What is the value of a single human being?

Judgment At NurembergI was not raised to appreciate the arts. But, as an adult my appreciation for the arts has grown by leaps and bounds. Many, not all, artists have a way of saying things that catch my attention. Musicians who are great lyricists can really speak to the human condition. In their Hell Freezes Over tour, the Eagles sang The Heart Of The Matter which was about the necessity of forgiving another person. Before performing it, Don Henley said that the song “took forty-two years to write and about four minutes to sing.” A simple line like that blows me away. These moments in the arts are prevalent.

Although music ranks real high with me, my favorite art form is the movie. A preacher I really enjoy hearing had this to say about movies: As humans, we’ve moved from being an oral culture to a print culture and, in the last 30 years or so, to a visual culture. English teachers can say what they want; movies are the new storytellers. I totally agree.

There are many artists who contribute to the making of a movie. The most visible artists in movies are the actors. Spencer Tracy is one of the greatest actors in American history. My favorite roles of his are the comedic roles he played in Adam’s Rib, Father of the Bride and Father’s Little Dividend (the last two roles were later to be played brilliantly by Steve Martin in the remake of both movies).

However, he also had an amazing ability to play very serious roles as in the 1961 movie Judgment At Nuremberg. This movie tells the story of the trial of Nazi war criminals. In it is laid out all of the horror of the actions and results of the ideas that were held in such high regard by the German government. Tracy plays chief judge Dan Haywood of the tribunal. At the end of the movie he says the following:

: If…the…defendants had been degraded perverts — if all of the leaders of the Third Reich had been sadistic monsters and maniacs — then these events would have no more moral significance than an earthquake or any other natural catastrophes. But this trial has shown that under a national crisis, ordinary, even able and extraordinary men can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination. No one who has sat through this trial can ever forget them. Men steralized because of political beliefs? A mockery made of friendship and faith? The murder of children? How easily it can happen.

There are those in our own country, too, who today speak of the ‘protection’ of country. Of ’survival’. A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems, that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient — to look the other way. Only the answer to that is: ’survival as what?’ A country isn’t a rock. It’s not an extension of one’s self. It’s what it stands for. It’s what it stands for when standing for something is the most difficult!

Before the people of the world — let it now be noted that here in our decision this is what we stand for: justice, truth and the value of a single human being!

We are being told that there is a “national crisis” when it come to medical malpractice lawsuits. We are given the typical laundry list of the-sky-is-falling reasons for instituting “reforms”. We are told that if something is not done about it specifically as it relates to medical malpractice then physicians will stop practicing medicine and our young people will be discouraged from practicing medicine and go into other fields like the law (God forbid!!).

A portion of every tort reform proposal to fix the “problem” has a to do with capping the amount of money a victim can recover due to the negligence of a medical provider. The proponents of these proposals all say that they have no problem with legitimate claims being pursued and paid. All they say they want to get rid of are the “frivolous” claims. I have never been able to figure out how capping the recovery answered the issue of “frivolous” lawsuits. As far as I know, there has never been a tort reform provision excluding legitimate malpractice lawsuits from the cap. The problem is that the caps apply to ALL cases regardless of whether they are legitimate.

Dollar SignThe important thing I want to point out in this post is that most of these caps only apply to what are called “non-economic” damages. What are “non-economic” damages? Let me start by explaining what “economic” damages are. When a person is negligent and causing personal injury to someone that injured person starts to incurs “economic” damages which usually fall into a couple of categories: (1) replacement of personal property damaged in the incident, (2) bills for the treatment of physical harm they suffered from the incident and (3) any wages lost (both past and future) as a result of having to miss time from work due to the negligence of the other party. Those are easy to quantify.

“Non-economic” damages, even though harder to quantify, are no less real as “economic” damages. The Texas Civil Practices And Remedies Code defines this category of damages as “Non-economic damages” means damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages. Many of the things listed here have to do with the question I posed in the title of this blog: What is the value of a single human being?

The insidious part of tort reform is that it dictates for us what the answer to that question is. In Texas the answer our legislature has given is that a human being is not worth more than $250,000 if they should be injured by a negligent medical provider. In other states its more or less. In truly awful states like Nebraska they limit the amount of all damages, economic or non-economic. In their state, even if you could document that you have suffered well in excess of their cap, the protection of negligent medical providers is more important than a single human being.

As Spencer Tracy’s character said “under a national crisis, ordinary, even able and extraordinary men can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination.” You might think that I am way overboard in likening the tort reformers to Nazis but is it really that much of a stretch? The basic problem with those who subscribed to the Nazi worldview is that they did not value ALL human life. Tort Reformers are no different. In Texas, tort reformes do not believe the value of any human being is more than $250,000.

Now, the fight has gone federal. The proposal in front of Congress would have the same value on human life that Texas does. This is really unfortunate.

The sad part about this whole thing is that it is not even the doctors who are the main culprits in this plan. I am more than willing to allow for the very real possibility that doctors, like lawyers, do not like to have bad apples in their profession. But doctors, like lawyers, have a problem self-regulating. The best “free market” corrective to this is the tort system. If we are able to run the bad doctors out of business it is better for the community and the profession. Medical providers should be on our side on this issue.

The reason that they are not on our side on this issue is because the main culprits in the “tort reform” as it relates to medical malpractice are insurance companies who raised medical malpractice rates based on many factors OTHER THAN the payout in malpractice cases.

