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Crim.Law.Expert
Crim.Law.Expert, Lawyer
Category: Criminal Law
Satisfied Customers: 9
Experience:  Legal consultant with 19 years experience as a criminal litigator, and 4 years judicial experience in criminal courts. Currently provide criminal litigation support and expert consultation services
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For expert with the specific name "Criminal Lawyer ONLY" I

Customer Question

For expert with the specific name "Criminal Lawyer ONLY"

I got an e-mail from my Crime Victim Specialist. The e-mail read:

"attached is some material related to your request for a Hearing. The DOJ attorneys have also asked us to get records of your physical and mental health treatment during 2008 and 2009. Please provide us with the names and addresses of your treatment sources during 2008 and 2009. Thank you."

The attachment read:

"Enclosed is a foorm for you to sign that allows [your hospital] to send its medical records to Crime Victim Compensation.

Please read the dates requested; they correspond to the dates on the bills you sent the Program.

The records must be requested by our Program. If you reqauest them to be sent to you and not directly to the Crime Victim Program, then they will bill you for the search and copying costs. Our Program cannot by law reimburse for such costs.

The Program also needs medical records that have not been altered or written upon. They must be the product of the hospital or its copying service. Please complete the form and send it (or deliver it) to the hospital medical records department. Our attorneys want the records within 30 days; your deadline is March 4, 2013.

If you want other medical records of treatment submitted to Crime Victim Compensation that are not part of your treatment at [your hospital], please send us the name of the provider, address of the provider, and the dates of treatment.

Sincerely,

[Crime Victims Specialist]

On the disclosure itself it says, "The purpose of this disclosure is to determine eligibility for an award for the cost of medical treatment under the crime victim compensation act."

When I read this some things bothered me:

1) Why is the claims specialist for the department sending me an e-mail about the hearing on behalf of the attorneys? Isn't is supposed to be the other way around where I have NO communciation with the department and only with the attorneys because the attorneys are representing them.

2) Also, the judge made it clear that we are NOT discussing the amount of compensation that I may be eligible for at the hearing. She said that will come AFTER the hearing if I am deemed eligible.

3) Why do they need this information for the hearing? Again, we are not discussing whether an injury occurred as a result of the crimes (it did). The hearing is about: Did an eligible crime occur, was it reported to the police within 5 days of when it was reasonable, and does travesty of justice overrule the one year rule. Nothing about medical.

However, for me, I will give them the medical information that supports my case that I CHOOSE to to give them at the deadline given by the judge for us to exchange evidence. (unless compelled otherwise by the law of course). The burden of proof is on them for the last 2 items mentioned at the hearing, so it makes no sense for me to give them any information I don't have to.

4) It also strikes me as odd that they give me a deadline, but do not say what happens if the deadline is not met. I could be wrong, but it seems like an empty threat to get records they are not entitled to at this for so they build and dig and twistcan build a case against me. They did not want this information when they were trying to APPROVE me. Why would they ask for it now that they are trying to deny me?

I'm trying to educate myself. What do attorneys do in a situation like this?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Crim.Law.Expert replied 1 year ago.

Crim. Lawyer ONLY :

Dan, I thank you for describing what happened to you. You posted at about 2:00 a.m., and I started responding at about 5:00 a.m. You wrote an extensive description, and divided your answers into approximately 7 mini-questions (thank you!) - and I had written about 8 concerns I had since we've been discussing this matter for a number of weeks, and have communicated at least 20 times. Much of what I wrote was related to prior things we had discussed.

Crim. Lawyer ONLY :

Essentially, I asked if I could do some research, I reviewed many of our prior conversations, and then somehow I was cut off, and lost everything that was written. When I tried to answer again, another expert I believe logged on to your question, but them after seeing that it was addressed to me - logged back off.

Crim. Lawyer ONLY :

But the botXXXXX XXXXXne - is that I lost about 20 minutes of writing to you - if was 5 a.m. when I started reading and writing - is it okay if I post this as a Q&A so that doesn't happen to me? I really want to see if I can retrieve what I had already written. Also - you wrote at 2 something this morning, and I responded at 5 something this morning. Can I take a few hours to research.

Crim. Lawyer ONLY :

Much of it has to do with the actions that have already ocurred in this matter w/ the prior people who you have dealt with from WI and the various departments.

Crim. Lawyer ONLY :

I am really hoping that everything I posted wasn't deleted when the other expert opened the question. However, is it okay if I respond in a couple of hours? It

Crim. Lawyer ONLY :

It's 8:00 here . . . that means 7:00 for you I think . . .

Crim. Lawyer ONLY :

I want to do a little research, but am hoping I didn't lose all of the discussion I previously posted. If I have to, I will, since it discusses pertinent matters that you asked in your very first question two weeks ago. So, is it okay if I take a few hours and do a little research?

Crim. Lawyer ONLY :

As always,

Crim. Lawyer ONLY :

P.

Expert:  Crim.Law.Expert replied 1 year ago.

Dan,

 

I just changed to Q&A mode so I won't lose everything I had previously written. If you get another "please rate me" YOU HAVE NOT GOTTEN MY ANSWER - THAT WAS WHAT I WROTE AFTER I LOST YOU AS WELL AS MY QUESTIONS. So- of course I hope you realize that the above WAS NOT AN ANSWER - but rather my normal request for a couple of hours. Okay with you? I have to post this, or the system will ask you to rate me right now, and tell you that our conversation has ended - when in reality it just started . . .

 

Talk to you soon,

Paul.

Customer: replied 1 year ago.

That is fine, thank you! I have the same problem. I actually had to rewrite the question 3 times because JA timed out on me too. (I started putting them in word documents and then copying and pasting. It seems like if it's idle to long it won't take when I hit submit.)


 


Another thing occurred to me was that the claims specialist asked me for info from 2008 and 2009 while my injuries were in 2010. So to me they are looking to see if it happened some other way. (It didn't.) But again, that really has nothing to do with the hearing like the specialist says it did.

