Grand Jury – Should the Prosecutor Seek Indictments or Justice?

Grand Jury – Should the Prosecutor Seek Indictments or Justice?

by Jaired Hall, Esquire

I want to look more into the Missouri Statutes that apply specifically and exclusively to law enforcement officers and their use of force, but in the meantime, here are some more thoughts about the grand jury process and what happened in Ferguson.

I find the whole grand jury process interesting.

In my experience, prosecutor’s use them to pretty much get whatever charges they want straight to the trial phase of the court system.

99% (or thereabouts) of criminal defendants can’t afford to fight a case to trial, and therefore, it’s easy for a prosecutor to pay little attention to how good or bad the case is. Once he shoves through an indictment, the next most likely thing he’ll get is a plea deal.

And by the way, I’m sitting here in Texas County where the 99% of people I’m talking about who end up pleading out because they can’t afford a trial are white people.

I was pleasantly surprised one day a year or so ago when a prosecutor from a nearby county called me and said, “I understand you’re representing the accused. We’re doing a grand jury over here. If you have any evidence that you believe the jury should be aware of, I’d be happy to present it to them along with the other evidence. I gave him some stuff, and the indictment that came down was for a misdemeanor (which ended up getting thrown out shortly thereafter). The prosecutor was fair, and when he could have gotten multiple felonies, he came out with a misdemeanor.

I think there is no question that the prosecutor in the Michael Brown case could have presented the evidence in a way that would easily have resulted in an indictment for first degree murder.

I think it’s also pretty likely that a trial would have resulted in a not guilty verdict.

A prosecutor’s job isn’t to make a victim’s family happy by prosecuting a legally unwinable case. A prosecutor’s job is to win cases against those who have committed a crime. An affirmative defense isn’t *just* something the defendant brings forward — the defendant brings it forward to convince the jury that *no crime* was committed.

A prosecutor who has a really weak case will not even file. This prosecutor may have considered the case a clear loser, but for the sake of exhaustive fairness and justice, he presented very thorough evidence to a grand jury.

Here’s an interesting article: http://www.washingtontimes.com/news/2014/nov/25/legal-scholars-praise-ferguson-grand-jury-fairness/

What should a prosecutor try to be accomplishing with a grand jury?

If a prosecutor has a really bad case, he should just decline to file charges at all, and not even seek an indictment.

But is that even an option in a high profile case? In a high profile case, the prosecutor is not, in my opinion, suddenly mandated to take a case all the way to the trial stage. For one thing, no one likes to lose a big trial. For another thing, I don’t think it’s ethical to make someone go through a murder trial (or any criminal trial for that matter) if the prosecutor truly believes the jury will find the person not guilty. But finally, when the stakes are high (such as in the Ferguson case, or any case where someone is killed) the prosecutor should not take the weight of the decision on his own shoulders. It is, in these instances, appropriate to make the citizens of the area in the form of a grand jury make that weighty decision.

(From Jaired B. Hall’s Blog)

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Resistance is Futile: The Violent Cost of Challenging the American Police State

Resistance is Futile: The Violent Cost of Challenging the American Police State

By John W. Whitehead
September 09, 2014

 
“Police are specialists in violence. They are armed, trained, and authorized to use force. With varying degrees of subtlety, this colors their every action. Like the possibility of arrest, the threat of violence is implicit in every police encounter. Violence, as well as the law, is what they represent.”—Kristian Williams, activist and author

If you don’t want to get probed, poked, pinched, tasered, tackled, searched, seized, stripped, manhandled, arrested, shot, or killed, don’t say, do or even suggest anything that even hints of noncompliance. This is the new “thin blue line” over which you must not cross in interactions with police if you want to walk away with your life and freedoms intact.

The following incidents and many more like them serve as chilling reminders that in the American police state, “we the people” are at the mercy of law enforcement officers who have almost absolute discretion to decide who is a threat, what constitutes resistance, and how harshly they can deal with the citizens they were appointed to “serve and protect.”

