San Diego Attorney Brian Mason's LawBlog

You may be surprised by what the U.S. and Somalia have in common: Juvenile Justice

2012-02-02T16:56:00.000-08:00

The United States and Somalia are the only two countries in the world who have not ratified a United Nations Convention that bans life in jail without parole for those who are under-18 years olds.

Currently, more than 2,500 adults are in U.S. jails for crimes committed as a child and under current rules they will never be freed.

Amnesty International has recently called for the U.S. to stop sentencing juveniles to life in prison without parole. In its new report, Amnesty says the practice is incompatible with the basic principles of juvenile justice.

Amnesty says offenders as young as 11 have faced such sentences in the U.S.

"In the USA, people under 18 years old cannot vote, buy alcohol, lottery tickets or consent to most forms of medical treatment," said Natacha Mension, of the human rights group.

Amnesty Case Study

Christi Cheramie was jailed for life without parole in 1994 in Louisiana when she was 16 years old. She was convicted of second-degree murder in the killing of her 18-year-old fiance's great aunt.

She says she pleaded guilty just before her trial in an adult court began to avoid a potential death sentence. A psychiatrist who saw Cheramie before trial said she seemed "fearful of crossing" her fiance. Her childhood was marked by sexual abuse. At age 13, she was admitted to a psychiatric clinic after suicide attempts.

In 2001, Cheramie tried to withdraw her guilty plea, but the request was denied. Now 33, she has a high-school equivalency diploma and a degree in agricultural studies. A warden says Cheramie is "worthy of a second chance". She is applying to the state prison board for executive clemency.

Potential for Rehabilitation

Amnesty's report, says such sentences are handed down without considering factors such as history of abuse or mental health.

"We are not excusing crimes committed by children or minimizing their consequences, but the simple reality is that these sentences ignore the special potential for rehabilitation and change that young offenders have," said Ms Mension.

Amnesty wants the U.S. to ratify the UN Convention on the Rights of the Child, which has been in force for two decades. It prohibits the imposition of life imprisonment without the possibility of release for any offence committed by anyone under 18-years-old.

More than half of U.S. states have approved the use of mandatory life sentences without parole for some serious crimes, such as murder.

The U.S. Supreme Court has already acted on some aspects of youth sentencing - and a review is underway. In May of last year it banned sentences of life without parole for minors in non-murder cases.

Earlier this month, it agreed to consider the issue in relation to homicide cases, too; a decision is not expected until next year.

We Must Rehabilitate

Besides punishment, our criminal justice system is supposed to be about rehabilitation for both the offenders and the victims. If our system allows a minor to be sentenced to life without parole, then we are effectively saying that rehabilitation is not possible. I refuse to believe that. Given that the United States and Somalia are the only two countries still allowing this, it’s time for a change.

Questions

If you have any questions related to any legal issue and would like to speak directly to an attorney, contact San Diego attorney Brian R. Mason at bmason@masonfirm.com or call him directly for a free consultation at (858) 444-5256. Visit our website at www.MasonFirm.com.

Sources

http://www.bbc.co.uk/news/world-us-canada-15956225

FBI Considers Changing the Definition of Rape for More Accurate Reporting

2011-11-17T11:22:00.000-08:00

Thousands of sexual assaults that occur in the United States every year are not reflected in the federal government’s yearly crime report because the report uses an old definition of rape that is far narrower than the definitions used by most police departments.

Many law enforcement officials and advocates for women say that this underreporting misleads the public about the prevalence of rape and results in fewer federal, state and local resources being devoted to catching rapists and helping rape victims. Rape crisis centers are among groups that cite the federal figures in applying for private and public financing.

The current federal definition

The definition of rape used by the F.B.I. — “the carnal knowledge of a female, forcibly and against her will” — was written more than 80 years ago. That 1927 definition legally defines "rape" as the forcible male penile penetration of a female.

Why is the current definition a problem?

That definition, critics say, does not take into account sexual-assault cases that involve where the victims were drugged or under the influence of alcohol, cases with male victims, or cases involving anal or oral penetration or penetration with an object. As a result, many sexual assaults are not counted as rapes in the yearly federal accounting.

The yearly report on violent crime, which uses data provided voluntarily by the nation’s 18,000 law enforcement agencies, is widely cited as an indicator of national crime trends.

Why does it matter if the FBI reports it correctly if local police are prosecuting it?

