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Is spitting enough to warrant 10 to 25 years in a Nevada prison? The Nevada Supreme Court has the very issue under advisement on appeal from a Nye County verdict.

Spitting may get you 10-25 years in prison

Timothy Hobbs received this sentence last year.  On October 8, 2008 he confronted his former girlfriend in a beauty salon where she was having a manicure. They had an argument and he spat in her face. He also threw a rock through the windshield of her vehicle.

Hobbs has a criminal record consisting of six felony and thirty-three misdemeanor convictions. Two of those convictions are for domestic violence.  In Nevada a third conviction is treated as a felony.

The question before the Nevada Supreme Court is does spitting fall into the definition of battery, described by statute as “unwanted use of force or violence”.  Hobbs’ attorneys argued before the Nevada Supreme Court this week that spitting does not meet that requirement. Rather they argued that spitting is not an act of violence by rather an act that is deemed impolite.

The other issue is whether or not the prosecutor properly established Hobbs’ criminal history as required by Nevada procedural requirements.

Nevada State Law requires that judges be provided certified copies of conviction records to guard against wrongful sentences. Hobbs’ attorneys argued that because Hobbs was improperly certified as a habitual offender.  A Justice of the Peace, rather than the trial judge, made that decision and thereby violated Nevada State Law that requires the sentencing judge to make such rulings.

The Nevada Supreme Court took the matter under advisement and will issue a ruling later.

 

After months of deliberating and planning out options, I have finally struck out on my own. I am putting out the old shingle and opening a law practice with my new partner, David R. Fischer. (Insert your joke about two David’s in a law firm here.) David has been a mediator with the foreclosure mediation program since its inception, is a Navy vet and is a phenomenal attorney. He is also on the cover of this month’s Nevada Lawyer honoring attorneys who have served our country. Mrs. Sin City Esq created our logo and our business cards.

The New Logo for the New Firm created by the Mrs.

I wrote this introduction to announce our new firm:

“Times are tough in Nevada and tough times require tough advocates on your side.

Today, we introduce Fischer Sanders, LLP; a law firm that will be there to guide you through every step of the way, through these difficult times and beyond.

Most legal problems are not planned and happen by surprise.  You did not plan on suffering injuries due to an accident, be it an automobile accident or a slip and fall.  You do no calendar the pain and suffering afterwards and you certainly don’t count on losing income because you were hurt on the job.  With mounting bills and a decrease in income, you fear for your family’s future.

You also did not plan on a business disagreement or a contract being breached. Nor did you schedule not being paid for work done or other problems facing small businesses in this economy.

The criminal justice system can be particularly intimidating.  Its stakes are always high. You could face a potential prison term, significant fines and a loss of your civil rights.

At Fischer Sanders, we understand that your case represents one of the most significant events of your lifetime.  We appreciate the great value of the matters you entrust to us. You’ll breathe easier, knowing you’ve got a team of professionals helping you make the best possible decisions with the least amount of stress. Fischer Sanders advocates from a common-sense position, while never sacrificing advocacy when advocacy is warranted.

If you need legal help, surround yourself with an experienced team who is driven to achieve results, contact Fischer Sanders, LLP.”

Here is the link to the new website, http://www. fischersanders.com.

BEHOLD the new blog header created by the talented and lovely Mrs. SinCityEsq. (Yes she is the talented one in our relationship).  Check her blog at www.artfulshe.wordpress.com

There was a time when anonymity and privacy were the norms on the Internet. That time has passed.  Recent trends in social media are minimizing anonymous postings and encouraging people to share details about their daily lives. With the advent of MySpace, Foursquare, Twitter and Facebook; more and more individuals are postings, sharing and tweeting about themselves.  Your identity is now your brand in social marketing.

This growing trend does have  significant “real world implications” particularly in litigation.  Any tweet, post or update is fair game and can be detrimental to your legal well-being. There is no “Facebook Privilege” that can be invoked to protect a damaging update.

A recent well-written article in the Green Bay Press Gazette, lists several suggestions to follow to avoid damaging your lawsuit. The article can be found here. http://bit.ly/9ifuRB

The most important thing to remember when using social media during litigation is to avoid doing any harm to your case. This includes repeating what your attorney’s tell you online, and posting photos or status updates that will cause your credibility at trial to be questioned.

