, all the exceptions are difficult, and knowing which parts of it to use and when is even more difficult. A very basic way to look at it is that you cannot say in a trial or deposition what you said in the past, AND you cannot say in a trial or deposition what someone else said in the past. Easy enough. But you cannot repeat things if it goes to the truth of the matter asserted. If you are saying these things for some other reason, then it is not hearsay. Huh?

    So in this Bowers case, if the police officer was on the witness stand and the state attorney (prosector) asks him, "Why did you take Ms. Bowers to the hospital?" [defense objects, everyone goes sidebar] and the officer says, "Because she told me she was very sick." The judge would more likely allow this because the state attorney was trying to show that Ms. Bowers was sick Ch. 90.803(3) Exception for Existing Mental Emotional or Physical Condition and needed to go to the hospital.

    Here is the difference . . .ready? If the state attorney asked, "How did you know that Ms. Bowers is a damn drunk driver and had been drinking too much?" [defense objects, everyone goes sidebar] and the officer says, "Because she told me she was very sick." In this second question the prosecutor was trying to prove Ms. Bowers was drunk because she was sick and that she was sick becasue she was drunk. In the first question the prosecutor was trying to show why the officer took her to the hospital.

Police can question or interrogate underage minors

2012-03-05T01:49:28Z

Police can question or interrogate underage persons or minors.

Police can quesion underage minors without the parents, grandparents, or legal guardians being present there with the minor, juvenile, or underage person. It is up to the defense attorney to show that the the suspect was in custody, did not feel free to leave, and was basically bullied, tricked, or scared into a confession.

The right to remain silent

There are a few tests that a court uses to decided if someone--even an underage minor--gave up their right to remain silent.

Whether the suspect was in custody

This test asks what were the circumstances of the questioning and whether or not the person would have felt free to leave. All of these are based on the facts of the case. If the person was in a police station handcuffed to a chair in a room, then yes they were in custody. But if the person had been given a traffic ticket by the police officer and the police officer kept asking questions, a court may say that the suspect should have known he was free to leave, even thought most people would not feel free to leave.

Totality of the circumstances

This is the first test that a court to use, which basically means that under the circumstances of the police questioning or interrogation "was the suspects will overborne?" If someone was questioned for 8 hours straight in a small room with bright lights with no food for water, and was refused a phone call to a attorney, then the suspect's will was probably overborne.

Knowingly, Voluntarily, and Intelligently

This is another important test the courts use. If a suspect did waive (give up) his or her right to remain silent; gave up (waived right) to an attorney; and agreed to answer questions wss it knowingly, voluntarily, and intellgently? That again depends on the circumstances. If the person was intoxicated, very young, mentally ill, the police lied a lot, beat them up, made a lot of false promises, tricked the suspect into signing a confession, threatened to harm the suspect financially, physically, or the the suspect's family, then the confession may have been coerced instead of knowingly, voluntarily, or intelligently

Rabbi pleads guilty to wire and mail fraud?

2012-02-21T20:20:19Z

New York Times Article

Rabbi Menachem Youlos, a bookstore owner who described himself as a Jewish "Indiana Jones" plead guilty to mail and wire fraud in the New York City Federal Courthouse. His scheme involved convincing people that he was traveling the world--particularly in Europe and in Israel--to find ancient Torah's (the Old Testament) that were lost during the holocaust.

He created a foundation called, "Save a Torah" wherein he would sell Torahs, just not ancient Torahs, and just not recovered from personal exploration into exotic and dangerous places like Harrison Ford's character did in the 4 Indiana Jones movies.

An investigation discovered that Rabbi Youlos had never been beaten or captured either as he claimed. Menachem Z. Rosensaft, and adjunct professor at Cornell Law School and General Counsel of the World Jewish Congress began doubting Rabbi Youlos stories when Rabbi Youlos claimed that he even fell through the floor of a German barracks at Bergen-Belsen, which was a concentration camp in Germany in WWII. Mr. Rosensaft knew from his parents that Bergen-Belsen was burned down by the British.

At sentencing, the Judge impersonated Indian Jones and told the Rabbi, "Snakes . . .I hate snakes . . .." The judge did not say that.

