Legal Speaks Home Debbie Hines Bio Blog TV Clips Practice Areas Res Ipsa Loquitur Links Contact
Blog Home

Archive for November, 2011

Should Conrad Murray Get Jail Time?

Monday, November 28th, 2011

Michael Flanagan, Conrad Murray’s attorney thinks that his client will receive the full 4 years for his guilty verdict for involuntary manslaughter in the death of Michael Jackson.  Of course, Flanagan will be asking for probation but expects the worst for his client. And he knows that under the facts of the case, despite this being Murray’s first involvement with the law, he caused the death of Michael Jackson. He did it while playing God…or anesthesiologist, neither of which he was qualified to be.  Should Murray get jail time? Many argue that Murray was just  the final  pawn in Michael Jackson’s weave of health care professionals.

Under the law, Murray could receive probation or up to 4 years in jail.  Judge Pastor sent Murray straight to jail after the jury came back with the guilty verdict. This is highly unusual in a case of this type.  A judge would ordinarily have the defendant come back for sentencing while still remaining on bail. Murray was ordered to go immediately to jail.  That’s a clear sign of what the judge is thinking in terms of a sentence.

At Murray’s sentencing, Jackson family members may testify about the impact of Jackson’s death on his family.  Murray may also provide witnesses to lessen any sentence.  Murray may also speak before his sentencing. If he does, it will not be any major concession. And the judge may give his reasoning for the sentence that he imposes on Murray.

Regardless of the amount of time, Murray’s attorneys are now more focused on his appeal.  His attorney, Michael Flanagan spoke on televised CNN stating there are at least 3 grounds for appeal, according to the defense. He stated the judge should have sequestered the jury as it was a high profile case.  Sequestration means the jury would have been kept in a hotel and not allowed to go home. It would ensure that they did not have access to the Internet, news accounts nor family and friends for consultation. This ground is likely to fail on appeal. An appeal is successful if there is a legal error by the judge that would likely have resulted in a different verdict. A judge is not required to sequester a jury; it is left to the judge’s discretion.

Second, Murray’s attorneys state they should have been allowed to provide information about Michael Jackson’s financial situation.  Well, again, no harm no foul under the law.  There is no correlation between Jackson’s financial situation and what caused his death.  The defense claims that Michael was financially desperate for the concert.  And he would do anything in support of his concert, including giving himself the final death drugs.  Lastly, the defense asserts they should have been allowed to provide testimony about dermatologist Dr. Klein. Dr. Klein’s treatment of Jackson was not allowed in part because the drugs that Klein may have given Jackson were not in his system nor caused his death, according to the autopsy report.

If Murray who is already in jail is sentenced to jail time, he may have to serve his time in jail pending his appeal.  As a former prosecutor,  I have said that Murray should get jail time–the maximum  4 years allowed under the law.  He was found guilty of criminally  taking a life.  Probation or a lesser sentence does not take into account the severity of the crime nor circumstances surrounding it. No matter what happens at his sentencing, we have probably not heard nor seen the last of Conrad Murray. For Michael Jackson, this is it.

Debbie Hines is a lawyer, former prosecutor and legal commentator appearing in national and local media including CNN, the Michael Eric Dyson Show, XM Sirius radio, NBC , ABC and CBS -Washington, DC affiliates,  NPR, the Wall Street Journal, Washington Post, USA Today, Black Enterprise among others.  She founded LegalSpeaks, a progressive blog on women and race in law and politics.  She also writes for the Huffington Post.

 

Is the Obama Administration’s Drug Policy Worth the Cost?

Wednesday, November 23rd, 2011
Photo by Samantha Appleton

White House Photo by Samantha Appleton

While there is nothing new about drugs in our society, a new approach is being offered by the Obama Administration to help break the cycle of arrest, incarceration, release and re-arrest. On November 21, President Obama announced his first commutation—that of Eugenia Marie Jennings who was convicted in 2001 of distributing cocaine and sentenced to 22 years. She will be released next month but her 8 year period of probation remains intact.  Jennings’ commutation is consistent with the Obama Administration’s overall drug policy.

Recognizing that one size does not fit all when it comes to drug policies, the Obama Administration’s policies reflect diverse solutions and fairness in its approach.   These include increasing drug courts, passing of the Fair Sentencing Act and retroactivity of the Act and the Second Chance Act.  The Administration supports the expansion of additional drug courts for nonviolent offenders. Drug courts divert 120,000 people into treatment versus jail.  While drug courts have been around for 20 years, an expansion is necessary to aggressively tackle the problem.