Insurance companies have more money to give to legislators than injured people or the people who represent them. With that sad political fact in mind, I am not at all optimistic about this issue. We all need to stand against tort reform with the words of Spencer Tracy’s character in mind: [A Nation is] what it stands for. It’s what it stands for when standing for something is the most difficult! Before the people of the world — let it now be noted that here in our decision this is what we stand for: justice, truth and the value of a single human being!

With this motto in mind we can tell our legislators and the insurance industry, we will not stand for the undervaluing of a human being. Let our juries say what the value of a human being is. Do not let a legislator beholding to their campaign contributors set that value. May God help us in accomplishing this goal.

Back At It With A Different Emphasis

Scales Of JusticeIf anyone actually follows this blog they are aware that I have not posted any new blogs for a full six months now. Much was happening in that time period that made it difficult for me to post. However, I believe that things are such that I can now resume my blogging. There will, however, be a different emphasis in my future blogs.

In the past the focus of my blogs had to do with the criminal justice system. Although that will continue to be a major concern of mine my new focus will be on the civil justice system. The main reason for this emphasis change is because the focus of my practice has shifted from trying to protect citizens from an all-powerful government to trying to protect victims from increasingly powerful corporate interests.

Old ManOver the next few months I will be winding down my criminal defense practice to make room for my new field of practice. I will be attempting to help individuals and families affected by the abuses of nursing homes. This has been an area of emphasis in our firm for several years now and I have watched from the other side of the office as they have filed lawsuits that actually change things. I was jealous that they could affect change in their area of practice when I could not do so in my area of practice. I have come to realize that the only way to affect change is by taking away the things that the people on the other side of a case hold in highest regard. For the prosecutors it is votes and for the corporations it is money.

There is nothing held in higher regard for prosecutors and judges than re-election. So the only thing they have to fear is an angry voter. The reason I am totally helpless to affect change in the criminal justice system is because being reasonable in criminal prosecutions will never be a winning campaign slogan. As long as that is the case prosecutors have no incentive to be reasonable. They never have to explain a punishment that is too harsh. In fact, there may not be such a thing in their world. They only ever have to explain what some might consider being too lenient. Prosecutors are generally concerned about a victim being mad about the result in their case. However, they are never concerned with a victim who is not wanting as much punishment as they want on a particular case. That could never hurt them in a campaign.

conscience-thumbThe only thing that ends up being a restraint on the actions of prosecutors is their own consciences. Most citizens have no idea that this is the way things work in the criminal justice system. It has been my experience that most citizens believe that justice rules in the criminal justice system. Unfortunately, politics rules. This should actually scare all of us to death. The reason it does not scare most people to death is because they believe that they will never with those people. They will never be subject to the whim of an overly aggressive prosecutor who is looking at them as a person who might cost them their job if they are reasonable with them.

On the other hand, the possibility of affecting changes in the civil justice system of the docket is much greater because what rules in this area of the law is money. If you take enough of it away from the offenders they will change their actions. It is easier to take money away from offenders on the civil docket than it is to take votes away from an overly aggressive prosecutor.

Dollar SignIt is well known in our office that a particular nursing home has actually changed their practices as a result of multiple lawsuits and settlements that our office has been able to recover on behalf of residents of that nursing home chain. This has been confirmed in off-the-record conversations with the attorney for that chain. I believe we have only one remaining case with them and we do not anticipate having any in the future.

Filing lawsuits against abusive people and corporations makes a difference. However, this option has been under attack for at least the last decade in the form of “Tort Reform”. Limiting the availability of this option would make the corporations as immune to change as prosecutors are now. I do not believe we really want to live in a society that cherishes profits over people.

George Bush used to say “the business of America is business”. I reject that. That idea was never mentioned in any of the letters of the initial immigrants from Europe. They were seeking a country in which they could raise a good, moral people who would keep the two great commandments of loving God and their neighbor. This language is never used in modern political campaigns. I long for the day that it is . It was not that long ago when politicians used to speak of bigger issues than profits. In a 1968 speech given at the University of Kansas Robert F. Kennedy said

But even if we act to erase material poverty, there is another greater task, it is to confront the poverty of satisfaction – purpose and dignity – that afflicts us all. Too much and for too long, we seemed to have surrendered personal excellence and community values in the mere accumulation of material things. Our Gross National Product, now, is over $800 billion dollars a year, but that Gross National Product – if we judge the United States of America by that – that Gross National Product counts air pollution and cigarette advertising, and ambulances to clear our highways of carnage. It counts special locks for our doors and the jails for the people who break them. It counts the destruction of the redwood and the loss of our natural wonder in chaotic sprawl. It counts napalm and counts nuclear warheads and armored cars for the police to fight the riots in our cities. It counts Whitman’s rifle and Speck’s knife, and the television programs which glorify violence in order to sell toys to our children. Yet the gross national product does not allow for the health of our children, the quality of their education or the joy of their play. It does not include the beauty of our poetry or the strength of our marriages, the intelligence of our public debate or the integrity of our public officials. It measures neither our wit nor our courage, neither our wisdom nor our learning, neither our compassion nor our devotion to our country, it measures everything in short, except that which makes life worthwhile. And it can tell us everything about America except why we are proud that we are Americans. (emphasis added)(use this link to read the complete speech, which I highly recommend)

George BushRobert Kennedy

The difference between this quote and George Bush’s is one of the reasons I look forward to practicing in this area of the law. It emphasizes the development of moral character than in the developmenl of markets. It emphasizes the pursuit of the good, the beautiful and the true instead of the bottom line. In short it emphasizes people over profits. This is the emphasis of the new area of practice into which I am now heading.

