opinions, everybody's got one...
Saturday, August 31, 2002
Jean Luc Picard look-a-like cleared by judge for study
The legal battle pitted scientists against the US Government over an application of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA). At the heart of the litigation is a skeleton discovered on the banks of a Washington River in 1996, which is estimated to be 9,300 years old. The government was going to return the body to Native Americans so that it could be buried.
Yesterday, a Federal Magistrate acted to allow scientists to study the remains of the Kinnewick Man. The discovery had excited many people, especially after a facial reconstruction was performed which resulted in an image that many claim resembles Patrick Stewart. The Tri-City Herald has been keeping a watchful eye upon the events surrounding Kinnewick Man, and has released the Judicial Opinion (pdf) which rejects the applicability of NAGPRA and allows the scientist to perform tests upon the remains.
"business to force breakup of a couple"
A new line of detective work for investigative agencies in Japan blurs the line between intimacy and business. Want a divorce, or to break up with your significant other, but you can't bring yourself to make that move? How about hiring someone to seduce your partner, so that they ask for a split?
A husband who wants to dump his wife will hire a couple-busters firm to engineer an "accidental" meeting between his wife and a good-looking, attentive man who is secretly an agent. Soon, the wife is in an affair with him, and willingly grants her husband a divorce. The agent then fades away, his cell phone turned off, the address he gave her vacant, his workplace number a fake.Ok, you might be asking, "How different is this from prostitution, since sex is taking place in exchange for money?" Well, maybe you're not asking that. I, for one, am wondering when this practice makes its way to the States as a reality based TV show.
Friday, August 30, 2002
florida's adoption law
You've probably read about the furor over Florida's new adoption laws. The law balances mothers' privacy rights against fathers' parental rights. But, it does so when the father is unknown, or can't be located, and places all of the burden upon the mother. If the identity or location, or both, of the father of a child is unknown, and a child is being put up for adoption by the mother, the mother is required to place a newspaper ad to find the father:
In the ad, the mother must disclose her name, age, height, hair and eye color, race and weight; her child's name, date and place of birth; and -- if it is the address that is unknown -- the father's name. Moreover, she must also publish her sexual history -- a description of every potential father and the dates of their sexual encounters. The ad must run once a week for four weeks in a newspaper in each city or county in which conception might have taken place in the year before the child's birth.Florida is reconsidering this law. And, it's possible that a Florida appeals court will strike it down as unconstitutional as a challenge to the law reaches the court:
Therefore, although the judge denied the women's motion to declare the entire notification provision unconstitutional, he left an opening for their lawyer as she takes her case to the Florida appeals court. The women's attorney needs to present a convincing case to the Florida appeals court of the many less intrusive alternatives that do exist.The findlaw article does a very good job of describing how "compelling state interests" are viewed in the context of "least intrusive methods" when a right such as privacy is at issue.
For many of us, this weekend has an extra day as we celebrate Labor Day on Monday. The Department of Labor has a section on the History of Labor Day about its beginnings and meaning. And, in New York City, instead of a parade, Battery Park is the location of this year's holiday activities. May you all have a safe and peaceful Labor Day.
arctic shortcut to be completed in 10 years
The famed Northwest passage, the sea route connecting the Atlantic to the Pacific by going around Canada and Alaska, is tentatively scheduled to open in 10 years. Whether global warming is a natural phenomena or manmade, it is melting the ice packs and preparing a nice summer route for shipping. Imagine a short cut that saves you 4000 miles!
burning the midnight oil
Sometimes these all night jobs, really take all night.
Thursday, August 29, 2002
animal rights law
The pages of the Animal Rights Law Center at Rutgers Law School are a pretty good introduction to a number of legal issues involving how we interact with animals. The latest copyright date I see on their pages is 2001, so I don't know if the site has ceased being updated, or if they will resume with the coming semester. I suspect the later -- this particular study of law has been part of the curriculum at Rutgers since 1990. The Centers includes topics such as how companion animals should be treated in rental housing, students rights and conscientious objection when it comes to harming animals, and many others.
