Social Security Disability and Mental Disorders

Social Security Disability and Mental Disorders

Let’s talk about mental health problems and how Social Security reviews them and whether you can be approved based on mental health problems.

Many people have some form of depression or mental health issues sometimes due to chronic pain, sometimes due to a genetic predisposition, sometimes due to an event in their lives, but overall, for whatever the cause, Social Security looks to see that you’re treating and getting help and perhaps medications for the problem, so an example would be disability for depression, bipolar disorder, either one or two, anxiety disorder, panic disorder, disability for fibromyalgia you may have agoraphobia as an element of that, Social Security also looks to see if there’s an element of chemical dependency in any of those.

The big idea here to keep in mind is that Social Security looks at the depression or mental health problems the same way as they look at physical problems, it’s just there is less objective evidence as there is for let’s say a low back problem. A low back problem, you can get an MRI, and you can see that there’s a herniated disc. Just because you can’t measure it with an imaging study doesn’t mean that depression isn’t just as disabling. The question is, is depression a disability and HOW are you disabled with it?

is depression a disabilitySome people work with depression or bipolar or anxiety disorder, some people can’t work. The question is severity. So keep in mind that it’s best to try to get better, the best you can, use your primary care doctor to get perhaps a psychiatrist, use a psychologist to be able to get better, take medications, but work with your doctors about side effects. Make sure that if you do have side effects, that you talk to your doctors about perhaps switching medications.

Social Security disability lawyers see some people stopping medications without talking to their doctor, so, what’s important for Social Security to know is, you’re doing your best to get better, okay, so with that in mind, Social Security reviews mental health issues, and they would include someone with low IQ in this.

If you have mental health issues like depression that affect your ability to work full time, consider applying for Social Security benefits especially if you have a good work history. The reason is this, at some juncture, mental health problems are disabling and what is the drawing line between when you are disabled and when you’re not. It isn’t always so clear, even if you’re denied at the first level and even the second level, those state agency denials are, in my opinion, quite poor. Make sure that if you know you can’t work and you have legitimate diagnosed impairments and you’re doing your best to care for them and taking your medications or having other people help you get your medications, make sure to get to a Social Security disability hearing.

If a Social Security disability attorney can help you, more the better, because if you don’t feel very well, you may not be inclined to advocate on your own behalf. So keep these things in mind that they could offer great help to prove that your mental health issue or depression is a disability, and hopefully it impresses on you that if you’re denied or don’t think that you could get approved for Social Security based on mental health problems, that is entirely inaccurate. It is a question of degree and the only way Social Security knows how bad they are it is if you treat for them.

Mental illness due to chemical imbalance

can I get disability for depressionAnd we’ve mentioned chemical dependency. Some people have seen by Disability Attorneys in their experience, anxiety disorders and bipolar, they see chemical dependency issues arise. With that in mind, Social Security will discount how bad your mental illness is if they think the chemical dependency is exacerbating the mental illness.

Another element that they’ve learned as an attorney is that the psychologist experts at hearings will testify that your mental illness is worse because, let’s say, alcohol or drugs is reducing the effectiveness of your medication. So, if you catch what they’re saying, it definitely is healthier to talk to a doctor about any dependency but what in particular you need to do is know that Social Security will look at chemical dependency as perhaps a factor very negatively in your claim and it can in the case of mental illness cause Social Security to deny you so by all means get the help that you need.

 

senior living san diego

Nursing Homes New Policy from Department of Public Health Restores Some Visitation Rights

On June 26, the California Department of Public Health released a new policy regarding visitation that, for the first time since March, REQUIRES senior living communities to permit visitors for outdoor and indoor visits. Facilities with no current COVID-19 outbreak must permit outdoor visitation. Indoor visits must be permitted if a facility meets six criteria: 1. no current COVID-19 outbreak, 2. a decline in cases in the community, 3. no new COVID-19 cases in the facility for the past 14 days, 4. no staffing shortages and not using a COVID-19 staffing waiver, 5) an adequate testing plan per AFL 20-53, and 6) an approved COVID-19 Mitigation Plan. For indoor visits, only one designated visitor allowed per resident (per visit – more than one visitor may visit, just not at the same time). All visits (indoor or outdoor) must be scheduled in advance with visitors screened for fever or COVID-19 symptoms. All visitors must comply with social distancing (6 feet or more physical distancing), wear facial coverings, and permit staff monitoring to ensure compliance with infection control guidelines.

senior living homesException to Visitation Restrictions

The following are exceptions to a facility’s visitation restrictions:

  • Healthcare workers: Facilities should follow CDC guidelines for restricting access to healthcare workers. Healthcare workers, including those from the local county public health offices, should be permitted to come into the facility if they meet the CDC guidelines for healthcare workers.
  • Surveyors: CMS and CDPH are constantly evaluating their surveyors to ensure they do not pose a transmission risk when entering the facility. Any surveyor entering the facility are subject to screening for fever and COVID-19 symptoms and must wear appropriate PPE.
  • Ombudsman: Facilities not experiencing an outbreak (i.e., one or more confirmed positive cases) should permit ombudsman representatives in the facility. Any ombudsman representative entering the facility is subject to screening for fever and COVID-19 symptoms and must wear appropriate PPE.
  • Nursing students: Students obtaining their clinical experience as part of an approved nurse assistant, vocational nurse or registered nurse training program should be permitted to come into the facility if they meet the CDC guidelines for healthcare workers.
  • End of life visitation: For permitted visitors for end of life situations, those individuals:
    • Must be screened for COVID-19 symptoms
    • Must wear a surgical facemask while in the building
    • Restrict their visit to the resident’s room or other location designated by the facility
    • Should be reminded by the facility to frequently perform hand hygiene

