Military members protected from employment discrimination

A very important employment protection for military members can be found in the Uniformed Services Employment and Reemployment Rights Act (USERRA) 38 U.S.C. §§ 4301-4335. USERRA provides employment protections for the thousands of Reservists and National Guardsmen who serve part-time in the military. 

Whether their service involves a deployment or simply a monthly weekend drill, USERRA outlaws discrimination on the basis of military affiliation or service. It also requires employers to reemploy servicemembers returning from a military orders in a job of comparable pay, status, and seniority to the job they held prior to their service. USERRA protections apply regardless of whether the period of military service was voluntarily or involuntarily undertaken by the employee.

If servicemembers are not accorded their rights under USERRA, they can seek relief in federal court. Federal courts are permitted to award attorney’s fees in USERRA cases. USERRA also allows for consequential damages (double damages) in addition to actual damages.

Most USERRA rights are subject to notice and timing provisions. A military member is well advised to seek the advice of their military legal office or a private attorney with experience in military law when examining the specifics of their own situation.

The Rights of Military Members under SCRA

Every year, the US military deploys and PCS's thousands of servicemembers to dozens of locations across the globe. Of course, deployment or a PCS involves disruption to a soldier’s personal life, and it is an expected part of military life. However, that expectation doesn’t make it easy. Fortunately, federal law provides protections for military members to help ease the personal burdens caused by a military deployment or PCS. 

The Servicemembers Civil Relief Act of 2003 (SCRA), 50 U.S.C. §§ 3901-4043, allows military members to cancel a lease or service contract for a house, apartment, car, or phone provider with 30 days’ notice of departure from the local area on military orders.

A lesser known but potentially very helpful SRCA right allows servicemembers to reduce the interest rate on any pre-service debt to 6 percent during their period of service. This can be a big savings for servicemembers, especially Reservists and Guardsmen, and can normally be accomplished with a simple request letter to the creditor.

Other helpful SCRA rights include the right for military members, upon request, to be granted a stay of proceedings for court or administrative hearings, including child custody hearings, during a deployment. Under SCRA, military members also have protections from default judgment, foreclosure, eviction, or seizure of property. 

Each of these rights have time timing issues and other specific requirements. For further information, military members should contact their local military legal assistance office, or a qualified civilian attorney. If you believe your SCRA rights have been violated, you have a right to bring a civil suit in federal court.

False Confessions in Criminal Cases

A confession is the most powerful evidence of guilt that the prosecution can present in a criminal case.  In cases where a defendant confesses, the jury inevitably will ask "Why would anyone admit to something he did not do?"  Defendants are regularly convicted based on this question.  And yet, recent DNA evidence put forward by organizations like the Innocence Project have exonerated 351 (and counting) wrongly convicted people.  While it's stunning, 1 out of 4 of these people gave a false confession. 

One widely publicized instance of false confession happened in 1989, New York City's Central Park Jogger rape and assault case.  The victim was knocked unconscious and had no memory of the rape.  Five local teens were interrogated by police and each gave confessions admitting to being an accomplice to the rape.  The prosecution and the juries ignored conflicting and impossible statements made by the five teens, and convicted each one.  In 2001, a convicted serial killer admitted to being the rapist and acting alone.  DNA evidence and his verbal account matched all the details of the incident.  The five original convictions were ultimately overturned.

Certain police interrogation tactics contribute heavily to false confessions, notably those put forward in the Reid technique.  This technique involves lengthy interrogations that seek to isolate a defendant by leaving him or her alone for a period of time in the interrogation room, building rapport between the interrogator and the defendant, minimizing the criminal conduct at issue, making the evidence against the defendant seem overwhelming, and making promises of leniency for "cooperation".  If this does not work, investigators are even legally allowed to confront a defendant with fabricated evidence to see if the defendant will confess.

Any defendant trying to defend against criminal charges in the face of a false confession is in for an uphill battle.  But such a defense is possible.  If you find yourself or your loved ones in this situation, trust the law office of J. Robert Black to help you.

