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Monday, July 26, 2010

Race In The Courtroom: A Prosecutor's Perspective

A new study shows that, in North Carolina, a defendant convicted of murdering a white person is 3 times as likely to receive the death sentence as compared to a defendant convicted of murdering a black person.  By comparison, an almost identical study in Florida shows a very small disparity, although the death sentence is still more likely in cases with a white victim. (For informational purposes, the study seems to use the term "black person" and not "African American", and thus this article uses the same terminology.)


A university professor from Colorado and a university researcher from Boston examined over 15,000 homicide cases in North Carolina, spanning the years 1980 to 2007, 368 (2.4%) of which resulted in death as the determined penalty.  The conductors of the study, who have decades of experience in such research, explained that they did their best to compare apples to apples (recognizing that some murder cases are more brutal and shocking than others, for example, and thus more deserving of the death penalty).


Among various theories to explain the discrepancy is that white victim cases tend to receive more attention (and garner more outrage) from the community - and perhaps from judges, juries, and the prosecutor's office. Then again, when Nebraska (a rather "white" state) was evaluated, it was discovered that white victim cases were less likely to result in a death penalty sentence.


Interestingly, last year, N.C. passed a law known as the "Racial Justice Act". This law allows judges to consider statistical evidence, if any, which suggests that race played a role in the seeking or imposing of the death penalty in a particular case and use any such conclusion to impact the execution of the sentence. Due to various and mostly unrelated legal challenges, death penalty executions in North Carolina have actually been on hold for the past 3 years.


A Prosecutor's Perspective


I worked as a prosecutor in south Florida from 1996 - 2001, and prosecuted thousands of cases during those 5 years. Below are some questions relevant to this article, and my answers to the same, based on my professional experience as a prosecutor.


Was I, as a prosecutor, ever accused of racism? Not to my knowledge. Occasionally, while out and about in the community on my off hours, I would run into someone I had prosecuted or even put in jail or prison (persons of varying skin color). On many of those occasions I had no idea who the person was until (s)he got my attention. Each time (and such occasions were rare), the person I had prosecuted got my attention and said hello (or something similar), and maybe even tried to speak with me further.  Of course I never discussed their cases with them - I just said "hello" back and wished them well.  Never once did I feel threatened or even receive harsh words. I always believed (and still do) that this was because I merely did my job, did it fairly as I was sworn to do, and never made it personal.


Did I ever experience obvious "racism" in the courtroom? Yes, but not often and not always in the way you might expect. The most blatant episode I experienced was actually what is sometimes referred to as "reverse racism". It was a routine possession of cocaine (a felony) jury trial, and the defendant - a white woman arrested in the company of a dark-skinned man - had a known background of prostitution, drug use, etc. The evidence was quite clear, but there was one juror who refused to convict.  She was an 80 year old African American woman who had lived her formative years in small town Alabama or Georgia (I can't recall which) who slept through most of the trial. (Persons who sleep through trials - and there are many more of them than you'd expect - are rarely factors in the jury's decision, but rather follow the majority.)


Although there was no evidence to suggest this - and not a single person during the trial, defense attorney included, ever suggested it - this juror decided that the police had planted the cocaine and arrested the white woman merely for being in the company of her dark skinned "friend" (who was not arrested or charged with any crime). Thus she assumed that the police (one of whom was white, the other African American) acted illegally to punish a white woman for associating with a darker man - she unfairly stereotyped the police officers as having acted with racial motives.


Did I ever experience racism in the prosecutor's office? No and yes.  I never experienced a racially charged atmosphere , any race based actions, or anything that made me (a white male) aware of a racially hostile working environment. However, I did overhear an occasional "racist" remark by a fellow prosecutor, always directed at a criminal defendant. None of these remarks were along the lines of "I'm going to get that (insert racial term of your choosing here)" and none, on their face, indicated the prosecutor was going to be unfair in prosecuting the case. I never observed any behavior indicating that a particular prosecutor sought harsher punishment due to racial factors - unless the law demanded harsher punishment in situations involving legally defined "hate crimes".


Did I ever feel different toward a case because of race? No and yes.  I never, ever cared what color the defendant's or victim's skin was with regard to prosecuting the case "harder" or seeking a harsher penalty.  For the most part, all I really cared about was what happened, and, to a lesser extent, why it happened.  After all, the whole point of having laws and prosecuting the breaking of laws is to judge persons on their actions - did they violate the law or not? However, I was always relieved - we all were - if a case seemed to lack any "racial issues". In my experience, we wanted to prosecute cases on their merits, not be sidetracked by irrelevant racial issues.  (Occasionally, race is a relevant issue in a case.)


What about this study in North Carolina - why are white victim cases so much more likely to result in the death penalty being handed down? Good question, and it's impossible to point to any one factor. In some cases there simply is no difference in how the cases are treated, regardless of who the victim is. For cases in which there may be a difference due to racial issues, I'd suggest the following as 5 possibilities - and this list is not meant to be all inclusive, by any means:



  • inherent but subconscious greater concern about white victims by those inside the justice system;

  • a greater reaction from the general community when the victim is white (puts pressure on those inside the justice system to ensure harsher punishment);

  • greater resources (money, connections, access to publicity) by those connected to the white victim;

  • actual, intentional unfair application of law by those inside the justice system; and

  • subconscious disparity in coverage by media.


One further observation & food for thought: in my experience, the reaction from the community and the media was much, much greater when the victim was an animal as opposed to a human being of any color.



Saturday, July 17, 2010

Below Ground Zero: Ship Hull Found Underneath Remains of World Trade Center

Earlier this week, archeologists working at Ground Zero - actually below Ground Zero - made a startling discovery. One of the archeologists, whose firm has been retained to observe construction at and underneath Ground Zero, spotted two large, curved pieces of wood sticking out of the muddy pit about 20 feet below ground level. The discoverer and her colleagues then worked together to unearth the find and raise it out of the pit.

What they uncovered was a 32 foot long wooden ship's hull, which may have belonged to a ship which last sailed in the 1700s. Then, only a few yards away, an iron ship's anchor weighing approximately 100 pounds was found. (It is not known if the anchor belonged to the same ship as the hull.)

Upon hearing about this, many person's first reaction is "Wow!" followed quickly by "How the heck did that happen?" Given the nature of our society, there may even be those who weave these findings into their conspiracy theories concerning 9-11 and the World Trade Center. However, experts believe that the ship hull was used in the early 1800s as part of a land-fill effort.

Like the original topography of numerous other prominent American cities (including Boston and Chicago), Manhattan was only able to expand by creating dry land where none existed. As the island of Manhattan began to become more crowded, portions of the Hudson River were filled over to create more dry land and increase the size of Manhattan. The ship's hull discovered this week was likely from an outdated or damaged ship which was used to help fill in land in lower Manhattan about the year 1810.

Wednesday, July 14, 2010

Consumer Credit Scores Up or Down? The Answer Will Surprise You

Are American consumers' credit scores up or down these days? Surprisingly, the answer is "both", according to FICO.

As expected, the number of American consumers who have poor credit -- a score of 599 or below -- has increased over the last few years, although only by 6% percent, and now stands at 25.5% of consumers. Unfortunately,  the number of those with poor credit will continue to increase in the immediate future. By way of comparison, historically, 15% of Americans have had credit scores of 599 or below.

What is surprising is that the percentage of consumers with excellent credit scores has increased over the last 5 years and now stands at almost 18%. Although that is down from 18.7% in April, 2008, it's still markedly above the historical average of 13%. Why and how have millions of people actually improved their credit scores in this economic environment? Evidence suggests that these folks may have fully perceived the oncoming financial storm earlier than most, and worked hard to reduce their spending while paying off debts.

Those with poor credit scores have difficulty obtaining credit  -- including credit cards, auto loans and mortgages.  Thus, that segment of the population has less access to money, less ability to spend money, and less ability to help get the wheels of commerce speeding along again.

More information can be found at the website www.myfico.com. For those of you wondering, "FICO" stands for Fair, Isaac Company, which is the organization that originally put together a standard of evaluating an individual's credit-worthiness.

Tuesday, July 13, 2010

SAT Scores: Top Girls vs. Top Boys – Who Wins?

The Duke University Talent Identification Program evaluates S.A.T. and A.C.T. tests taken by the top 5% of seventh graders in order to identify gifted students and further nurture their intellectual talents. The most recent study included over 1.6 million students, and its results continue the historical pattern of showing different performances for girls versus boys.

Among those scoring 700 or higher on the verbal portion of the S.A.T., girls scored slightly higher than boys. However, the number of seventh grade boys who scored 700 or higher on the math portion of the S.A.T. significantly outnumbered the girls - by a ratio of approximately 4 to 1. This gap between high scoring boys and girls in the math portion has remained essentially the same for the last 15 years (the gap was much greater than that prior to 1995). It is perhaps a bit surprising that this gap has not narrowed, given the greater emphasis on encouraging women to focus on math and science in the last few decades.

Sunday, July 11, 2010

Protection From Debt Collectors: Part 5

This is Part 5 of a multi-part series.  Previously: Part 1 (identifying applicable Federal Law); Part 2 (allowable communications from FDCPA debt collectors); Part 3 (whether debt collectors can sue debtors/consumers); and Part 4 (information a debt collector must provide to the consumer).

