Legal Issues

Family and Medical Leave Act (FMLA) of 1993 is a labor law that places a responsibility on large employers to provide their employees with a job-protected unpaid leave. This kind of unpaid leave is granted to the employee by the employer in a case where the employee suffers from a serious illness and is therefore not able to perform his or her duties. Job-protected and unpaid leave is also granted to an employee by the employer in a case where the employee needs to care for a sick family member. The family member can be a child, spouse or parent. Another case where the employer is required by FMLA to grant a job-protected unpaid leave to his or her employee is when the employee is going to care for a new born son or daughter. In case of a new child as a result of adoption or foster care, the employer is still required by this act to grant the employee a job-protected unpaid leave (Department of Labor, Employment Standards Administration, Wage and Hour Division, 2007).

For an employee to qualify for the benefits described by this act, he or she must be employed by an employer with 50 or more employees in his or her business who must be working within a radius of 75 miles. The employer can also be a public agency in which case the 50 employees threshold is not necessary. The other requirement is that the employee should have worked for the employer for 12 months or more and within the last 12 months the employee must have worked for at least 1250 hours. The act grants an employee the job-protected unpaid leave for a maximum of 12 weeks within a year.

According to the act the employer has a responsibility of restoring the employee to the same job position that he or she held before the leave upon returning to work. In case for some reason the previous job position is not available, the employee is entitled to a substantially equal job position in terms of responsibility, pay and other benefits.

This act protects the employees benefits while on job-protected unpaid leave. According to the act the employee should be granted all the benefits which were entitled to him or her before going on the unpaid leave. The act protects the employees rights from any interference or denial by the employer. The employee is also protected from retaliation by the employer because of exercising his or her rights under this act (Department of Labor, Employment Standards Administration, Wage and Hour Division, 2007).

Occupational Safety and Health Act (OSHA) of 1970
Occupational Safety and Health Act (OSHA) of 1970 is an act which places responsibility upon employers to provide their employees with a working environment that is free from recognized hazards. These recognized hazards include exposure to toxic chemicals, mechanical dangers, excessive noise, stress caused by excessive heat or cold and unsanitary conditions (Occupational Safety and Health Administration, 2006).

The act protects the employee from being discriminated or discharged because of exercising his or her rights under this act. This act protects the employees from unsafe and unhealthy working conditions so as to protect the human resource exploitation. The act requires the employer to keep a record of every non-consumer chemical product used in the workplace in order to protect hisher employees. To further protect the employees, the employer is required to provide in the workplace detailed technical bulletins so that the employees can read ways and methods they can use to avoid chemical hazards.

The act places responsibility upon the employer to protect the employee from a recognized hazard which is described in the act as one that the employer knew or should have known. Such hazards should be obvious or recognized within the industry that the employee is working in. The employer is responsible for protecting his or her employees from a correctable hazard.

In addition, the act places a responsibility upon the employer to comply with all the workplace safety and health standards. It is the responsibility of the employer to make sure that he or she is familiar with the health and safety standard applicable in their establishment. The employer is required by the act to maintain conditions that are reasonably necessary to protect their employees. In this connection, the employer is required to adopt practices that are appropriate for the protection of their employees. The employer should always ensure that his or her employees have and use protective gears and equipments whenever there is a need to do so for the safety and health of the employees. The employer has a responsibility to communicate with his or her employees about a hazard in their workplace.

Under the act, the employers have a responsibility to report to OSHA the death of an employee within eight hours if the employee dies from an incident related to his or her job. In case three or more employees are hospitalized because of an illness or injury that is related to the employers work, the employer is required to report it to OSHA. In case the employee suffers from a fatal heart attack while on the job, the employer should also report such an incident (Occupational Safety and Health Administration, 2006).

Section I
Konswe Andrelecht a resident Breihner center 2, Amsterdam, Netherlands, hereinafter referred to as the seller, and Phil Mathews a resident of  Peoria Park District,  Prospect Road, Peoria, Illinois state, hereinafter refer to as the buyer herein on the twelfth day of February two thousand and ten, enter in to an agreement subject to the following terms

Section II choice of law
This agreement is drawn in accordance with the United Nations convention on contracts for the international sale of goods (CISG), which shall have an overriding application over any of the individual laws in the resident countries of the parties.

Section III Sale of goods
The seller agrees to sell to the buyer the following equipment hereinafter referred to as goods on or before tenth day of March two thousand and ten

A 40 MW, 60 R.P.M diesel generator with the following dimensions length 50 feet, width 20 feet and height 30 feet. The seller agrees to deliver equipment that is new with no previous owner, and in addition to that, the seller commits to provide a one year warranty subject to specific terms that will be signed separately from this contract.

Section IV consideration
The buyer agrees to pay a sum of   882352 (eight hundred and eighty two thousand, three hundred and fifty two Euros). The buyer commits to deliver the said sum to the seller in the currency form of Euros without any considerations for fluctuations in exchange rates between the dollar and the Euro or any other currency that the buyer may have access to, or an interest in.

Section V Delivery location
The seller commits to deliver the goods at Illinois international Port, Chicago, USA. Delivery of goods to this port will be the sole responsibility of the seller.

Section VI identification of goods
The said goods shall only be approved after both buyer and seller (or their authorized agents) have inspected and appended their signatures to the delivery note. Should the delivered goods fail to meet the specifications, then the contract becomes null and void, and the seller will retain total ownership of the goods without any obligations whatsoever to the buyer.

Section VII Documentation
Prior to paying for the goods, the buyer must check the documentation accompanying the goods. The buyer has a right to reject the goods if the seller (or agent) fails to produce a certificate of origin, an ownership transfer document and a warranty. The buyer will also be required to have a bankers draft that will symbolize meeting of financial obligations regarding the sale. The buyer has the obligation of obtaining any documentation necessary for the importation of goods to the US.

Section VIII Shipping andor transportation
It is agreed that the quoted price will be inclusive of shipping and transportation costs. The costs include transportation from the sellers premises to the nearest or convenient port, and then the shipping costs from the port of origin to the Illinois international Port. Once the goods are in the Illinois international port, the buyer takes the responsibility of delivering the goods to his premises or to a location of his choice. Both parties have discretion in deciding the shipping and transportation methods to use in reaching their destination.

Section IX Customs procedures
The seller has the responsibility of clearing the goods through customs procedures from the port of origin to the Illinois international Port, but the responsibility of clearing the goods from the Illinois international port will be the obligation of the buyer.

Section X Insurance
The seller will provide the insurance cover for the goods from the origin up to the Illinois international port. The insurance cover will cover the goods up to the point the ownership transfer is signed between the seller and the buyer or their authorized agents.

Section X Risk of loss
The seller bears the responsibility of loss or damage of any kind or extent for the goods for as long as the goods have not been accepted by the seller. In case of any form of loss or damage to the goods, provisions of section VI apply.

Section XI Freedom from encumbrance
The seller provides an assurance that the goods are free from any encumbrance, security interest or lien at the time of delivery.

Section XII Warranty of title
The seller warrants that at the time of signing the agreement, he has full rights to sell the goods.

The agreement has been signed and produced in duplicate, so that the buyer and the seller both have a copy of the contract.

The right to counsel basically means the unhampered function of the counsel in assisting people accused of crimes in defending the legal action filed against them. Right to counsel is important because in general, defendants do not have adequate knowledge and skill to the complex discipline of law. Because of the multifaceted and adversary nature of criminal proceedings, it is only fair that defendants must at all times be provided with the expert assistance of a counsel in order to guarantee fair trial. Accordingly, if defendants cannot afford to pay the services of a lawyer, the government must all the same pay for these legal expenses or appoint one for them. Therefore, the right to counsel is, in essence, a fundamental element of the right to a fair trial in view of the fact that in order for a trial to be fair, greatest legal assistance to the defendants must be provided.

