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Ask Our Lawyer - January 2009

Mandatory Sentences Gone – justice returns, and judges can now judge?

Q. I have a family member that is serving serious time for meth issues. The judge said he had no choice but to follow the Federal mandatory sentencing guidelines. Since then I have heard the Supreme Court has changed the law. Is this true and can my relative get out sooner since I believe the judge would have given him less time?

A. Maybe. The Supreme Court’s decision leaves lots of room for interpretation. Let me tell you a story that may shed some light on the issues in your question. I recall painfully when Federal Judge Phil Gilbert sentenced several of my fellow Wayne County, Illinois, acquaintances, for "Meth" offenses. Most were in their mid-40's and many received mandatory sentences of 20 - 25 years – a near death sentence for a 40-50 year old. Don’t get me wrong, I understand why some people want life sentences for any drug offense, but I don’t think we should behead them, either (at least MOST of them). While I did not know these folks directly, I knew their older brothers and sisters. I knew their parents. I worked with these people in the fields of Southern Illinois. Their families were stake-holding, tax-paying, military-serving, voters – true Americans.

Wayne County at the time of the bad acts was hard hit economically. I call Meth the “smart hillbilly drug.” A little anhydrous, a few other items, some risk of blowing yourself and yours to pieces and poof – you have a mortgage payment and they [the convicted defendants] think they have a temporary reprieve on the economics of life – as long as you don't get caught or hooked.

While it is hard for me to have any sympathy for the drug dealers/manufacturers types, I knew of these people. They came from hard working families, farmers, oil-factory workers and such. Everyone of those sentenced served in the military or had some member of their family that did. How did my beloved home county become a Meth capital of the world? I do not know the answer to that question, but I do know this: Judge Gilbert is a wonderful judge and my vote would be to allow him the discretion to do justice and be a Judge, but he was bound by the Federal Sentencing Guidelines. He had no discretion to judge these people individually. He was required to look in the guideline book and read across the line to the amount of time each defendant was to receive regardless of what he thought was just. Just like looking at a tax schedule. I believe that has now changed and our trusted Judges will be able to do what they were appointed to do – serve justice. Look for many of these sentences to be revisited, especially the ones that are tantamount to a death sentence.

MRF gets the party line from NTSB – we are in for a fight
Sound familiar?

A couple of months ago, I updated you on the ongoing struggle with the National Transportation Safety Board (NTSB) against their efforts to focus on “injury reduction” (i.e., helmet laws) in motorcycle accidents instead of motorcycle safety training/education and crash avoidance.

Recently, the Motorcycle Riders Foundation (MRF) and others met with National Transportation Safety Board (NTSB) Chairman Mark Rosenker, Vice Chairman Robert Sumwalt, the Chairman's chief counsel, and some of the lead researchers at the NTSB headquarters in Washington DC. The summit spanned a full three hours.

The topics discussed included the NTSB's recent motorcycle safety recommendations and the future steps the NTSB will be taking with respect to motorcycle safety. Chairman Rosenker is a likeable gentlemen with endless stories of his 37 years in the Air Force and his service to President Bush as Director of the White House Medical Office. He also shared that he served as a representative of the Motorcycle Industry Council and talked of his part in designing the MSF logo, so it wasn't a surprise when he insisted on clearing his schedule until we, the motorcyclists, felt our voice was heard.

Sounds like we have a fight on our hands, the NTSB stands behind their recommendations and supports them entirely. The MRF made it clear that we would continue to oppose any recommendations that call for personal protective equipment laws and crash mitigation. It was also made clear that motorcyclists would support any recommendation that calls for further crash avoidance, rider education, and motorist awareness campaigns. It was at that point in the meeting that Chairman Rosenker insisted that we not focus on the items that we disagree on, but rather on the things where we are, in his words, in "violent agreement" – things like crash avoidance and current motorcycle crash data. Just like in the movie Patton, from one SOB to another!

A.B.A.T.E. Legal Services - YOUR Lawyers

Q. Why did ABATE start its own Legal Services Program??

A. As we all know, the ABATE Legal Services Plan was established to provide its members access to lawyers who are experienced in motorcycle-related rights and well-regarded in the legal community. The cornerstone of this plan is to provide Members with a discounted rate on contingency fee cases and better services. That rate is 28.5%. Most other lawyers are charging at least 33 1/3% with a proviso that the fee could increase to 40%, and with an appeal up to 50%. ABATE stopped all of that to protect its members.

As we know some members have unknowingly been charged more by non-ABATE lawyers who charge more than the current ABATE plan allows, which is 28.5%. In the past, our members have seen an ad in other ABATE publications and assume they are getting the best rate and good ABATE lawyers – wrong. Those lawyers usually charge more. That fact, along with lawyer lien rights, played a prominent role to the disadvantage of an ABATE member who lost her leg in a motorcycle accident. Remember, lawyers belong to the best union in the country and their fees are well protected. She had mistakenly hired the "other lawyers" and then quickly fired them when she discovered she had been misled by an ad in a local ABATE publication. She then hired ABATE lawyers, but her previous non-ABATE lawyers claimed a lien [even though they did little work] on the settlement proceeds. The end result was the ABATE lawyers waived their fee, but the other lawyer had to be sued to get his reduced.

That ad cost her a lot of money [thousands of dollars] which should have been in her pocket. She could have used that money for a state of the art prosthesis which would have made a difference in her life. Her non-ABATE lawyer is driving around in a fancy car with the money that should have gone to her – just my opinion.
Remember, our members can still hire anyone they want. They will usually pay through the nose for that choice. ABATE gives them a choice with the Legal Services Plan. An overlooked advantage of the Plan is that ABATE members retain more control over the ABATE lawyers. When an ABATE officer calls about a problem with Legal Services, if at all possible, it is fixed that day. If the ABATE lawyers don't do the job – ABATE Can fire them. That is the AMERICAN WAY. ABATE has no control over the OTHER LAWYERS. ABATE does not even know if they have ever tried a case or even if they have legal malpractice insurance.

If some ABATE organization wants to try to benefit itself for a few dollars from some lawyers that may not be competent, not honest, or not controlled by ABATE members and confuse its members with ads that imply ABATE approval for these guys – one should wonder about that organization. The best remedy should be, that if an ABATE Lawyer does not do a good job, then he or she should be fired and ABATE should get a lawyer who will do the job for its members the way ABATE wants.

It is no coincidence that the ABATE organizations around the country which are the best in this country have their own LEGAL SERVICES PROGRAM which is OWNED AND CONTROLLED by that ABATE organization for ABATE MEMBERS and their families. And I understand why the OTHER LAWYERS want to get in and try to stop this program or to jump in and pretend to be an ABATE lawyer, even when they are not. They know they can get by with charging more, claiming liens and significantly, they know that ABATE can't do anything about it. So the question is why would ABATE EVER EVER allow these OTHERS to prey upon our members, when we know what they do? Surely not for a FEW DOLLARS MORE – in ad money.

Coming next month:

Sometimes, When Business Is Slow, Some Cops Work Really Hard to Catch Somebody, Even If They Didn’t Do it

Stay tuned! We are going to tell you the story of an A.B.A.T.E. member who was wrongfully fired from his job, right before Christmas no less, and how A.B.A.T.E. is going to get it back for him.

Ride Safe and Free,

Rod Taylor

A.B.A.T.E. Legal Services

If you have any questions you would like to ask the lawyer, please submit them to: Ask Our Lawyer, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com. © 2005, A.B.A.T.E. Legal Services