Aaron Esmailzadeh comes to Simms & Reed, PLLC!

Yeah, I know.  It's pronounced "ES-Mah-Il-Za-Day."  In case that helps.  Either way, he's a genius and he's an extremely good lawyer, so we're absolutely psyched to have him at the firm.  

Aaron primarily focuses his practice in the areas of bankruptcy and consumer law, estate planning and probate, and general administrative law issues. 

Esmailzadeh earned his bachelor’s degree from Brown University in 1999 and his Juris Doctor cum laude from the University of Louisville’s Louis D. Brandeis School of Law in 2006.  During law school, Aaron was a member of the Brandeis Law Journal and an officer in the Student Bar Foundation, an organization dedicated to providing funding to public service legal projects.  He also received book awards (for highest grade) in Contracts I, Labor Law, and Arbitration Practice & Procedure.

After law school, Aaron worked in both public and private sector law – specifically, for several large law firms as well as the Legal Aid Society.  He has represented individuals, small businesses, and large corporations in a range of areas, from personal domestic, estate planning, and public benefits matters, to corporate contract and insurance disputes.  This varied background has given Esmailzadeh significant advisory, trial, and appellate experience, having conducted several bench and jury trials and numerous administrative hearings and appeals.

Aaron is licensed to practice law in the Commonwealth of Kentucky, the U.S. District Court for the Eastern District of Kentucky, and the U.S. District Court for the Western District of Kentucky.

That's him in a nutshell.  

Also, if you are married, or if you have a child, you should get a will drafted.  Call 502.618.4949 and set up a free consultation with Aaron ES-Mah-Il-Za-Day.  Simms & Reed, PLLC.  Results.  As soon as the law will allow.

Shane Benson Joins Simms & Reed, PLLC as an Of Counsel Attorney!

Simms & Reed, PLLC is thrilled to announce Shane Benson will be joining the firm in an Of Counsel position!  Shane and I went to law school together, so we've known each other for nearly a decade.  

Shane Benson is a graduate of both the University of Georgia and the University of Louisville’s School of Law.  During college and law school Shane spent his summers working in Anchorage, Alaska where he lived from the age of 13 to 18.  After law school Shane returned to Alaska to practice law where he practiced in the areas of complex commercial litigation and labor and employment law.  After returning to Kentucky Shane worked for the Commonwealth of Kentucky, first as an environmental attorney with the Energy and Environment Cabinet, and, finally, as a regulatory attorney in utility law for the Kentucky Public Service Commission.

Shane will be using his experience in administrative and regulatory law to practice in the areas of bankruptcy, social security disability, and general administrative law issues. 

The addition of Shane Benson will continue the theme of extremely intelligent, driven, and creative attorneys who have joined Simms & Reed.  If you have any questions about bankruptcy, social security or disability law, or worker's compensation, call 502.618.4949.  The initial consultation is free.

Simms & Reed, PLLC.  Results.  As fast as the law will allow.

Free in Kentucky: Stupid Idea of the Week

Free in Kentucky: Stupid Idea of the Week: Don't grow weed in your front yard.  It tends to be obvious. http://www.msnbc.msn.com/id/47845385/ns/local_news-louisville_ky/#.T94LRRcS2A...

Stupid Idea of the Week

Don't grow weed in your front yard.  It tends to be obvious.


http://www.msnbc.msn.com/id/47845385/ns/local_news-louisville_ky/#.T94LRRcS2Ag


Per MSNBC (link above), Police have arrested an eastern Kentucky man, James Denver Cox, who they say had almost 100 marijuana plants growing in his front yard.  Knox County Sheriff's Deputy Brian Hensley told WYMT-TV that he observed the plants after responding to a complaint from an anonymous caller.  Police confiscated 92 plants.   [Not surprisingly,] Cox faces charges of Marijuana Cultivation.


So...don't do that.


Simms & Reed, PLLC.  Results.  As fast as the law will allow.

Free in Kentucky: Opening Statements in the Sandusky Child Sex Abuse...

Free in Kentucky: Opening Statements in the Sandusky Child Sex Abuse...: The Opening Statements for the Jerry Sandusky child sex abuse trial began this morning.  You probably remember that the Penn State Univers...

Opening Statements in the Sandusky Child Sex Abuse Trial: Saying it Without Saying it.

The Opening Statements for the Jerry Sandusky child sex abuse trial began this morning.  You probably remember that the Penn State University (assistant) football coach is charged with 52 counts alleging that he abused 10 boys over a span of 15 years. 

There was some pretty graphic testimony from Michael McQueary at the Grand Jury proceeding in this case, and McQueary is expected to be called for testimony during this trial.  McQueary’s testimony is pretty damaging for Sandusky, as he has previously testified that after hearing “rhythmic slapping sounds,” he walked in to the locker room shower area and found Sandusky sodomizing a young boy.  However, apparently there is a timeline dispute regarding the allegation – my understanding is that McQueary testified that the locker room incident happened in 2002, but the prosecution in the case says that the locker room incident happened about a year earlier.  This timeline discrepancy is something defense attorney and media loving attorney Joseph Amendola is expected to highlight.