After passage of the Fair Sentence Act last year, reducing the cocaine disparity from 100-1, the Obama Administration successfully advocated for the retroactive application of the new sentencing guidelines, which became effective on November 1st. The Administration is implementing the Second Chance Act which provides funding for programs that improve coordination of reentry services and policies including grants, reentry courts, family-centered programs, substance abuse treatment, employment, mentoring and other services needed to improve transition from prison and jail to communities and reduce recidivism.

Currently, almost 7 million adults are under supervision of state and federal criminal justice systems. Two million are incarcerated and the remaining 5 million are under parole or probation. The costs of managing prison populations have grown significantly. From 1988 to 2009, state corrections costs have increased from 12 billion to over 50 billion. Overall costs related to drug use including health costs, incarceration and lost productivity total $193 billion. Yet, despite these staggering costs, many offenders are not able to remain drug free and crime free upon re-entry into society.  The Obama Administration has recognized that we cannot arrest and then re-arrest our way out of our drug problem in America. We cannot continue to do the same things the same way and expect to get different results.

It is well known that treatment works and is a less expensive alternative to incarceration, according to Redonna K. Chandler, Ph. D., Chief of the National Institutes of Health (NIH), National Institute on Drug Abuse (NIDA) Services Research Branch. Chandler stated at a briefing on Monday that in Delaware, a study showed 3 years out, 70% of those who received comprehensive drug treatment remained arrest free.

Under the leadership of Gil Kerlikowske, Director of National Drug Control Policy (ONDCP) and President Obama’s top drug policy advisor, the Administration’s approach has been to break the cycle of arrest, incarceration, release and re-arrest, plus looking to keep the public safe while balancing public health.  Increased cases of HIV and AIDS are often the byproduct of illicit drug use.  Since 2004, 50% of all new cases of AIDS were African Americans, despite being only 12% of the US population. And in the 25-44 age group, AIDS is the leading cause of death.

In the past 2 ½ years, the Obama Administration has taken unprecedented actions to break the cycle of drug use, incarceration and re-arrest.  This last fiscal year, the Obama Administration spent $10.4 billion on drug prevention and treatment programs compared to $9.2 billion on domestic drug enforcement. And while some may argue we cannot afford the expense of these new programs; in reality, we cannot afford the staggering costs of incarceration and the overall costs that drugs have on our society, where treatment and other more viable options exist.

 

If You See Something, Say Something: Report Child Abuse

Saturday, November 19th, 2011

Just like the Washington, DC metro area rail’s slogan of “If you see something, say something” to educate the public to report a suspicious package or activity, a similar approach should be taken to report suspected child abuses.  There have been many occasions where Washington, DC Metro stations closed due to investigating suspicious packages, delaying travel and causing inconvenience.  Yet, the inconvenience is minor, if it helps to prevent harm to the public.

I recall running the Army Ten Miler race one year when a suspicious package was discovered in the middle of the race. It resulted in the race course being diverted in the middle of the race, nullifying the 10 mile certified course and confusing runners.  No bomb or anything to harm runners or spectators was discovered.  Yet, the risk of harm was well worth the cautionary measures taken.

There may be many reasons why persons are reluctant to report crimes, including those involving children. As a society, we must work towards lessening those reasons. While it may seem apparent to some to report any suspicious activity, others may choose to look the other way. And education is the key. In the area of reporting child abuse, in addition to tightening any legal reporting loopholes, an educational campaign is also warranted.

As ESPN’s Matt Millen said, “If we cannot protect our children, we are pathetic as a society.”  So, if you see something, say something to report suspected child abuse.

Debbie Hines is a lawyer, former prosecutor and legal commentator appearing in national and local media including CNN, the Michael Eric Dyson Show, XM Sirius radio, NBC , ABC and CBS -Washington, DC affiliates,  NPR, the Wall Street Journal, Washington Post, USA Today, Black Enterprise among others.  She founded LegalSpeaks, a progressive blog on gender  and race in law and politics.  She also writes for the Huffington Post.

 

Is Sandusky’s Attorney Dumber Than Dumb?

Thursday, November 17th, 2011

Jerry Sandusky and the Penn State sex abuse case is shaping up like the Conrad Murray case. No, Conrad Murray, who was convicted of manslaughter in the death of Michael Jackson had no sex abuse charges; but he had incompetent attorneys and bad lawyer advice much like the Sandusky case.  In Murray’s case, his attorney Ed Chernoff was present during the 3 hour statement given by Murray to the police following Michael Jackson’s death.  And that statement pretty much sealed the deal for Murray’s conviction.  Now, there’s Joe Amendola, Sandusky’s attorney, who not only allows his client to speak to NBC’s Bob Costas in an interview but actually offers him to do so. Originally, Costas, was to have interviewed Sandusky’s attorney. Shortly before the interview, Amendola asked what if he could produce Sandusky by phone for an interview. I’m sure Bob Costas leaped for joy at his good fortune.

