CKNW Segment: Nick Gordon Found Legally Responsible for Bobbi Kristina's Death

I joined CKNW radio to discuss the latest in Bobbi Kristina's wrongful death case. After Nick Gordon failed to appear in court twice, the judge ruled him "legally responsible" for her death. Essentially, the judge entered a default judgment against Gordon, where he is held liable even without any discovery or evidence. Her family is asking for $50M in damages.

CKNW: The Legal Fallout After Prince's Death

Today I joined CKNW's Shane Foxman to discuss the latest legal news on Prince and his death. Thus far, no will has been produced, and a trust company has been appointed to temporarily oversee his estate. Under Minnesota law, when a decedent dies intestate (without a will) and is unmarried and has no children, the decedent’s siblings inherent shares of the estate, equally. Prince has one sister and five living half-siblings. Minnesota law makes no distinction between full siblings and half-siblings, so it is likely Prince’s estate will be distributed among his living siblings, equally. Those siblings are expected in court tomorrow for a hearing regarding his estate. However, it is likely this will be the first of many hearings, in a long battle to determine how to distribute his estate. The value of his estate is not yet known. 

Sirius XM Stars Segment: Charlie Sheen Could Face Criminal Charges

Charlie Sheen is now being investigated by the LAPD for allegedly threatening to kill his ex-fiancee. He can be heard on a taped phone call making threats to hire a hit man to kill his ex, Brett Rossi. In the taped conversation, Sheen also makes statements supporting Rossi's claims that Sheen knew he was HIV positive when he had sexual intercourse with her, but failed to disclose his status to her. In this radio interview, I discuss the possible criminal charges Sheen could face in light of this audio tape.

LawNewz Post: EXCLUSIVE - Kesha Never Filed Police Report Accusing Dr. Luke of Sexually Assaulting Her

This post originally appeared on

This weekend pop singer Kesha discussed her recent legal battle with her music producer, and the toll it is taking on her. While accepting an award for her work on behalf of the LGBT community, Kesha told the audience, “I’m going through some personal things that have been really intense and hard lately and I just want to say thank you for any support I’ve received.”

Unfortunately for Kesha, as her civil suit for sexual battery and assault moves towards trial, things may only get harder for the star. By March 21st, each side will turn in their demands for discovery of evidence. This means both Kesha and Dr. Luke will be seeking answers to written questions, requesting the production of documents, and eventually setting depositions for all witnesses involved.

One of the questions Kesha will likely be asked, and one of the documents that will likely be requested, is whether Kesha filed a police report regarding her accusations that Dr. Luke sexually assaulted her; and if so, for that police report to be produced. The purpose in asking for such a police report is that if Kesha wants to substantiate claims that Dr. Luke drugged her, and took advantage of her multiple times, then it would follow logically that she went to the police to report these alleged crimes before filing her civil suit.

Kesha filed her civil suit against Dr. Luke in October 2014. However, has exclusive confirmation from the Los Angeles Police Department that they were “unable to locate any reports” filed by Kesha Rose Sebert in 2014, or before or after 2014, alleging sexual assault. We filed an open records request to obtain a copy of the report. However, none existed.  Here is a copy of LAPD’s response:

This weekend pop singer Kesha discussed her recent legal battle with her music producer, and the toll it is taking on her. While accepting an award for her work on behalf of the LGBT community, Kesha told the audience, “I’m going through some personal things that have been really intense and hard lately and I just want to say thank you for any support I’ve received.”

Unfortunately for Kesha, as her civil suit for sexual battery and assault moves towards trial, things may only get harder for the star. By March 21st, each side will turn in their demands for discovery of evidence. This means both Kesha and Dr. Luke will be seeking answers to written questions, requesting the production of documents, and eventually setting depositions for all witnesses involved.

One of the questions Kesha will likely be asked, and one of the documents that will likely be requested, is whether Kesha filed a police report regarding her accusations that Dr. Luke sexually assaulted her; and if so, for that police report to be produced. The purpose in asking for such a police report is that if Kesha wants to substantiate claims that Dr. Luke drugged her, and took advantage of her multiple times, then it would follow logically that she went to the police to report these alleged crimes before filing her civil suit.

