Apr
11

George Zimmerman Trayvon Martin Angela Corey & Trial

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George Zimmerman is charged with second-degree murder for the death of Trayvon Martin. What is 2nd Degree Murder in Florida? What is the Florida Self-Defense or Justifiable Use of Force law?

In order to obtain a conviction, special prosecutor Angela Corey, will have to prove beyond a reasonable doubt that what happened the night George Zimmerman shot Trayvon Martin fits into the statute (law) for second-degree murder.  That law is as follows:

782.04(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree  . . . . . .

So if we break this law down into roughly 5 elements, *These elements are rough ideas for illustration and explanation, they are not intended for any other purpose.  The actual elements will be similar, but embedded in many pages of Jury Instructions.

-(1) Unlawful

-(2) Killing of a human being

-(3) When perpetrated by any act imminently dangerous to another and

-(4) evincing a depraved mind regardless of human life,

-(5) although without any premeditated design to effect the death of any particular individual, is murder in the second degree 

Angela Corey (special prosecutor) must prove that George Zimmerman committed each of the elements beyond a reasonable doubt when he shot and killed Trayvon Martin.

The most obvious element, and easiest to prove is element (2); George Zimmerman did kill Trayvon Martin, a human being.  George Zimmerman has acknowledged and admitted this much, and the evidence too shows this to be true.  Element (3) also seems fairly straight forward – the act of firing a bullet from a gun towards another person is an “act imminently dangerous to another.”  So element (2) and element (3) are fairly certain: George Zimmerman killed Trayvon Martin, a human being, by firing a gun which is an imminently dangerous act to another.

Element (5) also seems fairly clear, and in this case, it helps George Zimmerman. What this means is that had the shooting been premeditated, then George Zimmerman would be on trial for first degree murder, but there is no indication in the evidence that George Zimmerman planned to kill Trayvon Martin before the actual shooting. So George Zimmerman acted without any premeditated design to effect the death of Trayvon Martin.

Element (4) will be tougher for Angela Corey to prove beyond a reasonable doubt. Though it does seem possible to prove.  Element (4) says that the Florida prosecutor must prove that in the act of shooting Trayvon Martin, George Zimmerman evinced a depraved mind regardless of human life.  This can be proven beyond a reasonable doubt by asking why the gun shot was not to the leg or foot, or to a non-vital area of the Trayvon’s body? That is, aiming the gun at vital areas seems depraved and disregarding of human life.  On the other hand, it was night time, and George Zimmerman may not have had the vision, nor time to aim with any precision. So element (4) is difficult, but not impossible for the prosecution to prove.

Now, we have discussed elements (2),(3),(4), and (5).  That leaves us at element (1) in our ad hoc analysis.

Element (1) will most likely be the crux of the case.  Element (1) requires that the prosecution prove that George Zimmerman shot and killed Trayvon Martin “unlawfully.”

In the most basic, simple, explanation – it is not illegal to kill another person in self-defense. This very basic principle is extraordinarily complex and entails elements and analysis far more in depth than even the 5 elements we have discussed above.  Each State has a different law about when self-defense is justifiable and when a claim of self defense is not justifiable.  Florida has a statute called “Justifiable Use of Force”  the link to that statute is here:  SELF DEFENSE (FLORIDA).

At this time it is too early to determine which portion of the Florida Justifiable use of Force law will apply to George Zimmerman’s defense.  But the link is there should that statute be of interest for your own investigation.  In sum,  the prosecution may very well be able to prove elements (2)(3)(4)&(5) easily.  However, if the prosecution cannot prove beyond a reasonable doubt that George Zimmerman acted unlawfully,  then George Zimmerman will not be guilty.  George Zimmerman only acted lawfully if his use of force was justified under Florida’s self-defense statute.

* This article does not represent any legal opinion nor is it to be considered legal advice.  The article is merely for illustrating the nuts and bolts of Criminal Statute Analysis.   Parkes Law Group, LLC  does not necessarily agree with the opinions of the author.

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Feb
23

Spirit Airlines Begins Denver Service

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Spirit Airlines has initiated flight services to Denver. This is great news for Denver and the State of Colorado. Increased traffic to the city means more business activities will be brought to Denver, which would help to build the city’s job market. The increasing flights also reflect a rise in demand for transportation in and out of Denver, and it will greatly benefit business travelers.

http://www.bizjournals.com/denver/news/2012/02/16/spirit-airlines-begins-denver-service.html will only benefit business travelers.

