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With No Money, How Do I Pay My Attorney to File My Bankruptcy?

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How do I Pay My Attorney for My Bankruptcy?

By, Ginger Kelly, Esq.  April 10, 2018

The other day, a personal friend asked me (for a friend), whether or not they should she use their tax return tax refund to pay down their credit card bills or to replace the old and leaking roof on their home.  Their roof needed repairing badly.  Their credit card debt was very old and the payments were more than they could afford.  Even though I can’t make that final decision for this friend’s friend (or any of my clients), I can advise most folks of their legal options.  When people need to make a choice between a roof over their head or paying credit card bills, one good option available to most everyone is a fresh start.

In many or most situations, bankruptcy can give an individual or a couple, the fresh start they need. If you are in a position where you need to make important decisions like what to pay and what not to pay, like a roof on your home or to repair the vehicle you need to get to work, talk to a good bankruptcy attorney.  Most give free first consultations, like our office. Bankruptcy might be an option for you, or maybe not.  A person hasn’t lost but an hour of their time discussing their options with a good attorney.  Talking to a professional about options for taking care of debt, sometimes gives the clarity you need to make the right decisions for your future.

A client visited me the other day to discuss her situation. Apparently, she had debt exceeding any amount she could pay.  It wasn’t much debt, but it was a lot for her and that is important. Her earnings were barely more than the poverty level.  So while we had a nice hot cup of coffee, we talked about all of her options.  It was a nice pleasant, casual conversation.  I discovered that my client earned too much money to qualify for a free bankruptcy, through legal aid. She was sad and asked me what can be done.

Because her bankruptcy was not complex, I agreed to lower my fee. I gave her my best  fee option. Still, she was worried. Where would she find the money to pay the attorney fee? I asked her if she was getting a tax refund. She said yes, but it wasn’t enough. She was sickened with the idea of paying creditors all of her disposable income for years to come.

All of a sudden, she had an idea. She said, rather than trying to negotiate and pay down her credit card debt, using all of her disposable income, she said she could ask her uncle for the money. She said that she was thinking of asking him for a gift to help her pay down her loans anyway. Why not ask him for the same gift to pay her attorney’s fees?  Good idea! Sometimes asking relatives to help is a better option than worrying about how to pay overwhelming debt. I’ve had several clients in this kind of situation.

Once, a couple was in the same situation. The wife lost her job due to illness and then one thing led to another. They became deeply indebted, mostly to unsecured creditors (credit card companies). The best option for them was to file for bankruptcy. We talked a little bit and I gave them my best rate.  They were thankful, but without the extra cash, they didn’t know how to pay the legal fees. This was a problem for them.  However, determination overcomes lots of obstacles.

This couple scraped and saved and paid a little along. One spouse sold a baseball card collection and some tools.  The other sold some furniture they no longer needed. They used Craigslist and Facebook Yard Sale to sell a few more things.  They sent checks, one by one, to our office. Sometimes the check was small, sometimes large. We placed all of these funds into our client’s trust account, on hold for them until they finished paying. It didn’t take long. Within about four months, this couple paid all their fees, including the filing fee. This couple couldn’t have been happier.  I was so happy to help them in this way.

Once a person is determined to make a bad situation better, magic happens. There are more options for paying lawyer’s fees than these. Options are only limited by a person’s motivation, determination and imagination. Typically, I ask clients whether or not they have a tax refund coming to them.  This is a very good option for covering fees and things.  Then, I suggest asking friends or relatives for a gift.  At our office we have many ways of making your bankruptcy affordable, sometimes even free or at a reduced rate. Ask us how and perhaps we can help to make your fresh start,more affordable.  It may be easier than you think.

The Law Offices of Ginger B. Kelly is now accepting clients in the Sturbridge, Southbridge, Dudley, Webster, Oxford, Charlton, Auburn, Spencer, Brookfield, Warren and all of the Worcester County Area. We can explore whether or not bankruptcy is the easy way out or not.  We have a comfortable place to talk and a free pot of coffee waiting for you.

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ABOUT ME: Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture. To find out more, visit, http://www.attorneykelly.com or call us at (508) 784-1444.

