Friday, January 3, 2014

Jahi McMath

I have a lot to say on this subject, but the purpose of this post is to upload the documents in the Federal Court case in support of the answer I posted on Quora, reproduced here:

Apologies in advance for a very legal/technical answer. I feel very sorry for this family. We lost my father after a "routine" surgery earlier this year (a laparoscopic hernia repair)  and I personally know how hard it is to recognize that the person you love is gone, even if their heart is beating and their skin is warm. We made the decision to take my father's body off of the machines and I don't wish that experience on anyone.

That said:

If an appeals court determined that Jahi McMath was not "dead", it would overturn long-standing practices in the medical community, create a care and funding crisis and, on a micro-level, would dramatically affect the all-but-certain medical malpractice lawsuit in this specific case.

Physicians are better qualified to speak of the impact that a decision that Jahi is not "dead" would have in the medical world. Hopefully they will add their answers here. From a legal standpoint, "Brain Death" is a legal concept defined in the Uniform Determination of Death Act, and adopted by most states  (including California, where Jahi died). It has been the widespread standard for determining death since the 1980s. Under the act, "death" occurs when one of two things happens: An individual sustains either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem.

It is widely reported that a number of physicians, including a court-appointed independent physician, have determined that Jahi met the second criteria (You can read the redacted notes of the Court-appointed physician here: Page on Nbcbayarea , and read a physician's explanation of the process here: Jahi McMath Died and What Followed Has Been Tragic)  . Assuming that has occurred, Jahi clearly meets the legal definition of "dead", and a court determination to the contrary would overturn the current law. This would require adoption of a new definition of "death", and would stir up a host of questions and problems, such as:

  • Moral/emotional distress from people who "pulled the plug" relying on determinations of brain death;
  • Debate/uncertainty about which standard to use until new criteria are established/accepted/passed into law (and possible conflicting standards across different jurisdictions);
  • Ethical conundrums for physicians, including possible hesitation to put people on "life support" to begin with, in light of the other problems;
  • Resource allocation problems caused by crowding hospitals with brain-dead bodies on respirators;
  • Increased difficulties in obtaining transplant organs (it is my understanding that the timing is much more delicate and the outcome much less predictable when organs are harvested from a person who suffered cardiac death).

A second important legal precedent affected by the McMath case (should it proceed to a court high enough to bind its decision on lower courts), would be the problem of paying for the care of a brain-dead corpse. Per reports I have read, Ms. McMath had medical insurance. However, medical insurance coverage for an individual ends at the time of death. For example, in an organ transplant situation, the insurance of the recipient will pay for the transfer, not the insurance of the deceased (removal of the cadaver and transportation to the funeral home is paid by the decedent's family, his/her estate, or by burial insurance). A hospital can bill the estate of the deceased for medical expenses incurred after death, but their recovery would be limited by the amount of money in the estate (and often less, after widow's shares, priority debts, etc. are taken care of). Jahi's entire estate is likely to be the value of her medical malpractice action...which brings me to my final point.

Although the legal/medical community at large have a clear stake in larger issues implicated by this matter, there is a more immediate, practical result of the Court's determination as well. If Jahi is dead, the most her family can recover is $250,000 (which would entitle their attorney to a maximum fee of $74,150, since California law also caps contingency fees at 40 percent of the first $50,000, 33 1/3 percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of any amount that exceeds $600,000  (Cal. Bus. & Prof. Code § 6146 ). If she is legally "alive", this is a multi-million dollar case.

California limits recovery of "non-economic" losses, such as  pain and suffering in medical malpractice cases to $250,000 (Cal. Civ. Code § 3333.2). However, they do allow recovery of "economic" losses in addition to that amount. 

I don't mean to imply that the family is motivated by this information, or even that they are aware of it, but the hospital and  the family's lawyer most assuredly do know the financial stakes.

For many people (ex: a banker injured in a surgery), the most significant economic loss is a loss of income. If a person made $100,000 per year before the malpractice and is unable to work afterwards, he has lost income in an amount of $100,000, times however long he is expected to continue working. For example, if our banker is 40 years old, and is expected to work until he is 65, his lost wages would be $2.5 million dollars. Because Jahi is a child, she doesn't have any lost wages (even though it is likely that she would have held a job if she reached adulthood, there isn't enough certainty to include such losses).

