Victim - Driven Prosecutions: A Dangerous Path

OK, a controversial view of mine. As a former prosecutor I've dealt with hundreds of victims of crime over the years. Some of their stories were truly tragic, ranging from battered spouses to old ladies who had their life savings stolen by their drug-abusing grandsons. It happens, folks.

But the decision on whether or not to proceed with a case was always taken coldly, assessing the evidence and, in accordance with the CPS mandate, whether a conviction was a reasonable prospect based on the evidence. Emotion never came into it. Then came directives from on high that victims should be consulted when cases were dropped. This often meant that when something changed on the day of trial (another witness who refused to attend on the day for example) the prosecutor would have to 'negotiate' with a victim on dropping the case. This was always a difficult process.

My decision would always be based on the fact that in my assessment it was actually highly unlikely we'd secure a conviction based on the new situation. However I've lost count of the number of times I was 'forced on' at trial by a victim (or more accurately an alleged victim) that refused to budge and wanted his/ her day in court. As a result, court time was wasted, as was the cost to the public purse. In one case we had a three day trial that went ahead at the alleged victim's insistence only for the case to inevitably be lost. It was just too weak - and always was.

So it was with some alarm that I read recently the DPP, Keir Starmer proposes victims be allowed to actually challenge the decision not to prosecute. This is either an admission that prosecutors often get it wrong or political posturing - being seen to make the right noises on victims of crime with an election looming on the horizon. Possibly both.

In my experience, there are already checks and balances within the CPS to ensure that the decisions taken are the correct ones. The prosecution of serious cases tend to be decided by high-ranking, very qualified and able prosecutors. The decision not to prosecute is never taken lightly and I have never once encountered a case that should have proceeded to trial but was binned unjustifiably, even though I accept that on rare occasions this does happen. It's hard on true victims of crime but the CPS has a duty, not just to victims, but to the whole criminal justice system, and that includes defendants and the courts in which they are tried.

I saw a case recently in which a defendant's case didn't proceed to trial because he was certified by a number of independent expert witnesses to be suffering frm brain damage as a result of an unrelated assault. The alleged victims and the media were in uproar and the local MP was clamouring for a change in the law - presumably to allow defendants with mental impairment to be put on trial.

I'm all for alleged victims having input into cases - in particular when they can actually be deemed to be victims after a guilty plea or verdict when their impact statement is taken into account, but in my view alleged victims already have more than enough say in prosecutions, and the CPS should remember that it's their responsibility to decide on the merits of a case by assessing the evidence dispassionately. That's the only way true justice for victims can be achieved.

Judges....Shhhhh!

I spotted a recent case from Canada recently in which the Ontario Court of Appeal gave a lower court judge a sever reprimand for interfering during a trial. Apparently, this meddlesome judge made 'improper and umwarranted interjections' that actually led to a miscarriage of justice.

Now I can't claim to have ever been involved in a case in which judge interference has led to such a result but I've certainly had my fair share of busybody judges who actually don't have a clue about their actual role. They see themselves as inquisitors, diving right into the arena, regardless of what the advocates in the well of the court are trying to achieve.

Almost always, it's frustrating at least and disastrous at worse.


Of course, part of a judge's role is to inquire into the case and ask questions when necessary - and there are times when counsel's performance is under par. But it's a fine balancing act that many can't get to grips with at all. As former lawyers themselves they just can't help but become embroiled in the cut and thrust of proceedings.

So a word to anyone who sits as a judge of any kind - rise above it all. Don't enter the arena and when you have competent counsel in your court let them do their job. You'll find it easier to do yours.

After 50 Years, Gideon v Wainwright Hasn't Delivered

It was a case that promised so much but in reality has delivered so little. In 1961, Clarence Gideon was charged with burglary of a Florida pool bar. Unable to afford counsel at his trial he was unrepresented and ultimately found guilty. Sentenced to five years' imprisonment he appealed the decision to the Supreme Court of the United States on the ground that the Florida law denying him counsel was unconstitutional.

The Justices agreed, Gideon was retried and acquitted.

But in reality the funding simply hasn't materialized to allow poorer defendants representation in some criminal cases. Of course, it's not a political priority and the public at large have little sympathy for those charged with committing criminal offenses.