End abuse, or rather endabuse.org. That's the web address for the Family Violence Prevention Fund. It's a site filled with information and resources on efforts to prevent domestic violence. I like the approach that they take in their efforts. The organization looks at Domestic Violence Courts, educating judges, health care, and many other issues involving violence between family members. I also liked their section with suggestions on how to contact Congress and the section on current legislation.
changes over time
A good friend and colleague observed today, that we, that merry band of brothers who had weathered college (plus 20) together had changed from angry young men into grumpy old farts. That's all I have time for today. Grumph! I am behind on all my deadlines. Grumph!
fda takes on the red cross
I wasn't aware of the ongoing litigation between the Food and Drug Administration and the Red Cross. A ten-year-old Federal District Court suit in Washington State sees its next action on September 24th, when a motion filed by the FDA will be argued. The government agency is asking that the Red Cross be held in civil contempt for failing to honor a consent decree from 1993. They are also asking for authority to levy fines in the future for violations that may arise. A brief filed last week indicated numerous violations in the nearby Chesapeake region, which includes Pennsylvania, Maryland, Virginia, and the District of Columbia. The list of charges against the organization that collects half the nation's blood supply states that the Red Cross:
-- "Continues to accept donors who have not completed the health history questionnaire, including those who leave unanswered the question designed to detect those at high risk for HIV/AIDS."I'm wondering that, if not for the press reporting about the lawsuit, would we have heard anything about these ongoing troubles between the FDA and the Red Cross.
kafka meets ashcroft
Enemy combatants designated as such secretly, courts that release their decisions as classified opinions, a bureaucracy that would humble the one faced by Josef K. in Franz Kafka's writings; these are the things that an editorial that the New York Times titled Washington Bends the Rules (reg. req'd) point to in a call for action to Congress.
alexander the really great
A Foundation based in America is clashing with a cultural minister in Greece over a proposed image of Alexander the Great to be carved in the side of a mountain near the birthplace of Alexander in November. The image would be 240 feet high, which is roughly four times the height of the presidents at Mount Rushmore.
James Rigas, president of the United Hellenic American Congress, which supports the project, said that the planners were not seeking to cause political mischief.I have to agree with the author of the article -- I'm not sure that even Alexander would approve.
Wednesday, August 28, 2002
the ftc presents dewey
Smokey Bear and Woodsy Owl are going to be joined by Dewey Turtle. The "official" unveiling of the mascot for child safety on the web will be in September.
leaving j. edgar hoover to history
While J. Edgar Hoover was recognized for his leadership of the FBI by having the agency's headquarters named after him, he has also been the target of much stern criticism. Attorney General John Ashcroft has been asked to put his support behind legislation to change the name of the building. The request comes from Martin Luther King, III, who is the head of the Southern Christian Leadership Conference (SCLC). I hope that the Attorney General gives some serious thought to the SCLC President's appeal. If the SCLC could convince the State of Georgia to change their flag, I'm guessing that they will have some success with an FBI Headquarters redesignation. The suggestion may come at a time when it is appropriate to make a fresh start for the agency. I don't know that the building really needs to be named after anyone.
Rosh Hashana primaries
Delaware's primaries are held on Saturdays. This year, they are also held on Rosh Hashana. I'm wondering if it might be less expensive for the State to move the date, then it would be to process 13,000 absentee ballots. Regardless of the cost, moving the date is the right thing to do. Maybe those ballots would be best used on candidates expressing an interest in holding primaries on some day other than a Saturday. I'm not Jewish, but I am disgusted.
[Later -- A few more details from Saturday's Wilmington News Journal. ]
Tuesday, August 27, 2002
"jump out" squads and photographing loiterers
I'm not certain that Wilmington's Mayor Baker is having a good day today. I read the following quote from him this weekend in the local newspaper, and circled it in anticipation of writing about it this evening:
Mayor James M. Baker said criticism of the photographing is "asinine and intellectually bankrupt," and he will not stop the practice.It appears that a number of other people have spread the word far quicker than I could. The practice being complained about involves taking pictures of people on high drug traffic street corners when a "jump out" squad arrives in response to a stakeout of the corner. Photographing people whom you are subjecting to a Terry Stop might not be illegal, but it's gotten quite a few people concerned.
The most extensive coverage seems to come from the UK Guardian, who tell us that Wilmington is a "US city where you can be guilty until proven innocent." The author of the report, Oliver Burkeman, observes from New York City that:
In a sinister, authoritarian American city of the future, cutting-edge surveillance technology and over-zealous policing combine to create the ultimate weapon in the war on crime: the ability to track down individuals who will go on to become criminals - before they have even done anything wrong.I've used the phrase "jump out" squad without really explaining it. The Wilmington News Journal ran a similar story to this one about three weeks ago, but without a controversial quote from the Mayor of Wilmington. Its focus was less upon photographs, and more upon the use of "jump out" squads:
Two new Wilmington police squads have been conducting raids in the city's most notorious outdoor drug areas this summer with a tactical approach that uses as many as 20 officers at a time.A surveillance car is being used to verify that some type of drug activity is going on at a street corner before a "jump out" squad is called. This is the time when Terry Stops are being made, and some photographs are being taken. The locations are a limited few. And, not all of the people who live in those locations are upset about an increased police presence:
Robert Cooper, of 29th and Tatnall streets, said the squads have descended on corners in his neighborhood several times since June. He said the raids are the reason he can do yard work in the afternoon without having to face groups of hostile young men from other parts of the city standing on his corner.I'm not going to go as far as a News Journal editorialist and praise Mayor Baker (Baker is right to ridicule photo critics). The use of one of the pictures in a police lineup would be inspiration for a motion to supress, as noted by one of the attorneys interviewed by the News Journal. But, I do want to make certain that people are aware that the citizens of Delaware aren't being lined up, and photographed for inclusion in a pre-crime database as might exist in the movie Minority Report, or as portrayed in this Associated Press release from the Houston Chronicle.
