Second Tea Party Leader Opposes Federal Tort Reform

By Andrew Cochran on November 16, 2011 1:10 PM |

A second leader of a national and influential Tea Party group has joined the chorus of conservatives against any federal tort reform law. Judson Phillips, founder of Tea Party Nation, posted on the website yesterday that the jury system is part of the free market, and to interfere with the jury system violates the 7th Amendment to the Constitution. The website requires registration to read the post, but Judson generously allowed me to post a segment of his article.

“The free market is a wonderful system. It produces amazing efficiencies and amazing wealth. The free market system has delivered more prosperity to more people than any other system. There is another beauty to the free market system that many people do not think about. The free market system punishes bad behavior. If I open a business and decide to sell something that is a really bad product, people do not come to my business. I have the incentive to produce a really good product because that way people will want to come to my business.

The civil jury system is a part of the free market. Our founding fathers thought enough of it to make it the 7 th Amendment to the Constitution. Jury awards are a part of the free market. They do not exist in a vacuum. They not only compensate someone for an injury but like so many other parts of the free market, they act to deter bad behavior.

If I am injured by a bad doctor or suffer some other type of injury or loss, I do not want the Federal Government telling me what my pain is worth. I want twelve citizens deciding justice for me.

The right to a jury trial has a long and storied history in America and even further back in Britain.

Much as the Federal Government is overstepping its bounds by ordering Americans to buy health insurance, the government is also overstepping its bounds by telling citizens and states how much they can award in law suites and also telling lawyers how much they can be paid. (sic)

The free market is an amazing thing. It needs almost no intervention to achieve the right result, and the civil jury trial is an important part of the free market.

Take a moment to tell your Senators and Congressmen we do not need the federal government telling states what to do and trampling on another one of our constitutional rights.”

This spring, Tea Party Patriots co-founder and national coordinator Mark Meckler voiced his opposition to federal tort reform on the grounds that it violates states’ rights. “Most folks in the tea party movement would say those things should be dealt with at the state level,” Meckler said. “It’s not for the federal government to be adjusting the legal system of individual states.”

From attorney Chad West:  It’s wonderful to see two leaders of the Tea Party movement fight to protect each person’s consitutional right to a jury trial, and reject attempts to override state and individual rights.  We need to bring these statements to the attention of every Member of Congress, especially Republicans under pressure to enact federal tort reform.

Chad West is a Dallas Personal Injury Attorney committed to the aggressive representation of those injured in catastrophic accidents.  Please call our Dallas or Fort Worth office to discuss your potential case.

When Cops Lie: A Report From Los Angeles

Jon Wieneron Monday, September 19, 2011 – 14:26

Cops lie. Under oath, on the witness stand. “I saw him reach for a gun.” “I found the drugs in his pocket.” But what happens when juries refuse to believe their testimony? Do cops ever get in trouble for fabricating evidence or lying under oath? Do they ever get charged with perjury?

The Los Angeles Times in a page-one story today named three LA sheriff’s deputies who jurors in a case in Compton, California, said had told “one lie after another” under oath. They said authorities should investigate the three.

The case involved a 19-year-old man arrested at a party at a house in South Los Angeles. Deputies testified at a preliminary hearing that when they arrived at the party, they saw the man run and then toss a loaded revolver on the roof of a garage. They said they ordered him to stop, and that he walked back to them and they then arrested him.

The defendant pleaded innocent and at his trial shouted, “Fingerprint the gun!” The gun was never fingerprinted.

Defense attorneys found that another guest at the party had videotaped the events, and that the video did not show the defendant running or throwing anything on the roof. The video showed him standing still when the deputies arrived and arrested him. The jury concluded the deputies had lied under oath. And the LA Times posted the video on its website.

Are the three deputies who backed up each others’ testimony going to be prosecuted for perjury? Award-winning investigative reporter Jack Leonard of the Times reported that the sheriff’s captain told him that “the deputies made errors that will be addressed with additional training,” but that “their actions were not criminal.” In the meantime, one of the three has been promoted to detective.

The defendant, meanwhile, spent more than a month in jail awaiting trial, at which he was found not guilty.

Credit goes to Jack Leonard for writing the story, and to the LA Times editors for putting it on page one—this is exactly why we need local newspapers.

Clients and friends, I get involved in cases all the time where attorneys have printed photos from an individual’s Facebook and/or Myspace pages! For example, I recently observed a DWI case where a district attorney in Collin County used photographs from a woman’s Facebook page where she was clearly intoxicated to suggest that she was drinking on the night of her birthday and frequented a particular bar. There are rules against allowing in such evidence, but depending on the court, photos of this nature will sometimes come in. And during the punishment portion of a trial, any type of information about a defendant’s veracity, character, and general persona can be presented to the jury. Bottom line – if you get in trouble with law, comb through your online photos (and statements that you have written) and clean ‘em up!