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Feb
23

Toby Churchill Ltd., of the UK to open Office in Denver

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Toby Churchill Ltd is a business from the UK that markets communication aides for clients with voice impairments. They plan on opening an their business branch office in Denver this summer focusing on sales and support. This will help create a few additional jobs in the Denver market. The support will include customer and technical support, as well as repairs and servicing for their products. The British company expects to see a growth in their sales and business operation by setting up their business branch office in the Denver metro area.

http://www.bizjournals.com/denver/news/2012/02/13/uks-toby-churchill-ltd-to-open.html

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Feb
21

Reasons for Acquisition

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Corporate acquisition takes place when one company acquires ownership of a different company. The main motive for an acquisition to take place is usually to maximize the value of the shareholders’ interests in the acquiring company. It is a form of corporate operational restructuring that increases business growth, increase managerial efficiency, and maximizes market power of the company. Corporate managers are now facing increased pressure from shareholders in the presence of increasingly more competitive global capital markets and more informed investors.

However, for an acquisition to occur successfully, the benefits must outweigh the costs. Corporate management often needs to foresee several benefits before they make a decision to acquire a new company. The most important benefit is that when two companies are combined, it can avoid duplicate departments, which in turn lower the cost of the acquiring company relative to roughly the same revenue stream, leading to profit-making.

An acquiring company can also buy a underperforming company to benefit from the target company’s tax write-offs, although there are rules to limit the “tax motive” of the acquiring company. Additionally, through financial and operational restructuring, resources can be redistributed in a more efficient manner among the two companies. Lastly, acquisitions can combine the strengths and comparative advantage of the two companies and increase market competitiveness of the acquiring company.

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Feb
12

Jeremy Lin Asian-American NBA Star

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Jeremy, Lin – NBA point guard for the New York Knicks is a Harvard graduate basketball Star. Jeremy Lin is an American with roots in Taiwan, he is the first American Basketball Player of Taiwanese or Chinese decent.  He has taken the NBA basketball world by the horns on its biggest stage – New York City.  Jeremy Lin  is on the fast track to international icon status given the popularity of the NBA and basketball Asia.  The timing is impeccable as many NBA stars have been playing in the Chinese Basketball league because of the NBA lockout. Given the international experience of our attorneys in business and law, Parkes Law Group, LLC is following the Jeremy Lin story with keen interest.

林書豪出生於台灣並在美國成長,擁有哈佛畢業生的亮麗頭銜,如今效忠紐約尼克隊,成為NBA史上的第一位t台裔美國人,林書豪在NBA最大的舞台紐約表現的優越成績,讓他在NBA受歡迎的亞洲的地位迅速提升. 由於勞資紛爭使得NBA停擺,許多球員相繼效忠於中國籃球市場後,使得林書豪的表現更具有代表性. 在與湖人隊的比賽中,連柯比布萊恩(Kobe Bryant)也見識到來自台灣的籃球小子的威力.

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Feb
10

Why Do you Need A Business Lawyer?

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Many business owners make a common mistake: they do not think they need a business attorney until they encounter legal trouble. As a result many business owners, managers, or executives across the globe wake up to find themselves facing legal surprises. They may find that a contract they signed with their partner or customer puts them in dire risks, or they may realize they longer control the business that they have built. It is crucial and cost effective to preempt legal trouble than it is to resolve them by hiring an experienced business attorney before all the problems arise.

Business owners need to consult  a business attorney right away, this will prevent extensive legal problems moving forward. An experienced Denver Business Attorney will appropriately  assist in each stage of the business cycle; assess and evaluate your business structure and contracts to minimize your liability, provide you with options for more sound, informed business decisions. Which type of business structure you should choose to maximize your benefits and minimize your risks. There are several options available for business entities. See our Choosing the Right Business Entity.

An experienced Denver business lawyer or Colorado business attorney can make sure your interests are protected when dealing with customers or  business partners. Disagreements between partners and customers can arise and cause the business to fail, become involved in a lawsuit, or even consider bankruptcy.

