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Tag: innocent

Fair Treatment in Court by Braxton Mounteer, Legal Assistant.

The family law legal system likes to portray itself as a shining beacon of justice and equity, but I have seen first-hand that it is not. Whether it is opportunistic clients and their lawyers who will throw anything against the wall to see what sticks, or cowboy commissioners and judges who play fast and loose with the rules (and even make up their own), generally you will not get a fair shake (just a fair shake) unless you fight—and fight hard and extensively—for it.

Fight just to keep everyone honest? Really? Yes. Well, yes, in the sense that unless you don’t care about your own good character and subscribe to the “fight fire with fire” way of doing things.

If you have enough money, there is more than one lawyer out there that will take it and do and say basically whatever you want.

What about the commissioners and judges? Aren’t they motivated purely by upholding the law and the rules and dispensing justice impartially? Some are. Not all. It’s unpleasantly surprising to me how many domestic relations commissioners and judges indulge in pride, biases, apathy, and indolence.

If you know you’re innocent, if you know you’re a good person, that is rarely enough to ensure you’re treated fairly. What can you do if and when the deck is stacked against you because the opposing party is willing to lie, cheat, and steal his/her way to victory? You must fight with everything that you have. You must—if you can—produce overwhelming evidence that you are in the right (or the opposing side is in the wrong) if you are to have confidence that you will be treated fairly. That’s hard. That’s financially and emotionally exhausting. But there are no shortcuts.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Artificial Fraudulence

Seth Godin stated it well when he wrote, “The ease with which someone can invent and spread lies [with advancing technology] is going to take most of us by surprise. It’s going to require an entirely new posture for understanding the world around us.”

This is especially true in family law.

We will soon reach the point (some are there already) in family law where a spouse or parent can create fake email, text, and audio and visual “records” of spousal and child abuse, substance abuse, infidelity, assets and debt, property damage, diminution and dissipation of assets, scientific data, etc. that is all but indistinguishable from the genuine article. The level and volume of fakery will be impossible for all but the wealthiest of litigants to discern (and even then, if a duped judge is too proud or to biased to acknowledge and remedy the fraud, all the proof in the world won’t protect the innocent). When truth is practicably impossible to verify in the legal process, truth becomes meaningless to the process.

I don’t know how best to address this problem (it may already be too late). Unless the profession takes immediate and wise action, the liars will make such a mockery of the legal process so fast and so pervasively that trust in the system will be irreparably destroyed (and with good reason). We may reach a point where society at large gives up on the notion of justice being a function of truth (reality).

One concern I have is members of the profession (both opposing counsel and judges) acting “offended” for outraged or “concerned” if somebody claims that deepfakes and other similar tactics are being engaged. I’m concerned that someone who may in the utmost sincerity raise legitimate concerns about the authenticity and veracity of certain evidence being ridiculed as paranoid, a vexatious litigator, unprofessional, etc. Not out of a genuine belief, but in the hopes that shaming or even persecuting the whistleblower will result in the claims being retracted so that the hard work of getting to the truth can be avoided and or so that the desired outcome is not impeded by the facts. When that happens, then who will judge the judges, and by what standard?

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Should I intentionally botch my hair follicle test?

Would it be better to botch my hair follicle test so it reads nothing, or allow the judge and the world to see what I’ve been doing the last 6 months? 

First, learn the truth about hair follicle drug test accuracy. 

Second, reduced to its essence your question is, “Should I lie/deceive?” No, you should not. 

Third, when people try to lie and deceive to gain an advantage, those who are caught in their lies and deception cannot be trusted anymore, even when they tell the truth. 

See “The Boy Who Cried ‘Wolf’”https://etc.usf.edu/lit2go/35/aesops-fables/375/the-boy-who-cried-wolf/   

I know you don’t want to suffer for your wrongdoing. Few do. But it is part of the process of being accountable, responsible, and changing for the better. 

I know you fear (and with good reason) the punishment being excessive and unfair. But that doesn’t justify engaging in more wrongdoing. Two wrongs don’t make a right. 

If you are serious about being a responsible adult and changing for the better, you may, after conferring with a good (meaning not only a skilled but a decent) lawyer want to tell the court how you wrestled with this problem to show the court that you understand the difference between truth and lies, right and wrong, paying the price for one’s wrongs, and that you want no more and no less than for the punishment to fit the crime. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Would-it-be-better-to-botch-my-hair-follicle-test-so-it-reads-nothing-or-allow-the-judge-and-the-world-to-see-what-Ive-been-doing-the-last-6-months/answer/Eric-Johnson-311    

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Is there anything that can surprise a judge during a divorce proceeding?

