Archive for the ‘Trials’ category

Can You Say “Demagoguery?”

May 16, 2007

On Monday, I posted about this:

Alabama is one of the prime offenders in a U.S. civil litigation system that costs $865 billion per year, 75 percent of which is wasted, two new studies say.

The $664 billion in excess costs for civil justice amounts to a tort tax of $7,848 on a four-person household, according to a study released in March by the Pacific Research Institute.

Generous Alabama juries and relatively few caps on the cash they award helps make Alabama the 10th worst tort system in the country, said Lawrence McQuillan, the principal author of the PRI study, “Jackpot Justice.” Dollar figures weren’t available from the rating, which used a ratio of jury awards to the size of the state’s economy. . . .

The study concluded that $201 billion per year is spent on legitimate civil cases.

But the cost of the $664 billion per year in excess is lost lives and jobs, higher prices and a lower standard of living, the study said.

“Defensive medicine,” unnecessary tests ordered by doctors to avoid lawsuits, costs $124 billion, the study said. Rising health care prices leave 3.4 million people without insurance, it said.

So what makes Alabama one of the worst offenders? How is Alabama causing “defensive medicine” and high insurance costs while simultaneously driving doctors out of the state? Well, today, the Alabama Law Weekly says this:

A state-by-state examination of medical malpractice claims paid in 2006, including the District of Columbia, shows that Alabama was tied for 50th for the number of claims paid out per 1,000 active, nonfederally employed physicians. The study was conducted by the Kaiser Family Foundation.

Kaiser, a nonprofit health-policy research institute in California and Washington, D.C., reported that Alabama had a total of 41 medical malpractice claims paid, either through a judgment or settlement, and that number equated to 3.7 claims per 1,000 active, nonfederal physicians. Alabama’s number of claims per 1,000 physicians, which tied with Minnesota for the lowest figure in the nation, was well below the national average of 13.3 claims per 1,000 active, nonfederal physicians.

The Kaiser study also surveyed the claim amounts paid out last year. Alabama’s 41 claims paid resulted in a total payout of $15,867,500. That was an average payment of $387,012 per paid claim. Alabama’s average claims payment amount ranked 10th among the states, while the total dollars in paid claims amount ranked 38th nationally.

Out of who knows how many lawsuits, there were forty one total payouts. If that makes Alabama one of the leading causes of a medical malpractice crisis, I don’t think there’s much of a crisis.

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Who Needs The Confrontation Clause?

May 11, 2007

In the Tuscaloosa News this morning:

Children who have been sexually abused would not have to testify in front of the person accused of assaulting them, according to a bill that passed the Alabama House Thursday.

The bill by Rep. Cam Ward, R-Alabaster, allows children under 16-years-old to testify in sexual abuse cases on videotape outside the courtroom. The defense attorney and the prosecutor would question the child and the videotape would be shown to jurors and the defendant inside the courtroom.

The bill passed the House on a 100-0 vote and now goes to the Senate for debate. The legislation was one of the issues Attorney General Troy King listed as a priority for the session.

“There’s nothing more traumatizing in the world than a child victim who has been sexually abused to have to testify in court against his or her abuser,” Ward said. “The purpose is to protect children from having to face a person who committed a very horrible crime against them.”

I’ve already offered my thoughts on the constitutionality of this bill, so I’ll just point out that Rep. Ward must have flunked elementary logic. The point of the trial is to figure out whether the child was abused and if so whether the defendant did the abusing. Ward’s rational for the bill, though, assumes both of those things are true prior to the conclusion of the trial. That’s begging the question. He’s using as proof of his conclusion facts that have yet to be proven. I.e.: “This kid’s testimony is necessary to prove this defendant abused him. But we can’t let this kid testify because this defendant abused him.”

I suppose this is all well and good if you’re one of those folks who thinks jury trials are formalities and constitutional guarantees are technicalities (I can already hear Truman); that we just know the guy is guilty, so why bother with a trial. But if you, like me, distrust the government and want to make sure that the only people who go to jail are people who are really guilty, than you ought to be very sceptical about this bill. Like it or not, child witnesses are fallible and the constitution gives all of us the right to face our accusers.  

Alabama’s Mike Nifong

May 8, 2007

I first posted about him here. Today, the Decatur Daily has an update.

In a nut shell, back in 2005, Assistant Attorney General Don Valeska – the chief of Troy King’s violent crimes division – knowingly hid favorable evidence from the defense and then lied about it to the court. When the truth was revealed, the judge responded by dismissing the state’s case. Alacrap reversed that action, but still granted the defendant a new trial.