A well-written partnership agreement can help a business owner prevent potential legal troubles in the future. Likewise,  a carefully drafted contract can clearly define rights and obligations of parties in a business transaction that will ensure certainty, reduce risks in dealing with customers, and allow you the peace of mind to focus on business. In the event of a dispute with your customer, a business lawyer can either assist you in collecting a debt or to settle a claim by drafting a settlement agreement. These legal documents are essential to a business’s viability and can only be drafted and reviewed by an experienced business attorney.

Further, an experienced business lawyer can make sure you stay compliant with the laws and regulations of the State and Federal legal requirements. Businesses must be aware of various legal fundamentals.  Many businesses remain of these requirements negligence. These include maintaining the formality of the business and staying in compliant with sound employment practices. By following the law you also protect yourself and your assets from potential liabilities such as when you become the alter ego of the corporation unintentionally by combining your corporate and personal accounts. An experienced business attorney can also advise you on important matters including confidentiality and non-compete agreement with your employees, as well as ensuring that you comply with anti-discrimination laws that your employment application avoids asking discriminatory questions.

The man legal troubles laying await ahead of many businesses should not be ignored. It is crucial that you find a business lawyer right now, before any problems actually arise. Your business lawyer should be able to help you and your business stay out of trouble.

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Feb
08

Los Derechos Penal – La Lectura de acusaciones

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NOTIFICACION DE DERECHOS EN LA TRAMITE PENAL Y LA LECTURA DE ACUSACIONES

Usted es considerado inocente. Esto significa que usted tiene el derecho de declararse no culpable y tener un juicio en el cual la Fiscalía tendría la obligación de probar que usted es culpable mas allá de una duda razonable.

Si usted está bajo arresto, usted tiene el derecho a que el Juez le fije una finanza de un monto razonable para garantizar que usted cumplirá con todas sus citas en el Juzgado.

Usted tiene el derecho a tener un abogado. Usted Puede contratar a un abogado.  Puede contratar a un abogado privado (aquí)  ó  usted puede solicitar un abogado Defensor Público.

Usted tiene el derecho de tener un juicio con un juez o con jurado.  Usted tiene el derecho de tener un juicio rápido. Cualquier demora que usted cause ó que usted solicite no cuenta como parte de la cuenta del días por un juicio rápido, claro.

Usted tiene el derecho de tener citatorios de comparecencia obligatoria para requerir a sus testigos  que vengan al Juzgado a testificar en tu favor. 

USTED  tiene el derecho de testificar ó de permanecer callado en el juicio, no puede ser forzado a testificar. A veces es major para permanecer callado y si usted eligir silencio, ese silencio no puede ser usado en su contra.

USTED tiene el derecho de carear a cualquier testigo llamado por la Fiscalía.  Usted tiene el derecho de llamar a testigos en su favor. 

USTED SE CALLA, ES SU DERECHO MAS IMPORTANTE. 

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Nov
09

Plea Bargains in the Criminal Judicial Process (Part 2 of 2)

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Factors in Deciding to Take a Plea Bargain:

All decisions depend on the gravity of the charge, (if it’s a first time misdemeanor or a 3rd degree felony) compared with the quality of the plea bargain offer (how much of a reduction from the original charge to the offered charge). Sometimes a plea bargain agreement offer can be so good that it is very difficult to turn down. Other times, the plea bargain agreement offer may not even be a reduction of charges. Outside of the obvious times when the plea bargain agreement is very good or very sour, many factors enter into the equation.

The Quality of the Evidence for the Prosecution & The Quality of the Evidence for the Defense:

In sum, if the district attorney has such great evidence against you as a defendant, that it will be very easy for them to convince a jury beyond a reasonable doubt that you did commit the offense for which you are charged, then a plea bargain may be a very good idea.

On the other hand, if the evidence that you have in your defense, or if there is not very much evidence that the district attorney prosecution has – then it will be very difficult for the prosecution to prove their case against you to a jury. This is especially true if you have a skilled and experienced criminal defense attorney. A skilled and experienced criminal defense attorney can help explain to the jury where and why there is a reasonable doubt based on the evidence available. In this case, you may want to think twice about accepting a plea bargain because the likelihood of success at trial is greater for you.

Avoid the Time & Trouble:

It is no secret that any involvement in court is time consuming and can cause headaches and strains on your time and on the time of others who you may rely on for a ride or other matters. A criminal trial can magnify the time and hassle of court because under normal conditions, the defendant must be present. Furthermore, a criminal trial will include witnesses and other people who either played a role or are relevant to the case for some reason. If your time and the time of others is more valuable than having the charges in the plea bargain on your record, then the plea bargain agreement may be more attractive.