But the case was a landmark and should be celebrated as such. Allowing an accused person access to an attorney regardless of their means is a fundamental principle in a civilized society. There's an excellent video here from CBS in which Professor Norman Dawson is interviewed.

Yeee-Hah! I'm Texan For A Day

I often marvel at some of the crazy laws that get passed by state legislatures in the South. From restricting the teaching of evolution in schools to liberal gun laws, Texas is probably the biggest culprit.

But now it seems the good 'ol boys have actually got something right for once with their proposed new law banning the buying and selling of shark fins.

This rotten  trade is stimulated by an obscene demand from Asians for a soup that doesn't even taste that good. Sharks in their millions - yes, millions - are being fished live, their fins hacked off and their bodies kicked back into the water. No wonder world shark populations are falling dramatically, with many species at serious risk.

So Yeeee-Ha!! I'm a Texan for today. The full story is here:  http://bit.ly/WwjJZy

Elder Abuse - We Should All Be Annoyed

Picked up on this story recently:

Lawyer asks jury for millions in elder neglect case: bit.ly/YabxZh

 ...and it got to me. As someone whose parent died recently from Alzheimer's it struck a chord. OK, the Plaintiff's lawyer was over-playing on the emotions of the jury just a little but I have to say I'd take his figure...

...and double it.

How To Prosecute A Dead Person...

Not hard if you're in Russia. What a story.....and these guys think they're a modern democracy?

Echoes of Stalin as dead lawyer goes on trial in Russia. Yes, really: bit.ly/Z682Ht

CA Prop 36: A Change is Long Overdue

Californians will get the chance to revise the well-publicized 'Three Strikes Law' that was passed by their legislature 18 years ago. This video accurately sets out the issues (sorry about the 15 second ad that precedes it). Depending on your browser the play button may not work - just click on the pic:




Surely this change is for the better. Mike Reynolds's story is a tragic one but his reasoning that we as a society should lock people up almost indefinitely 'just in case' they commit offences is obviousy flawed.

Surely the whole tenet of the original legislation was to keep repeat violent / sexual offenders away from the public and Prop 36 won't change that. By depriving someone of their liberty for virtually the rest of their natural lives for minor offences is almost a 'two-and-a- bit-strikes' law and cannot be what legislators or the public intended.

Let's hope that justice is done.

Why Religious Leaders Must Understand The Constitution

The Constitution of The United States was drafted by men of Enlightenment, many of whom were non-believers or paid lip-service to religion. As a result, the document itself is secular in its nature. This is an indisputable fact. When Benjamin Franklin suggested during the Constitutional Convention that the founders begin each day of their labors with a prayer to God for guidance, his suggestion was defeated.

The Founding Fathers wisely declared that Church and State should be completely separate (implied from the First Amendment) and even that the office of President need not be held by any person of any particular faith. This is hard to believe these days, where we see the huge political power of the religious right in the U.S. and a statement by any political condicate for any office that he or she is an atheist condemns them to abject failure. Almost all 535 members of Congress declare themselves Christians. This is a statistical impossibility.

The Christian right have hijacked the United States by stealth. Sections of the Tea Party even want schoolchildren to be taught that the Constitution was created by the hand of God. I kid you not. The phrase "One Nation Under God" wasn't adopted by Congress until 1942 in the Pledge of Allegiance and wasn't included on currency until the 1950's. It was never used in the Constitution.

So was it any surprise that a group of Churchmen of the right-leaning persuasion recently publicly admitted crossing the line and brazenly included politics in their sermons? Of course not.  These people think it's really OK to do this. Have they ever read the Constitution or understood its origins? These are people who benefit from tax-exempt status purely because they keep their meddling hands off politics and do good deeds in the community. Their sermons must sound like a rallying cry for the Republican Party (I'm tempted to add "for God's sake"), and in my opinion they should be prosecuted by the IRS or at least have their status reviewed.

Of course, people of faith have an interest in politics. Why shouldn't they? But it's a sad day when they go to Church on Sunday and hear a sermon that has all the hallmarks of a political rally. However, it's encouraging to hear that voters are getting wise tothis nonsense and almost 50% believe their leaders talk too much about religion and their personal beliefs, with a huge 66% saying that a church should never endorse a political candidate.

We can only hope this trend will continue and the Church keeps its hands off politics in future.

