I love Taylor Swift’s music. Now, before you judge me, I also love Beethoven, Turlough O’Carolan, Anonymous 4, and Led Zeppelin. One of my favorite Swift songs is the current chart buster “Why You Gotta Be So Mean?” I heard the song for the first time after a particularly upsetting court case. My client was an honest, hardworking man who was being badly abused by the defense lawyer.
As we left the latest hearing on the case, John balled up his fists as his face turned blood red. Loud enough for everyone in a two-mile radius to have heard him, he screamed at me. “That lawyer stood there and lied! And you didn’t call him out on it. You’re too d….d nice. That’s the problem here. I ought take that guy out back and kick his a . . .” John’s wife tried to calm him down. “She did call him a liar, John. She just didn’t use those words. You weren’t listening.” But John had heard enough and stormed off.
John was right. The lawyer had lied and I would have loved to let him have it, but I held back. Part of my problem was the memory of a case I tried long ago in District Court. My client’s soon-to-be ex-wife had repeatedly perjured herself on the witness stand. I was able to rip her up on cross-examination, but despite what I thought was a stirring performance on my part, the judge appeared to be dozing off. I wasn’t sure he had heard a word I said. So in my closing argument, I pointed at the woman and loudly said to the judge, “That woman’s a bald faced liar, judge! The truth isn’t in her!” The judge appeared to be totally disinterested in my theatrics, but the “woman” and her kin folk were ready to explode. The bailiff put his hand on his gun. The judge announced that he would render a decision in a week or two and that he wanted to see me in chambers.
Thinking he was going to congratulate me on my brilliance, I was surprised when he wheeled around and said, “Don’t you ever pull a stunt like that in my courtroom again. You had those people so riled up, I had to postpone my ruling.” I tried to explain to the judge that I wasn’t sure he knew that she was lying. “Do you think the citizens of Orange County pay me to sit up here and be stupid?” he replied. “I’m telling you NOW – you do that again, and you’ll be wearing an orange jumpsuit while you cool your jets in a cell with some of our county’s finest liars!” For years after that, I thought the judge was out of line, but then the Supreme Court decided the Couch case.
Couch was a hotly contested medical malpractice claim. In her closing argument, the patient’s lawyer repeatedly said that the defense lawyer and his witnesses “came up here and told lies. In your face lies! . . . They didn’t care. They tried to make fools of everybody in the court room. . .They were not even smooth about it.” Although the jury awarded $2.5 million in damages, the court assessed $53,000 in penalties against the patient’s lawyer for her unprofessional conduct in calling defense counsel and witnesses “liars.” My judge had let me off cheaply!
Before John’s case was heard, I had filed a brief with the court. In it, as diplomatically as I could, I had pointed out “inconsistencies” with defense counsel’s position. Apparently, I went a bit too far. In his reply brief, he argued to the court that I had unethically attacked his character. I knew I was on thin ice when John’s hearing began.
There was another reason that I soft pedaled my attack in John’s case. Because of the posture of the case, we stood a risk of winning the case and getting little in damages. I knew that we had a better chance of getting more money if I could negotiate a settlement with the other side. That lawyer was not likely to be very generous if I called him a liar in open court.
I had a client in an earlier case threaten to fire me for being too nice to defense counsel. As it turned out, we lost that case and the judge ordered my client to pay some steep court costs to the defense. Knowing that my client was strapped for cash and feeling badly for him, the defense lawyer told us to forget about it. She had talked to her clients and they agreed to drop their claim for court costs.
So, I agree with Taylor Swift. Being mean is rarely a good idea. After all, somebody might write a song about you. If the song takes off, the whole world will know that you are “mean” and “pathetic” and a “bully” and that “All you ever are is MEAN!”
Sunday, December 4, 2011
Saturday, December 3, 2011
The Handshake
This September, I took my first vacation in years and headed off to Ireland. Because you are supposed to relax while you are on vacation, I made every effort to avoid working. Yet, when a North Carolina Court of Appeals ruling from Orange County made the headlines in Ireland, I had to read the case.
The Defendant in the case suffered from genital herpes. He had an affair with the Plaintiff’s wife. We don’t know whether the Defendant warned the Plaintiff’s wife about the herpes issue. We do know that he failed to warn her Husband that he was planning on sleeping with the wife and that he might give her herpes. Unfortunately, the wife became infected with herpes during the course of the affair. Shortly thereafter she infected her husband.
The Plaintiff-Husband sued the Defendant-Boyfriend for “negligent infliction of a sexually transmitted disease.” The Court ruled that “a person is liable if he negligently exposes another to a contagious or infectious disease.” It held that a person who knows “or should know” that he has a sexually transmitted disease must warn those persons with whom “he expects to have sex.” It then held that the Defendant also owed a duty to warn the spouses of his potential sex partners. I spent the rest of my vacation pondering the repercussions of the Court’s holding.
Clearly, both religious and public health authorities should applaud the courage of the Court. If the law requires people to warn the spouses of those with whom they are planning an affair of any potential disease, marital infidelity would decrease. If they must also warn unmarried sex partners, promiscuity should also decline. This in turn would have the positive side effect of slowing the spread of infectious diseases and promoting the integrity of marriage and the family. It should reduce the incidence of unwanted pregnancies and abortion.
But then I wondered whether the holding could be applied to other settings. For example, this time of year, we are all encouraged to get a flu shot to avoid catching and spreading the flu. If you haven’t gotten a flu shot, do you need to warn people that you may be infectious? Should you wear some sort of a sign? Should you stay away from movie theaters, grocery stores, school, work and other crowded areas to avoid the possibility of infecting numerous potential plaintiffs and having to defend a class action lawsuit?
Just last week, I thought about this case while I was in a meeting with my banker. Shortly after sitting down with him, I couldn’t help but notice that he had a very runny nose. He had no handkerchief or tissue and used his hand to wipe away the sniffles. This was the same hand he had earlier extended to me as a welcome and the same hand with which he picked up a pen for me to use to sign some papers.
Realizing that he was exposing me to an infectious disease, I determined to avoid touching my face until I could wash my hands. About then, my own nose began to itch. Over the next thirty minutes, the itch became unbearable. I eventually used my forearm to rub my nose. Unfortunately, this attracted attention from the bank security guard who began eyeing me and the sleeve of my jacket suspiciously. When the meeting finally ended, I headed out to my car. In the parking lot, I ran into an old friend. Overjoyed and distracted by his unexpected appearance, I absentmindedly shook his hand.