Big Changes to Criminal Sentences in Nebraska

In 2015, much of the media focus on criminal justice in Nebraska surrounded the debate over the death penalty and good time calculations.  However the legislation with perhaps the broadest impact did not receive widespread media attention.  That legislation was LB 605 (see it at, written in response to a report that found Nebraska prison sentences needlessly long and Nebraska prisons overcrowded as a result.  With the new legislation, felony sentences were reduced and new, lighter felony classifications were instituted, particularly for non-violent offenses.  A new procedure of post-release supervision was put in place to get defendants out of the prison while ensuring the criminal justice system still has oversight over their actions.  Another big change in the law is that defendants convicted of Class IV felonies will presumptively receive probation instead of prison time.  Misdemeanor offenses, however, were mostly unaffected by LB 605.  This has created a situation where a defendant may be better off pleading to a Class IV felony, even if a plea deal for a Class I misdemeanor is offered.  It will take some time for this and other practical implications of the law to be worked out in courtrooms across Nebraska.  Of note, these changes only affect cases dealing with crimes committed after August 30th, 2015.

DUI consequences in Nebraska

One of the most common difficulties people face with criminal law is drinking and driving, or driving under the influence of alcohol.  The consequences in Nebraska vary widely depending on the alcohol level, the number of previous DUIs, and whether property damage or injury occurred as a result of the DUI.  Consequences from DUIs come both from the administrative side for license revocation or suspension requiring installation of an ignition interlock, (see as well as the criminal side in the way of a fine, probation, or even jail time.  See the following link where the State of Nebraska Department of Transportation spells out some of the criminal consequences.  Some defendants are fortunate enough to qualify for diversion, if it is offered in the county in which the offense occurs.  Successful completion of diversion means a defendant does not end up with a conviction on their record, which is well worth the time and fees that go into completing the diversion program.  If you have been arrested for DUI, the Law Office of J. Robert Black is ready to guide you through the legal process.

Protection from Elder Abuse

It's a shocking statistic: 1 out of 10 elderly adults will suffer some form of abuse or exploitation.  Many times, the exploitation occurs at the hands of people who know them well.  One recent, very sad example was in the news headlines this past summer, when the former Nebraska Huskers football public address announcer was arrested for allegedly stealing hundreds of thousands of dollars from two 90-year-old women.  He convinced the women to give him control of their finances a few years prior.  The women had dementia, and as the dementia progressed, he allegedly took advantage by steadily emptying their bank accounts of large sums of money to pay for improvements to his own home, deposits to his own retirement account, and other unauthorized expenditures.


This case, and many others, highlights the need for a strong relationship between the elderly and an attorney.  The more money an elderly person has at their disposal, the higher at risk they are for abuse by people of ill will.  At the Law Office of J. Robert Black, we don’t just provide legal documents.  We follow up with our clients, getting to know them, their families, and their situation, in the hopes that we can help prevent the kind of elder abuse that seems to be coming more and more common.

Protection Orders in Nebraska

Protection or harassment orders (commonly known as restraining orders) are an important tool for victims of threats or harassment to have peace of mind.  They build a layer of legal protection between a victim and a perpetrator.  Unfortunately, like any legal tool, protection orders can also be misused.  Courts can issue protection orders simply on the word of an alleged victim.  A permanent protection order shows up on a criminal background check and can result in loss of the right to possess firearms under federal law. 18 U.S.C. 922.  Any person who has a temporary protection order placed against them will be notified of their right to a court hearing to dispute the allegations and/or the need for an order.  The notice to a hearing is usually in person but may also come by mail.  Persons wishing to dispute the order must request a hearing, attend the hearing, and provide evidence or argument as to why the court should deny the request.  Failure to request a hearing or appear will likely result in a permanent protection order.  Whether you are in need of a protection order or wish to dispute a protection order placed against you, the Law Office of J. Robert Black can help. 

Do I need a Will?

