At this week's very weird press conference, the Florida Highway Patrol announced that the investigation of Tiger Woods' incident with his golf club-swinging wife is over. Woods paid a small motor vehicle fine and the rest of the story remains a mystery. The FHP said there was insufficient evidence to subpoena Tiger's medical records from the hospital where he was treated for his injuries.
So - the cops have a quicky presser - and It all wraps up nicely.
Except that it doesn't.
The Highway Patrol is the wrong law enforcement agency to make a decision about whether a crime occurred. They may well have experience with things like drunk driving and potholes, but local police with experience in domestic violence should be the ones figuring out whether a prosecutable crime occurred.
And the Highway cops need to explain better why they can't get Tiger's medical records from the hospital where he received treatment for his injuries; records that might have helped build a case, but at least would have revealed to them more of the truth about what happened. How can they possibly know that no crime occurred without seeing the medical file? What if Tiger told the doctors that his wife beat the hell out of him?
Even a rookie cop knows that under Florida law, it's extremely easy for police to obtain medical records during a criminal investigation. They get them routinely, virtually "for the asking", by using what's called an "investigative subpoena". In the 2002 Johnson case, the Florida Supreme Court said that an "investigative subpoena" for medical records is appropriate "when there is a clear connection between illegal activity and the person whose privacy has allegedly been invaded".
Like Tiger's situation, the Johnson case involved a single car accident where the driver landed in the hospital. Cops wanted to know whether the driver was drunk - so they issued an "investigative subpoena" for the driver's medical records. The driver argued the subpoena was invalid because cops lacked "probable cause". But the court wrote that "probable cause" was not required and that it was enough that there was a "connection" between the medical records and the car incident. In another case from 2001, the Florida Appeals Court ruled that there's enough of a "connection" when cops have mere "reasonable suspicion" to believe that relevant evidence might be found in medical records. This standard is much lower than "probable cause" because the target is entitled to advance notice and an opportunity to mount a legal challenge to the subpoena before the records are released. The higher standard of "probable cause" applies to "search warrants" because there is no similar opportunity for due process before records are seized.
One could argue that even under the higher standard of "probable cause", which means it's "more likely than not" that relevant evidence exists in the medical records, there's plenty of evidence to justify sending a subpoena. Tiger's injuries are reportedly inconsistent with having been caused by the collision; His wife smashed his car with a golf club for no apparent reason (the "helping Tiger escape" story makes no sense); Cops were certainly aware - as was the whole world - that Tiger was suspected of infidelity (even if false - it's a motive for domestic violence simply if Elin believed it was true) - and cops have a right to draw reasonable inferences from the evidence - while putting it together with the fact that Woods was half-dressed, barefoot and clearly in a rush to hightail it out of his own home at 2:30 a.m.
But even if people disagree that the evidence rises to the level of "probable cause", it is beyond dispute that cops have "reasonable suspicion" to justify an "investigative subpoena". "Reasonable suspicion" is just that - suspicion; a strong hunch that medical records might contain relevant evidence. As the Appellate court in Florida noted in Rush Limbaugh's famous legal battle to protect his medical records, "reasonable suspicion" is substantially lower than "probable cause". Clearly, cops have a suspicious hunch the records might reveal evidence of a crime.
All this raises at least one important question:
Why would Florida law enforcement officials misstate the law at a press conference meant to educate the public about their decision-making? If a single car accident was enough "reasonable suspicion" to issue an investigative subpoena for the driver's medical records in the Johnson case, why not in the Woods' case?
The public has a right to know the answer. And while the FHP claims the case was resolved without regard for Tiger's celebrity, the fact that they refused to take questions makes it impossible to say for sure.
We don't have to hear details about the motive. Whatever's in the medical records that explains WHY something happened to Tiger's face and car can be redacted. The public is not entitled to see the guy's dirty laundry but it does have a right to demand proof that this case really IS being handled like any other situation involving personal injuries, serious property damage and the possibility of domestic abuse.
Wednesday, December 2, 2009
Sunday, October 4, 2009
It's Time to Apologize, Whoopi.
Dear Whoopi;
I tried to be clear in my first letter in the hope you would simply apologize for saying Roman Polanski didn't plead guilty to "rape rape". But in an awkward attempt to put out the flames of outrage, you made things worse by trying to "explain" yourself. You said on The View that what you MEANT was that because Polanski admitted to the charge of "unlawful sex with a minor" - he didn't admit to "rape" because the word "rape" doesn't appear in the title of that particular crime.
Someone at ABC should tell you to just fall on your sword at this point.
You see Whoopi, saying "unlawful sex with a minor" isn't "rape" because the word "rape" isn't in the title is like saying sodomy isn't "rape". I dare you to tell that to the thousands of male victims of priest abuse.