I spent the rest of the afternoon worrying about whether I should call him and warn him about the banker’s sniffles. Did I need to call his wife and children and also warn them? Did I have any insurance coverage for negligently exposing my friend and his family to this cold? I worried myself into a tizzie for a couple of days. I was able to finally relax on the second day after my visit to the bank when I still had no cold symptoms. Luckily we had all escaped the banker’s contagion. Perhaps he was just having an allergy attack.
In view of the Court’s ruling, I became concerned about the potential liability of shaking hands and decided to research the custom. I’ve learned that even the ancient Egyptians shook hands. Offering a hand that carried no weapons showed your good intentions to the person you were greeting. Of course Egyptians didn’t know about germ warfare.
My mother, who was always very concerned about germs, taught me that a gentleman does not try to shake a lady’s hand until she offers it to him. She encouraged me to “keep my hands to myself.” My research indicates however, that this tradition is no longer acceptable. It is now considered rude for a lady, especially in a business setting, to refuse to shake hands. Unfortunately for us germ-a-phobes, it is considered even more rude to offer to shake hands while wearing gloves.
Billy Crystal and I can only hope that the Court of Appeals ruling in the herpes case will cause our citizens to rethink the handshaking tradition. It’s bad enough to miss time from work feeling too sick to have fun. Having to lay in bed worrying about getting sued for sharing cold or flu germs adds insult to injury.
The Defendant in the case suffered from genital herpes. He had an affair with the Plaintiff’s wife. We don’t know whether the Defendant warned the Plaintiff’s wife about the herpes issue. We do know that he failed to warn her Husband that he was planning on sleeping with the wife and that he might give her herpes. Unfortunately, the wife became infected with herpes during the course of the affair. Shortly thereafter she infected her husband.
The Plaintiff-Husband sued the Defendant-Boyfriend for “negligent infliction of a sexually transmitted disease.” The Court ruled that “a person is liable if he negligently exposes another to a contagious or infectious disease.” It held that a person who knows “or should know” that he has a sexually transmitted disease must warn those persons with whom “he expects to have sex.” It then held that the Defendant also owed a duty to warn the spouses of his potential sex partners. I spent the rest of my vacation pondering the repercussions of the Court’s holding.
Clearly, both religious and public health authorities should applaud the courage of the Court. If the law requires people to warn the spouses of those with whom they are planning an affair of any potential disease, marital infidelity would decrease. If they must also warn unmarried sex partners, promiscuity should also decline. This in turn would have the positive side effect of slowing the spread of infectious diseases and promoting the integrity of marriage and the family. It should reduce the incidence of unwanted pregnancies and abortion.
But then I wondered whether the holding could be applied to other settings. For example, this time of year, we are all encouraged to get a flu shot to avoid catching and spreading the flu. If you haven’t gotten a flu shot, do you need to warn people that you may be infectious? Should you wear some sort of a sign? Should you stay away from movie theaters, grocery stores, school, work and other crowded areas to avoid the possibility of infecting numerous potential plaintiffs and having to defend a class action lawsuit?
Just last week, I thought about this case while I was in a meeting with my banker. Shortly after sitting down with him, I couldn’t help but notice that he had a very runny nose. He had no handkerchief or tissue and used his hand to wipe away the sniffles. This was the same hand he had earlier extended to me as a welcome and the same hand with which he picked up a pen for me to use to sign some papers.
Realizing that he was exposing me to an infectious disease, I determined to avoid touching my face until I could wash my hands. About then, my own nose began to itch. Over the next thirty minutes, the itch became unbearable. I eventually used my forearm to rub my nose. Unfortunately, this attracted attention from the bank security guard who began eyeing me and the sleeve of my jacket suspiciously. When the meeting finally ended, I headed out to my car. In the parking lot, I ran into an old friend. Overjoyed and distracted by his unexpected appearance, I absentmindedly shook his hand.
I spent the rest of the afternoon worrying about whether I should call him and warn him about the banker’s sniffles. Did I need to call his wife and children and also warn them? Did I have any insurance coverage for negligently exposing my friend and his family to this cold? I worried myself into a tizzie for a couple of days. I was able to finally relax on the second day after my visit to the bank when I still had no cold symptoms. Luckily we had all escaped the banker’s contagion. Perhaps he was just having an allergy attack.
In view of the Court’s ruling, I became concerned about the potential liability of shaking hands and decided to research the custom. I’ve learned that even the ancient Egyptians shook hands. Offering a hand that carried no weapons showed your good intentions to the person you were greeting. Of course Egyptians didn’t know about germ warfare.
My mother, who was always very concerned about germs, taught me that a gentleman does not try to shake a lady’s hand until she offers it to him. She encouraged me to “keep my hands to myself.” My research indicates however, that this tradition is no longer acceptable. It is now considered rude for a lady, especially in a business setting, to refuse to shake hands. Unfortunately for us germ-a-phobes, it is considered even more rude to offer to shake hands while wearing gloves.
Billy Crystal and I can only hope that the Court of Appeals ruling in the herpes case will cause our citizens to rethink the handshaking tradition. It’s bad enough to miss time from work feeling too sick to have fun. Having to lay in bed worrying about getting sued for sharing cold or flu germs adds insult to injury.
Tuesday, August 2, 2011
Murder Ballads of North Carolina
From Tom Dooley’s hanging to Little Sadie’s killing, North Carolina is famous for its murder ballads. It’s interesting that our State Supreme Court heard cases involving many of the alleged evil doers. From those opinions, you can learn facts that the songwriters left out.
Tom Dooley was actually Tom Dula, a Confederate soldier and violin player who returned to his home in Wilkes County after the war. According to the ballad, told from Tom’s perspective, he met his love, Laura Foster, on a mountain and “took her for my wife.” He then “took her around the hillside” and “stabbed her with my knife.”
According to court records, Laura Foster was seen riding her father’s mare with a bundle of clothes in her lap. She told a friend she was headed to the “Bates” place to meet up with Dula. She apparently thought they were going to run off to be married. A few weeks later, her body was found buried in a “laurel thicket” near the Bates place. She had been stabbed in her left side.
The Court noted that Dula “was in the habit of criminal intercourse with both Foster and Ann Melton.” The women were cousins. He allegedly “contracted a disease” from Foster and “communicated it to” Melton. As Melton was married to another man, this probably caused significant trouble for both Melton and Dula. Witnesses said Dula threatened to “put through” the person who gave him the disease.