Resuming Other Visitation

To resume visitation, facilities should refer to the “Recommended Nursing Homes Phased Reopening for States” attachment in QSO 20-30 (PDF) and work with their local health department in determining the general community’s current reopening phase. Due to the elevated risk COVID-19 poses to SNF residents, CMS recommends that facility reopening should lag behind the general community by 14 days. Facilities experiencing an outbreak (i.e. one or more confirmed positive cases) should not resume visitation.

senior rehabilitation centersFacilities that meet the following conditions shall allow residents to designate one visitor per resident for inside facility visitation:

  • Case conditions in the community – There is a decline in the number of new cases, hospitalizations or deaths in the community.
  • Case status in the facility – Absence of any new COVID-19 cases in the facility for 14 days, either residents or staff.
  • Adequate staffing – No staffing shortages and the facility is not using a COVID-19 staffing waiver.
  • Access to adequate testing – The facility has a testing plan in place in compliance with AFL-20-53.
  • An approved COVID-19 Mitigation Plan- The facility must maintain good regulatory compliance for safety.

Facilities unable to meet the conditions specified above may not resume in room facility visitation, but they shall provide outdoor and other visitation options, including but not limited to:

  • Allow scheduled visits on the facility premises where there is 6-feet or more physical distancing, and both residents and visitors where facial coverings with staff monitoring infection control guidelines. (i.e. large communal spaces, outdoor visits, drive-by visits or visit through a person’s window).
  • Offering alternative means of communication for people who would otherwise visit, such as virtual communications (phone, video-communication, etc.).
  • Creating/increasing listserv communication to update families, such as advising not to visit.
  • Assigning staff as primary contact to families for inbound calls and conduct regular outbound calls to keep families up to date.
  • Offering a phone line with a voice recording updated at set times (i.e. daily) with the facility’s general operating status, such as when it is safe to resume visits.

senior living facilities near meVisitation Guidance

  1. For all visitations, facilities should make efforts to allow for safe visitation for residents and loved ones.
    • Ensure visitor screening for fever and COVID-19 symptoms
    • Visitors and residents should have facial coverings (cloth masks or surgical face masks)
    • Staff should monitor to physical distancing is practiced with no hand-shaking, hugging, and remaining six feet apart.
    • If possible (i.e. pending design of building), creating dedicated visiting areas near the entrance to the facility where residents can meet with visitors in a sanitized environment. Facilities should disinfect rooms after each resident-visitor meeting.
  2. Advise visitors, and any individuals who entered the facility (e.g., hospice staff), to monitor for signs and symptoms of respiratory infection for at least 14 days after exiting the facility. If symptoms occur, advise them to self-isolate at home, contact their healthcare provider, and immediately notify the facility of the date they were in the facility, the individuals they were in contact with, and the locations within the facility they visited. Facilities should immediately screen the individuals of reported contact, and take all necessary actions based on findings.
  3. For medically necessary trips away from the facility, the resident must wear a cloth face covering or a surgical facemask and the facility must share the resident’s COVID-19 status with the transportation service and entity with whom the resident has the appointment.
  4. All staff must wear appropriate PPE when they are interacting with residents, to the extent PPE is available and consistent with CDC guidance on optimization of PPE. Staff should wear cloth face covering if surgical facemask is not indicated.
  5. Once baseline testing is complete implement either surveillance or response driven testing based on the conditions at the facility in accordance with AFL-20-53.
  6. Have dedicated space in the facility for cohorting and managing care for residents with COVID-19; plan to manage new/readmission with an unknown COVID-19 status and residents who develop symptoms.

Additional Guidance

senior living near meThe following are additional CMS guidance to prevent the spread of COVID-19. This guidance is subject to revision by CMS at any time.

  1. Cancel communal dining and all group activities, such as internal and external group activities. For COVID-19 negative or asymptomatic residents, communal dining should be limited, but residents may eat in the same room with social distancing (limited number of people at tables and spaced by at least 6 feet).
  2. Remind residents to practice social distancing and perform frequent hand hygiene. Residents must wear cloth face covering or facemasks as mandated in CDPH’s Guidance for the Use of Face Coverings (PDF).
  3. Facilities should identify staff that work at multiple facilities (e.g., agency staff, regional or corporate staff, etc.) and actively screen and restrict them appropriately to ensure they do not place individuals in the facility at risk for COVID-19.
  4. Facilities should review and revise how they interact with vendors and receiving supplies, agency staff, EMS personnel and equipment, transportation providers, and other non-health care providers (e.g., food delivery, etc.), and take necessary actions to prevent any potential transmission.

CDPH understands the importance of maintaining contact with family and friends to LTC residents. If you have any questions about this AFL, please contact your local district office.

Sincerely,

Original signed by Heidi W. Steinecker

Heidi W. Steinecker
Deputy Director

 

SSI Supplemental Security Income vs. SSDI Security Disability Insurance?

ssi disability lawyersSocial Security Disability Insurance (SSDI) a federal insurance program of the United States government. It is managed by the Social Security Administration and is funded by a payroll tax. SSDI is designed to provide income to people who are unable to work because of a disability. In order to qualify for SSDI benefits, you must have worked 5 out of the last 10 years (with a few exceptions.)

Your SSI Lawyers will explain that Supplemental Security Income (SSI) is a monthly stipend provided to aged, blind, or disabled persons based on need, paid by the United States Government. The program is administered by the Social Security Administration. Payments are made from the US Treasury general funds, not the Social Security trust funds. In order to qualify for SSI benefits, you must not have assets that are worth more than $2,000 for singles or $3,000 for couples (with some exceptions like a single home or a single car).

