New Year, New Perspective on Clients and “Interruptions”

By:  Rich Mitchell

Staff Writer

I always love starting a new year—all the opportunities for resolutions to “fill in the blank.”  We hear that many of the resolutions go by the wayside by March, if not sooner.  The new year has provided me with a new perspective on, of all things, “being” a lawyer.  I share it with the hope that others might seek out the opportunities available to experience what it could mean to “be a lawyer.”

With finals over on December 18, I had the opportunity to return to the small, one lawyer  firm that I work for one day per week during the school year.  During the week preceding the start of the spring semester of law school, I worked almost every day of the week, all day.  I was trying to complete about a dozen Section 341 files (required to be sent to bankruptcy trustees prior to their Section 341 meetings with creditors).  Being in the office all day, I saw how unpredictable the office really is.  I felt as if I couldn’t get anything done.  The phone rings all day long.  Clients come in with various problems and concerns, interrupting my train of thought.  I just could not make headway on the files, which have to be accurate and complete, or the trustee continues the 341 hearing, delaying the client’s discharge or plan confirmation.

By Friday, however, I realized that I had been concerned about paperwork, and had lost perspective on the really important stuff that had gone on during the week.  At lunch on Friday, the office staff and I started talking about what we had done during the week.  We had all engaged in trying to find the time to work on our files, motions, and memos and were frustrated with our inability to complete them as quickly as we knew we could do without all the “interruptions.”  But we had also done other things.  For example, we had reassured new clients, who had called in droves, to consult with the attorney about bankruptcy and/or divorce (or sometimes both).  You could sense the clients relaxing, simply by being encouraged by us that they had made the right decision to call the office, and get their questions answered.  People often call us in times of great distress, and as attorneys, it is a great gift to be able to reduce their stress simply through a smile, a handshake, or an encouraging word on the phone.

We had a boyfriend/girlfriend come into the office.  The boyfriend had been through four attorneys and had gotten nowhere with his soon-to-be ex-wife, who was threatening to take one of their five children and move to Alabama.  Within a few hours of consulting with the attorney, a police report had been filed and a restraining order drafted, prohibiting the ex from taking the child out of the state.  They were thrilled to write the check to the attorney to take on the concern.  As it turned out, the ex had also decided to not make payments on their family home, and it had entered the foreclosure process without his knowledge.  A few calls, an appearance filed in Lake County Circuit on the client’s behalf, and the process was halted.  Talk about helping to reduce the man’s stress.

We had a Hispanic gentleman come in on Wednesday whose house was to be sold at sheriff’s sale on Friday.  On Thursday, the bankruptcy was electronically filed in federal court.  We faxed the case number to the sheriff’s office and on Friday, while houses were sold at the sale, our client’s house was not among them.  Again, we not only reduced the man’s stress, we saved his family’s home, at least for now.

And my favorite story of the week was hearing from two of our clients that their two cars had been repossessed on Thursday night.  The attorney dropped everything, e-filed their Chapter 13, and then had me contact the creditors.  I was amazed that within three hours of filing the Chapter 13, I had one of their cars on a flat bed being delivered to their driveway; the other will be delivered on Monday.

We are becoming lawyers.  After this week, that means something qualitatively different to me.  I quoted Dean Curt Cichowski in another article where he said something to the effect of “that’s what this lawyering thing is all about,” in talking about the importance of the law clinic.  I get it now—this “lawyering thing.”  It is not about paperwork.  While that’s important to get done eventually, the “interruptions” are the essence of why we become lawyers.  We change peoples’ lives.  We are counselors, not only in the legal sense of that word, but actually very much in the psychological sense of it as well.  We reduce stress.  We solve problems for people.  And I can’t describe how good it felt to be a part of all that.  I could feel the gratitude from these clients.  I could sense them relaxing.  And when I called to let the client know his car was on its way back to his driveway, and he said, “Thank you for all your help getting this done today,” I knew that I didn’t care that the 341 files weren’t completed.  That’s for Saturday now.

As we start back with a new semester in a new year, I’m going to approach it with renewed enthusiasm for the work we do here in anticipation of the work we’ll do “out there,” where this “lawyering thing” becomes very real and very human.