Having a Lesser Charge:

Many people choose to accept plea bargain agreement offers because it substantially reduces the charges on their record. This can be quite important in many instances. One instance is a domestic violence charge. Here, there is a social stigma attached to a domestic violence charge and what is more, there are many employers who will not hire somebody that has such a charge on his or her record. So under these conditions, if it is clear that a plea bargain will reduce the charges to such an extent as to remove that stigmatizing statement, then it may be a very good idea to accept the agreement. Again, all of these factors, including this one depends on the evidence available to each side and the likelihood of success in your particular case.

Additionally, if you are charged with a crime that you already have in your record (that you previously committed and were convicted) and the plea bargain agreement offers a charge that is different from that, thus avoiding a “repeat offense” then the plea bargain may be attractive. Under the laws in most states and cities, sentencing and consequences increase substantially with each repeat offense. So here, if the plea bargain agreement changes the charge to a different charge and allows you to avoid a “repeat offense.” Then it will be attractive and must be considered.

Getting out of Jail:

If you are offered a plea bargain agreement, or your loved one is offered a plea bargain agreement, and they have been in jail for all the time required under the plea bargain charged, then by accepting the plea, they can get out of jail. This scenario is often referred to as “time served.”

Saving Money:

Criminal Trials, court fees, and paying a skilled criminal defense attorney can be expensive. If the charges are such that you feel you are better off saving the money and having the charge on your record, then the plea bargain agreement charge may be the right decision. For this factor, any charge that you are convicted of (plead guilty to) whether by plea bargain agreement or by trial, you will be faced with court costs and fees.
If you go to trial and win, meaning you go to trial and you and your attorney establish in the minds of the jury that there is enough doubt of your guilt to be acquitted, then you pay nothing to the court.

Click here for more about Parkes Law Group‘s criminal defense services.

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Oct
25

Plea Bargains in the Criminal Judicial Process (Part 1 of 2)

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You’ve heard of a plea bargain and if you are facing criminal charges you need to know more. So what is a plea bargain, and why is it used to so often?

A plea bargain is sometimes called a “plea agreement.” It is an agreement not to go to trial and instead, plead guilty (or sometimes no contest) to a lesser charge or lesser consequence. Basically, the defendant is agreeing to plead guilty to a reduced charge or consequence than what he or she was originally facing.

For example, if you are facing an assault charge for getting into a bar fight. A plea bargain for disturbing the peace with probation may be worth your while. It can save you time, money and the risk of losing at trial to  face a sentence that a jury or judge decides, not to mention having an assault charge on your record instead of a disturbing the peace.

Many factors go into deciding whether a plea bargain agreement is a good decision. (Discussed in Plea Bargain Blog Post #2)

First, it is important to know what rights you, as a defendant, are waiving (giving up) in order to accept a plea bargain agreement:

All defendants in a criminal trial in the United States and in Colorado have the following Rights:

  1. The right to plead not guilty and have a trial by jury.
  2. The right to an attorney to represent you throughout the trial and all proceedings leading up to the trial.
  3. The right to an attorney, if you cannot afford a private attorney, the court will appoint an attorney for you.
  4. The right to be presumed innocent throughout the criminal process and trial until the prosecution proves beyond a reasonable doubt that you (the defendant) are guilty of all the elements of the crime for which you are charged. (See our previous Casey Anthony post)
  5. The right to present evidence in your defense and the right to compel the attendance of witnesses by subpoenas issued by the clerk of the court.
  6. The right to remain silent at all times. The right to remain silent at trial. If you choose to remain silent at and through the trial, that silence cannot be used against you.
  7. You have the right to testify in your own defense – this is at your option as you also have the above-mentioned right to remain silent throughout trial.
  8. After the trial, should the verdict not be in your favor, you have the right to appeal to a higher court to review the judgments of the Court.

When a person decides that taking a plea bargain agreement, they must waive ALL the rights listed above. In the court room, the judge will ask the defendant that they fully understand the rights they are waiving and that they are giving up these rights voluntarily and at their own choice.

Ultimately, the judge decides whether or not to accept the plea bargain. So even if the prosecution agrees to thinks it is fair, the judge may still reject the agreement. Ordinarily, judges give great deference to an agreement between the prosecution and the defense. While uncommon, judges can and do reject plea agreements. So nothing is final until the judge accepts the agreement and signs it.