The exciting thing is that, as it now stands, we can affect change in the area of nursing home abuse because we can get their attention by suing them when they adopt the profits-over-people attitude. When we take enough of their profits they will realize that the profits-over-people is not profitable for them and they will change their corporate attitudes and actions. That will inevitably lead to better treatment for our elderly and a better America.

However, if corporate America has its way this will not be the case much longer. Powerful corporate interests are driving the tort reform “movement” in this country. They need to be stopped and I will be talking about that in more detail in future blogs.

2011 Can Be The Year Change Begins In Texas

Exonerations in Texas continue to happen here in 2011. I have no doubt that they will continue to happen not only throughout this year but also for decades to come. Why do I keep harping on these exonerations? Is it not enough already? Get over it J.T.

Here is why I continue to focus on these cases: the frequency with which these cases are being uncovered has a tendency to make us lose interest. There are no doubt thousands of cases in which people are serving sentences for crimes they did not commit. I do not know how people can be so callous and disinterested about this issue. I can understand how those who are keeping these people locked up(prosecutors, trial court judges, appellate judges, police officers) do not care. But the rest of us should. This really could happen to any of us.

Another reason why I continue to focus on these cases is that these are real people whose lives were really destroyed by the system. I have included a video made by Texas Monthly magazine in 2008. I thought that seeing them in video form instead of a still photo might help drive home the point of their realness.

The last and maybe the most important reason for me to bring it up now is that the Texas legislature is in session and they can do something about these problems. The Timothy Cole Advisory Panel On Wrongful Convictions has issued a report with recommended changes. These recommendations are a start. We in the criminal defense field believe that there are more changes that have to be made than just the ones this panel recommended. But, after years of fighting for any change we would be happy to get these.

Here are the changes the Panel suggested:

Eyewitness Identification Procedures:

1. Require Bill Blackwood Law Enforcement Management Institute of Texas (LEMIT) to work with scientific experts in eyewitness memory research and law enforcement agencies to develop, adopt, disseminate to all law enforcement agencies, and annually review a model policy and training materials regarding the administration of photo and live lineups. That model policy should comport with science in the areas of cautionary instructions, filler selection, double-blind administration, documentation of identification procedures, and other procedures or best practices supported by credible research.

2. Require all law enforcement agencies to adopt eyewitness identification procedures that comply with the model policy promulgated by LEMIT.

3. Integrate training on eyewitness identification procedures into the required curricula of the LEMIT and the Texas Commission on Law Enforcement Standards and Education (TCLEOSE).

4. Permit evidence of compliance or noncompliance with the model policy to be admissible in court.

5. Allow law enforcement agencies discretion on the adoption of sequential procedures.

Recording Custodial Interrogations:

6. Adopt a mandatory electronic recording policy, from delivery of Miranda warnings to the end, for custodial interrogations in certain felony crimes. The policy should include a list of exceptions to recording and the judicial discretion to issue a jury instruction in the case of an unexcused failure to record.

Discovery Procedures:

7. Adopt a discovery policy that is mandatory, automatic, and reciprocal, and requires either electronic access to or photocopies of materials subject to discovery.

Post-Conviction Proceedings:

8. Amend the Chapter 64 motion for post-conviction DNA testing to allow testing of any previously untested biological evidence, regardless of the reason the evidence was not previously tested, or evidence previously tested using older, less accurate methods.

9. Amend the Chapter 11 writs of habeas corpus to include a writ based on changing scientific evidence.

Innocence Commission:

10. Formalize the current work of the innocence projects that receive state funding to provide further detail in the projects’ annual reports and distribute those reports to the Governor, Lieutenant Governor, Speaker of the House, and Chairs of the Senate Jurisprudence, House Corrections, House Criminal Jurisprudence and Senate Criminal Justice Committees. Report input should be solicited from other innocence projects, interested bar associations, judicial entities, law enforcement agencies, prosecutor associations, and advocacy organizations.

11. Provide an FTE for the Task Force using the current appropriation or other grant funding to administer these responsibilities, and contracts between the innocence projects and the Task Force on Indigent Defense should be amended to reflect the new administrator and additional responsibilities.

These changes will not take place unless the legislature moves on these recommendations. If you do not think this could possibly affect you watch this video to see that there is no exempt segment of our society:

Now, go do something about it. Call your State Representative and State Senator and insist that they vote for the changes recommended by the Timothy Cole Advisory Panel On Wrongful Convictions.

Legal Story Of The Year in Denton County

Denton County CourthouseJust like in 2009, 2010 has been quite a year in the Denton County legal community. There are a couple candidates for Legal Story Of The Year (LSOTY).

Bruce Isaacks

Bruce Isaacks

An early strong contender was the possible prosecution of our former District Attorney, Bruce Isaacks, for aggravated perjury. This arose out of last year’s LSOTY which was a murder trial in which the defendant, former Denton City Police Officer Bobby Lozano, was convicted of killing his wife. During the trial, Bruce took the stand and testified about the existence of some report by a medical examiner about the homicide being a suicide or accident. A special prosecutor was appointed, a case was presented to the Denton County Grand Jury and a no-bill was issued. So that ended this story’s possibility for the 2010 LSOTY.

But the LSOTY for 2010 in the Denton County legal community has to have been the same as it was for the whole country: the election. As the Tea Partiers were heavily influencing many races throughout the country they did not need to focus their attention on Denton county. Denton County can be counted on, at this time, to be a faithful, conservative, Republican, pro-business (read pro-tort reform), anti-consumer (read pro-tort reform), law-and-order county. We are as sure a Republican stronghold as any county in the country. No conservative resources need to be dedicated to our county. The Democratic party in Denton county has to be as weak as any in the country. This may change in the next decade or so as we continue to experience rapid growth. With that growth comes those “other” people. You know, minorities, liberals, pro-consumer types. But for now the Republicans are safe here.