Rich is a 2L and can be reached at forum@valpo.edu.

By: Christy Commers

Columnist

For this issue, I want to discuss whether police should be able to take a suspect’s DNA with the same ease as they can take a suspect’s fingerprints. The Indiana Supreme Court is deciding this issue in a case where Valparaiso University students were victimized.

Auturo Garcia-Torres, a 36- year-old illegal immigrant, was convicted in Porter County Superior Court in 2008 for rape, two counts of burglary, and attempted rape and was sentenced to thirty-six years in prison. In the summer of 2004, he raped a VU student who had just walked back to her apartment from a friend’s. The victim heard an individual frantically ringing her doorbell. As she opened it slightly, Garcia-Torres pushed his way inside the apartment. The victim struggled with Garcia-Torres before being raped. DNA evidence found on the victim tied Garcia-Torres to the crime.

Less than a year later, Garcia-Torres entered another student’s apartment through an open window and attempted to rape her. The victim screamed as she struggled with her attacker. These screams prompted neighbors to call the police. Garcia-Torres fled the scene once he heard a police officer identify himself. Through the help of Garcia-Torres’ roommate, police were able to identify him. DNA evidence found at the second victim’s apartment, one of Garcia-Torres’ shoes left behind, tied him to the second crime. The police also found Garcia-Torres’ cell phone blocks from the victim’s apartment.

Garcia-Torres was brought to the station for questioning. There he was interviewed by two Valparaiso detectives, one about the 2005 attempted rape and the other about the 2004 rape. During the 2004 rape interview, Garcia-Torres was interviewed and questioned by two separate detectives about the assault and attempted assault, and one detective requested and received consent to collect a DNA sample through a cheek swab. Garcia-Torres also made incriminating statements during the interviews, which were suppressed due to Garcia-Torres not receiving a proper translation of his Miranda rights in Spanish. At the same time, he made a second motion to exclude the DNA evidence collected during the interview, which was denied by the trial court.

In his appeal, Garcia-Torres states that the trial court abused its discretion in admitting the DNA test results obtained during the interview. While he argues that the test should be suppressed on three grounds, I will focus on whether Garcia-Torres’ 4th Amendment right against unreasonable search and seizure was violated.

The Court of Appeals held that “a police officer can stop and detain a suspect if the officer has a ‘reasonable suspicion,’ supported by articulable facts, that criminal activity may be afoot, even if the officer lacks probable cause.” It found that a cheek swab falls under a limited search that only requires a reasonable suspicion and, thus, could be done without a warrant. The Court also noted that a cheek swab is likely less invasive than other types of searches done under the reasonable suspicion standard.

The Court then had to determine whether the officers had reasonable suspicion to obtain the DNA sample from Garcia-Torres. Reasonable suspicion, the Court held, must be determined on a case-by-case basis by analyzing the totality of the circumstances and requires officers to “have more than an inchoate and unparticularized suspicion or hunch, but need not have the level of suspicion necessary for probable cause.” Based on this analysis, the Court found that the officers had more than a reasonable suspicion to obtain a DNA sample from Garcia-Torres. The police found his cell phone near the scene of the attack, a shoe similar to those which he owns was found in the victim’s apartment, and he matched the victim’s general description of her attacker.

And now for the opinion of the Commers Court… I agree with the Court of Appeals that, in this case, obtaining a DNA sample from Garcia-Torres did not require a warrant. The police already had enough evidence tying him to the second crime to get a DNA sample from Garcia-Torres. However, I am unsure if the Court of Appeals would come to the same determination if the other evidence tying the attacker to the crime was not as strong. Suspects should only be required to give a DNA sample when there is sufficient evidence to show they likely committed the crime.

Christy is a 3L and can be reached at christen.commers@valpo.edu.

By:  Christen Commers

Columnist

The Valparaiso University Volunteer Income Tax Assistance (VITA) Program provides tax preparation services to students and low- to moderate-income individuals in our area.  Appointments are still available for those seeking to have their taxes done by an IRS-certified preparer.