The Outrage of Sharia Marriages

The Sunday Times in London carried out an undercover investigation recently on the disgraceful forced marriages of children to adult Muslim men in the U.K. I shouldn't have been shocked but I was....and I'm furious. Unfortunately, I expect the situation is much the same in the U.S.

The report stated that girls as young as twelve were being married off to grown men. This is done with the complicity of parents and Muslim clerics - and we as a society it seems aren't prepared to say enough is enough for the fear of offending those who follow the religion of permanent offence.

If there are 'moderate Muslims' where are they? Why aren't they trying to stop this openly supported trade in paedophilia? Do they too shy away from causing offence to the all-powerful clergy? If that's right, well shame on them.

These people should be told that if they wish to practice barbaric customs from their 'holy book' then they are not only breaking the law of this country but if they continue they will be prosecuted to the full extent of it. Successive governments, however, have pandered to the whims of these people. Even some U.K judges have welcomed the fact that some pockets of society  are ruled not by the law of the land where they are situated but by the violent and Stone Age edicts of Sharia.

This has to stop.

I have lived in foreign countries over the years and I accepted the law of the land. I accepted other peoples' ways even if I sometimes disagreed with them. I have never been racist and never will be. I despise it. But we cannot ignore the creeping danger of allowing an alien culture to get a foothold in our home - a place it most certainly does not belong and isn't wanted. If Muslims, or anyone else for that matter, wish to practice their faith then by all means do so (despite the fact that those of other faiths aren't tolerated at all in many Muslim countries). But obey our laws or face the consequences.

This is the message that our mainstream politicians should be sending, but will never do so for fear of 'offending' Islam.

Article: Reinsurance - The Invisible Insurers

With thanks to insurance consultant and expert witness John T. Bogart for his article: Reinsurance - The Invisible Insurers. You can view the full article here.

Mr Bogart's full profile with X-Pro is here.

Drug Decriminalization: A Federal Judge Speaks

Respected federal judge Richard A. Posner, who's considered a legal conservative as called for the elimination of criminal laws against drugs in a lecture at Illinois' Elmhurst college. The Judge was, of course free to speak out did so by cogently setting out the argument for decriminalization, but I seriously doubt that any politician seeking election by the public would follow suit.It's a bit like religion - at election time everyone's a Christian.

Here's an extract:

"I don't think we should have a fraction of the drug laws that we have. I think it's really absurd to be criminalizing possession or use or distribution of marijuana," he said. "I can't see any difference between that and cigarettes." The audience gave him a round of applause. 

..."But also I'm skeptical about the other drug laws," Judge Posner added. "The notion of using the criminal law as the primary means of dealing with a problem of addiction, of misuse, of ingesting dangerous drugs -- I don't think that's sensible at all."

He said drug laws are "responsible for a high percentage of our prisoners. And these punishments are often very, very severe. It's all very expensive." Judge Posner has pointed out that legalizing marijuana and other drugs would save federal, state and local governments $41.3 billion per year.

He said drug laws are, "...a waste of a lot of high quality legal minds, and it's also a waste of people's lives who could be as least moderately productive with having to spend year after year in prison. That is a serious problem."

The full video is here. 

Expert Profile...

Expert Witness Profile: Dr Allan Rubenstein, MD. Child & Adult Neurology.

 Clinical Professor of Neurology and Pediatrics, NYU Langone Medical Center. Actively practicing neurologist with strong academic credentials, numerous publications, several books, available for record review, IME’s for all personal injury litigation, including medical malpractice. Approximately 50 depositions, 25 court testimony, 50/50 plaintiff/defense ratio. Midtown Manhattan location, available to travel.

Areas of specialty include genetic and developmental problems of the CNS (HIE, birth trauma ), post-traumatic mild cognitive deficit, cervical and lumbosacral trauma, cerebrovacular disorders, neuromuscular disorders, Lyme disease, neurologic complications of anesthesia, neuro-oncology Contact: ARubenstein@CNS-PC.com or call 212-974-3009 for references, further information, CV and rates.

Article: The Work of Physician Assistants

With thanks to PA, expert witness and X-Pro member Dr Jeffrey Nicholson. His article on the invaluable medical-legal work conducted by PAs was republished by us and can be viewed here.

Andy
The X-Pro Legal Team

Nobody Asked Me But.....