(More information is available on our Criminal Defense Page)

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Jul
17

Casey Anthony Verdict & Commentary

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The Casey Anthony trial has been well documented across the nation.  The main not-guilty verdict caught many by surprise. Here is an informational Commentary:

First, is Casey Anthony innocent?  The answer to this is maybe.  What we know is that Casey Anthony was not proven guilty beyond a reasonable doubt for the crimes for which she was charged.   What this means is that under the United States legal system, Casey Anthony is innocent. We are all innocent until proven guilty beyond a reasonable doubt.   At law, Casey Anthony is innocent. In fact is Casey Anthony innocent? Only she really knows the answer to this question. However, because I was not there I will give her the benefit of the doubt.

In order to prove any defendant guilty, the prosecution must prove to the jury each element of the crimes that are charged. Each element must be proved beyond a reasonable doubt.

For example:

If the crime is stealing candy bars from the gas station and the language of the Statute defines the crime as “intentionally taking candy bars from gas stations without paying”

Here the crime has 5 elements:

(1) Intentionally, (2) candy bars, (3) taking from the (4) gas station , (5) without paying

If Joey teenager steals a pack of gum from the candy store, then he is not guilty of this crime.  Why? Because gum is not a candy bar and the prosecution cannot prove beyond a reasonable doubt all of the elements of the crime.  They cannot prove element 2, the “candy bar” element.

Could Joey teenager be guilty under a different law?  Absolutely.

Additionally, maybe Joey put the gum in his pocket and he placed a candy bar in his buddy’s back pack.  When Joey gets caught, there is only evidence that he took the gum because the candy bar is in his friends back pack and not on Joey’s person.

Here,  Joey absolutely did take the candy bar but will still be innocent because there is no evidence to prove beyond a reasonable doubt that he also took a candy bar.  Maybe the only evidence is that there is one less candy bar in the box at the gas station.  This is some evidence that a candy bar was stolen, but there is no evidence linking Joey to the missing candy bar and the evidence available is not sufficient to prove beyond a reasonable doubt that  a candy bar was stolen.

As this relates to Casey Anthony case:

Casey Anthony was charged with 7 crimes,  4 of these seven crimes were identical, this means they have the same elements.

  • First-degree murder
  • Aggravated child abuse
  • Aggravated manslaughter of a child
  • 4 counts of providing false information to a law enforcement officer.

Casey Anthony was proven guilty to all four counts of lying to a law enforcement officer. This means that the prosecution had enough evidence to convince a jury of each element of the crime “lying to a law enforcement officer” beyond a reasonable doubt in four separate instances.

Casey Anthony was not proven guilty on her other three charges, First-degree murder, Aggravated child-abuse, and Aggravated manslaughter.

Might Casey Anthony have been proven guilty on numerous other charges?  It is very possible that she would have.  The prosecution however did not bring any other charges except for the seven discussed.

In other words, Casey Anthony could have been guilty of misdemeanor charges of child neglect, or child endangerment etc.  However, these charges were never filed against Casey Anthony and so we will never know if there was enough evidence to prove her guilt beyond a reasonable doubt on these other charges.   All we know is that the prosecution did not prove Anthony’s guilt beyond a reasonable doubt for each element of “First Degree murder” and each element of “Aggravated child-abuse.”

So who decides what Charges to bring?  How?

The prosecution decides what charges to bring against a person based on the evidence that they have available to them.  Generally, the prosecution will aim to charge persons with the most severe crime that the evidence suggests.   Once there are a handful of possibilities, each state has a different way of deciding what charges to actually bring and often a grand jury is involved for more serious crimes.

Additionally, prosecutors will not actually bring charges against a person if there is not enough evidence to get a conviction.  A conviction means proven guilty beyond a reasonable doubt on every element of the charge.  It would be injustice to do otherwise to the alleged victims.

In the Casey Anthony case,  it appears that the prosecution had a sufficient amount of evidence to bring the charges that were brought against Casey Anthony.

Sometimes there is not the right charge for the evidence. Sometimes there is not the right evidence for the charge.

The truth, the whole truth, and nothing but the truth is that under the criminal justice system of the United States a person is innocent until they are proven guilty beyond a reasonable doubt. In Casey Anthony’s case she is not guilty of murder or aggravated child abuse.  The remarkable thing about the United States system is that relative to most other countries in the world, the system generally works. The United States system values personal liberty and human rights of the individual above all else.

