Thursday, April 3, 2014

Murder Most Foul

Kodiak Coast Guard officer recounts finding dead bodies of his coworkers

Jerzy Shedlock
The third day of the trial of James Michael Wells, who has been charged with murder for allegedly killing two U.S. Coast Guard members in 2012, began with testimony from the Coast Guard officer who discovered the dead, bloodied bodies of his coworkers.
Petty Officer 3rd Class Cody Jay Beauford testified he entered his workplace and headed for his desk in a room labeled break room. Inside, he said he found the body of Richard Belisle, nearly in the fetal position with his hands resting on his head.
“My first thought was someone was trying to play a practical joke on me,” Beauford said. Jokes and pranks were not outside of what was considered appropriate, he said.
He tried to get a response from Belisle, but there was none. On the table in the middle of the room was the dead man’s work shirt. At the beginning of a shift, Belisle would generally drink a cup of coffee and make the shirt conform to dress code by rolling up the sleeves, Beauford said.
After finding one coworker dead, the young officer went to the supervisors’ office. There he found James Hopkins shot and killed, he said. He once again tried to raise a response but was unsuccessful.

Motive, knowledge and opportunity

According to the charges, Wells worked with 41-year-old Hopkins and 51-year-old Belisle in what is called the “rigger shop,” a repair shop of sorts near a communications building on the Kodiak Island Coast Guard base. Wells was a civilian employed by the Coast Guard, and in the year leading up to his coworkers’ deaths, he’d allegedly been reprimanded on several occasions for problems with his work performance.
Wells allegedly entered the rigger shop shortly after 7 a.m. on April 12 and shot his coworkers with a .44 revolver, a firearm that does not dispense spent shells. He allegedly avoided cameras at the shop to slip in unnoticed.
The government argues Wells was the only person who had the motive, knowledge and opportunity to murder Hopkins and Belisle. Federal prosecutors are relying on circumstantial evidence in their effort to put Wells in prison for multiple murder and firearm charges. There is no physical evidence incriminating Wells, U.S. Attorney Karen Loeffler said during opening statements Tuesday.

Workplace disagreements

Following Beauford’s description of where he found the bodies, and his subsequent actions, which included calling a boss and asking for emergency responders, federal prosecutors focused on the rigger shop’s work environment.
According to Beauford, Wells, a civilian Coast Guard worker who served as an antenna mechanic, was very knowledgeable but did not share his expertise willingly.
“A lot of times he wouldn’t give up more than he had to,” the officer said. “Working with him … I remember not always getting the whole picture.”
Beauford mentioned disagreements surrounding how projects should be handled. In those instances, there were arguments, but those never escalated beyond heated discussion.  No threats were made, Beauford said.
Recalling an instance when the shop crew was tasked with installing a satellite dish atop one of the base’s buildings, Beauford said Wells and Belisle disagreed about how the dish should have been hooked up via cables, through the roof or around the exterior of the building. When a supervisor -- one that the defense has argued had it out for Wells -- chose Belisle’s approach, the accused murderer accepted the choice and did not appear angry, the officer said.

A suspicious vehicle

Petty Officer 2nd Class Jason Bullis, the second witness to take the stand Wednesday, served as the base watchman the night prior to the alleged murders. It was his job to check that the building was locked up after the workday, which he did the night of April 11, 2012. He said he only checks to see if the windows are closed and did not recall whether they have locks.
It was also Bullis’ job to monitor the 11 cameras placed around the rigger shop and the main communications station. That night, he spotted a white truck with a white canopy drive up to the latter building then turn around. The truck did so twice in six minutes, video surveillance shows.
Wells owns a white Dodge Ram with a white canopy. The rear end of the canopy on Wells’ truck is higher than the rest. The canopy shown on the video was flat, and Bullis contended after questioning by federal public defender F. Richard Curtner that the truck could not have been Wells’.
Curtner argued during opening statements the unknown vehicle may have been casing the rigger shop, implicating the possibility of another murderer. 
Contact Jerzy Shedlock at jerzy@alaskadispatch.com or on

FBI agent: Coast Guard murder suspect left little evidence at crime scene

Jerzy Shedlock

The rigger shop, part of the Coast Guard's Kodiak Base Communication Station, was the scene of a double murder on April 12, 2012. James Michael Well is currently on trial for the homicides in Anchorage. Photographed May 7, 2012 Loren Holmes photo
A special agent with the FBI took the stand Tuesday afternoon in the murder case against James Michael Wells, accused of killing two Coast Guard members in April 2012. Evidence presented included boxes of ammo consistent with bullet fragments found at the murder scene, but none matched the supposed murder weapon, and the agent testified stockpiling guns and ammo isn’t uncommon among Alaskans.
Wells was a Coast Guard civilian employee who stands accused of killing two Coast Guard members on Kodiak, the second-largest island in the United States and home to a major military base. The communications station at which Wells worked is geographically separate from the island’s main base.
The murders happened early in the morning of April 12, 2012, and Wells is charged with fatally shooting 41-year-old James Hopkins and 51-year-old Richard Belisle. Authorities never found a murder weapon, and the government is arguing the case based on circumstantial evidence. Federal prosecutors contend Wells was the only person with the knowledge to pull off the murders without leaving any physical evidence behind.
Wells and the victims worked at what is called "the rigger shop," a kind of maintenance building. As Hopkins and Belisle were starting their workdays around 7 a.m., Wells allegedly snuck around security cameras to shoot and kill the men with a .44 revolver. The government argues Wells was distraught over grievances about his job performance.

