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Monthly Archives: November 2016

Time to Get the Sledge Hammers Out

Although the loss of the opportunity to see the first woman become the president of the United States was both devastating and completely unpredictable (at least to me, as evidenced by my blog post here), as criminal defense attorneys we have a first-hand understanding that, when an injustice occurs, that means it’s our time to gear up for a fight. This isn’t the time to sit on the sidelines, feeling sorry for ourselves and fearful of what comes next. It’s time to get our sledge hammers out and start forcing the glass ceiling open ourselves. As much as I believed that this election would serve as a statement that things were changing for women through Hillary winning, her loss is a statement of how deep the roots of inequality still are for women in our culture when a supremely qualified woman is passed over for a man with no experience. It was hard to explain to my eight-year-old daughter what happened and why our country didn’t celebrate or embrace the opportunity to put the first woman into the White House. And on hearing the news, she was shattered and angry. Hillary spoke to her and countless other young girls in her concession speech when she said: To all the women and especially the young women who put their faith in this campaign and in me, I want you to know that nothing has made me prouder then to be your champion. Now, I know, I know we have still not shattered that highest and hardest glass ceiling, but some day someone will and hopefully sooner than we might think right now. And to all the little girls who are watching this, never doubt that you are valuable and powerful and deserving of every change and opportunity in the world to pursue and achieve your own dreams. So what to do? For me the answer is simple, we have to dig deeper and do more. This isn’t the time to stop. It’s time to ramp up. I personally refuse to accept that we are second- or third-class citizens. I am not accepting the scraps from the men that will be holding the power in this country come January. We have to work together to change that. We need to walk the walk. We need to open doors for each other. We need to make sure that we include each other at every table we are seated at. We need to take our successes and stop simply asking for them. We need to refuse to accept second-chair positions and insignificant token roles just so we can be in the room. And above all – as many times as I have said this on this blog I will say it again until I am blue in the face – we need to SEND EACH OTHER BUSINESS. We are the only ones who are going to assure our own success. If this election teaches us one thing, it is that we need to take primary responsibility in looking out for one another out there. The post Time to Get the Sledge Hammers Out appeared first on Women Criminal Defense Attorneys.
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Stronger, Kinder, and Gentler

As I let the results of the election sink in, one of the biggest fears that I have is that it will now be socially acceptable for people to be mean to others based on their membership in a group, whether it be women or minorities or immigrants or gays or anybody else who is not part of the white male establishment. Nobody can deny that the recent presidential election has been one of the ugliest in our lifetimes with women being called names and being publicly criticized for their appearance and for speaking out against assault and Hispanic politicians being called liars and having their judgment questioned based on their cultural heritage. I have heard people praise the Donald Trump campaign for making it okay not to be politically correct and for him saying things that others think but are afraid to say, and I fear his affirmation through the election will make such hurtful and regressive discourse even more common and tolerated than it already is. Although we can debate whether political correctness has gone too far, I think we can agree that it is not okay to vilify and hate others based on their gender, race, religion or sexual orientation. So what can we as female criminal defense attorneys, who see the debilitating effects of stereotyping on a daily basis, do for the next four years? I suggest that we become stronger together to fight to make this nation kinder and gentler despite our divisions. We must speak out against hatred of all types, whether it be in the form of racial or religious profiling or gender stereotyping. We must raise our voices even louder to speak out against injustice when we see it and fight harder in our local communities to eradicate it. We must speak up publicly in and out of court when our clients have been victims of hate or are being judged in whole or in part because of their membership in a group. And when our clients are the haters, advocate for the punishment designed to rehabilitate rather than lead to recidivism by embedding the hatred even further. I also suggest that we use our economic power to make changes. We must support local women and minority-owned business (and lawyers) and boycott businesses associated with those who hate. We must spend our charitable dollars on local organizations which work to empower girls and immigrants rather than on charitable foundations which make their officers and directors richer. We must support candidates at the local level who will fight for the values we believe in. Let politicians see that we will vote with our purses as well as through the pulpit and polls. I suggest strongly that we work together to be stronger and to make this country kinder and gentler every day in our local courts and communities and that we show the public and the Government and its officials that smart, kind, strong, and gentle female criminal defense lawyers can make a difference. The post Stronger, Kinder, and Gentler appeared first on Women Criminal Defense Attorneys.
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Air Force One is About to Crash Through the Glass Ceiling