Is there anything that can surprise a judge during a contested divorce proceeding?  

Of course.  

We’ve all read about cases where all of the circumstantial evidence indicated the defendant is guilty, only to be surprised in the eleventh hour some piece of evidence that conclusively proves he couldn’t be guilty, but that someone else is the perpetrator.  

We know, sadly, of people mistakenly or wrongfully convicted, which often comes as a surprise (because we hate the idea that the justice system can be and in such cases is corrupt at one or more levels): 

https://nypost.com/2021/12/01/alice-sebold-apologizes-to-man-wrongly-convicted-of-her-rape/  

https://innocenceproject.org/all-cases/ 

And we’ve all, unfortunately, learned of cases where the defendant was falsely accused, which surprises some. See: 

https://en.wikipedia.org/wiki/Duke_lacrosse_case 

Of course. I will describe one common way a judge can be surprised (especially in divorce and family law cases): like all of us, judges have their own worldviews based upon their individual personal experiences, what they were taught as they grew up, their own beliefs and biases. A good judge tries to be as aware as possible of these things, so that he/she will not take a subject approach to the case but will follow where the evidence leads according to what the law dictates.  

One of the things that many subjective-minded judges tend to do in divorce and child custody disputes is believe the woman/mother to be: 

  • honest 
  • the better parent of the two 
  • financially dependent on her husband 
  • under the husband’s explicit or implicit control (whether that be financially, emotionally/psychologically, physically, or both) 
    • victimized in some way (whether great or small) by the husband, if the wife claims to have been. Extremely common examples: “He controlled all the money, wouldn’t tell me how much/how little we had, and wouldn’t give me any to spend,” and/or “He forbade me from having a job,” and/or “He physically/sexually/emotionally abused me and/or the children,” and/or “He forced me to engage in sexual acts that I found objectionable/humiliating,” and/or “He never shared in the household chores and childrearing.” 

Don’t get me wrong; many wives/mothers are all of these things, but not always. But 25 years as a divorce and family lawyer I can tell you that in my experiences some judges presume the women to be some of these things simply by virtue of them being women, and if the wife/mother makes claims to being any of these things, the judge will often treat such claims as “prima facie” established until the husband/father refutes/rebuts them.  

Consequently, it often surprises some such judges when a husband/father proves* that, while he is not perfect: 

  • he is honest and/or the wife/mother has been lying about him or on the subject of other issues in the divorce and/or child custody case. 
  • he is either just as good a parent as his wife or the better parent of the two 
    • and if he proves he’s the better parent, that often comes as so big of a shock to some courts that the court cannot/will not bring itself to accept such a concept, let alone such a fact 
  • that if the wife/mother is in fact financially dependent on him (as many wives often are, though decreasingly so in modern society), he has been forthright and transparent about financial matters with his wife  
  • that he does not exercise any kind of force or control over his wife and/or children but is decent, loving, and treats all of his family members fairly and well 

*Getting over that bar is often extremely difficult, sometimes impossible for some husbands/fathers with some judges.  

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Is-there-anything-that-can-surprise-a-judge-during-a-contested-divorce-proceeding/answer/Eric-Johnson-311  

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As a lawyer, do you typically trust what your clients say?

As a lawyer, do you typically trust what your clients say?

I don’t represent people or causes in whom I don’t believe. That is not true of all attorneys, as many are aware. When it comes to prevailing in the court case, however, it does some, but little, good to trust what a client says because the courts try to base decisions not on matters of trust but on matters of proof. So whether I “trust” or believe my client, as an attorney I know I will almost always need more than my client’s word against the opposing party’s claim to prevail.

Fortunately, our standards of proof require (or are at least intended to require) more than “your word against mine.” That doesn’t always result in justice, however. I’ve represented people I believed were innocent but who looked guilty as sin. I’ve been approached by people who are guilty but whose story of innocence sounds more than plausible. Still standards such as “innocent until proven guilty” are obviously better than and spare more innocent people of false conviction than “guilty until proven innocent” and “preponderance of evidence” is far better than merely “your word against mine”.

Some lawyers don’t care whether their clients are trustworthy. These kinds of lawyers will represent a guilty client or a client who is undeserving of any court-conferred benefit. They justify doing so by making noble, lofty sounding but empty claims like “everyone has a right to legal representation,” as if mere “legal representation” is what’s needed and deserved when these attorneys are simply using and abusing the legal system for their own benefit and without thought of justice or faith in the rule of law.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/As-a-lawyer-do-you-typically-trust-what-your-clients-say/answer/Eric-Johnson-311

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I know a friend on TikTok who has abusive parents. How can I report or get him help?