[later- August 28, 2002 - Norman Lockman's editorial A lot of bad actors wound up in pictures is worth reading on this topic.]
Monday, August 26, 2002
supreme court historical society
In a couple of weeks, this blog will be one year old. While writing here, I've discovered in interest in history that I wasn't aware of before. In many ways, the law does teach someone to be concerned about history. How has a court ruled previously on a specific issue? Were the facts and circumstances similar? Have other courts addressed the holding in a specific case? Is there a legislative history? There's a drama to a case that isn't always evident upon reading a judicial opinion. And, there's a history behind certain institutions that you can pay attention to, or ignore at your own peril.
I came across the web site of the Supreme Court Historical Society tonight. The Society was started in 1974 by late Chief Justice Warren E. Burger. There's some fascinating views into the United State's Highest Court on those pages. While I found the History of the Court and the Homes of the Court worth spending some time visiting, the pages I most enjoyed were in the publications section of the site. The title of one caught my eye, and I had the chance to read it, but I'll be back to spend time with the others.
An intriguing look at the process and politics of the selection of a Supreme Court Justice is in their article entitled The First Woman Candidate for the Supreme Court -- Florence E. Allen. The year was 1934 when her campaign first began. Florence E. Allen was as qualified as anyone else who could be chosen. During her professional career as a federal circuit court judge, she was "'available' for twelve vacancies." After reading about her campaign to be appointed, I can't help but wonder what type of legacy she would have left behind. If you have any interest in the judcial selection process, this essay is worth a look.
The perspicacious Alice of A Mad Tea-Party noted yesterday that the legal portal Jurist had added a blog to their front page, and included links to a number of other blogs on their pages (including the Delaware Law Office). Welcome to the dance!
The most glaring instance of insurance fraud, that is thrown in my face daily, is the fraud by health insurance companies upon us. When I used to get my regular prescriptions at my local pharmacy, I would frequently hear the sheepish pharmacist report to me..."your insurance company says you can't get your prescription today...you need to come back tomorrow...you are one day early". I can feel the blood rushing to my head still, as I sit here typing. It is hard enough for me to break away from my job long enough to go to the pharmacy, now they want me to come back tomorrow. Why? Are they concerned that I might take an extra dose of my blood pressure medicine?
What business is it of the insurance company to so tightly regulate what day I am "allowed" to pick up my prescription? Isn't that supposed to be something between my doctor and I?
It turns out that they have no such right. The insurance company can refuse to pay for it though. And this really brings into focus the actual motivations of the insurance company (as if there was a doubt) and how they wield raw and unwarranted power over us and the local pharmacists.
Now, I have my prescriptions mailed to me by the same insurance company, in 3 month containers. And I reorder by telephone. And I never get that "you are too early" excuse. This new change in their position is clearly because they save money with the mail order prescriptions over the pharmacy prepared prescriptions.
I look forward to hearing about a "restraint of trade" class action against the insurance companies brought by pharmacies. On that day I will feel quite giddy, but not because of medication.
Sunday, August 25, 2002
can corporations engage in speech that isn't commercial speech?