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NOTICE: This is an Advertisement. This post is not legal advice. Consult your attorney. Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet. Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other. We cannot stress enough, if you need personal legal advice, always see your attorney. Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice. Seek legal advice and representation from your own personal attorney.

Copyright © 2018 by Ginger B. Kelly, Esq., all rights reserved.

 

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Property Transferring No No’s, Before Filing Bankruptcy

Money in an envelope

Property Transferring No No’s, Before Filing Bankruptcy

by Attorney Ginger B. Kelly, February 23, 2018

There are a few types of transfers that will definitely not help if you want to file for bankruptcy to get a fresh start. One of those is types of transfers is called a prepetition transfer or (in other words) a fraudulent or irregular transfer.

Essentially, a prepetition transfer is a transfer of property (money or other things, including real estate) given to a person or creditor within 90 days from the date you file your petition. A prepetition transfer may also be a transfer of any property (money or other things, including real estate) to any insider, like a business partner, family or friend, within one year of your bankruptcy filing. Prepetition transfers are one of the biggest reasons why it is important to consult with a qualified, experienced, bankruptcy attorney, before you file. The prepetition transfer follows something called the 90 day rule.

Basically, the 90 day rule relates to debts that a debtor has paid, while insolvent, within the past 90 days of filing their bankruptcy petition and is set forth in section 547(b) of the Bankruptcy Code. The 90 day rule generally means that the US bankruptcy trustee has permission to avoid, (which means unwind or undo), any transfer made to a creditor or an insider if the transfer had an aggregate value of $600 or more provided that the transfer was made within 90 days from the date of the bankruptcy filing, and for any transfers made up to one year, if the person who received the transfer was an insider.

Here are a couple of examples of a fraudulent or irregular transfer:

Jane wanted to settle a debt before filing. She saved around $3,000 and was successful in negotiating with creditors to pay off one of her credit cards. Jane negotiated a settlement with blue credit company for $700 on October 30, 2017. She negotiated another settlement and paid red credit company $1,000 on November 1, 2017. After Jane negotiated successfully, with blue and red credit companies, she tried to negotiate with orange and green credit companies. She was unsuccessful. So Jane filed her bankruptcy without an attorney. Since she paid $700 to blue and $1,000 to red, her US Trustee avoided these transfers to get the money back. The trustee will allow all of Jane’s creditors to receive an equal share of the $1700 and prevent one particular creditor from benefiting more than the others. This is just one example. There are more.

The second section of the 90 day rule allows bankruptcy trustee to avoid any transfers of property made to any creditor that is also an insider (i.e., business partner, relative or friend) made between 90 days and one year of your bankruptcy filing date and exceeds and aggregate value of $600 or more.

In the next example, Steven bought his daughter Karen, a $15,000 car for graduating college. Steven paid $5,000 from funds he kept in his savings account and made the remainder of the purchase from a $10,000 line of credit on his credit card. On June 30, 2017, Steven transferred the title, over to his daughter.  In September of 2017, Steven lost his job. He was no longer able to make the remainder of Karen’s car payments. After four months without a job, Steven’s debt was piling up. So, in January 2018, Steven decided that he wanted to file chapter 7 bankruptcy to get a fresh financial start. If Steven were to file for bankruptcy before June 30, of 2018, there may be a good chance that the trustee would be able to avoid the car title transfer he made to his daughter, Karen. This would put the vehicle Steven just purchased for his daughter at risk. If Steven’s bankruptcy attorney knew of this transfer, the attorney would have warned Steven of the issues involving the purchase of Karen’s car prior to filing.

The fraudulent transfer rule involves all property, not just cash, and also applies to both chapters 7 and 13 bankruptcies. There are only a few exceptions. One, for example, is the exception for transfers made in the ordinary course of business, in other words, the property was sold to another (not an insider) for a fair and accurate value. But even so, bankruptcy can get complicated and for most folks, an attorney is usually needed to help out. Some people can’t imagine how to pay for a bankruptcy when they have no money. I’ll talk about that more, in my next article.

For now, if you’d like to set up an appointment to talk about affordability and your available options, call me. We can talk, face-to-face, and explore your options over a nice cup of coffee or tea.