Unfinished business

FBI special agent Derek Espeland and other members of the agency’s evidence response team in Alaska were informed of the murders shortly after the incident, he said. The team filled a Suburban full of investigative tools, loaded it onto a Coast Guard vessel in Anchorage and departed for Kodiak. It arrived on the island the same day.
The collection and documenting of evidence generally starts from the exterior, Espeland testified. Then agents move inward. But dozens of photos prosecutors presented Tuesday were captured inside the rigger shop. The special agent said he took all the photos, some of which included the bloodied bodies of the alleged murder victims. Nicola Belisle, Richard Belisle's wife, exited the courtroom at the mention of those photos, which showed her husband and his colleague.
One of the images showed Hopkins lying on his back. To Hopkins’ left rests a navy blue dress shirt; only one of its sleeves had been rolled up to conform with the Coast Guard’s dress code, meant to allow members to wear their sleeves up while still being able to push them down in case of an chemical attack. According to testimony, Hopkins' daily routine was to roll his sleeves up on a table in the middle of the break room. He apparently was doing so on the morning of April 7, 2012, when the killer caught him off guard. The government has argued both victims did not have the chance to defend themselves.
The government pulled the blue shirt from a cardboard box and displayed it to the jury. Additional evidence included bullet fragments, a broken kitchen bowl, a trash can punctured by what was believed to be a projectile and a black glove. Underneath spilled blood in the office -- where Belisle’s body was found -- were a slug and another with its copper jacket intact. The list of evidence went on: fingerprints, though prosecutors have said DNA evidence wouldn’t help their case, because Wells worked at the rigger shop; tire castings; debris with what was thought to be a piece of a tooth; and an empty can of lime-flavored diet soda.
Despite the FBI’s meticulous collection of evidence, Espeland testified investigators failed to find anything indicating “a suspect leaving the scene.” He said his impression was that the shooter “did so in such a manner that he or she left little to no evidence behind.”

Cache of guns and ammo amid clutter

After the rigger shop was combed over, FBI agents moved on to Wells’ home, then two vehicles. They went through the same process for the above, snapping hundreds of photos and sifting through clutter.
The government has described Wells as a hoarder, someone unwilling to throw away anything he sees as having use in the future. Several times, prosecutors have described an instance at the rigger shop when Wells is alleged to have visibly displayed frustration at coworkers throwing out nuts and bolts.
A photo of the defendant’s garage showed a space packed to the brim with odds and ends -- power tools, jugs, leftover wood. Somewhere under the garage’s clutter was a vehicle, though it was not visible in the photo. Espeland testified that the junk heap hindered evidence collection. In addition to the garage, there was a plethora of items stored underneath the home.
Inside the Wells’ residence, agents found a cabinet full of various ammunitions, which included rounds for .44 and .45 caliber firearms. They seized two guns, too, a .44 Magnum Ruger Super Blackhawk revolver and a .45 ACP Ruger P345 semiautomatic pistol. Those guns use ammo consistent with shells found at the rigger shop, but the shells and the guns didn’t match up. Wells allegedly had other guns in the home, as well.
During cross-examination, federal public defender F. Richard Curtner asked Espeland about the prevalence of gun ownership on Kodiak.
“It’s not unusual for any Alaskan to have a lot of ammo and guns,” the special agent replied. He also agreed many people on the island make a hobby of hunting, and a large population of bears is another reason locals arm themselves.
A smaller amount of evidence was seized in the vehicle searches of Wells’ Dodge Ram and his wife’s blue Honda CR-V, which were spotted near the base’s main gate and the rigger shop, respectively, on the day of the murder. A photo of the interior of Wells’ Dodge showed similar clutter to that in his garage, like outdoor equipment and trash.
The FBI took castings of the tires from both vehicles. It compared the castings with tire tracks in front of the rigger shop. It wasn’t until later in the investigation that the agents discovered the alleged murderer may have approached the shop using an alternate driveway. By that time, the steady rain that often soaks Kodiak washed away whatever tracks there may have been.