Improper Actions by Debt Collectors


The following are usually illegal actions by committed by debt collectors who are governed by the Federal Law known as the Fair Debt Collection Practices Act (FDCPA).


A.       Common but Unethical Actions by Debt Collectors


1.  making telephone calls without properly identifying himself or herself

a)  except as allowed and necessary to obtain location information from third parties

2.  annoying, abusing, or harassing persons by calling their telephone number repeatedly or causing their telephone to ring continually

3.  using obscene, profane, or other language that abuses the hearer

4.  falsely representing or implying that he or she is affiliated with the United States or any State or Government

5.  falsely representing or implying that he or she is an attorney

6.  falsely representing or implying the type, amount, or legal status of the debt

7.  threatening to take any action that is not legal or not actually intended to be taken

8.  communicating or threatening to communicate false credit information (such as to a credit reporting agency, etc.)

9.  using any false or deceptive means to collect or attempt to collect a debt

10. using any false or presentation or deceptive means to collect information about a debtor

11. falsely representing or implying that the debt collector operates or is employed by a consumer credit reporting agency

12. falsely representing or implying that nonpayment of the debt will result in arrest, imprisonment, garnishment of wages, seizure of property, or sale of property, unless such action is lawful and actually intended by the debt collector or creditor

13. failing to communicate that information obtained by the debt collector will be used to help collect the debt

14. failing to disclose in  the initial communication that the debt collector is attempting to collect a debt and any information obtained will be used for that purpose

15. failing to disclose in communications, generally, that the communications are from a debt collector.

B.              Other Unethical Practices by Debt Collectors


1.  collecting or attempting to collect some sort of fee or charge unless it was authorized by the original debt agreement or as otherwise permitted by law

2.  falsely representing or implying that the debtor committed a crime or  other conduct to disgrace the him or herself

3.  using written communications which appear to be authorized by or belonging to the courts, a government agency, etc., but, in fact, are not

4.  advertising a debt as being for sale to force payment by the debtor

5.  using or threatening to use violence or other criminal means to harm debtor, the debtor's reputation, or the debtor's property

6.  publishing a list of debtors who allegedly refused to pay debts

a)   please note that did debt collectors can, however, communicate with consumer reporting agencies in this regard, as well as a few other entities specified by law

7.   using a post card to contact a debtor about a debt

MR. MCGRATH PROVIDES ASSISTANCE AGAINST DEBT COLLECTORS BASED ON APPLICABLE FEDERAL AND/OR STATE LAW.  CLICK HERE TO FIND OUT MORE.

Tuesday, July 6, 2010

Kaboom? Florida Criminal, Family Lawyer Greeted With Grenade

Kaboom? Florida Criminal, Family Lawyer Greeted With Grenade


Not long ago, a Florida lawyer returned to his office to find a hand grenade hanging from his doorknob. The lawyer, who practices family law and criminal law near Orlando, alerted authorities. Having practiced both criminal and family law, I can promise you that the most likely suspect is someone related to a family law case!

A major road was shut down in the area while explosives experts attempted to determine the status of the grenade. In the meantime, the police attempt to determine whether the grenade was left in warning, was part of a murder attempt, or was just some misguided client's way of making payment. Ok, I made that last possibility up.

The grenade was eventually determined to be a "reloaded training grenade" and was removed with no further drama. The Civil Lawyer Online has not been able to determine exactly how dangerous a "reloaded training grenade" might be, but is glad to never have had one left on his door (or anywhere else, for that matter).


Sunday, July 4, 2010

Americans: Who We Were, Who We Are, Who We Will Be: Part 2

Americans: Who We Were, Who We Are, Who We Will Be: Part 2


This is the second in a series of blog posts concerning the make-up of America, largely based on Census data from 1999 - 2000 and 2009 - 2010. Happy birthday, America!

Part 2: Where Your Neighbors Were From as of 2000


Thankfully we survived Y2K (remember that?), and the 2000 United States Census was completed.  Here is a quick summary of some of the more interesting information obtained via Census 2000 regarding our collective backgrounds.   The question was posed this way on the Census 2000 form: "What is this person's ancestry or ethnic origin?"


Who lived where, regionally, in the USA in 2000?


Which ethnic groups where the largest in the USA's 4 primary regions in 2000? (Listed in order by total population of region)

South:

  1. African American (14%)

  2. American (11.2%)

  3. German (10%)

  4. Irish (8.8%)

  5. English (8.4%)


Midwest:

  1. German (26.6%)

  2. Irish (11.8%)

  3. English (8.4%)

  4. African American (7.8%)

  5. American (6.5%)


West:

  1. Mexican (16%)

  2. German (13.3%)

  3. English (9.9%)

  4. Irish (9%)

  5. American (4.1%)


Northeast:

  1. Irish (15.8%)

  2. Italian (14.1%)

  3. German (13.6%

  4. English (8.3%)

  5. African American (6.5%


With regard to the 2 states nearest and dearest to my heart (NC & FL):


North Carolina:

  1. African American (16.6%)

  2. American (13.7%)

  3. English (9.5%)

  4. German 9.5%)

  5. Irish (7.4%)


Florida:

  1. German (11.8%)

  2. Irish (10.3%)

  3. English (9.2%)

  4. African American (8.6%)

  5. American (7.8%)

Friday, July 2, 2010

Pregnant Woman Tasered; Her Civil Rights Lawsuit Fails

Pregnant Woman Tasered; Her Civil Rights Lawsuit Fails


A woman 7 months pregnant + a traffic stop for speeding + a heated argument + woman's failure to cooperate with police = being tasered 3 times.  Being tasered 3 times eventually equaled a failed lawsuit against the city and the police department.


Ms. Brooks was 7 months pregnant when she was stopped by multiple police officers in Seattle for speeding in a school zone. She was uncooperative and accused the officers of being racist.  She wound up sitting in her car with the door closed, the window up, and the engine running after she refused to sign the citation (the law requires that the citation be signed, and such signature is not an admission of guilt). While she did so, the officers warned her that she needed to get out of the car or risk being tasered; they also began to discuss where on her body to use the Taser, as they were aware of her pregnant state.

Eventually, one of the officers reached into the car (the door was unlocked?), turned the engine off, and removed the keys from the ignition. They attempted to physically remove her from the car, but she held tightly to the steering wheel and otherwise frustrated these attempts.  The police officers then used the Taser on her thigh, through the sweatpants she was wearing. When this did not result in cooperation, the police then used the Taser against her shoulder, followed by using it against her neck. They were then able to remove her from the car and arrest her (for failure to sign citation and then resisting arrest).

The woman suffered no permanent injuries, and a healthy baby was born a few months later.  Her lawsuit against the City of Seattle and the Seattle Police Department alleged the use of excessive force, and claimed that this unreasonable use of force caused her to "scream in pain" and be left with permanent burn marks/scars.

Upon a motion for summary judgment, a federal appeals court dismissed the lawsuit, as 2 of the 3 federal judges ruled that the use of force was not unreasonable enough to allow such a lawsuit. The third judge strongly disagreed, and commented "“I fail utterly to comprehend how my colleagues are able to conclude that it was objectively reasonable to use any force against . . . [her] . . . let alone three activations of a Taser, in response to such a trivial offense.”

By way of brief explanation, a "motion for summary judgment" is similar to a motion to dismiss a case; since the defendants were the one making the motion, the court was obligated to accept the facts of the case as presented by the plaintiff (the woman). A court in this situation essentially says to itself "Even taking the facts as told to us only by the one side, are those facts enough to allow that side to prove the lawsuit?" It is difficult to win a motion for summary judgment, as the defendants eventually did in this case.

Wednesday, June 30, 2010

Protection From Debt Collectors: Part 5

Protection From Debt Collectors: Part 5




This is Part 5 of a multi-part series.  Previously: Part 1 (identifying applicable Federal Law); Part 2 (allowable communications from FDCPA debt collectors); Part 3 (whether debt collectors can sue debtors/consumers); Part 4 (what information debt collectors must provide to the consumer).


How to Prevent Further Communications from Debt Collectors


1.  Is a verbal request by the debtor for all the calls to stop enough?


a)  No. A verbal request made by the debtor to the debt collector to "stop all calling" is not enough, although it might be enough to stop the calls       to the place of employment.


2. Is a written request to a debt collector to stop all the calls enough?


a) It should be, yes. A debtor who serves a written request/demand on a debt collector to cease all telephone communications should result in a   cessation of those phone calls.


b)  Unfortunately, some unethical debt collectors will not provide their name, address, or telephone number, thus making it difficult to file such  written requests with them.


3. Can a debtor stop the phone calls but allow written correspondence to be sent to his/her home?


a)  Legally, yes. A debtor can file the written demand to have all phone calls stop, but also state that written communications to the home address     are permissible.


4. Can a debtor demand that all communications, written and verbal, from the debt collector stop?


a) Yes, but even with such a demand, the debt collector can:


(1)  send written notice informing the debtor that the debt collection effort is stopping;

(2)  send written notice informing the debtor that other legal remedies will be pursued (such as a lawsuit being filed);

(3) send written notice informing the debtor that documents mailed from the debtor to the debt collector are considered "official" communications when received by the debt collector.

MR. MCGRATH PROVIDES ASSISTANCE AGAINST DEBT COLLECTORS BASED ON APPLICABLE FEDERAL AND/OR STATE LAW.  CLICK HERE TO FIND OUT MORE.