Here's some basic legal information you might find enlightening.
In 50 states, there are 33 DIFFERENT phrases in the law that define the act of child rape. Only four include the actual term "rape". But all 33 make it clear that the conduct forbidden by law IS, indeed, rape of a child. I know you tried to further justify your offensive comments in an interview by suggesting "unlawful sex with a minor" is the same as "statutory rape" and that both crimes are somehow less serious than real "rape" - but you're wrong, Whoopi. "Statutory" simply means that a "statute" was enacted to define the word "child" and emphasize that kids cannot consent to sex with adults. This "statute" warns all perpetrators to leave kids alone because if they get caught - there will be no "she consented" defense. That the law might also cover circumstances you find less serious than what Polanski did to his victim might be interesting fodder for my law school class, but it's utterly irrelevant in a case where a middle aged man violates multiple parts of a 13 year-old girl's body - over her objection - after plying her with drugs and alcohol.
Maybe you made a dumb statement because you felt pressure from your Hollywood friends. That's your business. But you hold yourself out as an advocate for children. You even appear in ads for ToysRUs - suggesting you care about kids - and speak for "differently abled" children.
Damn it, Whoopi! What are you thinking?!
Roman Polanski has enough wealth, power and apologists to speak for him. Kids have nothing.
Until recently, they thought they had you. And they really need you, Whoopi, because too many adults take sexual advantage of kids. You already know that child pornography is a multi-billion dollar industry. The internet has exposed children to dramatically more sexual violence and exploitation than at any time in our history. More now than ever, children need people like you to speak out firmly against sexual abuse because law enforcement resources are no match for a global business that thrives on the constant availability of new material to feed an insatiable demand. Girls aged 12-16 are more likely than any other age group to be victimized by sexual violence.
Perhaps your buddy Roman Polanski's comments about little girls will shed some light on the perverted source of this epidemic for you, Whoopi:
In 1979, Polanski spoke to novelist Martin Amis about the criminal charges against him:
Yours truly,
Wendy Murphy
New England Law|Boston
617- 422-7410
I tried to be clear in my first letter in the hope you would simply apologize for saying Roman Polanski didn't plead guilty to "rape rape". But in an awkward attempt to put out the flames of outrage, you made things worse by trying to "explain" yourself. You said on The View that what you MEANT was that because Polanski admitted to the charge of "unlawful sex with a minor" - he didn't admit to "rape" because the word "rape" doesn't appear in the title of that particular crime.
Someone at ABC should tell you to just fall on your sword at this point.
You see Whoopi, saying "unlawful sex with a minor" isn't "rape" because the word "rape" isn't in the title is like saying sodomy isn't "rape". I dare you to tell that to the thousands of male victims of priest abuse.
Here's some basic legal information you might find enlightening.
In 50 states, there are 33 DIFFERENT phrases in the law that define the act of child rape. Only four include the actual term "rape". But all 33 make it clear that the conduct forbidden by law IS, indeed, rape of a child. I know you tried to further justify your offensive comments in an interview by suggesting "unlawful sex with a minor" is the same as "statutory rape" and that both crimes are somehow less serious than real "rape" - but you're wrong, Whoopi. "Statutory" simply means that a "statute" was enacted to define the word "child" and emphasize that kids cannot consent to sex with adults. This "statute" warns all perpetrators to leave kids alone because if they get caught - there will be no "she consented" defense. That the law might also cover circumstances you find less serious than what Polanski did to his victim might be interesting fodder for my law school class, but it's utterly irrelevant in a case where a middle aged man violates multiple parts of a 13 year-old girl's body - over her objection - after plying her with drugs and alcohol.
Maybe you made a dumb statement because you felt pressure from your Hollywood friends. That's your business. But you hold yourself out as an advocate for children. You even appear in ads for ToysRUs - suggesting you care about kids - and speak for "differently abled" children.
Damn it, Whoopi! What are you thinking?!
Roman Polanski has enough wealth, power and apologists to speak for him. Kids have nothing.
Until recently, they thought they had you. And they really need you, Whoopi, because too many adults take sexual advantage of kids. You already know that child pornography is a multi-billion dollar industry. The internet has exposed children to dramatically more sexual violence and exploitation than at any time in our history. More now than ever, children need people like you to speak out firmly against sexual abuse because law enforcement resources are no match for a global business that thrives on the constant availability of new material to feed an insatiable demand. Girls aged 12-16 are more likely than any other age group to be victimized by sexual violence.