Wednesday, April 2, 2014

Courts-martial Should Be Reserved For Crimes, Not Mistakes


Cadet Alexander Stevens is a cadet at the U.S. Coast Guard Academy (USCGA). He is accused of breaking into the room of a female cadet of lower rank in Chase Hall and sexually abusing her.
The Coast Guard prosecutor, Lt. Tyler McGill, has alleged that Cadet Stevens  was on a mission for sexual gratification that September night. The room Stevens entered was about 300 feet from his girlfriend's room.
"Cadet Stevens did not walk into the room right next door," McGill said.
Lt. John Cole, Cadet Stevens' Assigned Military Defense Counsel, said the government didn't prove sexual intent. He claims Stevens was drunk at the time and made a mental mistake.
"Just because he accidentally touched the wrong cadet's leg doesn't mean he should go to court martial," Cole said.
Cole argued that Stevens should face administrative punishment, which can include expulsion. Administrative punishment is not criminal in nature. Non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) is the lowest form of criminal proceeding available to the military. Above NJP there are three levels of courts-martial. They are a Summary, a Special and a General Court-matial. They differ in the maximum amount of punishment they can award to a convicted member. A court martial is a Federal Criminal Trial and can lead to prison time if the person is convicted.
The Article 32 pretrial investigation is similar to a civilian grand jury. It is used to determine wheteher there is enough evidence to refer the case to a court-martial.
 A hearing in the form of an Article 32 Investigation was held  Wednesday April 2nd at the Coast Guard Academy. The Article 32 Investigating Officer (IO) has not yet made a recommendation. The IO could recommend that the case be dismissed, dealt with administratively or referred for trial by court-martial.
 Usually the accused usually does not testify at an Article 32 Hearing.
Most smart Defense Counsels do not let their clients testify at an Article 32 Hearing. They use that opportunity to discover the Government's case. They get a chance to see how much evidence the Government has and how strong it is.
Cadet Stevens, who is accused of abusive sexual contact, housebreaking and unlawful entry, did not testify.

The Testimony was weak.
The female complaining witness testified that a man entered her room in the middle of the night, touched her on her thigh and moved his hand up her leg before she screamed and kicked him.
"I remember someone fumbling with my blanket that was on top of me and touching my leg," she said, describing skin-to-skin contact and the swirling motion of a hand moving up her leg. "I kicked my legs and I screamed."
The man either fell or jumped off her bed and fled. She says she chased him and located a friend.
"I kept telling him (the friend) that's not right," she said, noting that she was shaking and crying.
The cadet said she found it hard to sleep and concentrate after the encounter, and her grades suffered.
"I think he should be kicked out of the Coast Guard. I think he should be a registered sex offender, and I think he should go to jail," she said.
Cadet Stevens' explanation Is credible and exculpatory.
Stevens said in an interview that he went into the fellow cadet's room and touched her with his hand, said Eric Gempp, a special agent with the Coast Guard Investigative Service (CGIS). Stevens said he was startled when the cadet said, "Hey!" He quickly left the room, Stevens told investigators.
Stevens said he went into the room by mistake, believing it was his girlfriend's room, Gempp testified.
Defense Counsel was able to get the accused's statements into the record without him taking the witness stand.
Chief Robert Cain testified that Stevens voluntarily came to him and told him during a night of drinking he got into an argument with his girlfriend. Cain said Stevens told him after returning to his room that he decided to apologize and went to what he thought was his girlfriend's room, tapped her on the leg and realized he was in the wrong room.
Another cadet testified that classmates often go into the wrong rooms, but said the mistake typically involves going into a room one or two doors away.
The only cadet ever court-martialed at the academy, Webster Smith, was tried in 2006 at a General Court-martial and convicted on extortion, sodomy and indecent assault charges.

(The Webster Smith Case was appealed all the way to the U. S. Supreme Court. It is fully documented in a book entitled "Conduct Unbecoming An Officer and a Lady" available on Amazon.com http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021 )
The Article 32 investigating officer (IO) in this case could recommend that the alleged offenses be dismissed, dealt with administratively, or referred for trial by court-martial.

Friday, March 28, 2014

Wounded Warriors Being Teased By Social security Administration



Social Security launches new expedited disability process for veterans


Carolyn W. Colvin, Acting Commissioner of Social Security, today announced the launch of a new disability process to expedite disability claims filed by veterans with a Department of Veterans Affairs (VA) disability compensation rating of 100% Permanent & Total (P&T). Under the new process, Social Security will treat these veterans’ applications as high priority and issue expedited decisions, similar to the way the agency currently handles disability claims from Wounded Warriors.
“We have reached another milestone for those who have sacrificed so much for our country and this process ensures they will get the benefits they need quickly,” said Acting Commissioner Colvin. “While we can never fully repay them for their sacrifices, we can be sure we provide them with the quality of service that they deserve. This initiative is truly a lifeline for those who need it most."
“No one wants to put America’s veterans through a bureaucratic runaround,” said Maryland Congressman John Sarbanes, a leading proponent for increasing assistance to veterans. “As the baby boomer generation ages and more veterans of the wars in Iraq and Afghanistan need care, this common sense change will help reduce backlogs and cut through unnecessary red tape so that our most disabled veterans receive the benefits they’ve earned.”
In order to receive the expedited service, veterans must tell Social Security they have a VA disability compensation rating of 100% P&T and show proof of their disability rating with their VA Notification Letter.
The VA rating only expedites Social Security disability claims processing and does not guarantee an approval for Social Security disability benefits. These veterans must still meet the strict eligibility requirements for a disability allowance.
The Acting Commissioner is doing nothing more than giving lip service to disabled veterans in this announcement. This is an empty promise. It is a carrot on a stick. It is a distinction without a difference. This is just a lot of hot air. This will not reduce backlogs and cut through unnecessary red tape. It will have little or no influence on the 1500 Social Security Administration  Administrative Law Judges, many of whom are not veterans and have no sympathy for the disabled veterans. In almost 20 years as a SSA ALJ I never heard more than one or two express anything more than contempt for the military and veterans. When Viet Nam disabled veterans came in for disability hearings they were not given any compassionate consideration. There are a lot of draft dodgers from the 1960s in the ALJ corps. A lot more women are coming into the ALJ corps; many are anti-military.
The requirements for getting benefits have not changed. In order to receive the expedited service, veterans must tell Social Security they have a VA disability compensation rating of 100% P&T and show proof of their disability rating with their VA Notification Letter. It is very difficult for a veteran to get a 100% Permanent and Total Rating. The Acting Commissioner was honest enough to say that "The VA rating only expedites Social Security disability claims processing and does not guarantee an approval for Social Security disability benefits. These veterans must still meet the strict eligibility requirements for a disability allowance."
Putting the best face possible on this, what the Acting Commissioner has done is promise to provide the the wounded warriors with the quality of service that they deserve. BUT, they should have been getting that all along. That would have been the professional thing to do. So, I ask you, what has changed?
www.socialsecurity.gov/pgm/disability-pt.htm
For information about this service, please visit www.socialsecurity.gov/pgm/disability-pt.htm.

