Archive for the ‘Crimes’ Category

Should I take a Polygraph?

Wednesday, October 2nd, 2013

Sometimes, I have clients come in who are adamant that they are not guilty and they will state ” I’ll take a polygraph that will prove I’m innocent! ”

A polygraph is a nice name for a lie detector test, and most people think they can ‘beat the test’ even if they are guilty. And sometimes, they really aren’t guilty of this particular accusation so they think they’re safe in taking the test.

The problem is that a polygraph has been proved to be ‘inherently unreliable’ and cannot be used in court.  It doesn’t really prove anything.

That part is fine.  What isn’t fine is that any statements you make during the interviews before or after taking the polygraph CAN be admitted into court.

Most of the time, the person taking the polygraph isn’t in custody, they came into the office to take the polygraph on their own and they are free to leave at any time, so the authorities don’t really need to issue any Miranda warnings, and they can ‘chat’ about anything.

Also, people use lie detector tests in cases other than criminal.  For example, sometimes people will be accused of adultery in a divorce case and they will agree to a polygraph to ‘prove’ they didn’t have an affair with someone.

My advice?  If you are ever in a position where you think you might want to take a polygraph to prove you’re innocent, just say no…..or at least contact an attorney and have the attorney with you when you go to take the test.  The attorney may be able to stop you from answering an ‘innocent’ question that might end up getting you into real trouble.

If you have questions about this or any other legal topic, please feel free to contact us at 757-234-4650 or visit our website at

May is National Foster Care Month

Saturday, May 4th, 2013

Every month has a number of things to focus on, and I usually point out that May is Elder Law Month.  But this year, I wanted to focus on Foster Care.

I see a lot of kids that go into foster care, but it is not a step that is taken lightly or easily.

The courts in Virginia are eager to reunite the natural family and there is a very involved process to remove a child from his or her natural family to be placed into foster care.  Also, the children that are placed into foster care come back before the courts on a regular basis to review that decision and to see if the child can be returned to his or her natural family.

Children are not generally taken from a family and put into foster care unless there is some sort of breakdown in the parent-child relationship.  Sometimes this is visible when the child is physically abused by the parent.  Sometimes this is visible when the parent is physically abused by the child.  Sometimes this is visible because the child is getting into trouble with the law and the parents are unable to handle the child.  Sometimes the parent is not able to get the child to attend school on a regular basis.  Often these children are determined to be a ‘juvenile delinquent.’   Rarely do well-behaved and emotionally stable children end up in foster care, so the foster parent has to work with a child that has already experienced some negativity in his or her life.

Often, the breakdown of the parent-child relationship occurs when the child reaches his or her teen years.  As one mother pointed out to me recently, “she is 14 and I can’t just pick her up and carry her into school.”

The decision to have a child enter the foster care system is not just about the child.   Since the goal of foster care is to reunite the natural family, the parents are also enrolled in age appropriate parenting classes and are generally offered other services that can be of use to help them become better parents for their child.

The foster parents do receive a small payment, but that is not the reason they agree to do this work.  These foster parents don’t just take a foster child into their home, they take that child into their family.  They love and nurture the child as if it was their own child.  The foster parents take the child to doctor and dentist appointments, school events, sports practices and the ‘normal’ events a child attends.  The foster parent also takes the child to court dates and meetings with social services and psychologists as needed.  These are activities that most natural parents don’t need to worry about.

Also, as I mentioned earlier, most of the foster children have already been involved in some sort of negative experience in their short lives and the child is often difficult to handle.  The foster parents attend special classes and get additional training on how to deal with difficult children with as much love and affection as possible.  The foster parent also knows that the goal is to have the child leave them and go back to their natural parent.  This can be a very difficult emotion to live with every day.

The foster parent also gets to know the natural parent and I often see them in court sitting together.  I sometimes wonder about how difficult it is to know all about the situation that brought this child into your home and still be friendly and encouraging to the parent that was involved in that situation.

Are all foster parents terrific?  Probably not.  But the majority of foster parents are caring and loving people who have chosen to help society by helping one child at at time.

I am so very thankful that our society has people that are willing to take on the role of foster parent.

Should I ask for an attorney?

Thursday, December 20th, 2012

I was in court last week and listened to two different cases where the defendant had waived his right to an attorney.  It was not pleasant for anyone.  The hearing took much longer than it should have taken, the judge was frustrated because the defendant kept ‘jumping around’ in his argument and kept talking about things that were really not relevant to the case, and the defendant was frustrated because he lost and didn’t really understand why.

Of course, I’ve seen a few cases where the defendant was well prepared and the case went smoothly.  But that is the exception and it does not happen very often.