In spite of all of that the election season in Denton was anything but boring. In Denton County any election excitement happens at the time of the primary election season instead of the general election season since we are a one party county. We had two races in which serious challenges were made. One of them was successful and the other one was not.

Challenger Brent Bowen

Brent Bowen

The failed attempt was put on by Mr. Brent Bowen as he challenged our sitting District Attorney Paul Johnson. Both of these guys are friends of mine so I just watched from the sideline to see how the candidates responded to each other’s allegations. Brent’s campaign themes were that Paul lacked the leadership skills necessary to run an office of this size and that he was soft on crime. He pointed how the alleged racially discriminatory actions on the part of some prosecutors was not punished in any real way and then sent out some campaign literature identifying some cases in which Paul’s office gave out “light” sentences or refused to prosecute. One thing Brent did not do was raise the issue of the apparent reluctance on the part of Paul to seek the death penalty in any case, no matter what the facts.

Denton County District Attorney Paul Johnson

Paul Johnson

I know Paul was concerned about this election but it turned out that he did not need to be. He won the election by over 7000 votes in an election in which a little over 32,000 votes were cast. By political standards it was a landslide. I will not disclose how I voted because of the friendships involved. I hated to be forced to choose.

What will be interesting to see is whether Paul follows through on a campaign promise from his first campaign to only seek two terms as the Denton County District Attorney. That’s a strong candidate for LSOTY for 2014. Who will run for Denton County DA in 2014 will be interesting. I am sure there are quite a few Assistant DAs who would be interested.

Steve Burgess

Steve Burgess

The successful challenger was Mr. Steve Burgess who defeated the incumbent judge of the 158th Judicial District court of Denton County, the honorable Jake Collier. Again, both of them are friends so I also sat back and watched, listened and read the material mailed out on a pretty regular basis. There was also a third candidate for the seat but he did not put up much of a fight. There were rumors that he only put his name in the hat hoping to force a runoff election. The thinking was that the incumbent would have a better chance of winning in a runoff than in a straight primary. There was some credence given to this idea considering the third candidate had been know to be a real good friend of Judge Collier. Even more credence was given to it considering the lack of campaigning done by the third candidate.

Steve’s campaign strategy seemed to be to contrast him and Judge Collier as a contest between the Christians and the pagans. I do not remember him saying anything directly about Jake’s religious beliefs but the insinuation was there. In most of the material sent out Steve emphasized his being a Christian. He would contrast that with Judge Collier’s well-earned reputation as our cussing judge.

Judge Collier

Judge Collier

Judge Collier’s time on the bench has been sprinkled with colorful language that would be shocking for many who were not used to it. If I saw an attorney in Judge Collier’s court during his Friday docket who seemed to be new I would sometimes warn them about what they and their clients could expect. This was especially true if they had a young male client who was going to be entering a guilty plea.

There was one thing in particular that Judge Collier loved to do that was quite shocking for young offenders. I do believe that Judge Collier was well-intentioned when he would pull out a newspaper article from his draw up on the bench and ask the defendant to read it. The headline was “Texas Prisons Lead Nation In Rape Incidents” or something like that. Unfortunately, it still seems to be the case. You can imagine the impact this left on the young male defendants. Judge Collier said he did not want to see them back in his court and I am willing to bet that many of them never showed up in his court again because of that “teaching moment.”

This conduct, along with other things said by Judge Collier on the bench, gave Steve an opportunity to seize on this aspect of Jake’s judicial conduct and it worked. Jake’s campaign literature did not seem to help the situation. His campaign literature reflected his personality and it was very aggressive in attacking Steve in his work and his failings.

I know Jake took the defeat pretty hard and I felt sorry for him. There were alot of reasons Jake needed to win but it was not meant to be. I know that Jake loved being a judge and I believe he will be offering his services as a visiting judge whenever judges take vacations or go to seminars. I have tried quite a few cases in front of Judge Collier and they were not all pleasant experiences. This was mainly due to the accusations against my client and what was at stake. In those situations, things tend to get heated. But at the end of those weeks Judge Collier and I still were friends and I hope that we will continue to be. I wish him the best and, who knows, I may end up in front of him again as a visiting judge. I would expect that we would have the same respect for each other at the end of those cases as we do now.

I also wish Steve Burgess the best. I have known Steve since I came to town in January of 1996. He is a very nice man and I think he will be a judge who will try to get it right and do the right thing in every case.

Another interesting year in the Denton county legal community. I look forward to seeing what transpires this next year and see what story emerges as the LSOTY for 2011. I think we have quite a few strong candidates so we will just sit back and see what happens.

Until then, I wish everyone a Happy New Year.

Another Murder By The State Of Texas?

Official Gubernatorial Portrait Of Governor George W. Bush

Official Gubernatorial Portrait Of Governor George W. Bush

In February 2000 then Governor George W. Bush was on Meet The Press and was asked by the late Tim Russert about the application of the death penalty. He responded by saying “I’m confident that every person that has been put to death in Texas under my watch has been guilty of the crime charged.” Of course, confidence is preeminently important is our culture. But, confidence does not necessarily mean that you are right.