One of the most common questions an estate planning attorney hears in casual conversation is "Do I need a Last Will and Testament?"  Occasionally, the answer to this question is "Probably not."  In most cases, though, the answer is "Yes."  Most parents of minor children would like to appoint a guardian to take care of their children if both parents were to pass away.  The way to accomplish this, according to Nebraska Revised Statute 30-2606, is with a testamentary appointment in a will.  Without this, guardianship will be determined by the courts according to the judge's discretion.  Another (seemingly obvious) use of a will is to have your property distributed after your death in the way you want .  Not having a will means that State law controls how your property will be distributed when you die.   In Nebraska, this can cause serious complications for property distribution, particularly in blended families.  For example, if a person dies without a will and is survived by a spouse and a child from a different relationship, the surviving spouse would have to split the estate with his/her step-child.  It doesn't matter whether the step-child is a minor or an adult.  Many times, this outcome is far from what a person would wish to happen to his or her property.  The only way to remedy this, however, is by a will.  There are innumerable other considerations in whether or not to have a will, and the only way you will know for sure whether you should have one is with an attorney consultation. 

Powers of Attorney

As the saying goes, "An ounce of prevention is worth a pound of cure."  A General Durable Power of Attorney and a Health Care Power of Attorney are a few ounces of prevention that everyone should have in place to avoid expensive and time-consuming guardianship proceedings.  Powers of attorney are written to empower an attorney-in-fact to act on your behalf.  A General Power of Attorney can be written to allow an attorney-in-fact to pay bills, file taxes, and make a whole host of other decisions.  A Health Care Power of Attorney can empower an attorney in fact to make health care decisions for you, including end of life decisions.  Powers of attorney can be written to come into effect only if you are incapable of making such decisions on your own.  The catch is that a power of attorney must be signed before a person becomes incapable of making their own decisions.  Because that is usually unpredictable, everyone, especially those who are aging or in poor health, should have Powers of Attorney signed, notarized, and in the hands of the attorney-in-fact to use when it becomes necessary.  Without a power of attorney, family members who wish to make legally binding decisions on behalf of their incapacitated loved ones will normally be required to go through guardianship proceedings, which means time, fees, and other expenses of carrying out the guardianship which far exceed those of a simple power of attorney.   

New Air Force Rules Affect Criminal Cases

All branches of the military have recently come under strong criticism for the perception that criminal victims hesitate to report to authorities for fear of reprisal by other military members.  In May 2015, Human Rights Watch published a report accusing the military of failing to protect victims of sex assault.  The Air Force issued a firm, wide-ranging response by changing AFI 36-2909 making retaliation against alleged criminal victims punishable under the UCMJ.  The rule change went much further, however, also making "Ostracism" punishable under the UCMJ.  The new rule defines Ostracism as "the exclusion, from social acceptance, privilege or friendship with the intent to discourage reporting of a criminal offense or otherwise discourage the due administration of justice."  The implications of this rule change are yet to be seen.  An improper understanding about this rule change could make it more difficult for defense counsel to defend accused individuals.  For example, defense counsel are permitted to present evidence in criminal cases that an alleged victim has a poor character for truthfulness.  Defense counsel are able to present this evidence through coworkers, supervisors, and acquaintances who have witnessed an alleged victim be untruthful on occasions that are not related to the criminal complaint.   If potential character witnesses believe speaking their opinion frankly may support a charge of retaliation or ostracism, they may choose not to express their opinion rather than risk criminal prosecution themselves. Proper training for Air Force members concerning the new rule should emphasize the need to treat an alleged victim with dignity along with the importance of preserving an accused individual's rights.

The views expressed herein are solely those of the author, and do not purport to be the views of the Department of Defense, the Air Force, or the Air National Guard.

Slander & Libel Victims Must Act Fast

At some point in life, most people have been the victim of a lie told by another person.  While lies usually hurt, most don't result in a lawsuit.  However some lies are so severe that they can damage a person or a business's reputation, financial success, and social acceptability.  Nebraska law allows victims of slander and libel to sue, but has strict requirements that require someone who has been injured by a false statement to act fast.  While the statute of limitations on most civil claims in Nebraska is four years, an action for slander or libel must be brought within one year.  Also, when someone suffers slander or libel, they must demand a correction of the false statement within 20 days of learning about it, or their ability to recover damages will likely be limited to special (economic) damages.  Demand for a correction must be made by certified or registered mail.