The answer is money. Many state budgets use, at least in part, the FBI crime report to determine how much funding goes to a police department or investigative unit in that department. So, in theory, police agencies prosecuting sexual assaults may be under-funded and under-staffed, because the FBI crime report is under-reporting the crime.

For example, in Chicago, the Police Department recorded close to 1,400 sexual assaults in 2010, according to the department’s Web site. But none of these appeared in the federal crime report because Chicago’s broader definition of rape is not accepted by the F.B.I.

The New York Police Department reported 1,369 rapes, but only 1,036 — the ones that fit the federal definition — were entered in the federal figures. And in Elizabeth Township, Pa., the sexual assault of a woman last year was widely discussed by residents. Yet according to the F.B.I.’s report, no rapes were reported in Elizabeth in 2010.

Questions

If you have any questions related to any legal issue, contact San Diego attorney Brian R. Mason at www.MasonFirm.com or you can email him at bmason@masonfirm.com or call him directly for a free consultation at (858) 444-5256.

Sources

New York Times

California Becomes 5th State to Prohibit Openly Carrying Handguns

2011-10-12T22:37:00.001-07:00

AB144 Signed by Gov. Jerry Brown

California became the fifth state to prohibit openly carrying handguns in public. The law was heavily opposed by gun enthusiasts. The bill came from state Assemblyman Anthony Portantino, a Democrat from Pasadena.

The bill exempts hunting and shooting events and does not apply to those who are given permits to carry a concealed weapon by law enforcement authorities.

Misdemeanor Crime

AB144 makes it a misdemeanor to carry an exposed and unloaded gun in public or in vehicles, with violators facing up to a year in prison or a potential fine of $1,000 when the law takes effect on January 1, 2012.

Those For It

Portantino said the bill is an opportunity to prevent tragedy before it happens. He said law enforcement officials have been concerned about the proliferation of guns in public and the tense situations that arise when someone sees another person carrying a firearm in public. He said the encounters can escalate quickly because others don't know whether the gun is loaded or unloaded.

Top California law enforcement groups, including the California Police Chiefs Association and the Los Angeles Sheriff's Department, supported the legislation.

The Brady Campaign, which sponsored the legislation, said California joins Florida, Illinois, Oklahoma and Texas as the only states to ban the open carry of handguns. It said 33 states, including Pennsylvania, Michigan, Louisiana and Colorado, do no prohibit open carry. Twelve states, including South Carolina, Tennessee, Minnesota and Massachusetts require permits for open carry.

David Maggard Jr., president of the California Police Chiefs Association, said the group viewed the open carry of unloaded handguns as a safety threat to communities and their officers. He said the bill will help assure that felons and gang members cannot openly carry an unloaded gun with impunity.

Those Against It

Gun advocates and most Republican lawmakers have criticized the law, saying it targets law-abiding citizens. State Assemblyman Tim Donnelly, R-Hesperia, said Brown sent the message that he has no respect for the Constitution.

"There are risks to living in a free state, and for the governor to take away and chisel away at the Second Amendment right when he claimed to respect it, it just kind of shows his true colors," Donnelly said.

"It's really a form of tyranny," he said of the ban.

Sam Paredes, executive director of Gun Owners of California, said sheriff's departments in most major cities in California, including Los Angeles, San Francisco and San Diego, make it difficult for citizens to get concealed carry permits. The association, which has 33,000 members in California, is a pro-gun lobbying association based north of the state capitol.

"For a majority of Californians, this creates an absolute ban on the bear part of the right to keep and bear arms because they can't get a conceal carry permit," he said.

C.D. Michel, a civil rights attorney for the National Rifle Association, said the group has a lawsuit challenging the concealed carry licensing system in San Diego. He said the federal judge in the case ruled the system wasn't a violation of the Second Amendment because residents still had the option of unloaded open carry.

The 2nd Amendment

As much as I fight daily to defend the Constitution, I sometimes wonder if supporters of the second amendment have ever read it. Don't get me wrong, i'm all for the right to own guns. I think it's a freedom and right we should all have. I just don't think the second amendment is necessarily the legal precedent to rely on in every argument for owning guns.

The second amendment says we have the "right to bears arms to maintain a well-regulated militia."

With the exception of the militia Mel Gibson led in "The Patriot" I'm not sure I've ever seen a militia. The point being, the second amendment is out of date and not a quality argument for gun owners in my opinion.

