Sunday, August 31, 2008

Presumption of Innocence

Well, I guess it's official. You are no longer assumed innocent until the state proves you guilty of a crime. You're required to prove your innocence.

Ok, I am being sarcastic. But I had a potential client call me last week. He had been summoned into General Sessions court to answer charges (felony). He went into court on the appointed date and asked for time to get a lawyer. During that process he had time to speak to the District Attorney and explained to her that he didn't do what he was accused of. In fact, he doesn't even know the complaining witness. Never heard of her, never spoke to her, never has seen her.

The District Attorney replied that it wasn't any problem. They'd give him another court date and he could come back. The witness would be there and, if he could prove he was innocent the charges would be dismissed.

Unbelievable. But that's the way the system seems to be working. It started with speeding tickets, where you might as well pay - the judge is going to accept the word of the cop and the radar gun no matter what - and now it just continues to spread into all other areas of the system. I think that your average juror believes that you are guilty - that you must have done something or the police wouldn't have arrested you.

Oh well, I guess it just makes the role of the defense attorney more important than ever. It really does make it almost impossible for a defendant to get a fair shake without hiring a lawyer.


Saturday, August 23, 2008

Doctors Say Lawsuits Are Beneficial

The New England Journal of Medicine has filed an amicus brief in the United States Supreme Court arguing that lawsuits against drug companies benefit the medical practice by getting information about harmful effects of drugs into the hands of both doctors and the public.

The case is Wyeth v. Levine. You can read the news story at

Maybe next they will see that suing doctors who commit malpractice actually improves the profession by weeding out the incompetent doctors.


Friday, August 22, 2008

Oral Argument

On Tuesday, I argued before the Ohio Second District Court of Appeals. Oral argument is one of those things that I very much love to do. This case concerned the authority granted by a power of attorney to vote certain shares of stock. I have written in this blog a lot about this case, which has been going on for three years now.

The judges were great. The questions they asked were insightful and showed that they had really done their homework. They knew the issues as well as I did, and I have lived with the case for the past three years.

While I was arguing that case, the Second District released an opinion in another case that I had briefed for Les Thompson up in Dayton. That case concerned the sale of a motor vehicle and the attempt by the creditor to collect the deficiency judgment. The Court of Appeals ruled in favor of our client and held that the creditor had failed to produce evidence of the vehicle's value and that the directed verdict we obtained at the close of their case was proper.

So, it has been a pretty good week so far. The only court appearance I have left this week is in the Morrow murder-conspiracy case over in Sumner County, Tennessee. That is just the arraignment - a five minute process here - although I plan on discussing with the District Attorney the fact that I have yet to see the electronic surveillance evidence, months after parts of it were played on Nancy Grace and other national media outlets.


Thursday, August 21, 2008

The Unfairness of Immunity

I was up in Ohio Monday to try a criminal case. The facts of this prosecution were pretty outrageous. A woman who had been a victim of domestic violence for a number of years had been charged with perjury after she recanted grand jury testimony. Of course, she recanted the testimony because he had been released from jail on a low bond (again) and continued to threaten both her and her children. The prosecutor dismissed the charges against him (even though there was some evidence other than her testimony) and filed charges against her.

One of the more outrageous aspects of this case is that the Ohio perjury statute requires two witnesses to testify that the statements made under oath were false. In this case, only two people were present during the assault, him and her. He did not testify in front of the grand jury and was never even put on the prosecution's witness list. Even if he had been - they had no second witness.

Then there is the fact that the prosecutor stated in front of the judge (at the final pre-trial two weeks ago) that he did not believe she committed perjury and that he believed her testimony before the grand jury to be true. Despite this, the prosecutor refused to dismiss the case (which under those facts should never have been filed) and the judge, when asked to dismiss the case at that point, also refused to do so.

It was only after I wrote, and my in-state counsel filed, a formal motion to dismiss containing all of this information that the prosecutor consented to dismissal.

Despite all of this, Ohio confers upon prosecutors and judges an absolute and unqualified immunity from suit for their actions. We ought to re-examine this policy. Shielding prosecutors from being held accountable for their actions is what leads to this kind of misconduct.

In any event, I am hoping the client accepts my advice to file complaints with the Ohio disciplinary counsel against the prosecutor (and perhaps the judge for another issue - an apparent ex-parte communication with the prosecutor that led to the judge making a decision adverse to the client). They are immune from suit, but perhaps the disciplinary counsel will take some action even if it is just a reprimand.


Wednesday, August 20, 2008

Interesting Potential Case

I have an interesting case coming in tomorrow morning to talk. It presented itself as a client calling to discuss being fired. As I was in the process of explaining that Tennessee is an employment at will state and that you can be fired for any reason, or no reason, so long as it was not an illegal reason, it came to light that the person was fired after the doctor she worked for accessed a pharmacy database (without her consent) and discovered that she was on certain medication.

Now, it's not a wrongful termination case, it's an invasion of privacy case in which the damages are that she lost her job and income. And the doctor would only be one defendant. The operator of the pharmacy database would be another.

It will be interesting to develop this one factually. I hope the client shows. She had an appointment last week and was a no show. I was interested enough in the case that I called her and asked her to reschedule.


Tuesday, August 12, 2008

New Civil Case

I am preparing to file another interesting civil case. This one is against Southwest Airlines. A couple of months ago, a woman flying from Florida to California had to change planes in Nashville. As she got onto the plane, she was accosted by a flight attendant who commanded her to turn her cell phone off (this began while the plane was still at the gate). She finished sending a text message to the person who was to pick her up in California and turned off the phone.

The flight attendant then wouldn't leave it alone. He continued to escalate the conversation until it turned into a confrontation. At some point, the plane pushed away from the gate. The flight attendant then told the woman that he would have her thrown off the plane (which he did). She was arrested for disorderly conduct, but the charges were retired by the District Attorney in Davidson County.

The flight attendant involved basically caused the entire problem. The woman complied with his request to turn off the phone and, when he said he didn't believe her, offered to let him examine the phone. His reply was that the plane was equipped with "laser beams" that detected that her phone was on.

The woman was later allowed on another Southwest flight to California.

As we all have heard, Southwest seems to be plagued with incidents of this type. I recall a young woman a year or so ago who was thrown off a plane because a flight attendant didn't like the way she was dressed. It seems like there was another incident, too. I will have to research that.

You would think that Southwest would do a better job of training its attendants. It will be an interesting case to try.