The other day, a new client couple asked whether or not they should she use their tax return tax refund to pay down their credit card bills or use their tax refund to replace the roof on their home. Their roof needed repairing badly. Their credit card debt was very old. I cannot make that final decision for any of my clients, but I can advise them of their options. If you are in a position where you need to make important decisions like paying your credit card bills or paying for something extremely important, like a roof on your home, it may be a great idea to talk to a good attorney. Most give free first consultations.

If you are contemplating bankruptcy, and have some questions about a transfer you may have made or the 90 day rule, The Law Offices of Ginger B. Kelly is now accepting clients in the Sturbridge, Southbridge, Dudley, Webster, Oxford, Charlton, Auburn, Spencer, Brookfield, Warren and all of the Worcester County Area. We can explore whether or not bankruptcy is the easy way out or not.  We have a comfortable place to talk and a free pot of coffee waiting for you.

~~~~~~~~~~~~

ABOUT ME: Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture. To find out more, visit, http://www.attorneykelly.com or call us at (508) 784-1444.

~~~~~~~~~~~~

NOTICE: This is an Advertisement. This post is not legal advice. Consult your attorney. Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet. Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other. We cannot stress enough, if you need personal legal advice, always see your attorney. Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice. Seek legal advice and representation from your own personal attorney.

Copyright © 2018 by Ginger B. Kelly, Esq., all rights reserved.

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Filed under Bankruptcy, Chapter 7, Choosing a lawyer, Collection, credit card debt, Debt, Debt Collection, Deficiency, Empowerment, Filing, Financial, Judgements, Law, Lawsuits, Massachusetts, Rhode Island, tax refund, tax return, Uncategorized

To be or not to be? The death penalty question.

death-penalty1

Photo credit to Stephenhicks.org

In wake of the Dzhokihar Tsarnaev jury verdict, the trend around social media is whether or not the death penalty should be abolished in the United States. No one is immune from the stories, the questions, the buzz, especially in Massachusetts.

Is the death penalty constitutional?  Does the death penalty deter crime?  Is the death penalty fair and just?  Is the use of the death penalty for sentencing, in all or some circumstances, considered cruel and unusual punishment under the Eighth Amendment of the United States Constitution and the Laws of the States?  What about people with mental incapacitates and serious IQ issues?  Should they die too?  Does race or economic status play a role? What about botched lethal injections and firing squad issues?  Then there’s the trendy “did you knows.”

Did you know that thirty two (32) US states plus the Military and the Federal government still have the death penalty?  Did you know that in 2013, the average murder rate of death penalty states was 4.4, while the average murder rate for states without the death penalty was only 3.4?  Did you know that since 1973, over 140 people on death row in the US have been found innocent and exonerated from their crimes?  It’s a lot to think about.

Because it is a lot to read, a lot to think about and Massachusetts inquiring minds can’t wait to know, below is a relatively brief state-by-state compilation (the low-down) of a few interesting facts on death penalty, lethal injections and so on.  Most of the information gathered is strictly online news and op-ed articles, so don’t rely upon it for anything substantial like a doctoral dissertation or expert opinion. The Death Penalty Information Center is a very good resourse for most Death Penalty facts.  Please keep in mind, this information has not been verified or fact-checked or cite-checked (see disclaimer, below).

The best way to absorb all this information is to look at it from top to bottom.  Just skim, don’t read it all.  You can then go back to look at the facts for the state or topic you like.  If you like, check out a trend that’s interesting and and compare, like murder rate.  If you want to learn more, come back.  Read an article or two later.  It’s a lot to absorb in one fell swoop.

“To be or not to be” is the real death penalty question.  Decide for yourself and take away a few cocktail party or BBQ cook-out talking points.

Please feel free to comment or question.  There is so much to talk about.

*Note: The Murder rates, below, are per 10,000 people in 2013.

Alaska – Murder rate* – 4.6; [No Death Penalty; Number of Executions Since 1976 – 0]

Alabama – Murder rate* – 7.2; Current death row population: 198 (5 are women); Method: Choice of injection or electrocution; Death Penalty Crimes: Intentional murder with 18 aggravating factors (Ala. Stat. Ann. 13A-5-40(a)(1)-(18))

Arkansas – Murder rate* – 5.4; Death row population: 34 (0 are women); Method: Injection or choice of Injection or electrocution for crimes after 1983; Death Penalty Crimes: Capital murder (Ark. Code Ann. 5-10-101) with a finding of at least 1 of 10 aggravating circumstances; treason.