I'm not saying I have an argument for them, I'm just saying it's time to get a new one. Because when one side argues safety ad the other side argues right to bear arms for a militia, safety is beginning to win more and more.

Questions

If you have any questions related to any weapons related offense or criminal case contact San Diego attorney Brian R. Mason directly at (858) 444-5256, by email at bmason@crimedefenselawyer.com, or visit his website at http://www.crimedefenselawyer.com/.

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Sources
The Associated Press and CBS 8 News San Diego

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The Inconsistency of DUI laws in this Country

2011-09-06T14:48:00.001-07:00

Driving under the influence of alcohol is probably the most common crime in this country. It is a crime that touches all classes of people from rich to poor. It is a crime that causes senseless deaths across the country each year. It is a crime that affects everyone: whether you or a family member has been convicted of a DUI or the victims of one...we all know someone.

No matter what state, city, town, county or neighborhood you are in . . . DUI is a common criminal offense. The other thing most states have in common is the elements of the actual offense. It is standard in most states that driving with blood-alcohol content of 0.08 or above is per se driving under the influence.
What is not common in every state is the punishment. In fact, the punishment even varies within states depending on the county the defendant is arrested in. And the punishment doesn't just vary slightly, there are huge differences.

San Diego First Time Offense

In San Diego county, most first time DUI offenders will be given probation with standard DUI terms, including DUI classes and MADD classes. There will also be a short license suspension and a number of fines. However, unless there are aggravating circumstances, a first time offender is not going to serve any jail time on a standard DUI.

Jalen Rose Sentenced to 20 Days Custody for First Offense

Former NBA star and current ESPN analyst Jalen Rose was recently sentenced by a judge in Michigan to 20 days custody on a first time offense. Rose had no prior record and cooperated with police during the arrest and plead guilty early on in the case.

This sentence shows just how much DUI laws can vary throughout the country. The exact same circumstance and crime in San Diego and Rose would have never been sentenced to any custody!

For those of you thinking that 20 days is not that much...you've never been in county jail. If you haven't been to jail before than you should know...20 days is longer than it seems.

And in criminal law...the difference between 0 custody and 20 days is enormous on a first time offense.

The Inconsistency is Nation-Wide

Alaska, Tennessee and Georgia require jail time on first time DUI's. In California, Connecticut and Indiana, no jail is required on a first time offense. According to the USA Today, first time DUI is not even a crime in Wisconsin!

Given how often the crime is committed and the common nature of the elements of the crime, maybe it's time for a little national consistency.

I'm not suggesting that I have the solution or that there even is a solution to this matter . . . . but the thought that the exact same crime can have such a wide range of punishments in the same country . . . it just doesn't feel right.

Questions

If you have any questions related to any criminal or DUI case, contact San Diego attorney Brian R. Mason directly at (858) 444-5256, by email at bmason@crimedefenselawyer.com or visit www.crimedefenselawyer.com.

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How much evidence is needed at Probation Violation Hearings and Parole Violation Hearings?

2011-08-08T23:45:00.001-07:00

One of the most common issues in criminal law is the probation violation and parole violation hearing.

The Issue

The issue arises after an individual has been convicted of a crime and sentenced to either probation or parole. In California, if the defendant was sentenced to less than one year and given local county custody, as opposed to prison, he will be given probation after his release. Additionally, an individual who is found guilty of an offense and not sentenced to any custody will also be given probation. A defendant will be on parole after being released from a prison sentence.

In every case, one of the conditions of probation and parole is that the defendant not commit any new criminal offense. Committing a new criminal offense is a violation of one's probation or parole. As a consequence for violating the terms of probation or parole, the defendant's probation or parole can be revoked and the defendant sentenced to serve time in custody.

The Burden of Proof

It is well known that in a new criminal case, the defendant can only be found guilty of committing a crime if the prosecution proves each and every element of that crime beyond all reasonable doubt. So the question becomes, what is the burden of proof for a persons parole or probation to be revoked?

The answer is that the state only need prove by preponderance of the evidence that a new crime was committed for the probation or parole to be revoked. Preponderance of the evidence means "more likely than not." If beyond a reasonable doubt means you are 99.9% sure then preponderance of the evidence is only 51%.

Because the burden of proof is different, it is very possible that the defendant could be found not guilty of the new offense and still lose the probation or parole violation hearing!