Sunday, June 27, 2010

Americans: Who We Were, Who We Are, Who We Will Be: Part 1

Americans: Who We Were, Who We Are, Who We Will Be


This is the first in a series of blog posts concerning the make-up of America, largely based on Census data from 1999 - 2000 and 2009 - 2010.

Part 1: Who We Were as a Country in 2000 and How We Changed from 1990 - 2000


Thankfully we survived Y2K (remember that?), and the 2000 United States Census was completed.  Here is a quick summary of some of the more interesting information obtained via Census 2000 regarding our collective backgrounds, followed by a brief comment of mine on each issue. The question was posed this way on the Census 2000 form: "What is this person's ancestry or ethnic origin?"

Where do we come from/who do we "think" we are?


According to the responses we gave, we are from the following ethnic backgrounds, in order of most populous to least (top 10 only):

  1. German: 15.2%

  2. Irish: 10.8%

  3. African American: 8.8%

  4. English: 8.7%

  5. American: 7.2%

  6. Mexican: 6.5%

  7. Italian: 5.6%

  8. Polish: 3.2%

  9. French: 3.0%

  10. American Indian: 2.8%


A quick glance at the top 10 may cause you to realize that this "categorizing" exercise is somewhat arbitrary and inconsistent, or at least very subjective.  For example, if your parents were born in Nigeria, you'd be allowed to choose "African American" and/or "Nigerian"; if your parents were born in Mexico, you'd be allowed to choose "Hispanic" and/or "Latin American" and/or "Mexican"; if your parents were born in France, you'd be able to choose "European" or "Western European" or "French". It appears that most Americans of African descent are most likely to identify themselves under the general grouping of "African American" as opposed to specifying the particular African country of origin.  Of course, for some, such information is simply not available due to the circumstances of the ancestor's "delivery" to North America. By comparison, persons of Hispanic background were proportionately more likely to identify a specific country of ethnic origin (as opposed to the general category of "Hispanic" or "Latin American"), which is why "Hispanic" and "Latin American" did not appear in the top 10.

Which of these ethnic groups grew the most between 1990 and 2000, and which comparatively shrank?


The 10 categories with the most growth and the 5 with the largest relative decline are listed below (again, as identified by the group members themselves):

  1. Latin American +474.6%

  2. African: +381%

  3. European: +321.8%

  4. Brazilian: +174.9%

  5. Asian Indian: +171.7%

  6. European: +321.8%

  7. Western European: +195.5%

  8. Pakistani: +153.3%

  9. Northern European: +148%

  10. Albanian: +138.2



  • Slovak: -57.6%

  • Scandanavian: -37.4%

  • United States: -37.2

  • Croatian: -31.1%

  • German: -26.1%


So, this means that, for example, in 2000, 37.2% fewer persons in the USA who responded to the Census and provided "ancestry / ethnic origin" information described themselves as from the "United States" as compared to doing so in the 1990 Census. That 37.2% reflects an actual reduction of approximately 239,000 folks listing "United States".  Of course, it may very well be that many folks who listed "United States" in 1990 put "European" in 2000, "American" in 2000, "African American" in 2000, etc.  Also, the Census forms do change from time to time, so it's difficult to know as to what extent we are comparing apples to apples.

Friday, June 25, 2010

Protection From Debt Collectors: Part 4

Protection From Debt Collectors: Part 4


This is Part 4 of a multi-part series.  Previously: Part 1 (identifying applicable Federal Law); Part 2 (allowable communications from FDCPA debt collectors); and Part 3 (whether debt collectors can sue debtors/consumers).

What Information Must a Debt Collector Provide to the Consumer?


1.  Unless it was included in the initial communication from the debt collector to the debtor, the following information must be provided in  writing to the debtor, unless the debtor pays the debt within 5 days of that initial communication:


a) the name of the creditor to whom the debt is owed;

b) the amount of the debt;

c) that the debtor has thirty (30) days to dispute the debt, or else the debt is assumed to be valid;

d) if the debtor, in writing, disputes the validity of the debt, the debt collector will send the debtor a verification of the debt;

(1) it should be noted that, if the debtor so disputes the debt in writing,  debt collection efforts must stop until written verification of the debt has been provided to the debtor;


e) notice to the debtor that, if the debtor makes a written request for the name and address of the original creditor within the first 30 days, that information will be provided by debt collector (this typically applies in situations in which the current creditor/loan holder identified pursuant to (a) above bought or otherwise acquired the loan from the original creditor/loan holder)

(1) it should be noted that, if the debtor so makes a demand in writing for  the name and address of the original creditor, debt collection efforts must stop until that information has been provided.


MR. MCGRATH PROVIDES ASSISTANCE AGAINST DEBT COLLECTORS BASED ON APPLICABLE FEDERAL AND/OR STATE LAW.  CLICK HERE TO FIND OUT MORE.

Tuesday, June 22, 2010

Protection From Debt Collectors: Part 3

This is Part 3 of a multi-part series.  Part 1 focused on identifying the applicable Federal Law; Part 2 focused on allowable communications from FDCPA debt collectors.

Can a Creditor (Lender) or Debt Collector File a Lawsuit Against a Debtor (Consumer) to Attempt to Collect a Debt?


1. As a general rule, yes, a creditor or debt collector working on behalf of a creditor can file a lawsuit against a debtor to attempt to collect a debt.


a)  This is usually, but not always, true. If you are being sued over a debt, or have been threatened with a lawsuit over a debt, you should seek advice from a qualified attorney.

2. If the debt was secured with property belonging to the debtor or property belonging to someone on the debtor's behalf, a lawsuit to  recover the debt owed might be able to be filed in the jurisdiction where the property is located.


3. Unless number two above applies, the general rule is that a lawsuit filed by a creditor or debt collector must be filed in the jurisdiction in which the debtor lives or the jurisdiction in which the original contract creating the debt was executed.


MR. MCGRATH PROVIDES A DEFENSE AGAINST DEBT COLLECTORS BASED ON APPLICABLE FEDERAL AND/OR STATE LAW.  CLICK HERE TO FIND OUT MORE.

Saturday, June 19, 2010

Protection From Debt Collectors: Part 2

Part 2 focuses on what debt collectors are allowed to do under the Federal Law known as the Fair Debt Collection Practices Act (FDCPA).  Part 1 focused on identifying the primary Federal Law itself and who it applies to.  Future parts will focus on whether debt collectors can file lawsuits against debtors, what the law prohibits debt collectors from doing, and what actions a consumer/debtor can take (possibly including recovering monetary damages) when debt collectors violate the law.

Allowable Communications from FDCPA Debt Collectors


1. Who can be contacted about the debt?


(a) the debtor (borrower);

(b) the debtor's spouse;

(c)  the debtor's attorney on the debt matter (if any);

(d) the debtor's parent if the debtor is a minor;

(e) the debtor's guardian (if any);

(f)  the debtor's executor or administrator (such as when the debtor is deceased);

(g) a consumer/credit reporting agency;

(h) the attorney for the debt collector/debt collection agency;

(i)  the attorney for the creditor (the entity actually owed the debt, for whom the debt collector is likely working);

(j)  anyone else the court or the debtor allows the debt collector to contact; and

(k) in certain situations, a debt collector can contact almost anyone else in relation to the debt (see #2 below for more information);

2. Who else can be contacted about the debt, and in what situations?


(a) A debt collector who is unable to locate a debtor may contact a third party to ask for the debtor's location information: home address, telephone number, and place of employment.

(1)  the debt collector must identify himself/herself by name and state (s)he is confirming information concerning the debtor's location (using the debtor's name, and not describing the person as a "debtor");

(2) the debt collector cannot reveal the name of the debt collection agency or that the call pertains to debt collection, unless specifically asked;

(3) written communication from a debt collector to a third party to obtain the debtor's location information must not indicate the fact that the debt collector is, in fact, a debt collector;

(4) each third party can only be contacted once, unless the debt collector believes that the information obtained during the first contact was wrong, incomplete, or outdated and that the third party would now have better information;

(5) also, a third party can be contacted more than once if the third party so requests.

3.  When can debt collectors call about the debt?


a)  Generally, debt collectors are not allowed to call before 8  a.m. or after 9 p.m., using the debtor's time zone.

(1) However, debt collectors can legally call at other times if the debtor or a court of law has given such permission.

4. Can the debt collector contact the debtor at work?


(a) Debt collectors can contact the debtor at work unless the debt collector has reason to know the employer does not allow this type of  communication at work. Usually, the debt collectors will attempt to contact the debtor at work until/unless someone (such as the debtor) tells the debt collector such contacts are not allowed. It is best to follow up and confirm such verbal communications in writing.

5. Can the debt collector continue to contact the debtor if the debtor has an attorney on the matter?


(a) NO, not if the debt collector knows the attorney's name and contact  information, or can easily get it, unless that attorney is unresponsive or specifically agrees to allow the debt collector to contact the debtor directly.

MR. MCGRATH PROVIDES A DEFENSE AGAINST DEBT COLLECTORS BASED ON APPLICABLE FEDERAL AND/OR STATE LAW.  CLICK HERE TO FIND OUT MORE.

