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The Arizona Assault Defense Attorney’s Problem with Jury Bias and Hate Crime

Jury selection can be a complicated component in the defense strategy of an assault defense attorney in Arizona. A recent case brought up a string or jury excuses that were far from run of the mill, many of them relating to racial tension and the issue of illegal immigration. Out of a selection of 130 perspective jurors, only 5 were selected and the rest were excused. Either they didn’t meet the requirements of the prosecution, or they posed legitimate concern to the assault defense attorney of the accused.

The case involved Jeffrey Conroy, 19, who had been accused of killing Marcelo Lucero, a 37 year old Ecuadorian immigrant who had been stabbed to death in a hate crime. Lucero was attacked by 7 teenagers who allegedly made a sport of targeting immigrants. Lucero’s death prompted outrage and exposed the racial tensions of region, and many Latinos came forward to speak out about a string of muggings that had been aimed at Hispanics in the area. It created a scenario that made it hard for his assault defense attorney to find an unbiased jury which to try him.

As Conroy went on trial, jury selection proved difficult, partly because of the views on immigration that were held by some perspective members of the jury, as well as those who might have been motivated out of racial concerns. Certain points of jury selection had the sound of a call in talk radio show as perspective jurors were interviewed by the prosecution and the assault defense attorney.

Most of the jury responses answered questions posed by Justice Doyle. He pointed out that some testimony would be provided by illegal immigrants, and that the potential witnesses that have been named in court include some or all of the other men who participated in the attack and have since pleaded guilty.

Several potential jurors were dismissed because they had strong views on illegal immigration and would be unable to respond in an unbiased way, a dismissal made in the interest of the prosecution. Others were excused because they had Hispanic family members or were Hispanic themselves and might therefore side with the victim and his family in a way that prevented an unbiased viewpoint, a dismissal made in the interest of the assault defense attorney.

Still others stated they had followed the case in the news, and had already formed sound judgments as to Conroy’s guilt or innocence.

For example, one man confided that he grew up in a racist environment and that he doubted his ability to render a fair and impartial decision. Another had been the victim of verbal abuse aimed at his Puerto Rican heritage, which he allowed could affect the decision he made in the jury box.

Plus, as any assault defense attorney realizes, people often answer jury questions in an effort to appear to have a bias, simply to get out of serving on a jury. Jury duty isn’t as exciting as a courtroom drama on television. While serving on a jury may be a citizenship duty, it is no picnic.

These are challenges that are always presented in any case to an assault defense attorney of Arizona and prosecution team in finding an unbiased jury, but they become even greater in the instance of hate crime that involves racial issues.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona assault defense attorney, visit our site.

White Collar Crime Defense in Arizona and Work Products in Regard to IRS Litigation

The best cases for white collar crime defense in Arizona are when the client utilizes counsel to remedy past business practices before the government conducts an investigation. This may call for an internal investigation or a review of financial records by a forensic expert. In some cases, it may very well be the client who acts as the whistle blower. In many cases, there may not be hint of litigation on the horizon, and in some cases may never be any litigation. One of the best outcomes of preemptive white collar crime defense is a quiet resolution of the client’s issues.

Most attorneys wouldn’t pay a second thought to the right to a protection of work product immunity, but it can be one of the best tools at the disposal of white collar crime defense. At the same time, many of the issues regarding work product immunity have come into question, as courts debate what exactly is and isn’t a work product.

First Circuit Rules Work Papers not a Work Production
The First Circuit addressed the issue of whether or not a document that is prepared for litigation but relates to a subject that might or might not cause litigation could be considered a work product. In its answer, the First Circuit rendered a decision that created a dangerous narrowing of the definition of a work product that can limit the efforts of white collar crime defense in Arizona.

The First Circuit determined that the previous court language “prepared in anticipation for litigation or trial” did not, in reference to anticipation, mean preparation for some purpose other than litigation, but rather the “work meant to be done for litigation but in advance of its institution.” The court clearly did not consider that  a white collar crime defense attorney experienced in tax matters might have a different view. The court failed to recognize that an attorney’s role in advising a client is not solely to ready a matter for litigation, but to guide the client to the best possible recourse, whether that is a litigation or resolution.

Giving Undue Deference to IRS Policy of Restraint
The First Circuit did note that the “the IRS does not automatically request tax accrual work papers from taxpayers,” but only does so when the IRS has concluded that a company has engaged in “list transactions” that have been identified by the IRS as abusive tax shelters. The IRS, in fact, has a policy of restraint, only seeking tax accrual work papers in “unusual circumstances.” The IRS defines these papers as work audit papers that have been prepared by the taxpayer, an accountant or independent auditor, that relate to current tax liabilities. These papers have usually been reviewed by the client’s white collar crime defense team.

