User-agent: * Allow: / Legal news, political opinion, Satire, and lawyer thinking by Tim Paynter, Attorney at Law: 2011-01-09

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Saturday, January 15, 2011

Will The Insanity Defense Work For Jared Loughner?

Many people have been asking me about the insanity defense and about charging Jared Loughner, the mentally deranged youth who shot Congresswoman Gabrielle Gifford's.  Of course, a court will weigh in on the topic as will attorney for the prosecution and defense.  However, in short, here are some thoughts.

When an attorney writes these kinds of articles there is always someone who misunderstands.  We are so used to rooting for “our side”, we take anyone who makes points about the other side as a traitor.  What Jared Loughner did was a horrible thing.  However, you can bet at least his attorney is looking at this case from every angle.  That is what an informed person does.

This Article was originally printed as /Why Tucson Shooter Is Not a Terrorist on Blogcritics, by Tim Paynter


Many people have been asking, "Shouldn’t the Tucson shooter be considered a terrorist," and "Shouldn’t he be tried and executed if guilty?" It is hard to explain diminished mental capacity but let me give it a try.

Certainly the acts which Jared Lee Loughner committed are heinous. He has left an entire nation in shock, many dead, others clinging to an altered life, and the Jewish and immigrant communities in horror. Nothing I say here should be construed as justifying or excusing Loughner's acts.

Turning to the shooter, who is also a victim, what do we make of him? If your three-year-old daughter found an automatic pistol on the ground and shot people as Loughner did, would you charge her with first degree premeditated murder and seek the death penalty?

The analogy between a three-year-old and Loughner is not exact. If he had the mental capacity of a three-year-old at his age, he would be retarded. However, he likely is so mentally ill that he is out of touch with reality. Paranoid, he did not have the capacity to make rational decisions. Mental retardation and mental illness, while not the same, have one thing in common: the diminished capacity to make rational decisions.

In criminal law, two elements are required to make a person guilty of a serious crime: the mens rea, or guilty mind, and the actus reus, the guilty act. Proving the actus reus will be easy, considering the witnesses. However, proving the mens rea could be a challenge if the insanity defense is asserted.

If Loughner was insane when he committed the acts, then he is technically not guilty of the crimes of which he is accused. In that case, under criminal law theory, he was not capable of forming the mens rea. We don’t hold three-year-olds responsible for things they cannot understand. We should not hold a criminally insane person guilty either.

Loughner voluntarily withdrew from Pima Community College after five encounters with law enforcement and a series of angry and irrational acts. The school told him not to come back until he had an evaluation from a mental health professional stating he was not a danger. Loughner writes about a new form of currency, among other senseless ramblings. He writes in legible sentences but what he talks about does not make sense.

That is why Loughner is not a terrorist. A terrorist acts with a full deck. He may be consumed with anger or allegiance to a cause, but he is rational. He is not marching to the voices in his head or having paranoid delusions. He may justify his actions by a belief in God, but God or the Devil or irrational thinking is not screaming in his ears to wreak total destruction on society. He does it anyway.

If, by a long shot, Loughner is found "guilty but insane," meaning the prosecution can prove the actus reus but the defense can show lack of the mens rea, he could be sentenced to a mental institution under Arizona Revised Statutes 13-502(D) for the same term he would have been sentenced to prison if he were found guilty without being insane. That means life. The insanity defense will leave Loughner in an institution for the criminally insane instead of prison if he is prosecuted under state statutes. Hence, the insanity defense may not be a rational option if Arizona's facilities for the criminally insane are as abysmal as their draconian mental health laws.

After John Hinckley took the insanity defense for shooting President Reagan, a host of states passed “guilty but insane laws.”  They were afraid Hinckley would be cured of his mental illness through medication.  He likely was cured.  He would then escape responsibility and be out of the institution in a year.  The thinking shows ignorance about how the system works.  Hinckley is still not free.

Should we put our three-year-old girl who finds a gun on the sidewalk and shoots people in prison when she turns 18?  By then, she will understand the nature of her actions, even though she didn't at the time.  Should we force a person committed to a mental hospital to stay for life even after a cure for his condition is found?  When cured, he, like the three-year-old turned 18, will understand the nature of what he has done, although he didn't at the time.

It is vindictive to punish a person with a diminished mental capacity once he regains that capacity.  At the same time, Arizona refused to provide mental health treatment when it could do the most good.  Under Arizona law, presuming medication cures him, Loughner would take up valuable space in a mental institution as if he were in a prison.  How draconian to punish a person who regains his mental capacity for acts he committed before he had the capacity.

It is bad enough to say Loughner is a victim of a health care system which ignores mental illness, but he is not the only victim. Congresswoman Giffords and the other people shot on Saturday are also victims of the same uncaring health care system. If Arizona had adequately funded health care for the mentally ill, Loughner would have been treated or institutionalized until sane.

Rather than fund health care, the Arizona legislature is spending millions of dollars defending the law which makes them famous, SB 1070, the most vicious anti-immigrant law in the state's history. A national boycott is costing the state billions. Rather than fund health care on a national basis, the Republican Senate Caucus enacted a “No Vote Pact” in which they refused to vote on any issues including the START Treaty to reduce nuclear proliferation until Democrats conceded to give every millionaire a $139,000 unfunded tax cut. With their pockets stuffed full of taxpayer money, the Republicans vow to repeal health care for the poor.