To have your taxes prepared, please visit the Valparaiso VITA homepage at http://www.valpo.edu/law/vita or call (219) 465-7900.  Please direct all questions to Valpo.vita@gmail.com.

Attention all Former and Current Criminal Procedure Students….

Please contact Professor Carter if you are interested in working at the New Orleans Public Defender Office over Spring Break from Monday, March 1 through Friday, March 5, 2010.

Details are forthcoming, but please send Professor Carter an email indicating your interest.

Preference will be given to Professor Carter’s “repeat” students. These students will have more time to explore New Orleans and will help with monitoring work.  Of course, all are welcome to come “hang out” with us in NOLA  after working hours.

Professor Derrick Augustus Carter can be reached at Derrick.Carter@valpo.edu.

By:  Robert Elliott, Andrew Erickson, Hunter Noble and Chas Koop

Sports Writers & Columnists

Winter is here and that means one thing.  It’s time to stop running 5.06 mi on 11/16/2009 at 7:15 PM with a pace of 7′18″/mi and start concentrating on packing on those essential pounds necessary to get you through the Valpo winter. 

Since the writers of Barely Legal and Fried Football Report have been preparing themselves for winter cuddling, we’ve decided to work together to pump you up.  Did we say pump you up? We meant plump you up.  That’s a good joke. Trust us.

Here’s some tips on winter survival taken from lessons learned from Mother Nature herself.  And what’s the greatest beast in all of nature? Da Bear(s)! 

It’s important to study the bearhavior of Russian bears since many say that the Russian winters rival those of Valpo.  It’s common knowledge that every Russian family trains their bears in the arts of unicycle riding, small hat and vest wearing, and the sweet science of boxing. However, their staunch adherence to socialism (aka laziness) leaves it unprepared for winter, often making them depend more heavily on a liquid rich diet. Rocky may have existed amongst the Russian winter elements, but this bear has neither the heart of balboa or fear of facing a man with a 10,000 PSI punch.

Now, since the Valparaiso University School of Law is one of the most diverse law schools of all time in the history of Northwest Indiana, it’s only proper to relay the winter survival tips learned from studying winter “bearhavior” across all cultures.  We’ve analyzed the most successful bears since the Mesopotamalithic time era and have pitted them against each other in a Battle Royale of survival that would make even Bear Grylls shed a tear of jealousy. We hope that you can incorporate these bearhaviors into your own Valpo winter survival scheme. But, if that’s too much responsibility for you to handle then simply do what the European bear does and call in the American bear for relief.

Russian Bear

Unlike more self-sufficient bears, European bears generally depend on the kindness of other stronger, more-well prepared bears. Most European bears store their food in purse-like shoulder bags instead of caves or dens. The most fashionable of all the bears, European Bear has set the standard for everything sassy, fashionable and fun during the winter months. While this bear may not win any war without the help of others, this trendy species has created a Pax Romana of sorts amongst both bears and crepe eating Elton John enthusiasts alike.

European Bear

Although often criticized during the off-seasons for his lackadaisical attitude and gluttonous diet, his stocky legs provide him with a stable frame to carry his weight and excel in everything cool and tough. When frightened, the American Bear fights not flights…obvi! Other skill sets include but are not limited to: open paw fishing, frying things, steel working, negotiating union disputes, posing for 15th century Italian art, crew cuts, making Smores, telling scary camp fire stories, being a leader on the internet blogging stage and building national monuments. These skill sets have pushed American Bear to the forefront of all things awesome, patriotic and free.

American Bear

The Koala Bear has five fingers, an overused opposable thumb and a feisty attitude similar to that of its Australian forefathers. Sounds like trouble! Scientists are still unsure whether or not Australia actually has a winter. However, they did host the Summer Olympics which has led researchers to speculate that maybe Australia could have a winter. Additionally, Koalas remain motionless for 16-18 hours a day. Such a lethargic predisposition lends further credence to researcher’s belief that Koalas are well-equipped to handle the rigors of Jack Frost.