It is becoming clearer and clearer that the idea that Texas has never wrongly executed someone is simply a Republican delusional idea. Anyone looking at the evidence without bias will come to the conclusion that in all probability we have killed people for crimes we were unable to prove beyond a reasonable doubt.

Claude Jones is the latest case in which it appears that the State of Texas is guilty of murder. Here is the Innocence Project’s overview of the case.

Claude JonesIn November 1989, Allen Hilzendager was shot to death while working at a liquor store in San Jacinto County, Texas. Claude Jones was arrested for the crime with two co-defendants, Timothy Mark Jordan and Kerry Dixon.

A father and his 14-year-old daughter who were working on a car across the street were the only witnesses to the crime, and neither were able identify the perpetrators. At trial and later on appeal, the key evidence against Jones was a small hair sample that was found on the counter near the victim’s body. A chemist for the state, Stephen Robertson, initially claimed that the sample was too small for testing, but at trial Robertson testified that the hair could only belong to Jones, and not to Dixon, the victim or the 12 other people tested. When asked in a separate civil lawsuit why he changed his mind and decided that he could analyze the sample, Robertson said he did not know.

An independent hair analyst subsequently concluded that the sample was in fact too small for proper analysis. The only other evidence linking Jones to the crime was the testimony of co-defendant Jordan. Under Texas law, the testimony of an accomplice alone is insufficient to prove guilt. At trial, Jordan testified that Jones confessed to him that he had committed the murder. This however differed from his grand jury testimony where he testified that Dixon told him that Jones was the one who shot Hilzendager. Jordan later signed an affidavit saying that Jones didn’t confess to him but that he was pressured to say so by the police who threatened him with the death penalty. In exchange for his testimony, Jordan was allowed to plead to a lesser charge and received a 10 year sentence. Dixon was convicted of aggravated robbery in connection with the murder and is serving a life sentence.

In 2007, Mayer Brown LLP, on behalf of The Texas Observer, the Innocence Project, the Innocence Project of Texas and the Texas Innocence Network, asked the San Jacinto County District Attorney’s office and local officials to consent to DNA testing and preserve the evidence while considering the request. After the request was denied, the group of organizations filed a lawsuit requesting DNA testing on the evidence. A Texas judge ordered the tests in June 2010, and in November 2010 the results proved that the hair was not from Claude Jones.

What is interesting about this case is that this was the last man executed under George Bush’s watch.

San Jacinto County DA Bill Burnett Researching How He Can Destroy That Hair

Is San Jacinto County DA Bill Burnett researching how he can destroy that pesky little hair?

According to a Time magazine article “San Jacinto County district attorney Bill Burnett, a former probation officer whose lawyer describes him as ‘a very capable prosecutor but a simple guy in his philosophy of things,’ says that under Texas law, only the defendant himself can ask for a new DNA test. ‘Once the defendant has been executed, I can do nothing more in the case,’ he said in a deposition. He plans to destroy the hair as soon as he’s legally permitted to, closing the book on the only death sentence his small county has ever handed down. Both sides expect a ruling soon.” (emphasis added)

It is the law of the land in the state of Texas that “[i]t shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” (Texas Code Of Criminal Procedure 2.01)(emphasis added)

It sounds to me that the District Attorney responsible for this potential murder is wanting everything that could possibly point to his culpability in the murder to go away. The sad fact is that he is not alone.

Many people point at Dallas County, Texas as a cesspool of corruption because of all of the men who have been declared innocent of the crimes they were convicted of in Dallas. All of that may be true but, I would argue, Dallas is not worse than any other county. In fact, I would go on to argue that Dallas is actually better than any other county because they preserved the evidence which made it possible for the freeing of these men. How many more would be free if people who think like Bill Burnett would not have destroyed the evidence that could set them free.

Here is a suggestion that we pass a law not allowing the destruction of evidence in capital cases, EVER, so that we, as a society, can learn from our mistakes. The Bill Burnett’s of the world do not want to acknowledge their faults or the faults with the system. We need to admit that the system is flawed and we need to fix the flaws. If we continue to destroy evidence in these types of cases we will never learn and we will continue to allow our state to murder people.

This seems to me to be such a fundamental issue of justice that everyone, Republican, Libertarian, Democrat, conservative and liberal, would agree. The problem is that too many police departments, prosecutors, judges and appellate judges have a vested interest in us not finding out these things. There will be an incredible amount of embarrassment if we were ever able to open that can of worms. The embarrassment will be for different reasons. Some will be embarrassed because of their evil intentions being uncovered. Other will be embarrassed for their incompetence in offering evidence, admitting evidence or approving of the admission of that evidence. These three offenders (the offerers, the admitters and the approvers) generally come from the same source, District Attorney offices. Some of actions of police departments, prosecutors and judges may be so egregious that criminal prosecution would be reasonable.

We as a society should care more that our system of justice is just than for the personal embarrassment of some professionals. We can only pray that someday this will happen. I hope it is in my lifetime.

Healthcare In The News

USA TodayUSA Today has joined in on calling for better care for patients in hospitals. The article asks the questions why there is no outrage at the epidemic of deaths in American hospitals. It then states an interesting analogy. The article asks what would be the level of outrage if an airplane crashed every day killing 500 people each time. And yet, there is no such outrage at the equivalent number of people dying each day in our hospitals due to preventable accidents.

Obviously, patients who die one-by-one don’t attract attention the way a fiery air crash does, and the problem isn’t new. A 1999 report by the Institute of Medicine estimated that as many as 98,000 people a year died in hospitals from medical errors. Now, 11 years later, a new survey from the inspector general of the Department of Health and Human Services finds that about 1 in every 7 Medicare patients in hospitals suffers a serious medical mishap.