The same day that Foster rode off for the Bates place, Ann Melton left her home. Staying out all night, Melton returned home the following morning, with her shoes and dress wet. Later, a witness took investigators to Foster’s grave, claiming that Melton had showed her where Foster was buried.
Meanwhile, Dula went missing. After authorities captured him in Tennessee, they charged him and Ann Melton with Foster’s murder. The two were tried separately.
Former Governor Zeb Vance defended Dula. The jury found Dula guilty, but Vance successfully appealed the conviction. After a second jury found Dula guilty, Vance again appealed. This time the Supreme Court found no error in the trial and upheld Dula’s conviction. On the day that he was hanged, he declared his innocence from the scaffold, but also handed his lawyer a note stating that he alone killed Foster. The note may have helped Vance defend Melton who was found not guilty in her trial.
Years later three brothers named Dula assaulted a Justice of the Peace in Wilkes County. One used a maddox, the other used a knife, and the third used a long pole. The State Supreme Court upheld their convictions.
In addition to Dula’s case, our Court heard the case of Peter DeGraff who in the late 1800’s killed Ellen Smith in Winston-Salem. Both the ballad, “Poor Ellen Smith” and the court records tell us that Ellen was shot in the heart. The Court reports that a letter was “found in her bosom” allegedly written by DeGraff. The note asked her to meet him the night she was killed. The ballad reports that DeGraff was sentenced to twenty years for Ellen’s murder, but other research indicates that he was hanged. He confessed his guilt from the scaffold.
In Morganton, in the 1830’s, Frankie Silver killed her husband, Charlie, with an axe blow to his neck. She claimed he was loading his gun to shoot her at the time. Charlie had a reputation of beating his wife. However, according to the Ballad of Frankie Silver, she killed him because she caught him cheating on her. The Court doesn’t tell us many of the facts of the case. It found no error in her trial and she was hanged for her husband’s death.
Ballads also tell of the murder of “Omie Wise” who was beaten to death by her boyfriend, John Lewis, in Randolph County. He threw her body in a river in Asheboro. I find no record of his appeal to our Supreme Court. That may be due to his confession of guilt in the case.
Little Sadie was killed by her beloved in Thomasville. He shot her and ran off to Jericho, North Carolina, before being caught. According to the ballad, he was sentenced to 41 years in prison for her death.
The existence of so many North Carolina murder ballads shouldn’t cause alarm. I don’t think we have more murderers than other states. We just have more ballad writers. And our courts apparently have done their jobs well as most of the killers confessed to their crimes before their executions. It’s probably a good idea, however, to be sure that your “significant other” doesn’t own a gun or a hatchet. Men named Johnnie or Charlie should probably avoid women named Frankie. Or maybe we should all heed the words of another old ballad and “stay single all the days of your life.”
Tom Dooley was actually Tom Dula, a Confederate soldier and violin player who returned to his home in Wilkes County after the war. According to the ballad, told from Tom’s perspective, he met his love, Laura Foster, on a mountain and “took her for my wife.” He then “took her around the hillside” and “stabbed her with my knife.”
According to court records, Laura Foster was seen riding her father’s mare with a bundle of clothes in her lap. She told a friend she was headed to the “Bates” place to meet up with Dula. She apparently thought they were going to run off to be married. A few weeks later, her body was found buried in a “laurel thicket” near the Bates place. She had been stabbed in her left side.
The Court noted that Dula “was in the habit of criminal intercourse with both Foster and Ann Melton.” The women were cousins. He allegedly “contracted a disease” from Foster and “communicated it to” Melton. As Melton was married to another man, this probably caused significant trouble for both Melton and Dula. Witnesses said Dula threatened to “put through” the person who gave him the disease.
The same day that Foster rode off for the Bates place, Ann Melton left her home. Staying out all night, Melton returned home the following morning, with her shoes and dress wet. Later, a witness took investigators to Foster’s grave, claiming that Melton had showed her where Foster was buried.
Meanwhile, Dula went missing. After authorities captured him in Tennessee, they charged him and Ann Melton with Foster’s murder. The two were tried separately.
Former Governor Zeb Vance defended Dula. The jury found Dula guilty, but Vance successfully appealed the conviction. After a second jury found Dula guilty, Vance again appealed. This time the Supreme Court found no error in the trial and upheld Dula’s conviction. On the day that he was hanged, he declared his innocence from the scaffold, but also handed his lawyer a note stating that he alone killed Foster. The note may have helped Vance defend Melton who was found not guilty in her trial.
Years later three brothers named Dula assaulted a Justice of the Peace in Wilkes County. One used a maddox, the other used a knife, and the third used a long pole. The State Supreme Court upheld their convictions.
In addition to Dula’s case, our Court heard the case of Peter DeGraff who in the late 1800’s killed Ellen Smith in Winston-Salem. Both the ballad, “Poor Ellen Smith” and the court records tell us that Ellen was shot in the heart. The Court reports that a letter was “found in her bosom” allegedly written by DeGraff. The note asked her to meet him the night she was killed. The ballad reports that DeGraff was sentenced to twenty years for Ellen’s murder, but other research indicates that he was hanged. He confessed his guilt from the scaffold.
In Morganton, in the 1830’s, Frankie Silver killed her husband, Charlie, with an axe blow to his neck. She claimed he was loading his gun to shoot her at the time. Charlie had a reputation of beating his wife. However, according to the Ballad of Frankie Silver, she killed him because she caught him cheating on her. The Court doesn’t tell us many of the facts of the case. It found no error in her trial and she was hanged for her husband’s death.
Ballads also tell of the murder of “Omie Wise” who was beaten to death by her boyfriend, John Lewis, in Randolph County. He threw her body in a river in Asheboro. I find no record of his appeal to our Supreme Court. That may be due to his confession of guilt in the case.
Little Sadie was killed by her beloved in Thomasville. He shot her and ran off to Jericho, North Carolina, before being caught. According to the ballad, he was sentenced to 41 years in prison for her death.
The existence of so many North Carolina murder ballads shouldn’t cause alarm. I don’t think we have more murderers than other states. We just have more ballad writers. And our courts apparently have done their jobs well as most of the killers confessed to their crimes before their executions. It’s probably a good idea, however, to be sure that your “significant other” doesn’t own a gun or a hatchet. Men named Johnnie or Charlie should probably avoid women named Frankie. Or maybe we should all heed the words of another old ballad and “stay single all the days of your life.”
