The Court Of Public Opinion

At arraignment, the District Attorney may offer a plea to a lesser charge than what you were arrested for originally. Pleas are offered to unburden an extremely congested criminal court calendar, as well as to get rid of lesser criminal cases so the District Attorney can rightfully concentrate on the more serious crimes.

If you were arrested for misdemeanor shoplifting and you arrive at the arraignment with no prior arrests, most likely the District Attorney will offer you the option of pleading guilty to a lesser violation and a few days of community service with a fine. You have the option to end the process by accepting the lower charge of a violation, which is not a crime but will appear on your record in the future.

If you accept the plea then you will actually plead guilty to a lesser offense on the record and the court will most likely impose a fine and community service or counseling, depending upon what you and the District Attorney agreed to.

If you dont accept the plea, you will simply plead not guilty and continue your criminal court appearances. Your attorney will file various motions and hold hearings to discover what evidence the District Attorney has against you or to get the charges dismissed. An example of such a hearing would be called a Huntley Hearing. In that hearing your attorney’s objective is to get any incriminating statements you made suppressed, meaning they can not be used against you. The point of that hearing is that the police obtained statements from you invlountarily. At the hearing your attorney will cross-examine the police involved in your arrest by asking them detailed questions. If your attorney can prove your statements were coerced or obtained form you in some way involuntarily then you have just eliminiated a criucial piece of evidence against you, making your case of innocence stronger.

As you proceed further through the criminal court process, the plea to a lesser charge may or may not be offered again. Whether or not you accept a plea is something only you and your attorney can decide, based upon your circumstances. Just remember that the plea will always be on your record as opposed to fighting the charges if youre innocent and getting the whole criminal case dismissed, clearing your name.

Your Criminal Court Appearances

If you plead not guilty and are released ROR (meaning without bail and on your own recognizance) or on bail, youll be given the next date to appear before the court. At that time the court will set deadlines for your attorney to complete certain work on your behalf.

The District Attorney has a limited period of time to complete his investigation and state on the record he is ready for trial. The time limits are mandatory to protect your constitutional right to a speedy trial. So you should be prepared to quickly prove your innocence. Being accused of a crime is a stigma, and the reality is that you are actually presumed guilty until you prove your innocence (contrary to the belief that you are presumed innocent until proven guilty).

If you miss a court appearance, a warrant for your arrest is issued

Your Right To A Speedy Trial

The time for you to get a speedy trial starts running from the date the criminal complaint is filed against you. A trial for a violation must be held within 30 days. A misdemeanor trial must occur within 90 days. A felony trial must take place within six months.

The time periods for a speedy trial are tolled (stopped) because of certain motions made by your attorney or certain hearings. They are not tolled if the District Attorney requests adjournments without your consent. They are also not tolled if the District Attorney is not ready for certain appearance dates. This is called excludable time for the purposes of determining when a trial must be held.

Making A Record

At each court date, there will be a stenographer typing every word of the proceeding to make a record of it. Your attorney must make sure the record is clear that you do not consent to an adjournment or that the District Attorney was not ready. Being clear is important, because the court is overwhelmed with hundreds of cases a day. Sometimes the judge will not keep a good record or his notes on your file will be unreadable and the judge later cant recall what happened.

To be clear and to protect your rights, state on the record that defendant does not consent to the adjournment and time should be charged to the People or state that The District Attorney is not ready and time should be charged to the People. Make sure the stenographer hears what you say because you may later have to order those records from the stenographer to prove what happened at the hearing. If the stenographer did not hear you or your attorney then you will not have a record that will benefit you. Make sure you both speak loud and clear at each court date to protect your record.

Law Offices of Susan Chana Lask
853 Broadway, Suite 1516
New York, NY 10003
(212) 358-5762
2004 Susan Chana Lask All Rights Reserved

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The arraignment process involves:

• Being brought before a Judge in the courtroom

• Receiving the criminal complaint with the crimes charged and the factual basis to each charge

• The District Attorney requesting bail or releasing you on your own recognizance (called ROR)

• Pleading guilty or not guilty

The process starts when the court officer brings you from the cell in the back of the courtroom and into the courtroom before the Judge.

If you were unable to contact your family, friends or an attorney when you were arrested then most likely the court will have a Legal Aid attorney appear for you. Legal Aid attorneys are in the courtroom at all times to defend the poor, and most times to appear for the unrepresented.

Usually there will be about three attorneys from the District Attorneys office in the courtroom. One of them will read the charges against you and request the court to impose bail at a certain amount or no bail. If no bail is demanded by the District Attorney then you will hear the word ROR, which means return on your own recognizance.