Difference SSI vs. SSDI:

The type of medical insurance differs between SSI and SSDI. A SSDI Attorney will explain that under SSI, a person found disabled will receive Medi-Cal (if living in California, otherwise it is Medicaid). Under Social Security Disability Insurance benefits, a person will qualify for Medicare after having been found disabled for 2 years. If a person qualifies for both SSI and SSDI, they will receive the Medi-Cal and decide whether they want the Medicare or not.

best social security disability attorneys near meThe amount of money is usually different depending on the type of disability benefits you are receiving. Under SSI, you receive the Federal Government supplement and depending on what state you live in, you may also receive a state supplement to go along with the federal. Due to cost of living adjustments made annually, the amount of money one can receive changes. For an up to date amount, please contact Disability Help Group at our toll free number (888)939-4692. SSDI amounts are based on how much you earned over the past 10 years. For an exact amount you may either check your statement that you usually receive around your birthday each year or contact your local Social Security Administration.

The amount of back pay also differs under each program. Under Supplemental Security income (SSI), an injured or disabled claimant can only seek retroactive benefits beginning with the date of the application filing. Under Social Security Disability Insurance (SSDI) benefits, a claimant can receive retroactive benefits involving money up to 12 months prior to the application date. Although there are not back-pay incentives for seeking disability benefits beyond what a claimant can receive benefits for, other considerations may warrant going back further. Some of these include: Medical Insurance (Medicare) to be started immediately, locking in your disabled status for retirement purposes, trying to re-open an old denial etc.

If you have additional questions about the differences between SSDI and SSI, please contact our office at (888)939-4692 or fill out our Free Evaluation Form.

For experienced legal representation and an aggressive pursuit of your SSDI or SSI claims, contact Disability Help Group with offices in Mesa, Phoenix or Tucson, Arizona. For assistance, schedule a free consultation at our office by email or by calling (888)939-4692.

Representing SOCIAL SECURITY DISABILITY and SSI claims in the following counties and cities: Mesa, AZ | Chandler, AZ | Gilbert, AZ | Glendale, AZ | Paradise Valley, AZ | Peoria, AZ | Phoenix, AZ | Scottsdale, AZ | Tempe, AZ

Social Security Disability Benefits

Social Security Disability:  Two Frequently Asked Questions

Social Security disability benefits can play an important role in your life. However, you may be confused about what it takes to get these benefits. If so, you are not the only one. Many individuals find the disability benefits application and appeals process to be difficult to understand.

Fortunately, you can contact Disability Help Group Arizona. We can answer all questions you may have about your disability claim. Our disability lawyers can go to work promptly on pursuing the benefits you deserve.

To help you start, we present the following answers to the most common questions that our lawyers receive about disability benefits in Arizona.

What is the difference between SSDI and SSI benefits?

The key difference between Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) benefits concerns work requirements. https://www.ssa.gov/benefits/ssi/

SSDI benefits are depended on your work history. You must have earned a sufficient amount of  “work credits.” These credits show that you have worked enough time and recently enough to be eligible for this type of benefit.

SSI benefits are not depended on your work history. Instead, they are built upon financial need. Generally speaking, to receive SSI benefits, you must have lower than $2,000 in assets and resources ($3,000 if married).

People who fail to qualify for SSDI benefits because they lack required work credits may be eligible for SSI benefits. An experienced disability benefits lawyer can review your circumstances and determine which option(s) you should pursue.

What happens during a disability benefits hearing?

Whether your hearing is conducted personally or by video, you should expect it to primarily function as an information-gathering process for the administrative law judge (ALJ) who will decide your claim. Because of this, you should consult with a lawyer who recognizes  the different forms of information that ALJs in Arizona desire to review.

During the hearing, the judge will learn through witnesses like a medical expert and/or vocational expert. You (or your attorney) can cross-examine these witnesses and present your own witnesses. You can also testify by yourself behalf.

Although the judge may announce a decision by the end of the hearing, you should expect a few more weeks or months to pass until you receive the official notice in the mail.

Contact us today and schedule a free consultation with our social security lawyers

Top Las Vegas Nevada Social Security Lawyers

If you, or a loved one, are unable to work due to a disability you may qualify for aid from the Social Security Administration and have the right to be represented throughout the application process.

Supplemental Security Income

Social Security DisabilityIf you are an adult with a physical or mental condition that is likely to keep you from working for at least 12 months, or result in death, you may be eligible for benefits. You may also qualify if you are over 65 years of age or blind. Additionally, children with physical or mental conditions that result in severe functional limitations may also receive supplemental income. As of this year, a person may earn up to $1481 per month and still be eligible for benefits if all other requirements are met.

Disability Benefits

As with supplemental security income, a person is considered disabled if they have a condition that will keep them from working for at least 12 months. This program does not give benefits to people suffering from partial or short term disability and requires that the person applying has worked a certain number of years depending on when he/she became disabled. If approved, you will be able to receive monthly benefits that are calculated based on your average lifetime earnings.

At the Disability Help Center Nevada, our social security lawyers are available to help you navigate the complicated process of applying for benefits. We can:

  • Fill out the extensive paperwork and required forms
  • Gather medical records
  • Keep the Social Security Administration up to date on changes in your life that may affect your claim
  • Prepare witnesses for hearings and appeals and
  • Attend hearings and meetings on your behalf if you are unable to do so.

While many initial claims for benefits are denied, we develop the medical and vocational evidence needed for the Social Security Administration’s reconsideration of your case.

Social Security LawyersIf the reconsideration were also denied, our attorneys are willing and able to request a hearing and represent you before an administrative law judge. If necessary, we will continue to gather additional documentation of your disability and to contest even the administrative law judge’s decision at the court of appeals.

We will work diligently on your case from the initial claim through any potential appeals but will do so on a contingency basis. What this means for you is that:

No win no fee – You will only have to pay for our services if we are able to get your benefits.

It can take three to five months for the Social Security Administration to process an application for benefits so it is important that you choose a representative as soon as you, or a loved one, become disabled in order to begin this process.

Initial Interview: Our first meeting with you will be very important. During this initial interview, one of our attorneys will sit with you to learn your detailed work and medical history.