A Washington Post editorial entitled Free Speech for Nike is about the distinction between advertising of services and products, and a statement by a corporation regarding its business practices. Is it possible for a corporation to engage in free speech, and have those rights protected under the constitution? The article is also about a lawsuit in which the California Supreme Court
held that statements by Nike in response to criticism of its overseas business practices were commercial speech that, if false, could subject the company to liability under state law.Is all speech from a corporation "commercial" speech? Can it ever be political speech, protected under the constitution? The editorial goes on to say that:
Under the California court's standard, many of the letters this page receives every day would be grist for lawsuits -- not against The Post, but against the companies whose representatives sent the letters.I think that it is sometimes possible to distinquish between commercial and political speech made by a corporation based upon the forum and content. But, sometimes the differences between the two can be blurry at best, and that may argue against free speech rights for corporations. Here are some opinions and documents involving the Kasky v. Nike case:
Kasky v. Nike, Superior Court Opinion, via Corpwatch (April 20, 1998)
Kasky v. Nike opinion, Court of Appeal of the State of California, First Appellate District, Division One; via the California First Amendment Coalition (March 20, 2000)
ACLU Amicus Curiae brief (pdf), ACLU (December 20, 2000)
Greenwashing on Trial, Mother Jones (February 23, 2001)
Kasky v. Nike opinion (pdf), California Supreme Court (May 2, 2002)
PR Campaigns Lose Speech Protection, law.com (May 3, 2002)
Let Nike Stay in the Game New York Times (reg req'd) (May 6, 2002)
Court Rules that Nike Can?t "Just Do It", Center for Individual Freedom (May 10, 2002)
Modification of Supreme Court Opinion (pdf), California Supreme Court (May 22, 2002)
The ACLU's Position in Kasky v. Nike, ACLU of Northern California (May 31, 2002)
Nike, Inc. to Ask U.S. Supreme Court to Reaffirm First Amendment Right Of Businesses to Discuss Public Issues, News.com (August 1, 2002)
criminal checks on wall street
Brokers and floor traders on Wall Street had been required to be finger printed before the National Association of Securities Dealers (NASD) certifies them. By virtue of a new anti-terrorism based law in New York State, technical and support workers at securities associations registered with the SEC will be required to be finger printed and subjected to FBI criminal background checks.
supreme court terms
A Findlaw.com Writ entitled Should U.S. Supreme Court Justices Be Term-Limited?: A Dialogue is worth considering. The authors suggest an 18 year term limit. I don't know that I'm fully convinced, but they have me thinking about it seriously.
weblog vs. email candidate for congress
Delaware congressional candidate Steve Biener captured some media attention with a little practiced method of campaigning. It consisted of sending out emails to as many people as he could, in an effort to get them to vote for him. In July, his method of acquiring a constituency was reported upon in gigalaw.com in an article entitled Political Spam: A Worthy Campaign Tactic? Larry Kesterbaum, of Polygon the Dancing Bear had some interesting comments on the subject, including this one:
Sending mass unsolicited email messages is spam and is always a bad idea for a political campaign. Absent a massive cultural and technological shift, it will always be a bad idea for a responsible mainstream candidate.I'm not certain that the email campaign is working too well for Mr. Biener. If the very slim turnout in front of the Daniel Herrmann Courthouse a few weeks back for his campaign speech was an indication of the efficacy of his methods, he might consider incorporating a more mainstream approach.
Another candidate of Congress is also using the internet as a base of operations for her campaign. A North Carolina candidate, Tara Grub started a weblog to present her views and experiences while campaigning to the public. The press that she has received has been much more positive than that for Steve Biener. I do agree with some of the comments on this Metafilter thread that it would be helpful to have a more complete web site that explains her views on other issues, in addition to the web log. Dave Winer, at Scripting News may be helping her do just that.
I also find myself inclined to be much more positive about Tara Grubb's campaign than Steve Beiner's. And that's without really knowing their perspectives on different issues.
Tricks of the Trade
By Private Investigator Michael T. O'Rourke
Question: I am a Paralegal with an attorney specializing in plaintiff personal Injury cases. Our potential client alleges a local nursing home abused and neglected her mother. Her mother was rushed to the emergency room where she subsequently died. We would like to look into the matter more closely before accepting the case. Do you have any suggestions?
Answer: All investigations begin with a witness to an event. Interview the client to ascertain names of staff, administrators, complaint history, specific allegations, etc?In an effort to locate witnesses to abuse, you should first send a letter requesting to the State of Delaware, Division of Public Health, 1901 N. duPont Parkway, New Castle DE 19720. This agency regulates the nursing home industry in Delaware. Recite the Freedom of Information Records Act in your request and ask for the following records:
A list of employees who worked at the nursing home just prior to, during and shortly after the patient was at the facility. Specifically request the social security numbers of the employees, their last known address and their date of birth. If you specify that you would like a copy of their licensing application, the information should be included on these.
Ask for all records pertaining to any disciplinary action taken against the nursing home or any of the staff members during the time frame in question.
Request a copy of the State's inspection records for the facility during the specified time frame.
Ask for a copy of the facility's licensing records including the application, ownership and corporate records.
The State may try to avoid providing this information to you and may even ask for the State's Attorney General to rule on whether or not they have to release the information. In general, they will eventually have to release at least part of this information. The remainder can be gained by subpoena after suit has been filed if you choose to accept the case. Information the State does not include can be surely gained from the nursing facility at a later date.