Man in D.C. Allowed to Sue for Unconstitutional Parole Revocation

Charles Singletary was sentenced in 1990 to 9 to 27 years for armed robbery. He served 7 years and was paroled in 1997. Five years later Singletary was arrested for his alleged role in a murder. After the arrest he was released and no charges or indictment was ever issued.

However, despite the fact that he was never charged the parole board revoked his parole based on two witnesses who said he was involved in the murder. Though neither of the witnesses had first hand knowledge and both relied only on hearsay.

Mr. Singletary spent another 10 years in prison where he lost his eyesight as a result of inadequate medical care behind bars. Last week a federal judge ruled that the parole board is liable for the unconstitutional parole revocation.

A civil settlement is now allegedly pending.

Questions

If you have any questions related to any criminal defense case or any parole or probation violation hearing, contact San Diego attorney Brian R. Mason by going to http://www.crimedefenselawyer.com/ Or you can email him at bmason@CrimeDefenseLawyer.com or call him directly for a free consultation at (858) 444-5256.

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Why we should stop attacking the Casey Anthony jury

2011-07-06T15:28:00.000-07:00

As you no doubt have heard, Casey Anthony has been found not guilty of murdering her young daughter Caylee Anthony. Most people have found this to be outrageous news, as the majority of public opinion is that Casey Anthony is guilty of murdering her beautiful little 2 year old daughter.

It’s ok to not agree with the jury, but it’s not fair to judge them or attack them

That jury sat there for 6 weeks of testimony. They were there every day including Saturdays, some Sundays and even a holiday. While we were barbequing on the 4^th of July and watching fireworks, they were listening to arguments and deliberating. While we were at the county fair or the beach, they were listening to evidence and testimony.

This jury put an enormous amount of time and energy into this case. Their entire lives were consumed by this case for the last 6 weeks. Only the jury, the attorneys involved, the judge and his court staff heard all of the evidence in this case.

I say all of this to point out, that we, as a public, don’t know. We weren’t there. We had the opinion of former prosecutor Nancy Grace and other legal commentators, but we didn’t have all of the evidence. Because of that, it’s not right for people to attack and judge this jury.

If you think Casey Anthony was guilty, fine. You’re probably right! But don’t attack the members of that jury because you weren’t there and you have no idea what they went through or why they rendered the decision they did.

Telling your friends and co-workers that Casey Anthony is guilty is not the same as rendering a guilty verdict in a death penalty case!

Speaking of thinking she is guilty, let’s get one thing straight: I believe Casey Anthony is probably guilty of murder. Telling my friends and family and co-workers that I think she is guilty is easy to do. What’s not easy to do, is to sit in a jury box and say she is guilty, knowing that your decision could lead to another person being put to death!

Imagine that . . . if you say she is guilty . . . then she may be executed. The stakes cannot possibly get any higher than that.

If the jury had reasonable doubt – then what they did was righteous – even if it was unpopular

What the jury did was unpopular. Some would say despicable. But each member of this jury had to go home and sleep at night. If in their hearts they truly felt reasonable doubt as to Casey Anthony’s guilt, then they had to let her go. We can’t ask members of a jury to render a death verdict when they have doubts. That’s not fair. It’s not right. If this jury followed their heart and their doubts, then what they did was unpopular, but it was the righteous thing to do. What makes it even more righteous, in my opinion, is that they probably thought she was guilty, they just didn’t know beyond all reasonable doubt.

Don’t Blame the Jury – Blame the Prosecution

The jury followed the law. If the State failed to prove its case beyond all reasonable doubt, then the jury had no choice but to let her go.

I admit that I did not watch the entire trial, but I recorded and watched a lot of it. Two moments stuck out in my mind during closing arguments of prosecutorial mistakes that might have played a role in the decision.

Number one, during the defense closing the main prosecutor was covering his mouth and giggling like a school girl. Maybe he found something to be funny, and what the defense attorney said was kind of funny. But when you are asking the jury to render a verdict in a death penalty case, nothing is funny. It was offensive and disrespectful to the entire process and everyone involved.

Number two, at the end of the prosecutor’s closing argument rebuttal, she said “the only question you have to answer in that jury room is who benefited from Caylee’s death.” She then put a photograph of Casey Anthony dancing at a bar and her tattoo and sat down. That was their big finale.

I’m sorry…but…that is NOT the question the jury had to answer. That was the worst possible statement the prosecutor could have made in my opinion. The jury needed a final sound-bite that would send them to a guilty verdict. They needed the facts, the evidence, the timeline, the lies, the car, the body, the duct tape….something. But the big finale to sum up their case was a picture of Casey dancing with a tattoo. I’m sorry but I’m pretty sure we’ve all danced at clubs and about 80% of people in America have tattoos.