By the end of the meeting, you will know whether you are likely to qualify for social security benefits. At that time you can also decide if you would like us to be your qualified representative.

Social Security ClaimsIn order to make the most of this first meeting it is important for you to know that our conversations are confidential so that you can provide us with the following information:

  • The date on which you stopped working full-time as a result of your medical condition and details about any attempts to become employed or vocational training sought since you last worked full-time
  • Your medical diagnosis, and a description of the symptoms that prevent you from working
  • Names and contact information for doctors visited within the 12 months prior to discontinuing your employment
  • Estimated date on which you began treatment with each treating doctor, the date of your last visit, and the date of the next scheduled appointment
  • A list of any tests that you have had performed and the approximate date of the test;
  • Exact dates of all inpatient hospital visits and emergency room visits
  • Exact dates and descriptions of any surgeries you have undergone
  • A list of all medications you are currently on
  • A list of jobs that you have performed for the past 15 years
  • Information about any income you or your spouse receives, including workers compensation, unemployment, etc
  • Names of any other attorneys that are representing you for any reason, including Workers’ compensation, Personal Injury, Family Court, and Criminal Matters.

If you have already started applying for benefits, or have been denied, it is important that you also provide the following:

  • A copy of the receipt that was provided by the Social Security Administration
  • Copies of all documents that have been received from the Social Security Administration and copies of any medical records that you have, and
  • A copy of the Social Security Administration’s denial notice.

Disability Help Center Nevada services the following suburbs and areas in Las Vegas Nevada: Summerlin, NV. Henderson, NV. Boulder City, NV. Enterprise, NV. Laughlin, NV. Blue Diamond, NV.

Social Security Claims

Miami Expungement Program Gives Second Chance

A program started last year in Miami-Dade has helped over 600 local residents have their criminal records sealed or expunged. Sealed cases are closed and can only be reopened with a court-ordered subpoena. Expunged cases are erased completely.

A “One-Stop” Program

The Sealing and Expungement One-Stop Program was implemented in December 2006 by Katherine Fernandez Rundle, State Attorney for Miami-Dade, and workshops are held monthly for residents who want to learn more about qualifying for the program.

According to public information officer Ed Griffith, the workshops are popular—one held in September drew nearly 1,000 residents. More than 3,000 people have applied to the program since it began, but the process is not a simple one.

“It’s not as easy as signing up for your driver’s license,” said Griffith.

Guidelines & Qualifications

Each case is handled individually, and the qualifications for having a record sealed are different than those for having a record expunged. Generally, people who qualify for either are those who have been charged with an offense but have not received a conviction.

Program guidelines also require a person to have completed probation and/or paid any court costs or court-ordered fines.

Individuals who attend the workshops can receive counseling from the public defender’s office to learn which option might be best for them.

The American Civil Liberties Union also attends to help those who are not eligible for the program but who need help having their civil rights restored. For those who need job-placement assistance, the South Florida Workforce is on hand to help.

(Source: Miami Herald online)

Interested in learning more about expungement? Contact an experienced criminal defense attorney near you to discuss your options.

Sheriff Hopes Pink Chain Gang Will Deter DUIs

A sheriff in Arizona is hoping a new tactic will act as a deterrent to driving under the influence—those who are convicted on charges of DUI will end up on a chain gang, wearing pink, and conducting burials for alcoholics.

“Maybe this will warn people – knock it off, don’t drink and drive,” said Maricopa County Sheriff Joe Arpaio, who already has a reputation for housing convicts in military tents.

“Clean(ing) and Sober”

Last Tuesday, 15 DUI inmates donned pink shirts with “Clean(ing) and Sober” printed on the front and “Sheriff D.U.I. Chain Gang” on the back. On Thursday, the inmates conducted burials at a local indigent cemetery where many homeless alcoholics are laid to rest.

One inmate said the uniform was a “little embarrassing,” but added optimistically, “Hopefully it keeps someone from drinking and driving.”

Increase in DUI Deaths

The number of alcohol-related deaths in Arizona increased 15 percent last year, with a total of 585, according to statistics from the National Highway Traffic Safety Administration.

Legislators strengthened the state’s DUI laws in June, mandating harsher penalties for first-time offenders, including increased fines and ignition interlock devices.

(Source: Associated Press)

Charged with DUI? An experienced criminal defense attorney can help you plan a course of action. Contact us today to arrange a free consultation with a lawyer near you.

NJ Governor To Sign Law Abolishing Death Penalty

The governor of New Jersey is expected to sign a bill approved by the state legislature to abolish the death penalty. Once signed into law, New Jersey will be the 14 states without capital punishment.

The state has not put anyone to death since 1963. In January 2007, a legislative commission concluded that the death penalty was “inconsistent with evolving standards of decency” and recommended it be abolished.

First Legislative Ban in Decades

This week both the state Assembly and Senate voted in favor of the ban, making New Jersey the first state to legislatively end capital punishment since it was reinstated by the U.S. Supreme Court in 1976.

Governor Jon Corzine, a Democrat, is an opponent of capital punishment and will likely sign the bill into law. In lieu of the death penalty, those convicted of the most serious crimes will receive life imprisonment without the possibility of parole.

Declining Use of Capital Punishment

Thirty-six states, the federal government, and the military still retain the death penalty, though its use is declining. In 2006, executions reached the lowest they’ve been in the past decade, with 53 total. That total is expected to fall even lower this year.

(Source: Reuters)

Facing criminal charges? An experienced defense attorney can help you minimize the negative consequences you may be facing. Contact us today for a free consultation.

19,500 Convicted Crack Offenders Await Commission Decision

Approximately 19,500 federal inmates serving time on crack cocaine-related charges could see a reduction in their sentences if the U.S. Sentencing Commission decides to make recently implemented punishment guidelines of drug possession retroactive.