The Sixth Amendment of the U.S. Constitution
The Sixth Amendment of the Bill of Rights of the United States Constitution lays down a number of rights related with the criminal prosecutions in federal courts. These rights are applied by the Supreme Court to the states through the Fourteenth Amendments Due Process Clause. For that reason, it is important that the assistance of a counsel must be in concurrence with the practice of the adversary fact-finding process embodied in the Sixth and Fourteenth Amendments. To give a better idea, the protections provided by the Sixth Amendment are as follows  

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Because of the straightforward language used in the Sixth Amendment, courts have provided conflicting, often narrow interpretations on the application of each of the guarantee of the amendment throughout the years. In fact, both the Congress that proposed the Sixth Amendment and the state that ratified it did not present any suggestion of the factual understanding with regard to the language employed in the amendment, particularly on the right to counsel clause. As a result, the earlier application of the right to counsel was only confined to guaranteeing a person who is able to afford and wishing to have a counsel would not be denied that right. It was only during the 1930s that the Supreme Court attempted to significantly expand the scope of right to counsel clause of the amendment (Find Law, 2010).

Scope
Basically, the rule in criminal justice system is that in all trial-like confrontations, the presence of the defendant is mandatorily required by the court. In these cases, the presence of the defendants counsel from which the defendant draws assistance and advice is likewise indispensable. Therefore, although the Sixth Amendment does not directly mandate the presence of the defendants counsel during criminal proceedings, it is important to take note that every time the physical presence of the defendant is required by the court, the presence of the counsel is likewise automatically demanded. The proceeding paragraphs provide a brief but very informative overview of the development of the defendants right to counsel in the United States.

Development of the Guarantee of Right to Counsel
Judicial proceeding is commenced from the moment a person is arrested, prosecuted on warrant in front of a judge, and committed to custody. Time and again, Courts have declared that the Sixth Amendments right to counsel is consequently attached from the time judicial proceeding is initiated. The right to counsel is an element of the right to a fair trial, and therefore, if the defendant cannot afford the services of a lawyer, the government must make sure that the defendant is provided with one. However, this present position of the criminal justice system has not traditionally been the situation in the United States.

The Supreme Courts expansion of the guarantee of the right to counsel clause only began in the landmark case of Powel v. Alabama (1932). In this particular case, the Supreme Court set aside the convictions of eight African-American teenagers sentenced to death in a hurriedly accomplished trial without the assistance of counsel. According to Justice Sutherland, due process constantly entails the observance of certain basic personal rights related with a hearing, and the right to the assistance of counsel is without doubt of this basic nature (Powel v. Alabama, 1932). Therefore, every accused person must be provided with the guiding hand of the counsel at every stage of the criminal proceeding. Without such assistance, the accused faces the possibility of conviction in view of the obvious fact that defendants are generally not acquainted with the proper procedure to ascertain their innocence.

Furthermore, the Court held that even the educated and intelligent individuals have generally small and every so often no knowledge in the science of law. People accused of a crime normally lack the adequate knowledge and skill to prepare their defense, even though they have a perfect one. Left without the assistance of a counsel, they cannot proficiently establish whether or not the evidences available and presented are helpful or detrimental to their respective case. Moreover, they may even be put on trial without proper charges and convicted upon irrelevant, inadmissible, or otherwise incompetent evidences. Therefore, the right to be heard will only provide insignificant support to an accused if it does not take in the latters right to be heard by counsel.

Mandatory Appointment of Counsel to Indigent Defendants
The next expansion of the right to counsel came in the case Johnson v. Zerbst (1938) wherein the Supreme Court declared an unconditional rule necessitating the appointment of counsel for federal criminal defendants who could not pay for the services of a lawyer. According to Justice Black, the benefit of counsel is essential to the upholding of basic human rights of life and liberty. A person whose liberty or life is endangered by a felony charged has a constitutional right to a counsel. Therefore, in all criminal proceedings, the Sixth Amendment denies from the federal courts the authority and power to take away the life or liberty of an accused without the assistance of counsel unless the latter waives such benefit. Moreover, the court declared that any waiver of the right to counsel of the defendant must be done through his or her intelligent choice and not deduced from his or her silence. For that reason, these elements must be established by the court before ensuing the hearing of a case without counsel (Johnson v. Zerbst, 1938).

Application of the Guarantee to Both Federal and State Courts
In the case of Betts v. Brady and Progeny (1942), the issue raised was whether or not state courts should be provided with the comparable application of the right to counsel in federal courts in all their criminal proceedings. Through Justice Roberts, the Court observed that the application of the Sixth Amendment would force only the federal courts and not the state courts of the assistance of a counsel to guarantee seeing that the Due Process Clause of the Fourteenth Amendment in state courts creates an impression more fluid and less rigid than those guarantees represented in the Bill of Rights. Unfortunately, the Court concluded that the appointment of counsel is not a basic right indispensable to a fair trial and as such, the guarantee is not the general rule in state courts. In a dissent argued by Justice Black, the Fourteenth Amendment made the Sixth Amendment germane to the states the requirement of the appointment of counsel. The constraints laid by the Sixth Amendment upon the federal courts convey a rule so essential and fundamental to a fair trial that the Fourteenth Amendment purposely made it mandatory upon the States (Betts v. Brady and Progeny, 1942).

In Gideon v. Wainwright (1963), however, the court overruled the earlier decision in Betts v. Brady and declared that because of the adversary nature of the criminal justice system, any defendant who is too poor to hire the services of a counsel cannot be guaranteed of a fair trial. Accordingly, the Court held that the benefit of counsel is extremely essential that the Fourteenth Amendment does make the right constitutionally applicable in all state courtsthat both Sixth and Fourteenth Amendments ensure that every person is entitled to the assistance of a lawyer during or after the time that legal proceedings have been commenced against him or her, whether arraignment, information, indictment, preliminary hearing, or formal charge (Gideon v. Wainwright, 1963). Therefore, the guarantee of the right to counsel by this time applies to all defendants in federal and state courts whether charged with serious crimes, misdemeanors or charged with felonies, as well as in juvenile proceedings. What is more, the Court held that unless there is a valid waiver of the right to counsel, every defendant may not be sent to prison if no counsel was provided for his or her defense.

Capital Cases
After a while, the Court in Hamilton v. Alabama (1941) declared that in all capital cases the benefit of counsel is considered a constitutional requirement and therefore mandatory so that both the public and defendants need not raise any questions regarding any prejudices or conditions ensuing from lack of counsel. The rule was intended to give some assurance to the defendants in capital cases that their trials would not be deprived of the fundamental fairness as a consequence of their failure to appoint a counsel. In the given case, the court identified three prejudicial factors that made it to conclude that in all capital cases the condition of appointment of counsel is indeed very necessary (Hamilton v. Alabama, 1961). These factors were
The individual characteristics of the defendant could likely cause difficulties on his or her attempt to achieve a sufficient defense

The technical difficulty of the capital penalty charges or of potential arguments to the charges and
Proceedings that would unexpectedly take place during the trial raising problems of injustice (Hamilton v. Alabama, 1961).

Other Landmark Cases on Right to Counsel
The right to counsel basically denotes that the government must not hinder with representation, either through the imposition of limitations upon retained or appointed counsel or through the method of appointment that would hamper the counsels ability to reasonably provide a defense. Therefore, from the moment adversary proceedings have been initiated by the government against a defendant, the criminal justice system must see to it that he or she is provided with unconstrained legal assistance. Moreover, the defendants must be guaranteed with such assistance through the counsel of choice. The proceeding paragraphs demonstrate some of the most relevant decisions concerning the scope of a defendants right to counsel

The Court held in Geders v. United States (1976) that the order of a trial judge preventing the defendant from seeking advice from his counsel throughout a 17-hour overnight break between his direct and cross-examination, in order to avert coaching or formulating of testimony, was invalid as it denied the defendant of his Constitutional right to assistance of counsel.

In Chandler v. Fretag (1954), the denial of the court of the defendants appeal for a continuance in order to confer with an attorney was held as an infraction of formers due process rights under the Fourteenth Amendment.

In McKaskle v. Wiggins (1984), although the Court has acknowledged the defendants right to self-representation and maintain definite control over the case, the participation of a standby counsel should never be denied particularly in serving the necessary function of assisting the defendant in adhering to regular courtroom protocols and procedures.

In some states, the right to counsel is extended to all issues where a persons liberty interest is endangered. Accordingly, irrespective of whether the proceeding is viewed as administrative, criminal, or civil, as long as the defendant faces a possibility of loss of liberty, then he or she is entitled to the assistance of a counsel (Anne Pasqua, et al. v. Hon. Gerald J. Council, et al., 2006).

