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My wife and I went out for pizza tonight and found the street blocked before the entrance to our favorite pizza restaurant. In the roadway yellow police tape had cordoned off an obvious accident scene, as the local police major crime squad went about the task of documenting the crash site. Standing upright in the center of the roadway was what was left of a motorcycle. On the sidewalk the rider’s lone boot stood starkly. Pieces of what was the bike were scattered over an area that was marked by large patches of sand where the hapless rider’s blood had stained the roadway. A waitress said it was a fatality; the online edition of the paper reported that the rider was alive but critical.

That same news report claimed that a youthful driver had fled the scene. The same waitress said she had heard the driver of the hit and run car had been talking on her cell phone. I couldn’t shake the images all evening. I had recently come to terms with age and diminishing reflexes and sold my own motorcycle. Sitting in that restaurant, looking out the window at the grisly scene validated that decision many times over.

For whatever reason I have begun to take note more and more of the numbers of drivers who text and drive. Ask yourselves whether you can recall someone swerving in front of you or glancing down at their hands when you look in your rearview mirror at them. Ask yourselves how many times in the course of week, you’ve encountered some thoughtless texter. How many times in the course of a day?

Distracted driving is becoming epidemic. I wondered if someone is keeping statistics on the number of collisions caused by careless texters. Someone is. The website www.distraction.gov is the official U. S. Government website on distracted driving. The information displayed is alarming.

One article chronicled the recent homicide conviction in Wisconsin of a 21 year old woman who, while texting and taking calls, rammed her van into a stranded young motorist standing behind his car, killing him. His life and her life both ended in that careless moment when her eyes were off the road and she was engaged in a cyber conversation. How critical could that message have been that it demanded the death of a stranger for her to respond?

As I read that article I thought again of the young woman allegedly responsible for the crash outside the pizza palace tonight. If that rider was lucky enough to survive what will be the quality of his life? And what of the youngster who is alleged to have panicked and fled? I have defended such drivers. They aren’t hardened criminals. They are generally decent people who checked their common sense at the garage door when they decided that driving and communicating are essential together.

Oddly enough I thought about the navigation system in my car and my wife’s car. Two different manufacturers, but a common limitation. You cannot operate either navigation system while the car is in motion. Even the front seat passenger can’t do it. So why not build that safety limitation into vehicles or smartphones? How critical is that brief, cryptic message that it is worth sacrificing lives and futures to send at that moment. Makes you wonder why they really should be called smartphones; certainly the ones busily typing aren’t all that smart.

The Wisconsin news article referenced a study by AT&T that among youngsters 15 to 19 63% send at least 21 text messages a day. Alarmingly, 43% admit to texting while driving and of that group 97% acknowledge that it is dangerous. The article further notes that it is not just kids, but that 43% of adults polled admitted to texting while driving. Certainly what I have seen on the highways recently suggests that those numbers fall short of the real mark.

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There is a line in my favorite movie, A Few Good Men, where (Tom Cruise) Lt. Caffey confronts Demi Moore’s well-meaning, but inexperienced character after another major faux pas, ” Oh that’s right, I forgot, you were absent the day they taught law at law school.” Watching some recent high profile trials lately that line seems to be more truth than fiction.

The most recent example occurred this week in the Drew Peterson trial in Joliet, Ill. Peterson is finally on trial for the 2004 death of his third wife, Kathleen Savio. The judge, Edward Burmilla, twice denied mistrial motions by the defense on two prior occasions during the early stages of the trial. .

Prosecutor, Kathleen Patton, was questioning a critical witness, former policewoman Teresa Kernc, about an incident in 2002. Kernc was permitted to testify to hearsay from Savio in great detail about Peterson breaking into Savio’s home. Savio told her, and she in turn told the jury, that Peterson, dressed in full SWAT regalia ordered her to her knees and threatened to shoot her in the head. Judge Burmilla permitted this hearsay under a new law Illinois had passed but cautioned Patton that she was not to elicit information that Savio had sought an order of protection against Peterson.

Two hours later, in a classic example of short attention span, Patton asked the witness that very question, prompting an immediate rebuke from the judge and the third defense mistrial motion. Patton’s excuse for directly violating a judge’s specific order: she had inadvertently read the question from her pre-printed list of questions. That one belongs in the same category as, “The dog ate my homework!”

Mistakes happen in the courtroom and even top tier trial lawyers are not exempt. If you have never put your foot in your mouth in front of a jury, you have never tried a case. This one however, was beyond inadvertent. Lawyers preparing lengthy examinations will often script out their questions. When a judge rules in advance of the examination, limiting its scope, an experience litigator will review the list and make appropriate amendments. If the examiner has concerns that she may violate the restrictions she can make an offer of proof in the absence of the jury. The lawyer would then pose the intended questions and the judge will make his ruling clearer. That is Trial Practice 101.

