Monday, June 28, 2010

Daubert Applies to the Criminal Trial. New Jersey Limits the Effect of Eyewitness Testimony

The trial itself is Medieval garbage from the disputation method of Scholasticism, as a method of arriving at some answer to an important question. There are no validation nor even reliability data available to this essential legal methodology.

New Jersey is a leader in addressing problems with eyewitness testimony

By Emilie Lounsberry

Inquirer Staff Writer
McKinley Cromedy spent five years behind bars in New Jersey after a rape victim testified she was certain he was the one who attacked her.

Cromedy's lawyer questioned the ability of the woman, who is white, to differentiate among black men like the defendant, but the jury convicted Cromedy on the strength of the victim's memory.

DNA eventually showed he didn't do it, and the New Jersey Supreme Court responded with a bold move: It ordered trial judges across the state to instruct juries about the difficulties of cross-racial identification.

More than a decade later, New Jersey remains a leader nationally in efforts to deal with the problem of misidentification. A report filed last week with the state high court said that even more steps were needed to take advantage of the wealth of scientific studies casting light on the issue.

"New Jersey is a vanguard state," said Duquesne University law professor John T. Rago, among those working on the issue in Pennsylvania as part of an examination of the underlying causes of wrongful convictions.

Rago and others said Pennsylvania has a way to go to catch up with its neighboring state on the possible pitfalls of eyewitness testimony, which is among the most powerful evidence in criminal cases.

"There hasn't been much in the way of reform in Pennsylvania at all," said Gary Wells, a psychology professor at Iowa State University who was one of seven experts to testify before the special master who filed the New Jersey report on the issue.

A final report to the Pennsylvania Senate, due in late summer, is expected to explore eyewitness identification.

"It's not an easy issue," said Rago, who said the 51 committee members were examining scientific advancements focusing on a number of avenues of criminal investigation.

The problem with eyewitness identification has come to light because of DNA testing, the great equalizer in the criminal justice system because it helps to convict the guilty and clear the innocent.

About three-quarters of the 254 defendants exonerated nationally by DNA testing, including Cromedy, had been convicted largely on the basis of eyewitness testimony.

"It was him," the young rape victim testified in 1994, telling a jury that Cromedy had attacked her in her basement apartment near the Rutgers University campus in New Brunswick.

Thursday, June 24, 2010

Letter from Medical Directors of Pharmacy Benefit Plan to Psychiatrists

The letter outlined the data from one perspective, and failed to provide any balance about the use of neuroleptic tranquilizers in children.

Here are some problems with this advocacy.

1) Failure to disclose a conflict of interest. If these directors get bonuses based on unused funds, they profit personally from the use of generics. That should be disclosed.

2) Mass prescribing. It is not advisable to enter a theater and to yell, everyone in here is to start to take Lithium. As mass prescribing is not acceptable, mass unprescribing is too.

3) These medical directors are paper shufflers, telling experienced clinicians how to prescribe. It is not only an act of medicine, it is an act of supermedicine, bossing the doctors of the entire state.

4) Agency. These are agents of contractors that are quasi-governmental organizations. Doctors who get sued for following their suggestions should file cross claims against them, their agencies, and state officials, as individuals.

5) Golden Rule. Would providers take these medications themselves? Over 95% of providers would take second generation tranquilizers and not first generation ones. I doubt any of these medical directors would allow me to feed their dogs Haldol or Thorazine.

6) The question of the use of first generation tranquilizers is not settled. It is misleading to present as such. A counterpoint box should be included in any future communication.

Sunday, June 20, 2010

The Arrogance of the Plaintiff Expert is Exceeded by Only by Inexperience, Lack of Common Sense, and Ignorance of the Law: The 15-Minute Med Check

Dr. Douglas Mossman is a better columnist than the horrible person he replaced. I do not want him gone, as I demanded his predecessor be gone. The latter must have generated massive protests against his anti-clinician bias. Dr. Mossman, nevertheless, has a conflict of interest, which he has failed to disclosed. As the head of a forensic psychiatry service, he likely does better when litigation is needlessly churned over. If anyone learns he is testifying as a plaintiff expert, I would appreciate the information, so that I may begin to act against this clinician basher.

This column is useful. However, it should have a counterpoint section to correct its anti-clinician bias.

Dr. Mossman misleads by omission.

1) The clinician must exercise clinical judgment. There is no such thing as a 15 minute med check standard of care. The duration of a session is clinical decision based on need. Some patients need 2 minutes every 6 months. Others need 2 hours a day to prevent a catastrophe. The majority of patients get no time at all, since they do not come back after they improve. Is there a duty to hunt these down and to force a 15 minute med check on them, against their wills? No. They need a zero minute med check, and will call if they worsen again.