If you don’t remember Joseph Amendola’s name, you should.  Specifically, you should remember to never listen to his advice regarding pre-trial interviews.  For some reason (eh-hem, Cough!...personalgainthroughmediaattention…Cough!) Amendola allowed Sandusky to go on the Rock Center and for his client to be cross examined by Bob Costas in front of all of America.  For a re-cap of those events, see the following breakdown from some guy who runs a blog and thinks he knows everything:

http://freeinkentucky.blogspot.com/2011/11/bob-costas-is-good-at-cross-examination.html

Concerning the more recent events, and specifically the opening statements today, there are a couple of things I’d like to share with you.  First is “saying something without saying it” and Second is just a general gripe about jury trial procedure.   

Concerning “saying something without saying it,” let me first say that there are some rules to which lawyers have to abide when giving an opening statement.  We can’t argue.  Argument is reserved for closing statements (which is why they are sometimes referred to as “closing arguments”).  Rather, an opening statement is supposed to be a time where the lawyers give the jury an idea of what the evidence will be.  So instead of saying “Sandusky is a child molester” we are supposed to say something like “the evidence will show that Sandusky is a child molester.”  See the difference?  Good.

One of the things that a prosecutor is NOT supposed to say is “Put yourself in the shoes of these victims.  How would you like it if YOU were the one this man diddled?”  That is argument in the most pure sense, and is inappropriate argument for a courtroom because it seeks to personally inflame the jurors.  But is sure is effective if you can get away with it (assuming the jury is leaning toward the prosecution at the point of the argument – otherwise it may backfire).  Let’s see how state attorney general Joseph McGettigan handled the situation today…

Per MSNBC:  “Joseph McGettigan, the deputy state attorney general who is leading the prosecution, said in his opening statement that the case is about ‘systematic behavior by a predator.’

McGettigan told the jurors that they would be hearing from the alleged victims. All of them are now adults, but he asked the jurors to ‘bring your insight (and) understanding of the way children experience things and react to things.’

‘They were boys. They didn't understand why this happened to them,’ he said.”

Brilliant.  Just brilliant.  Seriously – McGettigan got the jury to place themselves in the shoes of the alleged victims without directly asking them to do so, thereby opening himself up to a very legitimate objection from the Defense.  Instead, he spoke about how the Jury was to determine credibility of the child witnesses, which is certainly one of the jobs for the jury.  Asking the jury to “bring their insight and understanding of the way children experience things and react to things” puts them in the place of children, and asks, indirectly, for the children to imagine that they are “experiencing” abuse from the alleged perpetrator.

It is a fantastic way to evoke the desired mental state in jurors without evoking an objection from the Defense.

On a slightly unrelated note – it is significant that the prosecution gets to go first in opening statements.  They open first, and then the defense gets to give their opening statement.  The prosecution also get to go last for closing arguments.  Defense attorneys often fuss about this, because it means that the prosecution gets both the first and last word.  We expect juries to remember what is said first and last, to a greater degree than what is sandwiched in the middle.  So defense attorneys will complain about their arguments being dwarfed because the prosecution gets desirable argument real estate.  To which, I say: No excuses.  Play like a champion.

It’ll be interesting to see how this Sandusky trial plays out.  I’ll keep you posted if any more interesting legal tidbits occur.

Simms & Reed, PLLC.  Results.  As fast as the law will allow.

The Death of Bryan Stevenson and Why Plea Deals are Struck

The whole idea of lawyers “making plea deals” causes a lot of people discomfort.  Maybe it’s the concept of people who are supposed to be integral pieces of our judicial systems coming together, and everyone agrees NOT to do their “jobs.”  And I get that.  Or maybe it is the nagging feeling in the back of some people’s heads, that - these guys in suits get together in some secret room, have a secret conversation, and all the sudden, someone gets way too good of a deal.  The idea of a plea deal, in general, just smells bad to some people.

Regardless of the reason, a lot of people seem to be really unhappy when lawyers make settlements – particularly in criminal cases.  For those of you who have been angered or disturbed by a recent plea deal, this blog post is for you.  Per WCPO.com:

“The man on trial for the death of a Northern Kentucky athlete reached a plea deal Tuesday that includes the dropping of a murder charge and likely no jail time.

Justin Werner was charged with beating Bryan Stevenson to death outside a Louisville restaurant on May 30, 2010. As part of his deal to plead guilty to multiple other charges, the murder charge will be dropped. [apparently, it already has been dropped]

Werner pleaded guilty to assault under extreme emotional disturbance, trafficking in a controlled substance and possession of drug paraphernalia. Werner faces up to three years in jail time for these charges, but the prosecution is only recommending five years probation and Werner has already served two years of house arrest that will count toward his sentencing.