U.S Expert Witness Blog: Hotel expert and X-Pro Legal Member Stan Turkel, Aug.3rd 2012:

1.  Better Than Expected

HotelNewsNow.com reported on July 26, 2012:

Despite a softening economy, the outlook for future monthly overall business conditions in the U.S. hotel industry increased during June, according to e-forecasting.com's Hotel Industry Leading indicator.  The indicator increased 0.5% to 103.5 during June, following an increase of 0.6% during May.  It was set to equal 100 in 2005.
 
HIL's six-month growth rate, which historically has confirmed the forthcoming turning points in U.S. hotel business activity, was 4.1% in June, following a positive rate of 3.6% in May.
 
The probability of the hotel industry entering into recession in the near-term registered 0.8% in June, down from 0.9% reported in May.

 
Given the dire predictions of economic doom by certain political analysts, the report above forecasts a better future for the U.S. hotel industry.
 
2.  More New Hotel Brands

In addition to the 115 new hotel brands made public in the past 28 months, the following were recently announced:

• Commune Hotels by Thompson Hotels
• Ahn Luh by Beijing Tourism Group and GHM
• The Refinery
• Ambience Hotels by Kempinski
• Swiss-Belinn Pangkalan Bun by Swiss-Belhotel International
• ME by Melia London
• SLS Hotels by sbe

Impertinent Question: How many professional market studies were commissioned to legitimize these new brands?

3.  Hotel Room Cleanliness

Following inauguration of Best Western International's "I Care Clean" program, recent research from Europe reported that almost 70% of hotel guests say that cleanliness and hygiene are most important.  The research completed across Europe by Hotelschool in The Hague in conjunction with Sealed Air's Diversey business shows that most people now make their decisions on where to stay using online ratings to tell their friends if they encounter poor conditions.
 
The cleanliness and appearance of bedrooms and bathrooms were the most critical areas for guests when forming their opinions.
 
"This research confirms our understanding of the critical areas to keep clean and the specific tasks that are vital to making that all-important first impression to guests," said Lill Kleven, global hospitality sector marketing lead for Sealed Air's Diversey business.
 
In addition, the research compiled of responses from almost 700 people in five major EU countries, asked guests about which aspects of cleanliness they expected the hotel to always get right in bedrooms and bathrooms.
 
In bedrooms, the three most important factors were clean linen, no evidence of previous guests and absence of bad smells or odors.  In bathrooms, over three quarters said cleanliness of the toilet seat and pan was a factor and almost half said it was the most important.
 
In total, 46% said review sites were the most important source of information when choosing a hotel and a further 28% cited personal recommendations as the biggest influence.
Two-thirds of the respondents stated that they had stayed in a hotel that was not clean, while 82% had told family and friends about their experience, 75% were put off returning and 72% recommended family and friends should not stay there.
 
The full research has enabled Hotel School The Hague and Sealed Air's Diversey business to make evidence-based recommendations to hotels that help increase guest satisfaction, retention and guest recommendations.
 
In addition, the J.D. Power and Associates 2012 North American Hotel Guest Satisfaction Index Study was released on July 25, 2012 and reported that overall hotel guest satisfaction declined seven index points.  This is a new low since 2006.  Room cleanliness, comfort of the bed, ease of adjusting the room temperature and guestroom smell among other factors are taken into account.
 
4.  Lawsuit To Remove Hammons CEO Dowdy

One of the heroes in my book "Great American Hoteliers: Pioneers of the Hotel Industry" (AuthorHouse, 2009) is John Q. Hammons.
 
In 2006, I visited Springfield, Missouri where I interviewed Mr. Hammons (and his excellent executive team) and discovered that he had developed 185 hotel properties in 40 states.  This master hotel developer, builder, owner and manager disdained standard feasibility studies when assessing potential sites for hotel development.  Instead, he relied on his own experience, knowledge and intuition.
 
In 2010, Hammons was removed from the leadership of his company by Jacquie Dowdy, a   long-time aide who assumed the CEO position.  Hammons' seclusion ̶   long-time friends have reported being barred from visiting ̶  led to an investigation by the state to establish guardianship.  Now the Atrium Holding Co, owners of more than half the hotels managed by John Q. Hammons, has filed a lawsuit claiming that CEO Dowdy violated a contract in 2010 when she appointed herself as leader and Gregory Groves as general counsel.  The suit calls for an injunction preventing Dowdy from acting as CEO and removing Groves as general counsel.  It also seeks an injunction to allow Atrium to appoint a president for JQH Hotels as well as damages related to Dowdy's salary and staff bonuses.
 