What it said to me with their big finale and final statement was this: “We don’t know whether she did it but we want you to convict her because we don’t like how she was acting afterwards.”

And, at least according to this jury, that was not enough to send someone to death row.

How Long Does a Bankruptcy Case Take?

2011-06-29T10:48:00.000-07:00

One of the most common questions from clients regarding bankruptcy is in regards to how long the entire process takes. The answer to that question depends on a number of factors as discussed below:

Before the Filing of the Case

Before a bankruptcy case can be filed, there are three homework assignments that must be completed by the client. First, it is necessary for the client to provide their attorney with a number of documents, including but not limited to 6 months proof of income, tax returns, mortgage statements, etc.

Second, the client must pay off their attorneys’ fees and court filing fee. At the Law Offices of Brian R. Mason, the fees can be paid in installments; however, the case is not filed until after the fees are paid in full. Additionally, in some cases there can be a waiver of the court filing fee.

Finally, the client must take an online credit counseling course by an approved credit counseling agency.

Once the client has completed all three of those tasks, it takes our office approximately one week of turn-around time to process the case and prepare the filing. Once the case is prepared for filing then the client and attorney meet to review the documents for accuracy and the client signs all documents. The attorney then files the case electronically and a court hearing is set within 30-40 days of the filing.

It is important to note that, the one week turn-around time is in average cases. The case can be filed faster if there is an emergency that must be stopped or delayed, such as a foreclosure.

Chapter 7 Bankruptcy

If the client is filing a Chapter 7 Bankruptcy, then assuming that there are no issues with the case, the client will receive their discharge within about 60-90 days after the court hearing. The client will be required to complete a second credit counseling course within 45 days of the court hearing.

Chapter 13 Bankruptcy

If the client is filing a Chapter 13 Bankruptcy, then the client will be making monthly payments on the consolidated plan for a period of 36 to 60 months before they will receive their discharge. The client will be required to complete a second credit counseling course within 45 days of the court hearing.

If you have any questions related to any bankruptcy case or issue, contact San Diego attorney Brian R. Mason at www.MasonFirm.com or you can email him at bmason@masonfirm.com or call him directly for a free consultation at (858) 444-5256.

Is the Victim’s Consent a Defense for violating a Restraining Order or Protective Order?

2011-06-24T00:10:00.000-07:00

The Issue

Domestic violence is one of the most common crimes charged in San Diego County. It can be defined as an act of physical violence in the home or against a loved one. An individual charged with domestic violence is usually facing a charge of Penal Code section 273.5(a) if the alleged victim was injured, or Penal Code section 243(e) if there was no injury.

In all cases in San Diego County where a defendant is charged with domestic violence, the Judge will automatically enter a protective order or restraining order which prohibits the defendant from having contact with the alleged victim. This is often times difficult as the defendant and alleged victim normally live together, share children together and/or are in a relationship together.

What is difficult for many to understand is that once a domestic violence call has been made to the police and an arrest has been made, the District Attorney’s office will continue with the prosecution with or without the help of the alleged victim. Typically, charges will be pursued by the D.A’s office even if the parties have reconciled or there are no witnesses to the incident other than the parties themselves.

When the Defendant and the Alleged Victim Get Back Together

When the defendant and the alleged victim reconcile, of course this can be good for their family. However, the defendant is breaching the judge’s restraining order by having contact with the alleged victim. This can be problematic.

If the police are called on the defendant, he or she can then be taken back into custody for violating the judge’s order. The defendant then may be facing jail time for the violation of this order or for violating probation by contacting the alleged victim.

Is Consent a Defense to Violating the Order?

In short the answer is no, and a D.C. Appeals Court has recently confirmed as much. In August 2009, Herschel Shirley was found guilty of violating a civil protection order taken out by his ex-girlfriend, Tashi Brown, by trying to reach her by phone. He appealed, arguing that Brown had already agreed to meet with him in an attempt to reconcile, and that the trial court should have considered her consent as a defense.

The District of Columbia Court of Appeals ruled against Shirley, finding that only the court can decide when a civil protection order is no longer in effect, regardless of what the parties involved may agree to or do. The court noted that the civil protection order in this case stated in bold, capital letters that “ONLY THE COURT CAN CHANGE THIS ORDER.”