Arizona – Murder rate* – 5.4; Death row population: 124 (3 are women); Method: Injection / Choice of Gas Chamber if sentenced before 11/92; Death Penalty Crimes: First-degree murder, including premeditated murder and felony murder, accompanied by at least 1 of 14 aggravating factors (A.R.S. § 13-703(F)).

California – Murder rate* – 5.4; Death row population: 743 (19 are women); Method: Injection / Choice of Gas Chamber; Death Penalty Crimes: First-degree murder with special circumstances; sabotage; train wrecking causing death; treason; perjury causing execution of an innocent person; fatal assault by a prisoner serving a life sentence. Trending: California’s stay of executions requiring lethal injections resulting in overcapacity of death row prison, according to a March 30, 2015 LA Times news article.  

Colorado – Murder rate* – 3.4; Death row population: 3 (0 are women); Method: Injection; Death Penalty Crimes:First-degree murder with at least 1 of 17 aggravating factors; first-degree kidnapping resulting in death; treason.  Trending: CBS News: Colorado has no moratorium on the death penalty as the jury deliberates on the verdict of Colorado movie theater shooter, James Holmes.   In an April 17, 2015 poll by WBUR, the death penalty is becoming increasingly unpopular.

Connecticut – Murder rate* – 2.4; [Abolished the death penalty in 2012]

District of Columbia – Murder rate* – 15.9; [Number of Executions Since 1976 – 0]

Delaware – Murder rate* – 4.2; Death row population: 17 (0 are women); Method: Injection or choice of injection of hanging for offenses prior to 6/13/86; Death Penalty Crimes: First-degree murder (11 Del. C. § 636) with at least 1 statutory aggravating circumstance (11 Del. C. § 4209). Trending: April 1, 2015, Delaware Online states, the Delaware ex-prison warden says the Delaware death penalty creates an immeasurable burden on the prison system and doesn’t make the guards any safer.

Florida – Murder rate* – 5; Death row population: 403 (4 are women); Method: Choice of Injection or Gas Chamber; Death Penalty Crimes: First-degree murder; felony murder; capital drug trafficking; capital sexual battery. Trending: The US Supreme Court has granted cert to consider the constitutionality of Florida’s sentencing scheme for capital cases and the use of the death penalty for mentally disabled criminals. Unlike Ohio and Oklahoma, no stay of executions has been granted in Florida as of March 9, 2015, according to a US News March 9, 2015 article.

Georgia – Murder rate* – 5.6; Death row population: 87 (1 are women); Method: Injection; Death Penalty Crimes: Murder with aggravating circumstances; kidnapping with bodily injury or ransom when the victim dies; aircraft hijacking; treason. As of March, 2015, the Georgia Department of Corrections announced a moratorium on executions due to the difficulty in acquiring lethal injection drugs.

Hawaii – Murder rate* – 1.5; [Number of Executions Since 1976 – 0]

Idaho – Murder rate* – 1.7; Death row population: 11 (1 are women); Method: Injection; Death Penalty Crimes: First-degree murder with aggravating factors; first-degree kidnapping; perjury resulting in the execution of an innocent person.

Illinois – Murder rate* – 5.5; [Abolished the death penalty in 2011]

Iowa – Murder rate* – 1.4; [Number of Executions Since 1976 – 0]

Indiana – Murder rate* – 5.4; Death row population: 14 (1 are women); Method: Injection; Death Penalty Crimes: Murder with 16 aggravating circumstances (IC 35-50-2-9).

Kansas – Murder rate* – 3.9; Death row population: 10 (0 are women); Method: Injection; Death Penalty Crimes: Capital murder with 8 aggravating circumstances (KSA 21-3439, KSA 21-4625, KSA 21-4636). Trending: According to ScotUS, a stay of current executions in Kansas due to the Monday, March 30, 2015 U.S. Supreme Court decision to grant review of three Kansas death penalty cases based on the constitutionality of the death penalty imposed for the mentally disabled.