The commission made new guidelines effective November 1, 2007. The revised guidelines were implemented as part of an attempt to reduce the disparity in punishment between crack cocaine and powder cocaine crimes.

100-to-1 Disparity

In the 1980s, Congress wrote into law harsher penalties for crack offenses. Commonly referred to as the 100-to-1 disparity law, it mandates a five year minimum prison sentence for trafficking in 500 grams of powder cocaine compared to 5 grams of crack.

The law has been criticized as racist because crack is a drug predominantly used by blacks and powder cocaine primarily used by whites. Of the 19,500 inmates who could be affected by the commission’s decision, 86 percent are black.

Supreme Court Decision

On Monday, the Supreme Court upheld the right of judges to impose more lenient sentences for crack cocaine offenses than those outlined by the sentencing commission. The high court ruling could affect the outcome of today’s commission meeting.

In recent years, the seven-member commission has revised the sentencing guidelines, making the penalties less harsh, for drug crimes involving LSD, marijuana, and Oxycontin. Those drugs are largely used by whites, and the commission’s decision was made retroactive.

(Source: Associated Press)

Charged with a drug crime? An experienced criminal defense attorney can help you. Contact us today to arrange a FREE consultation.

Nation’s Busiest Crime Lab Reviewed after Mistakes

A New York state official has asked the district attorney of Queens to consider criminal charges against four former employees of the New York Police Department’s crime lab because of mistakes made in 2002 that could have skewed evidence in drug cases.

“The integrity of evidence is a cornerstone of law enforcement. These lapses were a threat not only to the prosecution of drug crimes but to the public’s trust in our criminal justice system,” said Kristine Hamann, the state inspector general.

Appeals Expected

Prosecutors use drug evidence collected during raids and seizures to secure a conviction, and the amount or weight of drug found has a bearing on the severity of sentencing.

Criminal defense attorney and co-founder of the Innocence Project, Peter Neufeld, said the findings “undermine God knows how many convictions,” and legal experts said the review could prompt appeals by those who want their sentences reevaluated or their convictions overturned.

Incompetent Lab Analysts

The police department acknowledged the sloppy work by three of the lab’s analysts, all of whom were either transferred or dismissed when they failed lab accuracy tests five years ago. The lab has since been overhauled with new staff and procedures.

However, the lab failed to disclose the drug testing errors to state officials until 2007 and also failed to report the mistakes to the Laboratory Accreditation Board of the American Society of Crime Laboratory Directors.

According to Hamann, much of the original evidence has been destroyed or tainted in the five-year lapse, making new testing extremely difficult. She added that it is also now impossible to know if any other of the lab’s 100 analysts took shortcuts during the tedious drug testing process.

In addition to the three former analysts, Hamann has recommended that the former director, W. Mark Dale, of the lab also be charged. Dale retired in 2004.

(Source: The New York Times online)

Charged with drug possession? Contact us today to arrange a free consultation with an experienced attorney who can ensure your rights are protected.

Nonviolent Felons Must Submit DNA

Collecting DNA samples from nonviolent drug offenders is not a violation of privacy rights, a federal court of appeals ruled late last week. A panel of three judges decided the case in a 2-1 vote.

Dissenting Judge Betty Fletcher said the ruling “approves, without flinching, a statute that affects a far broader and far less justified erosion of the Fourth Amendment.”

The Case

The decision was made in the case of Thomas Kriesel, who refused to submit a DNA sample after he was released from prison.

Kriesel was charged with possession of methamphetamine with intent to distribute and sentenced to two years in prison plus three years of supervised release. He is still on supervised release but has been working and law-abiding, according to attorney Colin Fieman.

The Law

In 2000, a federal law was enacted requiring all violent felons to submit a DNA sample to be held in a national database. Several years later in 2004, that law was broadened to include nonviolent felons as well.

Judge M. Margaret McKeown, who wrote the panel’s majority opinion, said the “diminished privacy interests” of convicted felons are now outweighed by the government’s interest in effective law enforcement.

Fletcher did not deny the potential benefits of DNA collection, but she added that the law “requires constitutional means, not just effective ends.”

Fieman said he plans to seek another hearing, this time before the entire appeals court panel.

“We’re just hopeful we’ll get further review because it is an important issue,” he said.

(Source: Associated Press)

Charged with a crime? Discuss your legal options with an experienced criminal defense attorney. Contact us today.

Seized Marijuana To Be Returned to Man, Court Rules

A California police department must return marijuana seized during a routine traffic stop, a state appeals court ruled earlier this week. According to the ruling, federal drug laws cannot supersede state laws in a drug possession case.

Man Cited for Possession

In 2005, Garden Grove police officers pulled over Felix Kha for running a stop sign. When Kha was asked if he had any illegal substances in his possession, he admitted to having a quarter of an ounce of prescription marijuana.

Marijuana is banned under federal law, but possession of the drug is legal in California with a valid prescription. However, the police seized the drug and cited Kha for a traffic violation and possession of marijuana.

Judge Orders Marijuana Returned

Kha pleaded guilty to the traffic violation and submitted proof of his prescription for the drug. The judge granted him permission to retrieve the marijuana, but the police refused to return it.

“He had to go to court three times to get this order. When the police have no probable cause to believe that people are violating the law, they shouldn’t be seizing their medical marijuana or citing them,” said Joe Elford, attorney for Kha.

The Garden Grove police appealed the case, but a three-judge panel supported the original order to return the marijuana.

(Source: The New York Times online)

Charged with illegal possession of marijuana? Contact us today to start planning your legal defense.

CA Sex Offender Law Not Practical

A California law requiring sex offenders to be strapped with a satellite tracking device is not practical, law enforcement officials are now realizing. Funding the surveillance program is among the biggest problems with the law.

“I don’t know of any agency that has the resources to track and monitor…in real time. You’ll need an air traffic controller to track these folks,” said Richard Word, chief of Vacaville Police and president of the California Police Chiefs Association.