Bail is determined according to the crime and your personal information. At arraignment the District Attorney will have your personal information obtained from their computer searches on you. They call this your rap sheet. It will include information about you, such as:

• Any Prior convictions

• Any arrests at anytime

• Any pleas to prior arrests

• Parole

• Probation

If your rap sheet is clear of any crimes and this is your first arrest, chances are good that there will be no bail set against you. But even if your rap sheet is clear, if the crime youre charged with is serious (such as involving a large amount of stolen money or violence), bail can be set against you. There are different factors affecting the setting of bail against you, and all are considered by the judge in a matter of minutes.

If the District Attorney requests bail, your attorney should argue that:

• Youre not a flight risk

• You have family, friends and a job in the state or locally

• The charges against you are improper in some way.

Your attorney may even get the whole case dismissed if the District Attorneys criminal complaint against you is not properly drafted or signed by a proper party.

Getting The Complaint Dismissed At Arraignment

The District Attorney drafts the criminal complaint against you from information received from the arresting officer and the victim of the crime. While youre being processed through the Precinct and Central Booking, the arresting officer will fax his paperwork and information regarding your arrest and charges to the District Attorneys office. Someone in the District Attorneys office will then call the victim and get more information so they can properly draft the complaint.

The complaint needs to be signed under oath by the arresting officer or the victim. If it is not signed by anyone when you appear at your arraignment then it is not corroborated and must be dismissed. So check out who signed the complaint: if it was a person other than the arresting officer or the victim then the complaint should be dismissed.

Lastly, if the facts of the complaint do not establish each legal element of the crime charged, or the complaint is poorly drafted then it should be dismissed however, the court usually will give the District Attorney a few weeks to file a properly drafted complaint.

Law Offices of Susan Chana Lask
853 Broadway, Suite 1516
New York, NY 10003
(212) 358-5762
2004 Susan Chana Lask All Rights Reserved

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If youre suspected of a crime, the police can come to your house or work or find you on the street to talk to you. Usually it will be a detective in plain clothes in an unmarked car who will want to talk to you. You might find a card from the detective under your door, or a message on your phone from him asking you to call.

You always have the right to remain silent, as anything you say to a police detective will be used against you in court. You also have the right to be represented by an attorney when talking with the police.

Just because a detective comes around looking for you doesnt mean you have to speak to him or see him at the police precinct. If the detective is at your door, you dont have to open it for him unless he has a warrant. If a detective is knocking at your door, you dont have to answer. You can wait until he leaves if you want and then of course call your attorney.

Usually, a detective will hound you to come into the precinct headquarters to talk. But once you set foot into the precinct, the detective will have you at his mercy, where he can use different routines - such as good cop/bad cop - or violate your rights just enough to be legal to get you to talk. Maybe hell take your backpack from you or other property you came in with like your cell phone, then direct you to wait for him, leaving you alone in a room for what could feel like a lifetime. He may even ask you to write your version of the story down and then use that against you later.

The police are experts trained in gaining your trust and confidence. They know what to say and what tone to use with you. They will lie and misinform you to get information they want. They can tell you they have witnesses when they do not or say they will lower the charges when they will not. The police most likely will not read you your rights because they want to create an informal, relaxed appearance so you will spill the beans voluntarily.

Good Cop, Bad Cop

If youre not talking then detectives may use the good cop/bad cop routine. The first cop sits alone with you in a small room and talks about the crime. If hes not getting the information he wants to hear to nail you, then you may find yourself standing at the fingerprint machine with another more sensitive cop. Once youre at the fingerprint machine you can be sure youre being charged despite the fact that no one explained anything to you, read you your rights or told you what youre being charged with. Part of the game is to keep you disoriented and guessing your situation. If you hear the new cop say just tell the detective what he wants to hear and youll get out of here faster on a lesser charge then you are being played and you definitely need to keep quiet. Don’t say something just because you think it will get you out faster, because you’re already in there and you’re going to go through the arrest process no matter what.

When the police tell you the consequences of a crime they intend to charge you with, or that they can lower the charge, dont believe anything they say. They can and will lie to you to get you to talk so they can make an arrest. The police are not your attorney, they are not your friends– they are there to make an arrest.

The only way to protect yourself is to remain silent at all times. Enforce your right by consistently and politely stating I am remaining silent until I have counsel. The police can not interrogate you once you invoke that right, although they will try to interrogate you. They also cant interrogate you unless they first read you your rights.

When you arrive at the police precinct , the police should have you sign a paper with your legal rights listed on it. They should have you read your rights while they read it to you, and then have you initial each right and sign the paper at the bottom with the time and date. This paper is a good thing for the police to prove they followed procedure and it will coordinate the time of your arrest closely with the time of reading your rights. It is not mandatory that they give you this paper with your rights, because they can by law verbally read you your rights and note in their notebook the time they read you your rights. Of course, they could never read you your rights and later say they did.

Hiring An Attorney

If a detective is hounding you with phone messages and coming by your house leaving cards with your roommate or family, immediately get an attorney. An attorney can determine if the police are going to arrest you. If you are going to be arrested then your attorney will advise you what to do (and what to say or not say), explain the arrest process, arrange for you to turn yourself in and get you through the process quicker. Also, the police will know they cant interrogate you if youre represented by counsel.

A good attorney will fax a letter of representation to the precinct and follow you through the arrest process by calling the proper offices and getting you to arraignment and out quicker. Your attorney should also fax a notice of appearance on your behalf to the Arraignment Clerks Office the minute he or she discovers youve been docketed by the District Attorneys office (meaning theyve drafted and filed a Criminal Complaint against you and assigned a docket number to your case so it can be heard by the court).

If you do not voluntarily turn yourself in then the police will remember you made it harder for them to arrest you and they may purposely delay your arrest process and make you sit for three days in jail before you see a judge. Theyll delay filling out your paperwork and sending it to the proper offices. They may even lose your paperwork.

The last thing you want to do is spend a minute longer being arrested and in jail so here’s a valuable tip: dont turn yourself in or get arrested at night or on a weekend because there are less people working those shifts and the courts close certain hours, so the process can take three days or sometimes longer.

Law Offices of Susan Chana Lask
853 Broadway, Suite 1516
New York, NY 10003
(212) 358-5762
2004 Susan Chana Lask All Rights Reserved

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Nothing is more frustrating than trying to search for news about a specific trial, especially when the mainstream media isnt interested. Now, Case Watchers keeps readers apprised in an easy to read format.

Updated daily, Case Watchers provides a summary of the case, links to the latest news stories and comments from readers. Our hottest and most frustrating current trial is the case against Francis Zarro accused of casino fraud in NY. News about this trial has been difficult to find, but our readers are great about letting us know when news is breaking. Other interesting cases include the man with nine wives, a judge on trial for bribery, the Tri-State Crematory case, a teen accused of killing his grandparents, the Seattle spammer trial, two serial killers, hired hits and many, many more. New cases are regularly added and are often suggested by readers.

The Jerry Dean trial, covered by Court TV, ended well before the story aired and we were there first. Jerry Dean was accused of killing a woman who filed a sexual harassment charge against him. However, the jury acquitted Mr. Dean and the case remains unsolved. Another troubling case is the Deer Hunters Trial involving the Duvall brothers. Although this case is closed, it remains active to capture the post criminal trial civil cases, such as the wife of the victim suing the wife of the defendant.

In addition, Case Watchers brings new attention to the plight of missing people. To date, we have eleven cold cases profiled and are offering awards to those willing to sponsor a missing person page by adding a link to their home page. In addition to the profile pages, each missing person has a poster page readers can print and distribute in their area. Families of other missing people are invited to send us a link for our Missing page.

Casewatcher.com is owned and operated by Marti Talbott, author of: Colorado Cold Case the Botham/Miracle Murders.

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The state has a monopoly on behaviour usually deemed criminal. It murders, kidnaps, and locks up people. Sovereignty has come to be identified with the unbridled - and exclusive - exercise of violence. The emergence of modern international law has narrowed the field of permissible conduct. A sovereign can no longer commit genocide or ethnic cleansing with impunity, for instance.

Many acts - such as the waging of aggressive war, the mistreatment of minorities, the suppression of the freedom of association - hitherto sovereign privilege, have thankfully been criminalized. Many politicians, hitherto immune to international prosecution, are no longer so. Consider Yugoslavia’s Milosevic and Chile’s Pinochet.

But, the irony is that a similar trend of criminalization - within national legal systems - allows governments to oppress their citizenry to an extent previously unknown. Hitherto civil torts, permissible acts, and common behaviour patterns are routinely criminalized by legislators and regulators. Precious few are decriminalized.

Consider, for instance, the criminalization in the Economic Espionage Act (1996) of the misappropriation of trade secrets and the criminalization of the violation of copyrights in the Digital Millennium Copyright Act (2000) both in the USA. These used to be civil torts. They still are in many countries. Drug use, common behaviour in England only 50 years ago is now criminal. The list goes on.

Criminal laws pertaining to property have malignantly proliferated and pervaded every economic and private interaction. The result is a bewildering multitude of laws, regulations statutes, and acts.

The average Babylonian could have memorizes and assimilated the Hammurabic code 37 centuries ago - it was short, simple, and intuitively just.

English criminal law - partly applicable in many of its former colonies, such as India, Pakistan, Canada, and Australia - is a mishmash of overlapping and contradictory statutes - some of these hundreds of years old - and court decisions, collectively known as case law.

Despite the publishing of a Model Penal Code in 1962 by the American Law Institute, the criminal provisions of various states within the USA often conflict. The typical American can’t hope to get acquainted with even a negligible fraction of his country’s fiendishly complex and hopelessly brobdignagian criminal code. Such inevitable ignorance breeds criminal behaviour - sometimes inadvertently - and transforms many upright citizens into delinquents.

In the land of the free - the USA - close to 2 million adults are behind bars and another 4.5 million are on probation, most of them on drug charges. The costs of criminalization - both financial and social - are mind boggling. According to The Economist, America’s prison system cost it $54 billion a year - disregarding the price tag of law enforcement, the judiciary, lost product, and rehabilitation.

What constitutes a crime? A clear and consistent definition has yet to transpire.

There are five types of criminal behaviour: crimes against oneself, or victimless crimes (such as suicide, abortion, and the consumption of drugs), crimes against others (such as murder or mugging), crimes among consenting adults (such as incest, and in certain countries, homosexuality and euthanasia), crimes against collectives (such as treason, genocide, or ethnic cleansing), and crimes against the international community and world order (such as executing prisoners of war). The last two categories often overlap.

The Encyclopaedia Britannica provides this definition of a crime: The intentional commission of an act usually deemed socially harmful or dangerous and specifically defined, prohibited, and punishable under the criminal law.

But who decides what is socially harmful? What about acts committed unintentionally (known as strict liability offences in the parlance)? How can we establish intention - mens rea, or the guilty mind - beyond a reasonable doubt?

A much tighter definition would be: The commission of an act punishable under the criminal law. A crime is what the law - state law, kinship law, religious law, or any other widely accepted law - says is a crime. Legal systems and texts often conflict.

Murderous blood feuds are legitimate according to the 15th century Qanoon, still applicable in large parts of Albania. Killing one’s infant daughters and old relatives is socially condoned - though illegal - in India, China, Alaska, and parts of Africa. Genocide may have been legally sanctioned in Germany and Rwanda - but is strictly forbidden under international law.

Laws being the outcomes of compromises and power plays, there is only a tenuous connection between justice and morality. Some crimes are categorical imperatives. Helping the Jews in Nazi Germany was a criminal act - yet a highly moral one.

The ethical nature of some crimes depends on circumstances, timing, and cultural context. Murder is a vile deed - but assassinating Saddam Hussein may be morally commendable. Killing an embryo is a crime in some countries - but not so killing a fetus. A status offence is not a criminal act if committed by an adult. Mutilating the body of a live baby is heinous - but this is the essence of Jewish circumcision. In some societies, criminal guilt is collective. All Americans are held blameworthy by the Arab street for the choices and actions of their leaders. All Jews are accomplices in the crimes of the Zionists.

In all societies, crime is a growth industry. Millions of professionals - judges, police officers, criminologists, psychologists, journalists, publishers, prosecutors, lawyers, social workers, probation officers, wardens, sociologists, non-governmental-organizations, weapons manufacturers, laboratory technicians, graphologists, and private detectives - derive their livelihood, parasitically, from crime. They often perpetuate models of punishment and retribution that lead to recidivism rather than to to the reintegration of criminals in society and their rehabilitation.

Organized in vocal interest groups and lobbies, they harp on the insecurities and phobias of the alienated urbanites. They consume ever growing budgets and rejoice with every new behaviour criminalized by exasperated lawmakers. In the majority of countries, the justice system is a dismal failure and law enforcement agencies are part of the problem, not its solution.

The sad truth is that many types of crime are considered by people to be normative and common behaviours and, thus, go unreported. Victim surveys and self-report studies conducted by criminologists reveal that most crimes go unreported. The protracted fad of criminalization has rendered criminal many perfectly acceptable and recurring behaviours and acts. Homosexuality, abortion, gambling, prostitution, pornography, and suicide have all been criminal offences at one time or another.

But the quintessential example of over-criminalization is drug abuse.

There is scant medical evidence that soft drugs such as cannabis or MDMA (Ecstasy) - and even cocaine - have an irreversible effect on brain chemistry or functioning. Last month an almighty row erupted in Britain when Jon Cole, an addiction researcher at Liverpool University, claimed, to quote The Economist quoting the Psychologist, that:

Experimental evidence suggesting a link between Ecstasy use and problems such as nerve damage and brain impairment is flawed … using this ill-substantiated cause-and-effect to tell the ‘chemical generation’ that they are brain damaged when they are not creates public health problems of its own.

Moreover, it is commonly accepted that alcohol abuse and nicotine abuse can be at least as harmful as the abuse of marijuana, for instance. Yet, though somewhat curbed, alcohol consumption and cigarette smoking are legal. In contrast, users of cocaine - only a century ago recommended by doctors as tranquilizer - face life in jail in many countries, death in others. Almost everywhere pot smokers are confronted with prison terms.

The war on drugs - one of the most expensive and protracted in history - has failed abysmally. Drugs are more abundant and cheaper than ever. The social costs have been staggering: the emergence of violent crime where none existed before, the destabilization of drug-producing countries, the collusion of drug traffickers with terrorists, and the death of millions - law enforcement agents, criminals, and users.

Few doubt that legalizing most drugs would have a beneficial effect. Crime empires would crumble overnight, users would be assured of the quality of the products they consume, and the addicted few would not be incarcerated or stigmatized - but rather treated and rehabilitated.

That soft, largely harmless, drugs continue to be illicit is the outcome of compounded political and economic pressures by lobby and interest groups of manufacturers of legal drugs, law enforcement agencies, the judicial system, and the aforementioned long list of those who benefit from the status quo.

Only a popular movement can lead to the decriminalization of the more innocuous drugs. But such a crusade should be part of a larger campaign to reverse the overall tide of criminalization. Many crimes should revert to their erstwhile status as civil torts. Others should be wiped off the statute books altogether. Hundreds of thousands should be pardoned and allowed to reintegrate in society, unencumbered by a past of transgressions against an inane and inflationary penal code.

This, admittedly, will reduce the leverage the state has today against its citizens and its ability to intrude on their lives, preferences, privacy, and leisure. Bureaucrats and politicians may find this abhorrent. Freedom loving people should rejoice.

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It happened on August 6, 2004. A gruesome murder. At approximately 1am, six individuals were stabbed and then beaten to their deaths. The murdered victims were Michelle Ann Nathan, 19; Erin Belanger, 22; Francisco Ayo-Roman, 30; Anthony Vega, 34; Roberto Gonzalez, 28 and Jonathan Gleason, 17. Most of the victims were asleep when the attack occurred. According to reports, the victims did not fight back.

What in the world could have caused the heartless criminals to violently kill the aforementioned and two small dogs? The shocking answer is a Xbox game. The murderers were squatting at one of the victims grandparents vacant home. When the Xbox game and some clothing were removed from the home, where they were staying illegally, the boys became enraged.

A clerk at Wal-Mart told investigators that the band of criminals was joking and laughing about killing people. The crew bought baseball batsthis was just two days before the heinous crime. What happened next was simply gruesome. That was almost two years ago. The trial, which had to be moved due to excessive media coverage, is about to get underway.

The prosecution is adamant about seeking the death penalty if the defendants are convicted. To bolster their case, they managed to get one of the crew to flip. His name is Robert Cannon, 19, and hes going to spill the beans about the destructive events on that fateful August morning. In exchange, Cannon will serve a life sentence. The other three are Troy Victorino, 29; Michael Salas, 20 and Jerone Hunter, 20.

The group is facing six counts of first-degree murder, five counts of mutilating a dead human body and many other felony offenses. Troy Victorino has been labeled as the ringleader. Just before the fatal attacks, he was arrested for beating his friend in the face with a walking stick. Victorino was released on a pitiful $2,500 bond. He was now free to coordinate and strike again.

Due to the bloody evidence in the prosecutions possession, one can assume that the defendants stand a very good chance at receiving capital punishment if convicted. Since Robert Cannon flipped, the prosecution has a very good case. It will be an uphill battle for the defense. The trial is expected to last about two months. This trial was moved, due to the overwhelming media coverage, to St. Augustine.

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It happened on August 6, 2004. A gruesome murder. At approximately 1am, six individuals were stabbed and then beaten to their deaths. The murdered victims were Michelle Ann Nathan, 19; Erin Belanger, 22; Francisco Ayo-Roman, 30; Anthony Vega, 34; Roberto Gonzalez, 28 and Jonathan Gleason, 17. Most of the victims were asleep when the attack occurred. According to reports, the victims did not fight back.

What in the world could have caused the heartless criminals to violently kill the aforementioned and two small dogs? The shocking answer is a Xbox game. The murderers were squatting at one of the victims grandparents vacant home. When the Xbox game and some clothing were removed from the home, where they were staying illegally, the boys became enraged.

A clerk at Wal-Mart told investigators that the band of criminals was joking and laughing about killing people. The crew bought baseball batsthis was just two days before the heinous crime. What happened next was simply gruesome. That was almost two years ago. The trial, which had to be moved due to excessive media coverage, is about to get underway.

The prosecution is adamant about seeking the death penalty if the defendants are convicted. To bolster their case, they managed to get one of the crew to flip. His name is Robert Cannon, 19, and hes going to spill the beans about the destructive events on that fateful August morning. In exchange, Cannon will serve a life sentence. The other three are Troy Victorino, 29; Michael Salas, 20 and Jerone Hunter, 20.

The group is facing six counts of first-degree murder, five counts of mutilating a dead human body and many other felony offenses. Troy Victorino has been labeled as the ringleader. Just before the fatal attacks, he was arrested for beating his friend in the face with a walking stick. Victorino was released on a pitiful $2,500 bond. He was now free to coordinate and strike again.

Due to the bloody evidence in the prosecutions possession, one can assume that the defendants stand a very good chance at receiving capital punishment if convicted. Since Robert Cannon flipped, the prosecution has a very good case. It will be an uphill battle for the defense. The trial is expected to last about two months. This trial was moved, due to the overwhelming media coverage, to St. Augustine.

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Identity Theft scams continue to flourish on the web. One that you need to be aware of and beware of is any site that seems to be selling high-demand items (digital cameras for instance) at a much lower (almost unbelievable) price than you can find on other sites or the manufacturers site.

Often the victims are told to pay nothing until they receive the merchandise. The person behind the scam uses the victims name and a credit card number belonging to another person to purchase the item at a legitimate site.

Once the item is shipped, the victim then authorizes his credit card to be billed or sends payment directly to the scammer. The scammer has now put you in the position of being in receipt of stolen merchandise while they get away with your money.

Another scam that still seems to be working is being contacted through e-mail by someone claiming to be from your credit card company, your internet service provider, Paypal, or Ebay.

The scammer will send a message stating that your account information needs to be verified because their files were hacked into, their database crashed or they believe that someone has tried to steal your account information and they want to verify your information in order to protect your account. The con artist then uses the information supplied to verify your account to run up fraudulent charges.

NEVER give personal information to a company, such as AOL or Ebay, that already has it. If you are suspicious about being contacted, contact the company yourself before giving out any personal information.

About The Author

2003, Your Free Credit Report Now

Author: James H. Dimmitt.

Get your FREE credit report online now and subscribe to our FREE weekly newsletter TO YOUR CREDIT.

Visit http://www.yourfreecreditreportnow.com for more information.

jimdim815@aol.com

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Introduction

In late June of 2003, I received an e-mail from Daniel Harris, who introduced himself as maritime lawyer from Seattle. He had found me through the internet and was asking me whether I was interested in helping arrest transshipped cargo in Dalian. I was excited about the task and I surfed Dan’s website [http://www.harrismoure.com and learned Dan owns a small international law firm in Seattle, called Harris & Moure. I replied to him immediately and sent him some relevant provisions concerning cargo arrests under China legal system. He was very happy with my prompt and helpful reply and we soon were working together on the case. He later told me he was so impressed with my responses that he had picked me over numerous other lawyers throughout China.

Brief of the case

OOO Bolshoretskoe is a Russian fishing company that sold 400 Tons of pollock worth around US$700,000 to Alimex Seafood A/S, a Danish company. The pollock was scheduled to be transshipped from Dalian to Europe. Alimex had not yet paid Bolshoretskoe for the product. Bolshoretskoe owed Daxin Petroleum Pte, Ltd., a Singapore fuel supply company, around US$400,000 for fuel. M/V IVAN POLZUNOV, the vessel carrying the pollock, was scheduled to call on Dalian on 4 July, 2003. Our task was to seize the pollock for Daxin to get Bolshoretskoe to pay its debt.

Bolshoretskoes debt to Daxin arose in July and December, 2002, when Daxin supplied bunker products for two Russian fishing vessels, TOSNO and PHOENIX. To secure these fuelings, Bolshoretskoe signed a guarantee letter to Daxin in which Bolshoretskoe assigns all receivables resulting from production, deliveries and selling of Salmon or Pollock on/from board of F/T PHOENIX in favor of Daxin for the amount of the bunker supply. In addition, Bolshoretskoe agrees that property title to salmon or pollock products covering the amount of the bunker shall pass to Daxin immediately upon processing and/or storage of the products on board of PHOENIX.

Daxin was not paid on its two fuel deliveries, and Bolshoretskoe was refusing to pay. It is estimated the TOSNO and PHOENIX owed a combined total of around $20 million in unpaid debt to various creditors.

Intensive and orderly preparation for cargo arrest

After studying the relevant documents and analyzing the entire history of the case, we determined that either Bolshoretskoe or Alimex would pay Daxin if we arrested the cargo in China. So we set about to do just that.

First, we prepared all necessary legal documents pursuant to Chinese law. Due to the various different legal systems and languages involved (China, Russia, Singapore and the United States), our preparations were extremely time consuming. As we were preparing our documentation and firming up our strategies, Dan was also preparing to come to Dalian.

However, the day before Dan was to leave the United States, he learned that the pollocks transport vessel, the IVAN POLZUNOV, had secretly changed its plans in an effort to avoid arrest. It would not be calling Dalian on July 4, 2003; it would be calling Qingdao on July 8, 2003. Because all legal documents had been prepared for the Dalian Maritime Court, Bolshoretskoes change in plans necessitated we completely change our plans also. With time so much of the essence, we asked Sunfanlong, who works in Qingdao Wincon law firm, to work with us and we transferred all legal documents to him.

Successful Arrest of the cargo

On July 7, 2003, Dan arrived in Qingdao. The IVAN POLZUNOV arrived in Qingdao the next day and began to discharge 15 containers of pollock for transshipment to Europe. When the judge, Wincons lawyer and Dan saw that the containers were being offloaded on trailers for transport to the container terminal, they went straight to the terminal to deliver the arrest papers on all 15 containers. However, after waiting nearly five hours at the terminal and waiting well into the night, only three containers had arrived and been arrested. Nobody seemed to know what had happened to the other twelve containers. We were concerned Bolshoretskoe and/or Alimex had learned of our arrest warrant and had hidden the other twelve containers. Adding to our worries was that we had by now learned that Alimex was to ship all 15 containers to Europe the very next day. We checked everywhere for the missing twelve containers. We checked with various trucking companies. We checked all around the terminal. Nothing. Eventually, we learned that the twelve containers had been in the terminal all along, but had been issued separate bills of lading from the first three and placed in a somewhat separate area. We had succeeded in arresting all fifteen containers.

After our having engaged in twelve days of intensive e-mail and telephone communication together, Dan showed up at Dalians airport. His high praise of our work conveyed his satisfaction of our efficient job. Dalian and Qingdaos picturesque scenery and modern city construction impressed Dan deeply and changed his previous imagination regarding this part of China. He loved the food and our culture and talked about returning some day with his family on holiday.

Hard success to acquire guaranty and lift the arrest

Now that we had the pollock under arrest, we would need to maintain it in its frozen condition at the terminal. Pollock is a valuable fish and the costs and risks during the arrest period were high. The sooner we could resolve the dispute, the sooner the fish would be on its way, and the better it would be for all parties.

The day after we arrested the cargo, we received a letter from Alimexs lawyers in Denmark, claiming Alimex owned the arrested cargo, not Bolshoretskoe, and threatening Daxin with criminal action. Alimexs lawyers copied this letter to the court and to Daxin. Though confident that it was in the right, this threat of criminal action did not sit well with Daxin. We replied to Alimexs lawyers by lecturing them on Chinese and international law and by declaring that Alimex would suffer even more losses if it insisted on pursuing litigation in China instead of cooperation. The reaction from Alimexs lawyers was overwhelming. They wrote me a letter filled with furious and derogatory words and stated they would never communicate directly with us again. The case had fallen into deadlock.