Kentucky – Murder rate* – 3.8; Death row population: 35 (1 are women); Method: Injection for those sentenced on or after 3/31/98, Injection or Electrocution for those sentenced prior; Death Penalty Crimes: Capital murder with the presence of at least one statutory aggravating circumstance; capital kidnapping (KRS 532.025).

Louisiana – Murder rate* – 10.8; Death row population: 85 (2 are women); Method: Injection; Death Penalty Crimes: First-degree murder; treason (La. R.S. 14:30 and 14:113). Trending: March 30, 2015 NYT article reported, the US Supreme Court heard oral argument in a Louisiana case that presented questions on the role of the federal courts in determining whether a state prisoner who faces the death penalty has intellectual disability. In March, 2015, three Prosecutors in Louisiana, responsible for 75% of Louisiana’s death sentences, facing prosecutorial misconduct charges, according to the New Orleans Advocate.

Maryland – Murder rate* – 6.4; [Abolished the death penalty in 2013]

Massachusetts – Murder rate* – 2; [Number of Executions Since 1976 – 0]

Maine – Murder rate – 1.8*; [Number of Executions Since 1976 – 0]

Michigan – Murder rate – 6.4*; [Number of Executions Since 1976 – 0]

Minnesota – Murder rate – 2.1*; [Number of Executions Since 1976 – 0]

Mississippi – Murder rate – 6.5*; Death row population: 48 (2 are women); Method: Injection; Death Penalty Crimes: Capital murder (Miss. Code Ann. § 97-3-19(2)); aircraft piracy (Miss. Code Ann. § 97-25-55(1)).

Missouri – Murder rate – 6.1*; Death row population: 35 (0 are women); Method: Choice of Injection or Gas; Death Penalty Crimes: First-degree murder (565.020 RSMO 2000).

Montana – Murder rate – 2.2*; Death row population: 2 (0 are women); Method: Injection; Death Penalty Crimes:Capital murder with 1 of 9 aggravating circumstances (Mont. Code Ann. § 46-18-303); aggravated kidnapping; felony murder; aggravated sexual intercourse without consent (Mont. Code Ann. § 45-5-503).

Nebraska – Murder rate – 3.1*; Death row population: 11 (0 are women); Method: Injection; Death Penalty Crimes: First-degree murder with a finding of at least 1 statutorily-defined aggravating circumstance.

Nevada – Murder rate – 5.8*; Death row population: 77 (0 are women); Method: Injection; Death Penalty Crimes: First-degree murder with at least 1 of 15 aggravating circumstances (NRS 200.030, 200.033, 200.035).

New Hampshire – Murder rate – 1.7*; Death row population: 1 (0 are women); Method: Injection or hanging if injection is not possible; Death Penalty Crimes: Murder committed in the course of rape, kidnapping, drug crimes, or burglary; killing of a police officer, judge or prosecutor; murder for hire; murder by an inmate while serving a sentence of life without parole (RSA 630:1, RSA 630:5).

New Jersey – Murder rate – 4.5*; [Number of Executions Since 1976 – 0]

Nevada – Murder rate – 5.8*; Death row population: 77 (0 are women); Method: Injection; Death Penalty Crimes: More research is required.

New Mexico – Murder rate – 6*; [abolished the death penalty in 2009]

New York* – Murder rate – 3.3*; [New York abolished the death penalty in 2007]

North Carolina – Murder rate – 4.8*; Death row population: 158 (4 are women); Method: Injection; Death Penalty Crimes: First-degree murder (NCGS §14-17) with the finding of at least 1 of 11 statutory aggravating circumstances (NCGS §15A-2000).

North Dakota – Murder rate – 2.2*; [Number of Executions Since 1976 – 0]

Ohio – Murder rate – 3.9*; Death row population: 145 (1 are women); Method: Injection, 1-drug protocol; Death Penalty Crimes: Aggravated murder with at least 1 of 10 aggravating circumstances (O.R.C. secs. 2903.01, 2929.02, and 2929.04). Trending: April 8, 2015, Cleveland.com mentioned changes to Ohio’s lethal injection protocol are being considered in the wake of the botched execution of Dennis McGuire which resulted in the postponement (stay) of all executions in Ohio until 2016.

