How the Supreme Court decided Same Sex Marriage (Obergefell v Hodges 2015)

On June 26, 2015, Justice Kennedy, writing for the majority in a 5-4 decision held that state laws banning same sex marriage violated the 14th amendment to the Constitution, and additionally (although less reported in the media) States without same sex marriage who fail to recognize marriages in other states violates the full faith and credit clause of Article IV of the United States constitution. Justices Kennedy, Ginsberg, Breyer, Kagan, and Sotomayor were in the majority. Justices Scalia, Roberts, Thomas and Alito dissented. This article details a brief history and background of some of the important issues involved, and an analysis of how the respective majority and minority voted and why.

Background

A little background is necessary to understand the complexities of the same sex marriage issue. The United States Constitution is made up of Articles which detail the responsibilities of government, and amendments which detail the right of the people.

I. OUR RIGHTS: The founding fathers struggled over how to present our rights in the Constitution. Some founding fathers wanted each right of the people spelled out in clear detail (ex, Thomas Jefferson). Other founding fathers wanted to not list any rights in the Constitution and reserve for society decide what those rights are (ex, Alexander Hamilton, James Madison). The fear was listing some rights and not others would be perceived as limiting people only to the rights listed. As a result, a compromise was reached where certain basic rights were listed, but the people reserved the right to identify other rights over time. Jefferson’s famous quote was “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.” This debate about listing or not listing rights was so contentious that it became the reason why the bill of rights was added as amendments and not part of the original constitution. The following link are actual letters between Jefferson and Madison on this issue: http://teachingamericanhistory.org/bor/madison-jefferson1/

II. CONSTITUTIONAL INTERPRETATION: In the 225+ years since the passage of our Constitution, the debate over rights has not subsided. Interpreting the he Constitution can be broken down into two camps, the strict Constructionists and the Living Document approach.

Strict Constructionists, such as Justices Scalia, Thomas, Roberts, and Alito, believe that the Constitution is to be strictly interpreted. If the right is not listed in the Constitution, then it doesn’t exist. This is a valid point based on the idea that if judges could find whatever they want in the Constitution, then there is no need for a legislature which is chosen by the people. However, it also runs contrary to the intentions of the founding fathers, and discounts the fact that rights are different than laws. The legislature defines our laws, the Constitution defines our rights.

Living Breathing Document. At the opposite end of strict construction is the living breathing document approach. This is centered around the idea that the Constitution is a living document that can be fluidly interpreted to meet the needs of an evolving society. The Constitution is often ambiguous and undefined in terms of reasonableness. Courts have the power to further define and interpret the Constitution as society changes. This is also a valid point, and the belief of the more liberal justices such as Ginsberg, Sotomayor, Breyer, and Kagan. There is strong evidence for this approach in the writings of the founding fathers. However, there always remains a concern that overreaching interpretation would remove the need and purpose of a legislature.

III. The 14th Amendment. The 14th amendment was not part of the original Constitution or bill of rights. It was passed and ratified in the late 1860s as part of the reparation package to mend from the destruction of the Civil War and slavery. Although not part of the original plan of the founding fathers, it is just as valid and remains the cornerstone of today’s jurisprudence. The 14th amendment is an ungodly, long winded amendment, but the pertinent parts for our purposes are “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

The due process and equal protection language has been the subject of much debate and court interpretation in the 150+ years since it’s passing. The 14th amendment has become the legal justification that courts use to find “other rights and protections” which are not specifically listed in the Constitution.

