Legal Blog

Client travels around the country visiting family after Spolin Law gets wrongful murder charges dismissed.

Published on June 22, 2021
Client Office Visit Story (Featured Image 1) | Spolin Law

Attorneys and staff from Spolin Law P.C. meet with a former client. His murder case was entirely dismissed this past February.

A former Spolin Law client visited the firm’s main office and shared with his lawyers what he has been doing since his release. The client had been wrongfully charged with a gang related murder and held in custody for nearly a year. (For more details about his case, read the original article written the day after his case was dismissed). Last week the client met with five of the firm’s lawyers as well as some members of the firm’s administrative team.

After walking out of custody a free man, the client visited family all over the country to reconnect, celebrate his release, and begin the exciting next phase of his life. Much of his time was spent in Chicago and Los Angeles, where many of his family and friends live. And of course he has not forgotten to spend a great deal of time with his mother, who probably spent even more time than the Spolin Law lawyers in fighting to secure her son’s release.

Client Office Visit Story (Featured Image 2) | Spolin Law

The client says goodbye as he moves on to the next phase of his life. Pictured (left to right): Hemi Tann, Arlene Binder, Don Nguyen, Jeremy Cutcher, and client.

In recounting his travels and celebrating his newfound freedom, the client met with the lawyers who had directly represented him, including Aaron Spolin, and Jeremy Cutcher. Two other attorneys on his legal defense team were not present: Caitlin Dukes and Matt Delgado (of counsel). Attorneys Don Nguyen, Arlene Binder, and Dan DeMaria had not represented him but were present for the happy occasion. Also present was law firm manager Dionne Parker; one of the firms case managers, Hemi Tann; and the mailroom manager Michael Alfi. The Spolin Law attorneys and staff were excited to hear about further travel and life plans in the client’s future.

To speak with Aaron Spolin or any of the firm’s attorneys about your case, call us at (866) 716-2805.

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How long does a California appeal take?

Published on June 12, 2021

Filing a criminal appeal in California is oftentimes a drawn out and complicated process. If you plan on taking appellate action, knowing the basics of how it functions is crucial. The length of this appeals process varies from case to case, ranging anywhere from a couple of months to a couple of years. Nevertheless, while some cases may take longer than others to resolve, it is important that all appeals are filed quickly after a conviction sentencing.

Deadline

Before filing, you must first confirm that you have a case that warrants an appeal. It is important that you reach out to an appellate attorney, who will look through the details of your case to identify any legal errors and advise you on what next steps may be.

If the attorney confirms you are eligible, and you decide to proceed with an appeal, you will start the appellate process by filing a Notice of Appeal in the superior court. For misdemeanor cases, the deadline to file is 30 days from the date of judgement. Felony offenses, on the other hand, hold a 60 day deadline.

While direct appeals must be filed within this 30 and 60 day window, there are other types of post conviction relief that may be submitted after this deadline has passed. Common examples include a California Writ of Habeas Corpus and an Application for Commutation of Sentence.

Can I file a late appeal?

In some cases, extensions may be granted for defendants who miss the designated deadline. In compliance with the 2018 California Rules of Court, in instances of public emergency, defendants will receive a longer time window to appeal.

Additionally, in the event that your attorney fails to provide proper assistance during the appeals filing process, the traditional 30 or 60 day deadline no longer applies. For example, if your attorney does not inform you of your right to appeal or provides misinformation about the deadline of your appeal, you may be eligible for an extension.

Furthermore, cases of constructive filing also serve as a proper grounds for appellate extension. This occurs when the appeal does not make it to the courthouse on time despite genuine efforts from the defendant. Filing the appeal with the wrong court or mailing delays that are out of your control are just some instances in which a constructive filing extension may be offered.

Certificate of Probable Cause

In addition to submitting a Notice of Appeal, you must file a Certificate of Probable Cause (CPC) which legitimizes the basis of the appeal. The court then receives 20 days to review the submission and either grant or deny the CPC.

Notice of Designation Record on Appeal

Within 10 days of filing your Notice of Appeal, you must also file a Notice of Designation Record on Appeal. Doing so will notify the involved parties (including the court clerk, court report etc) and facilitate the collecting of trial records and transcripts which will be used in the appellate proceedings.