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Jun
07

You have the RIGHT TO REMAIN SILENT

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We all have the right to remain silent.  This goes for Michael Vick, your kindergarten teacher, the postman,  Lindsay Lohan, your grandmother’s book club,  Arnold Schwarzenegger, me, and you. The right to remain silent is a constitutional right and is fundamental to anybody facing criminal charges. If you are silent,  your criminal defense attorney has a much greater chance of success.

In its absolute, we all have the right to remain silent anytime to anyone.

What is important here is that you understand your right to remain silent and how this right can keep you out of jail and avoid fines.

What to do if you are approached, questioned, or even arrested by a police officer, detective or any other law enforcement authority:

The easiest answer is to remain silent.  It is perfectly fine to be cordial, cooperative and polite with the police – you do need to cooperate with them in providing basic information, such as your name and identification.  However, past this point, you need to absolutely say nothing.  Say nothing about you, say nothing about your friend or another person, say nothing about anything or event – even if you know about it – you have the right to remain silent, use it. Remaining silent is not a crime, its your right and it is often essential to your criminal defense.

Any question the cops ask in an investigation is a trap.  I will repeat this, any question the cops or police officers ask is a trap.  Do not answer it.

Take it from this criminal defense attorney – the police officers and cops are very well trained miners for information. If they can get you to talk it is like they struck gold.  You want to keep your golden information your own and not give anything to the police.  Giving away your golden information only harms you.  Be silent about everything, and only ask the police questions.

Ask the police only two questions: (1) Is this conversation being recorded officer?  (2)  Am I free to leave officer?   The police will respond they with their own questions (answering questions with questions) – do not answer these questions – they are traps.  Rather, repeat the two questions above. Make sure the police answer your question: “Am I free to leave officer?” If they say no, then you are not free to leave.  If they do NOT say no, then leave.

If you are not free to leave, which may be the case, do not say anything.  Exercise your right to remain silent and say absolutely nothing, remain silent.  If you are not free to leave, say that you want an attorney and contact a criminal defense attorney as soon as possible.

Police officers are smart, well trained and crafty.  One trap they often use is “the deal”: they say that with your cooperation, they will give you a break, or a deal.  In fact, the police officers do not have such power; they are just trying to coerce you into giving up information.  Without information, the police have no case against you.   They are mining for information, and you hold the gold.  You do not have to release your golden information – it is your right to keep it.  If the police start talking about making a deal, say that you want an attorney, then remain silent – if they ask you another question,  say that you want an attorney and remain silent.

The law works this way:  The police officers investigate violations and crimes, and enforce the law.  The district attorneys are the lawyers that work for the state and prosecute you and put you in jail.  The prosecution, or district attorney, does have the power to make deals and cut you’re a break. The police officers do not and cannot make a deal.  If a cop or police officer offers you a deal, remain silent.  They are tricking you.  Guaranteed.

Another typical trap scenario is the “We already Know” trap: involves police and cops suggesting that they already know what happened and that they already have you. Perhaps they tell you your buddy was caught and told them everything and that your caught.  Logically, just think, “if they already have this information, why do they need it from me.”   The answer is that they do not have any information and they are trying to trick and trap you into giving them information.

Ask the two questions:  (1) Is this conversation being recorded officer?  (2)  Am I free to leave officer? No matter what the answer, remain silent.  Do not answer any questions beyond giving them your name and identification. Make sure they give you back your identification as soon as possible.  This is one way police officers keep you there, they hold your documents – Ask for them back, demand it.  Then ask the two questions, and walk away.

If you happen to be arrested, or if you know somebody who has – please be very careful not to speak with other ”inmates”  it is common practice that the police will have an undercover officer in the common areas, or even in your cell.  They will try to get answers and information from you this way.  Be absolutely silent to inmates, and even friends about anything you may know about.  Talk to nobody except your criminal defense attorney.

Police officers are to be respected. While they are not anybody’s favorite, they are the first people you call when you are in trouble.

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May
30

Can Debtor Obtain Student Loans After Filing Bankruptcy?

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It is not uncommon that consumer debtors going through Chapter 7 bankruptcy or Chapter 13 bankruptcy worry that they or their kids will be prevented from getting student loans. This is a legitimate concern. The answer is: “It Depends.”