Miranda Rights
In 1966, the landmark case of Miranda v. Arizona was decided by the United States Supreme Court, which ushered a period of court-enforced controls on the governments authority to interrogate the people they bring into custody. Although this celebrated decision has basically focused on a suspects protection against self-incrimination under the Fifth Amendment, it likewise placed some comparable importance to the right to counsel. Accordingly, because of the latter prohibition imposed in the Miranda decision, the government today is prohibited from continuing any interrogation of witnesses or suspect from the moment the right to counsel is invoked by latter (Find Law, 2009b).

The Court held that entitlement to have counsel present during a custodial questioning is essential to protect the suspects benefit against self-incrimination under the Fifth Amendment. For that reason, a person detained for interrogation must be notified in an uncomplicated manner that he or she has the right to have a lawyer with him or her throughout interrogation and to consult with such lawyer. The Supreme Court went one step further in the Miranda v. Arizona case by declaring that defendant must be informed that if he or she cannot afford the services of a lawyer the government is prepared to appoint one to represent him or her. In view of that, the right to counsel guarantee of the Miranda warning generally reads as You have the right to have an attorney present now and during any future questioning. If you cannot afford an attorney, one will be appointed to you free of charge if you wish (Find Law, 2009b).

Situations When Miranda Warnings are Required
The fundamental rule laid down by the Miranda case is that whenever a person is divested by the government of his or her freedom of action in any considerable manner, and the government would like to question him or her and utilize the ensuing answers as evidence at any proceedings, the government, through the police officer, must read to the person his or her Miranda rights. Because of such ruling, the right to counsel is now being required from the moment the government initiates an interview to a suspect or witness, whether the interrogation takes place at the scene of a crime or in a jail, in the middle of an open field, or on a busy downtown street. Hence, if a person is not in police custody, no Miranda warning is necessary and anything the person declares can be used against the latter by the government if he or she is later incriminated with a crime. All the same, even if not in custody, but if the questions asked to a person relates to particular crime or would make the person a potential suspect the police must still inform the person of the Miranda warnings (Find Law, 2009b).

The most obvious example of being in custody is when a police officer declares to the person that he or she is under arrest. However, a person may still be in custody even if the officer did not declare that the former is under arrest. Throughout the years, the justice system has not followed absolute rules on classifying when a person is in custody or not. What the law generally considers is that a person is considered in custody when he or she has been arrested or otherwise significantly denied of his or her freedom of movement. The test used by the courts in recent years is whether or not a reasonable individual in the similar situation as that of the defendant would have been deprived of his or her freedom to leave at the scene (Find Law, 2009b).

Miranda Rights does not Safeguard the Accused from Arrest
In essence, any person suspected to have committed a crime can be arrested without being advised of his or her Miranda rights. The Miranda rights do not safeguard people from being arrested. What the Miranda rights uphold is keeping suspects from committing unintentional incrimination against themselves throughout the police interrogations. The Miranda warning itself is therefore not a constitutionally guarded right, but merely a mode to shield suspects against self-incrimination by providing them with counsel and other rights. Accordingly, if an arrested suspect demands the services of a counsel, then the interrogating officer has no choice but to discontinue any inquisitive conduct until an attorney of the suspect is present. Failing to follow this particular rule may cause the statements of the suspect inadmissible in any court proceedings.

Information Obtainable Without Miranda Warning
There is a number of certain personal information wherein police officers are allowed to inquire on a suspects or witnesses without necessarily reading to them their Miranda rights. These rights are limited to the persons name, date of birth, address, Social Security number, and other questions essential to establishing the identity of the person questioned. Likewise, a person can also be given drug and alcohol tests as well as taking other evidentiary materials relating to the person, such as vocal samples, handwriting samples, DNA samples and blood samples, without reading to them the Miranda warnings. Nevertheless, the person providing the aforesaid identification and evidentiary materials may decline or should not be forced to answer any incriminating questions asked by the police during any of the aforementioned process.

Police Interrogations
The numerous cases filed against violations of the Miranda warnings only prove that throughout the years many police officers have indeed been deceiving or attempting to deceive suspects to talk by not reading their Miranda rights. These police interrogations may be through clear-cut questioning, such as asking a suspect if he or she committed the crime, or may be less obvious, such as remarks made by the police that would probably draw out incriminating information from the suspect. This is one of the reasons why it is very important to demand the presence of a lawyer during custodial investigation.

Before or during police interrogations, a person is already guaranteed with the constitutional right to counsel. Accordingly, if a police officer is asking a person linking the latter to a particular crime, then such person can demand the assistance of a lawyer and may not be compelled to answer any of the questions related to the crime. This is still the case even if the person has not been informed by the police officer of his or her Miranda warnings. Moreover, even if there has been a formal charge against a suspect or the police placed him or her in a lineup, the aforesaid suspect must likewise be immediately provided with a lawyer (Find Law, 2009a).

Failure to Provide Warning to Right to Counsel
In the Miranda case, the United States Supreme Court highlighted that the right to a counsel during interrogation is the cornerstone of the safeguard against self-incrimination. Accordingly, the court declared that individuals under custodial interrogation by the government should be immediately informed of their right to counsel and that a counsel will be assigned for them if they cannot afford one (Find Law, 2009b). The Constitution does not demand a word for word presentation of the Miranda warnings as it is sufficient that the reading procedure effectively safeguards the person against forced self-incrimination. Moreover, the court held that if the interrogation was made without the assistance of a counsel even after the suspect was informed of such right, the government must show evidence that the suspect intelligently and knowingly relinquished the right to counsel (Find Law, 2009b).

Therefore, if government failed to provide a warning to the persons right to counsel during interrogations, or if the government cannot demonstrate that a valid waiver was given, then the answers will be inadmissible at trial. Any court that strips a defendant of his or her right to counsel under situations that do not validate a finding of a valid waiver should be declared to have infringed the fundamental right to due process and to counsel of the aforesaid defendant. Such infringement should result in a reversal of the order of the court that relied on such testimony extracted without the assistance of a counsel.

Fruit of the Poisonous Tree
The Fruit of Poisonous Tree doctrine is originally established in the case Silverthorne Lumber Co. v. U.S. (1920). The doctrine denotes the inadmissibility of testimonials, evidences, etc. gathered by the government through the employment of illegitimate methods (Silverthorne Lumber Co. v. U.S, 1920).  It simply means that when the tree or the method used is poisonous, its fruit, or the evidence gathered, is likewise poisonous. Therefore, if the police discover significant information on account of an interrogation that infringes the Miranda rule, then that information is automatically not acceptable at trial (Find Law, 2009b). One ambiguity in this doctrine, however, is when the suspects break the sequence of evidence themselves by coming forward with new evidence such as impulsive admission regarding a crime. Accordingly, any information that are voluntarily disclosed by a person to a police officer after the latter has properly informed the person of his or her right to counsel are thus admissible at trial (Find Law, 2009b).

Competency Concerns
The right to counsel of the defendant is basically his or her right to the valuable assistance of counsel. The Sixth Amendments right to counsel encompasses the right of the defendant to retain counsel of his or her preference as well as to be represented in the fullest extent by such counsel. In case the defendant cannot pay for the services of a lawyer, the Court must provide one immediately from the start of case. By doing so, the defendant will be afforded with an effective assistance during the preparation, and at the hearing of his or her case, as well as for the counsel  to take part fairly and fully in the adversary fact-finding process of the case and to put together an effective closing argument. In other words, a defendant must be provided with unrestricted and reasonable opportunity to consult and employ with counsel, otherwise, the right to be heard by counsel would be of little significance.

The role of the defense attorney is of fundamental importance in almost every stage of the judicial proceeding. The specific role of an attorney, however, generally varies depending on the case and the nature of the charges. The absence of a definite standard for measuring the competency of defense counsel has become the source of enormous confusion within state and federal courts. The confusion is basically manifested by the assortment of tests being employed by the courts nowadays. All the same, in harmony with the explanations on the preceding paragraphs, the foremost responsibilities of a defense lawyer may be summarized as follows

Counseling the defendant of his or her rights as well as clarifying to the latter what to anticipate at various stages of the proceedings

Discussing a plea bargain with the government on behalf of the defendant
Making sure that the constitutional rights of the defendant are not infringed during court proceedings and through law enforcement conduct and

Presenting legal defenses, objecting to improper evidence and questions, cross-examining witnesses, as well as investigating evidence and facts of the case (Find Law, 2009c).