For example, police arrested Chaumtoli Huq because she failed to promptly comply when ordered to “move along” while waiting outside a Ruby Tuesday’s restaurant for her children, who were inside with their father, using the bathroom. NYPD officers grabbed Huq, a lawyer with the New York City Public Advocate’s office, flipped her around, pressed her against a wall, handcuffed her, searched her purse, arrested her, and told her to “shut up” when she cried out for help, before detaining her for nine hours. Huq was charged with obstructing governmental administration, resisting arrest and disorderly conduct.

Oregon resident Fred Marlow was jailed and charged with interfering and resisting arrest after he filmed a SWAT team raid that took place across the street from his apartment and uploaded the footage to the internet. The footage shows police officers threatening Marlow, who was awoken by the sounds of “multiple bombs blasting and glass breaking” and ran outside to investigate only to be threatened with arrest if he didn’t follow orders and return inside.

Eric Garner, 43 years old, asthmatic and unarmed, died after being put in a chokehold by NYPD police, allegedly for resisting arrest over his selling untaxed, loose cigarettes, although video footage of the incident shows little resistance on Garner’s part. Indeed, the man was screaming, begging and insisting he couldn’t breathe. And what was New York Mayor Bill De Blasio’s advice to citizens in order to avoid a similar fate? Don’t resist arrest. (Mind you, the NYPD arrests more than 13,000 people every year on charges of resisting arrest, although only a small fraction of those charged ever get prosecuted.)

Then there was Marine Brandon Raub, who was questioned at his home by a swarm of DHS, FBI, Secret Service agents and local police, tackled to the ground, handcuffed, and forcibly transported to a police station. Raub was then detained against his will in a psychiatric ward, without being provided any explanation, having any charges levied against him or being read his rights—all allegedly because of controversial song lyrics and political views posted on his Facebook page.

Incredibly, police insisted that Raub was not in fact under arrest. Of course, Raub was under arrest. When your hands are handcuffed behind you, when armed policemen are tackling you to the ground and transporting you across town in the back of a police car, and then forcibly detaining you against your will, you’re not free to walk away.

If you do attempt to walk away, be warned that the consequences will likely be even worse, as Tremaine McMillian learned the hard way. Miami-Dade police slammed the 14-year-old boy to the ground, putting him in a chokehold and handcuffing him after he allegedly gave them “dehumanizing stares” and walked away from them, which the officers found unacceptable. According to Miami-Dade Police Detective Alvaro Zabaleta, “His body language was that he was stiffening up and pulling away… When you have somebody resistant to them and pulling away and somebody clenching their fists and flailing their arms, that’s a threat. Of course we have to neutralize the threat.”

As I point out in my book A Government of Wolves: The Emerging American Police State, this mindset that any challenge to police authority is a threat that needs to be “neutralized” is a dangerous one that is part of a greater nationwide trend that sets the police beyond the reach of the Fourth Amendment. Moreover, when police officers are allowed to operate under the assumption that their word is law and that there is no room for any form of disagreement or even question, that serves to chill the First Amendment’s assurances of free speech, free assembly and the right to petition the government for a redress of grievances.

Frankly, it doesn’t matter whether it’s a casual “show your ID” request on a boardwalk, a stop-and-frisk search on a city street, or a traffic stop for speeding or just to check your insurance: if you feel like you can’t walk away from a police encounter of your own volition—and more often than not you can’t, especially when you’re being confronted by someone armed to the hilt with all manner of militarized weaponry and gear—then for all intents and purposes, you’re under arrest from the moment a cop stops you.

That raises the question, what exactly constitutes resisting an arrest? What about those other trumped up “contempt of cop” charges such as interference, disorderly conduct, obstruction, and failure to obey a police order that get trotted out anytime a citizen engages in behavior the police perceive as disrespectful or “insufficiently deferential to their authority”? Do Americans really have any recourse at all when it comes to obeying an order from a police officer, even if it’s just to ask a question or assert one’s rights, or should we just “surrender quietly”?

