Archive for the ‘New Orleans Criminal Defense Articles’ Category
Background Check Buyer Beware
In today?s world background checks on other people have become a necessary part of our business and sometimes, personal life. What parent now days would not first check a person?s background before they hire a nanny for their children, for example? And what small business wouldn?t check the background of a person hired to manage the bank accounts of that business? Large businesses issue Requests For Proposals to choose a background check company that best suits their needs in terms of the services offered, information management, price and reliability. They then usually establish a long term relationship with that selected company. But what about the rest of us? Are we even allowed to ?check up? on another person and how do we go about it?
SURPRISING TRUTH # 1: Anybody can do a background check on anybody, any time they want to. Now I know that I?ve lost some of you who now think that I am off my rocker because you know that there are all sorts of forms that you have to sign with all kinds of legal warnings with criminal penalties and such, but I?ll say it again. ?ANYBODY CAN DO A BACKGROUND CHECK ON ANYONE, ANY TIME THEY FEEL LIKE IT.? Because I want you to read this whole article, I am not going to explain those statements until further into the article.
SURPRISING TRUTH # 2: There is no instant national database of all criminal records that you can access. Now I know that you are sure that I am crazy. ?Why just last night on Law & Order they got the bad guy?s record . . .? There, you are talking about NCIC, the National Crime Information Center or otherwise known as the FBI files. While the FBI maintains the best and most accurate records, unfortunately, you can?t get them, unless of course you are a federally insured bank, a defense department contractor, a nuclear power plant, a branch of the government itself or some other such entity. A surprising amount of otherwise intelligent people think that there are giant government databases with information on everyone including their criminal history, job history, credit files an even what books they check out of the library and what videos they rent. If that were true, why does it take the government itself four months and $2400 to conduct its own background checks? Don?t believe me? Look here: http://www.opm.gov/extra/investigate/FIN-2002/fin02-01Attach1.asp
SURPRISING TRUTH # 3: There is a big, big difference between everywhere and anywhere. These database companies advertise that they search everywhere, or at least that?s what they want you to believe. Using the word Nationwide is designed to make you think that they check everywhere. The question then becomes, ?If you don?t check everywhere, what do you check?? The answer is that you should check anywhere a person has lived or worked. Does it really help to check a database of Orange County, California if the person has always lived and worked in Orange County, Florida or vice versa?
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So if there?s no such thing as an instant nationwide database what are these companies selling? First let me tell you what these databases are good for and then I?ll tell you why they are dangerous. In some states of the USA their REAL criminal records are available in some kind of publicly accessible form. It may be on the internet and it may require a subscription or acknowledgement of permissible purpose for its use, but it is available. Texas is a good example of this. For a small fee you can go online and access the REAL criminal records of the state of Texas. Florida, Minnesota and Virginia are other examples of where you can get via these database services what I call ?REAL? records. The problem is that these database companies don?t tell the consumer (you) that is most cases and in most areas of the country you are getting either nothing or marginal information at best.
Here’s why. The companies that collect and sell these database records, and the hundreds of companies that re-sell this information do not emphasize the weakness of their systems. This is why they emphasize the words ?instant? and ?nationwide? in their promotions. Everyone wants cheap and instant as opposed to slow and expensive, don?t they? Can you imagine a website that advertises ?Slow And Expensive Limited Area Background Checks.? But, in fact, some areas of the country, like the Carolinas and most of California require exactly that, records that must be searched in person at each local county courthouse.
These companies get records where they can get them for free; usually from a state’s Department of Corrections, which means you are only getting info on a person if he/she has been convicted of a felony and sentenced to prison. When most people think of a criminal history background check they think of all arrests and convictions; both misdemeanors and felonies and the court disposition, guilty or not guilty and the sentence. As you can see, if you are getting only felony convictions, you are getting only a small piece of the pie. For example; a person could be arrested a couple of times for having drug paraphernalia or a small amount of drugs in his or her possession. If the records you are getting only include felony convictions, you would have no record of that person?s drug abuse.