Shortly, Congresswoman Giffords and all of us will become victims one more time. Despite surely suffering extreme mental illness, Loughner will likely be judged mentally ill, but with enough capacity to know right from wrong. The Court will distinguish between mental illness and insanity. Rather than get treatment in a mental institution, Loughner will spend his life on death row. The message to other mentally ill people is, don’t reveal yourself, because you won’t get treated and your acts will be judged harshly. The mentally ill remain in the closet for a reason and that makes every one of us the next potential victim.

As time goes on we will hear more about what makes Jared Loughner a disturbed person.  Whether or not his mind rises to the level of insanity remains to be seen.  My heart goes out to all of those who have been hurt by Loughner, including the victims and their families.

Thursday, January 13, 2011

Colorado Real Estate Market Heating Up, Rentals Full


This article was originally posted as “Colorado Real Estate Market Heating Up, Investors Clean House” on Technorati, by Tim Paynter

I had an interesting meeting with Greg Beran of Performance Property Management, LLC on South Broadway in Denver.  He thinks now is a great time to put some money into the market.  After years of flat real estate prices and zero growth, he may be right.

In part that is because investors usually bottom fish.  The majority of us have properties that are rented to those who are really struggling.  The super rich have their own properties, and finding a middle class family to pay a good return considering the cost of middle to upper middle class homes is usually a wasted effort whistling Dixie.

The following article was written for Technorati.  I have reproduced it here because I think it has a great message.


Real estate investors have spent years trying to figure out where the bottom of the market is. According to Gregory Beran of Performance Property Management in Denver, Colorado, we are a few steps up from bottom in the Mile High City of Denver, Colorado.

According to Beran, the two ingredients that make residential properties attractive to buyers are low prices and high rents. Beran, a long time property manager and investor in the Denver metroplex, says those conditions exist right now. He says competition is heating up for his rental units and vacancy rates have plummeted.

“We don’t have any single family homes available” the lanky investor told me during an exclusive interview. “They don’t stay for rent longer than a week or so.”

When asked about two bedroom apartments Beran was only able to offer one prospect for a fast move.

“It is the trickle down effect,” Beran said during our discussion in his nicely appointed office on South Broadway Boulevard in Denver. Unlike “trickle down economics” in which wealth trickles down from the super rich to the middle class as promised by the Bush administration, the trickle down effect Beran is talking about is from those transitioning from home owners to small house and apartment renters after losing their homes in foreclosure.

“The banks aren’t letting people stay in their homes any more,” Beran explained. “So people are moving from large houses into anything we have.” The same is true for apartments, as people face a substantial lower standard of living after losing their homes and condos and being forced to accept significantly less.

Even though a person has a foreclosure or bankruptcy on their record Beran may still work with the tenant.

“I like to work with people to see if we can help them. If I am convinced they will pay the rent then we overlook a lot,” he told me.

Beran qualifies the tenant by checking their criminal and civil background. He is looking for serious criminal charges as well as prior evictions. Assuming the person has stable employment, the Denver leasing agent tries to put them into something they can presently afford.

All of this is good news for landlords trying to hang onto their properties and for new investors. Sales prices still remain competitive in Denver. There are scores of fixer uppers on the market. An investor who is able to buy right can lease the property for positive cash flow. One bedroom units rent for $550 to $595 in lower income complexes, which are favored by investors. Two bedroom units go for $650 to $750.

Read more:

Here are the numbers.  Let's say you are able to acquire a condo for $30,000.  If you pay your broker handsomely for finding the deal, and throw in financing and closing costs, plus a carpet and paint budget, perhaps your investment costs another $5,000, for a total investment of $35,000. 

If you are paying 7% on the borrowed money, the monthly interest payments would be about $205.00.  Condo dues will add another $250 bucks to the tab, and property taxes another $80.00.  Your total monthly nut will be $535.  A rental rate of $595 per month means your tenant is paying the costs of your investment while you wait for appreciation and take the tax benefits.  If you paid cash for the unit you would be getting a whopping 55% return on your investment.  While I did not take depreciation of furnishings or vacancy into account, these items should be easily offset from appreciation and tax deductions.

After congress stuffed their pockets with a $139,000 unfunded tax break to every single millionaire in the US in December of 2010, they are not likely to shoot their mortgage interest and other deductions in the foot too hard.  The net after tax benefits makes the return on investment soar!

“Prices are being kept down because banks are not lending unless you have good credit,” Beran noted. “So people who have lost their homes are unable to qualify for less expensive homes.” That pitches former home-owners against those who traditionally rent, tightening the market.

Since banks are not lending, sales prices continue to remain weak. This provides the perfect scenario for a wise investor who has capital to invest and management expertise. As credit eases, values will likely rise. For those who prefer to let others handle the tenants, Beran is still accepting management contracts for properties.

“Are you in the market right now?” I asked him.

“I am always in the market!” Beran told me. The words are spoken like a true investor. Beran prefers small apartment complexes. He looks for a cap rate higher than 8% and is ready to move if he likes the deal.

How do you know when the real estate market has hit bottom and is on the way up?   When seasoned investors slide off the fence and return to the market, you can bet they know something.  Considering Gregory Beran bought his first rental property when he was 20 years old in 1978, you can bet he knows a thing or two.

Read more:


No one has a perfect crystal ball.  Trying to catch the ‘exact high’ or ‘exact low’ of the real estate market seems futile.  Isn’t it better to invest with the trends?  And what are the best trends?

Buy when everyone is selling.  Sell when everyone is buying.  A lot of people are buying right now but most have yet to get the news.  Now may be your chance to salt away a nest-egg rental house for your future.