On this historic election day when our country will hopefully elect its first woman president, I am filled with hope and excitement. I took my daughter with me to the poll this morning so she could one day tell her daughter that she was there to witness this moment in history. When I told her that, 100 years ago, women still did not have a right to vote, let alone have a chance of becoming President, there was a look of bewilderment on her face as she processed such a foreign concept from a not-so-very distant time in our history. Already this historic presidential race has inspired my daughter to one day want to be president too. But it’s not just our daughters that are affected by this race; after the ballots are counted, all women everywhere will be living in a new world, forever changed. I have never intended for this blog to be political and I don’t intend to start now. However, regardless of your party affiliation or political beliefs, the significance of this moment for all women and women criminal defense attorneys cannot be overstated. This isn’t just another break in the glass ceiling – Air Force One is crashing straight through it as a woman will take over the most powerful job in the world. That doesn’t mean we still don’t have work to do. We still have enormous pay inequity in law. We still have women leaving the practice of law in much larger percentages than their male counterparts. Women are still seriously underrepresented as equity partners in law firms. We still have men outpacing women as being named lead counsel in larger, more lucrative complex litigation matters, and this is especially true in larger white collar matters. Yet, I can’t help but feel like we women criminal defense attorneys can breathe a little easier when we survey our remaining issues after witnessing the shattering of the glass ceiling this election cycle. And that new breath might give life to a renewed energy to work through the problems that remain. During the last two months I have struggled with finding the time to blog, falling short of the promise I made to myself that I would “never” miss a week. I’m not sure if this is a testament to the Anne-Marie Slaughter line of thinking that women can’t have it all, or is simply symptomatic of the time pressures many lawyers face, regardless of gender. In spite of this lapse, my commitment to highlight and support of women in this field remains unwavering. I continue to make efforts to get to know other women in the field and organize more formal opportunities for more and more of us to connect and help one another. Thankfully that hasn’t stopped, even as the blogging has been less consistent. And it was during a recent dinner that I shared with some amazing women defenders that I realized I needed to recommit myself to telling our stories through this blog. There is still a need to highlight and promote the great work that women are doing in the field, although I admit I struggle with finding cases in the media identifying women criminal lawyers. So I believe it is incumbent upon all of us to fill that void. I need to hear about your cases or about cases other women defenders are handling. We need to work as hard in assuring our own success in this field as we have in placing a woman in the White House. The kind of success that is not just about earning a seat at the table; it’s about sitting at the head of the table and deciding who sits there with us. Much like the distinction between being Secretary of State and the President of the United States. I look forward to these next four years and beyond and to hearing your stories from the front lines of criminal defense. The post Air Force One is About to Crash Through the Glass Ceiling appeared first on Women Criminal Defense Attorneys.
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Can the Feds Force You to Unlock Your Phone With Your Fingerprint?

