Monthly Archive for February, 2012Page 2 of 3

Will Whitney Houston’s Doctors Face the Same Fate as Conrad Murray?

After Whitney Houston’s tragic death last week, questions about the circumstances and cause of her death began to swirl almost immediately. For years, Ms. Houston had fought a very public battle with alcoholism and drug addiction, including addiction to drugs that were legally prescribed to her. And now, the doctors who prescribed these medications are beginning to face scrutiny.

And it’s pretty much impossible to escape the superficial parallels between the death of Michael Jackson and Houston’s case.

And as you probably remember, Michael Jackson’s personal doctor, Conrad Murray, was convicted of manslaughter charges, on the theory that he prescribed and administered sedatives to Jackson, on which he overdosed, which caused his death.

So, with Houston’s very public struggles with drug addiction being public knowledge, do the doctors who prescribed her the drugs to which she was addicted bear any moral or legal responsibility for her death?

That’s a tricky question, and as her death is investigated, and more details emerge, the answer may become clearer. However, if any of her doctors face criminal charges or civil lawsuits in connection with her death, it’s likely that the issues will remain far from perfectly clear, either from a moral or legal standpoint.

However, there are a few starting points to look at while speculating on this subject, which might provide some guidance about what’s likely to happen. First of all, we’ll have to await toxicology reports from Houston’s autopsy, which will show what type of drugs she was taking when she died, and the quantities in which she took them.

If it is shown that she overdosed on legal pain medications, combined with alcohol, there will be some serious questions that her doctors will have to answer. This doesn’t mean that any of them are guilty of a crime in connection with Houston’s death, but any thorough investigation will have to look at them.

Because it takes a huge amount of education and training to become a doctor, and because doctors are responsible for the lives of their patients, the medical profession is subject to very tight scrutiny. Doctors owe what is known as a “fiduciary duty” to their patients, which is one of the highest legal duties that one person can have to another. So, if a doctor makes a serious error (and should have known better) in treating a patient, they may be subject to civil liability in the form of a medical malpractice lawsuit, and in the most egregious cases, criminal charges for manslaughter.

This is what happened with Conrad Murray, who is now serving a 4-year sentence in a California prison for manslaughter in connection with the death of Michael Jackson.

So, if it’s shown that Whitney Houston overdosed on medication that her doctors had prescribed to her, should they face criminal charges? Maybe, but definitely not necessarily. After all, it may be shown that Ms. Houston took far more than the prescribed dose, or that she got medication from multiple doctors, each of whom did not know that the others were also prescribing drugs to her. Either of these findings would definitely militate against a finding of criminal liability for either of the doctors – in our criminal justice system, conduct typically has to be very egregious to result in a criminal conviction.

However, her family may still be able to sue the doctors for medical malpractice in a civil claim for medical malpractice. In order to succeed in a medical malpractice claim, they will have to show that her doctor(s) fell below the relevant “standard of care” governing the medical profession. Basically, if it can be shown that one or more of her doctors engaged in conduct that no reasonable doctor with a similar level of education, skill, and experience would have engaged in, under similar circumstances, the doctor would be liable to Ms. Houston’s family for wrongful death and medical malpractice.

I would guess that if she overdosed on drugs the doctors prescribed to her, and they knew that she was abusing these drugs, a judge or jury wouldn’t have much trouble finding liability for medical malpractice.

Obviously, I don’t want to give the impression that I’m trivializing Ms. Houston’s death by speculating about the potential legal issues that surround it. However, the law is involved in nearly every aspect of society – almost every event has some legal consequences. Generally, in order to discuss any event fully, you have to consider the legal angles.

Washington State Likely to Legalize Same-Sex Marriage

The Washington State Senate has just passed a bill that would legalize same-sex marriage in that state. The state’s governor has already stated that she plans to sign it.

If this bill becomes law, Washington will be the seventh jurisdiction in the U.S. to recognize samesex marriage. The others are currently Massachusetts, Vermont, Connecticut, New Hampshire, Iowa, New York, and Washington, D.C. In addition, the state legislatures of New Jersey and Maryland are currently considering bills that would legalize same-sex marriage, both of which are thought to have a pretty good chance of passing.

