Murder Vs Manslaughter
In the legal world, there are distinctions in crime level for the different reasons that you may kill someone. The two main charges are murder and manslaughter, but there are even varying levels of heinousness within each category. Understanding the difference between murder and manslaughter is important when you are facing possible charges for killing someone.
Murder generally implies that the crime of taking someone's life was done intentionally, with possible planning beforehand. In this type of case, the prosecutor will have to prove prior intent, such as showing that the defendant purchased the murder weapon or made definite plans ahead of time.
Murder is divided into two different degrees, with one other associated crime. First degree murder generally fits the "in cold blood" description. It includes a large amount of planning for the killing, showing that it was very much premeditated and not an accident or crime of passion.
Also, especially cruel murders that may have involved rape or torture before death can also be considered as first degree murder.
Second degree murder is the level in between first degree murder and the first level of manslaughter. In this type of case, the killing must be shown to be intentional, yet there may not have been prior planning. It is not a crime in the heat of passion, yet there is some amount of recklessness that went into acting in a way that caused someone else's death.
When someone is killed in the process of a felony, this is called felony murder. Although the murder was not preplanned, it occurred during another serious crime, which increases its level of seriousness. For instance, if you are robbing a house and the owner walks in and you shoot him in a moment of panic, you can still be charged with felony murder.
Manslaughter is generally associated with accidental killing, although there are are two levels: voluntary and involuntary. Voluntary manslaughter is usually used in conjunction with crimes in the heat of passion, or a death caused with provocation. It is intentional killing without the prior intent to kill, like second degree murder.
On the other hand, involuntary manslaughter is a crime that is considered the most accidental of both murder and manslaughter. Involuntary manslaughter occurs when you kill someone without prior deliberation or intention and without acting in passion or in a state of mental illness. For example, if you decide to drink then drive, then crash into someone, you can be charged with a form of involuntary manslaughter.
Minggu, 01 Agustus 2010
Jumat, 30 Juli 2010
California Permanent Disability
The AMA Guides are inconsistent between chapters. A worker who has to take medications and has to visit a doctor for hypertension but can still perform his or her job gets a higher rating than a worker with a post surgical back with leg pain who is no longer able to do physical work and looses his or her career as a result of the injury. An assembly worker with carpal tunnel who has an operation but can’t return to repetitive work might get 5% to 10%, but a worker with very minimal psychiatric issues can get a rating of 25%.
In short, the orthopedic injuries that lower income workers suffer from and are by far the most dominant type of injury are rated very low and the few internal and psyche problems that upper class workers get rate higher. The Guides have subjectivity and there are still disagreements between doctors regarding the ratings. Also, the rating depends on how well the doctor understands the AMA Guides and how willing the doctor is to give the injured worker the full impairment rating that accurately reflects the injured workers impairment as defined by the AMA Guides.
To add insult to injury, the Administrative Director of the Department of Industrial Relations did not use any empherical data in determining the adjustment factors for the new permanent disability system as required by law. At this point, the defense attorney hacks and insurance company lackeys will say that I am wrong and that the Director used the 2004 Rand Report. This argument has no merit.
First, the Rand Report proposed adjustments to the old system permanent disability rating schedule to adjust between parts of the body. Rand felt that knee injuries were being paid too much and psychiatric injuries were being paid too little. Rand proposed adjustments to make the schedule more equitable between body parts.
The modifications that Rand used had nothing to do with the AMA Guides percentages. The AMA Guides do not even address diminished future earnings capacity. The Rand 2004 Rand study has nothing to do with coming up with modifying factors to make the AMA percentages reflect diminished future earnings capacity. There is no data to support the current modifying factors other than the “policy judgment” by the Administrative Director.
In effect, the new California permanent disability rating system is almost a strait AMA system with minor modifying factors. The result has been cuts in permanent disability benefits by 50% to 70%. This is not even taking into consideration the very draconian apportionment rules that now allow employers and insurance companies to subtract from the already dramatically lowered compensation for such factors as age, race, sex, national origin, as well as asymptomatic pre-existing conditions which are aggravated and are now symptomatic due to the work injury.