These are the more significant cases by the Supreme Court on the 14th Amendment:

  1. RIGHT TO PRIVACY (Griswold v Connecticut 1965). The state of Connecticut had a law that made it a crime to use contraception by married people. Connecticut used the law to prosecute planned parenthood clinics for distributing contraception. The Supreme Court held that a Right to Privacy exists in the 14th amendment under the liberty language.
  2. RIGHT TO ABORTION (Roe v Wade 1973). The Supreme Court held that, under the right to privacy, a woman has the right to an abortion under the 14th amendment, but subject to certain restrictions.
  3. NO RIGHT TO ASSISTED SUICIDE (Washington v Glucksberg 1997). There is no right to assistance in committing suicide under the 14th amendment. Unanimous decision.
  4. RIGHT TO SEXUAL PRIVACY (Lawrence v Texas 2003). Texas had a law criminalizing sodomy. The Supreme Court held that a right to sexual privacy exists under the 14th amendment. Scalia and Thomas also dissented in this case as well.
  5. RIGHT TO EQUAL PROTECTION. Perhaps the biggest line of cases are the equal protection cases originating from the 14th amendment. Every citizen has the right to be treated equally under the law. As such, Segregated schools are unconstitutional (Brown v Board of Education), excluding women from a military school is unconstitutional (US v Virginia), banning use of contraception by unmarried people is unconstitutional (Eisenstadt v Baird), and banning non whites from sitting on juries is unconstitutional (Hernandez v Texas).
  6. GAY RIGHTS. Over the past 25 years, there have been a number of cases defining Gay Rights under both the Liberty and Equal protection language of the 14th Amendment:
    1. Romer v Evans, 1996. A Colorado law forbidding protected status for gays is unconstitutional. Gays may sue for discrimination. (Kennedy, Ginsberg, Breyer in majority, Scalia and Thomas dissented)
    2. Lawrence v Texas, 2003. Texas law criminalizing Sodomy is unconstitutional (Kennedy, Ginsberg, Breyer in majority, Scalia and Thomas dissented)
    3. US v Windsor 2013, Federal Defense of Marriage Act (DOMA) is unconstitutional and the Federal Government must recognize same sex marriages which were valid in certain states (Same majority and dissent as in Obergefell)

V. Marriage Equality. The most famous equal protection case, as it pertains to marriage equality, is Loving vs Virginia, 1967. Virginia and many southern states (17) had a law criminalizing marriages between whites and blacks (known as Anti-miscegenation laws). Loving pled guilty was sentenced to 1 year probation. Chief Justice Earl Warren wrote in his decision which overturned the statute:

“Marriage is one of the basic civil rights of man, fundamental to our existence and survival…To deny this fundamental freedom on the basis [of race] is so directly subversive of the principle of equality at the heart of the 14th amendment, and surely deprives citizens of liberty without due process of law. The 14th Amendment requires that the freedom to marry not be restricted by invidious racial discrimination. The freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”

Ironically, the Supreme Court previously held such racial marriage statues were Constitutional (Pace v Alabama, 1883) because the punishment for whites and blacks upon conviction for a racial marriage was equal and therefore no 14th amendment violation as equal protection was satisfied.

Also ironic, Justice Thomas dissented on the same sex marriage case. His own marriage is interracial, a product of the Loving decision. His dissent tried to distinguish same sex marriages from racial marriages on the basis that Loving was a criminal case whereas laws banning same sex marriages were not criminal in nature, and merely forbid a state from recognizing them.

VI. Same Sex Marriages (Obergefell v Hodges 2015). PDF of the decision

Putting together all of the background, previous case law, and the interpretation of the 14th Amendment. Justice Kenndy condluded the following:

The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. Decisions about marriage are among the most intimate that an individual can make. This is true for all persons, whatever their sexual orientation. A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy acriminal offense. A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significantmaterial costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate. Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle,yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instabilitymany opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.

At the core, Justice Kennedy holds that same sex partners are entitled to the same equality enjoyed by heterosexual partners. Any law or statute that denies them that equality violates the 14th amendment.

Justice Kennedy also makes clear in his opinion, two important points. One, marriage is a two person union. Thus, foreclosing any further notion of polygamy. Second, freedom of religion (also a constitutional right) is important, and religious organizations are protected from performing actions contrary to their religious beliefs.