The U.S. Centers for Medicare and Medicaid announced this week that Parkland Hospital could potentially lose all Medicare and Medicaid funding – a total of $417 million – if it does not return an acceptable correction plan to CMS by August 20^th.  Such corrections come after two Parkland patients died due to negligence and violation of patient rights as well as numerous other violations. The pressure is on for Parkland Hospital to take the necessary corrective measures to ensure patient health and safety. The question remains why did it take the CMS issuing an ‘immediate jeopardy’ status upon the hospital before it decided to make any changes? We can only hope that Parkland will work diligently to correct their mistakes and prevent unnecessary deaths in the future.

The Law Office of Chad West can assist with personal injury cases including wrongful death, negligence and medical malpractice. At the Law Office of Chad West, we will do everything to put you at ease as we navigate the legal channels of your Dallas personal injury case.  All staff members share in the job of helping you.  If you have a question, we will get the answer quickly.  We will prepare you for trial and help you keep your eyes on the finish line instead of the bumps along the way. If you or a loved one has a personal injury case, please do not hesitate to call us at 214.509.7555. We look forward to helping you and your family.

Feds find ‘serious threat’ at Parkland

By Miles Moffeit and Reese Dunklin

Government regulators have warned that failures in care at Parkland Memorial Hospital pose ‘an immediate and serious threat to patient health and safety,’ and ordered it to submit a plan to remedy the problems within two weeks or lose federal funding.

In a letter delivered Tuesday to Parkland’s chief executive, Dr. Ron Anderson, the U.S. Centers for Medicare & Medicaid Services cites deficiencies under nine regulations. They include emergency care, infection control, nursing services and governance. Specific problems were not disclosed in the letter, which CMS shared with The Dallas Morning News under the Freedom of Information Act.

Anderson acknowledged the seriousness of the violations.

‘We have a tremendous responsibility to get this right – to address the deficiencies identified by CMS – and to do so as quickly as possible,’ he said in a written statement. ‘It is our obligation to the Dallas community and, most importantly, to our patients to provide care this is safe, of high quality and consistent with all state and federal regulations.’

Anderson declined to respond to questions from The News about the findings and how a potential funding cutoff would affect the hospital.

The action, which CMS described as rare, came after a top-to-bottom inspection of the Dallas County public hospital last month.

‘Unless the serious and immediate threat to patient health and safety is removed, your hospital’s Medicare agreement will be terminated on September 2, 2011,’ letters stated. It referred to reimbursements the hospital receives from federal programs for the elderly, poor and disabled.

CMS told Parkland that it has until Aug. 20 to submit an acceptable correction plan, to be followed by another inspection to ensure compliance.

Federal officials say the inspection’s specific findings, which were delivered separately to Parkland in a report, will be released publicly after Parkland provides an official response.

Davis Wright, deputy regional administrator for CMS in Dallas, s aid two  violation relation to infection control and emergency care issues are so serious they triggered ‘immediate jeopardy’ status.

‘That is the most severe finding we can have in a hospital, and it requires immediate attention,’ Wright told The News. Every year, only two or three hospitals among the more than 400 statewide face such measures, he said.

Immediate jeopardy status – tied to the emergency care and infection control practices – can result from discovery of a pattern of problems or a single case reflecting serious breakdowns in patient care, Wright said. In Parkland’s case, ‘we generally identified systemic issues that need to be addressed.’

While CMS has taken one of its most extreme steps to force compliance, Wright declined to comment on the likelihood of Parkland losing its funding.

Heightened Scrutiny

CMS rarely terminates a hospital’s Medicare and Medicaid funding. Only two Texas hospitals have lost certification since 2005, one in Houston and another in San Benito, according to the agency. Both were small hospitals with fewer than 100 beds. Parkland has 735.

This year, Parkland expects Medicare and Medicaid to provide nearly half or its patient revenue, or $226 million. It also gets an additional $191 million in Medicaid subsidies awarded annually to health care providers that serve a disproportionate share of indigent patients. The total amount from both programs – $417 million – represents about 35 percent of Parkland’s total budget.

If payments were stopped, it’s unclear how the hospital would deal with such a blow. The hospital would have to reapply for certification and demonstrate compliance, a period that could stretch on four months.

Additionally, because one of the new violations involves the federal Emergency Medical Treatment and Labor Act, Wright said, the hospital also could face yet another fine from the inspector general of the U.S. Department of Health and Human Services. Last month, Parkland paid the maximum $50,000 fine under EMTALA, stemming from the 2008 death of Mike Herrrera, who languished more than 15 hours in the emergency room.