Anyway, after passing the State Senate, the bill must go to the State House of Representatives, which is expected to easily pass the bill. But once this happens, and the governor signs it, it still has a long road ahead before actually becoming law.

As in every state that has a voter initiative process, and has also legalized same-sex marriage, opponents of the law are pledging to gather signatures to put the issue on the ballot, and present it to voters for a final decision. Opponents of same-sex marriage have until June to gather enough signatures to get a referendum onto the November ballot. Apparently, the law will go into effect, at the very earliest, in June, if and when the supporters fail to get enough signatures for the referendum.

If they do get enough signatures, the law will be on hold until the November election, and the issue is decided by Washington voters once and for all. Many opponents of same-sex marriage are optimistic that the law will be rejected by Washington voters. They accurately point out that every state that has voted on same-sex marriage has rejected it. Early polls, however, suggest that Washington is well-situated to be the state that breaks that streak. According to the latest poll, 55% of Washington voters would vote in favor of same-sex marriage.

I’ve said time and again that I strongly support marriage equality, and I’m heartened to see that, over the last year or so, momentum has strongly shifted in favor of nationwide legalization of same-sex marriage. Of course, it will be at least years (and more likely decades) before same-sex marriage is legal nationwide. However, with the repeal of Don’t Ask, Don’t Tell taking full effect (and completely without incident), and at least one nationwide poll suggesting that a slim majority of Americans support same-sex marriage, I’m confident that full marriage equality will come to the United States in my lifetime.

In the meantime, however, marriage equality will progress on a state-by-state basis. However, if Washington voters approve marriage equality (being the first voters in the U.S. to do so), it will probably be remembered as a watershed moment, and embolden supporters of marriage equality in other states to attempt to bypass courts and state legislatures, putting the question of same-sex marriage directly to the people, and perhaps finding a more receptive audience than ever before.

However, whenever you’re discussing same-sex marriage in the United States, there’s constantly an elephant in the room: the federal Defense of Marriage Act (DOMA).

DOMA is a federal law that was passed in 1996, and remains in effect today. It prohibits the federal government from giving any legal recognition to same-sex marriages, even if they were performed by states that recognize such unions. While this law is currently being challenged in court, the process is going to take a while, and the outcome is uncertain. Furthermore, given the political climate in D.C., it’s highly unlikely to be repealed any time soon.

As long as DOMA is in effect, same-sex couples, even if they’re legally married in a state, cannot receive any of the benefits that the federal government offers to individuals simply by virtue of being legally married.

These include several financial benefits, including the right to jointly file federal income tax returns, spousal benefits for federal employees (including healthcare, life insurance, etc.), and survivors’ benefits for the spouses of military service members killed in action. All of these federal benefits are, by law, completely unavailable to same-sex married couples.

DOMA is currently being challenged in court. Most federal court challenges to this law stop short of arguing that there is a constitutional right to same-sex marriage. Instead, they argue that the federal government has traditionally deferred to the individual states on matters of family law, including the recognition of marriage. So, the federal government should have to defer to the states on same-sex marriage, as well. If successful, the federal government would have to recognize same-sex marriages legally performed in a state. But such a ruling would not compel every state in the country to perform same-sex marriage. This path probably has a better chance in the Supreme Court that an argument that there’s a nationwide constitutional right to same-sex marriage.

In any case, it looks as if Washington is going to be yet another stepping stone on the road to full marriage equality. However, the legal situation remains extremely complicated, and raises some interesting constitutional questions dealing with federalism and equal protection. You can count on continuing coverage of these issues right here as new developments come.

Twitter Jokes, Deportation, and National Security

You may have recently heard about two British tourists who were deported from America for posting some questionable jokes on Twitter.  A few weeks ago Leigh Van Bryan and Emily Bunting were flagged at the airport by the Department of Homeland Security (DHS).  DHS stated that their Twitter jokes referenced plans to “destroy America”, and “digging up Marilyn Monroe’s grave”.