Law Offices of Niels C Eriksen Jr, LLC

http://www.bucksattorney.com

(215) 750-8010

America’s Growing Socially Liberal Trend

Over the past decade, the citizens of the United States have developed a very clear, and very growing liberal trend. While this trend permiates nearly every aspect of the political spectrum, there is very clear concensus especially on socially liberal views. Analyzing all of the major data, this trend began in the mid to late 1990s, and has grown even stronger over the past 5 years since 2009.

How America views themselves:

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Single Parent: Increasing Moral Acceptance of Children out of wedlock:

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Abortion: Increasing position on Pro Choice:

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Death Penalty: Decreasing Favorability of Death Penalty:

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Gays: Homosexuality is Natural, not environment

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Gays: Strong Support for Gay Marriage

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Euthanasia: Growing Support for doctor assisted suicide

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Marijuana: Legalizing Marijuana

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Religion: Dramatic Rise in unaffiliated Religious Beliefs

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Update: Polling trend on various social issues
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Law Offices of Niels C Eriksen Jr, LLC
http://www.bucksattorney.com
(215) 750-8010

Mitigated Sentences for Prescription Drug Convictions

When Bucks County residents are convicted of committing serious drug offenses, their sentences will most likely be determined by Pennsylvania’s drug crimes sentencing guidelines. Sentencing guidelines include suggested minimum sentences for specific drug crimes as well as suggested maximum sentences for specific offenses.

Although there are guidelines for minimum and maximum sentences, those who are accused of committing drug crimes also need to understand that each case is unique and defendants may still be able to fight for sentences that are below minimum sentencing guidelines.

For example, a doctor from Philadelphia who was convicted last year of illegally selling prescription drugs has avoided being sentenced for the crimes based on minimum and maximum sentencing guidelines. The doctor is 79 years old and he has two adult daughters who have been in wheelchairs all of their lives as a result of a neurological disorder. After reviewing the man’s case, a judge decided that sentencing the man based on sentencing guidelines was not appropriate in this situation.

Although the man’s daughters have been able to go to college on their own and have earned advanced academic degrees, the man’s attorney argued that the doctor’s daughters are still dependant on their father and mother. In court, the man’s three daughters asked that the judge be lenient when sentencing their father. The man also suffers from several health complications, which could make his time in prison very challenging.

According to reports, the doctor was convicted in March 2012 of illegally selling prescription medications on several occasions between January 2005 and September 2010. He faced a minimum prison sentence of 12 ½ years for the crimes. After taking his situation into consideration, though, a judge concluded last week that the former doctor should be sentenced to serve seven years in prison and three years on probation. The doctor has also been sentenced to pay $40,000 in fines and some of his property may even be forfeited.

After announcing the sentence, the judge told the man that he was doing him a “favor.” The judge also noted that prescription drug use and abuse has become a significant problem and doctors need to be held responsible when they fail to distribute the medications under lawful and appropriate conditions.

Defendants who are facing drug charges will not want to proceed with their cases in court until they have developed a strategic defense and understand how the charges they are facing could affect them if they are convicted. An experienced and aggressive attorney will help folks handle these issues as strategically as possible.

Source: Philadelphia Inquirer, “‘Pill-mill’ doctor gets seven years in prison,” David Sell, Jan. 31, 2013

New Jersey, Delaware and the Federal Sports Betting Law

 

Recently, both the States of New Jersey and Delaware have challenged the Professional and Amateur Sports Protection Act of 1992 as a means in permitting Sports Betting at the casinos in their respective states. The Professional and Amateur Sports Protection Act (PASPA) was passed by the US Congress and signed into law by President George HW Bush in 1992. It is found in Title 23 US Code Chapter 178, Sections 3701 through 3704. Since Sports betting involves games and currency throughout the United States, the Commerce Clause of the US Constitution permits the federal law’s application throughout the country.

Section 3702 defines what is illegal under the Act:

It shall be unlawful for—
(1) a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact, or
(2) a person to sponsor, operate, advertise, or promote, pursuant to the law or compact of a governmental entity,
a lottery, sweepstakes, or other betting, gambling, or wagering scheme based, directly or indirectly (through the use of geographical references or otherwise), on one or more competitive games in which amateur or professional athletes participate, or are intended to participate, or on one or more performances of such athletes in such games.
 