Koala Bear

From frolicking in the rice paddies to scaling the mountains of Nagano, the panda can adapt to many different environments. In recent years, the panda population has been depleted from overhunting. Panda pelts are ideal in the construction of both dominos and faux Dalmatian coats. “The Goonies,” a recent blockbuster hit, translated the Panda’s rallying cry of “Never say die” into the films’ own maxim, “Goonies never say die.”  As a result, the panda has been piggy-backing off its new Hollywood success and are poised to rebound against poachers and other brother ursidae (ursidae is science for bears. Idiots)

Panda Bear

Best Bet: If you’re looking to survive NW Indiana you’re definitely going to have to Bear Down. While all of these bears possess unique and desirable characteristics, a bear that appreciates freedom, toughness and the fine arts is your best bet towards braving the cold. 

Winner: Beara Americana (Latin for survivor).

The 3 Stooges Plus Chas are all 2Ls and can be reached at Robert.Elliott@valpo.edu.

As the song goes, “It’s the Most Wonderful Time of the Year.” Is it really? Come to think about it, it is probably one of the least wonderful times of the year. With finals, travel arrangements, gifts to buy, dealing with cold and flu season,  bills, and hearing (or not hearing) back from job prospects, it can be one of the most stressful times of the year.
So the question is, “Should we be happy when faced with all these difficulties?” In my viewpoint, yes.
My mother would always tell me when facing difficulties that life is not fair. It is more than likely that at least once in your life, you will be mistreated, ignored, have you heart broken, and have a dream or two taken away from you.
Wait, I thought this is supposed to be an inspiring article!
Don’t worry, I’m getting to that part.
The struggles and pains of life are important. However, one should be mindful of what a struggle in life really means. Now, not to put down anyone’s accomplishments in law school, but it’s kind of funny when I hear students complaining about some of their “problems.” Comments like “I’m so worried about this reading assignment,” or “I’m having so much trouble writing this Law Review Article” are particularly hilarious. Why might you ask? Because in the end, we choose to come to law school, and we chose to take up this mantle. Above that, you might have also chosen to apply for Law Review, Moot Court, or even run for SBA, so fighting for the prize, and then complaining after you win the prize carries little weight in my mind. Now, this is not saying that awards can’t bring further problems, as in fact they often do. What I am saying is that in the face of everything, many of our so called “problems” are but grains of sand.
We have all achieved much, as evidenced by the fact that we are here in law school now. The fact that we often fail to see is that the big picture often hurts us more then it helps. We get lost in the small details and despite our achievements we seem less well off then when we started. Today’s fast pace and stressful society only increases that problem.
So is there an answer? Is it possible to keep the big picture in mind or keep our spirits up given all the difficulties we face everyday? Yes, but its not an easy one to understand. It requires us to remind ourselves everyday of why we are in law school or anywhere in life’s journey for that matter. We must take all of life’s small things and be able to fit it to our goals. This is not always an easy task, but the pursuit of such goals often define us more than reaching such goals. The real problem one faces in life is if you get to a point and can not fit those pieces into a bigger picture. For these people, they have no goals and the little things in life become truly pointless.

 

John Bayard
Chaplain, Christian Legal Society

John is a 2L and can be reached at forum@valpo.edu.

Easy to Find, But Is It Accurate?

By:  Mary G. Persyn

Associate Dean for Library Services

In 1931, legal educator and Philosopher Karl Llewellyn wrote an essay on research in which he described the threat of the available. According to Llewellyn there is an “almost inevitable tendency in any thinking, or in any study, first to turn to the most available material and to study that – to study it exclusively – at the outset; second, having once begun the study of the available, to lose all perspective and come shortly to mistake the merely available, the easily seen, for all there is to see.”[1] One of the recurring discussions among law librarians today is the tendency of students to rely entirely on easily-accessed digital materials for their research.

This is not to say that digitally available information is bad.  For those of us who grew up with only paper resources, this brave new world of electronic information is wonderful.  Sources that once took hours to search can now be investigated in seconds.  However, digital information is seductive.  It is so easy to search online, even if the search is not properly conduced, or the information that you find is not accurate, it is easy to believe that what one has found is all that there is to find and that it meets one’s needs for accuracy.