Friday, June 3, 2011
Is a Man's Home/Office/Car His Castle?
Two teenage boys stormed into the Oklahoma pharmacy. One was pointing a gun. The two female clerks at the front of the store ran to the back of the building. The pharmacist ran to the front of the store and shot one of the boys in the head. After chasing away the second boy, the pharmacist went back into the pharmacy, got another gun, and put five more bullets into the teenager who was lying on the floor. Yesterday, a jury convicted the pharmacist of murder and sentenced him to life in prison.
Years ago, an off-duty North Carolina sheriff entered small grocery store. He saw a man pointing a gun at a young female clerk who was standing behind the cash register. The sheriff took out his pistol and shot the gunman repeatedly. The sheriff became a local hero.
Effective December 1, 2011, North Carolina expands the “castle” doctrine. The doctrine, inherited from merry old England, provides that a person has no duty to retreat when attacked in his home. The new law states that a person can use deadly “defensive force” against another person who is unlawfully and forcefully entering a dwelling or residence. The law does not apply if the person breaking into the house has a legal right to enter the house or if the intruder is a law enforcement officer. It also does not apply in cases where the criminal gives up and tries to run away.
Prior law allowed the use of deadly force to prevent an illegal, forcible entry if the resident reasonably thought the intruder:
1. Might inflict serious harm, or
2. Intended to commit a felony.
The statute was vague. How could the resident determine the intentions of an intruder? How many North Carolina residents know whether a criminal act is a felony or a misdemeanor? What if the gun toting intruder only intended to commit a misdemeanor, but accidentally commits a felony? For example, theft of less than $1000 may be a misdemeanor. Anything over that can be a felony. Perhaps the thief and plans to steal $999.00, but misjudges the value of that necklace he’s grabbed. Now he’s committing a felony.
What if the intruder shouts, “Hey, I’m not going to hurt anyone? I just want your money.” Can you trust someone who’s breaking into your house to be honest about his intentions? How long do you have to think about the quandary? Will the intruder hang on while you call your attorney and find out what you should do? What if you ask your lawyer and he gives you bad advice? What if you knew your lawyer was an idiot?
But the new law is also vague. It allows a resident to use “defensive force,” but it does not define “defensive force.” So questions arise. Is it “defensive” force if you have a gun, but the criminal is unarmed? What if the criminal is the size of the incredible Hulk and you are a wimp? What if you have a bazooka and the criminal has a pen knife? What if you thought the intruder was armed when you shot him, but once you can take a closer look, you discover he has no weapon? Or that the weapon was unloaded? What if the weapon is a toy gun? Made of Lego’s? And you are nearsighted? And it's dark?
Is it “defensive” force if the criminal, seeing your gun, tries to run away? What if he yells, “I’ll be back!” on his way out the door? Is it “defensive” force if you keep shooting after the criminal has been hit? How do you know whether the criminal has been incapacitated? Can you predict what a medical examiner or CSI agent will say about the effect of your bullet to the intruder’s head? We’ve all seen movies where the seemingly dead bad guy manages to fire off another shot after the hero’s back is turned. What if your weapon is a sawed off shotgun with 00 buckshot? Is that a defensive weapon or an offensive weapon?
The new law would have no impact on the situation faced by the pharmacist and the sheriff mentioned above. Neither was in his home when the shootings occurred. However, the state legislature is considering Senate Bill 34. That bill would extend the castle doctrine to cases where a criminal tries to attack a citizen in his car or at a work site. The bill retains the worrisome reference to “defensive force.” So again, having shot the robber once in the head, did the pharmacist need to put five more bullets in him? If not, then the subsequent shots would not be “defensive.” Had the pharmacist been able to shoot the second robber whom he chased from the store, the new law would not have protected his actions because that robber had retreated.
In the case of the sheriff, Senate Bill 34 again leaves unresolved questions because of the use of the term “defensive force.” When asked why he continued to shoot the robber after having hit him once, the sheriff said that, in the panic of the situation, he just kept squeezing the trigger. In determining whether the force is “defensive,” should we take into account the frame of mind of a person who has been confronted with a gun-toting criminal? He may not actually need to keep firing in order to defend himself, but in the heat of the moment, were his “non-defensive” actions reasonable? What if the resident had been drinking before being awakened by the intruder? Should we judge his actions according to what a reasonable drunk person would do?
Both the new law and SB 34 contain another whopping loophole. They only address using “defensive force” when the criminal is about to or has “forcibly” entered a dwelling. What if the building was unlocked at the time of the entry? What if the resident thought the building was locked, but after the shooting, the resident finds that he forgot to lock the door that night? In the cases of the pharmacist and the sheriff, there was no forcible entry. How many work places are kept locked during working hours? What does OSHA have to say about locking workers inside of buildings?
All in all, the castle doctrine remains a bit unclear. If the legislature were dealing with a law punishable by a $50 fine, I wouldn’t worry so much. But in North Carolina, murder is still punishable by the death penalty. So, as for me, I probably won’t be shooting any intruders. I’m just not sure it would be legal.
Years ago, an off-duty North Carolina sheriff entered small grocery store. He saw a man pointing a gun at a young female clerk who was standing behind the cash register. The sheriff took out his pistol and shot the gunman repeatedly. The sheriff became a local hero.
Effective December 1, 2011, North Carolina expands the “castle” doctrine. The doctrine, inherited from merry old England, provides that a person has no duty to retreat when attacked in his home. The new law states that a person can use deadly “defensive force” against another person who is unlawfully and forcefully entering a dwelling or residence. The law does not apply if the person breaking into the house has a legal right to enter the house or if the intruder is a law enforcement officer. It also does not apply in cases where the criminal gives up and tries to run away.
Prior law allowed the use of deadly force to prevent an illegal, forcible entry if the resident reasonably thought the intruder:
1. Might inflict serious harm, or
2. Intended to commit a felony.
The statute was vague. How could the resident determine the intentions of an intruder? How many North Carolina residents know whether a criminal act is a felony or a misdemeanor? What if the gun toting intruder only intended to commit a misdemeanor, but accidentally commits a felony? For example, theft of less than $1000 may be a misdemeanor. Anything over that can be a felony. Perhaps the thief and plans to steal $999.00, but misjudges the value of that necklace he’s grabbed. Now he’s committing a felony.
What if the intruder shouts, “Hey, I’m not going to hurt anyone? I just want your money.” Can you trust someone who’s breaking into your house to be honest about his intentions? How long do you have to think about the quandary? Will the intruder hang on while you call your attorney and find out what you should do? What if you ask your lawyer and he gives you bad advice? What if you knew your lawyer was an idiot?
But the new law is also vague. It allows a resident to use “defensive force,” but it does not define “defensive force.” So questions arise. Is it “defensive” force if you have a gun, but the criminal is unarmed? What if the criminal is the size of the incredible Hulk and you are a wimp? What if you have a bazooka and the criminal has a pen knife? What if you thought the intruder was armed when you shot him, but once you can take a closer look, you discover he has no weapon? Or that the weapon was unloaded? What if the weapon is a toy gun? Made of Lego’s? And you are nearsighted? And it's dark?
Is it “defensive” force if the criminal, seeing your gun, tries to run away? What if he yells, “I’ll be back!” on his way out the door? Is it “defensive” force if you keep shooting after the criminal has been hit? How do you know whether the criminal has been incapacitated? Can you predict what a medical examiner or CSI agent will say about the effect of your bullet to the intruder’s head? We’ve all seen movies where the seemingly dead bad guy manages to fire off another shot after the hero’s back is turned. What if your weapon is a sawed off shotgun with 00 buckshot? Is that a defensive weapon or an offensive weapon?
The new law would have no impact on the situation faced by the pharmacist and the sheriff mentioned above. Neither was in his home when the shootings occurred. However, the state legislature is considering Senate Bill 34. That bill would extend the castle doctrine to cases where a criminal tries to attack a citizen in his car or at a work site. The bill retains the worrisome reference to “defensive force.” So again, having shot the robber once in the head, did the pharmacist need to put five more bullets in him? If not, then the subsequent shots would not be “defensive.” Had the pharmacist been able to shoot the second robber whom he chased from the store, the new law would not have protected his actions because that robber had retreated.
In the case of the sheriff, Senate Bill 34 again leaves unresolved questions because of the use of the term “defensive force.” When asked why he continued to shoot the robber after having hit him once, the sheriff said that, in the panic of the situation, he just kept squeezing the trigger. In determining whether the force is “defensive,” should we take into account the frame of mind of a person who has been confronted with a gun-toting criminal? He may not actually need to keep firing in order to defend himself, but in the heat of the moment, were his “non-defensive” actions reasonable? What if the resident had been drinking before being awakened by the intruder? Should we judge his actions according to what a reasonable drunk person would do?
Both the new law and SB 34 contain another whopping loophole. They only address using “defensive force” when the criminal is about to or has “forcibly” entered a dwelling. What if the building was unlocked at the time of the entry? What if the resident thought the building was locked, but after the shooting, the resident finds that he forgot to lock the door that night? In the cases of the pharmacist and the sheriff, there was no forcible entry. How many work places are kept locked during working hours? What does OSHA have to say about locking workers inside of buildings?
All in all, the castle doctrine remains a bit unclear. If the legislature were dealing with a law punishable by a $50 fine, I wouldn’t worry so much. But in North Carolina, murder is still punishable by the death penalty. So, as for me, I probably won’t be shooting any intruders. I’m just not sure it would be legal.
Monday, May 2, 2011
Can "They" Do That?
The lady was angry, upset, and visibly shaken. She had just left a meeting with the investigators of her licensing board. They accused her of being a drug addict. She could admit to being a drug addict and enroll in their impaired professional program or they would revoke her license to practice. She had denied having a drug addiction problem. The investigators showed her affidavits from four physicians in support of their contention that she had a drug problem. She grabbed the affidavits and stormed out of the Board’s office. She shoved the affidavits at me.
“I can’t understand why these doctors would say that I have a drug problem. They are friends of mine. We work together.”
I noticed that none of the affidavits had been signed. I called each of the four physicians. They denied even discussing affidavits with the investigators from the licensing board. I was able to get affidavits from the doctors in support of my client. None thought that she had a drug problem. The licensing board dropped the charges against her.
The experience reminded me of one of my favorite shows – The Closer. In it, Deputy Chief Brenda Lee Johnson wrangles confessions from criminal suspects. She lies to them and we all applaud her craftiness as the evil doers are hauled off to jail. But can the police use Deputy Chief Johnson’s tactics in real life? What about investigators for licensing boards? Do the laws restricting the activities of police apply to licensing board investigators?
The Constitution prohibits law enforcement from using coerced confessions. Police cannot beat a suspect. They cannot starve him, deprive him of sleep, or deny bathroom breaks. Water boarding is generally frowned upon. If officers interrogate a suspect in custody, they must first advise him of his Miranda rights. However the courts have allowed police to lie to suspects about the evidence they may have. They can claim to have found the suspect’s fingerprints at the crime scene. They can claim to have witnesses who will incriminate the suspect. They can claim that the suspect failed a lie detector test or that they found the victim’s blood on the suspect’s clothes. This is especially true when the suspect is not in custody during the interrogation.
Although the police have leeway when trying to obtain confessions, prosecutors and judges are bound by ethical obligations and cannot lie to suspects to get confessions. In a murder case from Carrboro, North Carolina, the police showed the defendant a letter that they claimed the District Attorney had written. In the letter, the DA supposedly said that he would seek the death penalty if the suspect did not confess to the murder. When the attorney for the defendant challenged his client’s subsequent confession, the DA denied having written the letter. The court ruled that the police had illegally obtained the confession by implicating the DA’s office.
So in the case with the four fake affidavits, it appears that the investigators for the licensing board did not violate the law. They did not beat, starve, or otherwise physically abuse my client. They only lied to her. As they are not members of law enforcement, they could not hold her in the interview room against her will. She obviously knew that she was free to leave at any time. They did not have to give Miranda warnings to her before asking questions because she was not in custody.
This is not the only case I’ve handled that involved questionable tactics used by licensing board investigators. In another case, my client was charged with exceeding her scope of practice. The investigator relied on a statement she had allegedly obtained from a physician to support the charges. When I contacted the physician, he denied having been interviewed. When faced with testimony from this physician, the Board dropped the charges against the licensee.