Section 3704 defines the application of the federal law (In part and highlighted)
 
(a) Section 3702 shall not apply to

(1) a lottery, sweepstakes, or other betting, gambling, or wagering scheme in operation in a State or other governmental entity, to the extent that the scheme was conducted by that State or other governmental entity at any time during the period beginning January 1, 1976, and ending August 31, 1990;
(2) a lottery, sweepstakes, or other betting, gambling, or wagering scheme in operation in a State or other governmental entity where both—

(A) such scheme was authorized by a statute as in effect on October 2, 1991; and
(B) a scheme described in section 3702 (other than one based on parimutuel animal racing or jai-alai games) actually was conducted in that State or other governmental entity at any time during the period beginning September 1, 1989, and ending October 2, 1991, pursuant to the law of that State or other governmental entity;
 
In its simplest terms, no State can allows Sports betting UNLESS such a wagering scheme was previously in place in that state between January 1976 and October 1991. Nevada has always had sports betting in all forms and was always exempt from the federal law. THREE other states (including Delaware) had “some form” of sports betting during that time period.
 
DELAWARE:
As most people know, Delaware previously permitted a three team parlay bet (a two or more sports games betting wager) in 1976 as a means of increasing revenue. The original system was a complete failure, but Delaware was grandfathered under the federal law to permit sports betting. Once the Delaware casinos opened in the 2000s, Delaware wanted to offer sports betting and planned to issue a single game system of sports betting.
 
However in 2009, the Federal Appeals Court 3rd Circuit (Commissioner of Baseball vs Markell, Docket 09-3297) affirmed the District Federal Court and found that a single game wager system violated federal law because Delaware’s single game system wasn’t similar to the original three team parlay system in place in 1976. One can always argue how broadly or narrowly you can interpret “similar”. As of today, Delaware is only permitted three team parlays.
 
The Delaware ruling is, in essence, a joke, since any third grade math class teaches us that three, three team parlay bets with one team as the anchor is essentially a single game wager. Accordingly, smart bettors in Delaware have adopted this strategy to legally circumvent the Federal Law. See: http://www.gambling911.com/gambling-news/bettors-find-loophole-delaware-sports-betting-rules-110711.html
 
NEW JERSEY:
The State of New Jersey faces a much more difficult situation because no prior wagering scheme existed from 1976 to 1991. New Jersey could not grandfather past sports wagering, unlike Delaware. New Jersey passed a sports betting law permitting sports gambling in 2011. This law was immediately challenged by MLB, NCAA, NFL, NHL, and the NBA.
 
New Jersey argued that the 1992 Federal Law was unconstitutional. In 2013, both the Federal District Court and the Third Circuit Court held the law to be Constitutional. New Jersey was prohibited from allowing Sports Betting.
 
On September 8, 2014, Governor Christie issued a directive that NJ Casinos are free to allow sports betting. Under a creative argument, while there is no NJ law permitting sports betting, there is nothing in NJ law prohibiting casinos from offering sports betting either. In essence, Governor Christie has said the State of New Jersey wont stop you, if you want to offer sports betting. A creative reading of section 3702 only prohibits a government from allowing sports betting, or person (including companies) “from allowing sports betting pursuant to a government law“.
 
Could it be that third grade English class has defeated Congress and the Federal law for New Jersey, like third grade math class defeated it for Delaware?

10 Tips You Need to Know to Restore and Maintain your Pennsylvania Driver’s License

Pennsylvania Driver’s License Restoration Attorney Niels C Eriksen Jr, Esquire

1. Your Pennsylvania Driver’s License is more important than you think

Pennsylvania Courts have held that the continued possession of a driver’s license is essential in the pursuit of a livelihood. Your driver’s license is a Privilege granted by Pennsylvania, Not a Right. Maintaining a clean driving record is vital for a variety of life situations. Lower car insurance premiums, employment, professional licenses, job applications, health care emergencies, life insurance, loans, etc.