Everything you and your attorney discuss is protected by Attorney Client Privilege and cannot be used against you in your case. However, that privilege is blown when you post anything about a conversation online.

It is now a common practice for prosecutors to review social media sites for damning evidence. It is also a common practice for defense attorney’s to tell you to take such sites down until litigation is over.

Nothing can damage your credibility with the Judge in your DUI case than drunken photos posted on Facebook days after your arrest. No more “I have learned my lesson” pleas for you.

In fact, I know of several prosecutors who have found drunken photo’s of DUI defendants posted on Facebook days after their DUI arrest. These prosecutors waited for the “I have learned my lesson” plea from the Defendant and presented the damaging photos to the Court. Each time the Judge did not believe the Defendant (based on the photographs) and imposed a far more severe penalty than would have occurred but for the Facebook pics.

Likewise your personal injury case can implode from a simple tweet of “going rock climbing with Bill this weekend.”

Lastly, make sure you have reviewed your privacy settings on all social media sites to verify you have adequate settings in place. Do this regularly as Facebook has a history of changing privacy settings with little advance warning. Comments from friends and acquaintances can be just as damaging to your lawsuit as anything you post yourself.

With a little preparation and knowledge of how social media can impact your legal fortunes, you can avoid these online pitfalls.

Vince Neil, former front man for Motley Crue will stand trial for DUI in Las Vegas on January 6, 2010. He is currently out on bail since his June 27, 2010 arrest.

Neil was arrested about 11 p.m. June 27 after Las Vegas police pulled over the black Lamborghini sports car he was driving on Desert Inn Road, near Las Vegas Boulevard. He claimed to have had several glasses of champagne at the Las Vegas Hilton.

Police claim Neil was driving 60 mph in a 45 mph zone and weaving between lanes when he was pulled over. According to the Police Report, Neil had blood shot eyes, smelled of alcohol, was swaying and his speech was slurred. Neil failed several field sobriety tests and a Breathalyzer test. According to the report, Neil’s blood alcohol level was nearly three times the legal limit. The legal limit is .08 in Nevada.

Neil has had recent legal troubles in Nevada.  In fact his bankruptcy lawyer recently sued him for failing to pay an outstanding bill.

 

During the Constitutional Congress there was significant opposition to the proposed new system of government because the Constitution, as it then consisted, did not contain sufficient protections of individual liberties.

Originally the Constitution contained few protections for individual rights.

The Constitutional drafters created the first Ten Constitutional Amendments, known as the Bill of Rights, to protect certain liberties and remedy this concern. The Bill of Rights was submitted to the states for ratification on September 25, 1789 and adopted on December 15, 1791. The first of these amendments reads:

 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The Bill of Rights was later added to the Constitution to protect civil liberties including Freedom of Speech.

This short phrase contains some of America’s most treasured rights, including freedom of religion, freedom of assembly, freedom of the press and the freedom of speech. Rights that we all enjoy, cherish and so many have defended.

The United States Supreme Court recently heard oral arguments in the Snyder v. Phelps case. This case has generated a lot of media coverage and rightly so as the issues presented strike to the very marrow of the right to free speech.

Albert Snyder’s son died in Iraq in 2006. The twenty-year-old US Marine was killed in a Humvee accident. Members of a family-dominated church in Topeka, Kan., lead by the Reverend Fred Phelps protested at the funeral to express their view that U.S. deaths in Afghanistan and Iraq are God’s punishment for American immorality and tolerance of homosexuality and abortion.

The signs held by protesters outside Lance Corporal Matthew Snyder’s funeral included phases like “Thank God for Dead Soldiers”, “You’re Going to Hell” and “God Hates the USA.” The Phelps church also posted a poem on its website ridiculing the way that the Albert Snyder and his ex-wife raised their Marine son.

Snyder won an $11 million verdict against the church for intentional infliction of emotional distress, among other claims. A trial judge later reduced the award to $5 million. On appeal, the 4th Circuit Court of Appeal in Richmond, Va., threw out the verdict altogether by ruling that any award barred by the church’s First Amendment rights.

This is a very difficult decision that our Supreme Court must address, are the Phelps’ protests protected free speech under the 1st Amendment or unprotected harassment? The Court seemed to be wrestling with this very issue during recent oral arguments.