Thursday, June 17, 2010

Protection From Debt Collectors: Part One

Part 1 focuses on identifying the primary Federal Law itself and who it applies to.  Future parts will focus on what debt collectors are allowed to do under the law, what the law prohibits them from doing, and what actions a consumer/debtor can take (possibly including recovering monetary damages) when debt collectors violate the law.

A.  The Primary Federal Law which Protects  Against Debt Collectors


1.  The primary Federal Law which provides protection against certain  actions by debt collectors and debt collection agencies is called the Fair  Debt Collection Practices Act, or "FDCPA".


B.  To Whom and What does the Fair Debt Collection Practices Act (FDCPA) Apply?


1. What kind of debts does the FDCPA apply to?


a) The FDCPA applies to personal debts, not business debts.

2.  What kind of persons or organizations are considered debt collectors under the FDCPA, and thus must follow it? The FDCPA defines "debt collector" as:


(a) a person who regularly collects, or attempts to collect, personal  debts on behalf of another person or institution; and

(b) a person who regularly collects, or attempts to collect,  personal debts on his/her/its own behalf, but uses a different name in doing so.

3.  What kind of persons or organizations are not considered debt collectors under the FDCPA, and thus may not need to follow it?  (this list is not exhaustive, but contains the most common examples)


(a) an entity collecting another entity's debt in a rare occurrence;

(b) an entity which collects its own debts using its own name;

(c) an entity which owned the debt and sold it, but continues to service it (examples include student loan companies and mortgage loan companies); and/or

d) an entity which is attempting to collect a debt in good standing (in   other words, a debit not in default).

MR. MCGRATH PROVIDES A DEFENSE AGAINST DEBT COLLECTORS BASED ON APPLICABLE FEDERAL AND/OR STATE LAW.  CLICK HERE TO FIND OUT MORE.

Tuesday, May 11, 2010

Governor Signs Bill Which Allows Guns in Bars (Anyone Want "Shots" Now?)

Starting July 1, concealed-carry permit holders in VA may legally bring their hidden handguns into bars and restaurants that serve alcohol (but they may not legally drink).

Governor McDonnell recently signed the bill into law, despite opposition from the Virginia Association of Chiefs of Police, which called the law "a recipe for disaster".

The Virginia Beach Police Chief compared the combination of alcohol and guns to drinking and driving. Even the Sheriff of Henry County, VA (a self proclaimed guns rights advocate) pointed out "I do not think weapons being in proximity with people drinking is a good idea.”

However, other law enforcement officers disagreed; one VA sheriff was quoted as saying “If a person thinks they need protection when they go in a bar, they’ve got a choice not to go there."

===============

I don't think I've ever been called "a liberal".  I merely have common sense.  Guns in bars, now legal.  Are you kidding me?

Saturday, May 8, 2010

Website review - of YOU. You as a person, a parent, a co-worker. Are you a 4 star hotshot or a 1 star jackass? Find out at Unvarnished.com.

It was only a matter of time (and something that has crossed The Civil Lawyer Online's mind in recent weeks)  . . . let's rate YOU.  Yes, you.  You as a person.  You as a parent.  You as a co-worker.  Your driving style. Your cell phone manners. Your gym locker room etiquette (to you certain guys who are a little too 'free' in the locker room - those towels really belong around your torsos, post-shower - cover it up, thank you). Whether you clean the office microwave after you use it.  You get the picture, right?

Well, now others can get the picture.  Welcome to Unvarnished.com, a website which allows others to discuss your merits and mediocrities. No, there's no set topic, no set guide on how to do it, not really.  Once it's fully up and running, you just log on, sign up, claim your own profile, comment on other people, respond to comments about you, and so forth.

So . . . does this make you nervous?  It should! There is no reason to think that any of us will get only 'positive' ratings and reviews, or that such ratings and reviews will be accurate. Think about the next time you: a) go on a date; b) apply for a job; or c) attend a teacher-parent conference.  Will information about you impact such things?  And then there is the other side of the coin: will Unvarnished.com end up with information about how your date went, whether you got the job, or whether your child's teacher thinks your parenting skills are lacking?

While this is really just a natural evolution of other "social media" and ratings databases, it's going to open a whole new can of worms . . . or perhaps only further open the Pandora's Box cranked wide by Facebook, MySpace and others. Maybe we'll make a bit more of an effort to be courteous, and a bit more concerned about negative encounters with others. Apparently, the reviews will be anonymous from the customer's standpoint, but not so anonymous from the perspective of the folks who run Unvarnished.com. As for me, I think anonymous reviews should be limited, if a way can be found to do so, or prohibited altogether.  I realize that there are circumstances in which there would be good and valid reasons to allow such reviews, but it seems to me that folks need to own up to their words - and their deeds.

==================================

As an attorney, perhaps the advent of such personal rating & review databases should make me cackle with glee. It remains to be seen whether such postings will be protected and to what extent, and how defamation laws will adapt.



Right now, I can think of two people I'd like to review.

Where: Miami airport.

When: December, 2009.

Who:  A young couple and the toy dog that she was oh-so-fond and loving of, treating it like a newborn baby.

Why: The boyfriend was proudly sporting a Philadelphia Eagles 'Michael Vick' jersey.



The irony seemed lost on them . . . that toy dog would have been a mere snack for Vick's fighting dogs.



Ratings: 1 star out of 5.

Wednesday, May 5, 2010

Freedoms Hang in Balance in this Clash of Titans: Google vs. China, Final Part

Mr. McGrath has run a series of blog posts regarding the dispute between Google and China, primarily because, whether we realize it or not, both of these entities influence billions of people on a daily basis and are locked in a battle over money and control - and, ultimately, freedom and civil rights. Part 1 dealt with the background of Google and other internet search engine companies entering China. Part 2 covered the events just after Google officially launched inside China in 2006 after compromising with the Chinese Government. Part 3 addressed Google's growing pains in China from 2007 - 2009.

This is the final blog entry on this topic, for now, and brings us up to date: Part 4: Google Rebels Against Chinese Censorship and Pulls Out

We left off in Part 3 by mentioning the resignation of Google's head of Google China, and the intermittent interference with Google's products by Chinese authorities in 2009. In December, 2009, Google and other large 'Western' corporations with significant internet presences were subjected to repeated sophisticated 'cyber attacks'. Occasional cyber attacks are not new, and, unfortunately, not unexpected. However, Google's investigation of these concentrated attacks lead it to some chilling conclusions.

January, 2010: Google Announced Refusal to Censor Within China


Google has an official "Blog", found at http://googleblog.blogspot.com/. On January 12, 2010, a now famous (or infamous, from the Chinese perspective) blog posting titled "A New Approach to China" appeared, posted by Google's Chief Legal Officer and Senior Vice President of Corporate Development. The blog posting indicated that Google's investigation of the December, 2009 cyber attacks came to the following primary conclusions:

  1. the primary goal of the attackers was to access the GMail accounts of Chinese human rights activists; and

  2. independent of the attacks made directly against Google itself mentioned in #1 above, dozens of other GMail users advocating for human rights in China had their email accounts repeatedly hacked by third parties.


Google's January 12, 2010 described China as a "great nation" which is "at the heart of much economic progress and development in the world today." The blog also emphasized that, upon officially launching inside China in January, 2006 (and thus agreeing to censor itself inside China), Google had publicly stated it would "carefully monitor conditions in China, including . . . restrictions on our services." Google announced that it would no longer censor its search results in China, and acknowledged that failure to do so may result in shutting down its operations inside China.

Those with any understanding of the innerworkings of China may have read between the lines as to the following sentence, which helped to wrap up the blog post: "We want to make clear that this move was driven by our executives in the United States, without the knowledge or involvement of our employees in China who have worked incredibly hard to make Google.cn the success it is today."[i]

India Chimes In


The week after Google made the results of its investigation public, India's National Security Advisor was questioned on the topic of cyber attacks. Mr. Narayanan informed the London Times that various Indian government departments, including his, had been the subject of sophisticated cyber attacks originating in China on the same date Google and others were victimized. India, of course shares a physical border with China.

The Chinese Reaction to Google's Refusal to Continue to Censor


One week after Google's announcement, China's Foreign Ministry reacted by stating that Google will not be an exception to Chinese law. The Foreign Ministry spokesman pointed out that foreign firms need to respect China's laws, regulations, public customs, traditions, and social responsibilities. He did not specifically mention censorship requirements. Chinese authorities denied any involvement in the cyber attacks in American and India, proclaiming that 80% of China's own internet connected personal computers have been subject to hacking.

Microsoft Says its 'Bing' Search Engine will Remain in China, Continue to Censor


When asked about the possibility of following Google's lead and leaving China, Microsoft's  CEO said "I don't understand how that helps us, and I don't understand how that helps China." Microsoft indicated that its 'Bing.com' search engine would continue to operate inside China and in conjunction with Chinese law.

February, 2010: Google & Disney May Invest $100 Million into Internet Based Chinese Media Company as China Announces Crack-Down on Hacker Training Website?


Four weeks after Google's dramatic announcement, it was still operating its censored search engine inside China. In fact, Google was reportedly partnering with Disney (yes, that Disney) to purchase up to 40% of a Chinese Digital Media company whose revenue was over $46 million in 2009.  Speculation was that Google and China were trying to mend fences, which may have been why the Chinese government announced on February 8, 2010 that it had shut down the website largely responsible for training internet computer hackers.  Interestingly, the shut down had apparently taken place in November, 2009.