Estimated Cost

According to estimates by corrections analysts, the program would cost the state approximately $90 million annually just to track the 9,000 sex offenders currently on parole in the state.

That number is expected to grow in coming years, especially because the law—also known as Proposition 83 or Jessica’s Law—would require even those sex offenders who have completed parole to be equipped with a global positioning device.

Who Should Pay?

Now law enforcement leaders and others who supported the widely endorsed measure, including Gov. Arnold Schwarzenegger, are battling over who should foot the bill for the program.

Officials have been testifying before the state’s Sex Offender Management Board for a report expected in January. The report will discuss the practicality of the law and what changes may be necessary for its implementation.

“We’ve heard significant concerns with how monitoring would be implemented and how it would be paid for,” said Suzanne Brown-McBride, chair of the board.

(Source: Los Angeles Times online)

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Rape Charges Filed Against Boys Under 10

Three boys under the age of 10 are facing charges of rape and kidnapping in Georgia after the mother of an 11-year-old girl filed a police report on Sunday. The boys are currently being held at a detention center, authorities said.

The Allegations

According to the allegations, the girl was assaulted near an apartment complex in the Atlanta suburb of Acworth.  The boys charged in the case are 8 and 9 years old. Police in said they have never investigated rape allegations against parties this young before.

“The victim said they were playing outdoors and the girl was forced into a wooded area where she was sexually assaulted, where one of the boys raped her,” said Acworth police Captain Wayne Dennard.

Too Young for Felony Charges

Felony charges cannot be filed against the boys because of their age, said Cobb County District Attorney Pat Head. However, Head said they could be tried on delinquent charges that carry up to five years in a juvenile facility.

(Source: The Associated Press)

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Police Shooting Revives Debate Over Use of Lethal Force

The killing of a teenager in New York last week has renewed an old and controversial debate about police corruption and the use of lethal force. Twenty shots were fired at the teen when police mistook a hairbrush for a gun.

Excessive Force?

Khiel Coppin, a mentally ill 18-year-old, was heard saying he had a gun in the background of an emergency call. In a second emergency call, Coppin’s mother said he did not have a gun. She repeated this to the officers after they arrived.

Outside the home, Coppin, who held a black brush in his hand, approached the officers. Police opened fire when Coppin ignored their orders to stop.

“Why did the police not heed the warnings … that her son was unarmed? Why was it necessary for the overwhelming use of deadly force? Five police officers, twenty shots, eight hits. Is there no proportionality?” asked Paul Wooten, attorney for Coppin’s family.

Not a Singular Incident

The killing is just one of several to make headlines in recent years. In 2006, police officers in New York fired 50 shots at Sean Bell and his two friends. The three were driving in a car, unarmed. It was Bell’s wedding day. He was killed and his two friends were seriously wounded.

West African immigrant Amadou Diallo, 22, was killed in 1999 after four undercover officers opened fire. Diallo was standing in an apartment vestibule reaching for his wallet. Police said they thought he was reaching for a gun. They fired 41 shots, 19 of which struck Diallo.

A similar incident in Cincinnati in 2001 sparked a level of civil unrest the city hadn’t seen since Martin Luther King Jr.’s assassination. Police shot and killed Timothy Thomas during a chase when Thomas reached down to pull up his pants. He was unarmed.

Racial Stereotypes a Factor?

In the past, police have been criticized for falling prey to racial stereotypes when it comes to the use of deadly force. Some studies have shown that officers use greater force on nonwhite suspects than on white suspects. All of the police shooting victims above—
Coppin, Bell, Diallo, and Thomas—were black.

“Just because a subject has something unidentifiable in his or her hands, that’s never an automatic justification for the use of deadly force,” said Cincinnati attorney Scott Greenwood.

(Source: Associated Press)

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Plan to introduce Eye Scan for Sex Offenders

The Alameda County Sheriff’s Office is reportedly becoming the first public agency in the Bay Area to force sex offenders to submit iris scanning.

Many anticipate that this new strategy will jump-start debate regarding how police officials should be using this powerful technology.

Seeing Through a Criminal’s Eye

The human iris has a unique texture that can be used as a map in a searchable database.

Proponents of the technology claim that although it won’t replace fingerprinting, it offers a speedier and more accurate way to detect criminals.

However, unlike fingerprints, criminals don’t leave their irises at the scene of a crime, so many believe that this technology could prove to be less effective than police anticipate.

“We’re at the infancy of this whole thing,” admits Sgt. J.D. Nelson, the spokesman for the sheriff’s department.

Invasion of Privacy?

Stuart Hanlon, a San Francisco defense attorney, said he was concerned about the iris scanners and their invasion on people’s privacy.

“I don’t know why police would start this without some legislation to back it up,” said Hanlon.

According to Robert Melley, the chief operating officer of a company who manufactures the scanners, “An officer will eventually be able to have a hand-held iris recognition scanner on his or her belt, and as part of a routine to stop traffic, he or she could simply ask the driver and passengers to look into this camera.”

Cristina Arguedas, a defense attorney in Berkeley says that she is skeptical of this new system.

“That sounds like an invasion of privacy to me, certainly to the passengers and to anyone who didn’t do anything wrong.”

(Source: SFGate)

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Officials in South Carolina Fight over Parole

At the same time, the attorney general in South Carolina is pushing for an end to parole, the state’s prisons director is opposing an action he says will crowd the prison system and cost the state hundreds of millions in building expenses.

Current Law & the Push to Abolish Parole

Currently, a state parole board can reduce an inmate’s sentence by 15 percent for certain felony crimes. Parole for the most serious violent crimes and drug offenses was abolished in 1995.

Now S.C. Attorney General Henry McMaster wants to abolish parole altogether, claiming that such a move will give people confidence that convicted criminals will complete the sentences they’ve been given.