Despite the initially tough attitude of Alimexs lawyers, we knew we could not abandon our efforts to achieve a settlement, particularly since we knew settlement made sense for all parties. We proposed a three way agreement between Daxin, Alimex and Bolshoretskoe, whereby Alimex would keep its purchase price funds and not pay any party for the fish until the dispute between Daxin and Bolshoretskoe had been resolved through arbitration in Canada. Alimex would then pay the winner of the arbitration up to the purchase price of the fish. Alimex would also agree not to pursue any claims against Daxin for wrongful arrest. Upon the signing of this agreement, Daxin would release its arrest of the cargo. Daxin secured oral agreements from both Bolshoretskoe and Alimex to go forward with such an agreement.

For the fish to go out on the next liner to Europe, Dan and I had to work overtime in drafting the appropriate agreements. This time, the multitude of languages and time zones (China, Russia, Singapore, Seattle, and Denmark) worked to slow us down, and by the time Bolshoretskoe received its Russian language copy of the agreement, only a few hours remained before the pollock needed to be loaded on the liner to Europe. But, at the last minute, Bolshoretskoe changed its mind and decided it would not sign. All our hard work had been for naught. We were all exhausted.

The next liner to Europe was leaving in six days. During the weekend, we stopped talking with opposing parties and communicated with only Dan and Daxin. We went back over the case history and analyzed each partys positions and risks. We concluded that Bolshoretskoe was Daxins real adversary. It was Bolshoretskoe that owed the money and it was Bolshoretskoe that had avoided payment for so long. It also was Bolshoretskoe that had backed out of its oral agreement. There had been no prior conflicts between Daxin and Alimex. Though Alimex was listed as the consignee of the pollock on the Bill of lading, it had yet to actually pay for the fish. Above all else, Alimex wanted the pollock sent to Europe so it could fulfill its commitments with its European buyers.

If we could persuade Alimex to provide a deposit or the purchase price to the Qingdao Maritime Court, we would lift our cargo arrest. If, on the other hand, Alimex insisted on paying the purchase price directly to Bolshoretskoe, the arrest would remain in place, and Alimex would be unable to fulfill its supply contracts with its European buyers. Daxin would be left fighting a two front war against Alimex and Bolshoretskoe in the Chinese courts.

We told Alimex that if it did not immediately settle, we would move the court to require Alimex pay the Pollock purchase price to the court and seeking the immediate sale of the pollock at auction. Within hours, we received contact from a Chinese lawyer retained by Alimex, who would, he informed us, be going to court to have our illegal arrest thrown out. The court ignored him.

The next liner for Europe was coming to Qingdao the next day and it finally began dawning on Alimex that if it wanted to get the pollock to Europe and to its customers, it would need to settle with us. Intensive settlement talks began anew and another oral agreement was reached. Alimex would guarantee to pay up to the amount of the pollock purchase price to whomever prevailed between Daxin and Bolshoretskoe. Alimex also agreed not to pursue any claims against Daxin arising from Daxins allegedly wrongful arrest of the cargo. A settlement was drafted and signed and the parties worked diligently to get the arrest lifted in time for the product to make it on that days liner to Europe.

Daxin had a Guarantee Agreement from an established and well funded Danish company and we had achieved a smashing victory on this exciting arrest of cross-border transshipping cargo.

Somewhat smooth sailing in recovering Daxins award.

We then filed Daxins case against Bolshoretskoe in the Qingdao Maritime Court. Bolshoretskoe consistently failed to attend any court hearings and we eventually secured a default judgment against it.

Alimex then paid Daxin all but US$15,000 of the amount it had guaranteed, but claimed entitlement to withhold US$15,000 for itself to help pay for the costs it had incurred in China defending against Daxins arrest. One e-mail from Dan threatening arbitration in London (pursuant to the Guarantee Agreement) for the $15,000, plus all fees and costs, convinced Alimex it had no case on this either. Alimex paid the remaining US$15,000 to Daxin and the case was over.

After six months, close cooperation and flexibility by lawyers on both sides of the Pacific had given us full and total victory.

Epilogue

A few months after I closed the case, Dan sent me an e-mail telling me he had heard from one of his Danish clients that Alimexs Danish lawyers had told them of our great job on this case. Dan and I have since worked on a couple additional cases together, but it will be this first one that I will always remember. In thinking of this case, I know I will never forget the sleepless nights I spent communicating with lawyers and parties in four times zones. But I also know that the pride I feel from knowing how much we achieved, despite having to work through the laws of so many countries under such tight deadlines, is what will always stand out.

Our wisdom, our legal knowledge and our strenuous diligence had garnered us high praise not only from our foreign colleague and from our client, but also admiration from the opposing party. I share this honor with Harris & Moure, with our Fada Law Firm and with Qingdaos Wincon Law Firm, and with our Chinese Lawyers.

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