For more about Social Security’s handling of Wounded Warrior’s disability claims, please visit
www.socialsecurity.gov/woundedwarriors.www.socialsecurity.gov/woundedwarriors.

Wednesday, March 19, 2014

Treating Physian Rule Must Be Obeyed In Disability Cases

Judge Revives Claim For Disability Benefits


Eastern District Judge Arthur Spatt (See Profile) has ordered the Social Security Administration (SSA) to reconsider its decision to deny disability benefits to a 55-year-old union carpenter with a knee injury, finding that an administrative law judge rejected the opinions of the man's treating physician without justification.
The plaintiff, William Box, slipped and fell on the job in January 2009. He was later diagnosed with multiple injuries in his right knee, including a torn anterior cruciate ligament and torn meniscus. He eventually underwent two surgeries. In November 2009, Box applied for disability benefits. In August 2010, an administrative law judge denied the application. An Appeals Council (A/C) denied Box's petition for review, and in March 2012, he sued the Social Security Administration seeking to overturn the decision.
Box's treating physician, Benizon Benatar, submitted an opinion that Box was completely disabled because he could not stand or walk for more than two hours a day.
Another doctor, Erlinda Austria, also examined Box at the request of the New York State Division of Disability Determination. Austria opined that Box was capable of light work. A person capable of light work is presumed to be able to stand and/or work for six of eight hours in a day.
District Judge Spatt found that the ALJ had improperly credited Austria's testimony over Benatar's without justification, going against the "treating physician rule," which requires deference to an applicant's treating physician.
 While an ALJ can choose not to credit a treating physician, Spatt said, that choice must be justified by an analysis of the record, which the ALJ did not do.
Spatt therefore remanded the case for further proceedings consistent with the opinion.
The Claimant, William Box is represented by Sharmine Persaud.
The SSA is represented by Eastern District Assistant U.S. Attorney Vincent Lipari.
The case is Box v. Colvin, 12-cv-1317.
, New York Law Journal,March 19, 2014  )
Read more: http://www.newyorklawjournal.com/id=1202647472089/Judge-Revives-Claim-For-Disability-Benefits#ixzz2wRwdyspq

Sunday, March 16, 2014

Video Hearings Are A Denial Of Due Process At Social Security

Social Security Disability Video Hearings Increase In 2013

 

Social Security Disability Video Hearings Increase In 2013, Allsup Reports
More people than ever before attended a video hearing in 2013 while seeking Social Security disability benefits.
The number of video hearings increased to 179,308 in fiscal year 2013, more than double the 86,320 video hearings in FY 2009, according to data released by the Social Security Administration (SSA) in its Annual Performance Plan for Fiscal Year 2015. This was an increase of nearly 17 percent from 153,592 video hearings the previous year (FY 2012).
Video hearings are one of the methods SSA uses to reduce the backlog of SSDI claims.
 The use of video-conferencing technology to exclude the Claimant from being physically present in the same Hearing Room as the ALJ and other witnesses violates the Claimant’s due process rights. 
A Claimant who can only observe witnesses on a television screen will not be able to observe
the demeanor  of the witnesses and properly ascertain the accuracy and reliability of their proffered evidence.
( http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757)
The primary  reason, among others, for the use of video hearings is to reduce travel costs and conserve the time of its ALJs and hearing support staff without diminishing the Claimant’s ability to effectively participate in the hearing.
A Claimant could argue that the SSA ALJ must give the Claimant an “opportunity to appear,” as provided in the U S Constitution which requires the defendant and the judge to be physically present in the same courtroom.
 Most reasonable people would agree with this contention, referring to the meaning of appear and to the traditional understanding of a Claimant’s appearance before a court empowered to deprive him of his property, that is to say, his Disability Benefits.
It is noted that both the Webster’s Dictionary and the Black’s Law Dictionary define appear and
appearance so as to suggest that an appearance can only occur if the person comes into the physical presence of the judge. To appear means to be physically present.
The form and substantive quality of a hearing is altered when either the defendant or
the judge is absent from the hearing room, even if he or she is participating by video-conference.

