“The Ohio Parole Board has decided a Cleveland-area man has spent the last 25 years behind bars for a crime he may not have committed and voted unanimously for his release.” Gary Reece was convicted of rape in 1980 on the accusation of a neighbor despite his denials and a lack of any evidence that he had ever been in the accuser’s apartment. In the years since then much evidence has accumulated casting doubt on the credibility of his accuser, Kimberly Croft. In fact, “on one television news program, [Croft] claimed that Gary Reece actually killed her during the attack in question, but that ‘Snow White and the Seven Dwarves’ brought her back to life,’” according to a brief filed with the parole board by law students working with the Ohio Innocence Project. (Roy Wood, “UC law students convince board: Man is innocent”, Cincinnati Post, Dec. 18; “Imprisoned on a shaky story”, (editorial), Cleveland Plain Dealer, Dec. 5).
From the monthly archives:
December 2004
Michael Fox of Jottings by an Employer’s Lawyer sees a resurfacing of this campaign, about whose merits he’s skeptical (Dec. 20). For the schools context, see Feb. 14-15, 2001. More: Point of Law, Apr. 18, 2005 (jury award in Indiana on the theory). More: Mar. 2, 2007.
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I didn’t see any mention of lawsuits in the Lileks column the Key Monk cites immediately below, but for the polite rejoinder to the underlying point, see Virginia Postrel.
Overlawyered.com readers, thanks for reading my posts and allowing me to invade your cyberspace. Thank you Mr. Olson for letting me sap your bandwidth on this site. Two things to leave you with, as The Monk’s one-week term as guest blogger ends:
1) This amusing entry from James Lileks regarding the social aspects of the various lawsuits urging that church-state separation means no “Christ” in Christmas.
2) Merry Christmas, Joy of the Season, All the Best and Happy New Year.
…for a highly productive week as guestblogger (five posts yesterday alone). His regular blog (“Politics, Sports, Law, and occasionally Religion — whatever you want to argue about”) can be found here.
From the “Must do more, somehow” column comes this tragedy-spawned lawsuit by a grieving mother following the suicide of her daughter. The daughter was a manic depressive schizophrenic who killed herself with a shotgun she bought from Wal-Mart. The Wal-Mart branch seven miles away had on file her prescription for anti-psychotic medication. The mother wants $25,000,000 from Wal-Mart for failing to prevent the tragedy by reviewing her daughter’s pharmacy records or its own store records (the daughter had assaulted another person at the store where her prescription was on file).
Problem 1 = Federal law prohibits revealing pharmacy records in running firearm background checks.
Problem 2 = Texas law prohibits the publication of mental health records without the patient’s approval.
Problem 3 = How does an attack on a third party result in any evidence that someone is suicidal?
Details are here.
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Are you an hourly employee in California who wants to work through lunch so you can leave early to beat traffic? Under California law, your employer can’t let you do that without paying you for an extra hour’s salary: they risk suit, and there have been dozens of such suits in California this year. The Schwarzenegger administration is proposing administrative rule-changes to make meal breaks a voluntary option of employees, and unions are attacking him for “chipping away at workers’ rights” for trying to give the California rule the same flexibility as the federal rule. (Rachel Osterman, “Clash over new rules for lunch breaks”, Sacramento Bee, Dec. 15). More: NLJ, Jan. 31.
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One of the reasons that The Monk supported the revolutionary and quite extensive tort reform that the Texas Legislature passed last year (commonly still known as “House Bill 4″) is that trial lawyers have a tremendous capacity to find ways to, er, protect their clients’ interests no matter how many pathways to victory, loopholes in previous laws or damage caps are put in place.
And this ingenuity is being exported from US courts to international tribunals. As James Pinkerton’s column notes, “the trial lawyers, entrepreneurial as always, have found new courts – world courts – to play in. And they have found allies among activists and fortune-hunters who dismiss traditional democracy and diplomacy in pursuit of their goals.”
Yipes.
UPDATE: for more on the Inuit lawsuit noted in Pinkerton’s column, check out Point of Law’s item noted by this site’s editor here. For those of you just tuning in, Point of Law is Overlawyered’s companion site that (as its own description states) “is a web magazine sponsored by the Manhattan Institute that brings together information and opinion on the U.S. litigation system.”