South Florida Law Enforcement cracks down on "Pill Mills"

2012-02-21T19:05:49Z

USA Today Article

South Florida is a popular place for dealers and drug traffickers to come to all the way from my home state of Kentucky and surrounding states because there are so many "pain clinics" here to buy Xanex, Methadone, Hydro Codone, Oxycodone, etc.. I said "pain clinics" because they are not really treating people for pain. It is more like an mutual understanding that a patient pretends to be in pain, when the doctor knows that the patient is not really in pain, and the doctor knows that the patient is not in pain and the patient knows that the doctors knows that the patient is not in pain. It is really just a drug deal. The sad part is that some patients really are in pain, but they are giving the other patients a bad name. Perhaps some of these doctors really are concerned about their patients health and well-being, but maybe they are just overeducated and over trained dealers.

I hold the doctors more accountable because they have a duty to help provide a better quality of life for their patients. I had a client whom I believe was run through the system and prosecuted for DUI. My client may have been drinking and driving, but I think his bigger problem was pain pills. My big problem was why is the prosector after my client and no the pain clinic? My client is a result of a problem, not the source of the problem. The pain clinic was the source of his problem. I honestly believe that if the local government had shut down the pain clinic, then the local law enforcement would not have anyone to prosecute.

That case always haunts me becuse my client was so out of it that he said some awful things to the police officer who arrested him (spontaneous statements 90.803(1) and statements of then-existing mental, emotional, or physical condition 90.803(3) are admissible evidence). Not awful things about the police officer, but just awful things in general right into the video camera. I don't think my client was in the right state of mind, when he said those things. Those facing criminal charges should also be aware of DRE's, which stands for Drug Recognition Experts. These are police officer with special training who look for things like "the shakes", jittery behavior, nervousness, hyper-verbal, or just the opposite: overly relaxed, slurred speech, lethargic, overly relaxed, pupils, eye movement, etc.

Federal Reserve Governor Raskin, "penalize the banks"

2012-02-07T20:23:16Z

Reuters Article

More Relief from Making Home Affordable--must be current

2012-02-07T19:45:55Z

The new Federal Housing Finance Agency regulates Freddie Mac, Fannie Mae and 12 Federal Home Loan Banks. FHFA

This improved HARP program will continue to be available to borrowers with loans sold to the Enterprises on or
before May 31, 2009 with current loan-to-value (LTV) ratios above 80 percent. The enterprises are Freddie Mac and Fannie Mae. Here is FHFA News Release (pdf)

Some Highlights:

You must be current on your mortage or have only been late once in the last 12 months.

The new program enhancements address several other key aspects of HARP including:
 Eliminating certain risk-based fees for borrowers who refinance into shorter-term
mortgages and lowering fees for other borrowers;
 Removing the current 125 percent LTV ceiling for fixed-rate mortgages backed by
Fannie Mae and Freddie Mac;
 Waiving certain representations and warranties that lenders commit to in making loans
owned or guaranteed by Fannie Mae and Freddie Mac;
 Eliminating the need for a new property appraisal where there is a reliable AVM
(automated valuation model) estimate provided by the Enterprises; and
 Extending the end date for HARP until Dec. 31, 2013 for loans originally sold to the
Enterprises on or before May 31, 2009.

Were you in foreclosure from Jan. 1, 2009-Dec. 31, 2010.

2012-02-07T19:25:26Z

If you were in foreclosure during this time frame--an actual lawsuit had been filed against your property you are encouraged to vistit Possible Remedies Fed Government agreement with Loan Servicers. I actually discovered this form the Washington Post. Washington Post Article. The Federal Reserve Board of Governors and the Office of the Comptroller of Currency (OCC) have authorized this independent review and have hired and outside consulting firm.

Deadline is April 30, 2012 and you must have had one of these loan servicers.

America’s Servicing Co.
Aurora Loan Services
BAC Home Loans Servicing
Bank of America
Beneficial
Chase
Citibank
CitiFinancial
CitiMortgage
Countrywide
EMC
EverBank/EverHome Mortgage Company
Financial Freedom
GMAC Mortgage
HFC
HSBC
IndyMac Mortgage Services
MetLife Bank
National City Mortgage
PNC Mortgage
Sovereign Bank
SunTrust Mortgage
U.S. Bank
Wachovia Mortgage
Washington Mutual (WaMu)
Wells Fargo Bank, N.A.
Wilshire Credit Corporation

Mass. Attorney General Sues 5 National Banks

2012-02-07T19:09:04Z

This is from the Massachusetts Attorney General's Website. The Attorney General is Martha Coakley who is suing JP Morgan Chase, Citibank, Wells Fargo, Bank of America, GMAC Mortgage.
From MA Atty. Gen. Website with audio

US Supreme Court says No GPS tracking.

2012-02-06T17:31:30Z

It is pretty rare to get a unanimous decision from the US Supereme Court--but they did it. In United States v. Jones, law enforcement put a GPS tracking device on the car of Jones's wife in the hopes of catching him dealing drugs. Well, they caught him dealing drugs, but too bad. The US Supreme Court said that you have to have warrant and that your warrant was invalid because the judge said the GPS has to be put on the vehicle within 10 days in Washington, D.C. The GPS was put on the car in 11 days outside of Washinton D.C. The Federal Government's argument was that they can track you whever they want . . .huh?

US v. Jones

Woman's Breasts too Large to do Field Sobrety Test--Worth a shot.

2012-02-06T16:55:08Z

A woman was arrested in Martin County Florida Large Breasts Story from ABC of West Palm Beach and refused to take a field sobriety test because she said her breasts were too large and she would not be able to keep her balance. I think it is a legitimate defense.

I'm not saying a jury would buy maybe it does make it hard to keep your balance. You don't see ballerinas or olympic gymnastics or ice skaters with large breasts . . .or professional tennis players, or divers, or soccer players. . .in fact I cannot think of one female professional athlete in a sport that requires a lot of balace who has large breasts and is very good at what she does. How many ladies on Dancing with the Stars do you see with DD cup size. I'm not joking ladies, I'm taking your side. Tell me if they have large breasts and if you think they could do what they do if the DID have large breasts. Here is a list:

Kerri Strug--1996 Olympics. Remember she broke her ankle and did the vault anyway?
Serena Williams--I can't list all of her awards.
Cynthia Cooper--won gold in Seoul Korea in 1988 and did not start playing for the WNBA until she was 34.
Hope Solo--US Olympic soccer goalie and dancing with stars finalist.
Shawn Johnson--US Olympic gymnast and winner of dancing with the stars.
Kristi Yamaguchi--US Olympic Ice Skater and winner of dancing with stars.

22 Million dollars. Man in solitary confinement for 2 years.

2012-02-06T16:15:07Z

Ok I have not looked to see what this guy did to get himself in jail and I don't really care--oh, after rereading the article, it was driving intoxicated and receiving a stolen vehicle. Many Americans were prisoners of war and were captured by the enemy--enter John McCain. They were held in solitary confinement becasue they were prisoners of war, not as US Citizens in the United States. Sad. ABC Channel 25 West Palm Beach

TSA says they "escorted" Senator Rand Paul, not "detained"

2012-02-06T15:39:20Z

I like U.S. Senatory Rand Paul of Kentucky. I just wish I could tell if he stood up to TSA because he believes in the 4th Amendment or because he does not like the TSA--in which case I would guess he does not like the TSA becasuse he thinks it costs too much money.

Then again, I would be assuming he thinks like his dad, Ron Paul who has been jokingly called, "Dr. No" like the James Bond villian. He was called Dr. No becasue if asked to spend money on anything, he would always respond, "No", plus, he is a physician. I don't think TSA is a waste of money, but I get annoyed if I get stopped. Rand Paul said that in so many words that he believes that if somone does not want to be pat down, that they should be able to go through the scanner maching again. I agree. Some people don't like to be touch by other people for personal space or because the are germaphobes. MSN Story

Ex NY Detective gets probation for planting drugs on suspects.

2012-02-03T23:00:41Z

NY Times Article

I wonder what happened to the people he planted drugs on?

A little clarity please . .TARP, MHA, HAMP, HARP, HAFA, UP, HHF, 12 CFR SubCh. 1

2012-01-31T17:17:22Z

Here is a little primer, but you can skip to the acronmyms down below. This is a little explanation about Federal Law.

Federal Law (Statutes & Regulations) are a little confusing. First of all you, have to have a statute first, that allows the government to write a regulation. There are so many statutes and regulations, yet we are supposed to refer to them by the Title and Section only. That would be fine if there were not thousands of sections.

For example, 12 U.S.C means Title 12 of the United States Code, which covers Banks and Banking, but for its regulations, 12 C.F.R. means Code of Federal Regulations and its Title 12 also covers banks and banking. So, if someone says "Title 12", you have to ask, "Do you mean statute or regulation?"

The other thing is that is that a Title will have Parts, SubParts, Chapters, SubChapters, which would make it easier to find what you are looking for, but I suppose the citation would be too long. I suppose 24 CFR Sec. 203.500 ( a foreclosure defense) is easier to write than 24 CFR, Subtitle B, Chapter II, Subchapter B, Part 203, Subpart C, subjgrp, section 203.500. By the way, this is the section, then the paragraphs can be broken down into (a)(1) or (a)(1)(A), etc.