The other problem that these Instant Nationwide background checks have is that in many areas of the country they get nothing at all because the states or the county superior courts or district courts don?t furnish them with free records. Here is another example: Suppose you are a parent in San Francisco, Las Vegas, Salt Lake City, Boston, Atlanta or New Orleans (just to name a few) and you want to do a criminal background check. You go online and type in ?background check? in Yahoo or Google and right away you see the ads for the ?Instant Nationwide? background checks. You choose one of the websites that offers instant records, you pay your $19.95 or $49.95 and you put in the information on the person you want checked. Instantly the website tells you that there is no record found based on the info that you have provided. You feel great! You go ahead and tell the nanny that she can start tomorrow because she has passed the background check. Here comes the big kick in the gut. . . What the website didn?t tell you is that their database records don?t search any of those areas at all. You just paid $19.95 or $49.95 and got NOTHING, ZERO, ZIP, NADA. Disclosure: Actually the proceeding sentence is not 100% true. In Nevada and Louisiana the databases do search currently incarcerated prisoners in their respective prison systems. So if your potential nanny is in prison right now then it would tell you that he/she is in prison, but I guess you would already know that.
Now to explain the # 1 Surprising Truth: I?ll say it again: Anyone can check anyone, anytime. If you are so inclined, you can check the criminal or civil record (or lack thereof) of your daughter?s boyfriend (I do that on a regular basis) your crazy neighbor next door, your business partner, your doctor, your ex-husband, your mayor or even any of the presidential candidates. In fact, you don?t even have to be a citizen of the USA to get these records. You can walk into the Superior Court (District Court in some states) clerk?s office, in the jurisdiction where that person lives/lived, go up to the counter, fill out a slip of paper, hand it to the clerk and wait for the results. Remember that you will only get the records from that county, i.e., if a person lived in multiple counties you would have to check each of them. The subject of your search could be an axe murderer from the next county over, but your county court clerk would not have a record of it.
OK, now you?ve got the information, what do you do with it? This is the area where the law is concerned; what you do with the information! If you use this information to discriminate against a person, deny them employment, housing or entrance to a school, etc. then you are violating the law and opening yourself to big time liabilities and possible lawsuits. This is what all of the consent forms with warnings are all about. It?s not the getting of the information that the laws are concerned with but the use of it.
In summary, read the fine print and ask questions to get the real records you want.
Originally published here.
Kit Fremin
Difference Between an Appeal and an Application for Writ of Habeas Corpus
People are often confused as to the difference between an appeal and an Application for a Writ of Habeas Corpus.
APPEAL
An appeal (also known as a ?direct appeal?) is taken immediately after a conviction and sentence. A person generally required to file a brief statement with the court called a ?Notice of Appeal? within a short time after he is convicted. For example, with some limited exceptions, a Notice of Appeal must be filed within 10 days after a person is sentenced in a federal case and within 30 days after a person is sentenced in a state court case in Texas.
An appeal is limited to what is ?in the record.? In other words, if an issue was not brought up through a pre-trial motion or at trial, it generally cannot be raised on direct appeal (of course there are some exceptions to this rule). Generally, in order to have the possibility of winning an appeal, three things must have happened: (1) The trial judge must have committed an ?error? (i.e. did something he should not have done or did not do something he should have done); (2) The defense lawyer objected to the error at the time it was made; and (3) The error was harmful (i.e. the error might have affected the conviction or sentence).
There are four possible outcomes from an appeal: (1) The conviction and sentence can be affirmed; (2) The defendant (called the ?appellant? on appeal) can be given a new trial; (3) The defendant can be given a new sentencing hearing; or (4) The defendant?s conviction can be overturned and he cannot be retried.
In the federal system, an appeal is taken to one of the twelve courts of appeals. For example, a person convicted in federal court in Texas, Mississippi or Louisiana takes an appeal to the United States Court of Appeals for the Fifth Circuit that sits in New Orleans, Louisiana. The Appellant the case submits a written brief, arguing the issues to be raised on appeal, to the Court of Appeals. The government is given an opportunity to respond with its own brief and then the Appellant can file a reply brief to the response. Often times, but not all the times, the lawyers will be called to New Orleans to argue the issues raised on appeal Eventually the Court of Appeals will render its decision in the form of a written opinion. While the time can vary greatly, generally speaking, it takes about 9-18 months from when a Notice of Appeal is filed to get a decision from the United States Court of Appeals for the Fifth Circuit. If either side is not happy with the result of the appeal, that party can file a Petition for Writ of Certiorari with the United States Supreme Court asking the Supreme Court to consider the case. Unlike, the Court of Appeals, the Supreme Court does not have to consider the case and, indeed, it considers less than one percent of the cases it is asked to hear.
