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Entries in judge eugene hyman (11)

Monday
Aug132012

Jared Loughner Pleads Guilty. What Should Arizona Do?

Jared Loughner pleaded guilty in federal court, after he was found to be mentally competent and he will be sentenced to life in jail without the possibility of parole.  What remains to be seen is if Arizona will now seek the death penalty.

Eugene Hyman, retired Superior Court Judge in Santa Clara, California says that under the U.S. Constitution, there is nothing that prohibits another state on the same operative facts from prosecuting under its law.  The issue of whether Arizona can prosecute him on the death penalty is up to the Arizona Constitution, not the U.S. Constitution.  Hypothetically, if Loughner were to be found insane or incompetent to stand trial under the federal court, that would not prohibit the state on whether or not they would be required to find him insane, Hyman notes.

Hyman says that if he were representing Loughner, he would investigate what the state of Arizona was going to do first.  “It would be crazy to go ahead and take care of the federal case and leave him vulnerable with respect to the state case,” he says.  Hyman believes that the only reason Arizona would want to pursue the case is to seek the death penalty, considering Loughner is never getting out of jail.

In terms of who goes first, federal or state, in the federal constitution, it doesn’t matter but in the state constitution, it does make a difference, according to Hyman.  If Loughner is found incompetent in the federal case, that can be pursued in the state case.  A lot of evidence admitted in the federal case is going to be admitted in the state case and all of the testimony in the federal case, where people said he was competent, is going to come into play in the competency hearing with respect to Arizona, adds Hyman.

Hyman says there is a big distinction between the definitions of insanity and competency.  Insanity asks if a person was culpable at the time the offense was committed and if that person knew right from wrong.  Competency to stand trial asks without any consideration whether a person knew they were insane at the time of the offense and if that person is able to appreciate what is going on with the prosecution and if that person is able to assist their advocate in their defense.  Also, insanity is decided upon by a jury after being found guilty.  Incompetency, on the other hand, is for a judge to decide, not a jury, notes Hyman.Source: dailymail.co.uk

If a person is found to be incompetent, they can be sent away for many years to get rehabilitated and the prosecution can still pursue the case.  Hyman says that a lot of prosecutors fight incompetency because the strength of their case may not be the same down the line.  “Delay of a case always favors the defense, never the prosecution,” he says.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows.  For more information, visit www.judgehyman.com.  He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.

Monday
Jul302012

Judge Gives Temporary Custody to Tito Jackson

As the battle over Michael's Jackson's estimated $1 billion estate continues, temporary guardianship has been granted to his brother Tito, after concerns of the well-being of Michael's mother Katherine arose, the children's guardian, while she was away in Arizona.

Retired Superior Court Judge of Santa Clara, California, Eugene Hyman says that the courts look at what's in the best interest of the children first and unfortunately, a lot of parents think it's about them.  In dependency court, you have social workers who generate information and investigations for the judge.  In probate court, however, it is a party that is moving.  Someone is coming forward and saying the court needs to be aware that something is going on and as a result, there is an emergent situation and the court needs to make temporary orders.  

Judge Hyman says the court has probate investigators and depending on the the local culture, the court may be using those investigators to get some independent information for the court or may not, depending on the financial situation of the court and the availability of the investigators.  He says that in L.A., they probably won't be able to do that because of financial difficulties.  In Santa Clara, where he resided, he would have had an investigator get him some information, even in a temporary situation.Source: www.abcnews.go.com

Looking at the declarations, it's always going to be painted in a direction of seriousness in order to get the court to do something, Hyman says.  He adds that in most of these situations, the respondant has not had a chance to respond because the moving parties say there isn't time.   In this case, although the kids are older, they still are alone and the actual guardian is out of state and has not put something in play for the kids to be safe and so, the court needs to do something on an emergency basis.

Ulimately, Hyman says, there will be another hearing where the actual guardian will give her information to the court.  While he is not aprised as to whether or not the temporary guardian is requesting to be permanently replaced in terms of Mrs. Jackson, right now it's only a temporary request.  Being that Mrs. Jackson is elderly, however, Hyman thinks that at some point, someone is going to try and replace her.

Hyman speculates that this very well could be a vieled attempt to get control of Michael's estate but without more information, it's hard for him to say.  If he was the probate judge, he would want to get a lot more information before he would do any changing with respect to guardianship.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows.  For more information, visit www.judgehyman.com.  He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.

