Total Pageviews

Saturday, May 21, 2016

Can you get a jury trial on a VA misdemeanor?

From a Comment Board I am a member of:
Do I have the right for a jury trail for a class 1 misdemeanor in Virginia? Also, what legal process can I do when some one comments perjury to get me arrested?


Great questions! VA has a two step judicial system for misdemeanors. The first step is called the "district court". It is not a court of record, and it does not have a jury. You can read about this in the Virginia Constitution at Article I, Section 8 which outlines the process for misdemeanor hearings in district court. If you are dissatisfied with the outcome of the district court case, you can request a hearing de novo in Circuit Court. That's step two! Circuit court is the next level up from district court. Circuit Court is a court of record, and when appropriate, you can request a jury trial.

Jury trials are appropriate when the case is not "petty". Generally, the Supreme Court has ruled that means >180 days in jail is possible. Although Virginia technically allows a jury trial for all offenses (even that parking ticket!), as a practical matter, it will be extremely difficult to get a jury trial for anything below 180 days. Check with your local court for procedures on this, as you don't want to make the Court and the judge angry by demanding the ridiculous.

Because a class 1 misdemeanor carries a maximum of 1 year in jail and/or a sentence of $2500, you would be eligible for a jury for most 1st class misdemeanors in VA (such as what you asked about). Note, however, that juries are not always advisable. In VA, if you elect to proceed with a jury trial (or the Government decides to demand it -- in VA, the prosecutor can ask for a jury trial, too!), the jury provides the recommended sentence to the judge. The jury is not permitted to suspend time, making the maximum and minimum penalties for a particularly crime the absolute guideline as to what your sentence will be. A judge, however, may suspend time, or craft a solution that fits the particular facts of the crime.

As to your question regarding perjury, when the trial is over, you can go after the perjurer for submitting a false police report. Remember, though, this won't work if you merely say the person lied about you. He-said-she-said is not enough, and often unless you have compelling evidence of mistruth (for example, you can prove you were in Florida when they accused you of breaking into their house in Virginia, and they knew it), the Courts won't entertain the action.

Do you have questions about false reports or jury trials? Ask us! We're happy to discuss your case. 703-402-2723 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com

Wednesday, May 18, 2016

Appeals -- summary judgment and evidence

When considering a summary judgment, the standard for review at the appeals level is "de novo" -- this is well established. However, what, if any, restrictions exist as to what evidence may be presented outside of what was originally show to the lower court. How "de novo" is de novo. It is worth a brief discussion on the point. Hanover Law recently filed a responsive brief on just this topic, and I expect the appeals court to issue a ruling in, uh, about three years. However, I thought I would share my research for others dealing with the same topic.

The standard for summary judgment is outlined in McFarland v. George Washington Univ., 935 A.2d 337 (D.C., 2007): This court reviews "the grant of a motion for summary judgment de novo." Joyner v. Sibley Memorial Hospital, 826 A.2d 362, 368 (D.C. 2003). "[T]o be entitled to summary judgment, [GW] must demonstrate that there is no genuine issue of material fact and that [it is] entitled to judgment as a matter of law." Colbert v. Georgetown University, 641 A.2d 469, 472 (D.C. 1994) (en banc) (citing Super. Ct. Civ. R. 56 (c)). Although we view the evidence in the light most favorable to the party opposing the motion, "[c]onclusory allegations by the nonmoving party are insufficient to establish a genuine issue of material fact or to defeat the entry of summary judgment." Hollins v. Federal National Mortgage Association, 760 A.2d 563, 570 (D.C. 2000) (citation omitted).

As a footnote, "conclusory allegations" are generally defined as those made by the party him/herself. You can't submit an affidavit purporting to be fact, when it contains only the statements of the party.

"Reviewing courts generally do not take judicial notice of evidence not presented to the trial court. Rather, normally when reviewing the correctness of a trial court’s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered." Hahn v. Diaz-Barba, 125 Cal. Rptr. 3d 242 (Cal. Ct. App. 2011). This last one is critical, as it is as hard to find statements regarding evidentiary restrictions on lower Court's orders, in appeal decisions, as it is to pull hens teeth.

Do you have a question regarding appeals? We can help! We're experienced trial and appeal court litigators, and would be delighted to discuss your case. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com

Notario Fraud - a discussion on what to do (this one is different!)

In the immigration community, you commonly hear about Notario's scamming innocent immigrants in the US. Often, the Notario is a not trained in law at all, and for a large sum of money, files the wrong papers and causes no end of trouble for the immigrant. Of course, this is not always the case. Some Notarios are quite competent and very public in their assistance to the immigrant community. Regardless, there is no such thing as a "notario" in the US. Each and every one of them is unlawfully practicing law (usually really badly).

So, what happens when a notario comes to you with an immigration issue? What happens when the bad-guy comes looking for assistance? We do considerable work in the immigration and criminal defense sectors. I had a chance to discuss this with a good colleague of mine, Mr. Franchesco Martinez, Esq (not a Notario!) from North Carolina. He brought up this case, and I thought a wider audience could benefit from our question and answer parley:

The substance of the questions are as follows:

I have a PC who wants to see if he still has a GC, wants to know if naturalization is possible, and wants to know if he has any deportation orders. I know this sounds broad, but PC has no idea what to do now. PC was in Federal prison - the family member who spoke to me mentioned "Convicted of Notario Fraud" in a very brief sentence. Apparently, the potential client was in jail for four years.

I want to read up on the effects of Notario Fraud. Is general "fraud" all I have to consider? Does anyone have a good, go-to, online source for "notario fraud"? Would a FIOA be beneficial to answer if PC still has a GC or if a deportation occurred while in prison or sometime thereafter?


First, a couple of basic principals. When things look weird, always get a FOIA. There you go.

Secondly, never trust you know everything you need to know about the client's chargeserr…more politically correct: client’s have trouble remembering things).

Thirdly, a green card (LPR) can only be revoked by a judge. However, a federal judge could technically revoke status – so, you need a copy of the sentencing papers from federal court. If there is nothing in the FOIA return about an immigration determination, than guess what? He still is technically an LPR. However…

The mere status as “one who is an LPR” really doesn’t do much without the credentials. An I-90 would be very risky in this instance, as it requires biometrics.

This seems obvious, but…no, he can’t travel. Ever. If he gets picked up on a return trip from overseas, he will be held without bail. Period. Basta. Ende da storio.

So – as for notario fraud, such a thing does not exist to my knowledge. There is no charge for “notario” – that is a term used in a foreign countries to denote an official empowered by the state to conduct certain legal business. In the US, the charge would be unauthorized practice of law, coupled with a possible fraud count. Any description of “notario” would be in the arrest affidavits describing the nature of the offense, not the charge itself. Again, do nothing without court papers in hand, so the advice to get information is spot on.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com