The report says these adverse events contribute to the deaths of an estimated 180,000 patients a year. Of those, roughly 80,000 are caused by errors that could be caught and prevented, such as letting infections develop, giving the patient the wrong medication or administering an excess dose of the right drug. Aside from the human toll, the extra medical care required to correct for these mistakes costs taxpayers more than $4 billion a year.

Although I like a lot of what this article says I do find it very disturbing that they seemed to be more focused on the economic cost to taxpayers of these deaths as opposed to the cost to individuals, their families and their friends. We have lost our way as a a people when we are more concerned about economics than we are people. But this is the state of the situation. Tort reform is nothing more than an attempt to limit the economic consequences of the negligence of corporations and individuals. Whenever you see the term “tort reform” you need to read “limit the economic damage to the one causing the harm.”

We, as a society, have apparently decided that, for the moment, we are more concerned with profits than we are with people. Until there is an attitudinal change in the society which then percolates up to the legislatures we will continue to make decisions simply based on the value of the business in the community against the value of the person hurt, injured, maimed or killed.

USA Today’s proposals for addressing the problem are good as far as they go. But they do not go far enough. Here are ways they suggest the issue should be addressed:

Checklists. No airline pilot would dream of taking off without using a checklist, and increasingly, medical personnel are being encouraged to use them, too. Studies show that forcing surgeons and nurses to follow simple steps they sometimes skip —donning sterile gowns before inserting a “central line,” for example — can dramatically lower infection rates and save lives.

Transparency. Until recently there was little beyond word of mouth to help people decide which hospital they wanted to go to. Now, the government runs an increasingly robust Hospital Compare website to allow patients to evaluate their local hospitals. (USA TODAY.com and HealthGrades.com also carry comparisons.) There’s nothing like pressure from consumers and competitors to force a business to do better.

Financial incentives. Medicare won’t pay for the extra care required to treat patients whose conditions worsen as a result of hospital-acquired conditions that are “reasonably preventable,” such as giving a patient a transfusion of the wrong blood type. And the new health law penalizes hospitals with the worst error rates. In both cases, the principle is the same: Hospitals shouldn’t profit from failure.

Just a few thoughts on these three options:

(1) There’s nothing like pressure from consumers and competitors to force a business to do better. Maybe that is true but an even better motivator is the avoidance of a lawsuit that may put you out of business altogether.

(2) Medicare won’t pay for the extra care required to treat patients whose conditions worsen as a result of hospital-acquired conditions that are “reasonably preventable,…. What will it take for the hospital to provide the services for which they are not being paid? A lawsuit? How long will that take? Will the patient die from the negligence before they can get the necessary care to fix the problem? Will Medicare refuse to pay an innocent provider who is trying to fix the problem caused by the negligent provider?

Here is what I and thousands of other people suggest: Stop Tort Reform. Instead, hold corporations and individuals responsible for their mistakes, error, negligence, bad act or whatever you want to call them. Do we really want bad doctors, bad truck drivers, bad house builders, bad pharmacies, bad drivers, bad ____________ (you fill in the blank) operating in our communities wreaking havoc on our families?

I know that the majority of the Democratic party is on board with these sentiments. But, what about the alleged “family values” party? Where are they on this issue? They are wanting to extend tort reform in all the states and, to make sure they get those rebel states in line, they are attempting tort reform at the federal level preempting any state laws which would require taking full responsibility for harm they have caused. In the health care debate, the biggest issue that Republicans insisted be in the final bill was tort reform. It really is disgusting.Democrat DonkeyRepublican Elephant

Do We Really Deserve This Government?

Your next Republican ticket?

Your next Republican ticket?

Now that Rick Perry has been elected, AGAIN, to be the next Governor of Texas he will be moving on to bigger things. He starts a book tour right after his book Fed Up! comes out on November 15, 2010. He claims that this book tour is about states’ rights and not about him or his future. Yea right. He is doing the same thing many presidential hopefuls have done in the past. How many candidates for the Presidency have written a book in the last several years?

As for the business of Texas, Perry stated in his acceptance speech last night that “[w]e need to be ready to make tough decisions without raising taxes.” I am wondering why we, in Texas, need to make tough decisions. Hasn’t Perry been in office for the past ten years? If so, then surely the state of our state’s finances are in good shape, right? If our finances are in such good shape, then why would we have to make tough choices? Why would there even be a need for Perry to say that these tough choices would be made without affecting taxes in this state? None of that make sense unless, of course, things have not gone so well, financially under Perry’s watch.

The fact is that we in Texas have a huge budget problem and the person (Perry) and the party (Republican) most directly responsible for it was elected last night by a wide margin. Perry and the Republicans go around talking like fiscal conservatives but their actions never seem to match their words. This man and his party are frauds and Texas continue to buy what they is selling to our own hurt.

The religious community in which I was raised and still live buys the Republican line without ever requiring them to come through on the issues they say interest them most. I guess a people get the government they deserve but it sure is a shame for those who are not buying the fraud to have to be harmed in the process.

Unless something changes, it is very likely that there will be Draconian legislation passed by the new Texas House that will absolutely remove the possibility of legal action on the part of families who have been devastated by the negligence of companies and individuals. Nursing homes, oil companies, trucking companies, bad doctors and many other industries will be allowed to make as much money as they want with little to no liability for killing, maiming or harming people in their pursuit for more and more profits. The theme of the day is profits over people and apparently the majority of the people of Texas are in favor of it. That is, until they are the one’s who have been affected by these new laws.