The short answer is that anything short of compliance will get you arrested and jailed. The long answer is a little more complicated, convoluted and full of legal jargon and dissonance among the courts, but the conclusion is still the same: anything short of compliance is being perceived as “threatening” behavior or resistance to be met by police with extreme force resulting in injury, arrest or death for the resistor.

The key word, of course, is comply meaning to obey, submit or conform. This is what author Kristian Williams describes as the dual myths of heroism and danger: “The overblown image of police heroism, and the ‘obsession’ with officer safety, do not only serve to justify police violence after the fact; by providing such justification, they legitimize violence, and thus make it more likely.”

How else can we explain why police shot a schizophrenic 30-year-old man holding a pellet gun over 80 times before his corpse was handcuffed? Mind you, witnesses reportedly informed the police that it was not a real gun, but the officers nonetheless opened fire about five minutes after arriving on the scene.

John Crawford was shot by police in an Ohio Wal-Mart for holding an air rifle sold in the store that he may have intended to buy. Oscar Grant, age 23, unarmed and lying face-down on the ground, was shot in the back by a transit officer in Oakland, Calif., who mistakenly used a gun instead of a taser to further restrain him. Ordered to show his hands after “anti-crime” police officers noticed him adjusting “his waistband in a manner the officers deemed suspicious,” 16-year old Kimani Grey was fired at 11 times, and shot seven times, including three times in the back. Reportedly, the teenager was unarmed and unthreatening.

Even dogs aren’t spared if they are perceived as “threatening.” Family dogs are routinely shot and killed during SWAT team raids, even if the SWAT team is at the wrong address or the dog is in the next yard over. One six-year-old girl witnessed her dog Apollo shot dead by an Illinois police officer.

Clearly, when police officers cease to look and act like civil servants or peace officers but instead look and act like soldiers occupying a hostile territory, it alters their perception of “we the people.” Those who founded this country believed that we were the masters and that those whose salaries we pay with our hard-earned tax dollars are our servants.

If daring to question, challenge or even hesitate when a cop issues an order can get you charged with resisting arrest or disorderly conduct, you’re not the master in a master-servant relationship. In fact, you’re not even the servant—you’re the slave.

This is not freedom. This is not even a life.

This is a battlefield, a war zone—if you will—governed by martial law and disguised as a democracy. No matter how many ways you fancy it up with shopping malls, populist elections, and Monday night football, the fact remains that “we the people” are little more than prisoners in the American police state, and the police are our jailers and wardens.

 

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We’re All Criminals and Outlaws in the Eyes of the American Police State

Commentary


We’re All Criminals and Outlaws in the Eyes of the American Police State

By John W. Whitehead 
August 04, 2014

“Never in the civilised world have so many been locked up for so little.”—“Rough Justice in America,” The Economist

Why are we seeing such an uptick in Americans being arrested for such absurd “violations” as letting their kids play at a park unsupervised, collecting rainwater and snow runoff on their own property, growing vegetables in their yard, and holding Bible studies in their living room?

Mind you, we’re not talking tickets or fines or even warnings being issued to these so-called “lawbreakers.” We’re talking felony charges, handcuffs, police cars, mug shots, pat downs, jail cells and criminal records.

Consider what happened to Nicole Gainey, the Florida mom who was arrested and charged with child neglect for allowing her 7-year-old son to visit a neighborhood playground located a half mile from their house.

For the so-called “crime” of allowing her son to play at the park unsupervised, Gainey was interrogated, arrested and handcuffed in front of her son, and transported to the local jail where she was physically searched, fingerprinted, photographed and held for seven hours and then forced to pay almost $4000 in bond in order to return to her family. Gainey’s family and friends were subsequently questioned by the Dept. of Child Services. Gainey now faces a third-degree criminal felony charge that carries with it a fine of up to $5,000 and 5 years in jail.

For Denise Stewart, just being in the wrong place at the wrong time, whether or not she had done anything wrong, was sufficient to get her arrested.

The 48-year-old New York grandmother was dragged half-naked out of her apartment and handcuffed after police mistakenly raided her home when responding to a domestic disturbance call. Although it turns out the 911 call came from a different apartment on a different floor, Stewart is still facing charges of assaulting a police officer and resisting arrest.