Unfortunately, too many lawyers are so wedded to their prepared list of questions that they sometimes appear not to be listening to the answers. Those examinations are mechanical and have no flow to them. Ms. Patton must have been absent when they taught the concept that you have to abide by a judge’s ruling, or suffer the consequences. The consequences for this egregious error could lead to the termination of the prosecution. The state of Illinois and Peterson have invested considerable expense in presenting the case so far. As well, the jurors have sacrificed their time to serve. All of that could be lost if the mistrial is granted.

Worse yet, the judge may rule that jeopardy attaches and bar further prosecution. Double jeopardy classically protects an accused from being tried a second time after a prior acquittal. A mistrial is the termination of a trial before a verdict is rendered. It is employed if there has been a prejudicial occurrence in the presence of the jury that cannot be cured with a cautionary instruction from the judge. If the judge determines that there is “manifest necessity” jeopardy will not attach. In either event there will be grounds for appeal.

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The mass murders in Colorado have drawn a sharp focus on the limits of patient privilege with mental health treaters. A recent report on CNN.com reveals that alleged killer, James Holmes, had been consulting with a University of Colorado psychiatrist, Lynn Fenton. Apparently, Holmes’ behavior in the time leading up to the shootings was so concerning that Fenton reported him to the University’s Behavioral Evaluation and Threat Assessment Team (BETA). Because Holmes was withdrawing from the University there appears to have been a disconnect as the BETA team never acted on her concern.

Aside from the potential for civil liability that the University may be exposed to, there are ethical issues highlighted by Dr. Fenton’s actions. Since the advent of HIPAA Privacy Rules we have all become accustomed to signing privacy notices each time we engage a new physician. Doctors are mandated to not disclose patient information without the express permission of the patient unless required by law.

The laws of evidence protect privileged disclosures, generally by statute. In the arena of mental health those privileges are paramount to a therapist building trust with a patient. But what if the therapist learns of violent tendencies? May that therapist reveal that information, thus exposing the patient to possible prosecution, or must that therapist remain silent, hoping that the threats do not become reality? That question will be debated now that it has come to light that there were some disturbing indications to Holmes therapist causing her report to the BETA team.

We have all come to believe that what we say in the context of such intimate, personal medical treatment is sacrosanct. It is not. There are clear guidelines for therapists that identify under what circumstances not only may a therapist break confidentiality, but actually mandate that they do.

To highlight this we can examine some specific provisions in federal and state law. For example, HIPAA privacy is not absolute. A summary of the Act provides that treaters, “may disclose protected health information that they believe is necessary to prevent or lessen a serious and imminent threat to a person or the public, when such disclosure is made to someone they believe can prevent or lessen the threat (including the target of the threat). Covered entities may also disclose to law enforcement if the information is needed to identify or apprehend an escapee or violent criminal.”

The American Psychological Association’s Code of Conduct provides, “[p]sychologists [may] disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to . . . (3) protect the client/patient, psychologist, or others from harm . . . .”

In Connecticut there is a statutory psychiatrist-patient privilege (Sec. 52-146e, Conn. Gen. Stat.) however that privilege has its exceptions: “(2) Communications or records may be disclosed when the psychiatrist determines that there is substantial risk of imminent physical injury by the patient to himself or others . . . .”
Connecticut also recognizes a psychologist-patient privilege (52-146c); as well as communications to a member of the clergy (52-146b), a battered woman/sexual assault counselor (52-146k), social worker (52-146q) and a marital therapist (52-146p) among others.

Interestingly only the psychiatrist privilege has the exception for reporting a threat of imminent harm. While the exception exists it still requires the exercise of judgment by the doctor as to the specificity of the threat. There is a distinction between a patient saying, “I am going to kill my wife” (disclosure permitted for her protection) and a general statement, “I’m so angry I could kill someone.” Doctors weighing these potential “threats” do so at great peril. In one instance failure to warn may lead to civil liability to the victim; while issuing a warning in too general a threat may lead to legal action by the patient for invading the privilege.

As the fallout from the greatest mass murder in our history continues hopefully practitioners will gain greater clarity regarding these difficult decisions.

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The weekend that the The Dark Knight Rises opened I sat in the Norwalk Imax theater with my family, hours after the senseless massacre in Aurora, Colorado. The air conditioning had failed, lending to the feeling of discomfiture that came from the knowledge that a dozen innocent movie fans had been slaughtered hours before. The morning news was dominated by the face of evil that had created the hell in Colorado. James Holmes, with his flaming orange hair and wide eyes, was everywhere.