Let justice be done!

5.  Hotel History: U.S. Grant Hotel San Diego, California

The U.S. Grant Hotel was built by U.S. Grant, Jr. in honor of his illustrious father, President Ulysses S. Grant.  Grant bought the 100-room Horton House Hotel and demolished it to construct the current hotel in 1910.  It was designed by the famous architect Harrison Albright, best known for the West Baden Springs Hotel (1902), French Lick, Indiana with the largest free-spanning dome in the world, then known as the "Eighth Wonder of the World."
 
When it opened, the U.S. Grant Hotel featured top floor arcadia windows, balcony balustrades and imposing lentil cornices. Inside, a grand white marble staircase with a carved alabaster railing led from the lobby up to the hotel rooms. 

In 1919, Baron Long acquired an interest in the hotel and for the next twenty years instituted the following improvements:

• converted the hotel's Bivouac Grill into a speakeasy during Prohibition, named the Plata Real nightclub with live music and dancing and illegal beverages
• created the Italianate Ballroom on the lower level with a travertine marble floor and a unique hand-painted ceiling (now the Crystal Ballroom)
• installed the tallest radio towers on the West Coast on the hotel's roof which became the home offices for radio station KFVW.  President Franklin Roosevelt delivered one of his first radio speeches to the country from this radio station

When the Grant Hotel went through another ownership change after World War II, the     second-floor Palm Court was enclosed to create the Palm Pavilion and the Grand Ballroom on the 9th floor was converted to guest rooms.  But perhaps the most successful decision was to create the Grant Grill off the lobby on Fourth Avenue.  Until 1969, after sit-ins by a group of female attorneys, the Grant Grill had a "mens-only" policy.  As a tribute to these brave women, a brass plaque was installed outside the Grant Grill reflecting the end of that discriminatory policy.
 
The hotel was extensively refurbished in the 1980s by the New York-based Sybedon Corporation and Christopher Sickels but fell on hard times due to a subsequent nationwide financial slump.  Sybedon also acquired and restored the historic Jefferson Hotel (Richmond, Va.), the Jung Hotel (New Orleans, La.) and the Montauk Manor (Montauk N.Y.)
 
At about the same time that the hotel renovation project was underway, a 26-square block shopping mall ̶  the uniquely-designed Horton Plaza ̶  opened across the street from the Grant Hotel.  Along with the massive restoration of the Gaslamp Quarter and the relocation of the San Diego Convention Center to Harbor Drive, these major projects transformed the area.
 
In 2003, the hotel was purchased by the very ancestors of the land on which she stood.  The Sycuan Tribal Development Corporation (STDC), the business arm of Sycuan, a sovereign tribe of the Kumeyaay Nation, acquired the 11-story hotel for $45 million.
 
The Kumeyaay Indians are one of four Native American tribes that are indigenous to San Diego County.  The Kumeyaay can trace their San Diego roots back more than 10,000 years.  Their people lived from the northern edges of San Diego and south past the Mexican border, with land that includes the very spot where the U.S. Grant now stands.
 
President Ulysses S. Grant, the 18th President of the United States, disapproved the treatment of the Indians of the American West.  In 1875, he passed an executive order setting aside 640 acres of land in Dehasa Valley in East San Diego County for the Kumeyaay Tribes.  In great part due to his efforts, the United States Government in 1891 passed the "Act for the Relief of the Mission Indians" which officially recognized the sovereign status of California's Indian Tribes.
 
The Kumeyaay, who had suffered so enormously at the hands of generations of Westerners, remember Ulysses S. Grant as a rare soul among politicians ̶  forthright and generous, he gave them what so many before attempted to take away: dignity, in the form of land.  In an act of poetic justice, the extraordinary restoration of the U.S. Grant Hotel pays respect to its history and to the heritage of the Kumeyaay Nation.

