Here is a thought provoking article about shaken baby syndrome. The main question is about the time frame in which symptoms are likely to present. Some experts now question the conventional wisdom of immediate onset and consider a window of 15 hours or more as possible. Some innocent people may have been jailed based the traditional view. The court in this article refused a second look even though the prior conviction may have been based on faulty science.
Here is a story about the 200th person to be set free from prison and exonerated by DNA evidence. Often we pay lip service to the idea of presumption of innocence, but deep down believe anyone charged with a crime, or even suspected of one, to be guilty. See the comment to this prior post.
This 200th person proven to not have committed the crime of which he was convicted reaffirms that we must safeguard this basic tenet of law: innocence until proven guilty. This is because he shows that even when we take every procedural precaution against false convictions, they still happen. To minimize this tragedy, we must remain vigilant to the concepts set forth in the Constitution. His exoneration drives home the point even further because if it can happen to some guy who was sitting home alone watching TV, it can happen to me. Worse yet, the real guilty party went free.
While the Constitution provides this express protection in the arena of criminal law, it should be carried into other areas as well. While the burden of proof is not so high in civil matters, we must still start with the expectation that the party pursuing a claim must prove their case. For example, in dependency, neglect, and abuse court, the desire to err on the side of caution lies in tension with presuming innocence. Here, where competing interests cut the finest of lines, the vigilance must all the greater.
I could not find a link for this story from the New York Times News Service reprinted in the H-L today. The headline read “Infant mortality rates rise in the south”. Briefly, the article states that infant mortality in Mississippi (and other unnamed southern states) shot up from the low of 9.7 per thousand in 2004 to 11.4 in 2005. The national average was 6.9 in 2003, the last year such data is available.
This rise was attributed to increased incidences of obesity and to cuts in welfare, including Medicaid. Though the article did not say this, I believe the increase in obesity can also be tied to cuts in welfare. My family, in an attempt to eat better, has begun searching out healthier foods at the grocerie. Turns out, the healthier and more natural the food, the more it costs. Conversely, the more chemicals and crap in the food, the less it costs. Unfortunately, the cheapest food tends to do bad things to one’s body, like increase obesity.
So, during this tax filing month as you consider how you are paying less in taxes thanks to certain cuts and deductions over the last several years, remember that those tax dollars used to help fund welfare programs that helped keep these babies alive.
This post at LawReader provides an in-depth treatment of witnesses recanting from criminal trials and the rarity of such an event leading to a new trial.
Since todays theme appears to be on forgiveness, I wanted to note that some states have passed or are passing “I’m Sorry” legislation . It generally seems like a good idea. I was told repeatedly in Law School that anytime an injured person says, “It isn’t about the money”, then you could be sure it was about the money. Actually, I was taught it was ALWAYS about the money. I suspect that at some point in an injured person’s attempts to make sense of what has happened and get some sense of justice, it does become about the money. I am not yet jaded enough to believe it is always about the money.
Mistakes happen in any professional service industry. This includes the medical field. However, not all mistakes are due to negligence. Also, not all bad outcomes are due to mistakes.
The “I’m Sorry” is very appropriate for when a bad outcome happens absent mistakes or when a mistake has occurred, but it was not one that amounts to negligence. I suspect that a sincere expression of empathy and compassion, plus an explanation, would go a very long way to resolving complaints. It would have to happen early on, before the injured person’s heart is hardened with anger. When there was actual negligence, a case will not turn on whether or not the physician offered an apology. There will be records and experts testifying. So, there does not appear to be much of a downside to this type of law. I’ll vote for it!
I read an article in today’s H-L that was so full of comassion and hope. You can read it here. It is about how the White House has acknowledged they “mishandled” e-mails related to official business (perhaps the firing of the DOJ attornies). It gives me hope that if I mishandle some important information, the government will just forgive me - as long as I acknowledge the “mishandling”. Like, if I somehow fail file taxes and those forms just somehow got lost because I “mishandle” them, I am sure the IRS will forgive me. After all, they’ll say, he just “mishandled” them. No biggie!
This post at LexingtonLawyers highlights a real struggle in the legal community between greed and the value of services. It is true that for many impoverished Americans, legal representation is out of reach. Lawyers should assist in pursuing justice for the poor by doing pro bono work. I interviewed at one biglaw firm in Louisville, Kentucky where I inquired about their pro bono program. The interviewer told me that they “do not have time to do pro bono work.” I was not offered the position which was likely a blessing to both of us.
On the other side is the reality that the law is complicated and we attorney’s work very hard in law school. I know this will anger some physicians, but in my law class was a former cardio-vascular surgeon who had a physical problem that prevented him from continuing to do surgery. He told me that law school was more intellectually challenging than medical school had been. I only report what he said - I cannot personally make the comparison, but I do know it was a tough three years. Attorney’s need to be fairly compensated for this expertise.
Too often, I see people who could afford to invest a few hundred dollars into some legal advice attempt to save money by doing it themselves. Sometimes, this backfires and it costs them a few thousand dollars or more in the long run. A friend recently called me from court with a desperate plea for guidance on a child support matter. I quickly gave him the answer he needed and it saved him more than a hundred dollars a month. As one Fayette Family Court judge recently told a person insisting on representing themselves, “You wouldn’t operate on yourself if you needed surgery would you?” It isn’t a perfect example (remember the first Rambo movie? - he was handy as self-surgery), but the point is well taken.
The answer is balance. The $600,000 dollar bill discussed at LexingtonLawyers is one extreme. The law firm in Louisville with the big name that had no time for pro bono work is an extreme. Justice demands that attorney’s find balance by providing value commensurate with their fees and doing a share of pro bono work for the poor.