Later news accounts detailed his brief court appearance with varying descriptions of how he appeared. Next to him sat a young public defender, appointed to protect his rights to due process. The prosecutors are considering a capital offense that would expose him to the death penalty. I am not a proponent of capital punishment but cases like this and the Chesire home invasion case, make it difficult not to abandon that position.

I thought about the tasks ahead for those public defenders. How will they proceed? Before the issue of guilt or innocence is addressed defense counsel must be able to communicate with the accused. It is paramount that an attorney be convinced that the defendant understands the process and is capable of assisting in his own defense. We call this legal competency.

Colorado statutes provide: “‘Incompetent to proceed’ means that, as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.”

This is distinguished from legal insanity which focuses on the accused’s mental state at the time of the commission of the crime. Competency focuses on his continued mental state during the course of the proceedings. One could be legally sane when the crime was committed but descend into mental illness after that leading to a finding of incompetence. The converse is also true. In fact, I have successfully defended a number of homicide cases where the defendant was competent to proceed but was found not guilty by reason of insanity. In those cases the mental disease continued to flourish through the trials but the client had the ability to understand the nature of what was happening and what my task was.

In Colorado the Court or either counsel, state or defense, may file a sealed motion seeking a competency evaluation. The proceedings are halted while the evaluation takes place and until there is a formal hearing to resolve his mental status. The Court can make a preliminary finding of incompetence and either party then has ten days to either request a second evaluation or a formal hearing. In the absence of either, the competency finding stands.

If a hearing is held the party asserting incompetence has the burden of proof. The patient-psychiatrist privilege is waived and any information, including the defendant’s description of his conduct, is available to the state. For this reason, defense counsel contemplating a later insanity defense will only raise the issue if the client truly does not understand what is occurring. evidence from the evaluation can be used by the state at trial to rebut a claim of legal insanity at a later trial.

In the usual case the court will commit the accused for treatment in the hope that he will be restored to competency. Forced ingestion of psychotropic drugs can be ordered if needed for treatment. If restored after another hearing, an accused faces trial. In Colorado, as contrasted with our state, an accused found incompetent may be held for the duration of the same term as would apply if he were convicted.

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Former FBI director Louis Freeh released a 267 page report detailing the institutional responsibility of Penn State (PSU) and its senior administrators. In it his team criticized the Univeristy for the continued climate of sexual predation that was allowed to fester by now convicted pedophile, Jerry Sandusky.

In the report, Freeh concludes that Joe Paterno, former president Graham Spanier and two other senior officials learned in 2001 of Sandusky’s assault on a youngster. He further found that there was greater regard for the reputation of PSU’s vaunted football program than for the welfare of past and future children victims. Freeh went as far as indicating that the four administrators made a conscious decision to conceal Sandusky’s perversions, compounding the tragedy.

The fall out will be costly to the university as the focus will eventually turn from Sandusky and his futile defense to the civil law suits by his victims. The Freeh findings will bolster the claims that PSU, and these administrators as the agents for the university, should pay damages to compensate Sandusky’s victims.

In the law of torts, or civil wrongs, when an individual acts purposefully to harm others that person has committed an intentional tort. This is contrasted with what we more often see in civil litigation, where claims are based on negligence. Negligence is generally defined as the breach of a duty owed to others to act in the manner that a reasonable person would under like circumstances.

Where the actor, known as the tortfeasor, is the agent or employee of an institution, and acts negligently, the institution is charged with responsibility for the ensuing damages. The principle is known as vicarious liability. It is also known by its Latin name (a practice no longer in favor in law schools) as respondeat superior.

When a tortfeasor acts intentionally, rather than through mere negligence, the doctrine of respondeat superior does not automatically hold the employer or institution responsible. The concept is that an employee or agent who acts to commit an intentional wrong is not acting within the scope of his/her authority. Thus, the employer should not be charged with accountability in tort damages for an act that the law describes by another Latin phrase, ultra vires, literally translated, “beyond powers.” That is the employee or agent is acting outside that person’s scope of employment without permission.

The law, however, will impose institutional liability in cases like the PSU sex scandal if it can be proven that the institutional defendants either permitted the conduct to continue or ratified the conduct after the fact. What the Freeh reports means to the Sandusky victims is that PSU will now most probably succeed in damage suits against the University and these four administrators. Simply put, once they became aware of the harm Sandusky created that established that the institution now owed a duty to the future victims to take affirmative action to protect against this harm continuing.