There are so many acronyms, I decided to write them all down for readers and for a little review for myself as I get so busy fighting for homeowners writing pleadings and writing acronyms that I sometimes forget what they stand for or worry that opposing counsel (bank or HOA's attorney) or the judge will not know or will have forgotten. I hope judges get with and stay familiar with these programs.

For example, I will write something like,"Plaintiff, through the TARP/MHA program, has acted in bad faith and has avoided making various home retention programs availabe to a homeowner such as: HAMP, HARP, HAFA, UP . . ." then I start wondering, "Will the judge know what I'm talking about if I just write HARP?"

Troubled Asset Relief Program
Making Home Affordable
Home Affordable Modification Program (most common program, wherein homeowner applies for modificaton) Most everyone has heard of this.
Home Affordable Refinance Program (payments must be current)
Home Affordable Foreclosure Alternatives (Deed-In-Lieu, short-sale)
Home Affordable Unemployment Program UP--I guess HAUP did not catch on.
Hardest Hit Fund (for areas of the country that have suffered from the most foreclosures) Like CA, Las Vegas, Florida, etc.

3rd District Court of Appeals (Miami) says Clerk can lose paperwork

2012-01-30T00:38:33Z

3rd DCA (Miami) says it's ok if the clerk lost the promissory note. This a pdf opinion.

I am over simplifying a little, but not much. I know folks out there who either have hired an attorney or are defending themselves pro se really watch this stuff closely.

To me, the 3rd DCA is saying it is ok that the the loan documents are lost in the "bowels" of the courthouse because . . . .the defendant did not object to the plaintiff substituting a party plaintiff.

Maybe I'm missing something here . . .but from reading this opinion, I don't know what not objecting to a party plaintiff substitution has to do with not having the proper loan documents (I'm not done--coming back to this). I guess the promissory note presented at trial was an "old" promissory note and mortgage along with the old Plaintiff. So, the plaintiff must have substituted the old plaintiff for the new plaintiff but the promissory note still had the old plaintiff. . .

Anyway it does not matter. This is why: Justice Sheperd in his dissent talks about the witness for the bank who is supposed to introduce the documents into evidence not having personal knowledge. She did not have personal knowledge or was very nervous. The Defense counsel for the homeowner kept objecting becasue of this lack of personal knowledge, but the trial judge ignored the objections. I think the judge who presided over the trial was different from the judge who dismissed the bank's case.

Let's say Justice Emas and Schwartz were right about the note and mortgage, and lets say they were right about the defense not objecting to the substituion of the Plainitff, how did they get around the lack of personal knowledge by the witness?

This is a problem with real estate bench trials as opposed to jury trials.

1. It would very hard to find a fair jury in a foreclosure trial (jury trials not allowed in real estate matters)--possibly even harder than finding a fair jury in a criminal trial.

2. If a jury saw a witness sitting there saying, " I don't know, I thought . . ., maybe . . I've never seen this . . " etc. etc., then the jury would think to themselves, "Why are you testifying as a witness, when you don't know anything?"

In traffic trials, for example, if a police officer cannot remember giving someone a traffic ticket, then the case is dismissed. Maybe you have heard about the right to confrontation or the confrontation clause, which is the 6th Amendment. Well, the 6th amendment applies to criminal cases, but even in civil cases a witness has to have knowledge . . how can you testify about something you don't know anything about????? For example: you were not there; you don't remember; you have never see this person before in your life . . right?

Freddie Mac and Fannie Mae to permit forbearances for unemployed

2012-01-29T23:57:38Z

From the Washington Post

This is good news. Also a reminder that you have to take care of the loan modification and the lawsuit. You cannot ignore either one. Also, some loan servicers have gone back on their part of the bargain by giving a permanent loan modification then later not accepting payments.

Foreclosures less costly than loan modifcations?

2012-01-29T23:46:27Z

Huffington Post Article

This is an old article, but it rings true. I have been reading Ms. Diane E. Thompson's research of the National Consumer Law Center. Wow. . .she knows her stuff.

Foreclosures are easier on the loan servicer, not the loan holder, the mortgagee . . . .

OWS--400 arrested in Oakland

2012-01-29T23:38:44Z

Occupy Wall St. 400 arrested

Come to think of it . . .I have not heard any presidential candidates even mention occupy wall street. I guess they are afraid to talk about it.

Ouch . .police in Connecticut arrested by FBI for discrimination

2012-01-29T23:32:18Z

FBI arrests police for discrimination