You might've thought enabling Touch ID on your iPhone made it more secure. After all, it's harder to fake your fingerprint than to guess a passcode. But when it comes to the law enforcement searches, your smartphone might've gotten a lot more vulnerable. According to Forbes, federal law enforcement officers recently served a warrant on a California home which gave them "authorization to depress the fingerprints and thumbprints of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be the user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant."Essentially, cops could force everyone in the residence to open their phones. Is this really legal? Fourth Amendment Concerns The Fourth Amendment protects people "against unreasonable searches and seizures," and generally requires law enforcement officers to get a warrant before searching someone's home or personal effects. In order for the Fourth Amendment to apply, a person must show that he or she has a "reasonable expectation of privacy" in the place being searched or thing being seized. But courts have consistently found that a person has no expectation of privacy in physical characteristics like fingerprints, and that a police may therefore require that a person give fingerprint samples. So requesting a fingerprint to open a phone likely doesn't violate the Fourth Amendment's reasonableness requirement. In terms of search warrants, they must be based on probable cause, and "particularly [describe] the place to be searched, and the persons or things to be seized." This has generally been interpreted to mean the warrant must be narrow in scope, but, as Electronic Frontier Foundation staff Andrew Crocker told the Washington Post, a warrant that "extended to include any phone that happens to be on the property, and all of the private data that that entails" could stretch those limits. Fifth Amendment Concerns The Fifth Amendment, on the other hand, protects people against self-incrimination and could apply to warrants for biometrics in certain circumstances. In general, courts have not found fingerprints, by themselves, to be self-incrimination because they aren't "testimonial" in the sense that they don't amount to a statement about something. But does that necessarily mean that officers can force you to use your fingerprint to unlock your phone? Law professor and blogger Orin Kerr looked at three such scenarios and opined that, as long as the officers already know that the phone is yours, the answer is probably yes. At that point your fingerprint would not be telling officers anything they didn't already know, or, as Kerr put it, "No testimonial statement from the person is implied by the act of placing his finger on the reader." But when -- as in the case above that involves a search of a residence with multiple phones and multiple people -- cops don't know which device belongs to whom, being forced to unlock a phone could be testimonial: It amounts to testimony that says, "yes, this is my phone," or at least, "yes, this phone was set to recognize a part of my body as a means of access." It further says: "I am familiar enough with this phone to know that the fingerprint reader was enabled and which part of me was used by me to program the fingerprint reader." According to Forbes, the warrant in this case is "unprecedented," but we may see similar warrants as more people use their fingerprints to secure their smartphones. If you've been subject to a similar search, you should contact a criminal defense attorney as soon as possible. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) Do You Have to Let Cops Search Your Cell Phone? (FindLaw Blotter) Cell-Phone Fingerprint Ruling: 5 Things You Should Know (FindLaw Blotter) Geo-Tracking: Should Phone Location Info Require a Warrant? (FindLaw Blotter)
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Supreme Court to Decide Which Bathroom Trans High School Student Can Use

Last week, the Supreme Court announced that they will be taking up the case of Gavin Grimm, the high school student who has been told he can't use the boys' restroom because he is transgender. The case will be heard at some point next year, as the Court has only accepted to hear the case at this point. When a case is appealed to the Supreme Court, one party to a case is asking the Court to review a Federal Appeals Court's decision. The Supreme Court is asked to review thousands of cases each year, and only selects about 80 to review. Although Gavin won the last appeal, the Supreme Court ordered that the appeals court's decision not go into effect until they decide to reject the case or after they decide the case. The Case of Gavin Grimm Gavin's case was forced upon him. When he started high school as a freshman, he initially used the unisex/single stall restroom in the nurse's office. However, it was the only single stall in the building and Gavin did not feel like he could solely use that restroom as it was the only one. When he requested that he be allowed to use the regular boys' bathroom, the school approved his request. However, when some other students' parents learned that Gavin was using the regular boys' bathroom, they petitioned the district to stop Gavin, and won. But Gavin didn't stop fighting for his rights as a transgender student. Gavin challenged the school district in court and on appeal, Gavin won. After the appeal, but before the Supreme Court announced that they would weigh in, the Department of Education, with the Department of Justice, issued formal guidance on how public schools should handle any policy relating to sex segregation and gender identity. Basically, both agencies state that Gavin, and other trans students, should be able to use the bathroom that conforms with their gender identity, regardless of how they are identified in legal documents. Trans Bathrooms: Separate Is Not Equal For the purposes of Title IX, which applies to schools that receive federal funding, a student's gender identity is their sex, and Title IX prohibits discrimination based on sex. Soon, the Supreme Court will weigh in and may provide some judicial certainty to this politically divisive question. Related Resources: Find an Attorney Near You (FindLaw's Lawyer Directory) Transgender Bathroom Laws in Public Schools: A National Overview (FindLaw's Law and Daily Life) California's Gender Neutral Bathroom Bill (FindLaw's Law and Daily Life) Primer for Parents and Students on Transgender Bathrooms in Schools (FindLaw's Law and Daily Life) Do I Need a Lawyer for a Gender Change? (FindLaw's Law and Daily Life)
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NY Brain Surgeon Faces Three Malpractice Lawsuits