Oklahoma – Murder rate – 5.1*; Death row population: 49 (1 are women); Method: Injection or electrocution/firing squad of injection is unconstitutional; Death Penalty Crimes: First-degree murder in conjunction with a finding of at least 1 of 8 statutorily-defined aggravating circumstances.  Trending:  According to a Fredericksburg.com editorial article, As of March, 2015, a moratorium on executions in Oklahoma still exists in wake of the US Supreme Court deliberations on whether or a failed Oklahoma execution was constitutional based on cruel and unusual punishment.

Oregon – Murder rate – 2*; Death row population: 36 (1 are women); Method: Injection; Death Penalty Crimes: Aggravated murder (ORS 163.095).

Pennsylvania – Murder rate – 4.7*; Death row population: 188 (4 are women); Method: Injection; Death Penalty Crimes: First-degree murder with 18 aggravating circumstances. Trending: Recent poll by York College of Pennsylvania shows 54% not in favor of death penalty.  Death Penalty Moratorium in place by executive order in February, 2015.

Rhode Island – Murder rate – 2.9*; [Number of Executions Since 1976 – 0]

South Carolina – Murder rate – 6.2*; Death row population: 45 (0 are women); Method: Choice of injection or electrocution; Death Penalty Crimes: Murder with 1 of 12 aggravating circumstances (§ 16-3-20(C)(a)) Trending:  According to a recent Post and Courier news articleSouth Carolina faces a moratorium on executions due to the difficulty obtaining lethal injection drugs.

South Dakota – Murder rate – 2.4*; Death row population: 3 (0 are women); Method: Injection; Death Penalty Crimes: First-degree murder with 1 of 10 aggravating circumstances. Trending: In a February, 2015 Argus Leader news-article, South Dakota state senator discusses sponsoring a Bill to abolish the death penalty.

Tennessee – Murder rate – 5*; Death row population: 73 (1 are women); Method: Injection for crimes after December 31, 1998, electrocution may be selected for crimes prior; Death Penalty Crimes: First-degree murder (Tenn. Code Ann. § 39-13-202) with 1 of 16 aggravating circumstances (Tenn. Code Ann. § 39-13-204).  Trending: April 10, 2015, the Tennessean reported that the Tennessee Supreme Court stayed all executions to review challenges to the constitutionality of the 1-drug injection protocol.

Texas – Murder rate – 4.3*; Death row population: 276 (10 are women); Method: Injection; Death Penalty Crimes: Criminal homicide with 1 of 9 aggravating circumstances (Tex. Penal Code § 19.03). Trending: According to the Texas TribuneExecutions in Texas jeopardized if disclosure of lethal injection drug suppliers is to be required, according to the Texas Tribune, April 15, 2015. Also, according to an April 2015 USA Today article a Texas lawyer, Maurie Levin, states  “Even though Texas has managed to continue to carry out executions, it’s a mistake to think it’s business as usual.”

Utah – Murder rate – 1.7*; Death row population: 9 (0 are women); Method: Injection or firing squad if injection is unconstitutional and for inmates who chose firing squad prior to 5/3/2004; Death Penalty Crimes: Aggravated murder (76-5-202, Utah Code Annotated).

Vermont – Murder rate – 1.6*; [Number of Executions Since 1976 – 0]

Virginia – Murder rate – 3.8*; Death row population: 8 (0 are women); Method: Choice of injection or electrocution; Death Penalty Crimes: First-degree murder with 1 of 15 aggravating circumstances (VA Code § 18.2-31). Trending: April 8, 2015, in a Roanoke News article, after the exoneration of Earl Washington, Mark Early, former Virginia attorney general stated, “I no longer have such faith in the government and, therefore, cannot and do not support the death penalty.” No executions are currently scheduled in Virginia as of March, 2015. according to Fredericksburg.com OpEd.

Washington – Murder rate – 2.3*; Death row population: 9 (0 are women); Method: Choice of injection or hanging; Death Penalty Crimes: Aggravated first-degree murder.

