Memphis Injury Lawyer Blog

Memphis legal professionals are called upon to deal with lovers and spouses injuring, wounding and sometimes killing one another on a regular basis. Choose Respect, a national youth-based initiative from the Department of Health and Human Services Centers for Disease Control and Prevention, recently released findings that said “about one in 11 teens report being a victim of physical dating abuse each year.” The overall occurrence of dating violence was noted as being more frequent among Black (13.9 percent) and Hispanic (9.3 percent) teens than their White peers (7.0 percent).

According to the Bureau of Justice Statistics, intimate partner murders happen with astounding frequency:
• Fatal intimate partner violence includes homicide or murder and non-negligent manslaughter,defined as the willful killing of one human being by another.
• In 2007 intimate partners committed 14% of all homicides in the U.S. The total estimated number of intimate partner homicide victims in 2007 was 2,340, including 1,640 females and 700 males.

While these figures are frightening, the numbers of those hurt or maimed are far more profound:
• Intimate partner violence includes victimization committed by spouses or exspouses,boyfriends or girlfriends, and ex-boyfriends or ex-girlfriends.
• In 2008 females age 12 or older experienced about 552,000 nonfatal violent victimizations (rape/sexual assault, robbery, or aggravated or simple assault) by an intimate partner (a current or former spouse, boyfriend or girlfriend) (table 1).
• In the same year, men experienced 101,000 nonfatal violent victimizations by an intimate partner.
• The rate of intimate partner victimizations for females was 4.3 victimizations per
1,000 females age 12 or older. The equivalent rate of intimate partner violence
against males was 0.8 victimizations per 1,000 males age 12 or older.

In order to address the practical and ethical duties of attorneys who deal with these issues, the American Bar Association has established aspirational guidelines to assist both the Bench and Bar. ABA Guidelines. Never the less, The practical implications for victims and accused persons continue to confound an already overloaded criminal justice system. In my experience, swift protection can often be delayed or denied due to internal operating procedures. Having said that, there remain alternatives to being an unprotected victim, thereby exposing you and your children to the horrors of family directed violence.

Help with getting protective orders to protect both you and your children:
Citizen's Dispute
901-545-2520

For a safe place to stay
YWCA Abused Women's Service
901-725-5861

YWCA Crisis Line
901-725-4277

Help for victims and their children
Victim's Assistance Center
901-545-4357

Exchange Club
901-276-2200

Whether nor not we Tennesseans agree with the spate of new laws which have recently gone into effect in Arizona, our state legislators have now added our state to the controversy. Previously, if a person was arrested for an offense, their immigration status has not been researched in depth by our jailers statewide. For example, in Chattanooga the documentation of inmates has been routinely referred to ICE (Immigration Customs Enforcement) for a check on whether or not the person is in the United States legally. As of July 1, 2010, this pattern will become mandatory for all jails throughout our state.

At the end of this legislative session, T.C.A., sec 40-7-123 was enacted. This new law requires all jailers to make a fax or other referral to ICE for any detainee whose documentation does not clearly establish that person's legal right to be in the United States.

§ 40-7-123. When a person is arrested for any offense and is confined, for any period, in the jail of the county or any municipality, a reasonable effort to review documents in the possession of the prisoner shall be made to assess the citizenship status of the person so confined. If the keeper of the jail or other officer cannot determine the lawful status of the prisoner from the documents in the possession of the prisoner or if it is determined that the person is not lawfully present in the United States, pursuant to the federal Immigration and Naturalization Act, compiled in 8 U.S.C. § 1101 et seq., the keeper of the jail or other officer shall notify the United States department of homeland security by facsimile transmission or other appropriate means.

One can only suppose that this new law will be evenly applied to all those detained. However, consider a scenario where a caucasian female who was born in, say, Bartlett is arrested without any identification showing that she is a U.S. citizen. Now think about the same set of facts for a physician born in Brazil who has dark skin.

The constitutional implications of this statute can and, I am sure will be, debated in the years to come. However, the question comes to my mind respecting the training that will be given to a jailer to carry out a "reasonable effort" to investigate such a person. Or, will this be another ill conceived law that results in a lawsuit which gains a life of its own. Most cases that get to the United States Supreme Court take years to arrive in Washington. Will this enforcement statute be any different?

I have found ICE agents to be over worked and under paid. Should we heap another job onto such an already burdened agency? But perhaps most importantly, will this become a safe harbor for abuse by a bored jailer on a hot Saturday night in the delta?

It goes without saying that our system of justice is founded on a presumption that all are innocent until proven guilty beyond a reasonable doubt. That does not mean that a conviction requires proof beyond any reasonable doubt.