2) His false utterances were they to be made in testimony would have to meet the Daubert Standard or the Frye Standard for scientific expert testimony, depending on the state. The clinician should find which applies in his state. Then every utterance of the plaintiff expert should be subjected to their standards. Both are named after Supreme Court of the US cases, and are the law of the land. The federal Rules of Evidence have incorporated the Daubert standard as a statutory requirement for expert testimony.

3) That being said, there is no correlation between the extent and quality of the medical record and quality of care. The record requirement is to intimidate, and to harass the clinician. It makes the life of people like Dr. Mossman easier, as well. They can find more words to use against the innocent defendant. If I am a patient suffering from some injury or crushing chest pain or intense depression, and the doctor is documenting me, I am getting pretty angry. I am going to toss that stupid laptop and that notepad from the window. Remind the Doc, the pain is here, and it is agonizing, stop record keeping and start taking care of my suffering.

Doctors like Dr. Mossman are really enablers and collaborators of the lawyer profession oppressor, as it seeks to plunder and destroy clinical care. The personal counterattack on these disloyal experts should be pitiless.

Wednesday, June 16, 2010

Law Student Outside of Top 8 Schools Have It Really Tough

It is time to view the lawyer profession as a regulated utility product. We are overlawyered. Underlawyering has equally bad consequences. There a just right amount of lawyering, likely about 500,000 fewer than the current 1.3 million lawyers now working. Like predators, they are overly decimating our economic and safety environment.

Sunday, June 13, 2010

Wake Up, Fellow Law Professors, to the Casualties of Our Enterprise

Brian Tamanaha

It’s grim reading. The observations are raw, bitter, and filled with despair. It is easier to avert our eyes and carry on with our pursuits. But please, take a few moments and force yourself to look at Third Tier Reality, Esq. Never, Exposing the Law School Scam, Jobless Juris Doctor, Temporary Attorney: The Sweatshop Edition, and linked sites. Read the posts and the comments. These sites are proliferating, with thousands of hits.

Look past the occasional vulgarity and disgusting pictures. Don’t dismiss the posters as whiners. To a person they accept responsibility for their poor decisions. But they make a strong case that something is deeply wrong with law schools.

Their complaint is that non-elite law schools are selling a fraudulent bill of goods. Law schools advertise deceptively high rates of employment and misleading income figures. Many graduates can’t get jobs. Many graduates end up as temp attorneys working for $15 to $20 dollars an hour on two week gigs, with no benefits. The luckier graduates land jobs in government or small firms for maybe $45,000, with limited prospects for improvement. A handful of lottery winners score big firm jobs.

And for the opportunity to enter a saturated legal market with long odds against them, the tens of thousands newly minted lawyers who graduate each year from non-elite schools will have paid around $150,000 in tuition and living expenses, and given up three years of income. Many leave law school with well over $100,000 in non-dischargeable debt, obligated to pay $1,000 a month for thirty years.

This dismal situation was not created by the current recession—which merely spread the pain up the chain into the lower reaches of elite schools. This has been going on for years.

The law graduates posting on these sites know the score. They know that law schools pad their employment figures—96% employed—by counting as “employed” any job at all, legal or non-legal, including part time jobs, including unemployed graduates hired by the school as research assistants (or by excluding unemployed graduates “not currently seeking” a job, or by excluding graduates who do not supply employment information). They know that the gaudy salary numbers advertised on the career services page—“average starting salary $125,000 private full time employment”—are actually calculated based upon only about 25% of the graduating class (although you can’t easily figure this out from the information provided by the schools). They know all this because they know of too many classmates who didn’t get jobs or who got low paying jobs—the numbers don’t jibe with their first hand knowledge.

Sunday, June 13, 2010

Desuetude: A Simple Tool to Clean the Regulatory and Statutory Codes of Bad Laws

There is a procedural due process right to notice. It says, one must warn the public of a new rule or of an arrest warrant or a new law suit claim before enforcing it. Notice gives the person an opportunity to fight enforcement of this damaging decision. In the case of the criminal law, the Sixth Amendment requires one be informed of specific charges.

If a law or regulation prohibits a behavior but has not been enforced in 5 years, then it provides false notice. And false notice can be as oppressive and unconstitutional as lack of notice.

Instead of opening yet another bureaucratic office, why not enact legislation that any rule or statute not enforced for five years is repealed. A list of such laws should be drawn up at the end of each session of the state legislature, and all such laws should be repealed formally.

This simple tool reflects the opinion of officials who have not enforced the rule. The officials themselves nullify the rule by their not enforcing it.

Only West Virginia has case law supporting desuetude,

"The seminal modern case under U.S. state law is a West Virginia opinion regarding desuetude, Committee on Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992). In that case, the West Virginia Supreme Court of Appeals held that penal statutes may become void under the doctrine of desuetude if:

1. The statute proscribes only acts that are malum prohibitum and not malum in se;
2. There has been open, notorious and pervasive violation of the statute for a long period; and
3. There has been a conspicuous policy of nonenforcement of the statute.