Based on the foregoing responsibilities, a counsel clearly plays an important role in the adversarial system and in producing just results regarding the case. Accordingly, the presence of a lawyer at the trial together with the accused is not sufficient to assure the constitutional requirement to the right to counsel. All defendants need the knowledge and skill of counsels in order to effectively reject the attempts of the State to execute or imprison them. A defendant is therefore not only entitled to right to counsel, but most importantly entitled to the effective assistance of counsel.

Ineffective Assistance
It is worth mentioning that a defendant must sufficiently discuss with his or her counsel competently and honestly, all the facts indispensable to solve the case. Following the effort by the defendant however, if the assistance offered by the retained counsel is still manifestly ineffective, then such incompetence will be viewed under the Sixth Amendment as denial in trial against the defendant. The judge must therefore not only abstain from generating circumstances of ineffective assistance, but is also duty-bound under particular conditions to make inquiries whether the counsel of the defendant may render or is already rendering ineffective assistance. It is important is that the defendant is at all times not deprived of the assistance of an effective counsel.

Accordingly, the Court expressed a three component test for ineffective assistance of counsel in all criminal trial proceedings
There exists an attorney-client relationship
Deficient performance of the attorney and
Consequential injustice to the defense is so severe as to bring the result of the trial into question (Find Law, 2010a).

In cases where the competency of counsel is questioned, Courts have held that the requirement of the assistance of counsel under the Sixth Amendment is already satisfied if a reasonably adequate counsel has represented the defendant, and this presumption of competency is further satisfied when the counsel appears for the defendant. Therefore, the uncertain tactical choices carried out by a counsel do not automatically cause a conviction to be disposed of due to incompetency. In order to ascertain injustice that resulted from the incompetency of an attorney, the defendant must demonstrate that there is a reasonable possibility that the outcome of the case would have been different if not for the unprofessional inaccuracies of the counsel.

It is important to note that in order for a claim of counsel incompetency to be successful, the aforesaid three elements must be present. Without all of these elements, it cannot be declared that the conviction of a particular defendant is due to the incompetency of the counsel who caused the decision to be undependable. This test was eventually refined by the Court in Lockhart v. Fretwell (1993) by declaring that not only would a different trial outcome be possible as a consequence of attorney direction, but that the trial outcome which did take place was essentially unreliable or unfair (Lockhart v. Fretwell, 1993).

Grounds for Claim of Ineffective Assistance
Incompetency happens when a lawyer negligently and ineffectively handles a case that causes considerable harm to the defendants case. The standard of competency does not differentiate counsels appointed by the government or those privately hired by the defendants. Below are some of the most common grounds for claim of counsels ineffective assistance

Deficient and inadequate representation that results to the denial of the Sixth Amendment rights
Absence of the counsel through critical stages of the proceedings
Failure of the counsel to maintain sufficient communication with the defendant
Failure of the counsel to be diligent, prompt, and competent
Failure of the counsel to negotiate favorable results during the plea bargaining
Failure of the counsel to support the defendants premise of the case
Failure of the counsel to file well-timed motions
Failure of the counsel to subject prosecutions case to consequential adversarial testing
Failure of the counsel to investigate mitigating circumstances and evidence, which are necessary for sentencing
Performance of the counsel prejudiced defendant and was deficient and
Counsel offered appalling proposal, or had conflict of interest (Liberty International, n.d.).

If the defendant claims that his or her counsel is rendering ineffective services at any stage of the criminal proceeding, then a motion for mistrial or motion to dismiss should be filed immediately. These motions are important since during the appeal, any of the foregoing ineffectiveness of a counsel will result in waivers of such acts, which normally prejudices the defendant (Liberty International, n.d.). All the same, the defendant must present evidences of the prejudices to prove the counsels ineffectiveness. Moreover, the defendant must demonstrate that the counsels ineffectiveness has undermined the accurate implementation of the adversarial process. Finally, the court must take into consideration the totality of circumstances that resulted in an unfair trial or unreliable trial (Liberty International, n.d.).

Objective Standard of Reasonableness
The counsel is viewed at all times to make reasonable tactical decisions so that a constitutionally valuable assistance in the form of enthusiastic support of the defendants case is achieved. Likewise, a counsel is viewed to be duty bound to make reasonable investigation, as well as make rational decision. Failure to hold on to these standards exposes the counsel to disciplinary complaints or action. Nonetheless, judges charged with evaluating claims of ineffective assistance should avoid examining the counsel in retrospection and be highly deferential to actions of the counsel.

As explained on the preceding paragraph, as of the moment, there is no definite standard for measuring the competency of defense counsel. However, in many jurisdictions, the performance of a counsel is generally gauged through the objective standard of reasonableness test. The test revolves around the inquiry on whether or not the assistance of the counsel was reasonable considering all the prevailing norms of practice and circumstances as reflected by legal profession standards (Liberty International, n.d.). Accordingly, this test is based on a minimum standard that justifies the presumption that a counsel is indeed competently serving his function in the adversary system.

Conflicts in Representation
Basic is the rule that lawyers are obligated to meticulously stay away from representing conflicting interests. In fact, in several jurisdictions, lawyers are demanded to prevent themselves from being placed in a situation where they may show to be representing conflicting interests. As a result, on the occasion that the counsel is representing at least two defendants, the lawyer may claim to the trial judge in a timely manner that the potential conflicts of interests among or between the clients have made him or her incapable of delivering efficient legal assistance. However, the failure of the judge who is aware or should have been aware of the conflicting interest of the counsel to question as to whether or not such conflict was unfavorable is not a ground for the outright reversal of the case. Throughout the years, the United States Supreme Court has expanded and elaborated the conflict of interest principle through different cases under the following rules
The right to counsel of the Sixth Amendment pertains to defendants who are served by appointed counsel and to defendants who retain private counsel

Judges are not automatically obliged to commence an investigation into the accuracy of the multiple representation claimed in view of the fundamental rule that conflict of interest does not exist in the absence of special circumstances raised by the counsel or defendant and

In order to ascertain a violation, the defendant must prove that an actual conflict of interest has negatively affected the performance of his or her lawyer (Find Law, 2010).

Therefore, in a situation where a lawyer may not be able to faithfully discharge the responsibility of absolute loyalty to a client as a result of simultaneous responsibility of loyalty to another client, then it may be said that the lawyer is under conflicting interest (Flamm, n.d.). However, before a judge allows a conflict of interest request of a counsel, the former must first carefully scrutinize the counsels assertions, and unless the judge believes that the risk is not just isolated, he must not allow the appointment of a separate counsel. Some of the conflicts of interests that judges usually examine include adverse representation and multiple representations.

Adverse representation, also known as direct adversity conflict, is a type of conflict wherein lawyers represent one client in a way that is unfavorable to the interest of another existing client, but normally in a distinct matter (Flamm, n.d.).

Multiple representations, also known as concurrent or dual representations, is another type of conflict wherein a lawyers concurrently represent at least two clients with regard to the similar issue, and the interests of each of the client are or may eventually become conflicting (Flamm, n.d.).

Conflicts may sometimes arise when lawyers act in dual roles, as where lawyers concurrently serve as both legislator and a private counsel. It may also take place in a scenario where a counsel represents an organization and serves on its board of trustees or directors. In addition, conflict concerns may take place in parallel representation, as where a lawyer undertakes to represent simultaneously two or more plaintiffs in different cases against a single defendant who has inadequate assets out of which to assure an unfavorable judgment.

Conflicts Between Counsel and Client
Lawyers should likewise not allow their personal interests affect their exercise of independent judgment on behalf of an existing client. Should lawyers fall short of honoring this warning, the court may disallow them to handle the clients case or order other restrictions. One of the most common conflicts that occur between clients and lawyers is when a lawyer acquires proprietary interests in the case he or she is litigating (Flamm, n.d.). Therefore, the acquisition of a counsel of even reasonably little interests in litigation may give rise to his or her disqualification and in some cases, even the counsels law firm. Likewise, disqualification may occasionally be ordered in a circumstance where counsel enters into a media rights agreement with a criminal defendant.