The other major type of economic loss is medical expenses. The cost of remaining hooked up to a respirator varies, but the "mean" cost is reported to be about $30,000 (up to $70,000) per day for an intensive care patient hooked up to a respirator (see: Daily cost of an intensive care unit day: the ... [Crit Care Med. 2005]).  Since a brain-dead person might be moved out of intensive care, the cost could be less but, per the article cited above, the cost of ventilation, alone, seems to contribute about $20,000 per day toward medical costs. I don't know how long a body could remain on a ventilator, but assuming that it was even one year, then using the conservative $20,000 per day estimate would result in medical losses of  $7.3 million dollars (and a $1.13 million fee for the lawyer). If medical losses are collected, and the decedent is taken off the respirator (either because of cardiac failure or because the family finally comes to term with their loss), they don't have to return any of the money.

In follow up to the comment, "Perhaps I missed it, but why doesn't the hospital want to transfer her? Since the cost of keeping this dead body alive is so prohibitive, why wouldn't they want to get out from under this burden, if only for financial reasons?", I added the following response:

"Cyndi, the hospital does not want to transfer her (or perform additional medical procedures, as Melissa notes below) because transferring her someplace for additional treatment is contrary to the legal holding that she is dead.

The hospital (and, in my opinion, society at large) has a strong interest in the determination of death being upheld. The hospital/medical community has the additional interest of clarifying that, under California law, the treatment provider, and not the family, has the power to determine when treatment will stop. (which I didn't note in my original answer, but which the Hospital's attorney lays out really well in his reply to the request for injunction in the Federal Court filing (the document is available for download here, but the computer I am on is blocking it: ) .

Nothing happens in a vacuum. Whatever the ultimate decision is in this case, others will point to it when they find themselves in similar situations. A thousand different people might have a thousand different opinions about when a person is really "Dead". Because there is a high societal cost associated with keeping someone on ventilators, the legislature, through the UDDA, has drawn a "black line" to determine the moment that death legally occurs so that we don't have to go to court every single time.

Also, the legal and medical tradition holds that you cannot FORCE a doctor to perform a procedure. If the Court orders the hospital to insert the tubes, it would be a shocking break in existing precedent (and I would expect it to provoke a great outcry in the medical profession).

To address the financial issue- 1) As I set forth above, transferring Jahi's body to a different facility and keeping it on mechanical respiration for an undetermined amount of time has the potential to dramatically affect the calculus of the medical malpractice action. Also, the ONLY facility that has been identified as willing to accept Jahi is the New Beginnings in New York State (About New Beginnings Community Center). Notably, New Beginnings 1) is self-characterized on the page I link to as a community center "providing office space for professionals"; 2) Does not have a doctor on staff; 3) Is not a licensed hospital facility;  The "Brendan House" where they propose to house Jahi's body is not completed (in fact, it seems from their Facebook page that they only received their building permit on December 15th (The Brendan House Project - Riverhead,... - The Brendan House Project - Riverhead, N.Y.). New Beginnings is not equipped to take Jahi's body right now, so there is no one (not identified at this time, at least) who CAN take her body away from Children's right now.

As I described in my answer, insurance will not pay for treatment now that Jahi is legally dead. I also provided cites to support the notion that being on a respirator costs at least $20,000 per day. Therefore, as of today (January 3), keeping Jahi on a respirator has cost at least $460,000. The family DOES have a gofundme, and has raised (as of a few minutes ago ( almost $45,000. They needed about $30,000 for the air ambulance, so - applying the remaining $15,000, there are $445,000 in unreimbursed expenses so far. Ultimately, Children's hospital will eat these expenses. Children's hospital is a non-profit. Therefore, this does not mean $445,000 less in the pockets of shareholders. It means  $445,000 less for the treatment of children with a meaningful chance of recovery.

Finally - assuming that the family did have the money to cover all of her expenses out of pocket....Is it fair for a family with resources to be allowed to keep their child's body on life support when a family without resources cannot?"

The Federal Court's Order Denying Motion to Require Insertion of Feeding Tube
Declaration and State Court Docs Part I
State Court Docs - Part II
State Court Docs - Part III

Monday, October 28, 2013

The Ramsey Indictment

I was out of town last week, but I can't let the story of the Ramsey indictment pass without comment.

The published indictments were met mostly with a yawn from the mainstream media (in fairness, it was a bit like Geraldo opening the Titanic safe: lots of build up and not a lot of substance), but I can't forget the media frenzy that surrounded the Ramsey story when it was "fresh".