In Texas, and in most other states, an appeal is taken to a state court of appeals. In Texas, there are fourteen courts of appeals. Like in the federal system, an appeal is decided by a three judge panel of the particular court of appeals that hears the case. The party that lose a criminal appeal in a Texas court of appeals can then ask the Texas Court of Criminal Appeals (essentially the Supreme Court in Texas for criminal cases) to consider its case by filing a Petition for Discretionary Review. Like the United States Supreme Court, the Texas Court of Criminal Appeals is not required to hear all the cases it is asked to hear. If the Court of Criminal Appeals refuses to hear the case or if it does hear the case and a party is not satisfied with the outcome, a Petition for a Writ of Certiorari can then be filed with the United States Supreme Court asking it to consider the case. Again, however, the Supreme Court considers less than one percent of the cases it is asked to hear
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APPLICATION FOR WRIT OF HABEAS CORPUS
An Application for a Writ of Habeas Corpus can be brought if a person loses his direct appeal or if he elects not to pursue a direct appeal. Generally speaking, this procedure is used to raise issues that were not in the record and, therefore, issues that could not have been raised on direct appeal. In most states and in the federal system, the issues must be related to a denial of a constitutional right. An overwhelmingly large majority of applications for a Writ of Habeas Corpus allege that a persons? trial lawyer and/or appellate lawyer was ineffective.
The ?motions and briefs? page of our main website contains examples of some of the applications for a Writ of Habeas Corpus filed by Broden & Mickelsen and some of the issues that can be raised in such applications. Motions & Briefs
There are strict time limits for filing an Application for a Writ of Habeas Corpus (also called a 2255 motion) in federal court. The application must be filed within a year after a person?s conviction has become ?final.? ?Finality? of a conviction is complicated topic so person should consult with a lawyer to determine when his conviction became ?final.? If the application is not filed within the one year time limit, it will be almost impossible to further contest a conviction in federal court.
Time limits, if any, to file an Application for a Writ of Habeas Corpus in state courts vary from state to state. In Texas, for example, there is no time limit in non death-penalty cases for filing an application (also called an 11.07 writ). Nevertheless, if a person does not obtain relief after filing an Application for a Writ of Habeas Corpus in a state court, they can raise the same issues in federal court despite the fact that they were originally convicted in a state court (this is called a 2254 motion). A 2254 motion must be brought within a year after a person?s conviction has become ?final.? Again, ?finality? of a conviction is complicated topic so a person should consult with a lawyer to determine when his conviction became ?final.? Nevertheless, the time that a state writ is pending is not counted against the year time limit.
Generally speaking, a writ of habeas corpus is a person?s last shot at attacking their conviction. Nevertheless, there are many procedural traps and strict time limits involved with filing applications for such writs. Therefore, a person considering such a writ is well advised to speak to an experienced post-conviction lawyer to discuss the possibility of filing such an application.
CONCLUSION
Again, our firm has found that people are often confused as to the difference between an appeal and an Application for a Writ of Habeas Corpus. It is hoped that an example might further help people understand the difference.
Suppose a person is charged with murder in Dallas, Texas and it is uncontested that the murder occurred in Dallas on August 20, 2008 at 1:00 pm. Further suppose that the person charged with the murder can establish that he was with seven priests in Boston, Massachusetts on August 20, 2008 at 1:00 pm (Dallas time) and that he gives his trial lawyer the name and contact information of these priests.
If the lawyer tries to call these priests as witnesses at trial and the judge does not allow it, this issue could be raised on direct appeal. The reason it can be raised on direct appeal is that it will be in the trial transcript (i.e. it will be ?in the record?) that the defense lawyer tried to call the priests as witnesses and the trial judge did not allow it. Therefore, a court of appeals can consider whether the trial judge was right or wrong in the ruling he made.
On the other hand, suppose the lawyer never contacts the priests and never mentions the priests during trial. Well, then, there is nothing ?in the record? about the priests for a court of appeals to consider. Remember, a direct appeal, is limited to what is in the record and, generally, nothing outside the record can be raised on direct appeal. Nevertheless, a person could file an Application for a Writ of Habeas Corpus alleging that he was denied his constitutional right to effective assistance of trial because his trial counsel did not contact the priests and call them as witnesses and that, as a result, he was convicted because the jury did not know he had a solid alibi.