Example – A law student needs to check a piece of biographical information and turns to Wikipedia, the ubiquitous online encyclopedia that is created by volunteers, because it is easily available.  The student ignores the fact that there is no authority behind the information she finds except the presumed expertise of Wikipedia authors.  A reader who disagrees with the first author can sign on to Wikipedia and change the information.  The student has two problems 1) the original information may not be correct; and 2) the information on Wikipedia may be different the next time the student checks the same link.

The difficulty with Wikipedia seems to be most acute when dealing with living public figures.  There have been several widely-publicized events in which libelous information has been posted on Wikipedia, perhaps the most famous that of John Seigenthaler Sr.[2] In April 2009 Wikipedia adopted the following statement “Wikipedia articles can affect real people’s lives. This gives us an ethical and legal responsibility. Biographical material must be written with the greatest care and attention to verifiability, neutrality and avoiding original research.”[3] However, no one is following all articles on Wikipedia to see that they are accurate.

If you want to use an online encyclopedia, try the Encyclopedia Britannica Online (http://search.eb.com/), an encyclopedia with over 200 years of authority behind it.

The same question as to accuracy of information can be made for any information found through Google or another online search engine.  Consider that first page placement on Google is a function of popularity and payment for placement.  Also investigate the background and possible bias of the creators of a web site before you rely on the information from the site.

When doing research remember that the most easily available information is not necessarily the information that will provide the best answer for your client.  Before you complete your research ask yourself whether you have found the best answer to your problem or whether you have succumbed to the threat of the available.

FOOTNOTES:

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1 Karl N. Llewellyn, Legal Tradition and Social Science Method-A Realist’s Critique, in Essays on Research in the Social Sciences 89 (1931).

[2] http://www.usatoday.com/news/opinion/editorials/2005-11-29-wikipedia-edit_x.htm

[3] http://en.wikipedia.org/wiki/Wikipedia:Biographies_of_living_persons

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Dean Persyn can be reached atMary.Persyn@valpo.edu.

By:  David Johnson

Managing Editor

Bartonville State Hospital, located close to Peoria, Illinois, was a mental health hospital opened at the start of the 20th Century.  Ultimately, it was abandoned in 1973.  The hospital still stands as a feature of Bartonville skyline, but the building is clearly a ghost of its former self.
The history of the hospital is interesting.  Opened in 1902, the hospital offered some of the most progressive treatment available at the time to the mentally ill.  Most accounts say that the staff and doctors were quite kind to the patients.  But kindness doesn’t make for a good ghost story.  Hence, rumors of deaths, abuse, and unorthodox experimentation are abound.  Whether or not they are true is unlikely, but it has been over a century since the clinic first opened its doors.  As an interesting side note, the site still has four cemeteries on the premises.  However, like the building itself, these cemeteries have fallen into disrepair; victims to both time and vandals.  It is not surprising, then, that the adventurous have reported ghosts all over the hospital property.
Ghost stories for the hospital tell of “Old Book.”  Book was a patient who dug graves for the institution until his own death.  One legend says his spirit is still seen wandering the graveyards, from time to time.  However, another tale says that, upon Book’s death, he took on the physical form of an Elm tree located in one of the cemeteries.  For years the tree has stood on the hospital property, and for years ominous feelings of dread and despair have emanated from it.  These ghosts are not limited to only patients, although many ghost hunters speculate the vast majority of the paranormal activity present at the hospital comes from these spirits.  Perhaps the only way to know for sure is to go investigate.  You had better hurry though, the hospital is bound to be demolished any time now.

David Johnson is a 2L and can be reached at forum@valpo.edu.

By: Mike Duffy

In a July 9, 2009, interview with the New York Times, Supreme Court Justice Ruth Bader Ginsburg advocated for Medicaid funding for abortions and indicated that she “thought that at the time Roe [v. Wade] was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of”.

What exactly was Justice Ginsburg talking about? Was Roe really about population control and, more importantly, which groups of people, according to Justice Ginsburg, are too populous?

On September 30, two student groups, the Black Law Students Association and Jus Vitae, co-sponsored a screening of the recently released documentary Maafa 21: Black Genocide in 21st Century America. Maafa is a Swahili word meaning tragedy or disaster and is often used to refer to the “African Holocaust” or “Holocaust of Enslavement”. The film addresses, at length, the racism at the core of the eugenics and birth control movements of the nineteenth and twentieth centuries and investigates their roots, development, and aspirations.