Student loans are obtained from two main sources: government-backed student loans and private student loans. Filing for bankruptcy will not cause a person to become any less eligible to apply for a government guaranteed loan, which constitutes the majority of all student loans. Under 11 USC § 525, the provisions on protection against discriminatory treatment will guard against denial of granting student loans to former bankruptcy filers.

On the other hand, if the debtor intends to borrow from a private student loan provider such as a bank, the financial institution providing for the student loan will most likely examine the personal credit ratings and deny the loan application upon their own discretion. This means a debtor’s ability to obtain a private student loan will be greatly diminished for years until his or her credit is rebuilt.

To fine out more about what you can or cannot do after you file bankruptcy, contact our experienced Denver bankruptcy attorneys to set up a confidential, free consultation.

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May
29

When is the Right Time to File for Bankruptcy?

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Many of our clients often wonder if they can get out of debt without filing for bankruptcy. The two most common reasons for not wanting to file for either Chapter 7 bankruptcy or Chapter 13 bankruptcy are worries of hurting one’s credit, and when the debtor feels a strong moral obligation to repay the debt. Both reasons provide legitimate grounds for avoiding bankruptcy, although they do not suggest any actual, effective solutions to solving certain debt problems.

There is no definite rule for assessing when or whether a person should file for bankruptcy. However, certain indicators would suggest that it may be in a debtor’s best interest to consider filing for bankruptcy as the most sensible option for debt relief. Among these indicators are the following:

  1. When the debtor is receiving wage garnishment. This suggests that a civil lawsuit for debt collection had already been filed against the debtor and a write of garnishment had been issued. In order to stop the garnishment, the debtor either has to accept garnishment of his or her paycheck for up to 25% of all earnings until the full amount of debt is paid off, or to file for bankruptcy protection to stop the garnishment.
  2. When the debtor’s expenses far exceed regular monthly income. Many bankruptcy filers got to where they are at today not because of their excessive spending habit, but for their lack of regular source of income to catch up on their bills. In many cases, the core of the problem is the debtor’s insufficient income to pay off the debt, interest and late fees. Moving forward without any effective solution to eliminate the debt means what little future earnings there might be would be garnished by the creditors or be paid towards interests but not the principle amount. Bankruptcy may be the best option for the debtor at this point.
  3. When the debtor is going through a foreclosure on his or her home or a vehicle repossession. When these events take place the debtor’s credit is already damaged severely. Moreover, after the foreclosure or repossession take place, the creditor will most definitely file for a civil lawsuit for debt collection to recover the deficiency resulting from the resale of the house or the car. If the debtor is unable to repay the deficiency, he or she may face garnishment of wages.
  4. When the debtor can afford to repay some of the debts. In some instances where the debtor has regular monthly disposable income, he or she may want to file for Chapter 13 bankruptcy, which allows for the consolidation of debt into one easy monthly payment made to the Chapter 13 Trustee through a Chapter 13 bankruptcy repayment plan. During the duration of the repayment plan, the debtor is protected from the harassment or collection attempts by the creditors. This legal protection would not otherwise be available if the debtor attempts to resolve debt through hiring a debt consolidation company.
  5. When the debtor wishes to save a secured property. Oftentimes when a debtor is facing a foreclosure on his or her home or a vehicle repossession, he or she would like to keep the secured property. Chapter 13 bankruptcy may be available to help saving these properties because it allows the debtor to “cure the arrearage” through the Chapter 13 bankruptcy repayment plan.

In sum, fling bankruptcy can be a very positive, life changing experience for many. It is strongly advisable that you find a bankruptcy attorney who is willing to explain the different bankruptcy options that are available to you. To find out more about your rights to file for bankruptcy protection under federal laws, please call our Bankruptcy Law Office at (303) 781-1533 to set up a confidential, free consultation with one of our experienced Denver bankruptcy attorneys.

 

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May
06

Every person is PRESUMED INNOCENT until Proven Guilty Beyond a Reasonable Doubt

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Criminal law, under the United States Constitution, is based upon a few key fundamentals. Among those fundamentals are the right to a trial by jury and that the accused defendant is presumed innocent until proven guilty beyond a reasonable doubt.   Under the United States system of criminal justice, the prosecution (district attorneys) must prove that the accused is guilty beyond a reasonable doubt to that jury.