Many of these same conservative, religious-right voters will come to offices like mine and demand justice for the harm done to them by corporations. We will have the unenviable task of informing them that the life which they have lost is not that valuable in the eyes of our government. They cannot have justice because, as George Bush said to a gathering of Assistant Attorney Generals, “the business of America is business.” Am I the only one who is offended by George Bush sending this crystal clear signal to the people who are responsible for prosecuting bad business acts. He was telling them to keep their hands off the business community regardless of their actions.

This is immoral, it is the mantra of the Republican party and its a shame that we seem to be so desperate for jobs that we are willing to turn a blind eye to the damage being done to our families. Here is where we are and, apparently, what we are willing to accept:

Keep Us Rich

Maybe after a couple years of this the electorate will recover its moral compass and realize that this is not the type of government we want. For the sakes of our families I can only hope and pray this happens.

Let’s Get Rid Of Governor Perry, Today!!!

There are so many reasons for us to vote Rick Perry out of office but, for me, here is one of the main reasons we need to do it.

Here is a link where you can watch the complete program of Cameron Todd Willingham’s murder by the State of Texas.

The “science” that was allowed into the trial that lead to Mr. Willingham’s execution is reprehensible. Unless we finally get judges who are willing to look at the state and tell that that this type of “evidence” is not acceptable we will continue to convict, sentence and execute innocent people. The problem is that most of the judges are ex-prosecutors and they have offered the same type of evidence in cases that have no doubt about. WAKE UP FOLKS!!! THE FOX IS GUARDING THE HENHOUSE!!!

Our governor defends Mr. Willingham’s execution not by pointing to the facts of the case but by reminding a person of Mr. Willingham’s last words directed to his ex-wife who lied about him confessing his guilt to her. Our governor does not really want anyone to know about this case. Nor does he want his actions held up to scrutiny. He is doing everything he can to make this case go away and it just won’t.

I hope that at the end of today he will be headed to the private sector. But I do not think the citizens of Texas really care about having a just justice system. All they care about is making sure that “those people” are put away and killed if at all possible. Once that happens they do not want to reconsider whether an injustice was done.

Watch and think about whether you are proud of our Governor’s actions in this case. If you are proud of him then there is nothing I can do for you except pray that you develop a consience. If you are not proud of him then go vote him out today.

How Pure Are The Motives Of The Institute For Legal Reform?

ILR Logo“The U.S. Chamber Institute for Legal Reform (ILR) is a national campaign, representing the nation’s business community, with the critical mission of making America’s legal system simpler, fairer and faster for everyone.”

This is part of the purpose statement of the ILR. But do they really want “America’s legal system simpler, fairer and faster for everyone”? One of the stated “aims” of the ILR is “to… enact common sense reforms to ensure fairness in liability suits ensure damage awards are fair and equitable, eliminate frivolous lawsuits, and enforce legal ethics rules”.

How does limiting the amount of non-economic damages “ensure damage awards are fair and equitable”? It doesn’t. What it does is ensure that if a corporation or medical providers kills someone their exposure is limited. Why would this group be interested in this? If you look at their Board Of Directors you might start getting an answer to that question.

Here is a partial list of the ILR Board as of 2010:

James B. Buda
Vice President and General Counsel
Caterpillar, Inc.

Nicholas E. Calio
Senior Vice President for Global Government Aff airs

Brackett B. Denniston
Senior Vice President and General Counsel

Russell C. Deyo
Vice President and General Counsel
Johnson & Johnson

Dwight H. Evans
Executive Vice President
Southern Power Company

Thomas D. Hyde
Executive Vice President, Legal Ethics and Corporate

Peter M. Kreindler
Senior Vice President and General Council
Honeywell International, Inc.

Connie Lewis-Lensing
Vice President of Litigation

Michael Maves
American Medical Association

Michael J. McLaughlin
Senior Vice President and General Counsel
New York Mutual Insurance Company

Robert S. Osborne
Vice President and General Counsel
General Motors Corporation

Edward B. Rust
Chairman and CEO
State Farm Mutual

Laura J. Schumacher
Executive Vice President, General Counsel and
Abbott Laboratories

Mary H. Terzino
Assistant General Counsel
Dow Chemical, Co.

Kim M. Brunner
Chief Legal Officer,
Executive Vice President and
State Farm Mutual

Patricia Hatler
Executive Vice President, Chief Legal Offi cer and
Governance Officer
Nationwide Mutual Insurance Company

There you have it. A Who’s Who of the insurance industry, chemical industry, doctors and major corporations. These people only have one thing in mind “Profits over People”. One way to maximize profits is to try to make the litigation process more predictable. If there were no limits to non-economic damages then that would be too unpredicatable. It is much easier to do a cost-benefit analysis on a cost of increasing the safety of a product or service with the limits than without.

They have set out to change the justice system to fit their agenda and they are doing a great job of it. They have many politicians in their back pocket. These politicians are the ones who are pushing for tort reform in every state and in Washington D.C. If they have their way the access to the courts by people killed, maimed and injured by these industries will be all but gone.

Vote ButtonDo something about it. Find out whether the candidates are in favor of limiting access to the courts and if they are vote agains them. The ILR’s agenda is cynister and we need to do what we can to stop it. The easiest way is to get representatives at the state and federal levels who are willing to stand up to them.

That can begin in this election. Do your part. Save our justice system from organizations like the ILR.

Do We Really Need More Tort Reform?