Justice Samuel Alito asked Margie Phelps, arguing the case for her family’s Westboro Baptist Church, if the Constitution should shield someone who delivers a mean-spirited account of a soldier’s death to the serviceman’s grandmother while she’s leaving her grandson’s grave. “She’s waiting to take a bus back home,” Alito imagined and someone approaches to talk about the roadside bomb that killed the soldier. “`Let me describe it for you, and I am so happy that this happened. I only wish I were there. I only wish that I could have taken pictures of it.’ And on and on. Now, is that protected by the First Amendment?” Alito further questioned Phelps if a scenario existed where individuals like the Snyder family could file a lawsuit, such as an African-American who was exposed to a tirade of racially offensive speech.

Recently appointed Justice Elena Kagan further asked if a wounded soldier could sue someone who demonstrates “outside the person’s home, the person’s workplace, outside the person’s church … saying these kinds of things: `You are a war criminal,’ whatever these signs say or worse?”

One possibility suggested by Justice Scalia is that the Court could order a new trial in the case.

The Snyders attorney argued that the case was not one of protected free speech because of the “personal, targeted nature of the attacks on the Snyder family.”  Albert Snyder said “I had one chance to bury my son and it was taken from me.”   Justice Ruth Bader Ginsburg seemed to agree with this position when she questioned if the First Amendment should protect the church members. “This is a case about exploiting a private family’s grief.”

The most ironic and tragic fact in this case (one that the Phelps seem oblivious to) is that the very right to free speech is a right secured by the sacrifices of generations of American Soldiers who gave their lives willingly to ensure we all enjoy the right of freedom of speech, including Lance Corporal Matthew Snyder.

While the Phelpses seek to hide their shameful acts as protected speech, forty-eight states, 42 U.S. Senators and various veterans groups have asked the court to shield the funerals of our servicemen and women from the “psychological terrorism” the Phelpses inflict upon the very people who gave their lives to protect the right to free speech.

The Supreme Court will issue a ruling sometime in late Spring 2011.

 

 

 

Producer/Manager Chip Lightman and the late impressionist Danny Gans in 2003 created a joint venture to recruit Donny and Marie Osmond to come to Las Vegas.

It worked and Donny & Marie are the current headliners at the Flamingo. Chip Lightman produced the Donny & Marie show until he was ousted.

Lightman recently sued Donny & Marie and according to the Complaint filed on October 1, 2010, with the Clark County Courthouse Donny Osmond demanded Lightman to be removed in order to “line his own pockets with ill-gotten gains to fund his lavish lifestyle of exotic cars, luxury hotel suites and private jets.” According to the complaint both Osmonds make 1.6 million as a base salary and get 40 percent of gross box office receipts over $250,000.

Lightman alleges that he was edged out because  “(d)ue to the declining economy, poor investments and his extravagant lifestyle,” Donny “lived paycheck to paycheck scraping by to cover his own expenses.” Lightman further claims that Donny Osmond is “underhanded, devious, fraudulent and greedy,” pointing out that such allegations are “contrary to the wholesome, all-American, good-natured image that he presents to the public.”

The case has been assigned to Department 25, the Honorable Kathleen Delaney. As of this post, none of the defendants have made an appearance.

 

The Nevada Supreme Court will soon rule on a jurisdiction matter that could have significant impact upon the county and the way lawyers practice law here. The issue is how much jurisdiction does the family law court system have?

The Family Court system is a statutory created system designed to address civil disputes that involve a married couple or children. It is not a court of general jurisdiction. (That means you cannot bring a breach of contract action before the Family Court.)

The appeal arises from default judgment in property dispute between Amit Malik and Dlinn Landreth, who lived together in Las Vegas for four years. They were not married.

In September 2006, Malik filed an action in Clark County Family Court, seeking half the equity in a local home, half of other property acquired during the relationship and all of his personal property. (Nevada is a community property state and upon divorce all marital assets and liabilities generated during the marriage are to be split evenly.)

Landreth failed to file a timely answer and Malik filed a default judgment.  Landreth moved to set the default aside, but a family court judge denied her motion and awarded Malik half the equity and granted his other requests.

Landreth appealed the decision on the basis of subject matter jurisdiction, arguing that civil disputes that don’t involve a married couple or children should be heard in the civil division not the family courts.