Opening Brief

Once the primary paperwork has been completed and all the trial records have been compiled, the next step in the appellate process is the preparation of the opening brief. In an opening brief, your appeals attorney provides a summary of your trial, presents their argument, and requests a certain outcome.

The opening brief is expected to be submitted within 40 days of when the Notice of Designation Record on Appeal was filed. This is followed by the respondent’s brief which is filled by the opposing counsel within 30 days of the opening brief. Lastly, once the respondent’s brief is filed, the appellant is given 20 days to counter the respondent’s brief what is called the reply brief.

Oral Arguments

The next steps in the appellate process are the oral arguments, during which attorneys will be given the chance to argue their case in person and answer any lingering questions the presiding judge may have. You can expect these oral arguments to take place a few weeks after the filing of the briefs.

Contact Spolin Law P.C. About an Appeal in California

If you or a loved one plan on appealing a criminal conviction or have questions about your eligibility for an appeal or extension, don’t hesitate to reach out to Spolin Law P.C. today.

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Governor Grants Commutation for Yet Another Spolin Law Client

Published on June 3, 2021

The Firm’s Clients Have Now Been Included in 66% of All Commutation Batches Carried Out by Governor Gavin Newsom.

For the second time in a row, a Spolin Law client was included in Governor Gavin Newsom’s summer commutation batch, which occurred last Friday. The client and his family were beyond excited to learn that the client’s life-without-the-possibility-of-parole sentence had been removed by the governor. The client is now eligible to re-enter society through the parole process.

The first page of Governor Gavin Newsom's Commutation Order from this past Friday

Above Image The first page of Governor Gavin Newsom’s Commutation Order from this past Friday.

Historically, some governors have waited until the end of their terms to issue commutations and pardons. However, Governor Gavin Newsom has been issuing large batches of commutations every summer throughout his term. This has included a batch in August of 2019, June of 2020, and May of 2021. Spolin Law is proud to note that the firm’s clients have been included in the last two of these three batches issued by Governor Newsom.

In publicly announcing the commutation, Governor Newsom had the following words to say about the client:

In 1995, Omar Walker and his crime partner committed a robbery. The crime partner shot and killed the victim. On November 25, 1997, the Superior Court of California, County of Los Angeles, sentenced Mr. Walker to life without the possibility of parole for murder and three years for three counts of robbery, plus 16 years and eight months of sentence enhancements.

…. While serving a sentence with no hope of release, Mr. Walker has devoted himself to his self-improvement. Mr. Walker completed vocational training and has engaged in extensive self-help programming. He is currently assigned to the Delancey Street Honors Unit, a program that teaches job and life skills in preparation for release….

Mr. Walker participated in a serious crime that took the victim’s life. Since then, Mr. Walker has dedicated himself to his rehabilitation and becoming a productive citizen. I have carefully considered and weighed the evidence of Mr. Walker’s positive conduct in prison, the fact that he was a youthful offender, and his good prospects for successful community reentry….

This act of clemency for Mr. Walker does not minimize or forgive his conduct or the harm it caused. It does recognize the work he has done since to transform himself.

Commuting a sentence is one of the Governor’s most powerful abilities. State governors (like Governor Newsom) are able to commute sentences or pardon convicts for individuals convicted of state crimes. The President of the United States is able to commute and pardon for federal crimes.

To learn more about commutations and other types of post-conviction relief, call one of the lawyers at Spolin Law P.C. We are available at (866)-716-2805.

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What Happens If You Lose an Appeal

Published on May 22, 2021

With the recent introduction of new laws and the revision of old ones, the chances of winning a criminal appeal in the state of California have slowly been on the rise. Reaching a record 20% success rate, now is as good a time as ever to pursue appellate action and achieve the fair result you deserve.

Despite this hopeful incline, however, the reality of it is that many appeals are not granted. But losing an appeal doesn’t mean you have to give up your fight for justice. As you will see below, there are many different pathways you can take after a failed appellate petition.