The airwaves have been filled during the last few days with a matter involving a family that has allegedly perpetrated a massive hoax respecting a child carried away in a helium filled balloon. Perhaps one of the most eloquent statements made by counsel for an accused person was made by the lawyer representing the Heene family, David Lane.

Whether or not Heene is guilty as a matter of law is, in the grand scheme of things, of little lasting import. What does matter are convictions of innocent persons based upon faulty evidence. What follows are statistics gathered by
The Innocence Project (weblink):

There have been 244 post-conviction DNA exonerations in the United States.

• The first DNA exoneration took place in 1989. Exonerations have been won in 34 states; since 2000, there have been 178 exonerations.

• 17 of the 244 people exonerated through DNA served time on death row.

• The average length of time served by exonerees is 12 years. The total number of years served is approximately 3,077.

• The average age of exonerees at the time of their wrongful convictions was 26.

Races of the 244 exonerees:

146 African Americans
70 Caucasians
21 Latinos
2 Asian American
5 whose race is unknown

• The true suspects and/or perpetrators have been identified in 104 of the DNA exoneration cases.

• In more than 25 percent of cases in a National Institute of Justice study, suspects were excluded once DNA testing was conducted during the criminal investigation (the study, conducted in 1995, included 10,060 cases where testing was performed by FBI labs).

• About half of the people exonerated through DNA testing have been financially compensated. 27 states, the federal government, and the District of Columbia have passed laws to compensate people who were wrongfully incarcerated. Awards under these statutes vary from state to state.

Leading Causes of Wrongful Convictions
These DNA exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed. For more than 15 years, the Innocence Project has worked to pinpoint these trends.

Eyewitness Misidentification Testimony was a factor in 74 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions. At least 40 percent of these eyewitness identifications involved a cross racial identification (race data is currently only available on the victim, not for non-victim eyewitnesses). Studies have shown that people are less able to recognize faces of a different race than their own. These suggested reforms are embraced by leading criminal justice organizations and have been adopted in the states of New Jersey and North Carolina, large cities like Minneapolis and Seattle, and many smaller jurisdictions.

Unvalidated or Improper Forensic Science played a role in approximately 50 percent of wrongful convictions later overturned by DNA testing. While DNA testing was developed through extensive scientific research at top academic centers, many other forensic techniques – such as hair microscopy, bite mark comparisons, firearm tool mark analysis and shoe print comparisons – have never been subjected to rigorous scientific evaluation. Meanwhile, forensics techniques that have been properly validated – such as serology, commonly known as blood typing – are sometimes improperly conducted or inaccurately conveyed in trial testimony. In other wrongful conviction cases, forensic scientists have engaged in misconduct.

False confessions and incriminating statements lead to wrongful convictions in approximately 25 percent of cases. In 35 percent of false confession or admission cases, the defendant was 18 years old or younger and/or developmentally disabled. The Innocence Project encourages police departments to electronically record all custodial interrogations in their entirety in order to prevent coercion and to provide an accurate record of the proceedings. More than 500 jurisdictions have voluntarily adopted policies to record interrogations. State supreme courts have taken action in Alaska, Massachusetts, Minnesota, New Hampshire, New Jersey, and Wisconsin. Illinois, Maine, New Mexico, and the District of Columbia require the taping of interrogations in homicide cases.

Snitches contributed to wrongful convictions in 16 percent of cases. Whenever snitch testimony is used, the Innocence Project recommends that the judge instruct the jury that most snitch testimony is unreliable as it may be offered in return for deals, special treatment, or the dropping of charges. Prosecutors should also reveal any incentive the snitch might receive, and all communication between prosecutors and snitches should be recorded. Fifteen percent of wrongful convictions that were later overturned by DNA testing were caused in part by snitch testimony.

Events such as these are not isolated nor absent from the Tennessee criminal justice system.

Prosecutors dropped charges against a former Tennessee inmate who spent 22 years on death row before new evidence cast doubt on his guilt. The district attorney said DNA tests presented “a reasonable doubt” about whether the former inmate, Paul House, 48, acted alone in the murder of a woman near Knoxville in 1985. At the time of the arrest Mr. House was not only 26 years of age, but DNA testing did not exist. Presumed Innocent is not a catch phrase. It is rather a safety valve that guards us all from hasty judgments and overly emotional jury verdicts.