IRS examiners seek paperwork “only when factual data cannot be obtained from the taxpayer’s records or available 3rd parties, and then only as a collateral source for collected data.” The IRS has provided an exception to its policy of restraint with regard to abusive tax shelters. When a list transaction is not disclosed on a return, the IRS will ask for proof of the matter.

Consulting white collar crime defense in Arizona does not necessarily constitute a crime, but merely suggests the urgency to find a resolution. Whether or not tax documents under issue are considered a work product is currently under debate in the courts, but it is an area that provides the defense argumentative leverage.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona white collar crime defense, visit our site.

An Arizona Assault Lawyer Can Gain Advantage Questioning GSR Evidence

Ask any assault lawyer in Arizona who knows the law. Just because a suspect tests positive for GSR doesn’t mean he shot his victim. In fact, the tenets of GSR are so shaky that an assault lawyer has many opportunities to insert doubt over such evidence, making it practically useless in a court of law.

What is GSR?
The Trace Evidence Procedures Manual defines GSR (short for “Gun Shot Residue”) as “a particle with a spherical or molten appearance containing the elements Pb, Ba, and Sb.” The reality is that 99% of the time, neither the police nor the assault lawyer in Arizona actually tests for gunshot residue. Instead, they test for primer residue.

To understand GSR, let’s first take a look at gunpowder. Essentially, it’s combination of chemicals that, once ignited, burn at a predictable rate, expanding gases that create pressure and force the bullet down the barrel of a gun. In the early days, gunpowder was a black powder that 75 % potassium nitrate, 15% charcoal, and 15% sulfur. Nitrate is the base fuel of all gun powders, though they may take several different chemical forms. Gun powder has advanced over the years to include other ingredients, but at its base it is essentially the same.

Crime scene investigators take a swab sample from a person or article and test for a combination of chemicals from gunpowder residues, primer residues and lead residues. It is important to note that increasingly, companies are making gun powder with less or no lead residue in its ingredients. This is done in order to make shooting safer in an indoor arena, as lead free ammunition keeps the shooter from inhaling the toxic metal and risking cancer.

Problems with nitrates

Nitrates are the fuels that make the gunpowder burn. The problem that is of interest to an assault lawyer is that it is quite possible to test positive for nitrates by coming into contact with an endless stream of everyday ingredients, with fertilizers and fuels topping the list. In fact, obtaining a false positive test is so easy that most police departments these days don’t even bother to test for nitrates. They just aren’t reliable.

When the powder remains, soot is what remains. You can get soot from car exhaust, fireplaces, even a cigarette. Testing positive for soot should hardly require the need to hire an assault lawyer.

Problems with primers
Primers are the small cups or circles on the base of the cartridges that ignite the gunpowder with a small explosion – just like a child’s cap gun. This is where the job of police work gets interesting and where an assault lawyer should take notice. Most primers contain the chemicals barium nitrate, lead styphnate, and antimony sulfide. There are a number of chemicals the forensic expert must identify. The fact that they do not identify all chemicals does not mean it is not GSR, and even if they do, it does not mean that the person fired the gun. GSR is based upon shaky, questionable grounds that an assault lawyer can bring to the court’s attention in the best interest of his client.

GSR is a very inconclusive piece of evidence that is being questioned more and more by the courts. An assault lawyer in Arizona should always insert doubt into any presented testimony of GSR. The evidence is simply not valid or sound enough to base a judicial decision upon.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona assault laywer, visit our site.

Advantages of an Arizona White Collar Crime Lawyer in a Mail Fraud Case

While the need for a white collar crime lawyer in the case of mail fraud was once mostly limited to the mail, today the law has been used to prosecute bank fraud, wire fraud and health care fraud. The crime of mail fraud requires prosecutors to prove 4 essential elements, including a scheme devised to defraud or obtain money by fraudulent purposes, intent, materiality, and using the mails in the implementation of a fraudulent scheme. As the scope of what mail fraud covers has been expanded by lawmakers and the courts, a white collar crime lawyer in Arizona may encounter with it in a variety of legal scenarios. It’s the open interpretation of the law that can offer legal leverage to the defendant.