So now Valeska is whining that the judge is biased. Right. Here’s some of the judge’s response:

“He can lie to me personally all he wants, but I will not allow him to lie to the court,” [Morgan County Circuit Judge Glenn] Thompson stated in a response he filed with the state Court of Criminal Appeals.

Thompson explained.

“Throughout the trial of the case, the defense counsel repeatedly requested that they be given access to material collected by the Decatur Police Department and submitted to the FBI, as well as any information provided by the FBI to the Decatur Police Department. Knowing full well that his representations to the Circuit Court of Morgan County were untrue, Mr. Valeska repeatedly represented that no such material existed,” Thompson’s response states. . . .

The judge explained his position on dismissing the capital murder charges against Moore.

“This court found that the actions of Assistant Attorney General Valeska representing the state of Alabama were so egregious that the only appropriate remedy under the law and the facts was to dismiss the charges pending against the defendant.” . . .

Also, Thompson commented on Valeska’s courtroom behavior.

“He refused to turn off his cell phone and after warning, allowed his cell phone to ring in court repeatedly,” Thompson stated. “It is my recollection, although I am not certain of the exact number, that on at least six occasions Mr. Valeska’s cell phone rang in open court. This court refrained from finding him in contempt although after each session he was repeatedly warned not to allow his cell phone to ring in court.”

Thompson further stated in his response that Valeska would be treated fairly in his courtroom during Moore’s second trial.

“I can assure the Court of Criminal Appeals that Mr. Valeska, if he appears for the re-trial of Mr. Moore, has nothing to fear from this court so long as he tells the whole truth without parsing words and turns off his cell phone,” Thompson stated. “Not only will the state of Alabama get a fair trial but the defendant will also get a fair trial.”

Biased? Only against attorneys so confident in the righteousness of their position that they think they can lie, cheat, or steal in order to win a case.

So Maybe There Were Some Threats

May 2, 2007

Contra the initial reports about the militia loonies arrested last week, is this update:

The heavily armed Alabama Free Militia planned to attack a group of Hispanics in Blount County and had orders to open fire immediately if they saw the feds coming, an ATF agent said Tuesday.

Adam Nesmith of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives testified during a federal court hearing that the men had a plan to attack a group of Mexicans in the Remlap area with machine guns.

Nesmith said two of the men and a confidential informant went on a reconnaissance mission to Remlap on April 20, six days before federal, state and local law enforcement officers carried out last Thursday’s raids in four Alabama counties, confiscating truckloads of explosives, 130 grenades and 2,500 rounds of ammunition.

Nesmith said Raymond Dillard, described as the militia major, and James Ray McElroy, a private, were the two who traveled to Remlap.

Nesmith said Dillard, who had the highest rank, told the informant there were standing orders that if the militia saw the feds coming they were to open fire immediately because “they are the enemy.”

The testimony came during a hearing in which the court was trying to decide whether or not to release the men pending trial. Pre-trial release is required unless 1) the accused is a serious flight risk, or 2) the accused poses a serious threat of harm. Based on this testimony, the judge denied release on ground 2.

But so far as the news reports, these guys are only charged with conspiracy to make a firearm. So if they actually were planning on killing a bunch of Hispanics, will we see charges for that also? And if we don’t see charges, does that mean they were not really planning on it? Or just that while the government has enough evidence of the planned killing to justify denying bail, they don’t have enough evidence to prove it beyond a reasonable doubt?

And if the problem is a lack of evidence, does it bother anyone that these guys are presently sitting in jail for a crime that the government can’t prove?

Slow Blogging

April 24, 2007

For the next few days, at least. Among other pressing projects, and because my client is insane, I’m probably going to have a trial in municipal court today.

O.K., he’s not really insane. But he is being irrational. The charge is reckless endangerment, and based on what the cop said in the arrest report, the charge is almost certainly appropriate. My client, though, vigorously disputes the accuracy of the cop’s version. We have no witnesses other than my client.

What I cannot get my client to understand is that it does not matter what really happened, or what he thinks happened. What matters is what the city can prove, and they are almost definitely going to prove that my client is guilty. This is municipal court – where, by and large, – the judges consider themselves to be revenue collectors, rather than neutral decision makers. I’m not kidding. An attorney I know likes to tell a story about a case he tried in B’ham municipal court, at the end of which the judge said contemplatively: “Well, I’ve got my doubts, but I’m gonna go ahead and find her guilty.” And to make things worse, this trial will be a swearing match between my client and a cop. Oh, and my client also insists on taking the stand. I’m not absolutely opposed to letting clients testify, but when this guy starts talking, he makes me wonder if he might might have been involved in JFK’s assasination. He will be an awful witness.

I’m gonna do my best. I’ve got pictures, and a diagram, caselaw, and a good cross all ready to go. But it’s all going to be for naught. The judge will then fine him, and who knows, maybe give him some jail time because the victim was a cop.