At Broden & Mickelsen, a good portion of our practice is dedicated to direct appeals and applications for writs of habeas corpus. For example, Clint Broden, alone, has handled over sixty appeals before the United States Court of Appeals for the Fifth Circuit, and has argued over thirty cases before that court. Nevertheless, we also try to be completely honest with our clients and the reality is that, after each step of the process, it becomes harder and harder for a defendant to win relief. Sadly, there are many times when a client could easily have won his case at a trial and comes to us after they have been convicted because they were not happy with their trial lawyer. Simply put, it is important to have a good lawyer at trial so that an appeal or an applications for writs of habeas corpus never becomes necessary. At Broden & Mickelsen, we handle federal trials throughout the country (having been involved in trial court cases in Texas, California, Illinois, Indiana, Iowa, New Orleans, Georgia, Florida, Louisiana, Ohio and New Jersey) and state trials throughout Texas. We firmly believe that to be a good trial lawyer you must also be a good appellate lawyer and that to be a good appellate lawyer you should be a good trial lawyer. In the end, we are confident that our record at trial and the number of times we have heard a jury say ?not guilty? speaks for itself.
Originally published here.
Broden & Mickelsen
CIA was responsible for the assassination of U.S. President John F. Kennedy
By Michael Webster: Syndicated Investigative Reporter. June 1, 2009 at 11:00 AM PDT
According to this documentary the CIA was responsible for the assassination of U.S. President John F. Kennedy in November of 1962 at Daley Plaza in Dallas Texas. John Barbour produced this landmark film, The Garrison Tapes.
This documentary tells the story of District Attorney Jim Garrison, who investigated the 1963 assassination of Ptresident John F. Kennedy his independent investigation according to the movie looked closely into evidence available to him and came forward with an interpretation that went beyond the Warren Commission’s authorized report. The film examines occurrences before and after the assassination and considers theoretical connections with the FBI, the CIA, the Mafia, the Cuban situation, the war in Vietnam, and other national and international concerns. An interview with Garrison is included in the film. Footage of the tragedy and interviews with witnesses offer further information and ideas. The complete “Garrison Tapes? can be viewed below for free.
Part 1 |
Last night George Knapp of the nationwide Coast to Coast Am radio show welcomed award-winning broadcaster John Barbour for a discussion about the JFK assassination. Parts of Barbour’s interview with the late Jim Garrison were played during the show. Garrison as the New Orleans district attorney conducted his own investigation into the assassination and implicated the CIA.
According to listeners and reported on the Coast to Coast Am web site Barbour said his three-hour interview with Garrison was inspiring and exhilarating, but when portions aired on his TV show Real People in 1988, it was edited without his consent to make Garrison look delusional. He told Barbour that he believed six people killed Kennedy, acting in three teams of two, while around 32 individuals were involved in the conspiracy. Included was Lawrence V. Meyers, a businessman with ties to the CIA, who reportedly met with Jack Ruby on Nov. 23rd, 1963. Researcher Jim Marrs has said the CIA used Meyers to get Ruby to eliminate Lee Harvey Oswald.
The popular broadcast indicated that there was evidence that the changing of JFK’s motorcade route in Dallas was part of the conspiracy, and there were also Mafia connections to the killing, Barbour noted. Interestingly, a CIA agent named Richard Case Nagell who had been assigned to keep an eye on Oswald, claimed he wrote a letter to J. Edgar Hoover in September 1963, warning of a plot to assassinate Kennedy in November. He was ignored and subsequently jailed.
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Allin noted that even after all these years, people still want answers in the JFK assassination, and that the 9-11 truth movement has served to re-energize the public’s interest in conspiracies. During the Barbour’s interview he said that the head of the CIA Dulles and his second in command were fired by President Kennedy, as an interesting note the 2nd in command’s brother was at the time of the President killing the Mayor of Dallas and had at the last moment changed the route of the Kennedy motor cade to pass by the Dallas book depositary.
Barbour also claimed during the interview that his efforts to distribute the Film in the USA has met real resistance from the powers to be, but did well in global markets.