20081009_zaf_a27_012.jpgAccording to Governor Perry, the answer is “Yes”. The ridiculous reform that he pushed through in 2003 apparently are not enough for his friends in the business and medical communities. He announced his tort reform agenda on the campaign trail. Apparently, Governor Perry will be advocating for a very popular idea called “loser pays”. If this were to become the law then anyone who lost a lawsuit would have to pay the other side’s legal bills. The thinking is that people will think twice about whether to file a lawsuit. Maybe. But the most likely result would be many legitimate claims not being filed for fear that a jury will not come down on their side.

Many legitimate medical malpractice lawsuits are turned away on a daily basis in the offices of trial attorneys all around the state of Texas due to the reforms of 2003. Why? Because there is no money to be made with those lawsuits. Yes, they are all legitimate lawsuits and Yes there would probably be a recovery. But the time and up front money an attorney has to put into those cases make them not worht it.

This is exactly what medical providers wanted and they are gleeful with the results. Now other businesses want the same relief from responsibility that medical providers have enjoyed for the last seven years.

During this time of the political calendar the Tort Reform Chicken Littles of the world come out an sing their blues version of “The Sky Is Falling”. This comes as no surprise because they have been doing this for years now. Whatever reforms are passed through the Texas Legislature never seems to be enough. One of the groups in the front row of the choir is Institute For Legal Reform (ILR). This organization was started by the United States Chamber Of Commerce in 1998. Its first stated “Aim” is to “neutralize plaintiff trial lawyers’ excessive influence over the legal and political systems.”

Exactly how does one do that? Take away a person’s right to a jury trial and you “neutralize plaintiff trial lawyers’ excessive influence over the legal…system[]” Without access to the courts there is no need for plaintiff lawyers. This group, along with other well-funded groups, have set about to do just this: limit the access to the courts by people and families who have been harmed by the, sometimes willful, neglect of corporations.

Dow Chemical LogoIt should not go without mentioning that the president of the ILR is a former Vice President of federal and state government affairs for the Dow Chemical Company.” Now, does a chemical company have a vested interest in making sure that people they hurt, maim and kill cannot present their case to a jury of American citizens to determine whether they should be held responsible for putting products on the market that they know, or should know, will harm people. This is who is the President of this organization!!!

You do remember Dow don’t you? Do you know how many different times their products have hurt, maimed and killed people? They were the biggest defendants in the breast implant litigation. They are the makers of Agent Orange which caused so many problems for our brave young men who fought in Vietnam.

One of the most amazing acquisitions of Dow has to be Union Carbide. They bought Union Carbide in 2001. What makes the acquisition so amazing is that at the time they not only took their assets but also their liabilities which included all liabilities for the Bhopal catastrophe in which tens of thousands of people were killed. Apparently, they believed that even with this liability the purchase made good business sense.

Just a reminder of what happened in Bhopal:

Bhopal - 1

Bhopal - 2

Bhopal - 3

Yes, that same company’s ex-Vice President is the President of the ILR. Should that not cause everyone to question anything this organization puts out?

Here is a video this group has produced to show how we need further tort reform in Texas. Please listen to what this man is saying and ask yourself whether the two cases he brings up show a need for further tort reform in Texas.

Don’t you just love the ominous background music? What were the two incidents that he brings up that proves we need to have more tort reform?

The first case is about injuries caused by a faulty ceiling joist his company sold. The person, injured through no fault of their own, ends up settling with the man’s business. Why settle the case if this is a prime example of lawsuit abuse? Notice he did not say that this particular case was a frivolous lawsuit. We do not hear one complaint from this man that the money was not owed or that he had to pay too much. His company caused injuries and they “took care of business”, as they should, and “wrote a check”.

The second case is about a forklift operator, employed by this man’s company, damaging someone’s truck. They, again, “took care of business” and took responsibility for the damage they caused.

Are these two examples really what concerns the ILR? Is this really why we need tort reform? How would tort reform have made a difference in these two case? Do they really want to reform the tort laws of Texas in such a way as to preclude either of the plaintiffs in these cases from having an avenue of recovery?

The man seems like a nice enough man but it appears that what he is arguing for is a change in the tort system so he would not have to write a check in either situation. Is that really what we want? He said:

Frivolous lawsuits could impact homebody’s business dramatically…if we had too many of these cases, it would impact us also in a way that might put us out of business. Business, basically, needs to stand up and be heard and, hopefully, overcome a good portion of these frivolous lawsuits.

True, too many frivolous lawsuits can put someone out of business. But so can too many legitimate lawsuits. Do we really want a company in business that is wreacking havoc on our communities? This man’s argument makes no sense.

What is it that trial lawyers do? We assure that individuals and businesses take full responsibility for the damage they cause to society. We have no problem with businesses making a profit. We do, however, have a problem with the idea that businesses should be free to make as much profit as they want regardless of the damage they cause to families and communities.

So, please remember that when you support organizations like the ILR and candidates who parrot their mantra, you are supporting the widdling away of your right to access to the courts. If these people have their way, when you are injured, maimed, killed or otherwise harmed by another person or a business, through no fault of your own, you will be out of luck. These people are a dangered to the Constitution and the rule of law. They do not want the law to apply to them. They want to be free to gather as much profit as possible with no responsibility for any harm they actually case. What is funny to read is when businesses sue other businesses. They end up making the same argument I am making in this post. The sad thing is that if they were to get passed what they want to have passed they would also be limiting their own rights to access to the courts should their business be injured by another person or business.

Please, do not let these organizations do any more damage to our constitutional right to a jury. Vote against anyone who would dare take this important right away.