A sentencing date will be determined on June 4.

‘The murder charge was amended to manslaughter 1st degree before the trial started,’ Leland Hulbert, Asst. Commonwealth Attorney said. ‘The manslaughter charge was reduced to assault under extreme emotional disturbance due to inconsistent witness testimony. [this is going to be important for today’s analysis] Werner will likely be probated by the Court."

…On Thursday, witnesses took the stand, including one man who said he saw the fight break out.

Paul Demoss testified that someone spit on another person, which caused the fight to start.

‘I reached down and picked him up, and reached down, and kept saying wake up, you got knocked out. And he wasn't waking up,’ said Demoss.

Demoss couldn't identify who threw the fatal blow that killed the 26-year-old. [also very important]” [notes added for clarification]

First, let’s start with the presumption that police officers will charge a suspect with the absolute highest level of crime possible.  Even a lot of police officers will admit that this is the standard… “protocol” isn’t the right word, but it’s the first one that comes to mind.*  Police will charge a suspect with the greatest degree of crime that is even a remote possibility.  Remember the stripper arson bar lingerie post?  

http://freeinkentucky.blogspot.com/2011/04/stripper-arson-bar-lingerie.html

            

The reasons for “over-charging” include, but are not limited to the following: 1) Police officers know that plea deals exist.  So they start with a higher charge, because some slimy criminal defense lawyer like me is going to haggle it down.  2) Police officers like to pad their own records.  If it is possible to get a higher charge to stick, it looks good for them.  Getting a murder conviction looks better on an officer’s record than getting a reckless homicide conviction.  3) Sometimes, police officers just don’t know the law.  I’ve had a lot of disorderly clients who were charged with Disorderly Conduct in the First Degree (hereinafter, DC1).  DC1 requires a person to be disorderly in the presence of a funeral, burial, or funeral procession.  And a lot of police officers don’t know that.

            

Over-charging can benefit a police officer, as in the first 2 of the above 3 scenarios.  However, it can also backfire.  If a case gets a lot of publicity, and the criminal defendant ends up being convicted of a lesser charge, it looks like the prosecution “lost” when the criminal defendant should have been charged with the lesser charge in the first place.  Now the prosecution looks incompetent and the criminal defendant looks like he or she “got off” because of some slimy criminal defense lawyer.

Let me get back to the Justin Werner case for a minute.  First and foremost, I have no idea what happened in his case.  I haven’t been following it at all.  I only know what I read in the news story that I posted above.  But from the witness testimony, it looks like there was a fight of some sort.  However fair, unfair, or drastically unfair the fight may have been, at least one witness testified that there was a back and forth aggression of some sort.  If that was the case, the “lack of extreme emotional disturbance (hereinafter, “EED”)” element for murder is going to be difficult for any prosecutor to prove.  Especially with conflicting accounts of what happened.  It doesn’t surprise me in the least that the murder charge was amended down to a homicide case without the “lack of EED” element. 

I'm not saying the prosecution didn't have a case, I'm just saying that there look to be some hurdles along the way if they wanted to prove a homicide.  Not the least of which would be Demoss' statement that, as a witness, he couldn't tell who threw the blow that killed Bryan Stevenson.  A jury may very well have believed that Werner probably killed Stevenson.  but "probably" isn't the standard of proof for a criminal jury trial.  The standard is Beyond a Reasonable Doubt.  More on this later.

Back to the original issue of plea deals and the appropriate or inappropriate nature thereof – Let’s talk about prosecutors for a bit.  The Prosecution’s job is not just to prosecute.  Prosecutors represent the interests of the Commonwealth (and to a degree, the County) in District Court cases and the Commonwealth in Circuit Court cases, like the Werner case.  They have a pretty complicated job.  They look out for the interest of the victim and/or victim’s family.  They take into account the wishes of the police officers involved.  And they are supposed to look out for the best interests of the Commonwealth – how much of your tax dollars to spend on a case that they may or may not be able to win.  On top of all of that, (unless they are THE Commonwealth Attorney in their Circuit) they have a boss, who may have his or her own expectations.  They weigh the evidence in a case, both the inculpatory and exculpatory, and make a decision on what a jury might do - which is virtually, if not completely impossible, given the Beyond a Reasonable Doubt standard.

            

In short, Bryan Stevenson’s family may not have gotten what they feel is justice – hell, they may not have gotten justice at all.  Who knows.  But given the witness testimony and unclear circumstances surrounding the death of Stevenson, it would have been extremely difficult to guess what a jury would have done in this case.  I certainly don’t blame the prosecution or the defense attorneys for compromising and settling this case.

            

I hope this helped shed a little light on why plea deals get struck, and why charges are reduced.  If not, I hope it was a nice distraction.

*Literary device taken from Chuck Palahniuk.  "Borrowed" isn't the right word, but it's the first word that comes to mind.