SOMETIMES THE GUILTY GO FREE

One of the hallmarks of American justice is that sometimes the guilty go free, even when the court system knows the person is guilty.  This fact often makes prosecutors, judges, and citizens uncomfortable, but our U.S. Constitution demands it.  If police violate the Constitution in the course of their duties, even when the violation was not malicious, the guilty may go free. 

In the case of State v. Fisher, which was decided on May 19, 2011, the Arizona Supreme Court grappled with our pesky Constitution, specifically with the Fourth Amendment that grants citizens "[t]he right of the people to be secure in their persons, houses, papers, and effects, and against unreasonable searches and seizures."  Based on the Fourth Amendment, the courts have ruled that unless there is a recognized exception police must have a warrant to search a home. 

In this case, police were searching for a person suspected of an assault.  In the process of the search, police detained Fisher, and several other people, outside Fisher’s apartment.  Thereafter, the police entered his home without a warrant and found a duffel bag containing marijuana.  The Arizona Supreme Court reasoned that the apartment search was unconstitutional because police lacked reasonable suspicion and probable cause to search a home as the suspects were detained outside the home; accordingly, a warrant was required for the search.  The Arizona Supreme Court decided to exclude evidence found in the illegal search, meaning a jury will never hear of the evidence. 

The court further reasoned as follows: 

We likewise are aware of the high price of suppressing evidence. . . . The principal cost of applying the [exclusionary] rule is, of course, letting guilty and possibly dangerous defendants go free – something that offends basic concepts of the criminal justice system. . . .  But the right to privacy in one’s home is basic to a free society. Thus, specific facts, and not mere conjecture, are required to justify a protective sweep of a residence based on concerns for officer safety.  (Citations and quotations omitted).

The U.S. Constitution is a curious thing.

TIMING OUT—ARIZONA’S CHANGES TO THE STATUTE OF LIMITATION ON CREDIT CARD DEBT

The consumers’ battle against the credit card industry just got tougher because of recent changes to one of Arizona’s statute of limitations.   The change will negatively affect consumers because it increases the time period for which a credit card company can sue upon on a bad debt, from three years to six years.  However, the change creates more certainty for all involved as Arizona’s former law was applied unevenly. 

Photo by Michelle Meiklejohn http://www.freedigitalphotos.net/images/view_photog.php?photogid=901

A “statute of limitation” is the legal time limit for suing on the matter.  The purpose of a statute of limitation is to create finality and certainty for all parties to a dispute. Prior to April 12, 2011, Arizona’s statute of limitation on credit card debt was unclear; therefore, it was applied unevenly.  Some judges applied Arizona Revised Statute § 12-543 to credit card debt, which states that plaintiffs suing upon a “stated or open” account have three years from the default to bring the action.  On the other hand, some courts applied Arizona Revised Statute § 12-548 which gives six years to sue for contracts made in writing.  The uneven application of the law was problematic for judges, creditors, consumers, and attorneys. 

The law was applied unevenly because the definition of “stated or open” account was undefined.  Some judges and attorneys believe that a “stated or open” account is synonymous with “credit card.”  Other judges and lawyers believe that credit cards should be viewed as only a contract made in writing, thus the six year statute of limitation under § 12-548 would apply.  The new legislation has the effect of clarifying the rule by specifically defining what a credit card is and granting the credit card companies six years from the date of first default to bring a cause of action. 

How will this affect the average consumer? The change means that the credit card companies will have six years (rather than three) to sue the defaulted debtor; however, it also means that the average consumer will have more certainty as the law will be applied evenly to all consumers. 

If you have been sued on a credit card that is six years in default, I do not recommend that you attempt the defense on your own.  You should contact a qualified attorney who can help you dismiss the action in your favor.

CAN I CREATE MY OWN WILL?

Many people ask whether they need an attorney to draft a will or whether they can do it on their own. In Arizona, the answer to that question is that you do not need an attorney to draft a will—a will does not fail because it is drafted by a non-lawyer.  That said, I have yet to find a non-lawyer that understands the legal requirements of a will or common pitfalls in will drafting.  Moreover, I have seen too many self-made wills that are lawsuits waiting to happen.  

The case of Gloria Waterloo, decided by the Arizona Court of Appeals on March 8, 2011, illustrates that a well drafted will is the “ounce of precaution” that avoids “the pound of cure.” Ms. Waterloo had an estate with a value of at least 3 million dollars. One month before she died, she decided to will some or all of her estate to a certain Rabbi Zack Zimmerman.

No doubt Ms. Waterloo believed that her will was adequate to probate. However, her will made reference to a “list of final instructions” that did not exist. Therefore, the trial court declined to probate the will because it could not ascertain Ms. Waterloo’s “complete intent  . . . without knowing what was to be contained in the list of instructions.” On appeal, the Court of Appeals reversed the trial court sending the will back to probate because a will “should be admitted to probate as a will even though all of its terms are not capable of being enforced.”

So what’s the moral of this case? You do not need an attorney to draft a will. However, a qualified attorney knows how to draft a will that probates without needless litigation. If you have a poorly drafted will, you may end up like Ms. Waterloo, spending tens of thousands in attorneys’ fees just to have her last wishes fulfilled. I doubt it is your desire to have your money expended in this way. Therefore, I highly recommend that a qualified attorney prepare your estate plan. 

U.S. SUPREME COURT RULES THAT WESTBORO BAPTIST CHURCH HAS CONSTITUTIONAL RIGHT TO PICKET AT FUNERALS

The Supreme Court ruled on March 2, 2011, that the Westboro Baptist Church has a constitutional right, under the Free Speech Clause of the First Amendment, to picket at the funerals of our fallen soldiers.  The court went on to reason that the First Amendment is a defense to the tort of intentional infliction of emotional distress.  The opinion can be found here. 

 

The facts of this case arise out of the picketing of the funeral of Lance Corporal Matthew Snyder.  At the picketing Fred Phelps and followers of the Westboro Baptist Church held signs outside the funeral of Cpl. Matthew Snyder that read “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell.”  After the funeral, Cpl. Snyder’s father filed suit against Fred Phelps, his daughters, and the Westboro Baptist Church for, among other things, intentional infliction of emotional distress.  His father won a multimillion dollar award. An appeal of the award followed on the theory that the First Amendment protects this type of speech. 

In ruling against Snyder, the U.S. Supreme Court reasoned that the First Amendment serves as a defense to torts when the speech in question is of a public concern rather than a private concern.  Speech is of a public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” or when it “is a subject of general interest and of value and concern to the public.” Whether the statement is “inappropriate or controversial . . . is irrelevant.”   

The court went on to reason that the content of the Westboro Baptist Church’s speech is a public concern and, therefore, entitled to special protection under the First Amendment.  However, the court further reasoned that choice of when and where to conduct picketing is “subject to reasonable time, place, or manner restrictions” so long as the regulations are “content neutral.” 

Only one justice dissented the majority opinion, Justice Alito.  In that dissent, Justice Alito summoned the voice of the people.  His words are worth mentioning: 

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.  The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

Our hearts go out to the Snyder family.  This ruling will be difficult to handle.