March, 2010:  Google Shuts Down its Internal Chinese Search Engine; GoDaddy.com Stops Registering '.cn' Domain Names


On March 22, Google shut down its internet search servers inside China.  Thus, anyone attempting to access 'Google.cn' (the Chinese equivalent of 'Google.com') was redirected to an internet address of 'Google.com.hk' - Google's Hong Kong based search engine servers. Hong Kong is partially controlled by China, with the arrangement being loosely similar to that the United States has with Puerto Rico.

On March 24, GoDaddy.com announced, during a congressional hearing (ironic, given the infamous GoDaddy.com Super Bowl commercials), that stopped registering new domain names in China.  GoDaddy's General Counsel & Executive Vice President, Christine Jones, said the Chinese government had begun to demand photographs and other identification information from those registering websites in China, and that GoDaddy made the decision that it "didn't want to act as an agent of the Chinese government."

The Chinese Government Responds by Blocking some Searches Routed through Hong Kong; Google's Stock Drops


Within days of Google shutting down 'Google.cn' and redirecting such users to its Hong Kong based search engine, China responded by interfering with that search engine as well. By the end of March, persons using 'Google.com.hk' to search for prohibited content - be it porn or politics - often found such searches blocked. On March 30, likely as a result, Google's stock dropped 2%.

So What Happens Today, May 5, 2010, if one Attempts to use 'Google.cn' or 'Google.com.hk' to Search for Prohibited Items?




The Civil Lawyer Online typed in 'www.google.cn' today and was redirected to the 'www.google.com.hk' welcome page, written in "simplified" Chinese.  Choosing the "translate" option resulted in a welcome page, in English, similar to what those of us in the USA find when we go to 'www.google.com'.

One search attempted today was "Tibet independence".  Google Hong Kong's primary search results brought back websites both for and against Tibetan independence.  Google.com's primary search results were all pro-Tibet independence or sites more neutral in tone.

Another search attempted was "Tiananmen Square".  The outcome was similar, in that the majority of Google Hong Kong's primary search results made no mention of the infamous 1989 political rally there, while about half of the Google.com primary search results did.

Finally, a search was attempted using the term "hot naked ladies".  The results, all of which appeared to be unblocked porn sites were almost identical; apparently porn is more powerful than politics.


[i] Among those in the know, this was largely read as Google saying two things: A) to the Chinese government: "Don't punish the Google employees there in China, they had nothing to do with this; and B) to the Google employees in China: "Sorry about this, and we are going to try to keep the Chinese government from retaliating against you."


Sunday, May 2, 2010

Bleach Drinking Murder Suspect, Drunk Law Enforcement Officer Terrorize Interstate 85 in North Carolina (a DUI Lawyer's Work is Never Done)

Last week a murder suspect was chased at 100 m.p.h. through the Charlotte area, as part of a 100 mile chase. He apparently killed his 36 year old wife in South Carolina, then lead police on a high speed chase northward on Interstate 85, even after 3 of his 4 car tires had blown out. He fired on law enforcement officers from both South Carolina and North Carolina. He eventually stopped in the middle of the highway after the rims he had been driving on disintegrated.  Once his vehicle was disabled, a standoff ensued.  During the standoff, the emotionally volatile suspect drank bleach - and then begged for help after he, predictably, started to vomit up blood. This lead to his surrender and guarded hospitalization.


A few weeks earlier, a North Carolina Highway Patrol Captain driving a convertible Mustang was pulled over due to swerving inappropriately in the early morning hours, also on Interstate 85. The officer who pulled the state trooper over called the incident in and described the state trooper as "extremely 10-55". "10-55" is their law enforcement code for intoxicated. Interestingly, the investigating officers took the intoxicated state trooper (a 21 year veteran of the force), not to jail, but rather booked him into a Best Western hotel. While it is not completely clear what paperwork, if any, was filed, the state trooper was not charged with a criminal offense and the investigating law enforcement office said the matter was resolved "without report".


=================


The moral of these stories might be:


 


A) Don't drive in North Carolina?


B) Even Clorox can't cleanse a polluted soul?


C) Be sure to keep your Best Western membership card with you if you drink and drive?


=================


For those of us who wonder why there are so many attorneys in this world . . . well, part of the reason is that there are so many people who engage in acts which violate the standards and laws that we, as a society, have put in place.

Wednesday, April 28, 2010

Freedoms Hang in Balance in this Clash of Titans: Google vs. China, Part 3

Mr. McGrath will be running a series of blog posts regarding the dispute between Google and China, primarily because, whether we realize it or not, both of these entities influence billions of people on a daily basis and are locked in a battle over money and control - and, ultimately, freedom and civil rights. Part 1 dealt with the background of Google and other internet search engine companies entering China. We left off in Part 2 after Google had officially launched inside China in 2006 after compromising with the Chinese Government.

This is Part 3 - Google's Chinese Growing Pains, 2007 - 2009.

In January, 2007 - one year into its official China presence - Google had a 19% market share.  This was compared to the regional leader, a Chinese search engine company called "Baidu", which had 63% of the market.  As discussed in Part 1 of this series, Google had as high as 25% of the market share earlier in the decade (before it was "officially" in China, and before Baidu was a true competitor).  In an effort to expand its business, Google began to offer mobile content in China in conjunction with "China Mobile", the government-controlled telecom entity.

The same month, Google admitted it was already second-guessing its decision to agree to censorship in cooperation with the Chinese government. Co-founder Sergey Brin was quoted as saying . "On a business level, that decision to censor was a net negative." Google was also suffering from repeated cyber attacks in China.

In August, 2008 Google offered free music downloads to its Chinese users, in order to further compete with Baidu.[1] In January, 2009, China criticizes Google and other search engine companies for failing to do enough to block access to pornography. In an effort to be fair, we must acknowledge that much of what China seeks to censor is content which many others in the world censor - or want to. How many millions of Americans, for example, would like to have online pornography censored completely due to their own moral beliefs?

On March 24, 2009, China blocked access to YouTube.com after a video of Chinese police officers beating Tibetan protesters appeared on it. The block was lifted four days later. For those of you who did not know, Google acquired YouTube in October, 2006. One part of YouTube.com is CitizenTube.com, which is described by Google as being used primarily "to shine a light on issues that need more exposure; to drive action around causes they care about; and to create connections between people and organizations that share their desire to make a difference."

In June, 2009, Google's Chinese search engine and GMail in China were temporarily blocked.  Chinese authorities indicated that it was because Google was assisting in the spreading of obscene material. Perhaps spreading "obscene material" was helpful in Google's Chinese market share rising to 30% for the first time (in July, 2009).

Kai-Fu Lee, the Taiwan-Chinese who was named head of Google's China operations during the planning phases in 2005, resigned in September, 2009. This was big news for various reasons, including the high opinion held of Dr. Lee by many young adult Chinese.  The speculation was that he had grown weary of the pressure constantly applied by the Chinese government. Interestingly, while Google's self-authored "Timeline" contains an entry regarding the hiring of Dr. Lee (which came after legal battles between Google/Dr. Lee and Dr. Lee's former employer Microsoft), it does not mention his resignation, nor does it mention the putting in place of his replacement.

In October, 2009, a group of Chinese authors filed lawsuits against Google, claiming violation of copyrights regarding digital book downloads. See the footnote to appreciate the irony of this.

Throughout the incidents of increased censorship and interference, Google did not make much in the way of public response, although we can presume that intense discussions occurred behind the scenes. Its market share in China slowly rose between 2007 and 2009, and the instances of direct interference from Chinese authorities was not as bad as perhaps feared.  Nevertheless, we know that the censorship imposed by China continued to be a bitter pill to swallow for the founders and leaders of Google, whose very lives have focused on accessing and distributing information around the world.  Even so, few knew that a huge shift in Google's approach to and  relationship with China was about undergo a dramatic change.

Part 4 in this series to follow on May 4.


[1] Let me offer some brief background and commentary here on a related point. One of the issues with regard to China which frustrates and worries many in the international community is that the Chinese government is not always willing to enforce protection of copyrights, patents, etc. from other nations (including rights to music and other intellectual property). From the Chinese perspective, and in the short-term, it might make sense: "We will allow our citizens to have, for free, anything (not censored) they can get their hands on; this may improve their lives and contentment yet cost them and us nothing." Also, the Chinese Government and its associated companies have long been known to engage in industrial espionage, even more enthusiastically than most other countries.

Monday, April 26, 2010

Religious Beliefs vs. Right to a Fair Trial: Which Wins Out?

Earlier this year, a criminal prosecutor in Iowa attended a lunchtime mass on Ash Wednesday. He did so during a break in the attempted murder jury trial he was prosecuting on behalf of the State.  Upon his return, the criminal defense attorney noticed the ashes on opposing counsel's forehead.

After considering the issue, the defense attorney made an objection to the trial going forward with ashes remaining on the prosecutor's forehead. He informed the judge that he was concerned the religious symbolism might inappropriately influence the members of the jury.  As a general rule, religion and religious symbols are not allowed to be referenced or displayed during jury trials, especially criminal ones.