Among the documentary’s many revelations is the fact that Margaret Sanger, the founder of what would become Planned Parenthood, was very much an advocate of eugenics. She promoted the sterilization of those she considered “unfit”, believing that doing so would be the “salvation of American civilization”. Sanger stated that “[e]ugenics seems to me to be valuable in its critical and diagnostic aspects, in emphasizing the danger of irresponsible and uncontrolled fertility of the ‘unfit’ and the feeble-minded establishing a progressive unbalance in human society and lowering the birth-rate among the ‘fit’”. As explained in the film, eugenicists often disguised their actual goal of eradicating African Americans by claiming their targets to be the “unfit” and “feeble-minded.” No doubt eugenicists believed African Americans to be unfit and feeble minded, but still felt that euphemisms made their work more palatable to others.

The documentary concluded by highlighting the devastating legacy of eugenics, birth control, and abortion among African Americans. In reality, Planned Parenthood—the nation’s number one abortion provider—has 78 percent of its offices located in minority communities and while African Americans constitute 12 percent of the U.S. population, they constitute 35 percent of U.S. abortions. Approximately 1,452 African American babies are aborted every day, meaning that at least 13 million have been aborted since 1973. In fact, as explained in the film, abortion has killed more African Americans than have cancer, diabetes, heart disease and gang violence combined.

Now it seems a little clearer as to whom Justice Ginsburg was referring.

For more information about the film, visit Maafa21.com.

Mike is a 3L and can be reached at forum@valpo.edu.

Greener Pastures?

 

By:  Nathan Vis

 

Meeting for the last time this semester, and perhaps for the final time in its tenure at the University, the Conversations Project addressed the future of American environmental policy, in an event entitled “Greener Pastures: A New Era of Environmental Policy?”

The three panel members brought a wide variety of views and backgrounds to inform the audience. Dana Dobosz, a current Valparaiso Law School second year student, started the conversation by discussing her view of environmental policy through her experience as a park ranger in the Indiana Dunes. “I came into the service with high hopes of utilizing the national park as an educational tool for its visitors,” said Dobosz, “but instead I found it to be more concerned about financing state-of-the-art bathrooms and the newest vehicles we could buy. Environmental policy shifts only work if people are educated at a local level, if changes are made at a local level – we need to move beyond dropping Twinkie wrappers wherever we please.”

Kim Ferraro, the Executive Director of the Legal Environmental Aid Foundation, agreed with Dobosz that education and action at the local level was key, and added that strong federal measures were needed. “I believe that a strong federal comprehensive agenda needs to be set, to ensure decisive action.”

Mary Irwin, the appointed Director for Indiana’s Center for Coal Technologies, cautioned a hastened approach to more stringent federal regulation. “We have come a long way in cleaning up the air in America – anyone that has lived in a major city for a period of time can attest to that.”

When asked about their approaches to cleaning and greening the environment – each of the three had a different idea. For Dobosz, “It’s not enough to say we are going green. For too many folks it becomes hip to do, we feel good about going green in a certain area of our life, and we feel out duty is done.”  Irwin asked back, “What more can we do to turn coal, a dirty black rock, clean?  We need it and its energy to fuel steel mills and other industries to create photo-voltaic cells for solar power and to create and transport wind turbines– is the expenditure of more energy to create these sources of energy really enhancing air quality?”  Ferraro replied that they did indeed enhance the environment, “for these are sources of renewable energy which over time do not contribute to carbon pollution of the environment.”

The Conversation Project, a collaborative effort between the Valparaiso University and the Law School, designed to address issues of our time and foster civil discourse, has been in existence for over five years.  Professor of Law Jeremy Telman has led the group’s successful efforts over the past five years, and recently announced that he was stepping down from chairing the group, leaving open the leadership position to someone new to carry on the tradition of intelligent discourse and simple conversation.

 

Nathan is a 2L and can be reached at Nathan.Vis@valpo.edu.