2. PennDOT records contain errors

The Pennsylvania Department of Transportation (PennDOT) is solely responsible for maintaining the driving record of every motorist in the Commonwealth of Pennsylvania. In maintaining millions of records, errors are not uncommon. By far, the most common error is an incorrect address. Pennsylvania Law places the burden on the driver to ensure that his/her address is correct. Every driver should know what their record contains, and immediately correct any inaccuracies. Obtaining and Reviewing your record is an inexpensive process, and more information can be found on our website http://www.bucksattorney.com

3. Out of State Convictions will NOT appear on your Driving Record

The Pennsylvania Driver Manual states that “although reported to PennDOT, minor out-of-state traffic offenses, such as speeding, will NOT appear on your driving record and Points will NOT be assessed”. There are 2 important exceptions: 1) Failing to Respond to an out-of-state citation will result in an indefinite suspension, and deny renewing your license, and 2) the Interstate Compact Offenses (DUI, Homicide by vehicle, Leaving an accident, and certain felonies) will result in a suspension as if the offense occurred in Pennsylvania.

4. Reduce Points and Reduce Fine

Insurance companies base premiums on the number of convictions and points on your license. Your insurance company’s declaration page is an excellent resource to find the increased surcharges for convictions and points. Police frequently negotiate tickets for reduced points and fines. Hiring a lawyer can increase the odds that an officer will reduce your ticket. An accumulation of 6 points will result in a departmental hearing and/or suspension. Points are removed at a rate of 3 points for every 12 months of safe driving without a citation.

5. Know WHY you’re Suspended

Most people do not know the reason why PennDOT has suspended their license. The most common reason is failing to respond to a citation; either by failing to notify the court of your plea, or failing to follow the payment plan. Sometimes, the local court fails to notify PennDOT that a driver has responded to a citation. Your license will remain suspended until PennDOT has received notice from the court of your response. Always make sure PennDOT has an accurate driving record, and immediately correct any errors.

6. Even if you’re Suspended, you can get a Driver License

PennDOT has several types of licenses available for drivers who are suspended. These licenses allow you to work, provide for your family, and perform necessary life functions. You may be immediately eligible for an Occupational Limited License (OLL). Even if your license is suspended for years, you may be eligible for a Probationary License (PL). Contact a lawyer to review your record for eligibility.

7. Get Proper Credit toward your Suspensions

A common error arises when a driver loses their license, fails to submit their license to PennDOT, or an officer takes their license during a traffic stop; and then mistakenly believes that they are receiving credit towards a suspension. PennDOT does not begin credit towards any suspension unless a driver submits his actual license (and any permits) OR submits an Affidavit acknowledging the suspension (DL16 form). If you have not been receiving credit, you can petition PennDOT for an administrative hearing to review your credit record.

8. PennDOT decisions are NOT final

Never accept a Suspension letter or restoration letter as a final decision without consulting an attorney. Virtually all PennDOT decisions can be appealed. If PennDOT suspends your license, an appeal of that suspension may be possible. If you disagree with a decision, PennDOT permits administrative hearings in Harrisburg concerning disputes over your license status. Always consult an attorney.

9. Never Refuse a Chemical Test

The penalty for refusing an officer’s request for a chemical test during a DUI investigation is a 1 year suspension of your license. Often, the refusal can be more devastating to a driver than the arrest and conviction or diversionary program (ARD) for DUI, especially if the driver has no prior criminal record. Under Pennsylvania law, anything short of an express assent to submit to a chemical test is considered a refusal. If you are a Pennsylvania driver stopped for suspicion of DUI, never refuse a chemical test.

10. Old Convictions can be REMOVED

You have 30 days to appeal any decision made by a district court. However under certain circumstances, prior convictions past the 30 day deadline can be reopened and negotiated to a lesser offense. If you are still suffering the effects of a traffic conviction or failed to understand the consequences of pleading guilty to an offense, contact an attorney to decide whether that conviction can be reopened.