I am sure that you are familiar with the bare bones of the facts: JonBenet, a six-year-old beauty queen, was found strangled to death in her parent's basement the day after Christmas. There were no/few signs of an intruder (no footprints in the snow, nothing stolen, etc.) and several clues that were interpreted as incriminating toward the family (a paintbrush belonging to the mother was used in the strangulation, the ransom note was written on stationary from inside the house and included a specific amount of money that only a family member would know about). The case was a media sensation for months until it finally died down. The mother, Patsy Ramsey, died a few years later, still under a cloud of suspicion. The father and brother moved on with their lives.

The indictment charged the parents with child abuse (essentially that they placed their daughter in a dangerous situation), but don't give many clues about the evidence that purportedly backed these charges. Much has been made of the tension between police and prosecutors in the Ramsey case. There is an insinuation that the Ramsey family "got to" the prosecutors, and/or that they received special treatment because of their wealth and position. I haven't seen any of the news outlets discuss how very, painfully easy it is to obtain indictments. As a former prosecutor, the DA's failure to sign/file the indictment indicates that they did not believe that they could meet the necessary standard of proof to bring the matter to trial, not a sinister plot.

In my jurisdiction, a grand jury indictment is obtained when the prosecutor presents evidence, in complete secrecy, to a panel of citizens who meet at a regular time to consider crimes alleged to have occurred within their jurisdiction. (Sometimes, the defendants are already in custody. For example, in my former jurisdiction, an individual could be arrested on a "complaint". This was an affidavit sworn out by a law enforcement office stating the crime alleged and the facts supporting it. On the strength of the complaint, a defendant could be arrested and detained until they can be brought before a judge for a preliminary hearing. At the preliminary hearing, the accused is entitled to counsel. There is some abbreviated testimony about the facts giving rise to the complaint, and the judge determines whether probable cause exists to believe that the crime occurred. If the judge finds that there is probable cause, the accused may be held (or placed on bond conditions) for a certain period of time in which the prosecution seeks indictment . If the judge fails to find probable cause, the Defendant is ordered released. The prosecution may still seek an indictment, but the Defendant is free while they do).). The threshold for finding probable cause is very low,  and it is extremely uncommon for the Defendant to be represented at, or even notified of the Grand Jury proceeding. Further stacking the deck in favor of the prosecutor is the fact that the usual rules of evidence do not apply. The most important implication is that hearsay (where someone quotes another person instead of testifying from their own knowledge) any other less-reliable forms of evidence are admissible. The testifying officer doesn't even need to have direct knowledge of the case (in fact, it is common in some places for the prosecutor to intentionally use someone who is not expected to testify at trial in order to prevent the defense from having the opportunity to impeach the witness with contradictory facts (since the understanding of a case may change over time and, after an indictment is issued, a transcript of grand jury proceedings is typically available to the defense).

The Grand Jury can be a useful tool to the prosecutor because they have the authority to subpoena witnesses and evidence which the prosecutor may not otherwise be able to obtain (for example, bank records or a hostile witness). It is also helpful when law enforcement wants to keep an investigation on the down-low, since the Grand Jurors and everyone in the Grand Jury room (including the witnesses!) are sworn to total secrecy. When the Grand Jury is used in this way, it is common for the investigation to dissolve with no indictment because, from its outset, the purpose of the hearing was to gather information.

My personal "take" on the Ramsey indictment (or, rather, the lack thereof), is that the DA was using the Grand Jury process to obtain information, probably the testimony of friends and associates of the Ramseys who might otherwise be less forthcoming. Keep in mind that, while the threshold for obtaining an indictment is very low, the threshold for conviction is extremely high. The Ramseys had money and powerful friends, virtually assuring a strong defense team. Given the national spotlight on the Ramsey case, a loss at trial would have been devastating, and it is understandable to me that the prosecution would proceed with extreme caution.

Wednesday, October 23, 2013

Massachusetts Teacher Murder

Most of the mainstream media is staying vague on the details of the Colleen Ritzer murder, but has jumped in and named a suspect.  Admittedly, the Danvers police department didn't make the name very hard to track down.

There is no word yet on cause of death or potential motive. This will be an interesting case to watch as it develops. Authorities (unnamed) were quoted as saying that they would take a "hard look" at charging the boy as an adult. I will have more to say on that topic if it occurs.