SSDI is a federal insurance program that provides monthly income to people under full retirement age (65-67) with a severe disability lasting at least 12 months or a terminal condition.To apply for SSDI benefits, someone must be unable to work. 
SSDI is funded by FICA payroll taxes paid by workers and their employers.
Individuals reach the hearing level after their initial application has been denied two times by the State Disability Determination Service (DDS).
Most hearings are still held in person before administrative law judges (ALJs). But Social Security is increasing its ability to perform hearings through video conferencing, including using video at National Hearing Centers. The SSA has five of these centers in Albuquerque, N.M., Baltimore, Chicago, Falls Church, Va., and St. Louis. (Statistics provided by ALLSUP)
A claimant will give up important due process rights if he or she opts for a video hearing.
During a video hearing, the ALJ, claimant and representative interact with each other using videoconferencing equipment, very similar to a large television. The judge usually remains at his location and connects by video with the claimant at his or her location.
Video conferencing can be more convenient for the claimant, if he or she lives in a remote area. And it saves travel time for the judge.
Consider the following information when preparing for an SSDI hearing.
  •     How should I dress? A hearing is not a time to dress casually. A business suit isnt required, but jeans, shorts and flip flops arent a good idea, even for a video hearing.
  •     What happens when I get there? The process typically is the same for hearings, video or in-person. The judge leads the hearing, and he or she asks questions of the claimant and the representative.
  •     Whats different with a video hearing? It can be important for someone to provide technical support, to make sure the video and sound quality are good, and to ensure the sound recording is working properly. The sound recording is kept for the records.
  •     Who else is there? There also can be vocational experts, medical experts and other witnesses at the hearing to provide testimony.
  •     How does the hearing end? The entire hearing may last about an hour as the ALJ evaluates the information being provided by the person who is seeking SSDI benefits and other testimony. When the judge has all the information he or she needs, the hearing is ended. Its rare that the judge announces the decision (to award or approve) at the conclusion of the hearing.
 Some people become very frustrated at video hearings.
  • MADISON, Wisconsin — A Wisconsin Rapids woman will spend three years on probation for threatening to kill a federal administrative law judge (ALJ).
    Fifty-one-year-old Norma Prince was sentenced Thursday March 6, 2014. Prince pleaded guilty in December.
    Prosecutors say the incident happened Jan. 31, 2013, when Prince appeared at a Social Security disability benefits hearing in Wausau.
    Administrative Law Judge Thomas Sanzi was presiding over the hearing by video teleconference from Madison. Prosecutors say Prince became upset and threatened to shoot Judge Sanzi and cut off his head. The hearing was halted and Prince was escorted from the courtroom.
    Prince's husband told a federal agent that his wife had bought two .22-caliber rifles about a month before the disability hearing.
    At sentencing, U.S. District Judge Lynn Adelman said Prince's mental health issues can be controlled through medication and supervision.

      A video-conference hearing is one  at which all parties were physically present except for the judge and the court reporter, who participate by video-conference from a remote location.
    SSDI claimants should challenge the judge’s decision to conduct a hearing by
    video-conference.
    I present here the question of first impression for SSA SSDI appeals: "whether the
    use of video-conferencing to conduct a hearing violates  the Fifth Amendment’s Due Process Clause.
     Although the SSA and no SSA ALJ has previously confronted this exact
    issue, the question of the constitutional and statutory validity of the use
    of videoconferencing technology by the Federal Administrative Agencies is far from
    novel. As technology has advanced rapidly, the SSA has been faced with a surge of new, unforeseen issues that it has had to resolve without legislative direction.
    The invention of video-conferencing appeared to be a perfect solution to the SSA; so, it  has encouraged the use of video-conferencing systems in the Hearing Rooms.
    Courts and government agencies have implemented the use of
    video-conferencing technology in post-conviction proceedings, including
    probation, parole, and supervised release revocation hearings.
    The courts of appeals are beginning to strike down the practice, but only on
    statutory grounds. This trend appears to rest on the general principle
    of judicial restraint that requires courts to avoid constitutional questions
    if statutory analysis is sufficient.
    However, in the absence of legislation or a decision from the United
    States Supreme Court, there remains the potential that SSA ALJ Hearings and other federal courts,  could find that video-conferencing violate a Claimant's Due Process rights.
    Therefore, the due process rights undermined by the use of video-conferencing technology
    deserve the judiciary’s attention, particularly the right to be present at your Hearing, and to effective assistance of counsel and the right to confront adverse witnesses, such as, SSA's Consultative Medical Examiners (ME) and Vocational Experts (VE). 
     Videoconferencing at Rule 43 Criminal Proceedings
    In the 1990s and early 2000s, circuit courts first considered whether
    the use of videoconferencing at a criminal proceeding governed by Rule 43
    satisfies the statutory requirement that a defendant be “present.”
    Since that time, the Fourth, Fifth, Ninth, and Tenth Circuits have held
    that the use of videoconferencing at Rule 43 proceedings violates a
    defendant’s statutory rights. For example, the Tenth Circuit confronted this issue in 2002 in
    United States v. Torres-Palma. In Torres-Palma, the defendant appeared by videoconference at his
    sentencing, which took place in a different state than where the judge presided. In determining that Rule 43 required a defendant to be physically present at sentencing, the court concluded that the content and the plain reading of the text of Rule 43, along with the Webster’s Dictionary and Black’s Law Dictionary definitions of presence and present, mandated that physical presence
    was required.
     Fifth Circuit noted that the rights protected by Rule 43 include not only due process rights and the common law right to be present, but also the right of a defendant to meet face-to-face with witnesses appearing before the trier of fact, as governed by the Confrontation Clause.
    After the Tenth Circuit’s decision and the decisions of its sister circuits, it was clear that, even though the use of videoconferencing could increase productivity and save money, the technology was not appropriate for Rule 43 proceedings because it violated both common law and statutory rights to be present.
    The reason for the use of video hearings is to reduce travel costs and conserve the time of its ALJs and hearing support staff without diminishing the Claimant’s ability to effectively participate in the
    hearing.”
    Violates his statutory  and constitutional rights when it denied his request for an in-person
    hearing. Specifically,  the use of videoconferencing violated his due process rights and 18 U.S.C. § 4208(e), which requires that a prisoner “be allowed to appear and testify on his own behalf.