If you have any questions related to any criminal defense case or domestic violence case, contact San Diego attorney Brian R. Mason at www.CrimeDefenseLawyer.com or call him directly for a free consultation at (858) 444-5256.

Source: http://legaltimes.typepad.com/blt/2011/06/appeals-court-finds-consent-not-a-defense-in-protection-order-cases.html

Have You Committed Hit and Run and Not Even Known it?

2011-06-24T00:08:00.001-07:00

What are the rules if you hit another vehicle with your car? Is leaving a note enough? What if you are in an accident and another person flees the scene, should you call the police? These questions and many more come up too often in hit and run cases. Unfortunately, the questions usually get asked after it's too late and the driver is already charged with a hit and run.

Many people believe that if you leave a note on another vehicle's car, then you have not committed hit and run. However, Vehicle Code Section 20002 states that a driver who causes property damage to another vehicle must either (1) notify the owner of the vehicle and exchange information; or (2) if you cannot find the owner, leave a note on the vehicle where it will be found AND call the police.

I have been involved in a number of cases where a driver hits a vehicle in a parking lot, then leaves a note on the vehicle. The driver innocently believes that he has followed his duty to notify the driver and fails to call the police. Later, the owner of the damaged vehicle reports the accident and the police arrest and/or charge the person who left a note with misdemeanor hit and run for failing to call the police.

This is an innocent mistake made by drivers who do not realize that they are under a duty to call the police. Unfortunately, ignorance of the law is not a defense. These drivers are subject to a misdemeanor conviction under Vehicle Code section 20002(a) for hit and run causing property damage which carries a maximum penalty of 6 months in jail and/or a $1000 fine!

The penalty is serious....so knowing your duty under the law is important! If you have any questions related to any criminal defense case or hit and run case, contact San Diego attorney Brian R. Mason at www.CrimeDefenseLawyer.com or call him directly for a free consultation at (858) 444-5256.

Source: California Vehicle Code

Guidelines for Loan Modification - What does it really take to be eligible?

2011-06-24T00:06:00.000-07:00

One of the most popular topics in society and one of the busiest areas of law is loan modifications. There are so many myths and fallacies surrounding loan modifications that it's hard to know what to believe.

So how do you know if you are eligible for the Making Home Affordable Plan?

STEP 1: If you current first mortgage payment, including taxes, insurance and HOA is more than 31% of your gross household income then move onto to step 2.

STEP 2: Now take 38% of your gross household income and enter it into a mortgage calculator with your principle balance and see if the loan will amortize over no more than 40 years at no less than 2%. If it does, then move onto step 3.

STEP 3: Now take your newly proposed modified payment and subtract it from your net income along with all of your other monthly expenses and debt obligations. If your final disposable income is more than $100 and less than $550 then you should qualify for a loan modification.

CAUTION and DISCLAIMER: You will notice above that I stated you "should be eligible." There are no guarantees when it comes to loan modifications. Unfortunately, the government has created a system intended to help the homeowner, but left the banks with all of the final discretion. There is no right of appeal. Ultimately, your lender has all the discretion in the world to grant or deny your modification, and you may not ever even find out why it was denied! As you can imagine, and surely have heard, this has left many homeowners feeling frustrated and upset after spending months attempting a modification with their lender, only to be denied without giving a reason.

The Law Offices of Brian R. Mason does not accept loan modification cases. However, there are free HUD approved housing counselors that can be found at http://www.makinghomeaffordable.gov/

Source: http://www.makinghomeaffordable.gov/

Employee Privacy Cases Making Waves in Courts in Oregon and California

2011-06-24T00:04:00.001-07:00

The issue of employee privacy should be a concern to any business owner with employees. According to reports in San Diego Daily Transcript, the U.S. Supreme Court is reviewing a case involving the privacy of an employee's electronic communications at work. In the case of Quon v. Arch Wireless, an employee of the City of Ontario California Police Department sued the police agency and its cellular provider for illegally viewing his personal test messages on an agency-issued pager.

The police department had a written policy that limited employees to a 25,000 character limit and if they exceeded the cap, the messages could be reviewed. However, a supervisor told Quon that as long as he paid the overages, his messages would not be audited. Quon paid for the extra charges, but the police department requested, and received, from Arch Wireless, the messages Quon was sending and receiving.

The 9th Circuit court of appeals ruled in favor of Quon, reasoning that because of what Quon was told, and the fact that the police department so rarely audited communications, he had a reasonable expectation of privacy.