Expert:  Crim.Law.Expert replied 1 year ago.

Thanks. And based on your answer (you have had the same problem - and while I said I just needed a couple of hours - I didn't get them because there MUST be server problems because I just spent the last two hours clearing up another issue. I will try to figure this problem out and report it to JA.

I want to ensure that I answer my customers as quickly and accurately as possible,

HOWEVER, with situations like yours, where we have had over 30 interactions, and at times we post answers in the middle of the night or the middle of the next day, and there have been multiple follow-ups, or we have discussed an issue over a number of days, our questions have been re-listed to other experts, who generally read what we've discussed and they don't opt in. Their intent is only to ensure you are being taken care of.

But now that I've spent two hours figuring out that other problem, can I still ask for a quick couple of hours. The response I posted had partial chat thoughts about every question you asked - and I lost it all.

I am thankful you request me, and am saddened that I lost my last post because it reiterated our interactions from the beginning - and since we were in chat, I made some comments that I wanted you to respond to. I want to have a little bit to re-create them, since they involve your issue from the beginning.

I'm leaving this as a Need Info - and given that we've been going back and forth since you started at 2:00 a.m. and it's 9:00 now - I am hoping that your request for me doesn't time out if I ask you for just a couple of hours.

I still look forward to your questions every day - and even when you are done with questions, you'd better let me know how this turns out - or I'll have to find a way to request to ask you a question . . .

Thanks,

P.

Customer: replied 1 year ago.

I will certainly let you know how this turns out! I will be more than happy to. It's an uphill battle for me and I appreciate your support and knowledge.


 


It's very challenging playing the role of your own doctor (when they can't tell you what's wrong), Social Security advocate, CVC lawyer, and having less physical and mental resources to do it with. It's like burning a candle at both ends sometimes, but progress is always a relief. I will be more than happy to let you know. I've learned a lot about the law. Hopefully I don't ever need it again though! Laughing


 


Certainly, please take your time!


 

Expert:  Crim.Law.Expert replied 1 year ago.

Dan,

 

You asked me this in the middle of the night - when we were exchanging chats.

 

Our other question looks like it could time out - even though we've gone back and forth about 8 times.

 

I'm logging off of this one, even though it is the one that I an anxious to answer (above) - but I don't want our other conversation could time out because we've spoken once every day for six days due to our different time schedules.

 

Of course, your current follow-ups on that question is related to this very question - and I haven't answer a single question of yours without thinking about the prior questions you've asked regarding this situation.

 

So, if that were to time out - even though we spoke about that question daily due to our time differences, there would be no reason I couldn't finish that here - it is really related to the same question.

 

So - I'll grab your other question, and give the response to this one that was lost in the night. I was unable to retrieve what I wrote online.

 

And yes, you must tell me the results, no matter how I have to find you :)

 

As our promise is - I intend for all of my answers to be "professional, accurate, and compassionate."

 

After some time, while I've been informal with you in chat sessions, not only to keep you calm, but also because based on the number of conversations that we've had, I believe that sometime informal words used in responses are, indeed professional. Or, that perhaps our chats can include an informal note since you and I have BOTH been frutstrated by our attempts to figure this out when the research I've done contradicts what you've been told. Certainly an expert CAN become frustrated when they provide answers to a customer and the law contradicts what the brochures the customer is getting from WI, that the expert has read online (the actual brochures), and the research.

 

With that said, while I know your age, I can't reveal mine. But I have PLENTY of years left as an attorney.

 

However, with the delays and appeals you've gone through, this better get done before I TIME OUT!!!

 

Naw, I'll be here for the long run. I'll get back to you on this after I go back to your other question and ensure that doesn't time out.

 

P.

Customer: replied 1 year ago.

Informal and formal is good with me. Light is good. Looking forward to hearing on this one. Thanks!

Expert:  Crim.Law.Expert replied 1 year ago.

Henry,

First, regarding the fact that the claims representative contacting you regarding this, and the fact that they are they are contacting you - when all disclosure and discovery was supposed to be requested or at least discussed at the pre-hearing is odd.

Remember back clearly that the Judge asked the AG repeatedly as if she were shocked that the only issue that remained was whether a crime occurred, and that the amount of benefits would be determined after the hearing if there was a determination that a crime occurred.

One might email victim services back, specifically advising them that at the pre-hearing that the amount of compensation would only be discussed after it was proven you were the victim of a crime. Indicate that damages aren't being discussed at the hearing, and ask politely, if they still require that evidence, and if so, for what purpose.

You might mention that given that the parties stipulated at the pre-hearing that compensation wouldn't be brought up during the hearing, that you can no now longer prepare for the hearing - since you were advised, and relied on the pre-hearing ruling that damages would not be discussed. Seek a continuance based on this. Remember, you must share your list of who you are calling as a witness with the other side.

One might ask for a second pre-hearing to clarify this, given that specifically you were told that information regarding damages is being requested, and this is contrary to what was discussed at the pre-hearing.

Be very, very polite, and ask for clarification from all parties regarding that agreement. Again, the rules indicate you are allowed speak to the hearing officer alone (so long as you discuss procedural matters and not the facts that are in issue), and the AG as well. Have you tried to settle this case?

So, I would email all parties requesting clarification, since the representatives of the AG are seeking information from you that is not at issue in the hearing.

Remember - be polite, and ask as if you wanted to ensure that Victim Services did not have a misunderstanding of what the rulings were at the pre-hearing.

Another option for you to consider, is that you will eventually have to cough up everything to prove damages, and if that's the case, if your medical records don't hurt your case, and actually help your case, there would be no reason not to just reveal them.