“People need to be able to mark their calendars in the courtroom and know the earliest date that defendant can be released,” McMaster said.

Prison Director Pushes in Opposite Direction

According to prisons director Jon Ozmint, eliminating parole would further strain the state’s overburdened prisons, jeopardize the safety of prison employees, and spark a costly “building spree” of new prisons.

“In any state that abolishes parole, the inmate population will grow. South Carolina is no different,” he said.

Ozmint is, therefore, pushing for a more liberal parole and has asked a Senate-appointed Criminal Justice Task Force to create reforms that would:

  • more clearly distinguish between non-violent and violent crimes
  • free up prison beds currently unavailable because of outdated drug laws
  • permit parole for inmates who have served 70 percent of their original sentence

Senator Gerald Malloy chaired the special task force and said that the public “generally agrees, on the surface, (that) a person needs to know how much time they are getting.” He added, however, that “the issue of (no) parole would be a great cost to the system.”

(Source: The State online)

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Emergency E-mail System Created after Execution Controversy

An emergency e-mail system was created by the Texas Court of Criminal Appeals to deal with last-minute pleadings made on behalf of inmates facing imminent execution. The action was prompted by controversy over an execution carried out in September.

Refusal to Stay Open

On September 25, defense attorneys attempted to file a last-minute appeal regarding the constitutionality of the lethal injection method on behalf of inmate Michael Richard.

Shortly before 5 p.m., the lawyers called the clerk’s office to ask the court to remain open for an additional 20 to 30 minutes because they had experienced computer problems, which delayed the required hand-delivery of the appeal.

Presiding Judge Sharon Keller denied the attorneys’ request without informing the judge assigned to the case, who was in her office awaiting a possible appeal.

Richard was subsequently executed, even though there was a good chance the appeal would have been granted pending a high court decision on another lethal injection case.

Wave of Criticism

Keller’s decision has been highly criticized, and the Texas Criminal Defense Lawyers Association has asked for sanctions to be placed on the judge for her failure to carry out her duties and for diminishing the public’s faith in the legal system.

More than 300 attorneys, including former Texas Supreme Court justices, signed a petition two weeks ago calling for the Court of Criminal Appeals to create an emergency e-mail filing systems.

“It’s about time” such a system was created for emergencies, said James C. Harrington of the Texas Civil Rights Project.

Lawyers will now be able to send last-minute appeals, which will be “routed to an on-call ‘duty’ judge as well as the rest of the court to begin consideration.”

(Source: The Dallas Morning News online)

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Multiple Personality Disorder Cited in Murder Defense

The defense attorney for a man charged with two counts of first-degree murder claims that the man was incapable of “cool reflection”—which is necessary for a conviction—because he suffers from multiple personality disorder.

Case “Simple” for Prosecutor

John M. Opry, 28, is on trial for the 2005 murder of two Missouri men. According to the prosecutor in the case, Opry burglarized the home the two men were watching on a Friday, then returned the next day only to be surprised when the men entered the home.

The prosecutor said Opry hid in the basement and shot the victims when they became suspicious and checked the basement.

Not So Simple for the Defense

Public defender Larry Maples is not denying that his client committed the murders. Instead, he claims that Opry suffers from multiple personality disorder because of abuse he endured as a child.

Opry, Maples said, was actually born David Haler and his name was changed two to four years later when his mother married a man who repeatedly abused her and her children.

“The little boy saw his mother shot at. The little boy saw his mother beaten,” said Maples.

To cope with the abusive environment, Maple argued Opry developed a second personality to protect his primary one.

Cool Reflection or Panic?

When the two men discovered Opry in the basement, he panicked, and it is this moment of panic that Maple is asking the jury to consider. At that moment, Opry was not acting with cool reflection, the defense attorney argues.

The trial, which began on Monday, is expected to last three days.

(Source: The Joplin Globe online)

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New DNA Evidence Could Help Convicted Killer

Defense attorneys are optimistic that new DNA evidence will help overturn the conviction of Damien Echols, a death row inmate accused of killing three boys in West Memphis more than a decade ago.

According to lead defense attorney Dennis Riordan, “no reasonable jury would convict Damien Echols, essentially knowing what we know today.” A motion to have the conviction reversed was filed in federal court on Monday.

Lack of Evidence

The original case involves the 1993 killing of three 8-year-old boys whose bodies were discovered bound and naked in a ditch. At the time of the murders, Echols was 18. He and two other teens, Jason Baldwin, and Jessie Misskelley were convicted in the deaths.

Echols received the death penalty while Misskelley and Baldwin were given life sentences. Supporters of the defendants argue that prosecutors obtained a conviction despite a lack of physical evidence by linking the men to Satanism based on their love of heavy metal music.

“It was a rush to judgment, the worst kind of rush to judgment,” Riordan said.

A forensic expert for the defense said, “None of the DNA evidence connects any of the defendants to the scene of the crime.”

The Defense’s Concern

DNA evidence, however, did not rule out the stepfather of one of the victims and one of the stepfather’s friends, who was with him on the day of the murders.

But defense attorneys say it’s not their job to prove who committed the murders, only to prove that their client was not involved in the killings.

“If we can demonstrate the innocence of Damien Echols, it’s not our legal burden to solve this crime,” said Riordan.

(Source: Stephens Media Group)

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Fingerprint Ruling May Have Broad Implications

A judge’s decision to bar fingerprint evidence in a Baltimore homicide trial could have far-reaching implications, according to some legal experts. The ruling is unprecedented, largely because fingerprints have been a crucial aspect of forensic science for nearly a century.

Circuit Court Judge Susan M. Souder said in her ruling that fingerprinting’s long history is not necessarily proof of its dependability.

“The state is correct that fingerprint evidence has been used in criminal cases for almost a century. While that fact is worthy of consideration, it does not prove reliability. For many centuries, perhaps for millennia, humans thought the earth was flat,” she wrote.