Tuesday, October 22, 2013

Interesting Article

Just a quick link for now:

Washington Monthly has published an incredibly interesting longform article about the case of Jamie Leigh Jones. I didn't follow the case when it was a hot media property, but still found it to  be incredibly interesting, particularly in light of the "sounds great on TV/falls apart in court" theme of my earlier posting.

TV-ready Murder

I started this blog to discuss high-profile trials. Thinking back over the "biggies" (Casey Anthony, George Zimmerman, O.J. Simpson (original), etc...) I was struck by just how many of those trials were losers for the prosecution. It isn't coincidence.

Trials that capture the public imagination typically have the same factors in common: a relatable victim (child/wronged spouse/everyman/missing white woman) PLUS some hot-button issue that fires up our passions like sex, racism or religion. Excluding celebrity cases (would anyone care about Lindsay Lohan's DWI's if she wasn't Lindsay Lohan?) we care about "big" cases because we can imagine ourselves or someone we care about suffering through a similar outrage and it makes us angry or afraid. We get invested. Unfortunately, the passion that we feel sometimes makes us overlook the difficulty of proving a case. We see that something horrible happened (i.e. a two year old is killed and her body is left in a swamp to rot) and forget the significant evidentiary challenges that prevent all the gory, outrage-fueling details from presentation to the jury. The juries see very different cases than we do. Accordingly, their verdicts often seem incomprehensible.

The Dr. Martin MacNeill case looks poised to follow this pattern exactly.
The allegations in the MacNeill case are that Dr. MacNeill pressured his wife, Michele to undergo elective plastic surgery. Then, when she was recovering, he intentionally overmedicated her, resulting in a drug-overdose that killed her, clearing the way for him to be with his lover, Gypsy Willis, a mistress straight out of central casting.

The twenty-four hour news cycle has already exposed Dr. MacNeill as a cad in the first degree. At the same time, the court has made evidentiary rulings that will prevent the most explosive and prejudicial tidbits from presentation to the jury. Most significantly, the Court will exclude evidence that Dr. MacNeill changed his will to leave property to his mistress, will exclude as hearsay a statement that Mrs. MacNeill allegedly made to her daughter "If anything happens to me, make sure it wasn't your dad",  and has reserved a ruling on whether or not his youngest daughter (the first person to find the body) will be allowed to testify at all.  This was already an extremely circumstantial case. I predict that Martin MacNeill will walk free- much to the disgust of the news-watching public.

The local Fox affiliate is providing a live stream of the trial:

Thursday, October 17, 2013

Why would a prosecutor drop the Daisy Coleman Case?

Welcome to my new blog about criminal cases that are trending in the news.  Even before an attorney, I was fascinated by the way that high-profile criminal cases play out in the media and blogosphere. As a practicing attorney with five years of experience as a prosecutor, first at the state and then at the federal level, and many more years of experience as a criminal defense attorney, I hope to add insight to the stories that are splashed across the front pages.

This week, the case of Daisy Coleman exploded across the web, ignited by a weekend feature in the Kansas City Star.

Numerous sources have tracked the progress of the case: a brief overview of the contentions of the various parties, the intervention of Anonymous, and the current plans of the state of Montana to reopen and/or review the matter.  I am most interested in this case as it relates to the decision of the prosecutor.

Before I go any further, I want to make it absolutely crystal clear that I believe that Daisy Coleman and her friend (who recently voluntarily identified herself to the media as Paige Parkhurst) are victims, whether or not a prosecution ultimately does or should occur. No one should be feeding alcohol to teenagers. No one should take advantage of intoxicated girls. Having sex with someone who lacks the ability to consent is rape. Period. Leaving a drunk girl outside in freezing weather is barbaric. My musing over whether or not the prosecutor's actions were justified or not do not relate in any way to whether or not I think that Daisy was telling the truth or that what happened to her was horrific. I know that, to someone outside the realm of law enforcement, those things might seem impossible to separate. My gut instinct is, of course, if someone does something bad, they should be prosecuted, but my experience as a prosecutor tells me that, sometimes, factors outside of a prosecutor's control make rape prosecutions difficult, if not impossible and that a failed rape prosecution can, in some cases, be far worse than a lack of prosecution.