The Memphis Tigers are seeded Number 2 in their region in the NCAA tournament. However, Tennessee has another noteworthy ranking in which, Memphis trial lawyers are justifiably pleased. Our state did not rank in the current Top 10 in alleged mortgage fraud. Woo Hoo! The number of reported incidents of mortgage fraud has reached an all-time high in other states even as the number of home loans being issued has shrunk, according to a report released Monday. Cases of reported fraud surged 26% from 2007 to 2008, according to the Mortgage Asset Research Institute (MARI). In its 11th report, MARI reports the state of the nation for the third quarter of 2008.

Rhode Island topped the list, followed by Florida, which had held the No. 1 slot in 2007. Incidents of fraud in Rhode Island were three times what would have been expected given the number of loans made last year, the report said, although the authors said they weren't sure why.

Next on the list were Illinois, Georgia and Maryland, which landed on the top-10 list for the first time in the study's 11-year history, up from No. 15 in 2007. The State of Rhode Island had the highest percentage of fraud on tax returns and financial statements. Not surprisingly, the FBI investigates mortgage fraud in two distinct areas: Fraud for Profit and Fraud for Housing. Fraud for Profit is sometimes referred to as "Industry Insider Fraud" and the motive is to revolve equity, falsely inflate the value of the property, or issue loans based on fictitious properties. Based on existing investigations and mortgage fraud reporting, 80 percent of all reported fraud losses involve collaboration or collusion by industry insiders. Fraud for Housing represents illegal actions perpetrated solely by the borrower. The simple motive behind this fraud is to acquire and maintain ownership of a house under false pretenses. This type of fraud is typified by a borrower who makes misrepresentations regarding his income or employment history to qualify for a loan.

The FBI lists several areas of suspicion:

MORTGAGE FRAUD INDICATORS

Inflated Appraisals
• Exclusive use of one appraiser

Increased Commissions/Bonuses - Brokers and Appraisers
• Bonuses paid (outside or at settlement) for fee-based services
• Higher than customary fees

Falsifications on Loan Applications
• Buyers told/explained how to falsify the mortgage application
• Requested to sign blank application

Fake Supporting Loan Documentation
• Requested to sign blank employee or bank forms
• Requested to sign other types of blank forms

Purchase Loans Disguised as Refinance
• Purchase loans that are disguised as refinances
requires less documentation/lender scrutiny

Investors-Short Term Investments with Guaranteed Re-Purchase
• Investors used to flip property prices for fixed percentage
• Multiple "Holding Companies" utilized to increase
property values

As the recession deepens, both real and imagined violations are likely to be investigated. Remember, if you are contacted by an investigating agency, a financial institution, or a lender, seek the advice of an experienced attorney in this area.

According to the Memphis Commercial Appeal, there were 11,033 violent-crime incidents reported in Memphis in 2008. As a Memphis trial lawyer, this statistic is not at all surprising to me. As a resident of Memphis, I too have been burglarized and vandalized. In response to the increases in crime over the last few decades, Tennessee, along with many of her sister states, have enacted the Criminal Victim's Injury Compensation Act. Last year the fund paid out over $13,600,000 for injuries and costs associated with crime victim's losses. The act, which provided these payments, was amended about 9 months ago to include some new areas of assistance.

These amendments include:

1. A “relative” of a deceased victim (as defined under the Criminal Injuries Compensation Act) may be reimbursed for funeral and burial expenses that the relative has incurred due to the victim’s death. This is in addition to the legal representative of the victim’s estate who may file on behalf of the estate.

2. Effective for crimes occurring on or after July 1, 2008, eligible incidents
upon which compensation can be based now include when the crime
involved the failure to stop at the scene of an accident in violation of §
55-10-101 which directly resulted in serious bodily injury or death to
the victim and the evidence shows that the operator of the motor vehicle
knew or reasonably should have known that death or serious bodily
injury had occurred.

3. Effective for crimes occurring on or after July 1, 2008, any awards
made for medical or medical related expenses, including but not limited
to dental, chiropractic, hospital, physical therapy and nursing services,
shall be made in an amount not to exceed 75% of the billed charges if a
sum is available to do so after payment of expenses due the victim or
claimant (e.g. lost wages, permanent impairment, etc.).
If the program makes payment equal to 75% and the provider accepts
the payment, the provider must accept the payment as payment in full
and shall not bill any balance to the victim or claimant. This provision
does not prohibit the provider from seeking reimbursement from the
victim or claimant for the difference, if any, between the 75% and the
amount paid by the division under this provisio

If you think that you or a loved one may be eligible for some compensation, for example, the cost of a forensic rape test, go to the State Of Tennessee website for an excellent FAQ page. Another way to review your options, is to consult with an experienced injury lawyer. We can help.