The judge presiding over the case informed the prosecutor that he tended to agree with the defense lawyer, and that the wiser course of action might be to remove the ashes. Upon hearing the judge's position, the prosecutor did so.  He was later quoted as saying that he understood the reason for the objection and the judge's position, and that he wasn't offended by the situation.

============

As a former prosecutor who also handled violent felonies, I would have to say that, from a legal perspective, the situation was dealt with appropriately. While a different prosecutor may have refused to remove the ashes out of principal or religious conviction, all reasonable prosecutors worry about some issue not relevant to the evidence allowing the defendant to successfully appeal a conviction.

Because the right to freedom is so fundamentally important, our legal system allows criminal defendants to almost always get the "benefit of the doubt."  For example, let us suppose that the trial continued with the ashes intact, and the result was a conviction by the jury. An appeal would almost certainly follow.  If the lawyers arguing the appeal on behalf of the criminal defendant were able to show that the religiously significant ashes on the prosecutor's forehead might have influenced even one member of the jury, the conviction could be vacated. At that point, the case would be sent back down to the trial court, to be started all over again as if the conviction never happened.

The prosecutor in this case explained that, "in an abundance of caution", he agreed to remove the ashes. Whatever our personal beliefs are, a prosecutor is sworn to uphold the law and to prosecute fairly - this includes fairness toward even the most malicious of defendants. While most lawyers have a duty to "zealously defend" their clients, a prosecutor has a higher, more strict duty, both from an ethical standpoint and a practical one.

I have not been able to discover what the outcome of the trial was.

Friday, April 23, 2010

Small Businesses, Taxes Impacted by Healthcare Reform: Key Points

How will President Obama's healthcare legislation impact small businesses and self-employed folks? What parts of his plan are going to be smiled upon by small businesses, and which are going to elicit resentment? Let's take a look at some of the key provisions, focusing on how they will impact small businesses and the self-employed.

Increased Medicare Taxes on the Moderately Wealthy:  As of January, 2013, if an individual makes over $200,000 ($250,000 for a family), his/her Medicare tax rate will increase from 1.45% to 2.35%.

Have Coverage or be Fined:  Businesses with more than 50 employees will be required to provide coverage to their employees or be fined by the government, starting in 2014.

Smallest Businesses Exempted from Mandatory Requirements:  The smallest businesses (fewer than 50 employees) will be exempt from minimum federal requirements with regard to healthcare plans - including the requirement directly above to provide healthcare to employees or be fined.

Have Coverage or be Fined, Part 2: As of 2014, individuals who don't have health insurance will be fined by the government - unless buying the cheapest plan available to you would take up 8% or more of your income.

Tax credit:  Starting in 2010, small businesses (fewer than 25 employees) which pay at least half of their employees' healthcare premiums qualify for a tax credit of up to 35% of those premiums. The exact amount of the tax credit will depend on the number of employees and their average wage.

Small Business Health Options Programs (SHOPs):  Starting in 2014, small businesses (up to 100 employees) can pool together to purchase healthcare plans - theoretically giving these groups greater bargaining and purchasing power.

Subsidies for the Self-Employed:  Also starting in 2014, self-employed folks earning up to 400% of the poverty level will qualify for a federal subsidy which will help them to purchase healthcare. (In 2009, "poverty level" for one person was $10,830; for two people it was $14,570; and for a family of four, it was $22,050.)

Preventive Care Coverage to be Mandatory: As of September 2010, healthcare plans must cover basic preventive care.  Currently, some plans only cover catastrophic care.



Increased Taxes on Small Business Owners: Starting in 2013, small business owners who receive capital gains, dividend, or interest income will pay an additional 3.8% tax on that income.

Medicaid Coverage Expanded:  In 2014, a higher percentage of low income individuals and childless adults will be covered by Medicaid, which is the equivalent of a healthcare plan for the poor provided by the government.  This can impact small businesses in many ways, both positive and negative.

Wednesday, April 21, 2010

Freedoms Hang in Balance in this Clash of Titans: Google vs. China, Part 2

Mr. McGrath will be running a series of blog posts regarding the dispute between Google and China, primarily because, whether we realize it or not, both of these entities influence billions of people on a daily basis and are locked in a battle over money and control - and, ultimately, freedom and civil rights. We left off in Part I as Google was about to launch as a formal business inside Chinese borders in 2006. This is Part 2 - Google Jumps into a Hurricane.



Just a bit more crucial background needs to be communicated before we get into Google's actual launch inside China. In September, 2005, it came to light that Yahoo had provided the Chinese government with private information which allowed China to identify - and arrest - Shi Tao, who had used his otherwise anonymous Yahoo email account to spread inside information regarding China's efforts against a New York based Chinese democracy website.  Shi Tao was sentenced to 10 years in prison. In December, 2005, Microsoft agreed to a demand by China to delete internet writings by Zhao Jing, a Chinese blogger promoting freedom of speech.  (Zhao Jing had gained some measure of fame after being interviewed by a New York Times reporter.) Microsoft's blogging service had no servers inside China - it agreed to erase information stored on and broadcast from America.

At the end of 2005, as Google prepared to launch as a formal, sanctioned business inside China - and thus subject to censorship as demanded by the Chinese government - Google had to figure out what websites had to be blocked and how to present those blocks to its Chinese users.  While one would think that the Chinese government would have maintained an official "black list" and given Google the same, no such list was provided. Instead, what Google did was run web searches inside China using key words it suspected might be troublesome; if a site was blocked when they searched it, it went onto Google's list of sites to block.

Google also decided that its web search results pages would inform searchers inside China if websites had been removed from the search results. Google's decision to do this was not shared with Chinese officials before Google launched inside China on January 27, 2006. For example, let's suppose at the time that someone in China wanted to find out if ole Guns-N-Roses had made any progress on that long planned "Chinese Democracy" album, and used Google.cn to search for the same. The search would have returned some results, but many other results would have been censored and not displayed.  The Google search results page would contain a disclaimer statement informing the searcher that some results could not be displayed due to Chinese law.

In light of the hurricanes of negative publicity suffered by both Yahoo and Microsoft when those two companies gave in to Chinese intimidation, Google made efforts in advance to protect private information and its Chinese users. A Google representative testified to the U.S. Congress in February 2006: "[For] protection of user privacy, we will not maintain on Chinese soil any services, like email, that involve personal or confidential data. This means that we will not, for example, host Gmail or Blogger, our email and blogging tools, in China."  Clearly, Google saw itself as taking reasonable measures to do better than its American competitors had in this regard. During that same Congressional hearing, Google admitted that formally entering China would compromise its two fundamental commitments, but pointed out that formally staying out of China was already doing the same.  (Those two fundamental commitments were stated to be: (a) a business commitment to satisfy the interests of users, and by doing so to build a leading company in a highly competitive industry; and (b) a policy conviction that expanding access to information to anyone who wants it will make our world a better, more informed, and freer place.)

Human rights activists, technology enthusiasts, members of the media, Chinese citizens, and even governments began to explore "Google.cn" immediately. One popular search, of course, was "Tibet", while another was "Tiananmen Square".  Searches for "Tibet" returned mostly anti-Tibet sites, while those for "Tiananmen Square" failed to return websites referencing the historic anti-Chinese government events which took place there. Wikipedia.com was completely blocked.

On the other hand, we must consider another key fact, often overlooked, which speaks well of Google. Despite launching the formal search engine at "Google.cn" inside China, Google did not take down its Chinese "Google.com" search engine.  Thus, for a period of time, someone in China could usually access the official and unofficial Google web search engines, with the unofficial results typically uncensored.

The same month as the Congressional hearings mentioned above (at which Google, Yahoo, and Microsoft were all hammered by U.S. Congressmen), The New York Times again met in Beijing with the by-then well known Chinese freedom of speech blogger, Zhao Jing. When asked about Google, Zhao had generally kind words and recognized that Google was seeking reasonable compromises.  With regard to Microsoft, Zhao had mixed feelings - perhaps generous, from an American perspective, given that Microsoft had deleted his freedom of speech blog at the demand of his oppressive government. As far as Yahoo, Zhao described the company as a "sellout" and commented that the Chinese people "hate  Yahoo".



The head of Google's China operation in 2006 was 44 year old Kai-Fu Lee, who was born in Taiwan*, educated in part at both Columbia and Carnegie-Mellon, and worked for Apple in California as well as Microsoft in China. He was already well-known in China. When Google hired him away from Microsoft in 2005, his personal website proclaimed, in Chinese, "Youth + Freedom + Equality + Bottom-up Innovation + User Focus + Don't Be Evil = The Miracle of Google." Yet when The N.Y. Times interviewed him several months later, he stated quite seriously that many Chinese do not hunger for "freedom" in the manner that Americans appear to think they do. Rather, Chinese tend to take the long view, be more patient than Americans, and accept the life around them as opposed to constantly thinking about changing it. In the years following its formal entry into China, Google would find out whether it could survive and thrive in China without violating its founding conviction of "Don't Be Evil".

Part 3 in this series to follow on April 28.