However, think of this - if they want to use these records to prove (or show lack of proof a crime was committed) that you never saw a doctor, never sought treatment, etc. - it would be admissible if you are now claiming that the injuries were so serious that you are disabled - yet never sought treatment of any sort. That could be what they are really looking for. You can't play games and hide treatment records given that if it is determined you are misleading them . . . think what that does to your claim.

It would be normal, if a person has debilitating injuries to see a doctor. If you didn't and all your records were released, they could indeed use that against you. The crime you are being compensated for is "battery" - and indeed medical records could reveal what injuries you suffered.

BUT - right now you might also think about the statute indicating that the parties could settle the matter. If you have good proof of injuries, this might be a good time to attempt to settle the issue. The rules say the parties can settle. It might be worth a try.

Finally, normally one would write a letter regarding this request. If they rely on emails to makes these requests, I don't believe that it is wrong for you to respond by email - and then there is a chain of emails discussing the topic, already in the order they took place. Normally one would draft a formal letter.

Since they contacted you that way - I believe email is fine.

_________________


It is an odd situation, as we have discussed, the AG - right on their web-page indicates that the AG is attempting to fulfill their moral obligation - not just their legal obligation to compensate victims of crime. If you lost that chat of ours in which we discussed this, I will find it for you.

Indeed you are correct, based on the rules that we discussed long ago - my answer regarding this question is actually exactly what you mentioned in your question:

YOU SAID: It is the AG that should have been asking for records, providing discover, and resolving all issues that could be resoled during the pre-hearing.

That is the law, and we have discussed that. That issue as well could be discussed in a letter if indeed they are now changing their goal at the hearing and not only trying to prove that you weren't victim of a crime - but are now adding additional issues.

One might ask for a supplemental pre-conference to clarify these issues. Continuances are granted, and they are asking for information that the AG indicated was not at issue in the pre-hearing.

As we discussed earlier when I provided the statute, either party can contact the hearing officer in advance of the hearing in Order to request a continuance or discuss procedural matters anyway.

When is the hearing date set? No late requests should be made for a second pre-hearing to settle these issues, since the government has now asked for additional records that aren't relevant (of course by now you realize that the word "relevant" means that the records they want "don't matter" and aren't related to what the AG declared was the ONLY ISSUE that was not resolved.

Copy all parties.

________________


Generally, hospital records and medical records of your injuries could be used to show that there was actually an assault that took place - and that you aren't making this out of the blue. However, given that they asked specifically when

______________


I answered Question 4 in my answer to Question 3 - except for the following.


If they want to use the information to prove you weren't the victim of a crime (let's pretend that in your original application that you said you were viciously beaten over the head until blood was pouring all over (exacerbation to use as an example) - but you went to the doctor and the only thing that was treated was a sprained finger from when you fell.

In that case, the medical records are fair game.


Arguably, mental health records are fair game if you have a mental condition that relates to your ability to perceive, and recall events.

If you give you medical records, you can't pick and choose - it's all or nothing. If you have a second pre-hearing, and they indicate that they do want to litigate damages, you will have to turn them over. If you choose and hide records, it will destroy your case, and lessen your credibility, and even result in the hearing officer ruling against you based on your refusal to provide all the request records.

We've talked about that before, and the law is our first discussion.

________________

You just answered the most important question yourself - if you tried to provide medical records when they were evaluating your claim, and they never asked for them, and an incredibly good argument about why this appeal must be granted, and indeed it is a manifest injustice.

________________

Regarding your 4th question - that's why many attorneys would send a letter or email in such a case to ALL PARTIES, REMINDING THEM ABOUT THE ISSUES THAT WERE AGREED UPON DURING THE PRE-HEARING.

Regarding this, many would draft a letter and ensure that copies are sent to all parties, and ensure the original is sent to the Court. Since this involves a more serious issue, I would actually draft a formal letter regarding your concerns including the email record.

________________

Remember, all these rules indicate that there should be open communication among all parties, but none of this was discussed during the pre-hearing. Ask the question regarding whether the AG is attempting to prove more than what she indicated the only issue was going to be at the pre-hearing.

One might, in writing, ask for a supplemental pre-hearing to address these issues.


But remember above all - you have to provide the other side with the evidence and witnesses you are going to use and call at the pre-hearing, so if you didn't do that, you must do that now.

Please reply w/ follow-up questions that I have created in this answer.

P.

Customer: replied 1 year ago.

Hi, you mentioned some questions I outlined below and I clarified some things too:

  • I have access to all the questions I asked an expert. (That is a nice thing about JA.)
  • The person at the prehearing was a paralegal.
  • Clarification: The judge was SHOCKED that the paralegal would not allow me to narrow it down that hitting someone on the head or having their neck bent backwards is battery when I wanted to simply provide evidence that it occurred. She was surpised at that, but not the other things. There is not 1 issues at the hearing, but 3: a compensable crime occurred, the 5 day rule of reporting to police when it’s reasonable,and the one year application.
  • Yes, my deadline for evidence and witnesses is 2 weeks before the hearing. Hearing is just after the middle of March (not using exact dates due to public forum).
  • No, I have not tried to settle the matter. I have ruled that out. I agree with you that it is normally best to try to settle disagreements as civilly as possible. However, I don’t trust the office enough at this point to negotiate in good faith. And throughout this ordeal being civil has made things worse for me. I told these people to not touch me and went about my business each time and things got worse.
  • Also, I actually see an additional BENEFITS to not settling-and proceeding with the hearing, because I will have testimony on record I can turn over to DA before the statute of limitations expire. The police never interviewed witnesses because they chose not to seeing it was close to 2 years ago. Also, the hearing will give me some partial closure.
    1. When I read the criminal files on these people it makes it clear to me that they will do it to someone else.
    2. It is cowardly of them to harass a girl. It is cowardly to strike me from behind when I'm defenseless.
    3. Of course, that creates anxiety for me NOW so I can ensure that testimony and evidence can be preserved for that, but I'll deal with those later because I have enough on my plate now.