Prosecutors face 2 possible approaches in bringing about a mail fraud charge on the client of a white collar crime lawyer. One is based on a “money or property approach,” while the second is premised upon a deprivation of “honest services.” The latter approach takes its case from the Anti-Drug Abuse Act of 1988, which provided the phrase, “scheme or artifice to defraud,” including a scheme or artifice to deprive another of the intangible right to honest services.

While actual mailing was a prerequisite for the client of a white collar crime lawyer to be charged with mail fraud, a 1994 amendment to the statute inserted language to include anything that was transported with a commercial carrier, expanding the definition and scope of the law. This new provision was intended for Federal Express and other private package deliver services, allowing for a mail fraud charge even in the absence of the US Postal Service.

Throughout the history of the mail fraud statute, the courts have struggled with a broad interpretation of the statute and a more precise viewpoint. The courts appear receptive to any claims that will place constraints on a charge being categorized as mail fraud. As the statute has significantly strayed from its mail fraud roots, a white collar crime lawyer in Arizona can gain considerable leverage by arguing whether his or her client’s case applies to the statute.

Examining the history of mail fraud, one can see the struggle to define its nature played out in the legislative body and the courts. Courts are pulling in congressional reins, providing prosecutors with what may at first glance appear to be a limitless statute. A white collar crime lawyer would be good to get into the particulars of the statute and how it applies to his or her client’s case. If an argument could be made that the client’s scenario wasn’t meant to apply to the law, the lawyer has more leverage.

If facing mail charge allegations, a white collar crime lawyer will be know the right arguments for your best interest. He or she will be quite familiar with mail fraud law and the recent reinterpretations of the law. He or she will know what a legitimate case of mail fraud is, and when an argument can be made that the prosecutor is stretching the truth. Mail fraud has its own issues and concerns that are best addressed with a lawyer familiar with the field.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona white collar crime lawyer, visit our site.

How an Arizona Criminal Defense Lawyer Can Use the Booker Decision to Minimize Sentencing

The US Supreme Court’s decision in US v. Booker was supposed to be a dream come true for your average criminal defense lawyer in Arizona. The case was expected to transform federal sentencing guidelines from what had been a mandatory system into what was effectively an advisory one. Many judges hailed it as a sort of Emancipation Proclamation to free the courts from the tyranny of mandatory guidelines. Contrary to the side taken by your average criminal defense lawyer, most prosecutors feared that a system of inconsistent sentences would result, plunging the court into its own chaos.

In reality, US v. Booker proved to be far less revolutionary in practice. So far it at best resembles a midfield scrum as prosecution and criminal defense lawyer alike try to figure out where the ball is bouncing. The legal system has come more to resemble a drunken game of foosball than a legitimate system based on the Constitution.

Disparities have indeed resulted from the case. It’s human nature that different judges will issue widely different sentences per similar circumstances.

The catch is that the discrepancies didn’t work to the advantage of the clients of a criminal defense lawyer in Arizona.  In fact, contrary to most expectations, in the first 3 years after the decision was rendered, the average prison sentence for all federal crimes actually rose slightly each year. While the rate of downward departures has dropped slightly recently, the amount was hardly earth shattering. The average criminal defense lawyer saw his client’s prison rates rise as a result of the judicial decision despite the concerns of the prosecution.

While the guidelines have become advisory, they continue to have significant influence upon sentencing. Judges often have become so habituated following the guidelines that they find it difficult to break the habit. Plus, your average criminal defense lawyer fails to take full advantage of the opportunities that Booker presents to plead for a lower sentence.

The Supreme Court did its best to keep the jumble going, issuing 2 later opinions that added to the Booker interpretation. First, it rejected the 100 to 1 ratio in the guidelines between crack and powder cocaine offenses. The court also decided that a substantial downward departure from the guidelines did not need to be justified by extraordinary circumstances.

These decisions breathed a new breath of life into Booker. In fiscal year 2008, the average sentence issued for federal crimes dropped to its lowest in more than a decade.

Many federal prosecutors acknowledge that Booker has reintroduced disparities that led to the set up of the sentencing guidelines in the first place. Many make sure to maintain that it’s not that the guideline sentences that are unreasonable, but the disparity that exists creates seriously questionable legal issues. Why should one person receive a greater penalty purely on the human whim of a different judge?

Since Booker, federal sentencing has been forever altered. While at first, the court decision resulted in heftier sentences, reinterpretations by the court have caused some of those numbers to go down. Nevertheless, Booker offers a criminal defense lawyer in Arizona considerable opportunity to get a lesser sentence for his or her client, an element that should not go overlooked by any legal defense team.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona criminal defense lawyer, visit our site.

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