In another employee privacy case in Bend, Oregon, two women have filed a $250,000 wrongful termination suit against a Bend employer that raises questions about workplace privacy and confidentiality. The women maintain that they were fired in June of 2008 for disclosing confidential personnel information contained in a computer file they say was accessible to employees at the company. The file had information about a disciplinary action of another employee whom one of the women had accused of sexual harassment, according to the suit.

Both of these lawsuits raise issues with privacy and confidentiality in the workplace. The consensus among most lawyers is that when it comes to confidential personnel files, employers should have a strict policy in place allowing only certain higher level company officials access. The files should not be accessible by all company employees.

As to privacy concerns with employer issued cell phones, pagers and email, employers should have a written policy in place that is enforced at all times. The City of Ontario Police Department had the strict policy in writing but never enforced it.

The safest route with company issued cell phones, pagers and email addresses is to have a written policy that is always enforced and leaves all employees with zero expectation of privacy.

If you have questions related to any legal issues, contact San Diego attorney Brian R. Mason at www.MasonFirm.com or call him directly for a free consultation at (858) 444-5256.

Source: San Diego Daily Transcript

Unborn Son Can Sue for Wrongful Death After Dad's Death

2011-06-24T00:02:00.000-07:00

How old do you have to be to pursue a Wrongful Death action against the killer of your father? According to an appellate court in New York, you don't even have to be born!

In 2002, Jose Colon learned that his girlfriend Tina Feliciano was pregnant. Days later, Colon, 20, was exiting a house as police officers approached. The police were there as a part of a drug raid. At some point, an officer tripped and accidentally bumped into another office. Somehow the officer “inadvertently” fired three shots, one of which hit Colon in the head, killing him. Feliciano later gave birth to Colon's son, whom she named Jose A. Feliciano-Colon. DNA tests would later confirm that Jose Colon was the father.

Feliciano later filed a wrongful death suit on behalf of her son. She joined a lawsuit brought by Jose Colon's mother. The reason? Under New York law, a decedent's survivor, including an unborn son, may sue to recover both pecuniary damages and for a loss of parental guidance.

It's possible that the damages awarded to Jose could exceed those awarded to the estate of the family. For example, the child is the only one eligible to collect for Colon's lost wages, which are estimated at $1.35 Million.

The case has not yet been set for trial, but it will be an interesting case to follow as it may set precedent for wrongful death cases all over the country.

If you have questions related to any personal injury or wrongful death cases, contact San Diego attorney Brian R. Mason at www.MasonFirm.com or call him directly for a free consultation at (858) 444-5256.

Sources: www.Newsday.com, The Wall Street Journal, Findlaw's Injured Newsletter, and Findlaw.com

New Car Smell combined with Sleep Apnea cited in Hit and Run Defense

2011-06-23T23:55:00.000-07:00

Was it really the new car smell that caused the hit and run accident that left a doctor severely injured and in permanent pain? According to defense attorneys: yes; according to common sense, no.

Morgan Stanley money manager Martin Erzinger was driving his new 2010 Mercedes when he lost consciousness or dozed off and hit Dr. Steven Milo who was riding his bike. Erzinger was charged with two misdemeanors and a felony charge of leaving the scene of an accident causing serious bodily injury.

According to defense attorneys, Erzinger suffers from sleep apnea and fell asleep or lost consciousness behind the wheel. The new car smell, or fumes, may have contributed to this. "Harmful and noxious gases emitted from the upholstery can infiltrate the driver's compartment and potentially alter the driver," John Koziol of Koziol Forensic wrote in his report for the defense.

According to reports, Erzinger drifted off the road and hit Milo from behind. Erzinger did not wake up until after he had hit Milo's bicycle, drove another 265 feet on the site of the highway, and finally hit a concrete culvert. Defense attorneys state that Erzinger did not know that he had hit anyone when he woke up and left the scene.

This is not the first case, as we have seen locally in San Diego, to use sleep apnea as a defense to a crime. So far it has not worked, as juries understand that sleep apnea, or being sleepy, is not a get out of jail free card!

If you have any questions related to any criminal defense case or hit and run case, contact San Diego attorney Brian R. Mason at www.CrimeDefenseLawyer.com or call him directly for a free consultation at (858) 444-5256.

Source: The New York Times, Findlaw's Injured Newsletter, and Findlaw.com