In some cases, however, a lawyer may be authorized by court to represent a client even though he or she has a pecuniary interest in the case litigated. Nevertheless, to prevent conflicting interests and being disqualified, it is incumbent upon the counsel to divulge the nature of his or her interest completely as well as the potential unfavorable consequence on the client. Apart from this, the lawyer must get a hold of the educated consent of the client to continue to represent the latter, regardless of the conflicting interest.

Conclusion
The right to counsel is in essence a fundamental element of the right to a fair trial in view of the fact that in order for a trial to be reasonable, utmost legal assistance to the defendants must be provided. As such, the presence of the defendants counsel from which the defendant draws assistance and advice is indispensable. Although the Sixth Amendment does not directly mandate the presence of the defendants counsel during criminal proceedings, it is important to take note that every time the physical presence of the defendant is required by the court, the presence of the counsel is likewise automatically required. However, this present position of the criminal justice system has not traditionally been the situation in the United States, as the expansion of the guarantee of the right to counsel clause only began in the landmark during the 1930s.

Eventually, in the landmark case of Miranda v. Arizona, the United States Supreme Court ushered a period of court-enforced controls on the governments authority to interrogate the people they bring into custody. Following this case, courts have declared that the Sixth Amendments right to counsel is consequently attached from the time custodial investigation is initiated. For that reason, the government must see to it that the defendant is always provided with a competent counsel through unrestricted legal assistance, and interest that is consistent with the client.

Date February 16, 2010 Total Hours 7.5 hours
Client MatterExplanation of WorkBillable TimeNon-Billable TimeFees AccruedJohnson DivorceFinalized petition for divorce2.0 hours120.00Rose WilliamsSpoke with client about bringing in documents related to husbands estate began preparation of Application for Appointment as Executor1.5 hours112.50Firm Non-BillableFirm Meeting.40 hours0.00Rusty Harris personal injury lawsuitContinued review of documents produced by employer and trucking company in discovery3.10 hours232.50Mark Smith child custody disputeReviewed report of Guardian Ad Litem and prepared memo to supervising attorney re conclusions.50 hours30.00Total Billable Hours7.10 hoursTotal Non-Billable Hours.40 hoursTotal Fees495.00

Fee Summary
The paralegal in this example earned a total of 495.00 for the above days work.  150 was earned for the family work done (Johnson Divorce-120 and Mark Smith-30). 345 was earned for work done in other practice areas (Rose Williams-112.50 and Rusty Harris-232.50).  Please note that the 40 minutes attending a firm meeting is not billable to a client as well as the one hour lunch.

Businesses occasionally experience episodes of discourse and upheaval among employees. These issues are called disputes, and generally, most businesses have a written protocol for how to handle and remedy the situation quickly and efficiently.  Employee disputes are common in the workplace.  Managers sometimes report feeling more like glorified babysitters than supervisors.  Each situation is addressed uniquely and privately whenever possible.  When a situation grows beyond the doors of the office manager, other avenues must be pursued in order to protect morale.  Implementing a clause into the standing alternative dispute resolution protocol is a positive change that incites promise.
   
When a dispute is brought to the resolution team, normal operating procedures for handling the matter ensue promptly.  If a conflicting matter continues to plague the inner office atmosphere, it is time to endorse a clause (National Arbitration and Mediation, 2010).  When employees cannot seem to find civil ground and resolution, then the following clause should be added.  Each employee, or employees, involved or believed to be involved in the unresolved matter will be mandated to attend group interactive therapy once a week for a period of no less than thirty days.  These controversial matters include office gossip, racially biased issues, discrimination, poor work performance, harassment, verbal assault, violations of the company honesty policy, and failure and behavior unbecoming a company representative.  This mandate will enable all employees involved or believed to be involved in the dispute to do four things.  First, the employees will develop a more productive form of communication.  Second, the employee will learn to identify problems before they interfere with work production and work performance.  Third, each employee will be afforded the opportunity to be heard and understood.  Finally, the employees will be aided in developing a new level of respect for coworkers as human beings and not as expendable stepping stones or rivals.  The company will meet with an outside mental health organization as a means of recruiting and engaging two or three psychologists to have on staff.  These critical new members of the ADR team will be on call as to meet the needs of the company employees during conflict.
   
In order for the new ADR clause to work effectively, all employees must understand the new provisions being put into place.  A company staff meeting and written notice will be sent to all employees outlining the new clause for conflict resolution.  New hires will be informed of the new policy and be asked to sign an acknowledgement with respect to the same.  All employees must be willing to put forth the efforts necessary to achieve the ultimate goal of company unity and a peaceable morale.  The psychologists coming into the ADR team will be personable, experienced in dealing with conflict resolution procedures and practices, clear and concise, and unbiased.  Any employee who fails to recognize and participate in these provisions under the new clause will be subject to disciplinary action.  Employees will be given a verbal and a written reprimand.  Subsequent failure to follow protocol will result in an employee suspension.  Finally, if an employee continues to be deliberately noncompliant, then the employee will be terminated from the company for creating a hostile work environment.

Memo
Re Citizen Schwartz Project Legal Risks and Opportunities
The client has raised significant issues related to Span Systems (SS) contractual responsibilities and has threatened to cancel the contract.  From the wording and interpretation of the contract, the client has valid grounds to terminate the agreement based on performance, quality control and deadline timetables. However, SS have a strong case with regard to breach of contract under the following titles
i. Substantial performance of contract
ii. Requirements change
iii. Communications and reporting

My legal opinion is that the company should investigate the claims by C-S AG with a view to addressing the clients key concerns and renegotiating the contract to reflect these changes. Pursuing a legal case for breach under any of the above titles is expensive, time consuming and will jeopardize any chances of C-S AG awarding SS any further contracts.

Legal risks
Span Systems has worked on the project for eight months out of the contractual twelve. With only four months left to the expiry of the contract, the legal perspective is that this constitutes substantial performance. Based on this argument, Span Systems has a good case and the court may rule in their favor. However, for a substantial performance claim to succeed, a report comparing the overall performance and contractual metrics must show the company fulfilled at least 50 of the expected work. If the performance falls below the halfway mark, the client is at liberty to terminate the contract. SSs performance record is at 40 against an expected 60 while the reasons for delay are largely due to the clients fault, debating this issue in court is risky.

Suing C-S AG for breach of contract under requirements change presents a good chance for SS winning a court case. The contract stipulated that Span Systems would incorporate ordinary changes to the contract design to factor in user needs. C-S AG has made alterations that fall outside the scope of ordinary changes and involve substantial workload for SS staff. Despite this challenge, SS has exercised diligence in developing the necessary software to ensure the system works efficiently. Their performance has been above the contractual and industry standard size of 940 while the schedule slip is below the plus or minus five threshold. C-S AG defense would highlight that SS has been behind schedule in delivering products and that the deliverables have on average 5 defects against a zero tolerance benchmark. This aspect may result in a ruling favoring the client.

The communication and reporting title approach to breach of contract is tricky in that irrefutable evidence is required to prove project delays were as a direct result of slow responses from the client. In the absence of such evidence, SS chances of winning the case are very slim. In their defense, the client will argue that staff turnover was beyond their control and they acted judiciously to fill vacant positions. My opinion is that arguing the case based on this title would be time consuming and chancy.

C-S AG demands that the company hands over all unfinished codes relating to the project. Suing for breach of contract under the intellectual property rights title based on nonpayment of outstanding dues presents two unfavorable scenarios
i. the client could pay the balance due and rescind the contract
ii. the client may forgo the code, terminate the contract and look for alternatives.
In either case, the Span Systems loses an opportunity of doing further business with the client.

Opportunities
 The challenges faced by both parties present a perfect opportunity to renegotiate the contract and factor in clauses addressing key concerns. C-S AG has issues with the quality of the deliverables and the delays in the original schedule. SS argues that frequent changes in the deliverables design that were more complex than earlier envisaged contributed to these delays. SS admits having increased the pace of work in order to satisfy the client this has contributed to deliverable defects. Secondly, SS alleges changes in the management at C-S AG have slowed down approval and review of the project. These delays have had a negative effect on the projects completion.