In the United Kingdom of Great Britain and Northern Ireland, a group of Sikh “protesters” forced the cancellation of a controversial play described as a “black comedy” that centered around rape and murder at a Sikh temple. The details are in this article (registration is gratis) and some outrage is in this short lead editorial.
Here is what is most worrisome — the notion that free speech must give way to the (violent) protests of the community (and the concurrent lack of protection by peace officers). The attitude is nicely encapsulated by these two reactions:
More press coverage on the $105 million collapsing seat verdict (Nov. 24). The Fulton County Daily Report spells out the plaintiff’s case, without much attempt at balance. A press release from the plaintiffs’ lawyers claims that Chrysler experts admitted that a “stronger” seat would not have collapsed and that other Chryslers have “stronger” seats–but leaves it ambiguous whether the first “stronger” is referring to something different than the second “stronger.” The artful phrasing in the release (instead of a straightforward statement about whether Chrysler’s experts admitted Joshua Flax would not have been hurt if he had been in a Mercedes), combined with the improbability that Chrysler would go to trial with such a fact pattern, suggests that this is sophistic equivocation. (R. Robin McDonald, “Partner Wins $105 Million Verdict Against Chrysler”, Fulton County Daily Report, Dec. 1; Butler Wooten press release, Nov. 23). The Detroit News has extensive followup coverage, featuring a photo of the totaled minivan from which five people walked away, and an interview with a NHTSA spokesman who notes that “If you merely increase seatback strength, you may be trading one set of injuries for another. These seats did exactly what they were designed to do.” (Jeff Plungis, “Trial puts spotlight on safety of car seats”, Dec. 19).
In the Detroit News article, Clarence Ditlow complains that there’s an increase in collapsing front seats hitting children in the rear seats–but that’s surely a result of fewer children being seated in the front, where they were in danger of passenger-side airbag injuries. (Airbag-child fatalities have declined from 60 in 1995 to 10 in 1999.) Indeed, as the Washington Post notes, notwithstanding their headline, child deaths per mile traveled is down, as is the long-run trend of total child deaths. The Post article also suggests areas where we will see future auto litigation as new safety features transition from optional to standard. I’ve worked defending an auto company in shift-interlock litigation, for example. (Greg Schneider, “Kids, at Risk and Neglected”, Washington Post, Dec. 5).
The Ninth Circuit reinstated indictments against seven defendants accused of financing a terrorist group. The ruling also reversed a district court ruling that invalidated the 1996 terrorism-financing law under which the US government had issued the indictments. The bush Administration has used the law as a tool to prosecute people who have allegedly bankrolled terrorist organizations by contributions to “charity” organizations. This ruling matches the outcome of a similar case before the Fourth Circuit Court of Appeals. Details are here.
The ruling is especially notable because the Ninth Circuit is generally considered the most liberal (and volatile) of the 12 regional circuit courts — it sits primarily in San Francisco and presides over appeals from US district courts in the far west and some mountain states; the Fourth Circuit is considered one of the two most conservative federal appeals courts and presides over appeals from district courts in the Carolinas, the Virginias and Maryland.
I wrote about the frivolous legal challenge to the Ohio presidential vote earlier today. But real vote fraud and voting shenanigans seem to be taking place in Washington state.
John Fund writes about a real threat to voting rights in Washington state — efforts to “find” votes for the gubernatorial candidates in what had been a close election, which became closer every time King County looked at its in-box.
UPDATE: And for more fun with voter intent and attempts to obtain executive office through fraud, check out the coverage of San Diego’s controversial mayoral election here.