The records should be closely scrutinized for information that may suggest certain employees who have had conflicts with the facility and who may therefore be adverse towards the nursing home. These are the employees that you should seek out first. Current employees should be deposed, and former employees should be interviewed. Make sure your investigator complies with Monsanto v. Aetna Cas. & Sur. Co. , Del.Super., CA.No. 88C-JA-118, and Del. Law Title 24, Chapter 13.
Obtain copies of the patient's medical files and charts. Ask the potential client to request, from the nursing facility, the patient's daily charts in which reflect their eating habits, medicines, etc. After doing so, you should then ask for a list of employees and their schedules that worked during the time frame in question. Your client might even know some of the names if she was a frequent visitor to her mother over a duration of time.
Once you have these, you can begin to cross-check the records with the charts to see if the person was actually working on the day in which they insert their initials.
The "drug charts" should be checked to see if the medications were being given to the patient on a regular basis. The patient's doctor should be contacted and a copy of their records obtained as well. These records should be matched against the orders in the nursing home records to insure that they reflect that the nursing staff properly received, executed and documented the orders by the doctor. The medicine should be checked to make sure that the doctor actually prescribed those that the facilities were giving to the patient. A check of the charts should be conducted to make sure that the person giving the medicine was licensed to do so. In addition, the records need to confirm that the person signing the drug chart was actually on duty on that particular date. The daily charts of the patient should also be examined to see if there is an unusual change in the weight and eating habits of the patient.
In the course of the investigation, police department records should be reviewed as well. Each jurisdiction has different restrictions on their records and their accessibility as well as the ways in which they can access the records. Where possible, ask them to check the home by address for a period of at least one-year prior to the time the subject was in the facility through at least six months afterwards. Request that they search the records by pulling every police call made regarding the facility's physical address. Check the list for those calls regarding abuse, disturbances, thefts and similar circumstances. These may further document that the home has a problem with abuse as well as identify potential witnesses.
Conduct a previous litigation history inquiry at the Prothonotary?s office, and USDC Clerk?s office, utilizing the JIC System, or other computer based database. This will reveal any lawsuits filed against the nursing home facility or the owners of the home. If any are found, the actual file should be reviewed to better determine the facts and parties involved. The records may also list employee's names and other witnesses who may be helpful to your case. Be certain to check both criminal and civil records. Be sure to conduct a criminal history inquiry on employees having contact with the patient.
A check of the State of Delaware Secretary of State's records should also be researched. The Secretary of State will have records reflecting the corporation that owns the nursing home, the officers, addresses, date it was filed, charter number and whether or not they are currently in good standing with the State. The registered agent for service of process will also be gained.
The hospital records (CCHS or St. Francis) should be obtained and reviewed to determine the course and reasons for treatment. These should be checked and corresponded with the facility and doctor's records. If the person died in the hospital, it should reflect the actual cause. The records should be reviewed for any information concerning abuse such as broken bones, bruises, lacerations and similar identifiers.
The medical examiner's office records should be obtained and reviewed as well if an autopsy was conducted. The reports need to be cross-checked to determine the medications found in the person's body (or lack of medicine), the bruises, broken bones or similar signs of abuse. The ultimate reason for death will also be noted and should be double-checked against the facility's and your client's reasons.
Additional sources of information include families of former patients, families of current patients, equipment repair personnel, outside maintenance personnel, visitor logs, surveillance videos from CCTV security, EMT and ambulance crews, insurance companies, and even local clergy.
There is a fine line between abuse and neglect. Sometimes neglect can become excessive and reach the point of abuse. When we think of abuse, we think of someone hitting or physically abusing a person. Abuse is commonly an intentional act that causes harm and empowers another. Neglect may be an intentional, or an unintentional act, and may be based on several factors, such as the number of employees on duty, the facilities physical capability to take care of the number of patients that they are handling, or failure of equipment used to monitor a patient. The basic premise to neglect is that a person in the care of the nursing home fails to receive the necessary treatment or care that they deserve.
Det. Michael T. O'Rourke is a Member of the National Association of Investigative Specialists, The National Association of Professional Process Servers, and sustaining member of the Delaware Paralegal Association. A Court Certified Special Process Server, and a Licensed Private Investigator in DE and PA. Michael specializes in Insurance Defense and Criminal Defense. He invites your questions to:
Loss Solutions, Inc.
824 N. Market Street, Suite 425,
P.O. Box 368,
Wilmington DE 19899-0368.
Or you may e-mail him at DEIrish5@aol.com