Air Force ADC workload increase

As a former Air Force Area Defense Counsel (ADC) and Senior Defense Counsel, I can attest to the excellence, professionalism, and dedication of the officers who fill those posts.  However, the Air Force is asking more from its ADCs than ever before.  The drastic force reduction cuts late in 2014 hit Air Force JAG Captains the hardest.  Many of these officers filled the 83 ADC positions in the Air Force.  In some geographic regions, 4 out of 5 ADCs were cut.  Of course, the number of court-martial cases and discharge boards have not gone down significantly in the last year, which means that the remaining ADCs are heavily burdened by the overflow.  While the JAG Corps has been rotating junior Captains to some of the open ADC slots, the average ADC is facing a drastically increased caseload.  If you are seeking personalized representation for a court-martial, discharge board, or other adverse action, call my office at (402) 965-1457 today. 

The views expressed herein are solely those of the author, and do not purport to be the views of the Department of Defense, the Air Force, or the Air National Guard.

Impacts of conviction on gun ownership

Many people are aware that any felony conviction will permanently bar a person from owning, or even possessing, a firearm.  However it is less known that even a misdemeanor conviction for a crime of domestic violence will keep a person from owning a gun under both federal law and Nebraska law.  Another collateral consequence to be aware of in Nebraska is that a conviction of any Nebraska law "relating to firearms, unlawful use of a weapon, or controlled substances" will prevent a person from applying for a concealed carry permit for 10 years.  If you find yourself facing criminal charges of any kind and gun ownership is important to you, you should ask your attorney about the impact of any possible conviction or plea deal on your gun rights.

Article 138 UCMJ and the National Guard

Article 138 of the Uniform Code of Military Justice provides members of the Armed Forces a way to file a complaint with their commander.  If the commander does not resolve the complaint, he is required to elevate it to a general officer further up in his chain of command.  This is a powerful way for a member to elevate a grievance, and can be done in addition to a complaint to a congressman, or to the Inspector General.  But does it apply to Army or Air National Guard members?  The short answer is no.  Article 2(a)(3) of the UCMJ specifically excludes Guard members from the UCMJ, unless they are in federal service.  On the Air side, AFI 51-904, Complaints of Wrongs  Under Article 138, UCMJ, confirms this by exempting the ANG from the process.  However, some state military codes may permit recourse similar to that found in Article 138.  For example, Iowa Code 29B.118 states: "Any member of the state military forces who feels wronged by the member's commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the governor or adjutant general." Additionally, Guard members who are not in federal status can still file a complaint with their state or US representatives or the Guard Inspector General at their unit.

The views expressed herein are solely those of the author, and do not purport to be the views of the Department of Defense, the Air Force, or the Air National Guard.

Nebraska Court-Appointment Process Changing

If you cannot afford to hire a defense attorney in a criminal case where jail time is a possibility, you are entitled to the services of a public defender, or if the public defender is not eligible, a private attorney appointed and paid by the State to represent you. In February 2014, the Nebraska Supreme Court adopted Neb. Ct. R. § 6-1525, § 6-1467, and § 6-1704, mandating “a transparent process for appointment of counsel for indigent defendants” in criminal and juvenile cases.

The Supreme Court required each judicial district to pass a local rule formalizing their appointment process no later than January 1st, 2015. Some judicial districts did not meet that deadline, but are expected to publish local rules in the near future. While the requirements of the Supreme Court rules are rather simple, many of the judicial districts have used this opportunity to implement significant changes. One change that appears to be the same among jurisdictions is the appointment of defense counsel on a rotating basis from a list of attorneys who have declared themselves eligible and willing to receive criminal court clients.

Some districts have a vetting process for court-appointed attorneys built in to their rules. For example, one district maintains attorney lists based on the highest level of case the court believes an attorney is competent to take. At least one district’s local rule does not make distinctions between attorneys based on experience, but gives priority to attorneys whose offices are located in the same county as the appointment. This rule enables the courts to reduce the costs of attorney travel time and mileage. You can read each court’s rules at the following link: