Jesus and DNA testing

I heard that even CNN was reporting that DNA had been used to show that Jesus’ burial place was discovered. This truly is amazing given that DNA TESTING DID NOT EVEN EXIST UNTIL THIS CENTURY! The most DNA testing could prove is that any bones found have DNA markers characteristic of markers found in a certain ethnic group. I call on CNN and other news agencies to join me in the fight against the exponential expansion of ignorance by filtering some of this “news” through basic common sense and logic.

By the way, 2010 is the year to die if you are rich

For those of you who will pass along an estate of more than 2 million dollars as an individual, 2010 is the year to pass. The Federal Estate and Gift Tax will not exist that year. This year, 2008 and 2009, the exemption totals $2 million (plus various other exemptions). Then, in 2011, the tax will be resurrected with a lower exemption level (unless Congress acts first). So, if you are rich but failed to find lawyers that could create loads of loopholes and bypasses, shoot for 2010. I am NOT advocating suicide, but the ultra-rich generally can achieve the goals they set for themselves.

Writer’s block

It has been a number of days since I have posted. I have been busy, but this time that is not the reason. The reason is I have had writer’s block. I have been reading stories in the news about how the numbers of people in severe poverty have risen faster than any other segment of society since 2000. Other stories have reported on how the numbers of people dependent on some form of welfare or government subsidy has not declined. Apparently foreclosures are reaching new heights, especially in Kentucky. The proposed federal budget provided such low increases in social spending programs that inflation caused them to actually have cuts.

Whether you say we are winning the war in Iraq or failing miserably, you have to admit we remain deeply entrenched there. Now it looks like we may be entering pre-war posturing with Iran (my law school chums may recall that I often stated that Iran was the greater threat – told you so!).

But, then there are articles about how great the economy is and the strength of the stock market (today aside). Many corporations are reporting fantastic profits – including oil companies.

I think my block has to do with trying to define a unified theory of the state of the world. Such a theory remains elusive – or at least the articulation of it. Bottom line for this blog, though, is that when there are so many poor and so few resources going to American’s in poverty, then justice for many will remain elusive.

I recently took part in a pro bono legal clinic. It was a tiny drop in a big ocean of need, but it was worthwhile. We cannot wait for the government to respond to the trends that I sense are building to a crisis point (over the course of the next couple of decades). But each of us can contribute each month or each year to improve access to justice for the poor.

Frivolous lawsuit or llife of pain

This post at the Kentucky Law Review caught my eye (click here). First because of the amount of the verdict, second because of the quotes from the plaintiff about what his life has been like since the accident. Finally, and most importantly the fact that it has been 4 1/2 years since the accident to just get to the jury verdict. U-Haul promises to vigorously pursue all appeals. We’ll check back on its progress in a decade and see how the appeals are going.

Not enough by a long shot

The Herald-Leader reported that $2.5 million added to the Boni Bill. Many are applauding this as a good first step. What the the Cabinet needs – more workers. What the Cabinet gets – panic buttons. Someone please tell me how a panic button would prevent another tragedy like what befell Boni Frederick at a home visit? What the Cabinet needs – more workers. What the Cabinet gets – visitation facilities. So home visits are no longer going to occur? No investigations into the homes? No trial visits with the children at the home? Everyone’s visits scheduled around when one of the visitation rooms is open?

No – I think this is a waste of money. This is a $2.5 million dollar token tossed to voters. The Cabinet needs more workers and not just the 300 Gov. Fletcher discussed. They needed more than 300 workers a decade ago and they still need them. I am asking the legislators to not throw away this money on quick fixes that really do not address the problems. Give the Cabinet the staff it needs. More staff means a lower case load. A lower case load means increased safety because the worker has more time to be thorough. This means a greater awareness of risks to their safety and the ability to team up like police do when responding to high risk situations. This means being able to better assess families and the safety of the children so that unnecessary removals are less likely to occur. This means fewer terminations of parental rights because increased services can go to families where the children had to be removed.

The Cabinet needs more workers and anything less is a waste of resources.

Improving Child Protection in Kentucky, Part 6

I want to point out a connection that seems to be getting little attention. Today’s Herald Leader has this article regarding proposed legislation to increase social worker safety. Yesterday, the Herald-Leader had this article about removing language from proposed legislation that would have required judges to give oral and written notice of looming termination of parental rights. The connection is that the Cabinet has needed MORE workers for years to address both the issue of safety for workers and the issue of providing sufficient services to families to avoid having to terminate parental rights.

I did that job for years and frankly, whether a judge gives an oral and written warning about an impending termination proceeding is not going to make a huge difference. It would be a nice thing and it would allow lawmakers to say, “See, we’ve done all we can do – they were warned!” What will really make a difference, though, is to INVEST IN OUR CHILDREN and provide hundreds more social service workers.

Look before you release!

Here is a post that could help prevent the inadvertent loss of a claim by settling and releasing with one party: (click here)

“The key in looking at when a release of an employee also releases the employer is determining whether the suit against the employer is based on vicarious liability or if there is an independent claim of negligence. In this case, the only claim against Little Ceasar’s was based on vicarious liability even though it was framed as negligence in hiring. An attorney needs to carefully analyze the real basis of the different claims before entertaining a release of any party.”

While I encourage settlement as the most trustworthy way to approximate justice, settling too quickly and without a careful assessment can also preclude justice.

Barbarian Lawyer – the Conan approach

Conan The Barbarian

Have you met a lawyer with this philosphy? Maybe you believe this is the kind of lawyer you want to represent you. In reality, taking the Conan approach does not promote justice, but makes it more elusive. What it does accomplish is greater spoils of war for the attorney because it creates more contention and thus greater billable hours.

Improving Child Protection in Kentucky Part 5

I believe this recommendation from the Office of Inspector General report is huge but under-appreciated by policy makers.

6. DCBS Permanency and Protection staff should receive consistent and repetitive training with regard to the elements required to substantiate abuse, neglect, or dependency. These elements should be standardized across the state and easily identifiable. For example, DCBS policy should mirror KRS (i.e. must have “physical injury” or “serious physical injury” to substantiate physical abuse) and define what elements are necessary to substantiate the abuse. Workers appear confused about what actually exemplifies abuse. For example, some social service workers have told parents it is “illegal” to spank their children.

During my tenure, two sources primarily defined terms such as abuse and neglect. One tended to be popular trends in society. This can be a legitimate way to define terms but only if we are talking about long-term and well established trends. For example, a long term trend has been to treat children as having autonomous rights as opposed to being chattel that are owned. Rejecting the use of a paddle in schools for discipline is shaping up to be a long-term trend. Use of spanking as a form of discipline in the home has not become a long-term trend.

The other source of definition for abuse and neglect was individual social worker’s biases. These should never be the basis for defining abuse or neglect because that would mean that someone’s entirely subjective belief could result in the removal of your neighbor’s child, of my child, or even your child. What constituted a dirty home was very different between each worker. What constituted physical abuse differed significantly also. In my county, anytime physical contact resulted in a visible mark, then that was physical abuse. This tended to include even red marks that would clear up after a few hours from a swat on the buttocks. In other counties, bruising was required.

I know this is a generalization and many may say it an unfair one, but from my experience a significant number of person drawn to the helping profession of social work had turned their own abuse and neglect into motivation to make a difference. This is fine and admirable. However, it can also be a barrier. It is a barrier when one consciously or subconsciously defines the terms they use in their work by their own personal experiences. It is a natural and human thing to do so I do not mean to insult anyone. Rather, I point it out to stress how important it is to develop uniform criteria that defines abuse and neglect in Kentucky.

For those wanting to see the full report:
Report by the Office of Inspector General

ABA Model Rules of Conduct for Judges

Quite a bit of controversy arose at the ABA’s midyear meeting over the wording of the long standing Model Code of Judicial Conduct. One group sought to move “appearance of impropriety” language out of the rule and into the scope section. This would have precluded the possibility of judges being disciplined for the mere appearance of impropriety in states adopting the model rule. The ABA delegates finally decided on maintaining the stricter traditional language:

As approved by the House, Rule 1.2 (Promoting Confidence in the Judiciary) states: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and avoid impropriety and the appearance of impropriety.”

Kentucky’s Judicial Code of Conduct also follows the stricter traditional rule.

CANON 2: A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES

This rule is then detailed more fully in the Code. More than anything, maintaining this language sends a message to the public that they can expect the highest ethical standards from their judges. I suppose it also serves as a reminder to the judiciary of the publics expectations for them. I have not researched this so I invite input from those with knowledge, but I suspect it a very rare event that a judge would actually be disciplined solely for the appearance of impropriety. If it is used, I expect that there was actually more than appearance involved but the actual impropriety could not be pinned down.

For the foregoing reasons, I think it wise to leave the language of the rule intact. It does create hurdles at times – especially with an elected judiciary. However, overcoming those hurdles helps the best rise to the top. I interned for a judge that now sits on the Kentucky Supreme Court (I won’t mention her name) during the campaign. I was pleased to see how much energy she put into avoiding even the appearance of impropriety. This helped bolster my faith in the vast majority of those sitting behind the bench.