Kesha filed her civil suit against Dr. Luke in October 2014. However, has exclusive confirmation from the Los Angeles Police Department that they were “unable to locate any reports” filed by Kesha Rose Sebert in 2014, or before or after 2014, alleging sexual assault. We filed an open records request to obtain a copy of the report. However, none existed.  Here is a copy of LAPD’s response:

Kesha LAPD Open Records Request

The lack of a police report by Kesha will likely be a key point in Dr. Luke’s defense. The music producer previewed his defense in a series of tweets, saying Kesha’s allegation is “motivated by money.” Dr. Luke’s defense team will likely argue that if her sexual assault allegations were motivated not by money, but by justice, then Kesha should have, and could have, gone to the police.

And, in fact, a New York judge during a recent hearing appeared concerned about Kesha’s lack of documentation of her alleged abuse.

“I’ve read feet, feet of papers. There is not one piece of paper from a doctor saying this. But that’s besides the point. Even though you claim [Kesha] has all kinds of physical problems, trauma — nothing, under seal or otherwise. There are no hospital records. There is nothing here,” Justice Shirley Kornreich said to Kesha’s attorney Mark Geragos during a Feb. 19th hearing.

In 2014, Kesha was still within the ten-year statute of limitations in California for sexual assault. She claims Dr. Luke started attacking her when she was 18-years-old, in 2005. Had she gone to the police by 2014, and had police found evidence of sexual assault, criminal charges could have potentially been filed. Dr. Luke’s defense team may argue that failing to go to the police before the statute of limitations expired proves that she is motivated by money alone. In filing a civil suit against Dr. Luke, Kesha can seek not only monetary damages, but also equitable remedies, including an injunction to be released from her recording contract.

Dr. Luke’s tweets also outlined another defense strategy by his legal team – arguing Kesha’s allegations are not true because, in a prior deposition, she testified under oath that Dr. Luke did not drug and rape her. Dr. Luke tweeted that, “Kesha has denied under oath the horrible allegations now being made against me.” He then posted excerpts from that deposition, where she is specifically asked, “Did Dr. Luke ever give a roofie to you?” and “Did you ever have an intimate relationship with [Dr. Luke]”? Kesha answered no to both questions.

As the case moves towards trial (which will not be until 2017), each side will have the opportunity to depose the other, and ask questions under oath. Kesha will be grilled in her deposition about her prior testimony that she did not have sex with Dr. Luke, and questioned why she lied under oath. Kesha likely will claim, as she already has, that she was threatened by Dr. Luke and pressured into lying.

However, if this case goes before a jury, when Kesha appears on the stand, Dr. Luke’s defense will have the opportunity to impeach her with this prior inconsistent deposition testimony. Thus, unfortunately for Kesha, she faces a long road ahead in trying to prove her case. We contacted Kesha’s attorney Mark Geragos for comment on this story, but have not heard back.

LawNewz Post: Erin Andrews Probably Won't See Much of the $55M Jury Award Anytime Soon

This post originally appeared on

Jurors in the Erin Andrews civil case awarded the former ESPN reporter a staggering 55 million dollars for the emotional distress she has suffered as a result of negligence by the Nashville Marriott she was staying at when she was placed next door to, and secretly recorded by, co-defendant Michael Barrett. It is one of the largest verdicts awarded in Tennessee in the last 10 years. While the amount awarded is 20 million dollars shy of her 75 million dollar request, it is still a very large amount to award to a plaintiff. The sum of the award is meant to compensate Andrews for her emotional pain and suffering, which begs the question – is $55 million too much?

This is certainly the first question defense counsel was likely thinking when the verdict was handed down Monday afternoon. Unlike economic damages, jurors are left to speculate as to what monetary value to place on Andrews’ emotional harm as a result of the nude video. So when they came back with an award of $55 million, the question is, what is that based on?

After receiving news of the verdict, Andrews took to her twitter to thank the jurors, and her supporters. However, it is unlikely Andrews will be getting that 55 million deposited in her bank account anytime soon.

First of all, the jurors apportioned 51% of the fault on Michael Barrett, Andrews’ stalker. This means he, himself, is responsible for 28 million dollars of the total sum. It is highly unlikely that a man who served a 30-month sentence for the crime from 2010-2012 has anywhere near 26 million dollars to his name. As a result, his immediate response to the judgment will be to file for bankruptcy.