Option 1) Petition for Rehearing: By petitioning for a rehearing, you are asking the court to review the appellate court’s ruling in the search for large legal irregularities such as a major misstatement of fact or error of law. If you wish to petition for a rehearing, you must do so within 15 days of the official appellate court’s decision. This is a very strict window so it is important that you act fast and enlist the help of a proper legal team.

Option 2) Petition for Review by Supreme Court: While not as common, if you lose your appeal, you do have the option to challenge the decision in hopes of taking your case to the Supreme Court. However, it is important to recognize that the Supreme Court has the authority to turn away any cases they do not want to review. Furthermore, the granting of such review is typically reserved for cases regarding legal issues that are of great importance or those that have never come before the courts.

Because an appellate court decision becomes final within 30 days of its release, the state enforces a strict 10 day deadline to submit this request for review by the Supreme Court.

Option 3) Pursue other types of Post Conviction Relief: A Writ of Habeas Corpus, for instance, is a common type of post conviction relief that is available to those who have exhausted all other appeal options, and may offer hope to someone who just received an undesired appellate decision. Furthermore, unlike the other two options, writs of habeas corpus do not come with a strict submission deadline and you have a little more leeway in terms of when you want to file.

However, before you proceed with a Writ of Habeas Corpus, you must make sure you are eligible for this type of post conviction relief. Some common grounds for such an appeal include ineffective assistance of counsel, jury misconduct, judicial misconduct, violation of due process, prison conditions that violate civil rights, or lack of speedy and public trial. Additionally, with a Writ of Habeas Corpus, new evidence may be introduced if discovered.

However, successfully arguing Habeas Corpus relief is no easy feat and it can be extremely difficult if you don’t have a strong team of appellate lawyers on your side. We recognize that this may be your last chance at relief and are prepared to treat your case with care and passion. Aaron Spolin has filled countless Writs of Habeas Corpus and has been consistently recognized for his work in this area of law. With guidance of Aaron and his experienced legal staff, fighting an unsuccessful appeal isn’t as daunting as it may seem.

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How do you find a case in the Texas Court of Appeals?

Published on May 14, 2021

In most cases, civil and criminal court proceedings are public record. Whether you are a defendant checking the status of your case, an attorney researching the details of a trial, or simply someone looking to browse, all the information you need is at the touch of your fingertips.

On March 2, Governor Greg Abbott announced that Texas would reopen 100%, effective immediately. Now, as state courts start to reopen and postponed trials are finally receiving court dates, knowing how to find cases in the Texas Court of Appeals will become an ever important skill that can help you stay up to date with the details of a case.

The first step in searching for a case is locating the docket number that has been assigned to that case. Defendants can find this number on their case documents.
Those who don’t have access to these documents can find the docket number by reaching out to the local court clerk. As long as you can provide the party’s name and the county where the case is being heard, a court clerk can quickly access the number for you.

Once you have identified the correct docket number, you can use it to search for the case on the Texas Court of Appeals’ website. To complete the search, input the number into the section titled “appellate case #” at the top of the screen and press the button that says “find my case.” The website will then prompt you to fill out a page of case information, including the county, type of offense, the filing date etc., to help narrow the search.

After you have this completed, the site will compile a list of cases that fit the criteria. Once you find your case, you will be able to click on it and find the basic details of the case such as the parties and attorneys involved as well as any important dates related to the case. Additionally, you will have access to all court materials involved in the case, including hearings, filings, decisions etc.

What are some alternative ways to search for Texas appellate cases?
While using a docket number is the easiest way to find a case, there are other ways to access such information. Many websites, like Findlaw or Justia, offer free, online access to all Texas Appellate Court decisions. When using these sites, a docket number is not required to locate a case. All you need are the names of the parties involved or the name of the county court.

You can also use case law databases to find case information. Programs like Google Scholar allow you to browse for cases by subject, location, or year.

Making use of these available resources to track down cases will allow you to stay organized and well informed on the details of a case. Doing so will ease the appellate process and may help produce a more favorable outcome.

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What does it mean to appeal a conviction?

Published on May 7, 2021

If someone is convicted in the state of Texas, they reserve the right to challenge their unfavorable conviction by filling an appeal. In doing so, they request that the decision made by the lower court be reviewed by a higher court for any errors. If the appeal is granted, the conviction may be overturned or the case may be remanded back to the trial court for further proceedings.