Wisconsin – Murder rate – 2.8*; [Number of Executions Since 1976 – 0]

Wyoming – Murder rate – 2.9*; Death row population: 1 (0 are women); Method: Injection  or gas if injection is found unconstitutional; Death Penalty Crimes: First-degree murder; murder during the commission of sexual assault, sexual abuse of a minor, arson, robbery, burglary, escape, resisting arrest, kidnapping, or abuse of a minor under 16. (W.S.A. § 6-2-101(a))

US Military – Murder rate – 4.4*; Death row population: 62 (2 are women); Method: method of state where sentence imposed; Death Penalty Crimes: The U.S. military has its own laws and court system separate from those of the states and the federal government. Trending: According to a June 18, 2012 New Tribune news article, Capital punishment for military crimes is rare, the last military execution took place in 1961 (which gives rise to the question as to the legality and logic of retaining 62 prisoners on death row if there have been no executions in over 50 years).

US Federal Govt. – Murder rate – 0*; Death row population: 6 (0 are women) [Update: As of May 15, 2015, due to the Dzhokhar Tsarnaev sentencing determination, the death row population is now 7] ; Method: Injection; Death Penalty Crimes: Further research required. Trending: Attorney General Eric Holder is seeking the death penalty in the matter of Dzhokhar Tsarnaev,  “Boston Marathon bomber” which may be applied to 17 of 30 counts with which Tsarnaev was found guilty on April 8, 2015, according to a recent Time article published April 25, 2015 and Issues have been raised as to the effect of jury decision and impartiality in the Tsarnaev trial, according a recent New Yorker article.

Below, are a few more interesting articles regarding the death penalty and the Tsarnaev trial…

See, Vanity Fair March 2015 news article discussion regarding the lawyer defending Dzhokhar Tsarnaev, Judy Clarke, cruel and unusual punishment and the death penalty in this Federal trial.

See, January 7, 2014 Boston Bar Biz News article regarding the Boston Bar Association’s stand against the death penalty.

See, The Pew Research Center, regarding a wealth of valuable information regarding the death penalty.

**Important Update:  May 15, 2015, as reported in the New York Times, Dzhokar Tsarnaev was given the Death Penalty sentence in the Boston Marathon Bombing Trial.

Enjoy!

ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island.  Her law practice is focused on consumer finance and bankruptcy.  However, Attorney Kelly is experienced in both criminal and civil trial work.  On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.  To find out more visit,www.attorneykelly.squarespace.comhttp://www.attorneykelly.wordpress.com, or call us at (508) 784-1444.

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NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We can not stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015 by Ginger B. Kelly, Esq., all rights reserved.

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Filed under Constitution, Death Penalty, Law, Legal, Lethal Injection, Trending, Trial

Voir Dire: Culling the Masses in Mass

January 12, 2015

With the passage of the Massachusetts Session Laws: Chapter 254 of the Acts of 2014, beginning in February 2015, attorneys licensed in Massachusetts will, for the first time, be allowed to question prospective jurors in civil and criminal trials.  The questioning of prospective jurors to obtain a fair and impartial jury is called, voir dire.

Voir dire, in 17th Century French lingo, means “to speak the truth.”

Jury.jpg.CROP.article250-medium Illustration by Mark Alan Stamaty

Illustration by Mark Alan Stamaty

VOIR DIRE: A NOUN OR A VERB?

In law, voir dire is the act or process of asking questions of prospective jurors for jury selection reasons in civil and criminal trials.   The word “voir dire” may be used interchangeably either as a noun or a verb.  For example, an attorney may voir dire a potential jury member, by asking the person questions (an action verb).  Voir dire may also be conducted prior to trial.  In this context, voir dire is a noun because the word voir dire references the name of a particular pre-trial procedure, a thing.

NEW LAW ON VOIR DIRE IN MA

Chapter 254 of the Massachusetts Session Laws: Acts of 2014, pertains to voir dire in Massachusetts Superior Court, not the Massachusetts venue of federal court.  Federal courts sometimes do things differently than state courts.   Here’s how.

FEDERAL AND STATE VOIR DIRE 

Due to Federalism and the Constitution of the United States, both the US federal government and each US state government each have their own court system.  (Aside: Massachusetts has three federal courthouses, Boston, Worcester, and Springfield.)

Federal courts have jurisdiction over persons, places and legal subjects like appeals claims, bankruptcy petitions, constitutional claims, admiralty matters, issues involving different states, and trials involving the laws and treaties of the US, just to name a few.  State courts have jurisdiction over the persons and issues dealing with state law as well as legal matters that are not federal or international.  Notwithstanding jurisdiction, forum, and venue are also important, albeit often confusing legal terms.