I know a friend on TikTok who has a lot of severe PTSD and trauma due to several incidents, and he also has abusive parents. How can I report him to child support and get help for him? 

Do you know this only from what you have witnessed through your friend’s TikTok videos? If so, you may want to approach what your TikTok friend claims with a healthy dose of skepticism. Many people seeking large followings on social media tell sensational stories to attract attention (clickbait). 

The reason I suggest you proceed with caution is because once a parent is reported to the Division of Child and Family Services (DCFS) and/or Child Protective Services (CPS) and/or the police, even if a parent or parents is/are later determined to be innocent of the accusations made against him/her/them, a stigma attaches that in many cases dogs the parent(s) for the rest of their lives. Friends and neighbors shun them, they may lose their positions as coaches and youth Sunday school teachers, they may even lose their jobs—all simply because a vindictive or bored or attention-seeking child reckless made unfounded allegations against his/her parent(s). 

If you know for a fact that a child is being abused (or you have very, very good evidence that it is more likely than not that the child is being abused or in danger of being abused), then you can (and likely should) report your observations or reasonable suspicions to DCFS, CPS, and/or the police. 

Here are some links to help you understand the child abuse and neglect reporting process in the jurisdiction where I practice family law (Utah): 

Here is what Utah’s Child Protective Services website states: 

If you suspect child abuse or neglect is occurring please call our 24/7 hotline at 1-855-323-3237 or contact your local law enforcement agency. 

Utah law requires any person who has reason to believe that a child has been subjected to abuse, neglect, or dependency to immediately notify the nearest office of Child and Family Services, a peace officer, or a law enforcement agency. Abuse, neglect, or dependency of a child can be physical, emotional, or sexual. 

Click here to learn more about the process of reporting child abuse and neglect to CPS and under what circumstances investigations are opened. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/I-know-a-friend-on-TikTok-who-has-a-lot-of-severe-PTSD-and-trauma-due-to-several-incidents-and-he-also-has-abusive-parents-How-can-I-report-him-to-child-support-and-get-help-for-him/answer/Eric-Johnson-311

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What advice would you give me before divorce, if I’m not in the wrong?

What advice would you give someone before a divorce, if it’s known it may happen and you’re not in the wrong?

This is a very important question that too few people ask.

Does this sound familiar?:

  • Your spouse is making false allegations against you. No evidence to support them, yet the police and the courts and child protective services are swallowing it all.
  • You keep asking when justice will be done, when you will be vindicated.
  • You keep wondering when things would get back to “normal”.
  • In the back of your mind you are certain that one day things will indeed get back to normal
  • Odds are they won’t. Especially while your kids are minors.
  • But surely things can’t stay this crazy and out of whack forever, right?
  • Wrong.
  • Things will likely get better but will likely never “go back to normal.”
  • We don’t blame you for thinking we’re exaggerating. The idea that innocence counts for next to nothing is unthinkable. Too terrible to believe. As is the idea that people can slander you with impunity while the police and the courts stand by and either let it happen or even it help it happen. Believe it. It’s true.
  • No really, it’s true.
  • The words of this real divorced spouse and parent sum things up concisely and accurately: I kept wondering when things would get back to normal. I soon realized through brutal experience that it never will, as long as I have kids with my ex that are minors. Or if I am ever around my alone (meaning no other witness could confirm her false claims are exactly that, false). I can’t ever go back to life as it was before divorce. My rose-colored glasses are broken forever, The days of not worrying about someone making things up to punish me in divorce or criminal court or DCFS are no more. The “child-like faith” I once had in our legal system is lost for all time, never to return.
  • You can deny it all you want, but it will do you and your kids no good and only lead to more harm and being victimized more, if you bury your head in the sand or in the clouds. That will only add repeated and more severe injury to what started out as insult.
  • We know what you are hoping for, and you’re not there yet. You likely won’t be for much longer time than you think is realistic or fair.
  • Will the day soon come when you can stop worrying about protecting yourself from false allegations or complaints from your ex? No.
  • In fact, that day may never come.
  • We know people for whom it’s been years, in some cases more than a decade, and still, to this day the ex cannot be trusted to be decent.
  • You have to cautious and careful in the event that the snake that bit you once (or dozens of times) before might try to bite you again.
  • We know it’s exhausting and actually driving you near insane (we really do).
  • But you must stay vigilant.
  • You must stay classy. And stay frosty. You must. It’s either stay frosty, stay classy, or be crushed. Crushed emotionally, financially, etc.
  • An ounce of prevention truly is worth several hundred or several thousand pounds of cure.
  • We understand you’re not happy about this.
  • Still, knowing is half the battle. Forewarned is forearmed.
  • Staying blissfully ignorant won’t do you any good and can do you permanent damage.
  • Divorce and false claims of child and spousal and substance abuse, etc. are more prevalent than you think because nobody wants to believe it will happen to them. And those who are victimized are often too embarrassed and depressed to talk openly and honestly about it. Can you blame them?
  • That’s it. No easy solutions. No cheap assurances. But ignore this information, warnings, and protective measures at your peril.