6.  Quote of the Month

"The young man knows the rules, but the old man knows the exceptions"

                                                                                    Oliver Wendell Holmes 

US Experts Blog: Article

With thanks to Mike Wakshull, Document Examiner and Expert Witness:

Document Examination & How Lawyers Can Get The Best Out of Their Expert : http://bit.ly/MFn7fO

Sudan's Horrific Penal Code

For those proponents of sharia law, this article caught our eye and it's absolutely horrific. If you think we're too soft on our prison inmates then this is what happens when the pendulum swings the other way.

Cloud Forensics - What to do?

The rapidly growing sector of cloud computing services is a growing headache for the e Discovery and Digital Forensics providers sector in supporting litigation. Most of the tools developed for e Discovery and Computer Forensics are based on the acquisition of static information, with some supplementary tools that allow for the collection of live information such as memory, network connections and running applications designed to be used on discrete (physical) hardware.


The problem is further made worse by the three distinct service models that prevail amongst cloud providers: SaaS (Software as a Service), PaaS (Program as a Service) and IaaS (Infrastructure as a Service) these three models depending on the one chosen have a range from providing no information to only a limited ability to provide forensically responsive information. This creates a problem when a respondent to a discovery order has to generate supportable information that is required by a court, regulatory agency, or law enforcement.


At present there is very limited research into the development of tools for the forensic collection of cloud data and the existing tools have limited usage in such environments. How do you readers feel about this issue and has anyone come across any work that is leading the way in this part of the field?

Stop Moaning! We're Very Fortunate

If you're an attorney or some other professional with experience of working in the courts, such as an expert witness, you're probably justifiably fed up with swingeing cuts in resources and a general lack of business brought on by the dreadful economic conditions that prevail right now. It's happening the world over.

Well spare a thought for your colleagues in Burma (Myanmar). Apparently, many of the 30,000 lawyers practising in Burma are in daily fear for their lives. If they represent a client who has the temerity to take on any of the authorities they can, and frequently do, have their licenses to practice summarily revoked as well as facing legal action. It's therefore understandable that many are skeptical of the so-called 'transition to democracy', following the release of opposition leader Aung San Suu Kyi [pictured] in 2010.

The head of the Burma Lawyers' Council, Mr. U Thein Oo recently stated that:

"Lawyers are treated as defendants if the court decides they have ‘challenged’ the court, or dared to ‘discuss’ the government. This is not a transition to democracy."

As lawyers are usually at the forefront of preserving the rights of free speech and freedom of association perhaps it's not a surprise that they are been victimized in this way. One can only hope that, one step at a time, the country will change for the better. 

But next time your heart sinks at the latest legal outrage perpetrated on the professions by those who govern us, spare a thought for those elsewhere - we're actually quite fortunate by comparison.

Board Certifications for Expert Witnesses

The recent Maryland case of DeMuth v Strong has shown that some courts are widely interpereting rules relating to what specialism an expert witness can have in order to can testify about standards of care provided by someone in a different discipline.

In brief, the case involved a medical malpractice suit that resulted in the plaintiff calling an orthopedic surgeon who gave testimony about the standard of care afforded to the plaintiff by the defendant, a vascular surgeon. On appeal, the court was asked to look specifically at the question of whether a surgeon who was board certified in one specialty could give evidence about standards of care provided by a surgeon in another.

The court concluded that there was nothing improper in this - see the Judgment for a full reasoning. The relevant Maryland law provided that such an expert witness must have the "same or related specialty"  in order to be allowed to testify, and the court's reasoning seems to be that the intention of the legislature was to allow for a wide interperetation of the Act so that experts who had no knowledge of the procedures involved would not be allowed to testify, but those that did could do so.

In doing so, the court noted the relatively recent case in the Maryland District Court, Jones v. Bagalkotakar and the Virginian Supreme Court case of Sami v Varn, both of which came to the same conclusion - that provided the expert witness was not testifying about operative procedures but postoperative care and treatment of patients thereafter, this was permissible in the given circumstances.

Justice Shattered

In a week when the Supreme Court has provided a momentus judgment (whichever side of that particular fence you're on) I thought this video of the Brazilian Supreme Court getting its windows completely shattered by supersonic jets provided some light relief. Had the same thing happened in D.C last Thursday could the day have been any more dramatic?

The Supreme Court Building is on the bottom right of the picture as the first jet flies over. I wonder if they were in session?