 

QUESTIONS:

  1. I WANT to include some of my medical records because my case is much stronger on the 5 day rule and 1 year application statute with them. Just to be clear, I can’t include those medical records in evidence at my hearing unless I give them access to all of my medical records now. Is that correct?
  2. This may seem like a silly question, but when I do send the letter to the judge and AAG with the original going to the courthouse, does that mean say Dear [name of judge] even though my questions are for the AAG? Do I just put a watermark of "copy" on the one for the AAG?
  3. Thank you for your patience. I hope I don’t irritate you if I don’t absorb something right away. I’d like to post some of these “branch-off” questions in the form of a new question requesting you specifically so you get credit for them. Is that ok with you? After all they are new questions (although related), and it’s only fair that you are able to receive credit for them. I’m sure I’m going to have many more in the next couple months as well. right now I have a number of questions about evidence I'd like to ask.

Expert:  Crim.Law.Expert replied 1 year ago.
Dan - I had a family emergency and can post tonight - are you okay with that? We've spent about 80 responses back and further, and I don't want to opt out. I ALSON DON'T WANT YOU TO WAIT . . .
Customer: replied 1 year ago.

Family first! I can wait til tonight. That is fine. Rest easy and take care of what you need to.


 


I hope all goes well for you.

Expert:  Crim.Law.Expert replied 1 year ago.

You aren't irritating me in anyway. You asked a valid question, and because of what it was, it branched off into many different areas. Absolutely no reason to apologize. Also - I've brought up things I felt you should know, if you've asked a question and I think you need to know more - or didn't ask EVERYTHING you should know about your question.

We're in this together - it's not irritating - I can't give specific advice - but the number of discrepancies in what have happened to you throughout this, as well as with the law, the AAG, etc - I love answering your questions.

It's not just my job - but I still look forward to it - I'm enjoying our conversation almost to the point I wish I could be there and watch. Obviously . . .

The good thing is that at least even if justice is not done - YOU WILL BE PREPARED - and that's the only way to increase the likelihood that justice WILL BE DONE.

I'm with you for the long haul.

So - I typed and am pasting - so hopefully don't get cut off:

Okay - the rules are hearsay is allowable - and there is discussion about archaic common law we discussed. The real issue, is that when any law like exceptions to hearsay are created by Statute or Government, or even if the statute discusses "those in effect at the common law" - lawyers who don't like those rules or how that they are applied at their trials appeals after they lose.



Those appellate courts (about three steps above the power of hearing court you are going to be in) - render what are called decisions deciding whether the law or rule is, based on some reasons, unconstitutional based on a number of Amendments to the United States Constitution or your WI Constitution.



Just for example (I know - always I have examples) - the biggest hearsay objection that a good trail lawyer might use when a witness is going to use hearsay against them, (in a major case - and it's contentious - (would object not only to "hearsay" but also object and say "Confrontation Clause" - which is the Sixth Amendment to the US Constitution. In other words, they are complaining not only that the state law if illegal, but that the federal law "to face your accusers" being violated - someone who is not in court is about to say something bad about you - and the theory is you get to face them in person. Of course as you said many times - there are exceptions, and I'm telling you much more than you really need - or that your hearing officer would allow you to argue.



So - the botXXXXX XXXXXne is that everything is probably going to be allowed and this is how a non-lawyer should object. (A lawyer in a homicide trial would make a long, lengthy objection - citing every single problem and reason that the statement can't come in - you don't, or won't get that chance.)



Forget the Rules - but you can think of this to apply the "common law" - either to try to get hearsay in, or keep it out. Overall, every objection relating to anything having to do with hearsay in your case will involve whether it is reliable - and in most cases the hearing officer in a case like this will often (to your benefit or detriment) avoid the issue and say something like "I'll allow it for what it's worth). - meaning - he heard it and he'll give it whatever weight he thinks it deserves.



I did not include everything in the world - just things you might think about or come across.



You already wrote you understood hearsay - but for what you might face: it's

a) a statement (or writing, document, or a number of other things - that shouldn't apply to you

b) made out of court (so you weren't there to hear it as well)

c ) that someone wants to use to prove a point (it's relevant - I've talked to you about that and expect you to publish a book with every answer. Just joking - I like this.)

Those things don't normally come it at a hearing. But you've got law that says rules of evidence don't apply - unless they involved the archaic common law - which really isn't going to apply to you - because of the reasons I said above.



So - if you do end up arguing - and there are objections - A NON-LAWYER GUIDE - with cut and paste of the final statement -



I'm taking out what is "non-hearsay" versus "exception to the hearsay rules" - based on the statutes you gave me.



Present Sense Impression

- this is supposed to be reliable since the person who said it was seeing it as it happened, so they didn't have time to make up a lie. You can use that to your advantage, or have it be used against you to your detriment. "Your Honor this is reliable hearsay and admissible in the common law." (Or vice versa)



Excited Utterance - person saw something that was so exciting or shocking that again - they didn't have time to make it up. Again - "Your Honor this is reliable hearsay and admissible in the common law." (Or vice versa)



Then Existing Mental, Emotional, or Physical Condition

- someone is extremely upset, sick in the hospital, emotionally upset to the point that what comes out of their mouth is probably true Again - "Your Honor this is reliable hearsay and admissible in the common law." (Or vice versa)





Statements for Purposes of Medical Diagnosis or Treatment THIS COULD APPLY TO YOU - IF THERE ARE MEDICAL RECORDS - WE ASSUME IF SOMEONE IS GETTING HELP FROM A DOCTOR THAT THEY ARE TELLING THE DOCTOR THE TRUTH - BECAUSE THEY NEED THE HELP AND WOULDN'T LIE - Again - "Your Honor this is reliable hearsay and admissible in the common law." (Or vice versa)



