“The mother of accused serial killer Maury Travis, whose bizarre hanging death in the St. Louis County Justice Center was ruled a suicide, filed a suit Friday against the county, the architects who designed the jail and the contractors who built it.” Authorities believe Travis committed as many as twenty murders; he hanged himself in his prison cell after leaving a note. (Peter Shinkle, “Mother of accused serial killer sues over death in jail”, St. Louis Post-Dispatch, May 15)(via Brian Noggle)(& letter to the editor, Jun. 22).
Author Archive
New York’s Martin Act: Spitzer’s blank check
Why is New York Attorney General Eliot Spitzer so feared by the state’s financial community? A major reason is a little-known piece of 1921 New York legislation called the Martin Act, aimed at financial fraud. “It empowers him to subpoena any document he wants from anyone doing business in the state; to keep an investigation totally secret or to make it totally public; and to choose between filing civil or criminal charges whenever he wants. People called in for questioning during Martin Act investigations do not have a right to counsel or a right against self-incrimination. Combined, the act’s powers exceed those given any regulator in any other state.
“Now for the scary part: To win a case, the AG doesn’t have to prove that the defendant intended to defraud anyone, that a transaction took place, or that anyone actually was defrauded. Plus, when the prosecution is over, trial lawyers can gain access to the hoards of documents that the act has churned up and use them as the basis for civil suits.” Important reading (Nicholas Thompson, “The sword of Spitzer”, Legal Affairs, May-June). Radley Balko comments (May 12), and see our Jan. 17 item. More on Spitzer’s financial enforcement: Dec. 17, 2003; Jun. 17-18 and Oct. 30-31, 2002; Mar. 31-Apr. 2, 2000.
Toward an “apology privilege”
“On the one hand, it should not surprise us that genuine contrition defuses litigation. Anybody who has ever served as a general counsel of a corporation knows — or should know — that most people bring lawsuits because they are angry. … On the other hand, we have created rules of evidence that make it very difficult for people and institutions to apologize. … If you apologize, it can and will be used against you to prove liability. If you don’t apologize, though, you may increase the likelihood of the lawsuit, you avoid coming to terms with your own culpability, and you fuel the rage of the person you injured.
“Two states, Colorado and Oregon, have created a little space for civility by passing laws that bar plaintiffs from introducing a doctor’s apology as evidence in a medical malpractice case. A great start, but why carve out an ‘apology privilege’ just for doctors?” — Jack Henneman of Tigerhawk (May 18). And see Cut to Cure, also May 18.
Judge OKs $1 billion fen-phen verdict
A 7 percent chance of winning
The New York Sun, on a roll recently, digs deeper into that controversial cosmetics-giveaway class action settlement being aired before an Oakland federal judge (see Apr. 14 of this year and Jul. 21, 2003). According to a declaration filed last week by San Francisco attorney Francis Scarpulla, “Plaintiffs’ counsel consulted with a litigation-risk expert, who, after carefully reviewing all aspects of this case, opined that if plaintiffs’ counsel tried the case 100 times, they would win only seven times”. Harvard law prof David Rosenberg describes the case as having “little merit”. (Josh Gerstein, “The Case of the Cosmetics Giveaway”, New York Sun, May 17). Update Dec. 3: settlement OK’d; Mar. 14, 2005: judge approves settlement.
Court: States not immune to ADA damage claims
“The Supreme Court upheld the right of disabled people to sue state governments that fail to provide ramps, elevators or other forms of access to their courthouses yesterday — a clear but limited victory for the disability rights movement that blunts a trend at the court in favor of states’ rights.” The case of Tennessee v. Lane split the Court 5-4, with Sandra Day O’Connor swinging over to join the liberal wing. (Charles Lane, “Disabled Win Right to Sue States Over Court Access “, Washington Post, May 18)(opinion). Public radio’s “Marketplace” business show interviewed me about the case Monday afternoon in a segment that can be heard online (May 17, audio clip — first item in broadcast). More: Brian Doherty at Reason discusses the case (“A Nation of Vague Laws”, May 20) and makes kind mention of our work. Even more: see Marcia Coyle, “Watching Out for ‘Lane’ Changes”, National Law Journal, May 28.
Parked outside the emergency room…
…and in the physician-only parking area, no less, this lawyer’s van seen at Brooklyn’s Maimonides Medical Center. (Pics #1 and #2 at EMedConcepts, May 6) (via Gross Anatomy). We wonder about that hydrant in pic #1, too. More: a reader directs our attention to the website maintained by the van’s owner, the Law Office of John Dearie & Associates, which includes a page on the “mobile law office” and a reprint of a Dec. 26, 2001 New York Times article about it. Further: welcome Fark visitors (see May 20); and one observer speculates that the lawyer might have scheduled a deposition at the hospital, a theory about which we are skeptical (see Yclipse, May 18, with comment from me); see also Chris Rangel, May 19. More: Jan. 21, 2005 (TV show adapts idea), Jun. 5, 2005 (law firm’s side of story).
Lie to your company’s lawyer, go to jail
“Until last month, lying to your own company’s lawyers was not a crime. Now it is. Defense lawyers and civil libertarians are expressing alarm at the government’s aggressive use of obstruction of justice laws in its investigation of accounting improprieties at Computer Associates, the giant software company.” Among sources of the pressure to cut a deal with prosecutors rather than fight: in March Jamie Olis, a mid-level executive at natural gas firm Dynegy, was found guilty of accounting fraud in a scheme to please Wall Street by hyping earnings and sentenced to 24 years in prison. The guy would have been a lot better off to have gunned down someone on the street instead, or even tried to grow psychedelic mushrooms (see Dec. 6). (Alex Berenson, “Case Expands Type of Lies Prosecutors Will Pursue”, New York Times, May 17)(& letter to the editor, Jun. 22).
“Betting on the Pequots”
Yesterday’s New York Post published my favorable review of Brett Fromson’s book Hitting the Jackpot: The Inside Story of the Richest Indian Tribe in History about the machinations that resulted in the rise of the Mashantucket Pequot tribe in Connecticut and its fabulously successful casino, Foxwoods. The story is one replete with bald impostures facilitated by lawyers who, in a fine career arc, started out in the ever-so-idealistic legal services movement and gradually turned into well-compensated casino promoters, all on behalf of a crew of putative tribe members who “are about as authentically Indian as Camilla Parker Bowles.” (Walter Olson, “Betting on the Pequots”, May 16).
Oz: prisoner takes drug overdose, sues
Australia: 28-year-old James Samuel Steward, who “was serving a three-year sentence at Goulburn jail when he overdosed on illegally acquired methadone in May 1998”, is now “suing the state for more than $4 million. … His barrister, Barry Hall, QC, … argued that among the department’s breaches of duty of care was its failure to adequately manage the jail to prevent the entry of illegal drugs.” (Leonie Lamont, “Ex-prisoner sues over drug disablement”, Sydney Morning Herald, May 11). For a case in which a woman sued an American hospital for not preventing the smuggling of the illegal drugs on which she overdosed, see Jun. 27, 2003.