 

Criminal Trial Guide in Pennsylvania

This guide serves as a general overview of the criminal trial process from arrest through appeal in the Commonwealth of Pennsylvania. Each case, each Pennsylvania County, and each client may have specific rules and needs which can deviate from this general guide. This guide is not a substitute for legal advice. Please consult an attorney regarding specific facts and issues which may affect your case.

1. Arrest and Preliminary Arraignment

Most criminal cases in Pennsylvania begin with the arrest of the Defendant. Most felonies require an immediate arrest and processing. While most misdemeanors, the charges can be issued by summons in the mail to the Client. Following the arrest and processing, the Defendant is brought (or by video) before a district judge to have bail and bail conditions set. An appearance before the district magistrate generally occurs within hours of arrest and processing. A Defendant has the right to have an attorney present before the district magistrate, and the right to argue for bail on behalf of the Defendant.

2. Court of Common Pleas Bail Hearing

All Defendants have the right to have all bail decisions made by the district magistrate reviewed by the Court of Common Pleas (the “higher” court). The exact process for a Common Pleas bail review can vary greatly from County to County.

3. Preliminary Hearing

At the preliminary arraignment, the district magistrate will set a date for the preliminary hearing. This date must be set within 10 days of the arrest, but is often continued due to the availability of witnesses , attorneys, and evidence. The purpose of the preliminary hearing is for the Commonwealth to establish a Prima Facie case against the Defendant. The Defendant does not put on a defense, but has the right to review and cross examine the witnesses and evidence against them. Credibility is not at issue at a preliminary hearing, neither is guilt or innocence. In its simplest form, a preliminary hearing is used to determine whethere there is “some evidence” against the Defendent so that the case can proceed to trial. The preliminary hearing serves as a gatekeeping function to dismiss charges and cases where there is not sufficient evidence against a Defendant to proceed to trial

4. Formal Arraignment

The formal arraignment generally occurs 1-3 months following the preliminary hearing. Again, very dependent on county rules and county backlog. In most counties, the formal arraignment can be waived if an attorney is retained. The Defendant need not appear if they have retained counsel. The purpose of the formal arraignment is to advise the Defendant of the trial date, trial rights, the penalties for each crime charged, and other local county practices. Usually, when a Defendant has hired an attorney, the court assumes that the Defendant has been advised of their rights and options.

5. Discovery Process

Following the formal arraignment, the Defendant is entitled to Discovery. Essentially, the Defendant is entitled to all police reports, expert reports, photographs, witnesses, criminal histories, and all evidence against them. The attorney for the defendant will receive this Discovery.

6. PreTrial Motions

Within 30 days of the Formal Arraignment, the Defendant must file all pretrial motions in their case. This may include Suppression motions, Discovery motions, Limiting motions, Dismissal motions, etc. An experienced attorney, after reviewing the discovery, will be necessary to file appropriate motions necessary to defend your case. You will lose the right to litigate these motions if they are not filed. A hearing on these motions will be required prior to trial. The scheduling of that hearing will vary from county to county. Some counties will give their own pretrial date. Other counties will litigate the motions on the day of trial.

7. PreTrial Diversionary Programs

Following the formal arraignment is GENERALLY the time to file for a diversionary program if applicable. This may include ARD, Drug Court, Veterans Court, Youthful Offender court, etc. The types of programs available, eligibility for these progtrams, applications, and the timing of the applications will vary greatly from county to county

8. TRIAL (jury or Waiver)

Once discovery has been completed, and all pretrial motions litigated, the court will schedule a trial date. Defendants may or may not receive a plea offer from the District Attorney prior to trial. The defendant will also accept entry into a diversionary program prior to trial. Trials generally occur anywhere from two to five months following the formal arraignment, but this timing is highly suspect due to the seriousness of a case and the availability of witnesses, experts, and officers. The Defendant has the option of a Judge ONLY trial (waiver trial) or a jury trial. In a jury trial, the defense and the District attorney will select the final panel from members of the community chosen at random. In a waiver trial, the judge alone hears the case, and make the determination of guilty or not guilty. Both a judge or jury must decide guilt BEYOND A REASONABLE DOUBT.