Recorded Recollection - Something someone heard in the past, but can no longer remember it - so they can have their memory "refreshed" by seeing what they previously wrote - which supposedly . . . (we've talked about this) would make it reliable. Again - "Your Honor this is reliable hearsay and admissible in the common law." (Or vice versa)



Records of Regularly Conducted Activity - hearsay also includes writings - not just what comes from someone's mouth. If there is a log that is used to collect and record information - it is seen to be reliable. Again - "Your Honor this is reliable hearsay and admissible in the common law." (Or vice versa)



Public Records and Reports

- supposed to be reliable . . . we can debate about that !!!!! "Your Honor this is reliable hearsay and admissible in the common law." (Or vice versa)



Records of Vital Statistics

- supposed to be reliable - "Your Honor this is reliable hearsay and admissible in the common law." (Or vice versa)



I just can't think of any other hearsay issues that you could face. The botXXXXX XXXXXne is this will be informal, and I expect everyone to use hearsay and for no one to object. If you get that nasty AAG you were talking about - you can remember these and use them - both for and against you.



I tried not to give you too much. Lawyers read 100s of cases and hundreds of pages of law about hearsay - and I just want to try to give you what you could need.



Again - this will be low key. Based on the odd contradictions you've faced from the beginning, and based on the fact that this is an administrative hearing, you are really facing the luck of the draw depending on who the judge is and who the AAG is.



I would again try to settle the matter . . . you have to reveal your info to the other side anyway . . .

Expert:  Crim.Law.Expert replied 1 year ago.

And I forgot to say, (since this was a cut and paste - )

As always,

P.

Sent this as an answer so you can ask follow-ups and not time out. Again - you know the rules. You don't need to rate me now, and we are not done. I expect a follow-up from you . . . and I'll be there with you.

P.

Expert:  Crim.Law.Expert replied 1 year ago.
Henry - we timed out on every question except this one - so all answers are related. Feel free to just ask everything.

P.
Customer: replied 1 year ago.

I got copies of the previous cases with the DOJ that pertained to the one year application travesty of justice rule. There were only two. One went way back 10 years. The other was from a couple years ago by the same AAG. Both times the victim lost.


 


In the most recent case the judge ruled that "the department followed a clear written policy in considering the application. The Department has not abused its discretion and its decision should be affirmed". It also said, "The Dept. has developed a written policy setting forth circumstances under which it will waive the one-year filing requirement."


 


However, it was also taken into account that the victim was repeatedly advised to file a timely application even if they would not be eligible.


 


This is different from my case. No one told me to apply. However, the part about the clear written policy bothers me.


 


It says in the statutes that the division has the authority to administer the rules. "promulgated to 949.02". Then again, I thought that was what Chapter JUS 11 was all about. I'm afraid they have some policy within the department that does not show up in the statutes. I have no way of reading this policy. Or do I somehow? This will probably come up in my case.


 


Any thoughts on how I get this policy? (This is a government department I thought that's all public.) How much does precedent matter regarding this? Any thoughts on arguing against it? Any possible objections to it not being admitted into evidence?


 


 

Expert:  Crim.Law.Expert replied 1 year ago.

I'm going to do some online research and see what I can find. I'm sending this as a need info so you aren't asked to rate me and aren't told we are done. Back in about an hour.

P.

Customer: replied 1 year ago.

Any thoughts?

Customer: replied 1 year ago.

Hi,


 


I see this is closed out somehow. Will you update me please?

Expert:  Crim.Law.Expert replied 1 year ago.

Okay - I'm about to post - but am sending this an a NEED INFO to let me have the time to post to your last update - I'm hoping this will work. Also - I am sending another request for a follow-up - the soonest I can do that is schedule it for tomorrow - but like I said - either of these should keep us together on this question.

P.

Expert:  Crim.Law.Expert replied 1 year ago.
Actually - this question appears 2X on my server - and like we had above - I have an answer that didn't post. I'm logging onto your other question that should still be open.
Expert:  Crim.Law.Expert replied 1 year ago.

d,

FYI - First I did a search (in my opinion the best legal search service available to attorneys) that would have provided me what are called "Published Opinions" regarding any state appellate courts or federal district courts (these are the lowest federal courts in your federal district), as well as any federal appellate court.)

 

With the exception of the federal district court, these are courts that handle appeals of lower court decisions, and create what is called "precedent" regarding the issues you are facing. In your situation, it is rare to get access to this type of court. However, these courts, when they render opinions about how a statute must be interpreted, IF THEY ARE PUBLISHED, trump rules in your court, if they define how the statutes must be interpreted or applied. You could file a pleading in advance using quotes from these cases, if indeed they helped you. Had I found any, they are binding law that would be applicable to your situation. I skimmed over 80 cases which would be specifically relevant to your situation.

 

Based on my research search ability, I also checked for what are "unpublished decisions" - and would not create "precedent" - but I could read how other courts decided issues relating to this statute. This would just give me a reading of the arguments made in other appellate courts, even though you could not use them to argue your case.

 

However, if I found "unpublished cases" that applied to your situations, many lawyers search and use "unpublished cases" just to see how prior judges have ruled, and the reasoning that they used. This just provides laywers, and could possibly provide you, with ideas regarding arguments to make.

 

The reasons I did these exact searches are very complex, and I'm not going to take the time right now to explain why I did them first, but will indeed explain later, just so you know why I am researching this like I am.

As you probably, know, I am pasting this just FYI - The official and current reading of 949.02.

 

You are correct, these statutes do send you in circles, just as we discussed when we spoke about the original pamphlet (Victim's Assistance) which was more complex and confusing than the actual copies of the exact statutes I sent you.

 

I will post again - I want to do a little more research. Just wanted to update you and make sure you knew that I didn't forget you.

P.

 

 

I'm going offline while I do the research on this. Indeed, even though we have now probably had about 80 chats back and forth regarding three questions, you might be the first person to challenge this rule. My research ability should allow me to find almost anything, including the opinions you read.. I'm working on it. Sending as a "Need Info" so we don't get cut off.