The interview questions were simple and to the point.  Yet, Sandusky appeared to struggle with the question of whether he was sexually attracted to young boys.    It actually took him 17 seconds before he finally answered that no, he was not. Sandusky acknowledged taking showers with young boys and “horsing” around.  “I didn’t go around seeking out every young person for sexual needs that I’ve helped,” Sandusky said. “There are many that I didn’t have – I hardly had any contact with who I helped in many, many ways.”

Don’t take my word for it, listen to the tape.   Sandusky Interview With Bob Costas

In the world of criminal law, it is rule 1 that you do not allow or volunteer a client for an interview after indictment or during investigation to speak on the charges and the facts of the case. While the statement in Sandusky’s case was not given to the police, it serves the same purpose; The prosecution will be able to play the tape at the trial of the case.  And it won’t sound good.  That’s exactly what happened in the Conrad Murray case.

Sandusky’s attorney said he wanted his client to give his view of the facts. Well, in a criminal prosecution, the prosecution has the burden of proving guilt beyond a reasonable doubt. The defendant bears no responsibility to prove his or her innocence in a court of law.  And a defendant should not risk his liberty by giving a statement proclaiming innocence in the court of public opinion. It will only help the prosecutor prove guilt.

I’ve been asked why would Sandusky’s attorney allow him to freely give a statement to the media. First, I thought the lawyer was not able to control the client and that Sandusky did it against his lawyer’s advice. Now we find out that the idea was that of the lawyer. Attorney Amendola said his client was guilty in the court of public opinion and an interview might help change the perception.

While I don’t want to give advice to Sandusky, I suggest he might seriously consider firing his present lawyer and hiring a competent one. This is the big leagues. And if convicted of 40 counts at his age, I doubt if he’ll see the light of day outside prison again.  But then again, maybe he should keep his attorney.

While Sandusky has a lawyer, Mike McQueary needs to hire one. McQueary is sending E-mails to friends proclaiming facts that he did not tell the grand jury.  He’s doing this much for the same reason that Sandusky spoke on the record, to attempt to prove he did the right thing.  Regardless of whether he called the police or not during the alleged victim’s sex abuse encounter, he should seek advice of counsel and remain silent until called to testify as a witness.

Former Penn State President Graham Spanier has been keeping his mouth shut since being fired. And former coach Joe Paterno has done mostly the same.   Joe Paterno powered up with high profile Washington attorney J. Sedgwick Sollers, who represented George W. Bush.  I doubt if  Joe Paterno will be giving any statements.

Please follow LegalSpeaks for up to date analysis of the Penn State and other high profile legal cases.

Debbie Hines is a lawyer, former prosecutor and legal commentator appearing in national and local media including CNN, the Michael Eric Dyson Show, XM Sirius radio, NBC , ABC and CBS -Washington, DC affiliates,  NPR, the Wall Street Journal, Washington Post, USA Today, Black Enterprise among others.  She founded LegalSpeaks, a progressive blog on gender and race in law and politics.  She also writes for the Huffington Post.

 

How the Demise of the Post Office Would Affect African Americans

Thursday, November 17th, 2011

The U.S. Post Office is battling budget battles, shortages, lay- offs and struggling to stay open and alive.  In a bygone era, the Post Office was a refuge job for many African Americans, helping them to achieve the American dream.  At a time when blacks were denied many job opportunities due to race discrimination, the US Post Office was a mainstay for many blacks. During its hey-day of employment, the Post Office employed many college educated blacks with undergraduate and graduate degrees, veterans and others who were often time unable to obtain jobs elsewhere due to discrimination. As a result, they were able to buy homes, send children to college and obtain the middle class dream. Many blacks think fondly today of the Post Office despite the hardships, set- backs and failure to keep up with e-commerce and competing overnight delivery services, due to the opportunities it afforded to African Americans. Today the US Post Office employs approximately 560,000. It is subject to losing about 20% of its work force, many of whom are African Americans. Approximately 20% of the post office work force is African Americans.

According to  Professor Philip Rubio and author of There’s Always Work at the Post Office: African American Postal Workers and the Fight for Jobs, Justice and Equality, a Post Office job for many blacks meant a decent salary, benefits—sick leave, annual leave and standing in the community. Rubio’s book discusses how blacks have been afforded opportunity at the Post Office since 1883 up to today.