    A Claimant could argue that the SSA ALJ must give the Claimant an “opportunity to appear,” as provided in the U S Constitution which requires the defendant and the judge to be physically present in the same courtroom.
     Most reasonable people would agree with this contention, referring to the meaning of appear and to the traditional understanding of a Claimant’s appearance before a court
    empowered to deprive him of his property, that is to say, his Disability Benefits.
    It is noted that both the Webster’s Dictionary and the Black’s Law Dictionary define appear and
    appearance so as to suggest that an appearance can only occur if the person comes into the physical presence of the judge. To appear means to be physically present.
    The form and substantive quality of a hearing is altered when either the defendant or
    the judge is absent from the hearing room, even if he or she is participating by video-conference.

    The Seventh Circuit of Appeals referred to the Supreme Court’s decision in
    Escoe v. Zerbst, in which the Supreme Court determined that a lower
    court’s decision to revoke a defendant’s probation without a hearing
    violated the requirement that he be “brought before the court.” Although Escoe
    predated video-conferencing technology, and the Internet for that matter, the case provided the traditional legal understanding of a person’s appearance. In Escoe, the Court held that
    “‘the end and aim of an appearance before the court’ under the statute was to ‘enable an accused [parolee] to explain away the accusation,’ and this required ‘bringing the [parolee]
    into the presence of his judge.’” Additionally, the Seventh Circuit referenced the statutory language of other Federal Rules of Criminal Procedure that explicitly allow for the use of videoconferencing.
    The court reasoned that, since video-conferencing is permitted only with stated exceptions in the rules, the use of the technology “is the exception to the rule, not the default rule itself,” and that Rule 32.1’s “opportunity to appear,” therefore, excludes appearance by video-conference.
    During its interpretation of the opportunity to appear, the court also examined the statutory rights owed to a defendant at a revocation hearing. Rule 32.1 provides, in pertinent part, that:
    The person is entitled to: . . . (C) an opportunity to appear, present
    evidence, and question any adverse witness . . . ; [and] (D) notice of the
    person’s right to retain counsel or to request that counsel be appointed if
    the person cannot obtain counsel . . . .
    After determining that the opportunity to appear requires a parolee to come into the physical presence of the judge, the court furthered its statutory analysis by noting that this right is not isolated, but instead exists in conjunction with the right to “present evidence,” to “question
    any adverse witness,” and to “make a statement and present any evidence in mitigation. Appearance in court is “the means by which the petitioner effectuates the other rights conferred” by Rule 32.1.

    The conjunctive force of a defendant’s opportunity to appear is particularly important to the defendant’s right to “make a statement and present any information in mitigation” because “appearing before the court allows the [parolee] to plead his case personally to the [deciding]
    judge.”
    This right, known as the right of allocution, “ensures that the defendant has the opportunity to ‘personally address the court’ before punishment is imposed.” Without the physical meeting, the court reasoned, the judge could not experience the impressions of any personal confrontation wherein he or she attempts to assess the parolee’s credibility or to evaluate the defendant’s true moral fiber. Consequently, without the personal, physical interaction between a judge and a parolee, the force of the parolee’s other rights guaranteed by Rule 32.1 is diminished.
    Finally, after determining that the judge’s participation by videoconferencing in Thompson’s revocation hearing violated Rule 32.1, the court vacated Thompson’s term of re-imprisonment and
    remanded. The court resolved the second issue, whether video-conferencing violated Thompson’s due process rights, in a one-sentence footnote: “Because we hold that the judge’s participation by
    video-conference violated Rule 32.1, we need not address Thompson’s argument that holding the hearing by video-conference violated the Fifth Amendment’s Due Process Clause.”

    The Court then turned its analysis to the nature of the process that is due a parolee at a revocation hearing, wherein it laid out the minimum requirements of due process. Accordingly, a parolee must have an opportunity to be heard and to show either that he or she did not violate the conditions of release or, alternatively, that there are mitigating circumstances.
    Further, the Court held that the minimum requirements of due process include, in pertinent part, the “(c) opportunity to be heard in person and to present witnesses and documentary evidence; [and] (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).