* As a reminder, Taiwan is the island just to the southeast of the Chinese mainland, and is not all that far north of the Philippines. Taiwan was more or less part of China until the late 1940s, when it became the last stronghold of the military dictator driven off the mainland by Mao.  Taiwan maintained its independence from the then-new People's Republic of China, but was never formally recognized as a separate nation by the world community due to opposition of this by China.  Taiwan transitioned to a democratic form of government in the 1990s, further aggravating China - which always held the position that Taiwan is part of China and should be directly ruled by Beijing. Taiwan continuously straddles the line between antagonizing the People's Republic of China and acting as an independent state. Most observers believe that China would have invaded Taiwan and forcefully returned it to full Beijing control if not for the support Taiwan has received from the United States, sometimes including the presence of U.S. Naval warships in the region.

Monday, April 19, 2010

Lawsuit Against Sorority President Who Commissioned Wax Statue of Herself

A lawsuit filed by the Alpha Kappa Alpha sorority last year claimed that its international president should be ousted because she spent hundreds of thousands of dollars of the group’s money on a wax statue of herself and other personal items.

International President Barbara McKinzie says that the statue cost less than $45,000. Her statute and the other she commissioned (one of an original sorority president) are supposedly to be  displayed in the National Great Blacks in Wax Museum.  She claims that the rest of the $900,000 at issue was put toward the sorority's 2009 national convention in Chicago. Yes, the National Great Blacks in Wax Museum (NGBIWM) is real; it states that it exists in part to "use great leaders as role models to motivate youth to achieve".  No word yet on who has promoted Ms. McKinzie to "great leader" status.

The sorority's suit alleged that McKinzie used the sorority’s American Express card to buy designer clothing, jewelry and lingerie, and she used credit-card awards points to buy a big-screen television and gym equipment, according to the stories. In all, the suit says, she spent almost $400,000 on personal expenses, the Chicago Sun-Times reported.

However, the Washington D.C. based Judge Natalia M. Combs-Greene did not accept those allegations and claimed the lawsuit was based on “hyperbolic allegations.”  Judge Combs-Greene recently dismissed the lawsuit. Interestingly, Judge Combs Greene, a Clinton appointee, is an African American female who attended law school at Howard University, where the Alpha Kappa Alpha sorority was founded.




Inquiries to the National Great Blacks in Wax Museum to find out the status of Ms. McKinzie's wax statue have not been responded to.

Saturday, April 17, 2010

Presidential Memorandum: Allow Hospital Patients Equal Rights, Regardless of Sexual Orientation, Religion, National Origin

It is entitled "Presidential Memorandum - Hospital Visitation: Memorandum for the Secretary of Health and Human Services".  The subject is "Respecting the Rights of Hospital Patients to Receive Visitors and to Designate Surrogate Decision Makers for Medical Emergencies." By its own language, it does not change the law or create any rights.  However, like almost everything any United States President does this century, it is sure to evoke various and passionate responses.

To summarize the changes raised by the Memorandum, it directs the Department of Health and Human Services (which directly or indirectly governs hospitals in the U.S.A.) to initiate changes in laws and administrative rules which allow all patients to designate visitors who have the right to visit, regardless of the legal relationship between the patient and visitor.  In other words, the "family only" restrictions will likely be removed in the next year or so. North Carolina recently changed its Patients' Bill of Rights law to allow the same.

The Memorandum also discusses how the laws and rules regarding "family-only" patient visitation may impact the role of those who are healthcare surrogates, health care proxies, or who have durable power of attorney. The Civil Lawyer Online provides services in this area. President Obama went out of his way to emphasize to the Secretary of Health and Human Services that rules and laws regarding healthcare surrogates and the like must be consistent and in harmony with new rules and laws regarding increased patient visitation rights.



=============================

Commentary by The Civil Lawyer Online:



On the one hand, the Memorandum seems to state the obvious:  hospital patients should have equal rights. One thing the Memorandum is sure to accomplish is to educate many in the United States (and around the world) as to the fact that, currently, hospital patients do not all have equal rights. For example, currently in some states, one's long time significant other or "life partner" may not be considered "family" entitled to full visitation rights - regardless of whether the couple is heterosexual or homosexual. Whoever you are, can you imagine that the people who mean the most to you in the world might not be allowed to see you, because - by random chance - you don't share the same gene pool?

As an attorney who has a great deal of experience with hospitals, doctors, nurses, patients, etc., this is clearly a positive development from a practical standpoint. Without getting into the politics and emotions of it, allowing patients to be comforted by those they care about - and those who care about them -  benefits all of us.  How, you ask?

This country has a nursing shortage and an "age-heavy" population. Our healthcare system is stretched thin. Our healthcare providers are overworked. In most situations, hospital-based healthcare providers are quite happy to have visitors with their patients.  Visitors often serve as another set of eyes and ears on the patient, which benefits the patient and the healthcare providers (especially nurses). Nurses can't be everywhere, all the time.  Almost no patients get direct care and monitoring (other than electronic) every minute of the day and night. If a caring visitor is with the patient, the result is usually a benefit to the patient and a benefit to the hospital staff.

We must also think of communication. Many hospital patients are not in a position to communicate effectively, if at all, whether due to age and infirmity, trauma, language barrier, or any other of a number of issues. We've all come across situations in which we couldn't understand someone - but a close friend or family member could. Communication is key to many things, often including patient treatment.  Perhaps you, as a patient, end up in a situation where someone close to you - but not a relative - is allowed increased involvement in your medical care and communicates information which helps you or saves your life, such as information about medications you take or allergic reactions you have.

I was glad to see that the Presidential Memorandum referenced some of these practical benefits. If we - and our elected officials - can keep our senses about us, perhaps this development can be seen as the positive progress it is, and not as another issue to divide our country.

Thursday, April 15, 2010

NC School Teacher Suspended over Facebook Postings; Freedoms of Speech, Religion Collide

These days, it's hard to tell what is more "in" - having your very personal photos and videos broadcast across the internet or getting into trouble over what you and others put on your Facebook and other social media pages. Melissa Hussain of Wake County, North Carolina chose the Facebook route.

Melissa Hussain was teaching 8th grade science at West Lake Middle School in Apex, North Carolina, where she started teaching in 2006. It recently came to light that, last December, a student anonymously left a Bible on her desk, reportedly with a note which said "Merry Christmas", with the "Christ" portion bolded and underlined. Supposedly, someone anonymously left a photo of Jesus on Ms. Hussain's desk, which she threw away. On other occasions, students read the Bible in her classroom, wore Jesus t-shirts, and sang "Jesus Loves Me".  Parents of students in the class said that Ms. Hussain sent students to the office when they asked about the role of God in the creation process during a lesson about evolution.

On her Facebook page, Ms. Hussain wrote that the bible incident amounted to a "hate crime" and that she wouldn't let it go unpunished. She couldn't "believe the cruelty and ignorance of people sometimes" and complained that her students were spreading rumors that she's a "Jesus hater".  Facebook friends of Ms. Hussain's commented regarding "ignorant southern rednecks" and someone suggested that she respond by bringing a picture of popular race car driver Dale Earnhardt Jr. to class with a swastika drawn on his forehead. To this, Ms. Hussain responded that, while she liked the idea, carrying through with it would cause her to lose her job.  She has since adjusted the settings on her Facebook page to make it more private.

Ms. Hussain's suspension - with pay - while the situation is investigated  is largely based on the Wake County School District's code of ethics which states that employees conduct "should be such as to protect both the person's integrity and/or the reputation and that of the school system".

====================

We don't know what Ms. Hussain's religious preferences, if any, are - and that probably doesn't matter, other than the fact that her apparently not being Christian is center to this series of events. It sounds like some of the kids in her class were using religion as a way to taunt her, which is regrettable, especially since they were using the freedoms of religion and speech as both swords and shields to do so. On the other hand, Ms. Hussain responded inappropriately, likely out of frustration. (Let's face it, kids of that age can be quite frustrating.)

The parents would likely portray their children as God-fearing young persons who have a right to express their religious preferences. Ms. Hussain would likely portray the children, the parents, and perhaps the general environment as hostile to someone who believes differently than the majority.

Arguments can be made about the rights to freedom of speech and religion that both the students and the teacher should have. Debates can be held about where the line must be drawn, and what balance must be struck. In this situation, most involved acted less than admirably. It will be interesting to see what final decision the Wake County School District comes to in this case.

Wednesday, April 14, 2010

Freedoms Hang in Balance in this Clash of Titans: Google vs. China (Part I)

Mr. McGrath will be running a weekly series of blog posts regarding the dispute between Google and China, primarily because, whether we realize it or not, both of these entities influence billions of people on a daily basis and are locked in a battle over money and control - and, ultimately, freedom and civil rights. This is Part I:  Google in China - the Beginning.

Google was founded in 1998 by two friends who attended Stanford together.  Its informal motto was (and arguably is) "Do no evil". Google first began to operate in China in 2000 (Yahoo was the first "Western" internet giant with a real presence in China, 1 year earlier), when it developed its search engine which could understand and use Asian type languages such as Chinese, Japanese and Korean.

Like other Western based search engines, it was obvious to Chinese that Google's early products in China were Western in orientation.  This was attractive to certain segments of China's population (often young professionals interested in the West), but not others (who preferred "home grown" internet search engines and products).  By 2002, Google had easily surpassed Yahoo in usage in China, garnering approximately 25% of Chinese web search traffic. It must be kept in mind that, at the time, Google did not have any real physical presence in China; it was simply that internet users in China could virtually access Google the same way most of us in the USA can access websites and search engines "based" in other countries.