The two friends were detained and questioned by agents for 12 hours regarding the suspicious tweets.  Bryan and Bunting argued that the phrase “destroy America” is simply British slang for partying in the U.S.A., and the Marilyn Monroe reference was a joke from the T.V. show Family Guy.  After further questioning yielded no evidence, the two were ordered to return to the U.K. and were told that they must re-apply for a visa before they could return to the U.S.

Now, this might seem like a comical incident, but a lot of folks are up in arms over the DHS’ harsh treatment and seemingly unnecessary overreaction.  A lot of people reacted by asking questions like, “Why deport these people?  They can’t single-handedly destroy America!!!”

And indeed, this incident raises a lot of questions for me.  I mean, how far does this national security business go anyway?  Can’t we tweet in peace?  What exactly is a “threat to national security” that will subject a person to removal / deportation?  We all know that people can obviously be deported for conduct like acts of terrorism or egregious crimes.  But posting on Twitter?  I mean, come on!

Recently I read a very well-written (and somewhat lengthy) article on the question of “What is Homeland Security?”  In this article, Christopher Bellavita discussed the origins of ideas like “homeland security” and “national security”.  I found this article to be pretty helpful for understanding puzzling incidents like this deportation case.  These ideas are important to consider, especially because they have definite impacts on our current legal standards in areas like immigration law and privacy law.

Bellavita explains that our nation only started really seriously speaking of national security in 2001 after 9/11.  Prior to this, we spoke of “defense” as in “Department of Defense” or “national defense”.  Now the notion of national defense is a pretty narrow one.  Defense speaks of external threats- specifically, foreign military invasions where the enemy can be clearly identified.  This is your classic capture-the-flag, Cold-war missile mentality where the threats belong to identifiable camps.

In contrast, “Homeland Security” is a broad umbrella term encompassing both internal and external threats to American safety.  It involves the collective efforts of the military, the FBI, law enforcement departments, immigration enforcement, and many other agencies.  It even covers threats like natural disasters and catastrophes.  With a “security” mindset, it may not be so clear as to what the threat is.  The overall aim is not to identify any specific military enemy, but rather to maintain an atmosphere of safety and order inside our borders.

So we can say that people who react by saying, “they couldn’t possibly destroy America by themselves” are probably operating from an older “defense” standpoint (or, they have very high expectations for single-man armies from watching too many Rambo movies).  That is, it makes no sense to deport persons who don’t pose a threat in the traditional, militaristic way- they didn’t belong to any military force, they didn’t pack any weapons, and they weren’t wearing uniforms or badges.

But from a “national security” standpoint, Bryan and Bunting’s deportation might be just a tad more understandable.  If the effect of a tweet is to create an overall panic in the American public, then that might be considered a threat to national security, even if it’s not as overt as say, a missile attack.

The Department of Defense has been around since the 1940’s, whereas our government only recently implemented an Office of Homeland Security in 2001 after 9/11.  But many folks still haven’t caught on to the switch from defense to security.  I think our situation here with the Twitter jokes clearly illustrates this.

Don’t get me wrong- in my own opinion I think that either way you look at it, defense or security, this is pretty much an overreaction by the DHS.  It probably shouldn’t have taken all of 12 hours to find out whether these were some truly bad guys.  Maybe we all need to watch more Family Guy, or brush up on our British slang.

And one thing is clear- I spy about a million definitions of “terrorism” floating around in all the laws and acts out there.  As “national security” interests expand, the definition of terrorism needs to be more clear, not less.  For now, here’s a list of “sensitive words” to avoid while tweeting, since they’re apparently being monitored by the guys over at DHS.

Memo to 9/11 Truthers: The Courts Are Not A Megaphone

So, it’s come to this. The crackpots who believe that 9/11 was an inside job perpetrated by the Bush administration, the Israeli government, or lizard-men from space (seriously) have graduated from standing on the street with sandwich boards and megaphones to filing lawsuits against current and former federal officials in court, alleging that they were behind the attacks.

These lawsuits were focused on former Defense Secretary Donald Rumsfeld and former Vice President Dick Cheney. The plaintiffs claimed that Rumsfeld, Cheney, and others either allowed the attacks to occur, or directly orchestrated them, in order to create a political climate that would be supportive of war in the Middle East, which would open up access to Middle Eastern oil, from which they would theoretically profit.

I’m not going to go into the details of why these allegations are completely absurd. Suffice it to say, I think that if you’re a 9/11 “truther” (a member of the ironically-named 9/11 “truth” movement, which promotes these conspiracy theories), there’s probably something wrong with you. Either that, or you’ve spent too much time in your basement reading pamphlets, and not enough time out in the real world.

Instead, I’m going to discuss the merits and implications of using the judicial system to advance these insane theories. Here’s the short version: you shouldn’t use the court system to advance whatever pet conspiracy theory you’re currently harboring. The end.

Of course, the reasons for this warrant at least some discussion. First of all, contrary to popular perception, the court system actually has some pretty efficient mechanisms at filtering out frivolous lawsuits. These cases are usually dismissed very quickly, and, in the most extreme cases, the people who bring them can be hit with hefty fines, to compensate the taxpayers for the time and judicial resources that were wasted dealing with the case, and to deter others from bringing frivolous lawsuits.

In the case I linked to in the first paragraph, the court that dismissed the lawsuits back in 2010 hit the lawyers who brought it with $15,000 in sanctions. And the Second Circuit Court of Appeals has just upheld that sanctions order. This is pretty similar to the case of Orly Taitz – a dentist/lawyer who is obsessed with the notion that Barack Obama was not born in the United States, and is therefore constitutionally ineligible to serve as president.

She has been filing numerous lawsuits in the last few years, demanding everything from the removal of the President from office to his imprisonment for treason.  Not surprisingly, she has to contend with sanctions and threats of disbarment pretty frequently.

I think that the courts should deal with lawsuits based on nonsensical conspiracy theories in precisely this manner. It’s very important for citizens of a free society to have as much access to the courts as possible. In the U.S., state and federal courts are the primary means of adjudicating legal disputes, and ensuring that legal rights are protected. However, that does not mean that every conspiracy theory is automatically a valid legal dispute.

In order to ensure that they can operate efficiently, and hear valid legal disputes, courts have to dismiss the lawsuits that are clearly nonsense. I think it’s pretty obvious that these all-encompassing conspiracy theories fail the smell test. The notion that human beings (who couldn’t cover up a hotel break-in in the 70s, remember) could pull off a conspiracy of that magnitude without leaving a single piece of definitive evidence is insane.

And even if you assume that these conspiracy theories are true, and that some shadowy cabal really did pull off 9/11, what do the plaintiffs in this lawsuit expect to accomplish? Do they really think that a federal trial court would be able to do anything to such an all-powerful organization?

It’s almost as if they simply want to draw attention to themselves. Funny, that.

Anyway, when actual smoke-and-mirrors government conspiracies take place, they’re typically found out. Prior to the Watergate scandal, the facts of that case could have been the plot of a political thriller – and it would probably have been considered implausible. But, it happened. Conspiracy theorists will point out that this shows that government conspiracies do happen. And they’re right. But it also shows that keeping a secret among more than 2 or 3 people is incredibly difficult. Remember, Watergate ended with a president resigning in disgrace.

So, it stands to reason that, if these 9/11 conspiracy theories were true, there would be some solid evidence that might have a chance of holding up in court. However, 9/11 truthers have produced no such evidence. Hence, their cases have all been dismissed.

The court system already has a moderate problem with people accepting its legitimacy. It is the constant target of politically-motivated attacks against “judicial activism” and “frivolous lawsuits.” Occasionally, there really are frivolous lawsuits, like the one discussed here. If the court were to do anything other than dismiss this case at the earliest opportunity, opportunistic politicians and activists would have pounced on it, and used it to attack the legitimacy of the court system as a whole. Frankly, we can’t afford that.

That’s not to say I think the court should use the public’s opinion of it as a significant basis for making its decisions. But, as a practical matter, that is always lingering in the background. If I believed that there were a shred of real evidence in support of these conspiracy theories, I’d be completely in favor of the courts hearing these lawsuits. And if the 9/11 truthers can produce such evidence, I’d be championing their right to pursue these cases, even if they were ultimately proven to be without merit. Until then, it’s back to the Internet massage boards for them.

Facing Huge Cuts, Legal Aid Is Going to Change

Last year, when Congress was planning one of the biggest budget-cutting sprees in the country’s history, I wrote about how the federal funding to various legal aid organizations across the country was probably going to be significantly cut. What this means for legal aid organizations, and the people who depend on them, remains to be seen.

Well, most of those cuts passed, and now it’s time to pay the piper: many of these cuts are taking effect this year, and a large number of legal aid organizations are planning major layoffs. First, the numbers: the 2012 federal budget cuts funding to the Legal Services Corporation (a federally-owned corporation that’s responsible for distributing federal funds to legal aid groups across the country) by 14% from its 2010 levels. Funding has dropped from $404 million to $348 million. Now, a 14% reduction in an organization’s budget is certainly significant, but it’s probably not catastrophic. However, most of the groups that rely on these funds already operate on a shoestring budget.

A survey of legal aid organizations across the country shows that most of them are planning layoffs of attorneys, paralegals, and other staff. On average, they’ve reported that they plan to reduce their staff of attorneys by 13%, paralegals by 15% and other support staff by 12%. This is obviously pretty significant, especially since the vast majority of these organizations already receive more requests for legal help than they can accommodate. While the exact outcome of these cuts is impossible to predict, one thing is virtually guaranteed: legal aid organizations will have to turn away more clients in genuine need of legal help, who would otherwise qualify.

And we’re still dealing with the consequences of the massive job losses that happened during the recession of 2008 and 2009, so the number of people living in poverty is higher than it’s been at almost any point in our country’s history, meaning that more people will be seeking the services of fewer lawyers.

On top of all this, the layoffs of employees at legal aid centers means that there will be even more unemployed legal professionals seeking work in a legal job market that’s already oversaturated. Of course, if you’re an average person looking for affordable legal help, the fact that there are some out-of-work lawyers is probably the least of your worries. Nevertheless, lawyers are (for the most part) human beings, and a fairly large number of them are going to be out of a job very soon because of the actions of Congress.

In order to compensate for this, it seems pretty clear that legal aid organizations should start looking for alternative sources of funding, reducing their dependence on federal funds. As the last few years have shown, the political climate in Washington can turn on a dime, and small but important programs (funding legal services for the poor, for instance) which were once uncontroversial can suddenly become hot-button issues, and targets of attacks that politicians can use to score political points. Basically, no program is safe.

So, what should legal aid organizations do? Well, most of them get a significant amount of money from private donations. They may want to start diverting their limited resources away from lobbying Congress for funds, and toward soliciting donations from private parties. And while state governments are also cash-strapped, at least some might be inclined to partially make up for the shortfall in federal funds.

For example, California has recently begun implementing a law that provides funding for indigent parties in civil cases which deal with the basic human needs of the party, such as shelter and healthcare. This so-called “civil Gideon” rule, if it proves successful, could serve as a model for other states to follow.

But most state governments, as well as the federal government, seem unable to see past their own noses, budget-wise. They’re concerned about reducing government debt and deficits as much as possible, as quickly as possible. These are both important goals. However, there are other things that need to be taken into account, like the overall economy, which is linked to, but not the same thing as, the budget.

For example, if a person is unlawfully fired from their job, but can’t afford any type of legal representation, and legal aid organizations are unable to help, it’s highly unlikely that this person will have any type of recourse. This person will then have less money to spend, which, when aggregated with many similar incidents, will have a significant negative impact on the economy.

Still, it’s unlikely that many state governments are interested in following California’s lead and guaranteeing access to legal counsel in some civil cases, let alone funding such a mandate. However, I think that such a law would, eventually, pay for itself. By helping consumers pursue legal recourse against unlawful termination, foreclosure, denial of access to healthcare, and other things that significantly impact one’s earning potential, there will be an additional (though admittedly small) layer of security in the social safety net.

If people know that they’re unlikely to be foreclosed upon even when they’ve made all their payments, be fired for unlawful reasons, or suffer other legal harm that occurs in the private sector. This would probably increase consumer confidence, increasing spending, and therefore improving the economy, and creating a larger tax base.

Hopefully, we’ll come to our senses soon.