One of the leading brain surgeons that co-founded the North Shore University Hospital’s Chiari Institute is facing three malpractice lawsuits over surgeries to correct Chiari malformations. The suits all allege that Dr. Bolognese improperly or needlessly performed a surgery to correct a Chiari malformation in each of the three separate plaintiffs. The Chiari malformation is a rare condition where part of the brain forms under the brainstem where it connects with the neck and spinal cord. The effects of a Chiara malformation are varied from no symptoms at all, to severe. Currently the only treatment is surgery. History of Getting Sued Dr. Bolognese has seen quite a bit of trouble. According to one source, though the doctor was not out of operating room for long, he was suspended back in 2010 for failing to show up for a surgery. Also, he has faced approximately 20 medical malpractice lawsuits. In addition to the malpractice lawsuits, a former employee who sued her hospital for sexual harassment, described some very strange behavior by Dr. Bolongese during surgery, including disappearing mid surgery and openly using expletives when frustrated. A Surgeon’s Malpractice Liability Surgeons, like any other doctor, can commit medical malpractice. Discovering surgical malpractice is difficult however as frequently patients are under anesthetic and therefore unaware while the surgeon is working. If it is something obvious, like the surgeon operated on the wrong body part or patient, this will be easily discovered. However, if a surgical sponge or other implement was left behind, or the surgery was unnecessary, or some other avoidable mistake occurred, discovering the problem is the first step and may require expert medical assistance. Once the mistake or problem is discovered, it must be determined, generally by more medical or surgical experts, whether the surgeon in your case fell below the standard of care. This means that a surgery that doesn’t work isn’t necessarily grounds for a malpractice suit. It only will be grounds for a lawsuit if the doctor made a mistake that made the level care provided fall below the standard of care that should have been provided. Related Resources: Injured my medical malpractice? Get matched with a local attorney. (Consumer Injury) When to Sue a Chiropractor for Injury (FindLaw’s Injured) 5 Controversial Medical Treatments Still Used Today (FindLaw’s Injured) When to Sue a Pediatrician for Malpractice (FindLaw’s Injured)
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How to Fight a Speeding Ticket Based on Radar or Laser Evidence

When a person fights a speeding ticket, the same basic principle of criminal defense apply: the prosecution must prove the case with evidence. Therefore, it makes sense that the best way to win a speeding ticket case is to knock out the evidence the ticket is based on. Since most tickets are based on evidence gathered by radar or laser speed detection devices, the following will focus on the main challenges to these two types of evidence. Recent and Reliable Calibration Generally, radar and laser speed detection devices require regular calibration to ensure that the devices remain accurate. State traffic laws and rules of evidence will vary as to what is considered both recent enough of a calibration as well as how accurately they must be calibrated. In some jurisdictions, you may be able to make requests for documentation about the device’s calibration history prior to the appearance date on your ticket, or at the first appearance in court. If you are not able to get the documentation regarding the device calibration, you may be left with having to question the officer on the stand to get that information. You can ask the court to dismiss the case if the radar or laser speed detection device was not properly or recently calibrated, and depending on your jurisdiction, a court can dismiss the case for lack of reliable evidence. Frequently, officers are aware of which jurisdictions will dismiss for lack of calibration proof, and those officers will bring the calibration and testing logs for their speed detection devices to every hearing. Officer Training to Use Device Another area that you may be able to successfully challenge is the officers training to use the device. While this may seem like a hail Mary pass, occasionally, it happens that an officer does not get properly trained. Again, establishing improper training may not automatically equal a dismissal, as different jurisdictions handle matters differently, but it can. This argument tends to be more plausible if you believe the officer pulled you over instead of another vehicle that was passing you at the time. If you establish the officer’s training is insufficient in conjunction with a circumstance that shows the lack of training, a court can dismiss the case. You may want to investigate getting dash cam footage from the officer’s vehicle prior to the hearing if you believe this to be the case. Related Resources: Charged with a crime? Get your case reviewed for free now. (Consumer Injury - Criminal) Speeding Ticket: Should I Fight it or Pay it? (FindLaw Blotter) Legal How-To: Fighting Out-of-State Traffic Tickets (FindLaw Blotter) Getting Pulled Over (FindLaw Learn About the Law)
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