The postal workers are fighting back.  September 27, 2011 was a national day of action to save the Post Office and to alert to awareness of the situation.  On November 7, new TV ads began running by the postal union to show the nature of the problem.  H.R.  1351 , a bill now pending in Congress and introduced by Rep. Stephen Lynch (D. MA) would allow for its survival. As of October 12, there are 226 co-signers of the bill. Rep. Elijah Cummings (D. MD) is the highest ranking Democrat who oversees the Post Office and has also introduced a bill.  Despite  the issues facing it, the Post Office must survive. Failure should not be an option for this American institution.  Urge your representative to sign onto HR 1351.

Debbie Hines is a lawyer, former prosecutor and legal commentator appearing in national and local media including CNN, the Michael Eric Dyson Show, XM Sirius radio, NBC , ABC and CBS -Washington, DC affiliates,  NPR, the Wall Street Journal, Washington Post, USA Today, Black Enterprise among others.  She founded LegalSpeaks, a progressive blog on  race  and gender in law and politics.  She also writes for the Huffington Post.

 

Penn State Sex Scandal: Are Tougher Reporting Laws Needed?

Monday, November 14th, 2011

Following the 40 count  indictment of  former Penn State assistant coach Jerry Sandusky for  child sex abuse  and Athletic Director Tim Curley  and Gary Schultz, Vice President of Finance and Business, for sex child abuse cover up and perjury, many state legislators are now playing Monday morning football and focusing on whether tougher child abuse reporting laws are needed.  Reporting child abuse allegations varies from state to state. In Pennsylvania where these alleged acts took place, the law did not require that everyone who suspects child abuse must report it to authorities. Pennsylvania Governor Tom Corbett, former Pennsylvania Attorney General and a Penn State trustee is considering stricter child abuse reporting laws for Pennsylvania.

Based on present Pennsylvania law, assistant coach Mike McQueary, who eye witnessed Sandusky having anal sex in a shower with a 10 year old child in 2002, was not legally obligated to report what he saw to any authorities.  McQueary was considered a “permissive” reporter in that he was permitted to but not required to report. Head coach Joe Paterno and Penn State President Graham Spanier, who  were made aware of some of the allegations were also not criminally charged. Both were fired for a lack of a moral obligation.

Under Pennsylvania law, a person who is required to report suspected sex or child abuse crimes but fails to do so is subject to a misdemeanor. Eye witness McQueary, the person most morally obligated to report the incident, bears no legal responsibility and has been allowed by Penn State to keep his job, albeit under alleged death threats.

The assumption by Pennsylvania Governor Corbett and other state legislators considering tougher reporting laws is that it will result in more reports of child abuse. While it’s too late to help the alleged victims of Sandusky, it is hoped that laws with tougher penalties and criminal consequences for non-reporting and a higher legal obligation to report will help future victims.

Failing to report crimes is nothing new. There have been other well known cases dating back to the infamous Kitty Genovese New York case in 1964 where allegedly over a dozen of witnesses saw a murder take place and did nothing to report it. As a former prosecutor, I oversaw a murder investigation in a well- known night club with over 200 potential witnesses and no one came forward.

And the first case against Sandusky was reported to the authorities in 1998 by the mother of the victim and investigated by the state prosecutor’s office.  It resulted in no charges being brought. It begs the question of whether more stringent reporting laws would have made a difference in the Penn State sex scandal. Tighter laws are nothing without enforcement of those laws.

According to the Department of Health and Human Services, all states, including the District of Columbia have laws on who is required to report child abuse. Many states designate certain professions such as social workers, teachers, health care worker, mental health professionals, child care providers, medical examiners and law enforcement officers as persons required to report instances of abuse. In 18 states including Puerto Rico, anyone who suspects child abuse is required to report it. In all other states, any person is permitted to report but not required to do so. The identity of the reporting person is kept confidential from the perpetrator in 39 states and the District of Columbia. Presumably, Pennsylvania and other states may now be considering making it mandatory for anyone who suspects child abuse to report it.

 

It still begs the question of whether stricter laws will make the difference. We’ve all heard the saying men will be men and boys will be boys. Well cowards will continue to be cowards. And tougher reporting laws will not change their actions.  More laws will not necessarily mean more reporting. Cowards will continue to go on protecting their own selfish interests, do nothing and hope they will not get caught with their pants down in a Penn State type scandal.

On an institutional wide basis, what will make a difference is hitting them in their pocketbook with punitive damage awards. Getting hit with tens of millions of dollars and more will go a long way towards making a difference.  Ask Penn State—they’re about to find that out soon.

Debbie Hines is a lawyer, former prosecutor and legal commentator appearing in national and local media including CNN, the Michael Eric Dyson Show, XM Sirius radio, NBC , ABC and CBS -Washington, DC affiliates,  NPR, the Wall Street Journal, Washington Post, USA Today, Black Enterprise among others.  She founded LegalSpeaks, a progressive blog on women and race in law and politics.  She also writes for the Huffington Post.