However, it is important to note that not all cases can be appealed. Filing an appeal does not give the petitioner the chance to simply retry their case or present new evidence. Rather, the Texas Court of Appeals was established to examine whether a legal mistake was made during the defendant’s original court proceedings that may have impacted the outcome of the trial.

When determining if such an error was made, the appellate court reviews the court reporter’s transcript (which entails a record of all oral proceedings), the clerk transcript (a collection of the trial’s exhibits, motions, documents), as well as the arguments presented by the appellate attorney.

What are the grounds for appeal in Texas?

In Texas, some of the most common and effective grounds for appeal include:

1) False arrest

When arguing “false arrest,” the defendant must prove that their arrest was unlawful and that the arresting officer did not have the authority to detain them. To do so, the defendant may point to a lack of probable cause or the absence of a Texas arrest warrant at the time of their detainment. Additionally, if their arrest was prompted by a search that violated Texas search and seizure laws, the defendant could appeal their conviction under the “false arrest” statute.

2) Improper admission or exclusion of evidence

Before a trial begins, the presiding judge holds a meeting with the attorneys to review the evidentiary exhibits and decide which pieces are going to be allowed to be used in court and which ones are to be excluded.

It is during this process that the judge can mistakenly admit a piece of evidence that should have been excluded or, in contrast, reject a piece of evidence that should be allowed to be presented in court. The improper admission or exclusion of evidence is likely to have a great impact on the verdict of the trial and hence is an advantageous ground on which to appeal a Texas criminal conviction.

3) Ineffective assistance of counsel
In some cases, the defendant’s legal counsel may be the one at fault. When one appeals on the grounds of “ineffective assistance of counsel,” they must prove that their attorney’s poor performance negatively impacted the outcome of their case, depriving them of their 6th amendment right to a fair trial.

4) Jury misconduct
In a jury trial, it is important that the jurors remain impartial and honorable. If, however, the jurors participate in any sort of illegal behavior that impacts the outcome of a case and compromises the defendant’s right to fair trial, “jury misconduct” is another strong argument on which to build an appellate defense. Some examples of jury misconduct include, a refusal to deliberate, performing outside research on the facts of the case, or the purposeful release of information that could threaten the impartiality of the jury.

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SPOLIN LAW WINS APPEAL IN COURT OF APPEAL.

Published on April 22, 2021

Spolin Law achieved justice on another case just a few days ago when the firm’s attorneys successfully overturned a prior court decision denying their client the right to petition for post conviction relief.

In 2012, the client was allegedly involved in the fatal shooting of a local man, described as a child molester. The evidence indicates that if the client was even present, he certainly was not the one to pull the trigger. Nevertheless, the client was convicted of second degree murder (Penal Code 187) later that year and sentenced with an indeterminate term of 20 years to life in prison.

The passing of Senate Bill 1437 (SB 1437) in 2018, however, offered a sliver of hope for the defendant. This piece of legislation amended the “the felony murder rule and the natural and probable consequences doctrine, . . . to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.”

In January of the next year, the client filed a petition for re-sentencing under SB 1437. However, his petition was rejected by the Superior Court. In November 2019, the court issued a 28-page written decision explaining its judgement. The lower court asserted that the client failed to satisfy his prima facie burden by failing to provide sufficient evidence to proceed with a hearing.

Defeated one again, the client reached out to the attorneys at Spolin Law. Aaron Spolin and Jeremy Cutcher were the primary attorneys involved in the appeal. In the lengthy Opening Brief and Reply Brief submitted by the firm, the attorneys argued that the court was wrong for deciding that the client failed to make a prima facie case and the court was also wrong for pre-judging the evidence without a hearing.

The California Court of Appeal sided with Spolin Law and the client, determining that the defendant did in fact meet his prima facie burden and that the Superior Court must conduct a hearing. (Please note that prior successful outcomes do not guarantee a similar result on a future case). Mr. Spolin, Mr. Cutcher, and the client himself are all excited for the upcoming hearing and is ready to fight for the justice that the client deserves.

