According to LegalMatch.com intake reports collected over the past five years, the most common “white collar” crime charge people sought legal help for was credit card fraud.  Ironically, it may have been Madoff’s greed that prevented him from experimenting with credit card crime.  Many criminals make fairly modest credit card transactions in order to avoid the harshest penalties:  according to one source, the Secret Service doesn’t prosecute cases involving less than $150,000, and the Federal Trade Commission doesn’t investigate fraud cases unless they involve at least $2,000.  Madoff, whose giant Ponzi scheme involved about $65 billion, may have considered credit card scams not worth his trouble. 

The second most common charges facing LegalMatch clients involved insurance and unemployment fraud.  It’s obvious why Madoff, who was wealthy before embarking on his scheme, couldn’t pull off unemployment fraud, but it’s less clear why he avoided insurance fraud.  

The third most common charge facing LegalMatch’s white collar crime clients involved check fraud.  This crime is usually committed on a smaller-than-Madoff scale, which most victims losing an average of $5,000.

Madoff’s case differs from the average LegalMatch client’s case in other ways too.  While Madoff did not have any prior arrests or convictions, 34% of LegalMatch.com white collar crime respondents had prior arrests, 26% had prior felony convictions, 24% had prior misdemeanor convictions, and 16% had prior juvenile convictions.  Madoff’s clean record could have helped him avoid detection by authorities:  Madoff planted the seeds of his scheme in the early 1990s, and although concerns were raised as early as 1999, serious inquiries were not made until December 2008, and formal charges were not brought until 2009 after Madoff’s sons reported him to federal authorities. 

Finally, while Madoff is 70, most LegalMatch.com white collar fraud cases involved persons in their 40s and 50s, and no LegalMatch cases involved defendants in their 70s.  Perhaps Madoff’s age worked to his advantage: he probably acquired significant financial and social skills over the years, and investors may have perceived him as more “trustworthy” because he was older.  Of course it also helped that he had inside connections which allowed him access to numerous investors, wealthy and middle class alike.

LegalMatch Update on White Collar Crime in America is a post from: LegalMatch Law Blog

Which drugs are Americans using?  Not surprisingly, the most common illegal drug today is marijuana, followed by cocaine, and methamphetamine.  According the U.S. Drug Enforcement Agency, 42% of total drug arrests involve marijuana.  This figure takes on new significance considering that marijuana is more potent than it’s been in over 30 years. 

These findings comport with LegalMatch.com figures I gathered from 2005 through the end of 2008.  39% of people looking for a drug-related criminal defense attorney were arrested for a crime involving marijuana; while 20% of arrests involved methamphetamine, 15% involved cocaine, 11% involved crack, 10% involved other drugs such as prescription medications, 3% involved heroin, 2% involved ecstasy, and 0.2% involved steroids.

While it’s discouraging to know that despite spending almost $12 billion per year on drug prevention efforts, so many Americans continue to use, the White House has some positive news.   According to a recent press release, illegal drug use in America is on the decline. A report based on data compiled from workplace drug tests, a study conducted by the University of Michigan, and the U.S. Drug Enforcement Agency shows that America’s tough drug policies are reducing illegal drug availability and demand.  Specifically, there was a 25% decline in overall illegal drug use by youths from 2001 to 2008.  Cocaine on American streets dropped in purity by 32% and increased in price by 89%, indicating a lack of supply.  Further, nationwide workplace drug tests showed a 38% drop in positive results from June 2006 to June 2008.

While illegal drug use may be on the decline as the economy tanks, some reports indicate that people are increasingly turning to prescription “escape” drugs, such as painkillers and mood enhancers to dull the pain of a foreclosure or job loss.  Drug industry sales figures show that many Americans are forgoing expensive doctor visits and high-priced medications, and instead choosing to mask their pain with prescription painkillers and psychiatric drugs.  Additionally, DEA officials recently reported that prescription drug abuse is rising sharply, at about an 80% increase from 2002. 

Is one problem merely being replaced by another?  Maybe not if the new administration recognizes that drug problems come in many different forms.

Drug Abuse: Just What The Economy Ordered? is a post from: LegalMatch Law Blog

However, there were still fewer filings in 2008 than in 2005 and earlier, prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA).   The BAPCPA overhauled important parts of the Bankruptcy Code, and made it more difficult for consumers to file for Chapter 7 bankruptcy.  For instance, the BAPCPA requires debtors filing for Chapter 7 to wait eight years between filings, and the BAPCPA raised the asset and income requirements needed to qualify for Chapter 7.  Consumers bringing home incomes that exceed their state’s median income level, and who can pay at least $6,000 over five years must instead file for Chapter 13.  The new law pushed Chapter 13 filings up from 24% in 2005 to 41% in 2008.

What’s the difference between Chapter 7 and Chapter 13?  By filing for Chapter 7, an individual agrees to have his assets liquidated in order to pay creditors; in return, the debtor is able to discharge some of his debts.  Under Chapter 13, the debtor keeps ownership and possession of his assets, but agrees to pay some of his future income to creditors under a debt repayment schedule.

I looked at LegalMatch.com data from 2005 to 2008 to investigate these trends for myself.  In 2005, 74% of consumer clients wished to discharge all of their debts, while only 7% wished to repay them over time.  In 2006, 66% sought to discharge their debts completely, while 12% sought to make payments.  In 2007, 65% sought to discharge all debt, while 13% sought to repay.  And in 2008, 66% sought to discharge, while 11% opted to repay.  

In sum, it appears that the BAPCPA has been successful in prompted consumers to increasingly seek repayment (Chapter 13) over total discharge (Chapter 7).  However, the law’s goal of reducing overall findings is being somewhat thwarted by the tumultuous economic climate.

LegalMatch Data Shows Chapter 7 Bankruptcies Decreased is a post from: LegalMatch Law Blog

According to LegalMatch case data from the past 5 years, 61% of people claiming an interest in the estate of the decedent (the person who dies) involve a written will.  Most commonly, children brought these lawsuits (43%); parents (16%), grandkids (9%) and spouses (5%) were less likely to take legal action. 

So, why are these wills being challenged?  People seek to prevent or stop a will from being probated for a number of reasons.  Commonly, plaintiffs claim that:  1) the will reflects a mistake of the testator, 2) the testator wrote his will under undue influence, fraud, or duress, or 3) the testator lacked testamentary intent or the capacity to write his will in the first place.

While a minority (23%) of the LegalMatch will contests that I evaluated involved decedents who died intestate (without a written will), according to a 2007 Harris poll, 55% of U.S. adults don’t have a will or estate plan.  This trend is even more prevalent among minorities: only 32% of African Americans and 25% of Hispanic Americans have wills, compared with 52% of White Americans. 

According to the same Harris poll, however, more Americans are making living wills (also known as health care directives), perhaps in response to widely publicized disputes such as the Terry Schiavo case.  Respondents’ number one reason for not making a will?  They thought they didn’t have enough assets to worry about.  Other popular responses were:  1) I don’t want to think about dying or being incapacitated, 2) I don’t know who to ask about drafting a will, and 3) procrastination. 

While crafting your will to withstand legal challenge may seem complicated, a good lawyer should be able to do this competently.  However, there is one simple thing that all laypersons can do: make your will accessible!  I found that 17% of LegalMatch will contests indicated that the parties did not even know if a will existed!  Remember, even the most carefully drafted will won’t do a bit of good if it can’t be found. 

Maybe the knowledge that their children will most likely be the ones to hash things out in court will motivate parents to start drafting their wills with care.  Also, while it’s troubling to know that so many people leave their estates unsettled, it’s also comforting to know that legal action can be taken even if the decedent fails to leave a will or alert his loved ones that a will exists at all.

Where There’s a Will (or No Will), There’s a Legal Way is a post from: LegalMatch Law Blog

Congress recently passed new product safety regulations

While efforts to make our products safer are obviously commendable, some of the law’s measures are already undergoing fierce criticism.  First, the law allows states to impose their own, stricter standards.  This means manufacturers will be forced to comply with up to 50 different standards – a truly daunting task. 

Second, some worry that the costs of compliance will simply be too great for all but the U.S.  largest manufacturers.  Larger companies with in-house labs can likely conduct their own tests; however, smaller companies that need to send their products out for testing may not be able to bear this financial cost.  Moreover, the law mandates each different style of toy be individually tested; and most small companies don’t sell sufficient stock of a single product style to offset this cost.  Additionally, small U.S. companies may have trouble keeping up with marking provisions, which require products be permanently marked with information specifying where, when, and by whom the product was manufactured. 

If smaller U.S. children’s product manufacturers go under, will we be left with only the mass-produced products from China, which, ironically, have been the source of so much trouble in the past?

Congress Product Regulations Make U.S. Safer, or China Stronger? is a post from: LegalMatch Law Blog

Out-of-wedlock births have been on the rise since the late 1990s.  There were over 1.7 million households consisting of unmarried couples with children in 2004, compared with just 200,000 in 1970.  According to a report conducted by the Pew Research Center, almost 37% of children in the U.S. are born to unmarried women, and 47% of adults between the ages of 30-50 have cohabitated with a significant other at some point in their lives.  Currently, approximately 50% of children are born to unmarried, cohabitating couples, while in 1993, only about 33% were.

LegalMatch statistics, compiled from online intake reports completed by respondents across the nation, support these numbers.  According to 2008 LegalMatch case data, 40% of couples involved in child custody disputes are living together and have never been married to one another.  About 12% of respondents (comprised of men and women) chose “other” to describe their relationship status; a significant number of these “other” respondents stated that they are cohabitating or have cohabitated with their child’s other parent in the past, but never married him or her.  About 9.5% of respondents answered that they are separated and haven’t yet filed for divorce, while 7% stated that they are divorced and now married to someone else.  Finally, 6.7% stated that they are divorced and they, as well as their spouse, are living alone. 

Notably, fathers aren’t necessarily absent from the homes of unwed mothers.  A 2002 report conducted by the National Center for Health Statistics showed that about 20% of new mothers under age 20 were unmarried yet cohabitating with the father of their child at the time of birth. 

While younger adults have expressed less moral concern over out-of-wedlock children and cohabitation, many older adults have expressed significant concern over these trends.  Perhaps as part of a backlash, Arkansas and Utah have expressly barred unmarried couples from adopting, but these statutes may reflect a prejudice toward homosexual parents rather than any bias against unmarried couples in general.

LegalMatch Cases Prove Unwed Women Having More Children is a post from: LegalMatch Law Blog

Recently, government-run mortgage finance company Fannie Mae promised to assist tenants by signing new leases with those living in Fannie-owned properties that have been foreclosed.  Under the proposed plan, renters will be granted the option to lease month-to-month on foreclosed properties until the property is resold.  Fannie’s actions mark the first nationwide attempt to save renters caught in the mortgage crises.

While it’s a little disconcerting to see Fannie effectively become our national landlord, the mortgage behemoth’s actions may encourage private lenders to enact such programs; further, lawmakers may be persuaded into enacting more comprehensive relief measures. 

Still, there are potential problems with Fannie’s plan.  First, because the government lacks incentive to maintain rents at market rate, taxpayers may ultimately subsidize below-market rentals.  Second, government may waste taxpayer dollars because it lacks the necessary experience and/or infrastructure to manage these rental properties efficiently.  Third, Fannie’s action prevents these foreclosed properties from being sold on the open market, perhaps exacerbating the housing downturn and economic recession. 

While some states such as Minnesota have passed stricter laws to protect tenants from foreclosure, other states are dragging their heels.  For now, here’s some advice for prospective and current tenants.  Existing tenants should be wary if they suddenly become inundated by advertisements from local bankruptcy lawyers – this indicates the owner may be facing foreclosure.  Prospective tenants should perform a credit check on a property owner.  Also, look out for default or sheriff sale notices posted on the property (and don’t take the owner’s word, if he says things are “under control”). 

Further, check public records online or in your local county records office to see if the owner is failing to make payments or the property is in foreclosure; and while you’re at it, check to see if the owner owes property taxes or association dues – both clues that he may owe mortgage payments as well.  You can research your local foreclosure laws online too.  If you don’t have the time (or patience) to perform such due diligence, at least make sure to watch for a landlord who asks for an unusually high deposit or a number of advance rent payments. 

Is Fannie Mae the United States’ Landlord? is a post from: LegalMatch Law Blog

The Court hasn’t opined on this subject since the 1991 case of Payne v. Tennessee, in which it held that testimony showing a crime’s impact on the victim’s relatives and other survivors was admissible in the sentencing phase of capital cases.  In Payne, the Court set forth vague guidelines, stating:  “in the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”  The California Supreme Court has issued this advice:  trial judges should be “very cautious” when allowing such evidence, and “irrelevant background music” should not be used. 

Some argue that video impact statements merely even the playing field for victims.  They claim that such evidence merely humanizes victims, and gives a voice to survivors who are uncomfortable testifying at trial in front of the defendant and others. 

While victim impact videos definitely have the potential to elicit sympathy from jurors, they can also be unfairly prejudicial to defendants; further, they often serve no legitimate purpose.  Should the decision to impose the death penalty be based on reason rather than emotion?  If yes, do victim impact statements aid that purpose?

Justice Stevens warned that “when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming. While the video tributes at issue in these cases contained moving portrayals of the lives of the victims, their primary, if not sole, effect was to rouse jurors’ sympathy for the victims and increase jurors’ antipathy for the capital defendants.”  And as Justice Breyer stated:  “The videos added nothing relevant to the jury’s deliberations and invited a verdict based on sentiment, rather than reasoned judgment.”

Every state that imposes the death penalty allows victim impact evidence to be presented during the sentencing phase of murder trials; however, without uniform standards, courts across the nation will inevitably impose different standards — some allowing highly emotional videos set to music,and produced by Steven Spielberg; others permitting only bare-bones testimony.  A defendant’s punishment should not depend upon how likable the victim was or how skilled the filmmaker is.  The High Court should set clear standards so victims and defendants across the nation get an equal shot at justice.

Get Steven Spielberg on the Phone – I Need to Sentence Someone to Death is a post from: LegalMatch Law Blog

The interview shows the boy changing stories, and talking calmly to investigators about the incident.  About forty-five minutes into the hour-long interview, he claims that an unidentified assailant shot both men, and that he later shot them in order to end their suffering.  

Child trauma experts have long-asserted that children are often unreliable witnesses: they may make up elaborate stories, confess to crimes they did not commit, or deny committing crimes when they are in fact guilty.  Children exhibit this behavior because their brains haven’t fully developed, they cannot make complete sense of questions, and they often feel pressured to answer in a way that they believe will please the adult interrogator.  When children are not accompanied by a parent or guardian, they are especially likely to give unreliable answers as they feel more vulnerable and less confident.

Under Arizona law, children are generally considered to lack the competency needed to be charged with homicide.  In this case, however, police are charging the boy with double homicide due to the exceptional facts and circumstances. 

In addition, it’s unclear whether the boy is legally competent to stand trial.  In order to be deemed competent, a child must be able to comprehend his rights and the consequences of his decisions; in addition, he must be able to participate meaningfully in his defense.  Given these criteria, are eight-year-olds ever competent to stand trial?

If a court-appointed psychologist finds that the boy is not competent, and he cannot be rehabilitated within nine months, Arizona law mandates that the charges must be dismissed.  The state would then have the option of seeking to have the boy committed in civil proceedings.

In this case, the prosecutor is attempting to put one of the homicide charges on hold until boy turns 15 and can be tried as an adult.  If this tactic works, instead of facing juvenile detention until age 18, the boy will face life in prison without the chance for parole. 

Given the severe consequences this boy may face, along with the unreliability of his confession and questionable ability to stand trial, the state should definitely be required to present more concrete evidence that he is indeed guilty.

Third-Grader May Face Life In Prison Without Parole is a post from: LegalMatch Law Blog

Legal aid and private lawyers can often help homeowners avoid foreclosure by negotiating directly with the bank, which most certainly has strong representation.  Legal aid lawyers may also help make the whole process more efficient, as forcibly evicting homeowners is a difficult process. 

Furthermore, the eviction of homeowners causes other problems down the line.  As homes are left vacant and contributing members of a community are banished, neighboring homes fall in value, and local businesses suffer from decreased business.  Therefore, it is in everyone’s interest to make sure homeowners can avoid foreclosure when possible.

States have taken varying approaches to this problem.  Ohio has taken action by implementing free legal aid programs for those facing foreclosure.  While most states offer some sort of resources, homeowners must beware of foreclosure rescue scams.  A new Florida bill intended to protect homeowners from these scams took effect in October, and at least 12 states have enacted similar laws to combat foreclosure scammers.  Only time will tell if these laws accomplish their goals, but in the meantime, homeowners can educate themselves on how to avoid mortgage foreclosure scams.

Foreclosure Scammers Finding it Hard to Scam is a post from: LegalMatch Law Blog