These cases make it clear that people who must have a license in order to work, such as physicians, dentists, pharmacists, nurses and others, should refuse to answer questions from licensing board investigators unless they have first retained legal counsel. The attorney can protect the licensee from many of the above abuses.
Most health care providers have malpractice insurance. Usually, those policies offer licensure defense coverage. These policies will reimburse the provider for many of the expenses involved in cases brought by licensing boards. If a licensing board contacts a provider concerning a complaint, the provider should contact his insurance carrier before responding to the licensing board. The insurance carrier will either assign one of its attorneys to defend the claim or will allow the licensee to obtain a lawyer of his or her own choosing. Once the licensee has retained counsel, the licensee should refer all calls from the board’s investigators to his or her lawyer. It is not appropriate for the investigator to continue to try to question the licensee once the licensee has notified the board that an attorney is handling the case. In another case I handled, when my client told the investigator that she had a lawyer, the investigator continued questioning the provider. She asked, “Why do you think you needed a lawyer?” “Did you do something wrong?” My client wisely hung up the telephone.
So, “they” can “do that”, but only if you let them. Be wise. At the first contact from an investigator, get a lawyer. Don’t try to handle the problem on your own. It will not go well.
“I can’t understand why these doctors would say that I have a drug problem. They are friends of mine. We work together.”
I noticed that none of the affidavits had been signed. I called each of the four physicians. They denied even discussing affidavits with the investigators from the licensing board. I was able to get affidavits from the doctors in support of my client. None thought that she had a drug problem. The licensing board dropped the charges against her.
The experience reminded me of one of my favorite shows – The Closer. In it, Deputy Chief Brenda Lee Johnson wrangles confessions from criminal suspects. She lies to them and we all applaud her craftiness as the evil doers are hauled off to jail. But can the police use Deputy Chief Johnson’s tactics in real life? What about investigators for licensing boards? Do the laws restricting the activities of police apply to licensing board investigators?
The Constitution prohibits law enforcement from using coerced confessions. Police cannot beat a suspect. They cannot starve him, deprive him of sleep, or deny bathroom breaks. Water boarding is generally frowned upon. If officers interrogate a suspect in custody, they must first advise him of his Miranda rights. However the courts have allowed police to lie to suspects about the evidence they may have. They can claim to have found the suspect’s fingerprints at the crime scene. They can claim to have witnesses who will incriminate the suspect. They can claim that the suspect failed a lie detector test or that they found the victim’s blood on the suspect’s clothes. This is especially true when the suspect is not in custody during the interrogation.
Although the police have leeway when trying to obtain confessions, prosecutors and judges are bound by ethical obligations and cannot lie to suspects to get confessions. In a murder case from Carrboro, North Carolina, the police showed the defendant a letter that they claimed the District Attorney had written. In the letter, the DA supposedly said that he would seek the death penalty if the suspect did not confess to the murder. When the attorney for the defendant challenged his client’s subsequent confession, the DA denied having written the letter. The court ruled that the police had illegally obtained the confession by implicating the DA’s office.
So in the case with the four fake affidavits, it appears that the investigators for the licensing board did not violate the law. They did not beat, starve, or otherwise physically abuse my client. They only lied to her. As they are not members of law enforcement, they could not hold her in the interview room against her will. She obviously knew that she was free to leave at any time. They did not have to give Miranda warnings to her before asking questions because she was not in custody.
This is not the only case I’ve handled that involved questionable tactics used by licensing board investigators. In another case, my client was charged with exceeding her scope of practice. The investigator relied on a statement she had allegedly obtained from a physician to support the charges. When I contacted the physician, he denied having been interviewed. When faced with testimony from this physician, the Board dropped the charges against the licensee.
These cases make it clear that people who must have a license in order to work, such as physicians, dentists, pharmacists, nurses and others, should refuse to answer questions from licensing board investigators unless they have first retained legal counsel. The attorney can protect the licensee from many of the above abuses.
Most health care providers have malpractice insurance. Usually, those policies offer licensure defense coverage. These policies will reimburse the provider for many of the expenses involved in cases brought by licensing boards. If a licensing board contacts a provider concerning a complaint, the provider should contact his insurance carrier before responding to the licensing board. The insurance carrier will either assign one of its attorneys to defend the claim or will allow the licensee to obtain a lawyer of his or her own choosing. Once the licensee has retained counsel, the licensee should refer all calls from the board’s investigators to his or her lawyer. It is not appropriate for the investigator to continue to try to question the licensee once the licensee has notified the board that an attorney is handling the case. In another case I handled, when my client told the investigator that she had a lawyer, the investigator continued questioning the provider. She asked, “Why do you think you needed a lawyer?” “Did you do something wrong?” My client wisely hung up the telephone.
So, “they” can “do that”, but only if you let them. Be wise. At the first contact from an investigator, get a lawyer. Don’t try to handle the problem on your own. It will not go well.
Sunday, March 27, 2011
Why Did Scottish Warriors Wear Kilts?
I once owned a store where I sold Scottish merchandise and wove tartans on a loom. I needed a manikin to display my kilts, so I purchased a very tall, rough looking “dummy” who became affectionately known as “Angus.” I outfitted him in a stunning Prince Charles Edward Stewart kilt, a sword, a jacket, and a sporran. He was quite a hit. When I closed the store, I didn’t know what to do with Angus, so I took him home and left him standing around in the den. At Christmas, he wears a Santa hat. For Halloween, he has an alien invader costume. He refuses to wear the bunny ears I got him for Easter.
A few years after I’d gone back to lawyering, I hired some guys to do repairs outside the house. That morning, as they hammered and sawed and otherwise made a great nuisance of themselves, I worked on a court case I had coming up. By the time they took a lunch break, I had a splitting headache, so I took some aspirin and lay down. Worn out with all the racket, I fell sound asleep.
The shrill ringing of the telephone an hour or so later jolted me out of bed. As I tried to collect my thoughts, I heard a panicked man’s voice on the line.
“Patrice! Patrice! Are you alright?”
“Yeah,” I answered groggily, “what’s the problem?”
“Patrice, you got to get out of your house right now. There’s a man in there,” he urged.
“A man?” I still wasn’t quite awake.
“Yes, a man’s in the house! When we came back from lunch, we knocked on the door but you didn’t answer. So we went around back. And that’s when we saw him sneaking around in the den. We ran down the street to call you before we called the cops. Thank God, you’re OK.”