The Nevada Supreme Court will soon rule on the extent of the Family Court's Jurisdiction

There is no intermediate appellate court in Nevada; the Nevada Supreme Court hears all appeals. Family Law practitioners are arguing that the family court does have special jurisdiction over family law but retain general jurisdiction authority.

Justice Michael Douglas wrote the first majority opinion for the Court and agreed with Landreth’s arguments. Justice Douglas wrote that the court had limited jurisdiction because its authority is derived from state law and as such did not enjoy the general jurisdiction authority that Civil Division Judges enjoy. This is because the Civil Division Judges authority is based in the Nevada Constitution.

Oral Arguments were heard before the entire Nevada Supreme Court on Monday October 4, 2010. The Court will issue a ruling sometime in the future.

As a trial lawyer one of the most difficult things to master is keeping the jury’s attention. You walk a difficult line between boring them to death but you must also make sure you provide them sufficient information to rule on your side. The prosecution in the Anna Nicole Smith drug trial appears to be struggling with this very issue.

Prosecutors are alleging that Two of Smith’s Doctors and her manager/attorney/boyfriend Howard K. Stern, conspired to feed Smith’s alleged drug addition and used false names to obtain said drugs. The defendants are not charged in Smith’s February 2007 death, which a Florida medical examiner ruled was from an accidental overdose of a sleep aid, a lethal mix of prescription drugs and a viral flu.

Judge Robert Perry has already indicated his criticism with the Government’s case stating that t was built from “a dead celebrity and a bunch of low-level misdemeanors.” The judge said he decided to allow the case to go forward after another respected judge advised him to trust the jury system.

Perry has questioned whether the prosecution has proved that Smith was an addict, as defined by California law, and not just dependent on drugs to relieve chronic pain. “If she’s being treated for pain, it’s not illegal,” Perry said last week.

The two-month trial has more than its fair share of interesting developments. Perry has openly questioned the prosecution and the charging of the defendants two charges against Stern were thrown out. “It has all the hallmarks of a kitchen sink prosecution,” Perry said last week. “It looks like the prosecution is throwing everything in with the hope that something will survive.” Perry has also suggested that if the defendants are found guilty, he would consider “possible selective prosecution issues” when sentencing them.

The Prosecution has had its own difficulties as witnesses have recanted testimony including one Nanny who denied her prior claims that she witnessed Stern injecting Smith.

The Defense also took the highly unusual tact of not calling any witnesses, but rested their case at the end of the Prosecution’s case in chief. It is a calculated gamble that Judge Perry will rule that the Government has not met its burden of proof and dismiss the charges. This means that the prosecution took over two months to present its case in chief. That is an extraordinarily long trial.

The judge in the Anna Nicole Smith drug trial warned prosecutors to wrap up their closing arguments Tuesday out of fear the jurors will “tune out” if they are asked to hear much more. Perry said he was “very concerned” when Rose gave him a thick stack of PowerPoint slides she intended to use in her closing.

“My experience is (that) jurors, they just tune you out,” Perry told Rose. “If you talk to them for seven or eight hours, they’re not going to be listening to you the last half of your argument.”

The jury could begin deliberations as soon as today. We will find out shortly which of the interesting trial tactics employed was successful.

As a trial lawyer, I have seen my fair share of unique and interesting attempts to avoid jury duty. At my first jury trial, a woman attempted to get out of jury duty by explaining that she had day care issues with her young child. The Judge volunteered his staff to watch the child and the woman stayed on the jury. (She found someone else to watch her children and did not take the judge up on his offer.)

I myself have been a juror in a criminal case that involved breaking and entering into hotel rooms at the Imperial Palace on the Strip. The Defendant used a butter knife to gain access to the rooms and stole tourist possessions. One of my potential co-jurors was dismissed because she believed that only God could pass judgment on the acts of men.

I love this recent excuse from Nashville, Tennessee. Apparently one prospective juror attempted to get out of jury duty because he had season tickets to the Tennessee Titans. It did not work, but the Judge did offer to put the game on TV. Here is the article. I am curious if there is a NFL town that such an argument may work. Dallas? Indy? the NY Giants?

Unfortunately season tickets will not get you out of jury duty.

http://www.commercialappeal.com/news/2010/sep/21/lester-street-jury-selection-bumps-along-nashville/?partner=popular#comments

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