To speak with Mr. Cutcher, Mr. Spolin, or any attorney at Spolin Law about your own case, call us at (866) 716-2805.

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What are Mitigating Circumstances?

Published on April 14, 2021

In criminal law, mitigating circumstances are factors that help to lessen the guilt of an offender and encourage the judge to be more lenient in their sentencing.

What are some examples of mitigating circumstances?

There are two types of criminal mitigation: positive mitigation and negative mitigation.

When using positive mitigation, attorneys try to paint a positive, more holistic picture of the defendant. To do so, they may speak of their devotion to family, hard work, or loyalty. This strategy uses the defendant’s positive traits to show that their illegal actions were completely out of character.

Negative mitigation on the other hand attempts to highlight any hardships or difficult circumstances that may have pushed the defendant to commit the crime. For instance, details about growing up in an abusive household or a history of mental illness are examples of mitigating circumstances that may be used to argue a lesser sentence.

Other common mitigating circumstances include:

  • The defendant having no prior or significant criminal record
  • The defendant playing a minor role in the crime
  • The defendant recognizing the error of their ways
  • The defendant making restitution to the victim of their crime
  • The defendant acting out of necessity
  • The defendant having a difficult personal history
  • The defendant struggling with a drug or alcohol addiction

How can mitigating factors impact the outcome of a case?

When determining a felony or misdemeanor sentence, judges assess these mitigating factors as well as any aggravating circumstances that arise. In contrast to mitigating circumstances, aggravating circumstances increase the defendant’s culpability and encourage heavier punishments. Some examples include a lack of remorse, a leadership role in the crime, or history of criminal behavior.

If a case’s mitigating circumstances outweigh the aggravating circumstances, the judge is likely to be less aggressive in their ruling. Therefore, outlining the mitigating circumstances behind a crime can become a vital tool when facing severe criminal charges, and in some cases could even be the difference between life and death.

Spolin Law P.C.’s success rate is based on our strong desire to win each case we handle. Call us or reach out online to learn how we can handle your  Criminal Appeal.

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Governor’s Pardons in California

Published on February 16, 2021

In California, Governor’s pardons are a type of post-conviction relief that the governor can grant to those convicted of a crime, but now demonstrate that they have been rehabilitated. A pardon relieves the individual of many, though not all, of the consequences and penalties that come with a criminal conviction.

Advantages of a California Governor’s pardon:

There are many benefits of receiving a governor’s pardon. These benefits include:

  • The right to serve on a California jury
  • Improved employment opportunities, including the right to work as a state parole officer or a county probation officer
  • California firearm rights restored
  • Relief from having to register as a sex offender (under PC 290)
  • The right to apply for a state professional license
  • The right to not have witness credibility impeached because of the conviction, and
  • A defense to deportation for lawfully present immigrants

Who is eligible to receive a California Governor’s pardon?

In order for an individual to be eligible for a pardon, their crime has to have been convicted in California, as the Governor of California is unable to grant pardons for convictions from a different state or country, or for a federal proceeding or military offense. Individuals convicted in another state must apply for a pardon in that state, while federal and military convictions can only be pardoned by the president of the United States.

Following a satisfactory period of rehabilitation, almost anyone convicted of a crime in California can apply for a pardon. The length of this period of rehabilitation depends on the crime, and can range from anywhere from seven to ten years. This period begins when the applicant finishes parole or probation,  during which the applicant must not get convicted of any serious crime. The applicant also must be able to show that they are deserving of the honor of a Governor’s pardon.

Two ways to apply for a pardon in California:

There are two ways to apply for a California Governor’s pardon. It can be done by either a Certificate of Rehabilitation or a Direct Pardon. The applicant must notify the district attorney of the county of the conviction that a pardon application has been submitted, regardless of which method they use to apply for the pardon.

Applying by a Certificate of Rehabilitation

Applicants eligible for a Certificate of Rehabilitation (COR) can apply for a pardon by petitioning for and obtaining a COR from the superior court in their county. Once the petition for COR is granted, it automatically becomes an application for a pardon, which the court must send to the Governor’s office. After this, the applicant does not need to do anything else unless contacted by the Board of Parole Hearings or the Governor’s Office. There are some cases in which applicants are not eligible for a COR, as detailed here, but where the traditional pardon procedure can be used.