Well, I didn’t feel OK. Some criminal was sneaking around in the house and these brave home improvement men had left me here alone with the murderer. Reruns of “Criminal Minds” and “Law and Order” raced through my imagination. My only weapon, a broom, was in the kitchen. He’d probably found that by now. I froze as I realized that I was about to die. The man on the phone interrupted my gory thoughts.
“Patrice you’ve GOT to get out of that house. That man – he’s a PREE-VERT!”
“A Pree-vert?” I asked as the room began to spin. Now scenes from CSI Special Victims Unit were playing out in front of my eyes.
“Yeah – a real Pree-vert! The guy’s wearing a skirt!”
I stopped to imagine what kind of torture a man in a skirt would inflict. For some reason, I was no longer afraid. What would a guy in a skirt want? Maybe just some shoes or makeup. Maybe a purse. I tried to picture all the men in I’d ever seen in drag when all of a sudden, I remembered Angus.
“Was the Pree-vert kind of tall and blond?” I asked.
“Yes, yes, that’s him!”
“Was it a plaid skirt?”
“Yes, yes! But don’t worry. We’re calling the cops right now!”
Although I couldn’t figure out how Angus could sneak around, being as how he is a manikin and all, I was pretty sure that it was him the guys saw.
“No, no,” I said wearily. “You don’t need to do that – the Pree-vert’s a friend – he’s harmless. You can come on back and I’ll explain. It’s OK.”
I went into the den to see whether Pinocchio’s Blue Fairy had brought Angus to life, but as I expected, he was just standing there motionless as always. The only difference I could see was the trace of a grin that I hadn’t noticed before.
The jittery workers were pretty embarrassed when they realized that a mere “dummy” had scared them off. I was pretty disappointed that they left me in the house defenseless with someone they thought was a murdering pervert. They finished up and, tails between their legs, they slinked off into the sunset.
I don’t think these men were cowards. They probably would have protected me from a regular bandit or even a fire breathing dragon. But even the bravest hero panics in the presence of a man in drag. History records that many an army ran off rather than fight Scottish Highlanders wearing kilts. Blaring bagpipes probably figured into the equation as well. The Scots were masters of psychological warfare.
Over the years, I’ve noticed that Angus affects men very differently than women. If I forget to warn a visitor about Angus, my guest will looked startled and anxious when he stumbles upon the well-dressed Highlander. I then have to calm both of them down.
I’ve never known a woman to feel threatened by Angus. I have, however, walked into the den to find my female guest peeking under his “skirt”. It seems that women really do want to know what a Highlander wears under his kilt. I’ll never tell.
A few years after I’d gone back to lawyering, I hired some guys to do repairs outside the house. That morning, as they hammered and sawed and otherwise made a great nuisance of themselves, I worked on a court case I had coming up. By the time they took a lunch break, I had a splitting headache, so I took some aspirin and lay down. Worn out with all the racket, I fell sound asleep.
The shrill ringing of the telephone an hour or so later jolted me out of bed. As I tried to collect my thoughts, I heard a panicked man’s voice on the line.
“Patrice! Patrice! Are you alright?”
“Yeah,” I answered groggily, “what’s the problem?”
“Patrice, you got to get out of your house right now. There’s a man in there,” he urged.
“A man?” I still wasn’t quite awake.
“Yes, a man’s in the house! When we came back from lunch, we knocked on the door but you didn’t answer. So we went around back. And that’s when we saw him sneaking around in the den. We ran down the street to call you before we called the cops. Thank God, you’re OK.”
Well, I didn’t feel OK. Some criminal was sneaking around in the house and these brave home improvement men had left me here alone with the murderer. Reruns of “Criminal Minds” and “Law and Order” raced through my imagination. My only weapon, a broom, was in the kitchen. He’d probably found that by now. I froze as I realized that I was about to die. The man on the phone interrupted my gory thoughts.
“Patrice you’ve GOT to get out of that house. That man – he’s a PREE-VERT!”
“A Pree-vert?” I asked as the room began to spin. Now scenes from CSI Special Victims Unit were playing out in front of my eyes.
“Yeah – a real Pree-vert! The guy’s wearing a skirt!”
I stopped to imagine what kind of torture a man in a skirt would inflict. For some reason, I was no longer afraid. What would a guy in a skirt want? Maybe just some shoes or makeup. Maybe a purse. I tried to picture all the men in I’d ever seen in drag when all of a sudden, I remembered Angus.
“Was the Pree-vert kind of tall and blond?” I asked.
“Yes, yes, that’s him!”
“Was it a plaid skirt?”
“Yes, yes! But don’t worry. We’re calling the cops right now!”
Although I couldn’t figure out how Angus could sneak around, being as how he is a manikin and all, I was pretty sure that it was him the guys saw.
“No, no,” I said wearily. “You don’t need to do that – the Pree-vert’s a friend – he’s harmless. You can come on back and I’ll explain. It’s OK.”
I went into the den to see whether Pinocchio’s Blue Fairy had brought Angus to life, but as I expected, he was just standing there motionless as always. The only difference I could see was the trace of a grin that I hadn’t noticed before.
The jittery workers were pretty embarrassed when they realized that a mere “dummy” had scared them off. I was pretty disappointed that they left me in the house defenseless with someone they thought was a murdering pervert. They finished up and, tails between their legs, they slinked off into the sunset.
I don’t think these men were cowards. They probably would have protected me from a regular bandit or even a fire breathing dragon. But even the bravest hero panics in the presence of a man in drag. History records that many an army ran off rather than fight Scottish Highlanders wearing kilts. Blaring bagpipes probably figured into the equation as well. The Scots were masters of psychological warfare.
Over the years, I’ve noticed that Angus affects men very differently than women. If I forget to warn a visitor about Angus, my guest will looked startled and anxious when he stumbles upon the well-dressed Highlander. I then have to calm both of them down.
I’ve never known a woman to feel threatened by Angus. I have, however, walked into the den to find my female guest peeking under his “skirt”. It seems that women really do want to know what a Highlander wears under his kilt. I’ll never tell.
Saturday, January 29, 2011
Curiosity Killed the Cat
Last year, a court sentenced a cardiac surgeon to four months in prison for violating the federal privacy law known as HIPAA. The penalty surprised those of us who have studied HIPAA. We thought imprisonment would be reserved for those who profited financially from disclosing confidential information. While the surgeon had illegally accessed information over 300 times, he had not sold the information, but had kept it to himself. The case gave a clear warning to health care providers. The HIPAA police are here and they mean business!