The goal of these changes is to chase applicant attorneys out of the system. Most of the defense attorneys will also be gone. Once the attorney’s are removed form the system, the way is clear for even more draconian laws to further dismantle the workers’ compensation system Eventually, if there is no change, workers’ compensation will really only serve as a liability shield (Exclusive Remedy) for employers and will exclude many, mostly older, employees from coverage and offer scant benefits. Insurers are already reaping enormous profits.
Meanwhile, the bill is being passed to the taxpayers in the form of increased Social Security Disability payments, higher Medicare and MediCal roles, and more emergency room use.
Permanent disability, while only responsible for about 20% or less of total workers’ compensation system costs, is the key to the entire system. Applicant lawyers charge a state mandated percentage which is based mostly on the permanent disability of the injured worker. The attorney fee comes out of the injured worker’s recovery and is not paid by the insurance company. The goal of the employers and insurers is to gut the permanent disability benefit so that lawyers find representing injured workers unattractive.
The result is that there will be no one to police the workers’ compensation system to ensure that the injured worker is treated properly and fairly by the system. The reason why lawyers started to get involved in the system was because of the abuse by the insurance industry and employers. The lawyers who started representing injured workers in the 1930’s and 1940’s in California came out of the labor movement and were not motivated by high fees.
The fees were low and most lawyers shunned the work that these pioneers pursued. These were not “greedy trial lawyers” but good people who genuinely wanted to help the injured worker. I am fortunate to have known some of these pioneer applicant lawyers.
I suspect that at some point in the future, the insurance industry and employers will continue to abuse the new found power they have and that either the system will be changed again to give a level playing field for the injured worker or eliminated altogether if there is national health insurance in place.
In short, the orthopedic injuries that lower income workers suffer from and are by far the most dominant type of injury are rated very low and the few internal and psyche problems that upper class workers get rate higher. The Guides have subjectivity and there are still disagreements between doctors regarding the ratings. Also, the rating depends on how well the doctor understands the AMA Guides and how willing the doctor is to give the injured worker the full impairment rating that accurately reflects the injured workers impairment as defined by the AMA Guides.
To add insult to injury, the Administrative Director of the Department of Industrial Relations did not use any empherical data in determining the adjustment factors for the new permanent disability system as required by law. At this point, the defense attorney hacks and insurance company lackeys will say that I am wrong and that the Director used the 2004 Rand Report. This argument has no merit.
First, the Rand Report proposed adjustments to the old system permanent disability rating schedule to adjust between parts of the body. Rand felt that knee injuries were being paid too much and psychiatric injuries were being paid too little. Rand proposed adjustments to make the schedule more equitable between body parts.
The modifications that Rand used had nothing to do with the AMA Guides percentages. The AMA Guides do not even address diminished future earnings capacity. The Rand 2004 Rand study has nothing to do with coming up with modifying factors to make the AMA percentages reflect diminished future earnings capacity. There is no data to support the current modifying factors other than the “policy judgment” by the Administrative Director.
In effect, the new California permanent disability rating system is almost a strait AMA system with minor modifying factors. The result has been cuts in permanent disability benefits by 50% to 70%. This is not even taking into consideration the very draconian apportionment rules that now allow employers and insurance companies to subtract from the already dramatically lowered compensation for such factors as age, race, sex, national origin, as well as asymptomatic pre-existing conditions which are aggravated and are now symptomatic due to the work injury.
The goal of these changes is to chase applicant attorneys out of the system. Most of the defense attorneys will also be gone. Once the attorney’s are removed form the system, the way is clear for even more draconian laws to further dismantle the workers’ compensation system Eventually, if there is no change, workers’ compensation will really only serve as a liability shield (Exclusive Remedy) for employers and will exclude many, mostly older, employees from coverage and offer scant benefits. Insurers are already reaping enormous profits.
Meanwhile, the bill is being passed to the taxpayers in the form of increased Social Security Disability payments, higher Medicare and MediCal roles, and more emergency room use.
Permanent disability, while only responsible for about 20% or less of total workers’ compensation system costs, is the key to the entire system. Applicant lawyers charge a state mandated percentage which is based mostly on the permanent disability of the injured worker. The attorney fee comes out of the injured worker’s recovery and is not paid by the insurance company. The goal of the employers and insurers is to gut the permanent disability benefit so that lawyers find representing injured workers unattractive.
The result is that there will be no one to police the workers’ compensation system to ensure that the injured worker is treated properly and fairly by the system. The reason why lawyers started to get involved in the system was because of the abuse by the insurance industry and employers. The lawyers who started representing injured workers in the 1930’s and 1940’s in California came out of the labor movement and were not motivated by high fees.
The fees were low and most lawyers shunned the work that these pioneers pursued. These were not “greedy trial lawyers” but good people who genuinely wanted to help the injured worker. I am fortunate to have known some of these pioneer applicant lawyers.
I suspect that at some point in the future, the insurance industry and employers will continue to abuse the new found power they have and that either the system will be changed again to give a level playing field for the injured worker or eliminated altogether if there is national health insurance in place.
Kamis, 29 Juli 2010
Defense Attorneys and Domestic Violence
Domestic violence defense is a specialty field among lawyers and anyone charged under these laws needs to make certain that they have appropriate legal representation. The penalties for violations of DV law are stiff and Los Angeles police are empowered to take a great many actions if they suspect that violence is afoot in a domestic scenario.
The measures they may take include separating the couple temporarily, seizing any weaponry in the household and determining if any injuries they observe in the course of the investigation were the result of physical violence by a partner or spouse.
The need for competent defense is made more imperative by the fact that domestic violence can be prosecuted as a felony crime. Those individuals who have prior convictions, especially for violent offenses, are at particularly high risk of being prosecuted with a felony. This means that legal representation must be comprehensive in investigating the arrest.
If any of the rights of the accused have been violated, a good domestic violence attorney will be able to determine as much and to add those violations to the defense's case. The stakes are high with these cases, that much is certain.
An individual convicted of domestic violence on the misdemeanor or felony level faces fines, imprisonment, community service, mandatory counseling and other penalties. At the felony level, the prison terms may be as long as 3 years. In most cases, the felony charges will not be prosecuted unless the victim claims extensive injuries or distress as a result of the domestic violence they allege occurred. This means that a good attorney can oftentimes find out if the claims being made against the accused are legitimate and if the prosecutor is being over-zealous in their pursuit of convicting the accused.
Domestic violence is defined as more than simply striking or otherwise physically assaulting an individual under California law.
Individuals may be charged with a DV crime if they engage in stalking behavior, if they make threats against a current or former intimate partner or if they are accused of abusing or endangering their children.
Couples who have a common child but who are not currently involved also fall under the purview of domestic violence law. As these charges can be very serious and the consequences even more so, an attorney who knows these laws inside and out is a necessary part of a good defense.
The measures they may take include separating the couple temporarily, seizing any weaponry in the household and determining if any injuries they observe in the course of the investigation were the result of physical violence by a partner or spouse.
The need for competent defense is made more imperative by the fact that domestic violence can be prosecuted as a felony crime. Those individuals who have prior convictions, especially for violent offenses, are at particularly high risk of being prosecuted with a felony. This means that legal representation must be comprehensive in investigating the arrest.
If any of the rights of the accused have been violated, a good domestic violence attorney will be able to determine as much and to add those violations to the defense's case. The stakes are high with these cases, that much is certain.
An individual convicted of domestic violence on the misdemeanor or felony level faces fines, imprisonment, community service, mandatory counseling and other penalties. At the felony level, the prison terms may be as long as 3 years. In most cases, the felony charges will not be prosecuted unless the victim claims extensive injuries or distress as a result of the domestic violence they allege occurred. This means that a good attorney can oftentimes find out if the claims being made against the accused are legitimate and if the prosecutor is being over-zealous in their pursuit of convicting the accused.
Domestic violence is defined as more than simply striking or otherwise physically assaulting an individual under California law.
Individuals may be charged with a DV crime if they engage in stalking behavior, if they make threats against a current or former intimate partner or if they are accused of abusing or endangering their children.
Couples who have a common child but who are not currently involved also fall under the purview of domestic violence law. As these charges can be very serious and the consequences even more so, an attorney who knows these laws inside and out is a necessary part of a good defense.
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