In light of this, I think my client will be much better served by negotiating a plea. Whether he pleads or goes to trial, he’s going to be guilty. A plea, though, will result in a lesser penalty. But he insists on going to trial; he wants the judge to hear both sides of the story. I keep telling him that the judge is not going to believe him, so what he is doing is paying a big fine and some jail time for the right to tell the judge his story.

So there it is. I can tell this guy all day long that he is taking a huge risk by going to trial, but in the end the choice is his. Who knows, I may be wrong. We may get a fair hearing. My client my suddenly transform into a superb witness. I may argue like Clarence Darrow. I hope I am wrong. I will certainly do everything I can to prove myself wrong. But I’ve got a strong feeling that sometime late this afternoon I’ll be explaining the appellate process to my client.

UPDATE: Woo Hoo! Deferred prosecution. The city attorney agreed to dismiss the charge if client will do ten hours of community service and return to court in six months without having gotten into any more trouble.

Dazed And Confused

April 19, 2007

A couple of udates. 

First, for a good laugh, be sure to read the police report from B’ham City Councilman Joel Montgomery’s arrest (thanks John Archibald). Good stuff, especially Dr. No promising a female officer at the station that if she took off his handcuffs, he would “give her something good to look at.”

Whew, try not to think about that. Anyway, based on the report, we know for certain that Joel Montgomery is a jacka** when he’s drunk. But I still think he’s got a decent shot at beating the public intoxication charge. Yes, he cussed the officer and acted like a complete fool. Public intoxication, though, requires that he be a danger to himself or others, and there is nothing in the report that indicates how he was such a danger. All it contains is the officer’s conclusory statement that “Def. was clearly a danger to himself and others.” At trial, that will not do it; the arresting officer will have to produce some facts to support her conclusion.

And even if she does, the cross examination will point out: 1) police officer’s memories are not perfect; 2) reports are important to preserve what happened; 3) the report was written on the night of the incident; 4) the current testimony is several months after the incident; 5) the officer has arrested many other people in the meanwhile; 6) the new facts are not in the report.

Now the second update: Dan’s e-mail correspondence with Beth Chapman’s office about her office’s recent press release.

Amazing, really. The release, as you recall, explained that Beth Chapman opposes a recent gambling bill and thinks the Alabama Christian Coalition is apostate. In the e-mail exchange with Dan, she admits that the Secretary of State’s office would not in any way be affected by the substance of the gambling bill and that the S-o-S office has no position on the Alabama Christian Coalition. In other words, she admits that she just used the resources of the office for no reason other than the expression of her own personal opinion. Then she says this:

Secretary of State Chapman will continue to express her views on those issues that affect the people of Alabama, as do most public officials. Secretary Chapman will continue her longstanding record, during her time in public service, of maintaining her reputation for honesty, integrity, and fairness.

She may have that reputation, but if this incident is any indication of how she normally acts, she does not deserve it. Public officials, including Beth Chapman, are perfectly free to express their opinions about anything, when they are using their own time and resources to do so. On the other hand, public officials, including Beth Chapman, must only use the state’s resources for the state’s business.

What she did in that press release is no different than, for example, a city employee using a city credit card to pay for a vacation at the beach. The employee has the card for city business and that’s all it can be used for. Ditto using a press release to spout off about an issue completely irrelevant to the office of Secretary of State. The office’s resources are not there to give Beth Chapman a state-wide soap box for her own views; they are there so that she can keep us up to date on issues related to the Secretary of State’s office.

Plea Bargains Suck

April 12, 2007

Man. The one time I wanted to see Troy King in all out glory hound mode, he goes and settles the case.

A political consultant from Vestavia Hills admitted Tuesday to misdemeanor crimes that he ran a false ad during the 2006 Jefferson County Commission primary race, and he failed to register a political action committee.

Rick Spina, 48, said he pleaded guilty rather than going through the expense and trouble of fighting the charges in court. . . .

Jefferson County District Judge Katrina Ross fined Spina $2,000 on the charge of fraudulently saying he was representing a candidate in a damaging manner. She suspended a 12-month sentence.

As I explained in this post, the reason I was so giddily looking forward to a trial was that the alleged “damaging manner” was linking Jim Carns to Roy Moore:

Man I hope this goes to trial. They have to introduce evidence that linking Moore to Carns was damaging. Someone’s got to take the stand and explain that Moore is a joke. The closing argument will have to emphasize that Moore is such a well-recognized idiot that the mere association of his name with a candidate would cause that candidate to lose. This is just too awesome. I promise you I will think of some reason to be at the courthouse that day.

Oh well, I guess we all know that’s the truth anyway.