By adopting a pro-active approach, SS managers can identify potential conflict areas and arrange meetings to resolve challenges before they explode into legal suits. Regular evaluation and assessment of project schedules will identify project downtimes and reveal operational challenges. Project managers should liaise with the clients contact in charge of the project to brainstorm on the best way to resolve such problems. Span Systems failure to consult with the client in a timely manner concerning quality issues and delays in deliverables almost led to cancellation of the contract. In future, regular reviews of performance benchmarks will ensure the implementation of corrective measures aimed at improving outcomes.

Avoiding ambiguity and vagueness in contracts will reduce any misunderstandings that are likely to arise. SS revised its work to incorporate fundamental changes without altering original budget and timelines based on the ordinary change requirements clause. This put tremendous pressure on the companys workforce to deliver quality products on time.  In a normal situation, SS would have requested for additional time and money to complete the new tasks. By failing to define the term ordinary change requirements, either party could dispute any revisions to the original project scope.

Remedies
Major problems identified in the simulation include delays in deliverables, ineffective communication channels, poor quality claims and changes to the original project scope. Appointing a change control panel to assess any changes to the original plan and advise on budget changes or timeline extensions will eliminate disputes over schedules. With adequate time to develop project solutions and conduct testing of the software, the incidence of deliverable defects will drastically reduce.

Stationing someone from C-S AG at SSs to serve in a quality control position will ensure that quality issues are identified early and rectified before delivery to the client. This person will contribute to improving performance outcomes by demanding that quality standards are maintained as per the contract terms.
With time running out, SS should increase the number of staff working on the project to ensure that it is completed on time. While this measure will entail additional costs, timely completion of the project can contribute to SS clinching further contracts with the bank. Having C-S AG approve of new hires creates confidence in SSs ability to deliver despite the tight deadlines. It is beneficial to both parties in that the quality of staff has a direct bearing on the performance outcomes of the entire team.  Achieving consensus on the quality of the team will reduce issues of poor workmanship due to incompetent staff.

Conclusion
Both parties are advised to seek common ground and renegotiate the contract to their mutual benefit. Seeking legal redress is expensive and likely to damage the existing working relationship between the two companies. In terms of time, the bank would have lost an opportunity to launch its system on time while SS stands to miss future lucrative contracts.

There have been so many new crafting and home decorating innovations introduced through books, how-to videos, and television programs.  In the early part of 2000, Martha Stewart became a household name.  She was known for her tasty and affordable recipes, simple but elegant craft ideas, and magazine.  Stewart even had a television program dedicated to home dcor, cooking, decorating, and gardening.  Through her knowledge and originality, she became a trusted source for information.  Stewarts newfound fame was cut short in late 2003 when she was indicted for white collar crimes.  Her case proved that everyone is subject to the same laws that govern this country, even celebrities.

Background
Martha Stewart was at the top of her game in early 2001.  Her business was thriving and she labeled a success in more ways than one.  She contracted the brokerage firm known as Merrill Lynch to help by handling her stock and investment portfolio.  She was represented by Peter Bacanovic (Hays, 2003).  Bacanovic had received news through a mutual friend and owner of ImClone Systems, Waksal, indicating that he and his daughter were going to sell out their own stocks.   Bacanovic attempted to reach Stewart by telephone, but he had to leave a message after realizing that she was not available to take the call.  Later that afternoon, Stewart attempted to return the call to Bacanovic, but reached his co-worker, Faneuil, instead.   Faneuil relayed a message to Stewart, at the direction of Bacanovic, concerning the potential selling of the stocks.  Faneuil also reported to Stewart that the Food and Drug Administration (FDA) was about to deny the marketing and distribution of a new medication formulated to treat cancer (Hays, 2003).  The FDA denial was a vital aspect for Waksal and his daughter selling out their own stocks as it set the downfall of ImClone Systems into motion.  Upon actually speaking with Barcanovic, Stewart agreed that it would be in her best interest to sell her almost 4000 shares that she held with ImClone Systems.
 
The selling of the stocks took place only once.  Stewarts acting on information received in an unethical manner is what set the criminal investigation into motion, however she was charged with other criminal offenses in relation to possible insider trading.  She was charged with one count of obstructing justice, two counts for making false statements, one count of conspiracy, and one count of securities fraud (Smilon, Hadad,  Kulstad, 2003).  She allegedly made false statements to investigators twelve times.  Until that moment, Stewart did not have a criminal record, nor had she ever had any run-ins with law enforcement.
   
Martha Stewart was not the only person who knew, approved, and acted in the same manner as she.  Peter Bacanovic, the Merrill Lynch broker, is the one who brought the information to Stewarts attention and urged her to sell out.  Ultimately, Bacanovic was also charged with crimes in conjunction with Stewart in relation to the incident in question.  Ann Armstrong, Stewarts assistant, had firsthand knowledge of Stewart altering a phone log message received from Bacanovic (The Associated Press, 2004).  Although Stewart had not asked her to cover for her or to lie, she was still aware of what had happened.  Faneuil, who worked with Bacanovic, had spoken with Stewart on the phone concerning the stock selling information.  He also had relayed a message to Stewart from Bacanovic urging her to sell out.  Incidentally, Faneuil was charged with crimes concerning this matter as well, but Armstrong was only asked to testify.  Armstrong was never charged with any crimes relating to the matter.  Mariana Pasternak, a friend of Stewarts, testified during the trial as to Stewart telling her of the reasoning behind the selling of the ImClone System stocks (The Associated Press, 2004).  She was not charged with any crimes either, but instead used as a witness for the prosecution.
   
The news of this scandalous even was officially brought to the attention of the public by James Comey.  Comey is a member of the Presidents Corporate Fraud Task Force (Smilon, Hadad,  Kulstad, 2003).  The United States Attorneys Office released news of the official indictment on June 4, 2003.  The media quickly enveloped the story.  Media groups like CNN quickly attempted to reach Stewart for comment.  The only comment offered by Stewart was to simply state that she had done nothing wrong and expected to be completely exonerated of all charges.
   
The original indictment charged Martha Stewart on with five charges.  Count one charged her with Conspiracy under U.S.C.  371.  Count two and three charged her with Making False Statements both under U.S.C.  1001.  Count four charged Stewart with Obstruction of Justice under U.S.C.  1505.  The final charge against Stewart, Count five alleged Securities Fraud under U.S.C.  78j (b). Martha Stewart was represented by a private attorney in these legal matters (Smilon, Hadad,  Kulstad, 2003).
   
The only victim in the criminal matters concerning Stewart is Martha Stewart herself.  No one was hurt by her selling her stocks, although it was an unethical decision.  Stewart did not intentionally or premeditatedly set out to commit any kind of fraud.  She simply followed the advice of her broker. She believed that this information was given to her in order to look out for her best interest as a client.  Clearly, if Stewart had the knowledge of how to handle a stock and investment portfolio, then she would not have had to hire a brokerage firm to begin with.  As a result of her own decision, she made a victim of herself.  Her business suffered immensely, she was forced to step-down from her CEO position, incur an astronomical financial mountain of legal fees, and have her name permanently tarnished by the entire scandal.  She even lost time out of her own life when she went to prison.  Essentially, Stewart lost her freedom before and after serving time in federal prison.

Stewarts Trial
The trail against Martha Stewart took place in the United States District Court Southern District of New York.  This is a federal court jurisdiction.  The courts physical location is in Manhattan.  The trial and investigation lasted from 2001 through March 2004.  The presiding judge in the matter was the Honorable United States District Judge Miriam Goldman Cedarbaum.  The prosecution was represented by Karen Patton Seymour, Richard D. Owens, and Michael S. Schachter.  Stewart was represented by Robert Morvillo.
   