In the past five years, the government cited Parkland nine times for regulatory failures involving patient care. Last month, a nine-member team of inspectors from CMS and the Texas Department of Health Services spent two weeks examining all areas of the hospital. A state official characterized it as ‘one of the largest surveys of its kind due to the hospital’s size and the scope of services it provides.’

That survey was prompted by the Feb. 10 death of psychiatric patient George Cornell. In May, regulators found that his rights were repeatedly violated when he was pinned stomach-down to the floor for as long as 25 minutes total without a doctor’s orders. It also said Parkland failed to provide proper nurse monitoring or adequate staff training. Since 2010, three patients in the psychiatric emergency department have died there or shortly after leaving.

CMS’ letter to Anderson also cited Parkland for violating regulations that deal broadly with medical screenings, physicians working on call, sign positing and transfers of patients. These regulations included hundreds of protocols, making it difficult to know which ones are at issue.

Concerns identified

The hospital was notified that it ran afoul of the federal standard for ‘compliance with laws,’ which spans everything from certification of doctors to budget matters. Under infection control, the hospital failed to comply with rules governing sanitary conditions to avoid infections and communicable diseases.

‘I think the message we would give patients out there is that the system we have is working,’ Wright said. ‘We’ve identified concerns at Parkland, and the expectation is that they’ll do whatever’s necessary to address concerns. That’s the way it should work.’

In the wake of CMS’ findings in the Herrera and Cornell deaths, Parkland said it had taken steps to change a number of procedures.

The hospital failed to report Cornell’s death to state and federal agencies. Regulators learned about the case from The News’ coverage.

Lauren McDonald, chairwoman of the Parkland Board of Managers, said she was briefed on the report but had not seen it herself. She declined to share specifics.

McDonald acknowledged the seriousness and rarity of ‘immediate jeopardy’ findings but added that ‘any recommendation by CMS is to be taken seriously.’

When asked whether the hospital had disagreed with an CMS findings, she said that ‘I don’t think it’s our place to say whether we agree or disagree.’

She added, ‘Whenever CMS comes to the hospital, it’s like of like the military. They have the authority. Whether you agree or not is not pertinent. You just have to go ahead and make the changes and corrections that they suggest.’

McDonald said the board had ‘complete confidence’ that the hospital’s staff will craft a corrective plan by the deadline that satisfies CMS.

‘We should be able to keep our standing,’ she said. ‘We have to make the corrections as suggested. They will be done, and we’ll be back on track.’

Credit: The Dallas Morning News

Rosie, the first ever approved courtroom dog in New York, helped imprison a father who had raped and impregnated his 15-year old daughter. However, what type of legal implications does allowing a dog to assist in courtrooms have upon jurors, lawyers and judges? Defense lawyers are calling the use of Rosie in the courtroom as ‘prosecutorial misconduct’ and a clear violation of their client’s constitutional rights. After reading this article, what are your thoughts and opinions for using dogs to assist in sexual assault cases to ease the victim’s anxiety?

The Law Office of Chad West has served clients in Dallas, Tarrant, Collin and surrounding counties for years. In 2011, Chad was honored as the “best lawyer” and “best criminal defense attorney” by the readers of Oak Cliff People and Dallas Voice. The weekly publications choose annual “best of” honorees as part of a special annual newspaper edition saluting members who stood out for their support and dedication to the community.

If you would like to discuss a potential Dallas criminal defense matter for you or a loved one, please call us at (214) 509-7555.

By Helping a Girl Testify at a Rape Trial, a Dog Ignites a Legal Debate

Rosie, who comforts traumatized children and aided a teenager on the stand in a rape trial, outside the Dutchess County Courthouse in Poughkeepsie, N.Y., with Dale Picard.

By WILLIAM GLABERSON

POUGHKEEPSIE, N.Y. — Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.

When the trial ended in June with the father’s conviction, the teenager “was most grateful to Rosie above all,” said David A. Crenshaw, a psychologist who works with the teenager.

“She just kept hugging Rosie,” he continued.

Now an appeal planned by the defense lawyers is placing Rosie at the heart of a legal debate that will test whether there will be more Rosies in courtrooms in New York and, possibly, other states.

Rosie is a golden retriever therapy dog who specializes in comforting people when they are under stress. Both prosecutors and defense lawyers have described her as adorable, though she has been known to slobber.

Prosecutors here noted that she is also in the vanguard of a growing trial trend: in Arizona, Hawaii, Idaho, Indiana and some other states in the last few years, courts have allowed such trained dogs to offer children and other vulnerable witnesses nuzzling solace in front of juries.

The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.

The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause.