 

 

 

 

 

W.S.A. 949.02949.02. AdministrationCurrentnessThe department shall administer this subchapter. The department shall appoint a program director to assist in administering this subchapter. The department shall promulgate rules for the implementation and operation of this subchapter. The rules shall include procedures to ensure that any limitation of an award is calculated in a fair and equitable manner.

Credits

<>W. S. A. 949.02, WI ST 949.02Current through 2011 Act 286, published April 26, 2012

Expert:  Crim.Law.Expert replied 1 year ago.

I'm calling these mini-answers - since I am specifically cutting things you wrote to me, and pasting my answers or comments in the order you wrote. Your Reply included a couple of mini-questions, or comments, which made me want to make comments.

YOU WROTE:



I got copies of the previous cases with the DOJ that pertained to the one year application travesty of justice rule. There were only two, but they were ten years old.



MY COMMENT:



You should affirmatively raise this. Pursuant to the Statutes I have previously provided, and the pamphlet that you and I both have copies of at this point, think about the entire AAG Victim's Rights Manual - and it included not only the law, but the comments from WI's elected AG that his department believes that they have not only a "legal obligation" but a "MORAL OBLIGATION." Think of this comment below when you mention "a travesty of justice."



________________________________________



YOU WROTE:



However, it was also taken into account that the victim was repeatedly advised to file a timely application even if they would not be eligible.


This is different from my case. No one told me to apply.



MY COMMENT:



Exactly

. You've done lots of research regarding this on your own - but now you are starting to also impress me with your reasoning abilities. After 80 exchanges, I am already impressed with your research. Indeed, you may come to this hearing with more recent knowledge about the law than the AAG or the Judge while in the hearing. I say that based only due to the fact that I really doubt that an AAG or Judge, in what they think is a "mere administrative hearing," have read the only two decisions that have been rendered with facts based on delay.



The most important argument regarding the delay, if those parties lost due to the delay, and if that's the only reason that those parties lost, your best remedy might be to actually alert the court and the AAG regarding these decisions - and rather than wait for them to tell you that you waited too long - to affirmatively show in prior cases why parties were denied benefits - and specifically why your situation is different.



This is a judgment call. Some might think that this is alerting the AAG and Judge to the delay issue. However, clearly (you asked me what to do in a closing argument), if these prior decisions were denied ONLY because the person was late - one might bring them to the attention of the Court in your closing argument, note that these two parties were denied relief ONLY BECAUSE THEY WERE LATE - and other than that we are facing the same issues. The reason you satisfy the "manifest injustice" prong is for the VERY REASON that is different from these cases. I'm going to ramble, and say this in a different way- rambling is not normally a proper and concise type of answer.



However, given the way you think about my answers, I want to just say this another way:



One might argue that since there was a lack of "manifest justice" in those cases, and that was the only reason they were denied, you might argue that in this case you have shown "manifest injustice, given you were never advised to apply. Given the victim's assistance pamphlet (which states the law and the duty of the "Victim's Assistance Department" - why weren't you advised, given your ongoing contact with police and the VAD originally?



That's what is a manifest injustice: and you have proven that it applies to you.



________________________



I have found over 30 definitions of "manifest injustice" in different areas of WI law (for example - I found the definition under the "Securities" Section of the law, or definitions under the "Family Law" statutes. They wouldn't apply to you - and am looking for a definition specifically pertaining to victims.



I found one published case which is entirely different than yours, although it led me to the WI Constitution and specifically to the rights of Crime Victims:



This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law: timely disposition of the case; the opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; reasonable protection from the accused throughout the criminal justice process; notification of court proceedings; the opportunity to confer with the prosecution; the opportunity to make a statement to the court at disposition; restitution; compensation; and information about the outcome of the case and the release of the accused. The legislature shall provide remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law.



NOTICE THE WORD RESTITUTION - WHICH IS ESSENTIALLY THE SAME AS WHAT YOU ARE SEEKING - ONE MIGHT ARGUE THIS AS WELL.




______________________________




Others have filed appeals from rulings of the Crime Victims Board - when you were told that this was your last chance to appeal this action. I am not stating that this applies to you. The case I found this in is a murder case with facts entirely different than yours.



I am getting way off track your this question, but it involves something you mentioned in one of the previous times you requested me. You mentioned that the Clerk told you that this was your last chance to appeal this matter. How hard is it for you to go back to the Court and ask specifically where she got that information.



I have done endless research - and have found that victims have a right to appeal decisions of the Crime Victim's Board decisions - but there are appeals from administrative hearings that have different scenarios than yours. Specifically, one is an appeal from a murder trial - and the statute gave the WI Supreme Court specific authority to hear such an appeal. I have found nothing that grants you the right to pursue and appeal, after this appeal . . .



Are you able go back and ask the Clerk, or even better potentially a different Clerk that might give you information that helps you . . . specifically where she got that information?



You mentioned this three questions ago (I mean when you requested me in a different question - not in this question, which was about two weeks ago), but didn't ask the question. So I just want to provide my thoughts regarding that - even though we are in an entirely different question. I'm still with you:



_______



I have given you a lot of information here - but I'm going to try to wrap up some thoughts you should consider when it comes to ALL THREE of the conversations we have had:



1. Failure to grant relief in your situation, based on the statutes and definition (it's in the comments to the Victim Compensation Laws) and in your pamphlet would create a manifest injustice. This is a manifest injustice based on the decisions of the prior cases - the Victims had an absolute right to be told of their ability to seek compensation.



2. When deciding whether this is a manifest injustice, we should consider the WI Constitution itself, which specifically requires this Court to abide by Article I, Section 9m of the Wisconsin Constitution, which is the Victim's Rights Provisions, (and pick out the portions that apply to you);



3. Further, we must also consider the intent of the statute, as defined by the statutes (we listed them), and clarified for you (remember you are a pro se - that pamphlet was designed SPECIFICALLY to help people without lawyers - ) by our own (meaning WI) AAG in the pamphlet describing this as a moral obligation to provide compensation. Yes, a moral obligation.