And then there are those equally unfortunate individuals who unknowingly break laws they never even knew existed. John Yates is such a person. A commercial fisherman, Yates was sentenced to 30 days in prison and three years of supervised release for throwing back into the water some small fish which did not meet the Florida Fish and Wildlife Commission’s size restrictions. Incredibly, Yates was charged with violating a document shredding provision of the Sarbanes-Oxley Act, which was intended to prevent another Enron scandal.

The list of individuals who have suffered similar injustices at the hands of a runaway legal system is growing, ranging from the orchid grower jailed for improper paperwork and the lobstermen charged with importing lobster tails in plastic bags rather than cardboard boxes to the former science teacher labeled a federal criminal for digging for arrowheads in his favorite campsite.

As awful as these incidents are, however, it’s not enough to simply write them off as part of the national trend towards overcriminalization—although it is certainly that. Thanks to an overabundance of 4500-plus federal crimes and 400,000 plus rules and regulations, it’s estimated that the average American actually commits three felonies a day without knowing it.

Nor can we just chalk them up as yet another symptom of an overzealous police state in which militarized police attack first and ask questions later—although it is that, too.

Nor is the problem that we’re a crime-ridden society. In fact, it’s just the opposite. The number of violent crimes in the country is down substantially, the lowest rate in 40 years, while the number of Americans being jailed for nonviolent crimes, such as driving with a suspended license, are skyrocketing.

So what’s really behind this drive to label Americans as criminals?

As with most things, if you want to know the real motives behind any government program, follow the money trail. When you dig down far enough, as I document in my book A Government of Wolves: The Emerging American Police State, you quickly find that those who profit from Americans being arrested are none other than the police who arrest them, the courts which try them, the prisons which incarcerate them, and the corporations, which manufacture the weapons and equipment used by police, build and run the prisons, and profit from the cheap prison labor.

Talk about a financial incentive.

First, there’s the whole make-work scheme. In the absence of crime, in order to keep the police and their related agencies employed, occupied, and utilizing the many militarized “toys” passed along by the Department of Homeland Security, one must invent new crimes—overcriminalization—and new criminals to be spied on, targeted, tracked, raided, arrested, prosecuted and jailed. Enter the police state.

Second, there’s the profit-incentive for states to lock up large numbers of Americans in private prisons. Just as police departments have quotas for how many tickets are issued and arrests made per month—a number tied directly to revenue—states now have quotas to meet for how many Americans go to jail. Having outsourced their inmate population to private prisons run by corporations such as Corrections Corp of America and the GEO Group, ostensibly as a way to save money, increasing numbers of states have contracted to keep their prisons at 90% to 100% capacity. This profit-driven form of mass punishment has, in turn, given rise to a $70 billion private prison industry that relies on the complicity of state governments to keep the money flowing and their privately run prisons full. No wonder the United States has the largest prison population in the world.

But what do you do when you’ve contracted to keep your prisons full but crime rates are falling? Easy. You create new categories of crime and render otherwise law-abiding Americans criminals. Notice how we keep coming full circle back to the point where it’s average Americans like you and me being targeted and turned into enemies of the state?

That brings me to the third factor contributing to Americans being arrested, charged with outrageous “crimes,” and jailed: the Corporate State’s need for profit and cheap labor. Not content to just lock up millions of people, corporations have also turned prisoners into forced laborers.

According to professors Steve Fraser and Joshua B. Freeman, “All told, nearly a million prisoners are now making office furniture, working in call centers, fabricating body armor, taking hotel reservations, working in slaughterhouses, or manufacturing textiles, shoes, and clothing, while getting paid somewhere between 93 cents and $4.73 per day.” Tens of thousands of inmates in U.S. prisons are making all sorts of products, from processing agricultural products like milk and beef, to packaging Starbucks coffee, to shrink-wrapping software for companies like Microsoft, to sewing lingerie for Victoria’s Secret.