Service dogs have long been permitted in courts. But in a ruling in June that allowed Rosie to accompany the teenage rape victim to the trial here, a Dutchess County Court judge, Stephen L. Greller, said the teenager was traumatized and the defendant, Victor Tohom, appeared threatening. Although he said there was no precedent in the state, Judge Greller ruled that Rosie was similar to the teddy bear that a New York appeals court said in 1994 could accompany a child witness.

At least once when the teenager hesitated in Judge Greller’s courtroom, the dog rose and seemed to push the girl gently with her nose. Mr. Tohom was convicted and sentenced to 25 years to life.

His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.

But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

“There was no way for me to cross-examine the dog,” Mr. Martin added.

In written arguments, the defense lawyers claimed it was “prosecutorial misconduct” for the Dutchess County assistant district attorney handling the rape case, Kristine Hawlk, to arrange for Rosie to be taken into the courtroom. Cute as the dog was, the defense said, Rosie’s presence “infected the trial with such unfairness” that it constituted a violation of their client’s constitutional rights.

Ms. Hawlk declined to discuss Rosie. In written arguments, she said that all Rosie did was help a victim suffering from serious emotional distress, and she called the defense claims “frivolous accusations.”

The defense lawyers acknowledged the risk of appearing anti-dog. Rosie, they wrote, “is a lovely creature and by all standards a ‘good dog,’ ” and, they added, the defendant “wishes her only the best.”

As the lawyers prepare their appeal, Rosie has been busy. She spent much of her time in recent weeks with two girls, ages 5 and 11, who were getting ready to testify against the man accused of murder in the stabbing of their mother.

The Dutchess prosecutor in that case, Matthew A. Weishaupt, argued that Rosie and dogs like her did not affect the substance of the testimony about horrifying crimes. “These dogs ease the stress and ease the trauma so a child can take the stand,” Mr. Weishaupt said in an interview.

In the end, Rosie was not needed in the second case: the defendant, Gabriel Lopez-Perez, who had a history of domestic violence, interrupted his trial last week to plead guilty to killing the girls’ mother, his girlfriend, in the Wappingers Falls rooming house where they lived.

But Rosie’s promised appearance next to the children might well have played a role. “It became obvious,” said Mr. Lopez-Perez’s lawyer, Andres Aranda, “that the children were going to be testifying, and he decided to avoid that.”

The defense’s appeal of Rosie’s first courtroom outing, in the rape case, is likely to establish legal principles on the issues of dogs in the witness box. “It is an important case, and appeals courts will consider it an important case,” James A. Cohen, a professor of criminal law at Fordham University School of Law, said.

When New York appeals courts study the question, they are likely to look at the experience of courtroom dogs around the country, including in Washington. In Seattle, a developmentally disabled 57-year-old man, Douglas K. Lare, recently recalled how a Labrador retriever named Ellie, who has made more than 50 court appearances, helped him testify against a man charged with a scheme to steal from him.

Ellie gave him courage when he was afraid, Mr. Lare said in an interview: “It was like I had no other friends in the courthouse except Ellie,” he said.

For 11-year-old Rosie, said her owners, Dale and Lu Picard, the courtroom work is a career change after years working with emotionally troubled children at a residential center in Brewster. The Picards’ organization, Educated Canines Assisting With Disabilities, or ECAD, places service dogs after training them to perform tasks like turning lights on and off and opening doors.

Rosie, named for the civil rights pioneer Rosa Parks, was originally taught to follow 80 commands, including taking off a person’s socks without biting any toes. But she has a special talent with traumatized children, said Dr. Crenshaw, the psychologist who has worked with all three of Rosie’s witnesses and many other troubled children.

“When they start talking about difficult things,” Dr. Crenshaw said, “Rosie picks up on that and goes over and nudges them. I’ve seen it with my own eyes.”

Credit: The New York Times

Former NBA star and ESPN analyst Jalen Rose is due to report to jail next week to serve a 20-day sentence for drunken driving.

The sentence was handed down earlier this week by Michigan state court judge Kimberly Small. Rose, who pleaded guilty to driving under the influence and expressed remorse at the sentencing hearing, previously had a clean criminal record, according to this Detroit Free-Press article.

But Rose’s legal team did not mince words in contending that the sentence was extreme and that the judge had allegedly abused her sentencing discretion, the Free-Press reports.

Rose’s attorney, Keith Davidson, told the Law Blog that he thinks Rose’s sentence is disproportionate given that he “accepted responsibility early on” and that the offense involved “a low to moderate blood-alcohol level.”

Judge Small indicated at the sentencing hearing that she felt compelled to “send a message,” the Free-Press reports. “There lies the answer to drunk driving,” the judge said.

Cick here to read the rest of this blog.