A Blow for Prosecutors

State prosecutors had planned to use a set of partial fingerprints taken from a Mercedes owned by Warren T. Fleming, who was killed in January 2006 during an attempted carjacking at Security Square Mall.

The fingerprints linked the killing to Bryan Keith Rose, a 23-year-old Baltimore man. However, defense attorneys challenged the admissibility of the prints and during a pretrial hearing cited the lack of consistent scientific review of fingerprint evidence over the past century.

The Decision

In recent years, fingerprinting technology has come under scrutiny. Judge Souder criticized a common fingerprinting method as highly subjective and called testimony asserting the technique’s infallibility “neither credible nor persuasive.”

She partially based her decision on the 2004 Madrid bombing case in which the FBI mistakenly linked the crime to Oregon lawyer Brandon Mayfield based on fingerprint analysis. Mayfield was offered an apology last year and a $2 million award.

No Longer the “Gold Standard”

“Fingerprints, before DNA evidence, were always considered the gold standard of forensic science, and it’s turning out there’s a lot more tin in that field than gold,” said professor David L. Faigman of the University of Hastings College of Law.

The repercussions of the judge’s decision, according to Faigman, are “terrifically broad.”

“If fingerprinting turns out to not be so good, people could start questioning that science as well,” he said in reference to other types of forensic science such as bite pattern and firearm analyses.

(Source: Baltimore Sun online)

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Rate of Domestic Violence Dramatically Drops

The number of domestic violence cases in the U.S. fell dramatically from 1993 to 2004, according to the Justice Department who also added that native Alaskan women and American Indian women face an increased risk of being victimized than Caucasians and other minorities.

Furthermore, the statistics, gathered by the Bureau of Justice, found that “intimate partner violence” rates dropped by over 50 percent. This sharp decline mirrors a downward trend in other violent crimes in the U.S.

What Caused the Drop

The Justice Department has no definite answer as to why the rates of domestic violence crimes have dropped so significantly in the last decade, but some criminal experts claim it has something to do with better police training and funding for prosecution.

“For the first time, there are entire domestic violence units in law enforcement,” said Lonna Stevens, director of the Sheila Wellstone Institute, a domestic violence group. “We’ve had protocols and policies developed for responding to this.”

More Statistics

For every 1,000 people over the age of 12 in the U.S, there were nearly 5.8 cases of nonfatal violence in 1993. By 2004, that rate had dropped to 2.6.

However, native Alaskan women and American Indian women suffered three times the incidence of violence than white woman, and Black women were also more likely to be abused than white women.

According to Stevens, this could be because law enforcement officials are less successful at responding or deterring violent behavior in some minority neighborhoods.

In addition, the Justice Department found that divorced or separated women, or those in their early 20s faced the highest risk of being abused. Women in low-income households were also victimized more often.

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Legal Group: Death Penalty System in U.S. Flawed

The nation’s largest association of lawyers recently released a report citing serious problems with the death penalty system in the United States. A halt on executions is justified until issues of fairness and accuracy in capital punishment are reviewed, the organization said.

“The death penalty system is rife with irregularity,” said Stephen F. Hanlon, who chairs the association’s Death Penalty Moratorium Implementation Project.

According to the American Bar Association report, problems with the death penalty system include:

  • False confessions
  • Eyewitness misidentification
  • Racial disparities—for instance, the death penalty is more likely to be administered when the victim of a crime is white
  • Mishandling of DNA evidence—more than 200 inmates have been exonerated in recent years with DNA

Separate reviews of the death penalty have been conducted over the past several years in eight states. Those reviews were compiled and presented in the ABA report.

“After carefully studying the way states across the spectrum handle executions, it has become crystal clear that the process is deeply flawed,” Hanlon said.

The ABA does not take a position on capital punishment and is not calling for a permanent halt to executions. Rather the organization is recommending that states review their procedures before putting more inmates to death.

(Source: The Associated Press)

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Teen Sex Offender Released After Long Legal Battle

A controversial teen sex offense case came to a conclusion today after the Georgia Supreme Court ruled 4-3 that Genarlow Wilson be released from prison. According to the court, Wilson’s sentence violated the constitutional ban against “cruel and unusual” punishment.

In 2005, Wilson was convicted on felony aggravated child molestation charges for having consensual oral sex with a 15-year-old girl and received a mandatory 10-year sentence. He was 17 at the time of the sex act.

Wilson Kept Behind Bars

Wilson has been in jail since his conviction more than two years ago, despite a previous ruling by a Monroe County Superior Court judge to void the sentence based on constitutional grounds. The state attorney general’s move to appeal that ruling kept Wilson behind bars.

Majority Ruling

The high court’s ruling upheld the decision of the Monroe County judge.

“Although society has a significant interest in protecting children from premature sexual activity, we must acknowledge that Wilson’s crime does not rise to the level of culpability of adults who prey on children,” the majority wrote in its decision.

“For the law to punish Wilson as it would an adult, with the extraordinarily harsh punishment of 10 years in prison without the possibility of probation or parole, appears to be grossly disproportionate to the crime,” the majority concluded.

Controversial Case Draws Attention

Wilson’s case drew international attention and the support of civil rights leaders and former President Jimmy Carter, who once served as Georgia’s governor. Amid controversy over Wilson’s conviction, the state legislature changed the law regarding consensual teen sex acts.

The new law made such acts misdemeanors, as opposed to felony crimes, and “punishable by no more than a year in prison and no sex offender registration.” However, the laws were not made retroactive and so did not apply to Wilson’s case.

Wilson To Go Home

B.J. Bernstein, Wilson’s attorney, said he could be released today.

“We want him home. In the end, it shows this: That the courts can work, the courts do work,” Bernstein said.

(Source: CNN)

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