What some Americans may not have realized, however, is that America’s economy has come to depend in large part on prison labor. “Prison labor reportedly produces 100 percent of military helmets, shirts, pants, tents, bags, canteens, and a variety of other equipment. Prison labor makes circuit boards for IBM, Texas Instruments, and Dell. Many McDonald’s uniforms are sewn by inmates. Other corporations—Microsoft, Victoria’s Secret, Boeing, Motorola, Compaq, Revlon, and Kmart—also benefit from prison labor.” The resulting prison labor industries, which rely on cheap, almost free labor, are doing as much to put the average American out of work as the outsourcing of jobs to China and India.

No wonder America is criminalizing mundane activities, arresting Americans for minor violations, and locking them up for long stretches of time. There’s a significant amount of money being made by the police, the courts, the prisons, and the corporations.

What we’re witnessing is the expansion of corrupt government power in the form of corporate partnerships which both increase the reach of the state into our private lives while also adding a profit motive into the mix, with potentially deadly consequences.

This perverse mixture of government authoritarianism and corporate profits is now the prevailing form of organization in American society today. We are not a nation dominated by corporations, nor are we a nation dominated by government. We are a nation dominated by corporations and government together, in partnership, against the interests of individuals, society and ultimately our freedoms.

If it sounds at all conspiratorial, the idea that a government would jail its citizens so corporations can make a profit, then you don’t know your history very well. It has been well documented that Nazi Germany forced inmates into concentration camps such as Auschwitz to provide cheap labor to BASF, Bayer, Hoechst, and other major German chemical and pharmaceutical companies, much of it to produce products for European countries.

Makes you wonder, doesn’t it, whether what we are experiencing right now is fascism, American style, or Auschwitz revisited?

Printed from The Rutherford Institute

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How To Deal With Illegal Traffic Stops

Watch this video for some insights into your constitutional rights concerning your driving privileges.

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Know Your Rights!

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Real Estate: Adverse Possession

Many Missouri land owners do not realize that they might be at risk of losing some of their precious land simply because they do not know or understand Missouri law. You may believe that you are simply being a good neighbor when you allow that neighbor to use your idle land for his own purposes, but beware! You need to know the law concerning adverse possession.

Any person can file a lawsuit against you to acquire legal title to YOUR land if he meets the following criteria:

  1. He has maintained actual possession of your land for ten years or more. This could simply mean that he was the one who mowed the grass on a particular parcel for ten years.
  2. He has maintained hostile possession of the subject real estate for more than ten years. Did he make it clear that he intended to exercise dominion over the land? Did he erect a fence around it. Did he act like he owned it. This does not mean that he has to threaten the legal owner. It simply means that he acts like he IS the owner for ten years or more.
  3. He must maintain open and notorious possession of the subject real estate for more than ten years. His possession or claim to possession cannot be hidden. His use of the land must be open to inspection. You have to be able to see or otherwise discern that he is in fact possessing your land and that he intends to do so.
  4. He must maintain exclusive possession of the subject real estate for more than ten years. This means that you or some other neighbor cannot be using the particular parcel of land for your own purposes. If you, for example, continue to use your own land, even though you allow another to use it too, you demonstrate that you have dominion over the land and another cannot wrench it from you via the legal means of adverse possession.
  5. The adverse possessor must maintain continuous possession of the subject real estate for more than ten years. Assume that you allowed your neighbor to use your land for five years, say from 1998 to 2003, and then you used the land again from 2003 to 2008. Now assume that your neighbor used the land again from 2008 to 2014 and the total time he used your land for both periods exceeds ten years. He cannot gain your land by adverse possession because he did not exercise dominion of your land for a continuous period of ten years or more.

Land owners, therefore, should always be cognizant of the boundaries and uses of their lands. Review your fence lines regularly. If you find someone using your land and it is okay with you, then draw up a simple lease agreement with that person that demonstrates that you still exercise dominion over it. Never remain silent when another person begins to dominate your own land. You may think you’re being a good neighbor. Ten years later he may show you that you have acted the fool!