Hang in there. Heed this crucial advice: “If you’re going through hell, keep going.” – Winston Churchill

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-advice-would-you-give-someone-before-a-divorce-if-it-s-known-it-may-happen-and-you-re-not-in-the-wrong/answer/Eric-Johnson-311

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Do prosecutors enjoy convicting people, even if there’s a question of guilt?

As a general rule, no, I don’t think so.

There will always be some sick, twisted people in every profession, but it has not been my experience that the majority of prosecutors enjoy seeing people go to jail, even if they have doubts as to the defendants’ guilt.

That stated, I can tell you from personal experience that there are prosecutors who, while they may not enjoy seeing people of questionable guilt convicted, don’t particularly care whether innocent people are convicted. I believe that such prosecutors behave and act this way either

  • because some prosecutors have ambitions to advance in the office or to become judges or politicians, and high conviction rates lead to such advancement; or
  • as a defense mechanism against letting the pressures and the stakes of the job destroy them emotionally and psychologically. Prosecutors are confronted with the worst of humanity on a daily basis, so it’s easy for people in such a job to see their professional detachment deteriorate as some prosecutors become jaded, numb, and uncaring. That does not make prosecutorial indifference and apathy acceptable, but it is understandable.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Do-prosecuting-attorneys-enjoy-putting-people-in-jail-even-when-they-are-not-sure-they-are-guilty/answer/Eric-Johnson-311

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Why do some lawyers settle for a plea bargain when they know their client is innocent?

Many different reasons, but here’s a good example of one reason: because there are times when being innocent may not result in the jury believing you are, in fact, innocent.

I had a client (some details of the story are changed out of respect for privacy) who caught his wife in bed with their neighbor. He and the neighbor were friends, and so he was welcome to enter his neighbor’s house without knocking. Somehow, this friend/neighbor must not have figured my client would come to the house without knocking on the day the neighbor and my client’s wife were in bed together, asleep. When my client rounded the corner and entered the bedroom, he screamed in anger and pain, “Heather*, you slut!” The neighbor, who’d been drinking, woke up startled and disoriented, thinking there was an intruder in his house and he charged my client trying to kill him (he didn’t know it was his friend). My client was caught off guard and was so scared he soiled his pants and took a swing at the attacking neighbor, breaking his jaw.

My client, who had never been in trouble with the law a day in his life, was charged with aggravated assault. I believed he was innocent. His wife, who witnessed the whole thing, believed he was innocent. Do you believe I could have gotten the jury to believe that a man who caught his wife in bed with another guy broke the guy’s jaw accidentally and/or in self-defense?

I didn’t either. Or more accurately, I didn’t think the odds were good enough to risk it.

Worse, if my client had been found guilty by the jury, he could have gone to prison for at least 5 years. That’s not just five years, but five years away from his wife (who he still loved and who still wanted to be with him) and their 2-year old daughter. And losing a job he loved and that paid well.

The prosecutor offered him a deal to plead to a lesser charge and to get 30 days in jail. It was a bird in the hand is worth two in the bush situation.

I told my client that if I were him, I wouldn’t risk going to prison for at least 5 years if I could plead guilty and serve only 30 days. He could serve the time and then go back to his family and job without skipping much of a beat, compared to 5 terrifying and miserable years in prison.

It wasn’t easy. He has a criminal record now. He’s a felon. He can’t vote or own or use a gun. But he’s a free man who spent 30 days away from his family and job and life instead of 5 years. Not an easy choice to make, but not the hardest to make, either.

This is a perfect example of one situation where I advised my client to take a plea deal.

*not her real name

https://www.quora.com/Why-do-some-lawyers-settle-for-a-plea-bargain-when-they-know-their-client-is-innocent/answer/Eric-Johnson-311

Utah Family Law, LC | divorceutah.com | 801-466-9277

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