History of HIPAA
In 1996, Congress enacted HIPAA to encourage the use of electronic patient records. Congress hoped the law would reduce health care costs. The law included provisions for assigning each American a unique patient identification number. A patient’s entire medical history and related financial information would be attached to that number and accessible over the Internet. Strong opposition to HIPAA arose because of privacy concerns. Responding to those concerns, the Department of Health and Human Services (HHS) issued privacy regulations in 2002. The regulations require health care providers to protect information they receive from their patients. Recently, the federal government has begun vigorously enforcing HIPAA.
In a 2010 case similar to the one involving the surgeon, the government disciplined a nurse who accessed her ex-husband’s medical records at the hospital where she worked. Significantly, her actions also violated her ethical obligation to protect patient confidentiality. Her nursing board could revoke her nursing license for her actions.
Recent Cases - Pharmacies
In the early part of 2000, the HIPAA police learned that CVS pharmacies nationwide had been tossing old patient records into dumpsters behind the stores. This clearly violated HIPAA’s requirement that such records be shredded. To settle the enforcement action, CVS paid $2.25 million in fines and submitted to long-term monitoring of its privacy practices.
In 2010, the HIPAA police slammed Rite Aid Pharmacies with a $1 million fine. That year, the government also initiated an investigation into Walgreen’s HIPAA practices.
Since the enactment of laws requiring those who purchase cold medicines containing ephedrine to sign a pharmacy log, we’ve all seen the ephedrine logs beside the pharmacy cash registers. Last year, the HIPAA police cited a local pharmacy for positioning the log on a counter in a way that exposed the names of customers who had signed the log.
In another case, a pharmacy employee accidentally put one patient’s insurance card into a bag containing another patient’s medication.
Finally, another pharmacy chain did not comply with HIPAA’s requirement that all of its business associates sign confidentiality contracts agreeing to protect patient information. The associate in question was the pharmacy’s lawyer.
Inadvertent Disclosures – “Don’t Talk So Loud!”
HIPAA requires health care providers who talk about their patients to speak quietly so that they are not overheard. Last year, the government disciplined a physician who chose to discuss his patient’s HIV treatment in the clinic waiting room while other patients were present. It also disciplined a hospital nurse who chatted too loudly about her patient’s HIV diagnosis.
Other inadvertent disclosures that are illegal include:
1. Positioning computer screens on counters in a way that they could be viewed by people in the waiting areas of the clinic
2. Leaving patient charts out where they can be read
3. Talking to a patient on the telephone about his condition in a location where others can overhear the conversation
4. Leaving messages with people at the patient’s home or office or on answering machines without patient consent
5. Discussing a patient’s condition without patient consent – this may happen in cases where the provider seeks a second opinion or advice on a case
6. Talking about patients in office “huddles” when the huddle includes people who are not on the patient’s treatment team.
A Word to the Wise
Health care providers who receive a patient complaint concerning privacy practices or who are contacted by government investigators about potential privacy violations should immediately contact their practice attorney for guidance. We have learned from recent cases that HIPAA violations can result in significant fines, imprisonment, loss of staff privileges, and loss of professional licensure. Providers should not try to handle these cases without legal counsel.
History of HIPAA
In 1996, Congress enacted HIPAA to encourage the use of electronic patient records. Congress hoped the law would reduce health care costs. The law included provisions for assigning each American a unique patient identification number. A patient’s entire medical history and related financial information would be attached to that number and accessible over the Internet. Strong opposition to HIPAA arose because of privacy concerns. Responding to those concerns, the Department of Health and Human Services (HHS) issued privacy regulations in 2002. The regulations require health care providers to protect information they receive from their patients. Recently, the federal government has begun vigorously enforcing HIPAA.
In a 2010 case similar to the one involving the surgeon, the government disciplined a nurse who accessed her ex-husband’s medical records at the hospital where she worked. Significantly, her actions also violated her ethical obligation to protect patient confidentiality. Her nursing board could revoke her nursing license for her actions.
Recent Cases - Pharmacies
In the early part of 2000, the HIPAA police learned that CVS pharmacies nationwide had been tossing old patient records into dumpsters behind the stores. This clearly violated HIPAA’s requirement that such records be shredded. To settle the enforcement action, CVS paid $2.25 million in fines and submitted to long-term monitoring of its privacy practices.
In 2010, the HIPAA police slammed Rite Aid Pharmacies with a $1 million fine. That year, the government also initiated an investigation into Walgreen’s HIPAA practices.
Since the enactment of laws requiring those who purchase cold medicines containing ephedrine to sign a pharmacy log, we’ve all seen the ephedrine logs beside the pharmacy cash registers. Last year, the HIPAA police cited a local pharmacy for positioning the log on a counter in a way that exposed the names of customers who had signed the log.
In another case, a pharmacy employee accidentally put one patient’s insurance card into a bag containing another patient’s medication.
Finally, another pharmacy chain did not comply with HIPAA’s requirement that all of its business associates sign confidentiality contracts agreeing to protect patient information. The associate in question was the pharmacy’s lawyer.
Inadvertent Disclosures – “Don’t Talk So Loud!”
HIPAA requires health care providers who talk about their patients to speak quietly so that they are not overheard. Last year, the government disciplined a physician who chose to discuss his patient’s HIV treatment in the clinic waiting room while other patients were present. It also disciplined a hospital nurse who chatted too loudly about her patient’s HIV diagnosis.
Other inadvertent disclosures that are illegal include:
1. Positioning computer screens on counters in a way that they could be viewed by people in the waiting areas of the clinic
2. Leaving patient charts out where they can be read
3. Talking to a patient on the telephone about his condition in a location where others can overhear the conversation
4. Leaving messages with people at the patient’s home or office or on answering machines without patient consent
5. Discussing a patient’s condition without patient consent – this may happen in cases where the provider seeks a second opinion or advice on a case
6. Talking about patients in office “huddles” when the huddle includes people who are not on the patient’s treatment team.
A Word to the Wise
Health care providers who receive a patient complaint concerning privacy practices or who are contacted by government investigators about potential privacy violations should immediately contact their practice attorney for guidance. We have learned from recent cases that HIPAA violations can result in significant fines, imprisonment, loss of staff privileges, and loss of professional licensure. Providers should not try to handle these cases without legal counsel.
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