 Insinuations have been made, and speculation is rampant that the Coleman case was dropped because of interference by powerful local families. However, the Nodaway County Prosecutor Robert Rice says that the prosecution was dropped because the victim and her mother refused to cooperate (in some versions of the story, the underage girls invoked the 5th Amendment and refused to make statements- presumably because they were afraid they might be prosecuted for underage drinking).

Whether or not this is true should be easy to determine. Rice claims that the girl/s (it isn't clear to me whether one or both girls allegedly made this invocation) invoked their rights "...right in a deposition under oath." This is significant because depositions are recorded statements. A court reporter, present at the deposition, would have transcribed and attested the statement. Many court reporters also make tape recordings of the interviews so that they may review them later to verify their transcripts.

If, in fact, Daisy and her friend did refuse to make statements under oath, then, in Prosecutor Rice's shoes, I might very well have made the same decision that he did: to drop the rape charges (recall that the endangerment charge was continued for a while after the rape charges were cut loose).

I am assuming that this case would be prosecuted under Montana Statute 45-5-503 "Sexual Intercourse Without Consent." Section 45-5-501 defines, "without consent". The pertinent portion appears to be "mentally defective or incapacitated" (the "under 16" would appear not to qualify where the age difference is less than four years).The prosecutor is required to prove the case beyond a reasonable doubt. He doesn't have just have to prove that Daisy had sex (which I think that everyone accepts as true), or that she was intoxicated (again, I think that this is apparent). He has to prove that Matthew Barnett had sex with Daisy Coleman with the knowledge that she was mentally incapacitated. Keep in mind that "mentally incapacitated" is subjective.

There is some physical evidence in this case. After calming her daughter down with a warm bath (which possibly, inadvertently, destroyed some DNA evidence), Daisy's mother took the girls to the Emergency Room. Per the Kansas City Star story, examination showed that Daisy had an elevated blood alcohol content (backing up her claim that she was intoxicated), and tears around her genitals which suggested recent sexual activity (also, Barnett admitted that sex occurred). 

Although those clues are compelling when coupled with the girl's testimony, they aren't that iron clad on their own. Any attorney who has even tried a DWI case will tell you that BAC evidence (and, in particular, how quickly alcohol dissipates from the blood stream) is subject to a wide range of interpretations in the courtroom. The defense might hire an expert to argue that Daisy slammed a bunch of alcohol sometime after sexual intercourse occurred, or that the alcohol didn't absorb into her blood stream (causing impairment) until after the sex. Without Daisy's cooperation, the timeline is very hard to prove.

Also, given that he is contesting the charges, I assume that Barnett is arguing that Daisy was not impaired at the time they had sex or, at least, that he didn't know that she was impaired. Again, without the testimony of the girls (who could have given some idea of how Daisy was acting or when she blacked out), this gets extremely difficult. (NOTE: I am unaware of whether all of the other male witnesses have refused to cooperate and/or what they have said. Obviously, they could provide useful testimony on this issue. If they have something helpful to say, the pendulum swings back toward prosecution).

It doesn't seem unlikely to me that Daisy and her friend might have refused to cooperate (and, possibly, may have misrepresented to their parents whether they wanted to cooperate or not). I do not mean that as a criticism. Rape victims are subjected to incredibly harsh interrogations at incredibly vulnerable times in their lives. Even the people on "their" side (hopefully, the prosecutors) ask prying questions. We need to know the answers to anticipate defenses, but I still feel awful when I have to ask and I can't imagine how bad it feels on the receiving end. Very often victims start to feel that no one believe them, that nothing useful is going to happen anyway and decide to opt out (I can only imagine that feeling intensified given the reports of how Daisy's schoolmates turned against her).

Regardless of what happened in the past, it looks like the victims are cooperating now. Hopefully it is not too late for justice.

EDIT @3:46 PM EST:  The Atlantic, attributed this quote to Rice: "They were doing what they wanted to do, and there weren’t any consequences. And it’s reprehensible. But is it criminal? No." I didn't originally pick up on the fact that this was part of the original article (so, I assume, primary attribution comes from their reporter). This quote suggests that Rice's problem was that he didn't perceive the act as rape because it was consensual (as in, "she wanted it" without any reference to her mental capacity). If that is, in fact, his angle, then I disagree with him completely.

EDIT 2 @3:50 PM EST: See also, this quote from the Kansas City Star Article "Rice said charges were dropped for lack of evidence, but he added, declining to go into the specifics, that information brought to his attention regarding what happened "before, during and after"  the incident also played a role in his actions."