Professor Eric Boos participating in Habeas Corpus appeal in Indiana and one disabled veteran’s rights in Montana
November 23, 2020
Professor Eric Boos is working on a State-level Habeas Corpus appeal for a man in Indiana. His trial attorney failed to challenge the substance and procedure of a coroner’s autopsy report that conflicted with Prosecution’s argument. In criminal law the autopsy report is generally presumed to have a non-testimonial status. Prof. Boos is developing a strategy to challenge the presumptive non-testimonial status of the autopsy report under the 6th Amendment’s Confrontation Clause by showing that law enforcement involvement materially influenced the examiner’s autopsy report.
Prof. Boos is also working on an administrative law problem for a disabled veteran in Montana whose only source of income is his VA Benefits, which a state court attached for alimony and child support without allowing VA hearing. Under 38 U.S.C. §5301(a)(1), benefits paid by the Department of Veterans Affairs (VA) are not subject to levy, seizure or attachment. However, the general rule is that they are available for consideration by the court in deciding matters of family support. The law generally is that such benefits may be considered as a resource for purposes of setting the amount of alimony and child support and that doing so does not constitute an affront to the Federal anti-attachment and anti-alienation provisions under 38 U.S.C. § 3101 and 42 U.S.C. § 662(f)(2). These Federal Statutes generally protect veteran’s benefits from the claims of creditors, but ex-spouses and children are not “creditors.” See, Montana - In re Marriage of Strong, 300 Mont. 331, 8 P.3d 763 (Mont. 2000). But the real question is whether or not the Veteran had a right to a hearing through the VA under The Servicemembers Civil Relief Act (“SCRA”) and/or “Military Spouses Residency Relief Act” in 2010.