This holding was reaffirmed in 2003 in State ex rel. Canterbury v. Blake, 584 S.E.2d 512 (W. Va. 2003)[1]"

Thursday, June 3, 2010

Traffic Court as a Bunko Operation

Inconvenience as a Law Tool

They make 100 people come at 9 AM. There is an order of appearance which the judge claims was set by the Supreme Court of New Jersey. Those with plea agreements, the prisoners in the jail, those who want a trial who are represented by attorneys, and lastly, those who want a trial and are representing themselves. This order will become clearer later. I had demanded discovery in a prior appearance, and they had sent me a videotape of the traffic stop and the notes on the ticket. They had not sent me anything about the officer. This is needed because the elements of careless driving are so subjective, the character of the accuser is material. None of that was sent. One famous careless driving charge was that against Tiger Woods recently. When I sent a second demand letter of the prosecutor, they replied by moving up my court date by 5 days. I called the clerk who absolutely refused to reschedule it to the later date. I demanded to speak to the chief judge about scheduling and the unfairness of changing it at the last minute. He refused to accept my call. The defendant is an innocent party, and the judge is too good to take a phone call after making a very disruptive schedule change.

True Aim of Traffic Court Appears to Be Revenue Raising

But sit in the back of the court at the start of the day, and within 10 minutes one understands what the place is really about. Within 10 minutes, 5 people have pled to the amended charge of unsafe driving, with $123 fine, $33 in court costs, and a $250 New Jersey state surcharge. A dozen consecutive defendants are pleading to the same charge, unsafe driving, and thanking the court. They have been let off easy, and without points. So this court is rolling along, and is making around $10,000 an hour.

Hardly Working

The judge works a half hour, and needs a break for a half hour, perhaps to avoid fatigue. He opens with the explanation that their traffic charge is a criminal charge requiring the prosecution meet the burden of proof of beyond a reasonable doubt. He will not tolerate rudeness. If your cell phone rings in court, it will be confiscated, and the owner will be put last in line for the day.

The bailiff calls out the list of names, 5 at a time. They stand in line to speak to the prosecutor. The latter is different each time, knows nothing about the charge, asks about it. Then, you got it he offers unsafe driving charge with the above fine, but no points in New Jersey. The problem for me is that unsafe driving still gets 2 points in Pennsylvania. And the sole charge without points is speeding by less than 5 mph. The prosecutor did not disclose that. I had to learn it from the practice manual of the Municipal court, which I bought used.

There is a light hearted camaraderie on the line to the prosecutor. The vast majority of people are recent immigrants with accents, and the rest are working class guidos from the area, which is in Soprano country.

Send in the Goons

I get into the office, and I tell the prosecutor that he has been stonewalling the discovery I demanded, and that mistake will change his life. He says, you are threatening me, and calls the police. I reply that asserting a legal right is not a threat and that he has libeled me to the police, now in the room, hand on pistol, yelling, sit down, and be quiet. I want to avoid the disorderly conduct charge and an arrest that day, so I comply.

Continuances to Break Innocent Defendants
Another defendant is Israeli. His police officer does not show up for a trial. The judge grants the prosecution a continuance, to return another day with the police officer. The defendant complains he has already lost a day of work, and his wife is pregnant in Israel. The judge demands he show him a ticket to Israel, proving he is going there. The defendant does not have one, but continues to argue about the burden being imposed.

Send in the Goons Again
The judge stands up, and demands he be quiet. The defendant continues to complain. Four East Brunswick police officers surround him, hands on weapons. The defendant and I get the message. There will be no trial, never. He decides to accept a plea bargain, despite his feeling he is innocent.

I accepted an unrelated charge that carries no points in Pennsylvania, and that is half the cost of the most common plea, unsafe driving. It carries no points in New Jersey but does in Pennsylvania. I accept a plea to driving 1 to 4 miles over the speed limit, the sole moving violation without points in Pennsylvania. The fine is $100, doubled in a 65 mph zone, plus $33 court costs, for a total of $233, instead of $433 for unsafe driving. The New Jersey prosecutor does not tell me Pennsylvania law. I had to find out Unsafe Driving still carries points in Pennsylvania from research of used library editions of the manuals on the New Jersey driving laws.

Rules of Conduct for Judges I run into my new Israeli friend at the pay booth. I offer to write a letter of complaint to the Judicial Review Board for the outburst by the judge. He declines, stating he still has to drive in the vicinity and does not want to be targeted.

Upon return to the court with the plea ticket, the atmosphere is completely different. The judge is calm, he apologizes for his temper outburst. There are no goons. Everything is friendly and business like.

Same goes with my plea deal.