During Stewarts trial, there were some incidents that stood out to onlookers.  Stewart was never formally charged with insider trading, yet the prosecution made the implication during opening argument (Mahoney, 2004).  Defense counsel objected to this allegation, but the presiding judge quickly determined that the prosecution was allowed to do so.  Once the implication of insider trading had been made in the presence of the jury, it would most definitely have an effect on the outcome of the trial.  Stewart entered a plea of innocent on all counts, but she never took the witness stand.  It is too much of a risk to put a defense witness on the stand once they have been charged with making false statements or perjury.  Anything they say will immediately be analyzed and broken down for consistency.  The jury consisted of eight women and four men.  (The Associated Press, 2004)).  Ann Armstrong testified against Stewart at trial in reference to Stewart altering a phone log.  It was argued by defense counsel that Stewart had instructed her broker to sell her ImClone Systems stocks if their value fell below sixty dollars.  A forensics ink expert was brought in by the prosecution to determine that a scribble in Stewarts stock portfolio possessed by Bacanovic had been altered after the sale of the stocks.  The ink expert determined that the ink noting the sixty dollar scribble mark was written in a different ink that other writing on the document.
   
Stewart was never offered nor did she ever enter into any form of plea agreement.  Judge Cedarbaum ordered the securities fraud to be thrown out, leaving Stewart with only four charges to answer to.  Stewart still faced two counts of making false statements, one count of obstructing justice, and one count of conspiracy (Mahoney, 2004).  After a lengthy trial, Martha Stewart was found guilty on all four counts on March 5, 2004.  She was sentenced to five months in federal prison and five months of home confinement (CNN, 2005).  While some may argue that this was an unfair sentence for Stewart, it is quite the contrary.
Stewart could have easily received five years in prison on each count she was charged with.  Ultimately, she could have been sentenced to twenty years in prison.  The sentence might be an inconvenience, but it was more than fair.  Stewart appealed her conviction to the Federal Court of Appeals.  She was attempting to have her conviction reversed as it formed an obstacle for her to legally run her business as CEO due to the felony convictions (CNN, 2006).  The Federal Court of Appeals upheld the Stewarts conviction from the lower court, meaning that Stewart lost her appeal.
   
The following is a timeline of the key trial events surrounding Stewarts trail (The Associated Press, 2004 Mahoney, 2004)
November 18, 2003- Judge Cedarbaum denies motion to dismiss charges against Stewart.
January 26, 2004- Jury selected eight women and four men.
January 27, 2004- Opening statements
                              Defense compares case to Orwell book, 1984.
February 3-4, 2004- Faneuil testifies that Bacanovic instructed him to tell Stewart about stock
                                 sale and urge her to sell out.
February 10, 2004- Ann Armstrong testifies about altered phone log concerning call from         Bacanovic.
February 19, 2004- Forensic ink expert testifies about scribbles in Stewarts portfolio.
February 19, 2004- Mariana Pasternak testifies to Stewart having told her about sale of ImClone
                                System stocks after learning of Waksal and his daughter selling their own.
February 20, 2004- Under cross examination, Pasternak restates that Stewart could have meant
                                 something else.
Prosecution rests.
February 23, 2004- Gutman backs up Faneuil testimony against Stewart.
February 25, 2004- Defense only inquires about notes about Stewarts investigatory interview
                                questions.
February 27, 2004- Securities Fraud charge dismissed against Stewart.
March 3, 2004- Jury in deliberation
March 5, 2004- Stewart convicted on all four counts.
October 2004- Stewart begins serving five month prison sentence.
Stewarts trial was uneventful for the most part, but it seems to be full of technicalities on the part of the prosecution.  Some attorneys have argued that Stewart was merely used as a judicial tool to send the message that no one is above the law, even celebrities.

Evaluation
Martha Stewart was a very successful woman before succumbing to the legal aspects of the trial.  Stewart built the corporation from simple creative solutions for homemakers.  Her business was started in the late 1980s and grew immensely until her conviction (Byron, 2002). Stewart named the business after her calling it Martha Stewart Living Omnimedia.  Over the course of time, Martha Stewart became a familiar name in many American homes as she was associated with home decorating, cooking, and gardening.
   
Stewart first achieved success through the publication of her magazine called Martha Stewart Living (Byron, 2002).  This monthly publication offered new recipes, gardening tips for the novice, home decorating ideas that were affordable to the average consumer, and crafting ideas for holidays.  Her magazine was even published with special topics like baby showers, weddings, and entertaining.  Aside from the magazine, Stewart was also lucrative in the publication of her how-to videos and syndicated television program.  Stewart began hosting a television program, same title as the magazine, once weekly during the day for thirty minutes.  The television show and the videos gave consumers the opportunity to watch her make certain crafts, cook specialty foods, or perform actual gardening tips first hand.  Many consumers prefer to learn by visual example rather than just read about it. She also published over fifty books on various topics of home interest that compelled the average female consumer to explore their own levels of creativity.
   
Later points of success in Stewarts career can be attributed to her personal line of sheets, bedding, towels, curtains, and cookware.  She even introduced her own line of interior and exterior paint for the home.  The local department store chain, Kmart, contracted with Stewart and began selling her products exclusively from their market (Byron, 2002).  This merger of sorts remained lucrative until Kmart began suffering losses beyond Stewarts control.  While the business relationship still exists, Stewart has reportedly taken a loss due to Kmarts financial discord.  Finally, Stewart contracted with Kodak.  Details of this business venture are scattered, but assuredly, Stewart is promoting projects such as scrapbooking and family albums while providing Kodak with her personal endorsement.
   
Martha Stewart Living Omnimedia (MSLO) may have very well attributed to the stock scandal.  Stewarts position in the company was highly stressful and demanding.  As the country moved in and out of mini-recessions, Stewarts business suffered losses as well.  The pressure to go further seemed ever present in Stewarts business.  She was constantly coming up with new ideas to grasp the attention of the general public, especially college educated females who were homemakers.
   
Stewart can be credited for shaping the culture and atmosphere of MSLO.  She is a take charge woman who thrives on challenges and accomplishing tasks for the betterment of all involved.  Stewart set a precedent with regard to how women view their homes and lives.  She allowed her own personal creativity and influences to take a dramatic role through her position of CEO.  She offered tips for cleaning solutions that were healthier to use when cleaning.  She cultivated recipes that were low in cholesterol and sodium as to promote better eating habits.  She shared ideas for creating a beautiful wedding, baby shower, or other holiday entertainment that was affordable to the average consumer.  Stewart was dedicated to her customer base.
   
Some have questioned Stewart given her superior intellect used to run her business in contrast with her low level of ignorance that permitted her to behave in an unethical manner concerning the selling of her stocks.  The only valid reasoning to offer in this scenario is that she followed the advice of her broker.  Stewart possesses a genuine leadership quality.  She knows how to inspire individuals to try new things within reason.  She managed to build a lucrative business out of nothing and make it a worldwide success.  Her keen insight and business mind have taken her company to new heights of great success.  She is an obvious self-starter, inventor, and marketer.  Stewart is a people person and projects this image in her work.  The true essence of Martha Stewart should be realized by everyone and that being that she is human.  Humans make mistakes as no one is perfect.

Analysis
The unethical actions and disregard for social responsibility are concerns when speaking of Stewart as a person.  It is disturbing to know that the simplest of human concern was overlooked for another motivating reason.  Throughout the course of Stewarts trial, it can only be said that she behaved in an unethical manner on two occasions.  Her behavior was unethical because of her prior knowledge of the stocks being sold and the reason behind it.  While the legality of her prior knowledge of the FDA information has been determined to not be insider trading, all signs are still indicative of having privileged information.  The second demonstration of unethical behavior was her lying to investigators.  There was clearly no reason to lie.  Stewarts lying could be attributed to fear of the consequences or out of a guilty conscious.
   
As a figure in the social limelight, Martha Stewart assumed the responsibility to set an example and be a role model to others.  Her every action was looked to as an example to live by.  Young men and women everywhere were let down by her unethical behavior and complete disregard for her admiring public.  Stewart even lied to the public when she issued a public statement concerning the nature of her charges in the indictment.  She stated that she was innocent and would be completely exonerated.  She even started a website before the trial claiming her innocence (The Associated Press, 2004).  Once convicted, admirers and fans felt lied to as well.  Once a trust is broken, it is almost impossible to possess it ever again.
   