As for the Nashville Marriott, jurors apportioned 49% of the fault on them. This means the local branch of the international hotel chain is responsible for 26 million dollars of the total sum. Their first line of defense will be to file a motion for a new trial due to excessive damages. In deciding their motion, the trial court judge, Judge Hamilton Gayden, will have to determine whether to order a remittitur.

If one was ordered, a remittitur essentially gives the plaintiff, Erin Andrews, two options: 1) either she agrees to accept a reduced monetary award and the judge denies the defense motion for a new trial or 2) she refuses to accept a reduced award, and the judge grants the motion for a new trial – setting the stage for a second trial in front of a new jury.

Generally, the jury’s award is not to be disturbed unless it is entirely disproportionate to the injury sustained. However, judges have the obligation to review damage awards, and lower them, if the judge deems them to be excessive.

In determining whether a $55 million award for emotional distress is excessive, Judge Gayden will ask himself whether the verdict is outside the range of reason. The judge will look to whether the amount awarded is reflected by the evidence produced in trial and whether the verdict is the result of any improper motive, bias or prejudice.

Andrews presented testimony from her therapist, her parents, and she took the stand herself, crying about the emotional distress she has suffered since the nude video was released in 2009. Her parents testified that she is no longer trusting, that she is scared and depressed. Her therapist testified, in part, about her fear when bringing up the scandal to new boyfriends. Andrews testified, through tears, about how ESPN forced her to do a television interview right after the nude video was released.

But what price tag do you put on such harm? And is such an amount “within the range of reason?”

Tennessee personal injury attorney Rocky McElhaney told, “the verdict is within the range of reasonableness for the harms and losses proven by Ms. Andrews in court.” Thus, McElhaney predicts “it is unlikely that the trial court will reduce the verdict.”

Similarly, Tennessee attorney John Day told us they he finds it unlikely the trial court judge will reduce the award.  “This was a hard-fought jury trial by experienced lawyers.  There is no reason to believe that the jury did not understand the law,” says Day.

However, even if the trial judge decides to leave the jury verdict in place, the defendants are not out of options. The next step would be to appeal the decision to the appellate court in Nashville. Marriott will have to post a bond to prove they have the funds sufficient to compensate Andrews should they lose the appeal.

McElhaney wonders “if the hotel defendants have enough insurance coverage or assets to pay the judgment or if they will file bankruptcy.”

Then, it will be a waiting game, as the case makes its way through the appellate process – with the appellant’s brief filed first, then the respondent’s, then a reply brief, then oral argument before a panel of appellate judges. And keep in mind, this case will be reviewed by appellate judges in Nashville, Tennessee, an area that is arguably more conservative than Los Angeles or New York. As a result, it could be years before Andrews even sees a dime.

E! News Segment: Knife Discovered on O.J. Simpson's Property

 Legal Analyst Mari Fagel appeared on E! News to give her take on the latest news in the OJ Simpson case - that a knife was discovered on OJ Simpson's property. She answers questions, including whether OJ can be tried again for murder and whether the police officer who held onto the knife all these years can face criminal charges?

Conversations with Maria Menounos: Erin Andrews $75M Lawsuit

Former ESPN reporter Erin Andrews is suing the Marriott in Nashville, and her former stalker, in connection with the nude video posted online in 2009. In her $75M lawsuit, Andrews claims she suffered severe emotional distress in connection with the scandal, all as a result of the hotel's failure to keep her reasonably safe. Andrews took the stand to testify about how this was not a publicity stunt, quite the opposite, it ruined her life. She also had her parents, and therapist, testify about the emotional harm she has suffered since the video was first leaked online. I discussed the case with Maria Menounos on her SiriusXM Stars radio show, Conversations with Maria Menounos. Listen here:

LawNews post: Kesha’s Legal Battle Against Dr. Luke is NOT Over, It’s Just Beginning

The below article first appeared on

Pictures of pop-singer Kesha crying in a New York courtroom Friday have been splashed all over the news with headlines like “judge won’t let Kesha escape contract” and “Kesha forced to stay in contract with alleged abuser.” However, these headlines aren’t explaining the full story. When Manhattan Supreme Court judge Shirley Kornreich denied Kesha’s motion seeking a preliminary injunction to be released from her contract with Sony, she did not ignore Kesha’s cries. Rather, the judge’s decision was simply a statement that it is too premature at this point to let an artist out of her recording contract, and the truth regarding Kesha’s abuse allegations must be explored first.