9. Sentencing

Sentencing occurs following a conviction at trial, or following a guilty plea or plea offer. Sentencing can be immediate or deferred for a period of time, depending on the circumstances. Some counties require a presentence report. Other counties will allow the Defendant’s counsel to prepare their own mitigation. The sentence given is a function of sentencing guidelines, which is a matrix of prior offenses and severity of the present conviction. Some crimes require mandatory sentencing. Sentencing is an extremely complicated process requiring an experienced counsel. In addition to the guidelines, there are a number of setencing alternatives that may be availabile, including: House Arrest, Work Release, SIP, RRRI, etc.

10. Post Trial / Sentence Motions

The Defendant has the right to file Post Sentence or Post Trial motions within 10 days of their sentencing. These motions may include Motions for Reconsideration of Sentence, Motions to overturn the conviction, or Motions for a sentencing program. There are numerous options available in Post Sentence motions

11. Direct Appeal

A direct appeal to the Superior Court must be filed within 30 days of Sentencing, or within 30 days following a ruling on the Post Sentence motions. All appeals by the Superior Court are based on a review of the trial court record to determine whether errors were made. Direct Appeals do not permit new evidence or witnesses to by presented, but a review of what has already transpired.

12. Violations of Probation or Parole

Once a sentenced Defendant is released on parole or probation. Their behavior during the additional supervision make cause a violation of their probation or parole. The VOP hearing is a mini trial where the Defendant challenges or explains their conduct, and argues for an appropriate sanction, if any.

If you have any questions, or need an attorney. Please contact me.
Niels C Eriksen Jr, Esquire

Bucks County Criminal Defense Attorney

Pennsylvania Factors in Child Custody Cases

In 2011, the Pennsylvania Legislature amended the Child Custody Statutes to incorporate 15 factors that a court MUST consider and analyze before making a decision in a child custody dispute. Below is the Statute which lists each factor relevant by the Court. Parties in child custody litigation should have their actions guided by the factors listed below:

§ 5328. Factors to consider when awarding custody.

(a) Factors.–In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

(3) The parental duties performed by each party on behalf of the child.

(4) The need for stability and continuity in the child’s education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.

(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.

(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or member of a party’s household.

(15) The mental and physical condition of a party or member of a party’s household.

(16) Any other relevant factor.

Contact our firm if you have any questions regarding Child Custody and the factors involved in custody disputes.

An Arrest does Not mean Guilt!

A 27-year-old Philadelphia man was accused of drug trafficking after authorities allegedly found large quantities of heroin and cocaine on his person. He was arrested after allegedly attempting to flee from police who were supposedly serving another unrelated warrant in his area. Police allegedly confiscated three cell phones, large quantities of drugs and a little over US $2000 from Mr. Quinn before taking him to jail on a $50,000 bail. He was arrested on the 100 block of Hampden Road at around 9:30 p.m. on July 13.

Mr. Quinn was charged as being a major drug dealer in the area. The amount for bail seemed excessively high to some legal experts; however, the police superintendent upheld the decision of the court and the actions of his officers who were not in the area to serve any type of procedure on the Philadelphia man initially.

Although the man drew attention to himself by fleeing police, the actions of the police may not have been consistent with Philadelphia law. However, in order to present this properly in court, the accused man may need to hire a legal professional who is experienced with the drug trafficking and law enforcement statues in the area.

Drug trafficking laws are becoming ever more draconian in certain Philadelphia territories, and just because someone has been accused of a crime, does not mean that he or she has committed it. It may be beneficial to hire a defense when the stakes are this high. The system can sometimes seem overwhelming. A criminal defense attorney may be able to make the legal systems easier to comprehend for their clients and may be able to construct an effective defense.

Source: Delaware County Daily Times, “Man facing drug charges”, Linda Reilly, July 16, 2013