If you are charged with a crime that can result in a sentence of time in jail, the court must offer you an opportunity to have an attorney.  At the arraignment, the judge will give you three options.  (1) you can hire your own attorney — in fact, people often hire their own attorney even before they go in front of the judge for the first time; (2) you can request that the court provide an attorney for you; or (3) you can waive your right to an attorney.

If you ask for a court appointed attorney, the judge will ask you some questions about your income to see if you qualify for a court appointed attorney.  If you do qualify, the court will assign an attorney to represent you.  Sometimes this will be a public defender, and sometimes it may be a private attorney who is acting as a court appointed attorney in this case.  I wrote a prior blog post about court appointed attorneys and there is more information here.  I know some people don’t like the idea of a court appointed attorney, but usually the court appointed attorneys are well prepared and do an excellent job.  Also, if you are assigned a public defender, you should rest easy knowing that defending criminal clients is that person’s full time job!

Of course, you need to do your part and make sure that you meet with your court appointed attorney with enough lead time for them to become prepared for your case.  Remember, that it is YOUR case and you should take the lead role and contact the attorney to make the initial appointment.

If you don’t qualify for a court-appointed attorney, you can ask for time to hire an attorney on your own.  You should try to get an attorney as soon as you can because sometimes a specific attorney may not be available for the date of your next hearing.  If you have enough lead-time sometimes some rescheduling can be accomplished.  Personally, I hate it when a potential client comes in after doing noting for 30 days and tells me he needs an attorney for a hearing tomorrow!  That just isn’t enough time to get ready.

The last option is to waive your right to an attorney and handle the case on your own.  I never recommend this to anyone, even another attorney!

Sometimes you can help yourself by having a consultation with an attorney even if you can’t afford to hire the attorney to represent you at the trial.  Even knowing the process and identifying the players will help you when the time comes for you to go in front of the judge.

Bottom line?  If you have the opportunity, ask for an attorney to represent you.  The worse that can happen is the court tells you ‘no’.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at

What is a GAL and why did the judge appoint one in my case?

Tuesday, May 15th, 2012

If you are charged with a crime, and there is a possibility that you might be sentenced to at least 6 months in jail, and you cannot afford an attorney, the Judge can appoint an attorney to represent you in that case.  This attorney is appointed to advocate on your behalf and to assist you in your defense.

The Court in Virginia can also appoint another type of attorney if your situation meets the criteria set by the court, and the Judge feels it is appropriate.

‘GAL’ stands for ‘Guardian Ad Litem’.  There are two parts to this term.  Part one is ‘Guardian’ which means someone who acts for the benefit of another, and part two is ‘Ad Litem’ which means ‘for the Lawsuit’.  So, the court may appoint someone to act for the benefit of another for the purpose of the lawsuit.  The person that is appointed by the court is called the ‘GAL’.

The court may appoint a GAL when a party to the lawsuit is incapacitated in some way.

Most of us think of incapacity as having a mental or health disability, and this is considered a physical incapacity.

Someone is also considered legally incapacitated when they are unable to attend court themselves.  This might be because they are in the military and stationed away from home.  Or perhaps the person can’t be found because none of the persons involved in the court case knows where they live now.  Or perhaps they are incarcerated.

In all of these situations, a GAL can be appointed to represent the adult who is not able to represent himself.  The role of the GAL in these cases is to make sure that the adult is treated fairly in the legal case and that any decision that is made by the court is not going to permanently put the represented person at an unfair disadvantage.

Another type of incapacity is based on age.  A person under the age of maturity, which is the age of 18 in Virginia, is also considered legally incapacitated.

If a child, under the age of 18, is charged with a crime it is possible that the court will appoint both an attorney to defend the child against the criminal charges and a GAL to look out for the best interests of the child.

Another time when the court might appoint a GAL is during a legal case regarding custody or visitation of a child.

When parents are fighting over custody and visitation of their children, the courts base their decisions on the best interests of the child.   Most of the time, the parents really do believe that what they are trying to do is in the best interest of the child.  But everyone must understand that the parent’s vision of the best interest of the child is colored by the position of that parent.  That is why the courts will often appoint a GAL to represent the best interest of the children.

The GAL does not represent either the mother or the father, and if either parent wants to have an attorney, they should retain one on their own.

The GAL  for the child has the ability, and the duty, to look at all aspects of the child’s life.  The GAL is able to talk to the child’s teacher, doctor, day-care provider and any other person that can bring input about the child’s life.  The GAL also talks with each parent and will usually do a visit to the parent’s home, generally while the child is there so the GAL can see how the child and the parent interact with each other.