Without any general warning, the Chinese government blocked Google inside China on September 3, 2002. They did so using something that many of us have become familiar with - a firewall. Not surprisingly, it became known as the "Great Firewall of China". (Brief technical explanation: the flow of information that is the internet into China runs primarily through 3 massive fiber-optic pipelines.  These pipelines are modulated by routers - some of which are produced by the American company Cisco - and can be used to block certain internet traffic.)  This firewall, and the routers that make it possible, can prevent certain patterns of information or characters (such as those which make up words and phrases) from being accessed.  For example, if the term "human rights" was searched in China at the time, one might be able to see that websites discussing that concept existed, but one could not actually access the website - an error message would appear instead.  This blockage ended after a few weeks, but Google continued to experience occasional/partial blockages and delays.

For the next few years, Google continued to ponder its dilemma:  1) remain "outside" China and continuously experience signal interference and slowdowns; or 2) actually open offices in China (with government permission, subject to Chinese regulations and censorship) and not have to struggle to get its signal past the Chinese interference.  By 2005, the Chinese web search service called "Baidu" had taken almost half of the Chinese market share, with Google stuck at around 27% market share.  ("Baidu" is apparently a reference to a centuries-old Chinese poem, and means "searching hundreds of times" - searching for the ideal.)

One reason, of course, that Google had not officially taken up a physical presence in China was to avoid censoring itself, which would be required of any business officially practicing in China. Google had publicly expressed the philosophy that, by being present in China but only from the outside, it was helping to internally transform China by increasing access to otherwise restricted information, despite the partial blockages put in place. This goes back to a well known debate over whether to interact with problematic regimes/nations or to refuse to deal with them. For example, consider the USA's stance toward Cuba, with which the USA generally refuses to interact with. Then consider whether the opposite approach - influencing Cuba by flooding it with American marketing, products, and culture - would have been more effective in undermining the controlling authoritarian Castro regime and moving the people of that impoverished nation toward a more free life this last half-century.

As 2005 progressed, Google, lead by co-founder and head of government relations Sergey Brin, began to negotiate an official presence in the People's Republic of China, at the time led by President Hu Jintao and Prime Minister Wen Jiabao. Various interest groups and individuals monitored the situation closely, some with great optimism, others with dread. In January, 2006, Google officially opened in the People's Republic of China.

Part 2 in this series to follow on April 21.

Tuesday, April 13, 2010

Taxes: You're Probably Wrong (Like Wesley Snipes Was Wrong!)

The Tax code is fairly complicated - even for lawyers, accountants, and other tax "experts". As the tax deadline approaches, The Civil Lawyer Online continues this series of posts designed to provide helpful information.*

Common Beliefs About Taxes:  Probably True, or Probably False?



1.       Filing an extension gives you more time to pay - True or False?


False! If you owe, you owe what you owe on April 15. Failure to pay results in interest charged and sometimes financial penalties. If you have to file an extension, but think you will owe the IRS this year, you are supposed to pay an estimated amount by April 15, even if you don't file by that date.

2.       Filing an extension makes you more likely to be audited - True or False?


Probably false. Extensions are automatically granted by the filing of form 4868 by April 15.  Extensions are commonplace. Sloppy/inconsistent tax returns are more likely to result in audits, so an extension may actually decrease the chances of being audited if it allows you to file a more proper and organized tax return.

3.       E-filing your tax return (filing it electronically) increases your chances of being audited - True or False?


False, according to the IRS, which encourages you to E-file.  It appears that the overwhelming majority of "early filers" filed electronically. Mr. McGrath has filed electronically for years now, including with The Civil Lawyer Online for tax year 2009.

4.       Paying taxes is voluntary - True or False?


Well, true and false!  Paying taxes is voluntary in the sense that nobody can truly force you to do so.  In fact, the instruction book published by the IRS for Form 1040 used to say that the tax system is voluntary! Of course, the people who interpreted that to mean they do not have to pay taxes often end up in prison. According to the IRS, what that language was intended to mean is that citizens have the freedom to prepare their own tax returns and have some say in their own tax affairs, as opposed to the government sending a bill with a mandatory amount. The bottom line?  Pay your taxes, unless you want to risk being prosecuted.

5.     Wages aren't taxable income (the "Wesley Snipes Tax Approach") - True or False?


False! Section 861 of the tax code contains a comment which some have interpreted to mean that income of U.S. citizens earned from U.S. sources is not taxable. This is more recently known as the "Wesley Snipes Tax Approach". (Mr. Snipes decided not to pay taxes for 6 years, during which he earned almost $40 million; he was convicted in federal court in 2008 and sentenced to 3 years incarceration for failing to file those tax returns.  He is smiling in the photo above leaving court because he was acquitted on more serious tax fraud charges, and because he had not yet been sentenced to the 3 years incarceration.)

6.       A big tax refund is a good thing - True or False?


This has to be true, right?  Right?  Well, not really; it's generally false. If you are getting a large refund, this basically means that, during the year, you gave the government more money than you needed to.  So, instead of that money being yours to use (even if just to gain interest on it), you loaned it to the government for them to use and then pay you back by way of your tax refund. To help avoid this, you can go to www.irs.gov and search the phrase "withholding allowances".  This will allow you to find assistance in adjusting your W-4 allowances, which can be done at any time during the year.

7.       If you're self-employed, you can deduct all of your expenses - True or False?


False! Many expenses are deductible, but not all of them. The very, very general rule is that expenses which are purely business related and not otherwise reimbursed are deductible. For example, while you may be able to deduct expenses related to using your personal vehicle for business trips if you aren't otherwise reimbursed for those costs, you can't deduct the portion of auto expenses which is incurred due to use of your car for personal reasons.

8.       Social security benefits are not taxable - True or False?


False!  Social security taxes might be taxable, if you bring in enough over all income. If social security is your only income, or the majority of your income, you likely don't have to pay taxes on your social security benefits. However, if you earn significant income above and beyond your social security, your benefits could be heavily taxed.  To learn more, go to www.ssa.gov/planners/taxes.htm.

9.       You can claim your  A) grown child; B) elderly parent; or C) dog as a dependent - True or False?


A) usually false; B) usually false; C) always false. Once your child is 18 years old, it's harder to claim him or her as dependent. Once your child is older than 19, it's even harder. You may be able to claim your "adult" child as a dependent if (s)he is a student and truly financially dependent on you.  But be careful and see IRS Publication 501.

With regard to an elderly parent who depends on you, such a person may be a dependent for tax purposes if (s)he meets certain criteria. Part of that criteria is that you provide more than half of that parent's yearly support and that parent has very little income of their own.  Again, be careful and see IRS Publication 501.

With regard to claiming your dog as a dependent, only golden retrievers qualify.  (Guess what kind of dog Mr. and Mrs. McGrath own?)  Just kidding - no dogs can be claimed as dependents, not Lassie, not Old Yeller, not Spuds McKenzie, and certainly not those little dogs women carry around in their purses or push around in baby strollers.

10.     Those E-mails you get during tax season about your tax return are from the IRS - True or False?


False! Be careful in opening such emails, and be very careful about responding to one!  Some such emails are scams, some are intended to transfer a virus to your computer, and some are solicitations.



This year, Mr. McGrath investigated paying his taxes online, and registered to do so. At the end of the registration process, he was told that he'd receive information - including a PIN (personal identification number) - not immediately via the internet, but rather by way of US mail within 10 days, which would allow him to pay his taxes online. So, while the IRS allows electronic filing of tax returns and electronic transmittal of tax monies to and from taxpayers, it does not yet engage in emails related to your tax return, for security reasons.



*THIS BLOG POST IS NOT LEGAL ADVICE, AND SHOULD NOT BE USED AS A REPLACEMENT FOR SEEKING ADVICE FROM A TAX EXPERT WITH REGARD TO YOUR OWN TAX SITUATION. IF YOU HAVE QUESTIONS REGARDING YOUR TAXES, PLEASE CONSULT WITH A TAX EXPERT.

Friday, April 2, 2010

Taxes: Properly Deduct Almost Any Documented Business Travel or Entertainment Expenses

It's that time of year again, and - like the rest of us - all of you business travelers out there need to make sure you keep as much of your money as legally possible. With regard to business travel expenses, almost any expense is deductible as long as it is properly supported.  The general rule of thumb is to document the following information for each expense deducted: 1) person; 2) place; 3) purpose; 4) price; and 5) date.  Formal receipts are not always necessary, though generally required for hotel stays, as well as for entertainment or meal expenses over $75.  Here is a brief summary of some general* rules on certain business expenses:











































Expense TypeDeduction AvailableFormal Receipt ?
Hotel100% of reasonable totalYes
Business Meal (local)50% (of reasonable total, including tax + tip)If over $75
Business Meal (personal, while traveling)Daily meal allowance amount (was $39-$46 in most of USA)Preferred
Travel (air, auto, train)100% of reasonable totalPreferred
Entertainment50% of expenses "directly related or associated with work"Yes if over $75
Personal Car Mileage100% for work travel (generally can't include normal trip to office)No but must keep written log
Misc.100% of "ordinary and necessary expenses"Preferred

The bottom line is be truthful, be accurate, be reasonable - but also be well aware of the ins and outs of the parts of the tax code which can benefit you.

* This short article is not legal advice, and is not a substitute for consulting with a tax expert.  These rules are general in nature, and may not apply to your situation.