FORUM, VENUE AND VOIR DIRE  

Forum and venue play a part in how voir dire is conducted currently in Massachusetts.  Forum selection pertains to which court a trial will occur in.  Venue selection has to do with the geographic location of the trial.  This is why we have a  state forum and a federal forum.  If a legal matter involves the jurisdiction of the Commonwealth of Massachusetts, the court forum will be located in the venue of Massachusetts, where voir dire is not attorney conducted.

THE TSARNAEV TRIAL VOIR DIRE 

In the trial of Dzhokhar Tsarnaev, the alleged Boston Marathon bomber, (United States v. Dzhokhar Tsarnaev, No. 13-cr-10200), the forum is the federal court system or US District Court.   The venue (location) is the District of Massachusetts.  Hence, the Tsarnaev case is underway in the federal court of Massachusetts, a/k/a the US District Court: District of Massachusetts.  In US District Court (the federal court forum), attorneys are permitted to question individual potential jury members.

Voir dire in the Tsarnaev trial will consist of several phases.  The first phase of voir dire involves potential jury members filling out a typed confidential, multi-page, multi-question,  juror questionnaire.  Attorneys have a week, or so, to go through each group’s questionnaires to confer and agree on which jurors should be excused routinely or dismissed, for cause,  for things like bias or hardship.  In this context, the word “cause” means, as a matter of legal routine or common practice.

On January 15th, the next phase of voir dire involves the Hon. George A. O’Toole, presiding trial judge.  Judge O’Toole will question possible jury members, individually.  After Judge O’Toole completes his investigation, the attorneys for both the defense and prosecution may begin their individual voir dire.  Voir dire in this phase will involve individual questions to potential jury members and 20 attorney challenges, or challenge questions.  The challenges will cull out any who may be disqualified routinely, as a matter of cause.

THE HERNANDEZ TRIAL VOIR DIRE

In the Aaron Hernandez trial, regarding the Odin Lloyd murder, (Commonwealth v Aaron Hernandez, No., 1314CR002057) voir dire will be conducted a little bit differently.  In the Hernandez trial, the forum is not federal court, but state court.  In Fall River Massachusetts, in the Superior Court of Bristol County, the Hernandez trial is now underway.  This state forum affects how voir dire is conducted for Hernandez.

As mentioned earlier, under current Massachusetts state law, legal limitations on vior dire are still in effect.  Attorney conducted individual voir dire is not permitted in state court.  The Hernandez’s attorneys filed a Motion (in December 2014) to ask the court for attorney conducted voir dire.  However, the Hon. Susan E. Garsh, Justice of the Superior Court, denied the motion.  Therefore, the Hernandez trial court is conducting voir dire, not the trial attorneys.   Like in the Tsarnaev trial, the Hernandez questionnaire process of voir dire is similar but the distinction lies in the following phase of voir dire.

For Hernandez, potential jury members will be questioned individually by Judge Garsh.  Defense attorneys and prosecutors will be present and may object and challenge.  However, attorneys will not be permitted to ask potential jury members individual questions.

Had the Hernandez trial started only two weeks later, in February rather than January, attorney conducted vior dire would have been legally available.  Funny how laws change, affecting procedural outcomes.

JUSTICE AND VOIR DIRE  

Whether or not voir dire is conducted by the court or by attorneys, voir dire is part and parcel of the US constitutional right to a fair trial.  Jury selection is critical to any trial.  No matter how strong the case or how proficient the defendant’s attorney or legal team may be, if the right jury is not selected a defendant stands a very slim chance of winning at trial.

Voir dire is an exercise of justice.  Voir dire is important and a very effective way of “culling the masses in Mass” and finding the best possible fair and impartial jury.

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ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island.  Her law practice is focused on consumer finance and bankruptcy.  However, Attorney Kelly is experienced in both criminal and civil trial work.  On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.  To find out more visit, www.attorneykelly.squarespace.com or http://www.attorneykelly.wordpress.com, or call us at (508) 784-1444.

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NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We can not stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015 by Ginger B. Kelly, Esq., all rights reserved.

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