If the child is old enough, and mature enough, the GAL will listen to what the child wants and take the child’s desires into consideration.  But, the GAL is not there to advocate for what the child says he/she wants.  The GAL is there to report on the situation and to make a recommendation on what is in the child’s best interest.

The GAL might provide a written report to the Judge before the trial, or the GAL report might be given as oral testimony at the trial.  In either case, the Judge will consider the GAL report as one additional piece of evidence to be considered.

The Judge is the one that makes the final determination.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at

How To Pay Your Criminal Restitution Through A Chapter 13 Bankruptcy

Tuesday, March 20th, 2012

criminal restitution in chapter 13 bankruptcy

Today we have a guest post from Jay S. Fleischman, a great consumer bankruptcy attorney who is a member of the National Association of Consumer Advocates, a member of — and the New York co-chair of — the National Association of Consumer Bankruptcy Attorneys, and a partner in the New York law firm of Shaev & Fleischman, LLP


Let’s say you’re convicted of a crime.  Your lawyer can get you jail time or criminal restitution, perhaps a mix of both.  Here’s how to handle that restitution order using the U.S. Bankruptcy Code.

Bankruptcy is usually thought of as a way to get out of credit card debt, stop foreclosure, and the like.  And though you can’t wipe out a criminal restitution order using the bankruptcy laws, you can leverage the system to repay that debt in a way that doesn’t interfere with your ability to earn a living.

Discharge of Criminal Restitution In Bankruptcy

Under 11 USC 523(a)(7), you cannot discharge a debt that is for a “fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty”.  In other words, you can’t wipe out your criminal restitution obligation in bankruptcy.  When you file for Chapter 7, which is designed to lead to a discharge of your obligations, you will still owe the criminal restitution when you complete your case.

Chapter 13 Bankruptcy As Repayment Tool

There is, however, a different type of bankruptcy case that is available to those who have regular monthly income.  Under Chapter 13 bankruptcy you can repay a portion or all of your debts over a 3-5 year period.  The amount you are required to pay each month under Chapter 13 is dictated by a combination of your income, expenses and debt, and the monthly payments go to a bankruptcy trustee for distribution to your creditors according to a legally-mandated formula.

Chapter 13 is an elegant way of reorganizing your financial life and structuring repayment in such a way as to minimize the impact on your day-to-day life.  While you’re in an active Chapter 13 case the government cannot execute against your income or assets in connection with the restitution award, so you won’t need to worry about your paycheck or bank account being seized during this period of time.

If you’re in a Chapter 13 bankruptcy, however, you’re going to need to repay that restitution award in full because, as in Chapter 7, the claim won’t be discharged at the end of the case.  That’s why it’s important to structure your Plan accordingly.

Order Of Repayment In Chapter 13

Debts get paid in a particular order under the U.S. Bankruptcy Code.  The U.S. Bankruptcy code has at its core the policy of fairness to all creditors of equal legal priority.  At the lowest priority of repayment stands the general unsecured claim, which includes credit cards and medical bills.  § 507(a) of the U.S. Bankruptcy Code lists those debts that are entitled to priority over other unsecured debts. Although the list of priority claims includes certain type of debts that would also be nondischargeable, criminal restitution claims are not among those listed.  In addition, the bankruptcy court can’t change the priority scheme established by the Bankruptcy Code.
If you file for Chapter 13, your repayment plan can’t attempt to repay your criminal restitution award before other general unsecured creditors except in extremely limited situations.  In fact, the reported cases addressing separate classification of restitution claims have uniformly denied confirmation. See, e.g., In re Crawford, 324 F.3d 539 (7th Cir. 2003)In re Bowles, 48 B.R. 502 (Bankr. E.D. Va. 1985)In re Williams, 231 B.R. 280 (Bankr. S.D. Ohio 1999)In re Limbaugh, 194 B.R. 488 (Bankr. D. Or. 1996).

The Ever-Lasting Chapter 13 Bankruptcy

If you owe money for criminal restitution, but you’re not going to be able to repay it during the course of a single Chapter 13 bankruptcy case, you may want to consider whether it makes sense to file one case, go through the entire repayment plan, and then file another one as soon as the first one is completed.  This gives you the opportunity to restructure your finances over a longer period of time than would otherwise be possible in a single bankruptcy case.
There are going to be considerations once you complete your first repayment plan, such as whether your income is higher or lower than it was when you began your case.  The second repayment plan will need to reflect your new income and expense levels, but for some it’s a valuable tool to help wrangle that restitution award into shape.

Jay S. Fleischman is a lawyer who helps people file Chapter 13 bankruptcy.  He also sues harassing bill collectors on behalf of his clients.

Image credit:  stevendepolo