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Property Rights Bill Introduced After Va. Woman Threatened with Fines for Kids’ Birthday Party

“Local officials who abuse zoning authority powers to cower citizens into submission and deprive land owners of Constitutional rights in the enjoyment of their land must be subject to fines and actual damages they cause including attorney fees,” Delegate Bob Marshall noted in support of his HB 1219 recently introduced in the Virginia General Assembly.

Marshall introduced his bill in direct response to incidents precipitated by county officials who threatened Virginia citizen farmer Martha Boneta. Boneta gained national attention after she was cited and threatened with $5,000 per-day fines for hosting such ‘menacing activities’ as a birthday party for eight 10-year old girls without a permit and advertising pumpkin carvings. Virginians rallied at two “pitchfork protests” in support of Boneta.

Marshall said, “I am convinced this harassment will continue until local officials realize they can be held liable in the form of fines and other costs.” H.B. 1219 provides that local governments violating constitutional rights through zoning shall pay their victims (1) the amount of the fines they sought to impose, and (2) actual damages including attorney fees.  Local government officials who intentionally violate this law would also be liable.

Martha Boneta said, “I am confident that I would not have been bullied by my county government had this bill been in place earlier, and I ask all Virginians to contact their delegates and senators to support H.B. 1219, which protects all of us.”

There is long-time precedent for remedies against government officials who abuse their power to violate the rights of citizens. H.B. 1219′s remedies mean Virginians don’t need to go broke protecting their rights on their own property.

In addition to authorizing private citizens to files suits for damages, H.B. 1219 allows the Virginia Attorney General to intervene on behalf of victims. It also provides whistleblower protections for government employees who expose violations of this law.

- See more at: http://www.cnsnews.com/commentary/mark-fitzgibbons/property-rights-bill-introduced-after-va-woman-threatened-fines-kids#sthash.Hho3bOVc.VLORLDnY.dpuf

This is a very common sense approach to stop infringement upon citizen’s property rights. I suggest you urge your local Missouri Representative or Senator to sponsor and vote for similar legislation.

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Know Your Rights

Police confront American citizens every day in a variety of ways.  It is important that every American know, understand, and exercise their constitutional rights. Click here for a quick summary of your rights and how to put them to use.

If you believe your constitutional rights have been violated by law enforcement in the State of Missouri then call Glenn Hall at the Hall Law Firm LLC for competent, professional help.

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No Longer a Christian Nation

For more than 50 years the Supreme Court and other federal courts have been dismantling and destroying the foundations of our once great nation.  For most of our history our laws were based upon the solid canon of Old Testament laws. Now courts routinely declare Biblical laws upholding morality to be unconstitutional. Virtually no state legislature, nor Congress, can, for example, pass laws these days to prohibit abortions or homosexual marriage. We now live in a society where good, such as Biblical laws upholding traditional marriage, are considered evil, and where evil, such as laws allowing abortion on demand, are declared to be good.

When our leaders and highest institutions of law and government call good evil and evil good the people become confused and can longer repent of their sins and the evil deeds they find themselves doing. After all, our highest courts now declare many of those deeds to be good. How long will it be, for example, until pedophilia and child pornography are considered to be rights protected by the United States Constitution? It is for this reason that we see such pervasive lawlessness throughout our society today. No one is really safe from theft, murder, or violent sexual assault.

Today I received word of yet another federal court decision driving still another stake into the almost dead heart of America. Now a Christian cross cannot be erected at a veteran’s memorial. Read about it by clicking here.

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Estate Planning

I took many classes in law school concerning estate planning and have never regretted it. Since I began practicing law in 1989 I have prepared many wills, trusts, durable powers of attorney, medical powers of attorney, beneficiary deeds, and other estate planning documents. Every family’s estate planning needs are unique and it is important that you speak to an estate planning professional who understands the probate system and how to draft original trusts to meet particular needs.

I recently drafted an irrevocable trust in order to safe guard the real estate of an elderly married couple. They wanted to be sure that certain children will inherit their real estate and that the conveyance  cannot be challenged by the other children who were not included in their estate plan.

Call Glenn Hall, Attorney at Law, 573-729-2229, for a free initial consultation concerning your estate planning needs.

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