4. You have proven the injuries, and the AAG seeks to preclude you from a remedy based on delay, but the delay was indeed caused by the failure of either the police when they refused to investigate, the Victim's Rights Advocates when they failed to advise you of these rights, or both. After all, it is indeed the Constitution that provides this, and the statutes that require this.



5. You said that the AAG was nasty. If she is overly nasty, many would make a more gentle argument (showing your obvious demeanor that I've determined you have in all of our discussions) - that it is ironic that the AAG claims this is a moral duty, yet throughout this process, you have dealt with (list everyone), and the only person who is arguing against granting this compensation is the very person who serves under that AAG - who publishes the pamphlet discussion how this involves moral rights, and he personally takes it as his responsibility to ensure this is enforced. (I"m quoting our discussions from long ago - this is a paraphrase).



The last section would be really sarcastic if you were nasty, mean and aggressive.



You have asked me repeatedly what a lawyer would do in such a situation - regarding many questions you have had.



I cannot say what "lawyers" would do, nor give advice specifically what I would do.



However, based on published research conducted by social psychologists regarding "interpersonal influence" - which means the ability to change the actions of another - the research suggests that in such a situation, that rather than argue like a maniac - you might be more likely to present this type of argument to the Hearing Officer in a less aggressive way. The AAG is being mean.



Many would counter that not by being nasty and aggressive - and the research actually would suggest that you are more likely to receive the result you want by countering an angry argument with an argument that is essentially, you are just seeking what is fair, list your arguments, and end by saying you are placing the decision in the Hearing Officer's hands, and that you are placing your trust in her to provide a fair result.



THIS SOUNDS LIKE LAWYER LANGUAGE - BUT YOU ASKED ME . . .



Other lawyers would actually wait until the entire hearing was done before deciding how to argue in closing. However, I thought I might add this - since based on your prior questions - you might find yourself in this position.



In the past you told me:



1. The AAG was nasty;



2. The Hearing Officer was surprised that the AAG was only seeking to dispute your claim of whether a crime occurred, and the AAG was nasty when she responded.



I can't give advice. But many lawyers would consider this type of argument. If the judge seems angry at the AAG (like she seemed at the pre-hearing, a calm, organized argument AND BEHAVIOR might provide the best results.



The prior paragraph is not advice, since I don't' know what will happen. But, it is indeed how many attorneys might handle the situation.



I think I answered your follow-up; and I hope I have answered more than what you asked. As always, every time you ask me something, I find something else I want to tell you, even though you didn't ask it. If I felt I had to tell you more than you asked, because you would need it to understand my answer, I provided it.



Again - as you receive this - if this answer makes you think of other things you wonder about - ask away.



I will always be here.



Paul. -ask for follow-up if you need.

Expert:  Crim.Law.Expert replied 1 year ago.

This said time-out. I have scheduled a follow-up, and hopefully you will be able to ask at least one more question after this if you need to.

You may always feel free to request me once more - the questions and answers we've gone through in the past three questions total well over 100 exchanges.

I have enjoyed answering your questions, but also impressed with your reasoning and the follow-up questions you have answered.

I take my opportunity w/ JA seriously. I attempt to answer every question to the best of my ability - as I have with you. However, based on all of the contradictions in WI law and the information you've received, I indeed have looked forward every day to seeing what you had thought of the night before or after I answered a previous question.

I know you will be fine. However, answering your questions almost came to the point where I was not only answering your questions, but based on your reasoning and comments, and when there were no legal answers I could provide but just give you examples of how others might respond and various ways you could choose to respond, given I will not be there and am not, nor will not get to be your "attorney," it has almost become as if we were working as a team.

My duty is to answer questions, but I just again wanted to say that I have greatly enjoyed our exchanges. The most important thing I try to do is provide the finest answers.

However, I enjoy answering questions at JA, hope I help others, and along the way, I happen to enjoy answering questions for JA.

But as far as enjoyment, I just have to say that after all we have discussed, I have to rate you an Excellent for the enjoyment you have provided me in the opportunity to answer your questions, as well as ponder the thoughts that you have shared with me, and vice versa, when really there I was unable to give you a "perfect answer" - but really just hunches on what some might choose to do in a particular situation.

I may not be your attorney, but I have greatly enjoyed being your Expert at JA.

I am setting a follow-up once more - hopefully so you can ask me anything further that my comments may bring to your mind..

Take care,

Paul.

Expert:  Crim.Law.Expert replied 1 year ago.

I asked for one follow-up, but can't access one now since this has timed out. So, I'm sending a "Need Info" - so hopefully this will allow you to keep this open. My memory is that I scheduled a follow-up in the past. If I did, answer that follow-up and see if we are re-connected. I'm here for you as long as you need.

Paul.

Expert:  Crim.Law.Expert replied 1 year ago.

Henry,

(you wanted me to use a different name to protect your identity, and I've forgotten all the names we've used.

DO TRY to find a prior "follow-up" email that was sent to you through JA from me a few days ago - and try to get in touch with me that way, if you can't reach me this way. Also look for a "follow-up" if you received one recently on a different question we had. Just give it a shot, in case my "Need Info" didn't work.

P.

P.

P.

Expert:  Crim.Law.Expert replied 1 year ago.

Henry - I was reviewing this chat with the other chat we had re a different question.

But just in case you are working so hard on this - I want to make sure you don't miss deadlines.

As I read what you wrote some time ago -

YOU WROTE:

Yes, my deadline for evidence and witnesses is 2 weeks before the hearing. Hearing is just after the middle of March (not using exact dates due to public forum).

I wasn't concerned about the dates, since there was plenty of time.