Stewarts actions coincide with the consequential theory perspective.  The consequential theory clearly states that ones actions will be judged and determined by the outcome (Desforges, 1995).  This is especially true in the case of Martha Stewart.  Her actions were judged by her conviction on all charges in court.  Further consequences were addressed by having to serve time in a federal prison and extreme fines issued from the court.  Aside from facing the legal consequences, Stewart also faced personal consequences, too.  She was forced to step down from her CEO position at MSLO.  Over the following months, she saw poorly generated revenues for her company as once loyal customers were boycotting her business as a sign of disapproval of her actions.  Stewart must also endure the stigma and tarnished image now carried by her name.  She will forever be remembered as someone who lied.
   
The Deontological theory perspective can also be applied to the case of Martha Stewart.  The Deontological theory perspective encourages moral obligation based on the duty and rights of an individual during an ethical dilemma (Desforges, 1995).  It forces one to question the risk involved versus the benefit.  Stewart could have easily looked ahead to the benefit of selling her ImClone System stocks and then compared the risk involved for using the information received about selling them.  Sometimes people act before they think a situation through completely.  Thinking and reviewing a circumstance after the fact is pointless.  Stewart thought about her actions only after investigators wanted to question her.  In realizing her actions to be wrong, she attempted to cover her tracks by altering a phone log.  These actions only made a bad situation much worse for her.  Stewart should have slowed down and thought everything through before acting.  It would have saved her a great deal of aggravation, stress, and misery.
   
Humanist theory perspectives apply to almost every position.  Carl Rogers, a renowned psychologist, worked diligently to develop the humanistic approach to human behavior.  In doing so, he was able to determine that each individual is responsible to fix their own dilemma.  He also theorized that everyone is born with the desire to make good choices in life, but the influences that individuals succumb to cause one to make bad choices instead (Desforges, 1995).  Martha Stewart fundamentally made the choice to sell her ImClone System stocks at the urgency of her broker, who in this scenario was the bad influence.  Now in the aftermath of all the legal entanglements, Stewart is responsible for putting her life back together.  She must put forth the effort to reclaim her place in society and prove that she can be trusted and respected again, not because of her celebrity status but because she has earned it.
   
The Humanist theory perspective is most fitting to the case of Martha Stewart.  It emphasizes one taking responsibility for their actions by forcing one to take personal accountability.  Stewart is fully capable of fixing the mess in her life.  The fact that she lied and broke a trust with her supporters will not make it an easy task to be handled.  She has already been shown to be making strides in the general direction of this accomplishment.  She has been contracted with Kodak for publicity purposes, and she is still contracted with Kmart.  While her business may never be as influential as it once was, Stewart has been given the opportunity to rebuild her career.  The Humanist approach that Stewart takes at this point will determine if she is capable of righting her wrongs within society and within her life.

Martha Stewart has been subjected to many legal opinions concerning the facts of the case.  It is nearly impossible to decipher as to whether or not Stewart had mens rea or actus re in this matter.  In order for Stewart to have had mens rea, then her state of mind must prove intent when committing the crimes.  Actus rea would purport liability through the physical components of the crime.  It is only speculation that allows one to suggest what Stewarts state of mind could have been, and speculation is a sustainable objection in a court of law.  However, it is plausible that Stewart did have mens rea if coupled with corpus delecti.  Corpus delecti is determined through the material substance upon which a crime has been committed.  The proof of the sale of the stocks would prove that corpus delecti did exist and would substantiate that Stewart did have mens rea.
   
Martha Stewart is protected under the articles of the United States Constitution just like every other American citizen.  It is a question of intrigue to know why she did not exercise her Fifth Amendment right and refuse to answer certain questions during the investigation.  Another question that comes to mind is in knowing if Stewart was given the Miranda Rights prior to the investigative interviews.  Her defense counsel did make reference to the investigative interview questions during trial, but it did not appear to have any real bearing on the case at hand.  The Fourth Amendment protects everyone from illegal searches and seizures of evidence and of ones person.  The information gathered with regard to Stewarts personal stock and investment profile should have been guarded as not to breech any confidentiality barriers.  It is not certain the extent to which federal investigators went to while investigating Bacanovic while employed at Merrill Lynch.  It would be interesting to know if all his clients profiles were examined or just Stewarts profile.
   
Stewarts behavior and demeanor in the wrath of confusion was more than understandable. She seemed poised and rational throughout the entire proceeding.  As then CEO of MSLO, she continued to conduct her business with diligence and integrity until stepping down.  Her resigning her position was initially a formality until the legal matters were resolved, but unfortunately, the legal issues surmounted and managed to entrap MSLO in the scheme of things.  Any other self-respecting American would have acted just as Stewart did regarding the investigation.  No one would have volunteered information that could legally incriminate them for insider trading.  Stewart is not an idiot and she knew that insider trading was the implication throughout the entire investigation.  Any admission made on her behalf would have been an act of self-destruction and surrender.  The fact that she lied was wrong, but it is not impossible to understand why she lied.  It was her only defense mechanism, and she used it.
   
From a moral, ethical, and legal point of view Stewarts actions were wrong, wrong, and wrong again.  This type of behavior from a business woman is deplorable despite the fact that this type of behavior occurs every day in the world of business.  The problem with Stewarts behavior was that she got caught and was made an example of.  Martha Stewart was definitively the scapegoat in this matter.  She was naive to how the stock world worked and believed what her broker told her to do.  She was remorseful after the fact, but the damage had already been done.  Bacanovic and Faneuil knew full well what their motives were.  They were looking to make a quick payday and used Stewart to achieve that demented personal goal.  These types of
business practices take place all the time, but unless it is a celebrity involved the likelihood of hearing about it is slim to none.
   
Martha Stewart will always be remembered for selling stocks illegally, lying to investigators, and serving time in prison.  She will most likely also be remembered for insider trading even though she was never tried or convicted for the crime.  The implications alone from the federal prosecutors, the media, and financial analysts have all suggested that this is in fact what happened.  Stewart will never be able to enjoy the prior quality of influence and status that she worked so hard to attain.  Her image and persona have been tainted by the criminal record she now holds.  Business leaders will remember what occurred and will use it as a platform of how not to behave or conduct business.  Stewart is responsible for setting both a bad and a good example for future business behavior.
 
Hindsight always has perfect vision.  In the case of Martha Stewart, there still linger many questions about the case, especially before she was indicted.  The entire matter could have been avoided if Faneuil would have never relayed the message to Stewart.  Instead, he could have contacted the proper authorities to report the instruction given him by Bacanovic.  Faneuil would have invariably been protected under the Whistle blower laws of the United States, and likely been regarded as a hero for looking out for Stewart.  It is also questionable as to why Stewart did not consult with her attorney prior to conducting such a business venture.  If she had done so, her attorney assuredly would have advised against the selling of her ImClone System stocks and explained to her why it was illegal.  In order to prevent anything like this from happening again, one must remember that if it seems too good to be true, then in all likelihood it probably is.  Everyone can learn by what has happened to Martha Stewart merely because she followed the advice of her broker. Making mistakes is the nature of being human, but what is taken from the experience is what makes the person.

Conclusion
Martha Stewart was a dominating force in the business world for many years. She managed to build a business from the ground up based on decorating tips, cooking, gardening, planning weddings and baby showers, holiday entertaining, and how-to ventures.  She marketed a television program, books, videos, and a magazine for the public to enjoy and utilize.  While she is intellectually creative beyond reason, she is equally as nave when it comes to handling her business affairs.  Stewart served five months in prison for crimes that she truly was not the sole proprietor of.  She was taken advantage of by her own broker, and as a result now carries a permanent criminal record for the rest of her life.  Her celebrity image has been tainted by the nature of her crimes of making false statements and perjury.  She has lost control of her business and the respect of many supporters and admirers.  With all of the legal issues and controversy contained therein now behind her, she has taken on the task of rebuilding her life and is attempting to restore her legacy.  This is a heavy undertaking.  Stewart is plunging forward and showing the world that she is not defeated.  It is almost a guarantee that she will avoid the stock market altogether, however it will take much time for her to regain the trust that she lost as a result of the whole ordeal.  Martha Stewart is a prodigy that does deserve to be admired and respected.  She is only human and is entitled to make mistakes.  Underneath all the legal documentation, speculations, and convictions, Martha Stewart is still a creative genius with a goodwill and strong soul.