We’ve previously ridiculed suits against Ebay over items purchased there (e.g., Jul. 13, 2000); after all, if Ebay, as opposed to individual sellers, were to be held legally responsible for every transaction on the site, it would defeat the purpose of a low-transaction-cost Internet bazaar. But India has taken the illogic one step further by arresting and holding without bail Avnish Bajaj, the American head of the local affiliate website Baazee because a college student, in violation of the site’s policy, auctioned a (now-widely-available) two-minute amateur porn film made by a couple of teenagers from the prestigious Delhi Public School. (Saritha Rai, “EBay Fights India Arrest Over Sale of Sex Video”, New York Times, Dec. 21; Paul Watson, “Cellphone Sexcapade Fuels Scandal in India”, LA Times, Dec. 21; Rohit Wadhwaney, “From Baazee CEO to Jail No 3 of Tihar prison”, Times of India, Dec. 20).
Chester County, Pennsylvania:
The boy [a 17-year-old who had sustained head trauma in an auto accident] could not be treated at Brandywine Hospital in Coatesville because the trauma center had closed, so he was transferred to Crozier-Chester Medical Center in Delaware County….‘The last neurosurgeon in Chester County was Sam Lyness, a world-class neurosurgeon,” [Robert] Surrick said, but Lyness left Pennsylvania when his malpractice premiums reached $383,000. With no neurosurgeons, Brandywine shut down its trauma center in 2002.
(Paul Carpenter, Allentown Morning Call, Nov. 28).
We’ve posted four more reader letters from our alarmingly backed-up pipeline, at our letters page. Among topics this time: Manhattan attorney Ravi Batra invites us to take a closer look at his lawsuit against the TV program “Law and Order”; can Texas exercise jurisdiction over out-of-state class action lawyers’ representation of Texas class members?; freeing innocent prisoners, and the other kind; and the continuum of disabilities.
Sometimes, if a company ends up getting sued it’s its own blasted fault for failing to make a good product. That could be the case if Kia Spectra crashes start piling up.
The Insurance Institute of Highway Safety (home website here is a private organization funded by auto insurers that tests new and redesigned vehicles for crashworthiness. The IIHS tests are different than the ones that the National Highway Transportation Safety Authority (the agency within the US Department of Transportation) performs and have different rating systems primarily derived from the theoretical injury that the crash test dummy sustains in the IIHS test. IIHS ratings are Good, Acceptable, Marginal (in other words, barely meeting the test to keep the occupant safe) and Poor (read: car occupant will sustain injury in crash).
On June 1, 1998, Clark Seeley left the house while leaving Pop-Tarts heating in a toaster. Poor decision: there was a fire in the unattended toaster, and his house was damaged. Seeley blames not himself, but the toaster manufacturer. (The press doesn’t mention it, but Seeley’s insurance company initiated the suit before apparently settling.) The story is in the news now because (paging Peter Nordberg) the judge (probably correctly) held Wednesday that an expert’s study that a frosted-sugar pastry could conceivably start a toaster fire was admissible because it was falsifiable. The real question is why a court has let this case get to the stage where parties need to hire lawyers to supervise and submit reports from frosted-sugar pastry experts. (Michael Virtanen, “Judge Allows Expert on Pop-Tarts To Testify in Flaming Pastry Lawsuit”, AP/NY Sun, Dec. 17; Liberty Mutual Ins. v. Hamilton-Beach, 1:99-cv-01162-LEK-DRH (N.D.N.Y.)) The maker of Pop-Tarts was not sued, perhaps because the box warns consumers not to leave pastries unattended in the toaster. (Sean Carter, “Pop-torts”, November 2, 2001). Previous suit: Jul. 30, 2001. Update: New York Lawyer weighs in. (John Caher, “Engineer Ruled Expert Witness in Flaming Pop-Tart Case”, Dec. 21).
The Ohio Supreme Court’s Chief Justice threw out a lawsuit backed by Jesse Jackson and funded by a partisan Massachusetts election monitoring group. The lawsuit claimed that Pres. Bush unfairly won Ohio due to some indescribable fraud by his supporters as this excerpt from this article indicates:
The complaint questioned how the actual results could show Bush winning when exit-poll interview findings on election night indicated that Kerry would win 52 percent of Ohio’s presidential vote.
Without listing specific evidence, the complaint alleges that 130,656 votes for Kerry and John Edwards in 36 counties were somehow switched to count for the Bush-Cheney ticket.
The Ohio chief justice ruled that