Saturday
Jul282012

California Considers Non-Jury Trials for Misdemeanor Offenses

California is considering doing away with jury trials for misdemeanor cases, where offenses are 6 months or less.  This is a cost-cutting idea from a justice in the 2nd district court of appeals in L.A.  Judge Judith Ashmann-Gerst said, “We should consider no jury trials in misdemeanor cases where the penalty will be less than 6 months in jail.  Prisoners are doing about a minute and a half anyway.”Source: http://www.courts.ca.gov/2380.htm

Eugene Hyman, retired Superior Court Judge of Santa Clara, California says it’s more than just the amount of jail time you get; it’s the lifetime consequences of having a conviction.  He says that certain sexual misdemeanor charges carrying  less than 6 months that require you to register for the rest of your life.   If you use the sole standard in terms of whether or not it’s a possible 6 months of jail time, you wouldn’t have the right to a jury trial but if convicted, you’d have to register for the rest of your life.

Hyman says that there is a lot of public support to streamline things that require constitutional law change because while you have the federal laws that set minimum constitutional due process, California law has its own requirements.  However, those requirements can’t require less than the federal government but can require more which can be done by proposition and it depends on how it’s titled, which is important in terms of bias, Hyman adds.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows.  For more information, visit www.judgehyman.com.  He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.

 

 

Wednesday
Jul252012

Thomas Kinkade Holographic Will Battle

As famed American painter Thomas Kinkade leaves a holographic will, a battle over his estate is brewing between his soon to be ex-wife, girlfriend and children.  Retired Superior Court Judge of Santa Clara, California Eugene Hyman says that a holographic will is written in a person's handwriting, doesn't require eyewitnesses like a regular will but does need to have the intent of being a testamentary instrument and state the purpose of the will.  In the case of Thomas Kinkade's holographic will, the handwriting reads that he was leaving all of his possessions to his girlfriend.Source: www.handwritinguniversity.com

In his holographic will, Kinkade does not void any prior wills and while Judge Hyman is not sure if there were any, he says it is usually pretty standard fare to void any prior wills.  Hyman notes that Kinkade doesn't address his children in this will and if this happens, the assumption is that the person made a mistake by not including his children.  If you have two wills and the second will doesn't void all prior wills, the prior will still exists to the extent that they're not inconsistent, says Hyman.

Kinkade still has a wife, as their divorce is still not final, so she has her community property interest that she is still entitled to get, regardless of what any will says, according to Hyman.  Additionally, his wife is probably still entitled to administer the estate and if she doesn't want to or can't, then the children would have preference.  The girlfriend would be the last one appointed in this situation.

With a holographic will in avoiding probate, or avoiding the necessity of an attorney, one needs to address the tax aspects of the estate, which Judge Hyman says the average person is not capable of and good estate planning would be necessary to avoid probate.

Another issue with Kinkade's holographic will is whether he had the capacity to write the will or if he was under undue influence, given his history of alcoholism.  Judge Hyman says that if he were the wife or family member, he'd be attacking this as Kinkade might not have had the ability to do what he was doing and saying that he was of sound mind.

Judge Hyman believes there is going to be a settlement, given the $10 million + valued size of Kinkade's estate and he's pretty sure the girlfriend will receive a healthy chunk of change but that the family will get the bulk of the estate.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows.  For more information, visit www.judgehyman.com.  He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.

Tuesday
Jul242012

Supreme Court Rejects Mandatory Life Sentencing for Juveniles

In a narrow 5-4 Supreme Court ruling, it was decided that mandatory life sentencing under the age of 18 violates the 8th Ammendment ban on cruel and unusual punishment.  According to retired California Superior Court Judge  Eugene Hyman, the reality is judges still have the discretion on individual cases to impose a life sentence without the possibility of parole. With a 100 year sentence, for example, the end result is a life sentence.

Judge Hyman believes this is a natural progression in lieu of cases that have declared it unconstitutional to impose life sentences on juveniles who were involved in crimes that didn't include killing and others that banned the death penalty on teenagers.  In California, it isn't going to have an impact because the California courts already do what this decision was concerned with.  Judge Hyman says he's had habius cases, where you've contained someone illegally, where the person has killed someone and is found unfit to be treated as a juvenile and receives an adult sentence.  He's had juveniles that are found unfit to be tried as a juvenile and given 15 or 25 years to life.  At their parole hearings, there are no indications that they've had issues while in custody yet the parole board finds a reason to deny parole or if the parole board find them suitable for parole, the governor overrules them and then it comes to the the courts to deal with the issue.

The important part of this case, according to Judge Hyman is that it will be used for more examinations of how we do things with those under the age of 18 in terms of standards and review.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows.  For more information, visit www.judgehyman.com.  He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.