Applying by a Direct Request to the Governor

A traditional (direct) pardon is open to those not eligible for a Certificate of Rehabilitation, where the applicant submits an application directly to the Governor of California’s office. This application is available through http://www.gov.ca.gov. The Governor must have a majority of the California Supreme Court recommend a grant of clemency before being able to grant a pardon application to someone with two or more felony convictions. The Governor’s Office itself will send the pardon application and all other related documents to the California Supreme Court for review.

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Criminal Appeals News – Wrongfully Convicted Frances Choy Released

Published on September 14, 2020

In 2003, 17-year-old Frances Choy was arrested in Brockton, Mass. for pouring gasoline around her home and setting a fire that killed her parents. After two trials where the jury failed to reach a verdict, in 2011 she was on murder and arson charges and sentenced to life in prison without parole. Kenneth Choy, Ms. Choy’s 16-year-old nephew, who also lived in the home, was tried on murder charges but was aquitted shortly after Ms. Choy’s first mistrial and quickly after fled to Hong Kong in 2008.

This September, Judge Linda E. Giles vacated the convictions following Ms. Choy’s lawyers’ discovery of multiple issues that occurred at her third trial, when she was indicted. In addition, Judge Giles also ruled that emails that recently emerged proved the trial prosecutors showed “racial animus” against Ms. Choy and members of her family. These emails include exchanges of images of Asian people, some with derogatory comments, ‘jokes’ about Asian stereotypes, and cartoons mocking Asian people speaking imperfect Asian. The prosecutors’ disturbing emails went even further and made jokes insinuating Ms. Choy committed incest with Kenneth Choy, who now, with new evidence, is thought to be the one who had actually set the fire and blamed Ms. Choy.

The numerous problems that occurred at Ms. Choy’s third trial are now revealed, which, in combination with the discriminatory emails, led to Judge Giles overturning the conviction. At her trial the prosecutors made Ms. Choy out to be an emotionless killer who wanted her parents’ life insurance and to spend more time with her boyfriend. Prosecutors presented Ms. Choy’s sweatpants that she was wearing after the fire as evidence from a State Police chemist, claiming the sweatpants tested positive for gasoline residue. Yet, following her conviction, Ms. Choy’s legal team hired an analytical chemist who concluded that no gasoline residue was on her sweatpants. Although Kenneth had already been suspected in setting the fire, after he testified against Ms. Choy, her attorney did not bother to call an expert witness or interview others about Kenneth’s role in the fire. The key witness, who Ms. Choy’s trial lawyer did not contact, was a friend of Kenneth’s, who later put in a sworn statement that Kenneth admitted he started the fire. The key witness said Kenneth did so out of revenge, and even bragged about being found not guilty. Prosecutors also withheld the knowledge of two other fires at the home while Ms. Choy was incarcerated.

The prosecutors involved were Karen O’Sullivan and John Bradley. O’Sullivan left the Plymouth County’s district attorney’s office years ago and now works in the Bristol County’s DA office, while Bradley was fired from the Plymouth office in 2012. While incarcerated, Ms. Choy pursued a bachelor’s degree from Boston University, and graduated magna cum laude. Her Attorney John Barter said, in a statement from People magazine, that “This may be the first case in the U.S. where a murder conviction has been thrown out because of racism on the part of prosecutors.” Her other Attorney Sharon Beckman agreed and shared, “Frances can never get back the 17 years the criminal legal system took from her, but we are overjoyed at her exoneration and hope her case will inspire meaningful reform,” according to the New York Times.

We too hope this case will lead to reform, in not just the realm of wrongful convictions, but the racism that exists that often leads to them. The racially degrading comments of the prosecutors in this case, and more subtly in many others, caused both the prosecutors and the jury to view Ms. Choy as a stereotype and disregards her humanity. Thanks to Ms. Choy’s persistence and the support and work of her attorney’s, Ms. Choy was able to achieve justice that is long overdue. With her attorneys she was able to fight back against the system, and hopefully will inspire others to do the same. We are glad to see Ms. Choy win back her life, and hope to help others do the same.

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