To understand the consequences of the judge’s decision, it is important to look at how this case has unfolded. In October 2014, Kesha filed a civil sexual assault and battery claim against her record producer, Dr. Luke. The 2014 complaint outlined several alleged attacks by Dr. Luke against Kesha, beginning eight years earlier, when she was 18-years-old. The abuse allegations included drugging her multiple times, including on a plane, and one instance in which she woke up naked in Dr. Luke’s bed, remembering nothing.

To win a civil suit for sexual battery, in California (where the suit was filed), Kesha must prove three elements: 1) that Dr. Luke intended to cause a harmful or offensive contact and a sexually offensive contact resulted 2) that Kesha did not consent to the touching and 2) that Kesha was harmed or offended by Dr. Luke’s conduct. In order to prove these three elements, depositions must be taken, giving Kesha and Dr. Luke the opportunity to explain what happened, and if the case doesn’t get settled, it would go before a jury.

The benefit of pursuing a civil claim, rather than criminal charges, against Dr. Luke is that a sexual battery claim allows the plaintiff (Kesha) to not only get monetary damages, but the court may also award equitable relief, including an injunction. This means that if Kesha wins her civil sexual battery case against Dr. Luke, along with getting money, the judge could release Kesha from her contract obligation to Sony – which requires her to make six more albums with them, and Dr. Luke.

However, when Kesha’s high profile celebrity attorney, Mark Geragos, filed the civil sexual battery suit in October 2014, Dr. Luke filed a counter-claim against Kesha, arguing breach of contract – that she is not abiding by her contract obligations to him and Sony. At this point, the case was moved from California to New York, due to a forum selection clause in the contract requiring all disputes regarding Kesha’s recording contract to be litigated in New York.

Since it can take a while for Kesha’s sexual battery claim, and Dr. Luke’s breach of contract counter-claim, to be litigated, Kesha’s attorney filed a motion, in October 2015, for a preliminary injunction allowing her to be released from her Sony contract NOW. A preliminary injunction grants a party relief BEFORE the case has been litigated, and before the facts have come out; as opposed to a permanent injunction, which grants a party relief AFTER the case has been litigated, and after all facts have been explored.

Since it is a premature move to grant relief so early, before the facts have come out, Kesha’s judge was looking for three elements to be convinced that she should let Kesha out of the contract now: 1) that Kesha would suffer irreparable harm if she was forced to stay in the contract until the case is fully litigated, 2) that Dr. Luke, and Sony, by comparison would not suffer harm if Kesha were allowed out of the contract now, and 3) Kesha is likely to succeed in her case against Dr. Luke eventually, so the preliminary injunction should be granted now.

In his motion, Geragos argued that Kesha would suffer irreparable harm to her career as a pop star if she was forced to stay in the contract, because the contract with Sony is exclusive, so she can’t make music with any other record company while the case is being litigated – and in Hollywood, if you aren’t putting music out consistently, you are forgotten, and your career is over. However, the judge disagreed – Sony claimed it will allow Kesha to make music with another record producer, so she can continue putting music out with Sony.

Geragos also outlined his ultimate defense against Dr. Luke’s breach of contract claim. In the recording contract, there is an election of remedies clause, meaning Dr. Luke can either force Kesha to perform her end of the bargain under the contract by making music with him OR he can sue her for monetary damages for breaching the contract. Dr. Luke can’t “have his cake and eat it too.” By arguing the contract should be continued (and Kesha should record with him), and ALSO arguing the contract has been breached (and Kesha owes him money), Dr. Luke is violating the election of remedies clause, according to Geragos.

The most curious, and puzzling, part of the case is why no criminal charges have been filed against Dr. Luke for allegedly raping Kesha multiple times. In California, there is a ten-year statute of limitations for adult rape victims to pursue charges against their attackers (and a bill may soon be introduced in the state legislature seeking to extend that statute of limitations). Kesha was 18-years-old when she alleges Dr. Luke first raped her. She was 26-years-old when she first pursued a civil claim against Dr. Luke. Had Kesha gone to the police in 2014 with allegations of rape, and had the police presented the case to the district attorney’s office in Los Angeles, then criminal charges could have potentially been filed against Dr. Luke. If a criminal case against Dr. Luke was pursued, then it would be a lot easier for Kesha to substantiate her civil claim of sexual battery and assault.

The fact that criminal charges were never filed against Dr. Luke is the real elephant in the room in this legal battle. Either Kesha never told police about her abuse allegations against Dr. Luke, or she did tell the police, and it was decided there was not enough evidence to charge Dr. Luke with rape. It is hard for me to believe that with a high-profile attorney representing her, Kesha would not have first sought to press criminal charges against Dr. Luke. It is more likely that police, and/or the district attorney’s office, felt there was not enough evidence to file criminal charges against Dr. Luke. A decision not to file criminal rape charges against a high-profile, and powerful, man in Hollywood is nothing new (Bill Cosby), and with that decision, underlies the problem.

Rape cases often come down to a he-said vs. she-said. He said the sex was consensual. She said the sex was not consensual. And rather than putting the alleged attacker “on the stand,” the victim, and her behavior, comes into question. Why didn’t you immediately go to the police? Why didn’t you immediately go to the hospital and do a rape kit? These may have been the very questions Kesha faced if she did, indeed, try to press criminal charges against Dr. Luke. Sadly, her answers may have been the very reason Dr. Luke is not facing a trial for rape.

The legal battle between Kesha and Dr. Luke is far from over, and unfortunately for Kesha, her ability to record music with another company will have to wait until the case makes its way through the justice system.

However, at least in the court of public opinion, the answer is clear – celebrities and the public alike are in support of Kesha. Sometimes the consequences of being tried in the court of public opinion can be a powerful tool. Now, up and coming female singers won’t want to work with Dr. Luke. So while Dr. Luke may never face criminal charges, and while he may even end up winning the civil suit against Kesha, his career, and his fame, have not been spared.

Making a Murderer: An AfterBuzzTV Special Attorney Roundtable Recap

The ten-episode Netflix documentary Making a Murderer has captivated viewers since its premiere, and left many stunned as to how the justice system failed Steven Avery and his nephew Brendan Dassey. However, in capturing the legal proceedings of Steven and Brendan, much was left unexplained by the filmmakers.

That's why, in this two-hour special, we explain the law behind several issues presented in Steven and Brendan's cases, and answer the questions of viewers who were left with one burning question throughout the show: was that legal?!

Were investigators allowed to use the techniques they did to get Brendan Dassey to confess? How come Steven's defense couldn't point fingers, and name names in trial, as to who else could've killed Teresa? How were jurors with ties to the Manitowoc County Sheriffs Department allowed to be seated on the jury panel? Was it ethical for prosecutor Ken Kratz to describe every gruesome detail from Brendan's first confession in the press conference he held? What about the actions of Brendan's first defense attorney, Len Kachinsky? How was the brand new EDTA test allowed in, and the expert witness, allowed to testify that the preservative wasn't found in the blood in Teresa's car? Is it common for a trial judge to review his own record on appeal, like Judge Patrick Willis did in Steven's case? What about the way in which Manitowoc law enforcement got Penny Beernsten to identify Steven as her attacker, was that legal?

We answer these questions, and many more, in the AfterBuzzTV special: Making a Murderer Review and Aftershow.

Judge’s Decision in Madonna’s Custody Battle Will Be What’s in the “Best Interests” for Rocco


This post originally appeared on LawNewz

Madonna and her ex-husband, Guy Ritchie, are set to appear in front of a New York judge on Wednesday in their custody battle over their 15-year-old son, Rocco.

After touring with his mother for several months on her Rebel Heart tour, Rocco fled to London to spend the holidays with his father, and his new wife, Jacqui Ainsley. Just before Christmas, Madonna appeared before Manhattan Supreme Court Judge Deborah Kaplan, after Rocco made it clear he did not want to return to New York to live with his mom. Kaplan ordered Rocco to return to New York City in time for the start of school in order to sort out his living situation. It’s been more than a month since Kaplan’s court order. Yet, Rocco has remained in London with his father, in defiance of the order.

On February 3rd, Kaplan will decide whether Rocco must return to New York, and his mother, or whether he can stay in London with his father. Under the terms of their 2008 divorce, it was decided the couple’s children would live with their mother in New York, which is why New York has jurisdiction over the custody case.

However, under New York law, a custody decision may be modified if there is clear and convincing evidence that a change is in the best interests of the child. The “best interests of the child” is the standard judges use in deciding child custody battles. However, it is a rather ambiguous standard, and leaves much of the decision up to the judge’s subjective beliefs; especially in New York, where judges aren’t limited by a list of specific factors, but instead have broad discretion to consider all of the relevant circumstances of the case.

There are several relevant factors that Judge Kaplan can, and likely will, consider when making her decision regarding what is best for Rocco Ritchie:

Age – Rocco is fifteen years old, just three years shy of making his own decision of where he wants to live. Some judges believe that the younger the child, the better it is that they live with their mother, or the primary caregiver. So this factor could count in Rocco’s favor since he is already a teenager.

Each parents living situation – one of the most important considerations is ensuring the child has stability and continuity in their daily lives. This could be a wash for both Madonna and Guy, since their careers don’t exactly lend themselves to continuity and stability. Madonna performs concert tours around the world. Meanwhile, Guy could be off directing a movie shoot for months on end. Rocco spent the months before his move to London touring with his mother, and reportedly hated it. Judge Kaplan could interpret this as a plea by the teenager for some stability and continuity in his life. When he’s not off shooting films, Guy and Jacqui live with their three young children in London. And if Rocco, himself, views that as a more stable living situation, the Judge will be inclined to listen.

The child’s preferences – if a child is old enough to voice his own thoughts and feelings, which Rocco is, then the Judge will listen. Here, Judge Kaplan has given Rocco a court-appointed attorney, who will likely be asked on Wednesday about Rocco’s preferences. It is unlikely Rocco himself will be in court, since Rocco is not a party, it is not necessary that he appear. His parents are the two parties in the case. Rocco has his own attorney because of the conflicts of interest in this case between him and his parents, and, more importantly, to give him a voice. That attorney is there to express Rocco’s wishes of where he wants to live, and why. Whether the judge will agree with Rocco depends on what Rocco’s reasons are for wanting to live with his father in London. If he says, through his court-appointed advocate, for example, that he wants to live with his dad because he is more fun and carefree, whereas his mom is too regimented and always makes him go to school and do his homework, then it is unlikely the Judge will be inclined to side with Rocco and his father. Yet, if Rocco expresses, for example, that his mother’s life is too chaotic, and he enjoys the stability and comfort of living with his father, then the judge may be inclined to go against Madonna.

Each parent’s actions – Judge Kaplan will likely review how Madonna and Guy have co-parented their children since their 2008 divorce. If one parent has not shown a willingness to cooperate with the other, and support the other’s relationship with the child, the Judge will not look favorably on that parent. In other words, the judge will not look kindly on a parent who is trying to alienate their child from the other parent. Here, Judge Kaplan ordered Guy Ritchie to return Rocco to his mother after the holidays. Yet, he never did that. In addition, it seems as though Rocco has missed school due to his his extended stay in London. As a result, Guy’s interference in Rocco’s relationship with his mother may hurt his chances at winning custody.

In fact, the judge specifically asked Mr. Ritchie’s attorney in court last month, “has he prevented the child from returning to the U.S.,” to which the attorney responded, “effectively, yes.” If Guy Ritchie does not appear to be cooperating with Madonna in finding a solution for their child, then Madonna may have an edge in the custody dispute. 

Judge Kaplan also ordered both parents not to discuss the legal proceedings with their son. If she finds out that Guy has violated that order, too, and has been bad-mouthing Madonna, then that also gives Madonna an advantage.

In the end, money and fame cannot help Madonna get her son back, nor can it help Guy Ritchie. It does not matter that the two parties battling it out are a pop superstar and a Hollywood director, what matters most is what is in the best interests of this fifteen-year-old boy. 



Caitlyn Jenner's Vehicular Manslaughter Case: What Could Have Been

This post originally appeared on The Huffington Post:

This week marked the end of Caitlyn Jenner's legal troubles stemming from her car crash last February that killed 69-year-old Kim Howe. Howe's grown stepchildren agreed this week to drop their wrongful death lawsuit against the former Olympian. The dismissal comes after Jenner's insurance company agreed to pay only a modest amount to Howe's family. Jenner herself did not pay anything out of pocket to the Howe family.

Jenner was not only spared from having to go through a civil trial; she also avoided facing criminal charges for the crash. In September, the Los Angeles County District Attorney's Office decided not to charge Jenner with misdemeanor manslaughter. At the time, the district attorney's office stated that based on the facts, they could not prove beyond a reasonable doubt that Jenner's conduct was unreasonable.

However, if it wasn't Caitlyn Jenner, of Kardashian fame, that was behind the wheel, the outcome could have been very different.

In order to prove that someone committed misdemeanor vehicular manslaughter, the prosecutor must prove the driver caused the wreck due to ordinary negligence. Ordinary negligence is defined, under California jury instructions, as "the failure to use reasonable care to prevent reasonably foreseeable harm to oneself or someone else. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation." Under this definition, ordinary negligence is a very subjective standard. As a result, in deciding whether to charge someone with misdemeanor manslaughter, prosecutors have more discretion than they do with other criminal offenses.

This begs the question, if the offender wasn't Caitlyn Jenner, would prosecutors have chosen to pursue criminal charges? I think so; and this is how the criminal case would have been played out...

It was clear from bystander footage taken after the accident that Jenner moved her car to the side of the road and was picking up pieces of her car from the street - which would have become an issue at trial. The defense would argue that the police botched the investigation so the cause of the accident can't be proven. The prosecution would argue that Jenner tampered with the evidence.

Due to the problem with the evidence in the case, and the subjective nature of determining whether someone was "reasonably careful," it is likely prosecutors would have offered Jenner a plea deal of one year in jail and a fine. Jenner's defense attorney could have appeared in court for her and plead no contest so that she didn't have to appear herself, thus avoiding the media circus.

Then, Jenner likely wouldn't have spent more than a weekend in jail because of overcrowding problems and the fact that the sheriff wouldn't want such a high-profile celebrity in jail too long - too many security risks and liability issues. So it would have resulted in a quick jail stint for Jenner, just like so many celebrities before her (Nicole Ritchie and Lindsay Lohan, to name a few).

In addition, prosecutors would have made a restitution order for money for the victim, but deferred the issue of restitution to the civil court judge handling the wrongful death case.

In the end, had Jenner not been a celebrity, she likely would have been charged with, and convicted of, or plead guilty to, misdemeanor manslaughter. Such a conviction, or plea, would have served to offer some measure of justice and closure to the Howe family. This family had to endure not only the death of their loved one last year, but also had to watch the woman who killed their loved one being hailed as a hero for her choice to go public with her gender transition. Their inability to escape Jenner, who was plastered on magazine covers and on television for months, must have served as a constant reminder of Howe's death.

However, in a world where the Kardashians loom large, Howe's family has had to accept that Jenner will not answer for her actions, civilly or criminally.

Exclusive: Why Paul Walker's Family's Case Against Porsche is Unlikely to Succeed

This week marks the two year anniversary of the death of The Fast and the Furious star Paul Walker. The actor died in a car crash on November 30th, 2015. Since his death, both his daughter, Meadow, and his father, Paul Walker Sr., have filed wrongful death suits against Porsche, the maker of the car he died in.

A source tells me, exclusively, that the Walkers' cases against Porsche will be very difficult to prove. While the suits allege Walker's death was caused by Porsche's faulty vehicle design, Porsche has argued the true cause of the accident was speed, plain and simple.

The car that Walker was a passenger in had been modified after the factory with speed and power enhancements. Since it was modified for racing after it was produced by Porsche, this takes away from the likelihood of his family prevailing in a product liability case.

The single biggest mistake made in this case was in the very beginning when the Walker family's attorneys allowed Porsche to examine the car. Porsche flew out their German engineers right after the accident and their conclusion was that there was nothing wrong with the car. The problem is since Porsche experts examined the car before anyone else got to it, they took it apart, so even if a subsequent plaintiffs' expert came on the scene to examine it, the car had already been disassembled. As a result, it will be difficult for the Walker family to prove the car had a faulty design because any subsequent examination by their experts will be called into question. Their examination is not based on the car as preserved after the accident, but follows the disassembling of the car by defense engineers.

As for why Paul's daughter Meadow, and his father, Paul Sr., have separate suits, there are two possible reasons. Normally, the heir's wrongful death suit and the estate's suit are brought together by the same attorney. It's very unusual to see a minor with her own attorney and an adult bringing a separate action in the name of the estate. This could mean there is family drama in the background. The other reason is that when Meadow, as Paul's heir, files a wrongful death suit, she cannot get damages for her father's pain and suffering. However, when the estate brings a claim for wrongful death, the estate is entitled to get pain and suffering damages, meaning an expert would testify that for a period of time after the accident Paul was still alive and he was trapped and couldn't get out. Thus, his estate should be compensated for his pain and suffering.

While the suits against Porsche may not be successful, if Walker's estate were to sue Roger Rodas' estate, that case would likely result in a high settlement because Rodas, the driver, was speeding and his reckless speeding caused Walker's death.  However, there could be exclusions on the insurance policy preventing Walker from suing Rodas. Further, Rodas' estate's attorneys could argue Walker was encouraging Rodas to speed up, contributing to his own death.

Alternatively, there was a claim shortly after the accident that the City of Valencia had put cones along the street to prevent other cars from getting onto the roadway and that Rodas crashed because he swerved to avoid the cones. The issue would then be whether the city was negligent in putting up the cones - that's another possible suit that could stem from this accident.

In conclusion, it is doubtful Porsche will pay Walker's family anything, and if they do, it will be in a confidential settlement. If Rodas' insurance policy doesn't exclude Walker's estate from suing, then his insurance carrier could pay out a large sum of money for Walkers loss of earnings. Finally, suing the city for negligence is another option for the Walker family.

The Kennedy Files Segment: How Ted Kennedy Manipulated The Chappaquiddick Incident

Catch my interview on The Kennedy Files, airing on The Reelz Channel Tuesdays at 9 p.m. EST. In tonight's episode, I discuss a series of high profile Kennedy legal cases - Ted Kennedy's Chappaquiddick incident, the William Kennedy Smith rape trial and the Michael Skakel murder trial. These high profile Kennedy legal cases reveal the double-edged sword of fame and privilege. According to Reelz, "justice may be blind, but these cases reveal how the very name Kennedy can either be a 'get out of jail free card' or a target for vendettas. For more on this episode, go to Reelz online. 

E! News Segment: The Legal Battles Charlie Sheen Could Face in Light of News he's HIV Positive

Last night, I appeared on E! News discussing the criminal charges and civil lawsuits Charlie Sheen could expect after his announcement that he's HIV positive. For more from my interview, go to

There are reports Charlie was threatened with lawsuits, and even settled some lawsuits already. What these women likely sued for, or could have sued him for, is sexual battery. Under California law, a person commits a sexual battery when intending to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly results. Sheen intended to have sex with the plaintiff; the contact was harmful or offensive because it exposed the plaintiff to a fatal disease, and Sheen knew this. Had he engaged in unprotected sex without informing his partners of his HIV-positive status, a sexually offensive contact would have resulted. These women would be entitled to recover damages caused by the sexual battery, even if they didn't end up contracting HIV, because they can recover money for their mental suffering - the fear, anxiety, shock and worry from finding out Sheen is HIV positive and worrying they might have contracted the disease.  Also, even if these women consented to having sex with Sheen, Sheen would not be able to use that as a defense because, under California law, failure to disclose HIV prior to intercourse negates their consent and turns consensual sex into a sexual battery.

And that’s just what Charlie Sheen could expect from a civil lawsuit. He could also be facing criminal punishment. Under California criminal law, any person who exposes another to HIV by engaging in unprotected sex when the infected person knows at the time of the unprotected sex that he is infected with HIV, has not disclosed his HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony punishable by imprisonment in the state prison for 3, 5 or 8 years. However, it is very difficult to prove this crime. Just because Sheen knew of his HIV-positive status, without additional evidence, isn't enough to prove he had the specific intent to infect these women. That’s why, if you have HIV, and you expose your partner to it without disclosure, you are more likely to be prosecuted for a misdemeanor. Under California criminal law, any person afflicted with any contagious, infectious, or communicable disease who willfully exposes himself to another person, is guilty of a misdemeanor. The penalty is up to six months in county jail, and/or a fine of up to $1,000.