But as I was re-reading our conversation, as time has passed, I THOUGHT I SHOULD WARN YOU ABOU THE FACT THAT BASED ON WHAT YOUR WROTE, THAT YOUR DEADLINE TO DISCLOSE YOUR WITNESSES AND EVIDENCE DISCLOSURE WOULD BE NEAR THE END OF THIS MONTH - YOU ALSO NEED TO REMEMBER THIS IS A SHORT MONTH.

I was just afraid that you have been so intense on preparing for this, that you might actually miss the simple thing - that deadline. Make sure you calendar it and don't miss it.

Many times I see people who are pro se, or even the finest lawyers be so obsessed and focused on the complex things, that they forget the simple things - Like a deadline . . .

Just wanted to make sure you calendar that so you don't miss that deadline. If you don't disclose it on time it could be precluded, meaning you couldn't present it at the hearing.

So, be sure to take the date of your hearing, and go back a couple of days MORE than two weeks and make sure you don't miss that deadline! There is no reason for you not to provide that notice now if you have figured it out, and then you can't miss the deadline.

If you do this, you will be able to provide a list of additional witnesses or evidence up to two weeks before your hearing.

I read that and it jumped out at me, and even scared me for you - given that indeed, many pro pers and lawyers alike have done things just like that.

It would horrible if you did all this work and prep, and then couldn't present your witnesses and evidence. That would be the ultimate tragedy for someone who just wants a fair hearing.

P.

Customer: replied 1 year ago.

Thank you. I actually forgot that this is for evidence too!

Expert:  Crim.Law.Expert replied 1 year ago.

We stayed connected. Anything else you can think of?

Paul.

Customer: replied 1 year ago.

Yes, where do I get a copy of these internal policies that they speak of in the prior case?


 


If I wait until evidence is exchanged I will have only 2 weeks to review it before the hearing. I'd like more than that without asking for a continuance.

Expert:  Crim.Law.Expert replied 1 year ago.

Henry,

I will try to get copies of these "Internal Policies" using my online research sources right now.

Also, WI also has a Freedom of Information Act - this is a law that, in quick summary, allows you to right to request information such as what you are looking for. You have the right to demand written paper copies of them, that would take time.

However, there is a WI web-page that indeed may provide this information - and I'm hitting that right now. The web-page for WI and the Freedom of Information Act page looks very good - but just like the original "Victim's Assistance" brochure we looked at before, it didn't actually reveal much. However, - I am going there first.

The web-page is www.wisfoic.org - and there is a specific section which allows one to research "Attorney General Opinions and Letters," as well as many other WI sources.

I'm looking there first right now - and will then go back online to my normal research sources and look for the "Internal Policies" you are looking for.

P

While I'm rushing since time is also close for us, I still DO have a follow-up scheduled for today, which should allow you to contact me if we time out and I can't post what I am able to find out right now. Further, I am now scheduling a follow-up for tomorrow which should also keep us from getting cut off.

However, - I did a quick search looking for these - and came up with hundreds of hits. If you can give me the names of the exact cases you have - which won't reveal your identity - it would speed me up.

I'm searching their web-page now, but will also try to find these "internal memos" using my other research options.

really help. Given the info I have from all of our chats, either hasn't given me enough info for me find them, or alternatively they aren't accesible

P.

Customer: replied 1 year ago.

LaCombe was one case and another was XXXXXX XXXXXXXX on behalf of XXXXXXXX XXX.

Expert:  Crim.Law.Expert replied 1 year ago.

Thanks. Still working. Names of the two cases you found helps me.

P.

Expert:  Crim.Law.Expert replied 1 year ago.

I am watching the time and will get back to you as soon as possible.

P.

Expert:  Crim.Law.Expert replied 1 year ago.

Henry,

I can't find the specific "Internal Policies" no matter how hard I tried. You are dealing with a "Crime Victim's Specialist." Her duty is to protect you - and comply with the "Moral Duty" of the State of WI to provide compensation for victims.

I love your reasoning - and you often ask "how a lawyer" would do something. I love that type of question, even though lawyers do things different ways. I can give multiple examples to assist you in understanding.

So - here we go. The most complex set of rules, regulations and statutes in most every state in the nation often ARE NOT related to criminal law - but rather related to incredibly different and distinct areas.

For some reason, once you get out of "statutes" and "case law" and "WI Constitution," and you hit the topic of "REGULATIONS" - it seems that they are far more complex to find, as well as do research. Again - this is not advice - but you asked me what a lawyer would do many times. So, that is not an answer, but what I believe I've observed in the past 19 years.

Again - as an example, most statutes for murder are less complex that drunk driving statutes, and that's why I refer those questions to DUI experts.

I'm really going off and chatting at this point - but I'll put it this way. You are dealing with complex and convoluted statutes and regulations that we have at least discussed - well, I don't know - 20-30 different statutes and regulations in all of our chats combined. You have said that many times they have led you in circles - and after I read them, I see why they did that.

After all the search for these "Internal Policies" - this is what many lawyers would do rather than keep searching.

You have a "Crime Victim's Specialist."

At this point, she has a duty to help you, and frankly, after this much searching, many lawyers would just . . .

CALL HER ON THE PHONE, OR GO SEE HER, AND ASK. And in reality, as I look back, I should have advised you to start our search for these internal policies by doing just that from the very beginning.

I say, try it.

P.

Expert:  Crim.Law.Expert replied 1 year ago.

We still have follow-ups scheduled.

P.

Customer: replied 1 year ago.

Thank you, I did. I e-mailed the department of Appeals where I got the other cases from. They sent it to the judge and the judge forwarded it to the Asst. Atty. General. She told her to contact me about informal discovery.

Expert:  Crim.Law.Expert replied 1 year ago.
Henry - this is just my additional follow-up so that I can provide you what I have found should we time-out and get cut off.

P.

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