For those victims who were harmed after the 2001 report by graduate assistant Michael McCreary, PSU will be held accountable. For the earlier victims the issue is less clear. The question for them will be what, if any, notice did the University or any of the senior administrators have of this conduct. Merely being harmed by an institution’s employee is not sufficient to impose vicarious liability. Knowledge by the institution and failure to act is required.

The sad reality for one of the country’s premier universities is that its leaders only had to look to the rash of lawsuits that were developing against the Catholic Church. That institution became responsible for the continued sexual abuses of a handful of clergy because it failed to protect future victims and fostered a climate that allowed the abuse to continue.

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Since the historic decision approving the meat of President Obama’s healthcare law Chief Justice Roberts has been castigated by the conservative fringe in the blogosphere. I was intrigued by the conservative backlash to the decision and decided to Google “Chief Justice John Roberts ObamaCare” thinking there would be a bevy of articles reflecting intelligent reactions to the decision. Wow, was I wrong on that one!

Try it. Headlines like, “The Ultimate Swinger,” or “The Breathtaking Lawlessness of Chief Justice Roberts ObamaCare decision” vault to the top of Google’s first page. conservative bloggers appear, universally, to condemn Roberts for not voting in line with the conservative (a/k/a Republican) position on the mandate. Clearly these pundits were confident that Roberts would continue to align with the Court’s traditional conservative majority and strike down the controversial law in its entirety.

The vigor with which they have attacked him displays that they are disappointed that Roberts strayed from the path they believe he is mandated to tread.

When Roberts was facing confirmation hearings he used a baseball analogy to describe his approach to judicial decision making, saying he was going to “call balls and strikes” not “pitch and bat.” Appointment to the Supreme Court is for life, and not subject to the changing whims of the electorate. Because of this our legislators are required to carefully scrutinize candidates for appointment. The confirmation process is more than a beauty pageant. It represents the only opportunity to look beyond the candidates written opinions and see what the real stuff of the nominee is.

Conservatives applauded Roberts’ selection based on his history. Certainly his early work on the Court suggested that this confidence in his judicial conservatism was well placed. But did it guarantee that Roberts was a “team player” who would spend a lifetime on the bench as a shill for the mainline conservative position on each issue the Court faced? The answer now is a clear, “No!”

What is lost in the ideologues’ criticisms is the fact that four other lifetime appointees to the Court joined in Roberts’ analysis. How do the right wing bloggers deal with that? Do they view these other Justices as constitutional dimwits who only want to advance liberal concepts?

Perhaps, despite my advancing years I am still naive enough to believe that men and women appointed to Supreme Court take seriously the oath to uphold our Constitution and rule with reason. The Supreme Court’s website notes that Justices are required to take two oaths of office, the judicial oath and the constitutional oath.

Combined those oaths state: “I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Neither oath guarantees how a nominee will vote but that each is sworn to rule in an impartial manner with “true faith and allegiance” to the Constitution. So despite the backlash to Roberts’ vote I will continue to naively believe that when he swore to this oath, he sincerely meant it. Or maybe he had his fingers crossed behind his back when he said it. Whether you think so or not depends on your own political bent, I guess.

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This week’s historic ruling by the United States Supreme Court, upholding the constitutionality of the meat of the Affordable Care Act (ACA) will have a little known ironic footnote. The hallmark of President Barack Obama’s first term narrowly succeeded in a 5-4 decision. The swing vote was cast by the conservative Chief Justice, John Roberts. Had Senator Barack Obama prevailed during the confirmation of Roberts as Chief Justice, Roberts would not have been a member of the Court. Whether another in his stead would have voted as did Roberts can only be speculated. The further irony is that Roberts was touted by the former Republican administration and backed by the very members of Congress who voted against ACA. Fortunately for the Chief his appointment is a lifetime one and he is safe from the ire of the losers in this epic constitutional battle.

The Court has been divided between the majority conservative wing– Chief Justice Roberts joined by Justices Samuel Alito, Antonin Scalia, Anthony Kennedy and Clarence Thomas; and the acknowledged liberals — Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Roberts strayed from his conservative bent, joining the liberal wing in upholding the law. The four conservative justices dissented. Roberts noted that the decision does not focus on “whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.” But the Chief also noted that the court’s deference in matters of policy” cannot, however, become an abdication in matters of law.”

The central focus of the court decision centered on the so-called individual mandate. The question presented was whether the Government could mandate that individual citizens purchase health insurance. Proponents of the Act argued that the Commerce Clause (Article I, Section 8, clause 3, provides that Congress shall have the power, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”) combined with the Necessary and Proper Clause (Article I, Section 8, clause 18, “The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”) significantly expands the powers of the federal government.