    Defense counsel suffers a multitude of communication challenges when not in the presence of the judge or the courtroom. Anne Bowen Poulin, a law professor at the Villanova University School of Law, stressed in her discussion of the use of videoconferencing technology that “[t]he attorney will be unable to gauge the emotional interactions and mood of the courtroom as effectively to determine when and how to intervene on the client’s behalf.”She also examined various studies
    that suggest that alliances form among those who are in the same physical location—alliances against those who appear via video-conference.In the case where neither the parolee nor counsel is physically present at the revocation hearing, the effectiveness of counsel is even more imperiled. The court in Thompson, although faced with the opposite situation in which the judge appeared by video-conference, foresaw this consequence and determined that “[t]he important point is that the
    form and substantive quality of the hearing is altered when a key participant is absent from the hearing room, even if he is participating by virtue of a cable or satellite link.” The physical separation of a parolee from counsel inevitably takes its toll on the effectiveness of the counsel, and this effect is most strongly felt by the communication between them. Some courts have tried to curb this problem by providing telephone lines that allow for privileged communication.
    However, this practice still cannot replace the quality of the attorney–client relationship created by in-person interaction.
    According to Poulin, the human interactions that foster the relationship are muted by the technology, which detracts from the defendant’s experience. Likewise, counsel cannot gauge the defendant’s mental and emotional state, and neither party can use nonverbal cues to communicate with each other during a proceeding, both of which are necessary to effective communication. Despite the surplus of communication problems caused by the use of
    video-conferencing technology, Poulin believes that these adversities will not rise to the level of ineffective assistance of counsel in the eyes of the courts.
    However, effective communication is so integral to the role of counsel, and counsel’s ability to effectively assist a client, that it is likely to be a key consideration when a court determines whether the right to effective assistance of counsel has been violated by the use of videoconferencing technology at a revocation hearing. In fact, at least one court has recognized that the use of technology to physically exclude a parolee from the courtroom, as well as from counsel, violates the right to counsel because of the detrimental effect it has on communication.
    In Schiffer v. State, the District Court of Appeal of Florida heard an appeal from a revocation hearing and a subsequent sentencing hearing in which the parolee participated via
    video/audio arrangement. The court found that, because the parolee had no means by which to access and to communicate privately with his counsel, his right to counsel was “obliterated.” The court held that “[w]e can imagine no more fettered and ineffective consultation and communication between an accused and his lawyer than to do so by television in front of a crowded courtroom with the prosecutor and judge able to hear the exchange.
    The use of videoconferencing technology in revocation hearings also violates the parolee’s due process right to confront adverse witnesses.
    As with the right to effective assistance of counsel, the parolee’s due process right “to be heard in person”works in conjunction with the due process right to confront adverse witnesses. Without the parolee’s physical presence, there is no effective right to confront adverse witnesses that satisfies the minimum requirements of due process. The Ninth Circuit addressed this issue in
    White v. White when it considered whether a bar to the presence of an adverse witness at a
    parole revocation hearing violated due process.
    The court held that “[w]here the facts are contested, the presence of adverse witnesses, absent good cause for their nonappearance, is necessary to enable the parole board to make accurate
    findings.” Therefore, without good cause, the appearance or the presence of adverse witnesses is necessary. 

    A parolee has a strong interest in the right to confront adverse witnesses at a revocation hearing, a proceeding at which the parolee’s liberty is at stake. The parolee, who will either want to argue innocence or prove factors in mitigation, cannot effectively exercise a right of confrontation when appearing via vide-oconference, away from the physical presence of the adverse witnesses. Like in Wilkinson, a parolee who can observe witnesses only on screen will not be able to observe
    their demeanor and properly ascertain the accuracy and reliability of their proffered evidence, evidence that is often determinative of the parolee’s fate.

    Therefore, given the strength of a Claimant’s due process right of confrontation, and the insufficiency, or even the complete absence of good cause by the government, a Claimant should be able to successfully demonstrate that the use of vide-oconferencing technology
    to exclude the Claimant from being physically present in the same Hearing Room as the ALJ and other witnesses violates the Claimant’s due process right to confront adverse witnesses.

Friday, February 28, 2014

Social Security Disability Back Logs Are Growing. Waiting Times For Hearings Are Increasing. Fewer Claimants Are Getting Benefits.

Social Security Disability Hearing Backlog Growing Again

 Number of people waiting in the hearing backlog approaches 1 million.

If your application was denied and you must appeal your SSDI benefits claim, it’s important to avoid waiting to file and get help.  The Back Log of people waiting to attend a hearing for Social Security Disability Insurance (SSDI) benefits is growing closer to 1 million. 
As of December 2013, there were 903,720 people who had filed an appeal and were waiting for a hearing before an administrative law judge (ALJ). , according to  data released by the Social Security Administration (SSA).
This is a nearly 7 percent increase from 847,984 hearings pending at the end of fiscal year 2013, and a 17 percent increase from 771,318 hearings pending in FY 2011.
As the waiting time grows longer, more and more people are enduring significant financial hardship to receive SSDI benefits through a program they paid into through FICA taxes while they were working.
The first-quarter FY 2014 data also shows that the time it takes to get a Hearing has increased to 393 days from 382 days in FY 2013.
 Click here to see a state-by-state ranking of pending hearings, based on an analysis of SSA data.

The growing Social Security disability Backlog illustrates the challenges of meeting the SSA’s goals outlined in its FY 2008-13 Agency Strategic Plan.
Social Security had planned to reduce the hearing Backlog to 466,000 claims and the average processing time to 270 days, but a number of factors have worked against this.
Restricted funding has led Social Security to cut the hours its Hearing Offices are open to the public. In addition, the average wait time for calls going to the SSA’s national 800-number have increased. Since September 2010, the SSA has lost more than 7,400 employees from its workforce, according to the U.S. Office of Personnel Management (OPM).
At the same time that waiting times are growing to get a Hearing, it’s becoming much more difficult to receive SSDI benefits.
 For example, the SSA reported that 89,332 people were granted benefits in December 2012. A year later, that number was reduced to 61,983 in December 2013, a 30 percent decline.
SSDI is a federally mandated insurance program that provides monthly benefits to individuals who are under full retirement age (65-67) and who can no longer work because of a severe, long-term or terminal disability. FICA payroll taxes paid by workers and their employers fund the program, which is administered by the SSA.
You Need Help When Filing An SSDI Appeal
Things To Consider When Applying for SSDI benefits.
1.    Consult An Attorney. Those who applied for Social Security Disability Insurance benefits without a representative have the opportunity to get help with a disability appeal. At the hearing level of the SSDI program, nearly eight in 10 applicants have a representative.
2.    Appeal Every Thing. When people apply for SSDI and are denied benefits, they may decide to give up on their application. It’s important to pursue a disability appeal because delaying or missing important dates can hurt someone’s claim. For instance, those who decide to wait and apply later may wait too long and become uninsured. The SSA requires individuals to be fully and currently insured in order to receive SSDI benefits. Generally, this means having a work history of five out of the last 10 years—and waiting too long could mean missing this window.
3.    Provide documentation and details. It may take the SSA two years or longer to review an SSDI claim through the appeals process, which points to the importance of good documentation. Continue to work closely with your doctors to document updates, new tests and test result. It’s also important to correct any errors, explain changes and provide more detail with your SSDI appeal.
More than 168,000 people applied for SSDI benefits in December 2013 and entered the growing line for review of their disability insurance claims.
It is important for new SSDI applicants to realize they need expert help with their application. That expertise and attention to your claim can result in benefits as early as your initial application. That means avoiding disability appeals altogether.

Find more information about SSDI disability appeal see http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757

(Statistics Source: ALLSUP) ABOUT ALLSUP :
Allsup is a nationwide provider of Social Security disability, veterans disability appeal, Medicare and Medicare Secondary Payer compliance services for individuals, employers and insurance carriers. Allsup professionals deliver specialized services supporting people with disabilities and seniors so they may lead lives that are as financially secure and as healthy as possible. Founded in 1984, the company is based in Belleville, Ill., near St. Louis. For more information, go to Allsup.com or visit Allsup on Facebook at http://www.facebook.com/Allsupinc.

Judges Stripped Of Judicial Independence By SSA



SSA increases oversight of judges in disability determinations

The Social Security Administration (SSA) recently announced plans to increase its oversight of judges (ALJs) in the disability determination process.
February 25, 2014 /24-7PressRelease/ -- In an effort to improve consistency in the disability determination process (SSDI), the Social Security Administration (SSA) recently announced plans to step up its oversight of the administrative law judges (ALJ) who are responsible for awarding or denying disability benefits. The Social Security Disability Insurance program provides financial benefits to people who are unable to work because of a mental or physical disability. 
The program has increased substantially in the years since the U.S. economy took a downturn in 2008, and there are now approximately 11 million people receiving disability benefits nationwide. New job descriptions for judges To expand its oversight of the eligibility determination process, the SSA is rewriting the job descriptions of approximately 1,500 judges, who in the past have been given broad discretion over the outcome of eligibility hearings. In recent years, these eligibility hearings have yielded notoriously unpredictable results.
 http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757
According to a 2011 report by the Wall Street Journal, an applicant's likelihood of being awarded disability benefits can vary dramatically depending on the judge; while a handful of judges award benefits in nine cases out of ten, others deny benefits nearly as often.  
The new job descriptions will include language stating that the judges are subject to supervision and will remove the words "complete individual independence," the WSJ reported. It is hoped that the changes will increase accountability among the judges and allow the SSA to take corrective measures when judges award or deny benefits inappropriately
 Disability benefit determination 
Before becoming eligible to receive SSDI benefits, an applicant must first establish that he or she meets the SSA's requirements for being considered "disabled." To do so, the applicant must demonstrate that each of the following is true: - The individual cannot work because of a medical condition. - The condition has lasted or is expected to last for a year or more, or is expected to result in death. 
 While the process of applying for SSDI benefits may seem relatively straightforward, in practice it can be cumbersome, time consuming and often frustrating. Not only is it necessary to submit medical records and other evidence of disability, but in most cases applicants are also required to attend an eligibility hearing before an administrative law judge.
 http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757
Benefits often available after initial denial 
Overall, first-time disability applicants are denied benefits as much as, according to some estimates, but a majority of denied applicants who pursue an appeal are eventually awarded benefits. 
 In many cases, working with an experienced Social Security Disability lawyer can significantly improve an applicant's chances of being awarded benefits, whether it is a first-time application or an appeal. 
(Article provided by The Berkley Law Firm Visit us at www.berkleylaw.net --- Press release service.)