The “evidence” this documentary presents makes more since then many other conspiracy theories do and less confusing but still no one can say with any certainty who actually killed JFK. There are so many loose ends like without knowing what really happened, like what the wounds actually looked like and what was taken from JFK’s body, one can only speculate. It is true, some conspiracy theorists have placed gunmen behind the picket fence on the knoll, also on top of both the TSBD and the County Records Building, among other places.
Actor Woody Harrelson’s Father Charles Harrelson confessed to the FBI that he was a member of the assassination team that shot the president. Harrelson was tried and convicted for the assassination of U.S. District Judge John Wood in San Antonio. While he was behind bars in the Dallas jail he told the FBI investigators that he was the hobo seen behind the fence beyond the grassy knoll and was one of the shooters.
Harrelson was sentenced to two life terms for the May 29, 1979, assassination of U.S. District Judge John H. Wood, Jr. Harrelson was convicted of shooting and killing Wood in the parking lot outside of Wood’s San Antonio, Texas, townhouse after being hired by drug dealer Jimm y Chagra of El Paso. Wood ? nicknamed “Maximum John” because of his reputation for handing down long sentences for drug offenses ? was originally scheduled to have Chagra appear before him on the day of his murder, but the trial had been delayed.
Harrelson was apprehended with the aid of an anonymous tip and a taped conversation between Jimmy (Jamiel) and his brother, lawyer Joe Chagra.
Harrelson was eventually convicted based largely on Chagra’s conversation with his brother who was visiting him in prison. Both Harrelson and Chagra’s brother Joe were implicated in the assassination. Joe Chagra received a ten-year sentence. Jamiel Chagra was acquitted of the murder when his brother Joe refused to testify against him. Chagra was represented by current mayor of Las Vegas, Oscar Goodman. In a plea bargain, Chagra admitted to his role in the murder of Judge Wood and the attempted murder of a U.S. Attorney.
Jamiel Alexander “Jimmy” Chagra, brother of famous El Paso criminal trial Lawyer Lee Chagra who was murdered by Ft. Bliss solders, and younger brother lawyer Joe Chagra who was also killed in an auto accident after serving time in prison himself. All brothers now dead.
Joe Chagra died by injuries from an automobile accident on Dec. 6 1996.
Assassin Charles Harrelson died in prison on March 15, 2007.
Jimmy Chagra the man accused of a plot to kill judge in San Antonio died in 2008. He was freed on parole in ‘03, he had been living in Mesa Arizona in a federal protection program. He had been battling cancer since November, said his sister, Patsy Chagra of El Paso.
Most all of the conspiracies out there are only guesses, some more educated then others as are most of the investigations, Garrison?s was the only official to bring a case against anyone ever in the assassination of our president and this matter is still an open unsolved case of the century.
For the full articles showing Harrelson?s story of his confession and for more details of the Chagra family saga in-depth articles appeared in the El Paso Journal newspaper and the “fifth estate” news magazine featured on the cover was Jimmy and several other family members, titled “Cash Is King” both publications can only be found and read at the El Paso public Library heritage section.
Editors Note:
Michael Webster?s Syndicated Investigative Reports are read worldwide, in 100 or more U.S. outlets and in at least 136 countries and territories. He publishes articles in association with global news agencies and media information services with more than 350 news affiliates in 136 countries. Many of Mr. Webster?s articles are printed in six working languages: English, French, Arabic, Chinese, Russian and Spanish. With ten more languages planed in the near future.
Mr. Webster is America’s leading authority on Venture Capital/Equity Funding. He served as a trustee on some of the nation?s largest trade Union funds. A noted Author, Lecturer, Educator, Emergency Manager, Counter-Terrorist, War on Drugs and War on Terrorist Specialist, Business Consultant, Newspaper Publisher. Radio News caster. Labor Law generalist, Teamster Union Business Agent, General Organizer, Union Rank and File Member Grievances Representative, NLRB Union Representative, Union Contract Negotiator, Workers Compensation Appeals Board Hearing Representative. Mr. Webster represented management on that side of the table as the former Director of Federated of Nevada. Mr. Webster publishes on-line newspapers at www.lagunajournal.com and www.usborderfirereport.com and does investigative reports for print, electronic and on-line News Agencies.
Originally published here.
michael Webster