It was argued by proponents of ACA that this expansive power was properly exercised by the Act. In the weeks leading to the ruling legal scholars continued to debate the province of the Commerce Clause to justify ACA. In the majority opinion Roberts clearly announced that Congress lacked the constitutional authority under the Commerce Clause. Roberts determined that permitting Congress to regulate individuals because they are doing nothing would open a “new and potentially vast domain to congressional authority.” Congress already possesses authority to regulate what people do therefore upholding the Act under the Commerce Clause would allow Congress to regulate what we do not do. He notes that this would fundamentally change the relation between the citizen and the Federal Government. Roberts noted that the Framers understood the distinction between doing something and doing nothing. “The Framers gave Congress the power to regulate commerce, not to compel it.”

Solicitor General Donald Verilli offered alternative arguments to the Commerce Clause for the Court’s consideration. He failed in his first suggestion, that the mandate could be sustained under Necessary and Proper Clause “as an integral part of a comprehensive scheme of economic regulation.” In rejecting that argument the opinion notes that precedents under that Clause involve the “exercises of authority derivative of, and in service to a granted power.”

Verilli’s second fallback was that the Act represented the exercise by Congress of its powers of taxation. The penalty for those who fail to purchase coverage by the applicable date is a tax, not a regulatory penalty. It was this argument that carried the majority decision. The opinion notes that ” . . .Congress may tax and spend. The Federal Government may enact a tax on an activity that it cannot directly regulate.” In reaching for this as justification for the Act Roberts tells us that , “[t]he question is not whether [the power to tax] is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.” Courts are constrained to grant full measure of deference to federal statutes challenged on constitutional grounds. As such finding a “possible” interpretation is an exercise of that deference which in this case is the linchpin of the ruling upholding ObamaCare.

Interestingly, what followed, however, was an interview of the President with ABC News now stating that the penalties provided for in ACA for individuals who fail to obtain health coverage by the target date are not taxes. “For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” Obama said, noting that “right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I’m not covering all the costs.”

The battle now turns to the political arena.

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In 2010 the state of Arizona attempted to seek an answer to the perceived problem of illegal aliens crossing its borders. The state, frustrated by the failure of the federal government to control illegal entries, passed an Act entitled, Support of Our Law Enforcement and Safe Neighborhoods Act, commonly referred to as S. B. 1070. The federal government responded by bringing an action in the district court seeking an injunction against the application of S.B. 1070.

The district court ruled that four provisions of the law should not take effect. Among the challenged provisions of S.B. 1070, section 3 made it a crime to fail to comply with alien registration requirements. Section 5 made it a misdemeanor for an illegal alien to work or seek work in the state. Section 6 gave local law enforcement the right to arrest without a warrant any person suspected to be removable from the U.S.. Section 2(B) gave police authority to stop and detain persons to determine their immigration status.

The ruling was upheld at the level of the Court of Appeals and the Supreme Court, this week affirmed most of the lower court rulings. In the majority opinion delivered by Justice Kennedy, the Court recognized the growing problem faced by border states dealing with the influx of illegal aliens. The ruling did not establish “rights” for illegals to remain in this country. It was not an aimed at frustrating controlling illegal immigration nor curtailing the right of authorized law enforcement to enforce the immigration laws. The case turned on the principle of federal preemption of state law in the area of immigration.

Referring to its 1982 decision in Toll v. Moreno Justice Kennedy noted, at the outset, the underpinnings of the preemption claim, “The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” The concept of federal preemption stems from Article VI, Section 2 of the U.S. Constitution, known as the Supremacy Clause. It provides that the “Constitution, and the Laws of the United States … shall be the supreme Law of the Land.” As construed, it means that when the federal government exercises the powers set forth in the Constitution, its laws take precedence over any conflicting state laws.

The issue of the federal government’s right to regulate versus the rights of the individual states will dominate the coming presidential election. That issue will be squarely defined in the ruling also expected this week challenging the Obama healthcare law. The decision in Arizona v. United States heralds the Supreme Court’s current opinion on conflict between state and federal exercise of government policies under the constitution. As the case notes “[s]tates are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance.” In addition, preemption also means that, “state laws are preempted when they conflict with federal law.

Congress has not criminalized the status of being an illegal immigrant or seeking work as such. To that extent, Arizona’s attempt to make the status of illegal alien a crime, in an of itself, intrudes on the federal powers. In striking down the warrantless arrest section the Court recognized that Congress has strictly regulated the authority of immigration officers to arrest and detain aliens. To grant the state the right to broader arrest powers would clearly conflict with the limited scope that Congress has previously authorized.

Like the healthcare battle, controlling illegal immigration will continue to dominate the political arena this election year.