What is also important here is that the burden is on the prosecution to prove guilt, it is not the burden of the accused defendant to prove innocence.  The defendant is presumed innocent.   Because Colorado is a State within the United States these principles apply in Colorado.

The legal principles of criminal law and criminal justice mentioned above are also part of the Colorado Constitution and law.

Section §18-1-402 of the Colorado Revised Statutes reads as follows:

“Every person is presumed innocent until proved guilty. No person shall be convicted of any offense unless his guilt thereof is proved beyond a reasonable doubt.”

This law, describing some of the fundamental rights of the criminal justice system was enacted in 1963 in Colorado, though it has been the law since Colorado became a State under the state and federal constitutions.

Why this provision is so important is because it establishes the standard by which the criminal legal system operates.  It is also the most important consideration for a criminal defense attorney, as well as the district attorney prosecutors.

Beyond a reasonable doubt is not a concrete notion, we all have some sense of what it means,  but what “beyond a reasonable doubt” means  for one person may be very different from what “beyond a reasonable doubt” means for another person.

Importantly, and most fundamentally, regardless of what “beyond a reasonable doubt” means to any particular person, each accused defendant in a criminal jury trial is absolutely presumed innocent until proven guilty.  So, if two people on the jury differ in their own understanding of what  “beyond a reasonable doubt” means and they just cannot agree on the defendant’s guilt, then the defendant cannot be guilty.  Why? Because every criminal defendant is presumed to be innocent until proven guilty.

 

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May
02

Creditor and Debtor Psychology Considered

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We have heard countless stories from our clients about their horrible experiences in dealing with creditors and their collection agents. One story in particular, one of our clients was threatened by the collection agent that they were sending Mafias and hunting hounds of Arabia to chase her down! Needless to say, she was in deep emotional distraught and fear when she found our firm.

Indeed, bill collectors are often rude, abusive, and insensitive. Their collection strategies are frequently improper and may be limited by the Fair Debt Collection Practices Act (FDCPA) and its state counterpart. See our article “What Can A Creditor Do When You Don’t Make A Payment?” Unfortunately, debtors generally do not know enough about their rights under law. Upon receiving a harassment phone call, most people feel obliged to explain to the debt collectors the reason they are falling behind on the bills and try to make arrangements for partial payments or settle the debt without an attorney’s assistance.

A debtor’s good faith attempt in making partial payments often amounts to a waste of time, money, and energy. By making some partial payments in attempting to keep the creditors and their collectors off their back for at least a short while, the debtor is effectively investing in more – financially and emotionally – to patch a financial hole that cannot be sealed. As time goes by, the debtor is often inclined to rationalize his or her increasing investments in “debt repayment” as a “good faith gesture” that would be welcomed and respected by the creditors or collection agents. Moreover, in the debtor’s mind, it is only the right thing to do to pay back the debts and create good karma. This creates a “Snowball Effect,” as my colleague calls it, because the sense of responsibility to pay back the debts increases exponentially as the debtor finds him or herself more and more invested in the debt repayment trap over a long period of time, until the snowball finally splashes to the ground and the debtor could no longer afford to make any further payments. At last, the debtor considers bankruptcy as the only remaining option, a step that could have been taken from the very start, all the while saving hundreds if not thousands of dollars that got sucked into the debt repayment scheme destined to fall apart.

Bill collectors, on the other hand, are not always considerate of the debtor’s financial hardship. They work in teams; today you might talk to Bob and make a debt repayment arrangement, but tomorrow Jane will call you and demand full payment without acknowledging any prior deals you have made with Bob. Even if you have dealt with one collection agent, say Bob, all the way along, your good faith attempt to make a payment arrangement would not always be appreciated. Collection agents are humans, and even the most thoughtful and considerate collectors become desensitized after working with hundreds if not thousands of debtors. Moreover, the collection business is extremely competitive and results oriented. It is unsurprising to find that over time, the collection agents realize that it makes more tactical sense to adopt certain toughness and rudeness in their persona, which allows them to achieve better results than agreeing to settle for less.

Having these understandings in mind, it usually makes more financial sense to file for bankruptcy under either Chapter 7 or Chapter 13 than attempting to settle debt or make a payment arrangement on your own. If you feel you are ethically bound to pay for your debts, however, a skilled bankruptcy attorney can also assist you in making debt settlement offers to your creditors.

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