Perhaps your buddy Roman Polanski's comments about little girls will shed some light on the perverted source of this epidemic for you, Whoopi:
In 1979, Polanski spoke to novelist Martin Amis about the criminal charges against him:
If this doesn't make your skin crawl and your blood boil - and you continue to try and "explain" your comments about how a grown man forcing himself inside the body of a child he plied with booze and drugs before he attacked her isn't "rape rape", you need to stop calling yourself an advocate for children. Keep doing whatever makes you happy - and enjoy all the red carpet nonsense because your seat at the club will be safe - but please, let someone else speak for the children.If I had killed somebody, it wouldn’t have had so much appeal to the press, you see? But… f..king, you see, and the young girls. Judges want to f..k young girls. Juries want to f..k young girls. Everyone wants to f..k young girls!
Yours truly,
Wendy Murphy
New England Law|Boston
617- 422-7410
Tuesday, September 29, 2009
AN OPEN LETTER TO WHOOPI GOLDBERG
Dear Whoopi;
Yesterday on "The View", you said Roman Polanski pleaded guilty to "unlawful sex with a minor", but that it wasn't "rape rape". So I've been wondering -
What the hell is "rape rape"?
I know you said your point was to articulate the nature of the crime to which he pleaded guilty - which, you said, was somehow DIFFERENT from "rape".
It isnt.
"Unlawful sex with a minor" IS the crime of child rape in California.
So again - I ask you - how is "rape rape" different from "rape"?
Regular folks understand "rape" to mean "sexual penetration without consent" - and of course, consent is irrelevant when the victim is a child.
The law says "rape" means: "sexual penetration".
The dictionary says "rape" is: "forced sexual intercourse".
No matter which definitional source you use, Whoopi, Polanski "raped" his victim.
So I'm trying to understand what you meant when you say it wasn't "rape rape".
Did you mean it wasn't "real rape"?
What wasn't "real" enough about the crime for you, Whoopi?
A 43 year old man forced his penis into a 13 year-old child's vagina - and then he forced his penis into her anus. How is this "rape", but not "rape rape"?
The victim was not only a child, she was also intoxicated because Polanski gave her booze and drugs before the crime. The child protested - told him to stop - but he continued. She was incapacitated to a point where she could barely walk, much less defend herself against her 43 year-old attacker. Is that enough for "rape rape", Whoopi?
What would have done it for you? If he'd used a knife - or jumped on her in a dark alley instead of a bed? If it had happened at a homeless shelter instead of the mansion of a famous Hollywood actor? If he'd had to remove a trench coat before committing the crime, rather than silk underwear from a fancy shop on Rodeo Drive?
What if the victim had been a little black girl from a triple decker in the poorest part of Los Angeles? Would that have been "rape rape", Whoopi? Or would you have still offered the same lame excuse you came up with on The View - that "people in other countries see things differently" when middle-aged men force themselves on children.
If it's true that 13 year-old kids in France are so disrespected they can anticipate being attacked by men - you can and should condemn the practice - not chalk it up to a "cultural difference" - as if to suggest that the United States might evolve one day to a period of enlightenment when we will be "liberated" enough to celebrate the sexual abuse of children.
Your audience is filed with women who need and deserve the empowerment potential in a show like yours. Cultural values are created, in part, through the dissemination of ideas. You had a chance to explain to millions of people why the personal autonomy, bodily integrity and liberty of all women and children is at stake when even one rapist is not held accountable for his actions. At a minimum, you could have explained how backward we really are in this country - and how the epidemic of rape and child sex abuse serves as a kind of domestic terrorism that interferes with the freedom of millions of people who are affected by the disproportionate failure of our legal system to redress sexual violence. According to a study submitted to Congress in support of the Violence Against Women Act in the 1990s, by then Senator Joseph Biden, only 2% of rapists spend even one day behind bars. Violence against women and children is grossly underreported and underprosecuted, and the data consistently shows that crimes against property are punished much more harshly than crimes against female bodies.
Rather than highlight this profound and pervasive injustice, you bemoaned the fact that Mr. Polanski was compelled to flee the United States after pleading guilty to child rape because he was about to go to jail for "a hundred years".
Many people would argue he deserved such a sentence, and under California law today, but not back then, drugging and raping a child would expose Mr. Polanski to a mandatory minimum term of 25 years. But because he was allowed to plead guilty to only one of six felonies with which he was originally charged - he faced no more than four years behind bars, and some reports say the judge intended to impose a sentence of only a few weeks of incarceration.
Mr. Polanski arrogantly decided that he shouldn't spend any time in jail, and he fled this country spinelessly for a nation he knew would not extradite him for his crime. If it's true, as has been reported, that he took off because he thought it was unfair that he should go to jail after his lawyer worked out a "no jail" deal with the prosecutor, he had a right to withdraw his guilty plea and go to TRIAL - not PARIS.
That Mr. Polanski would show such disrespect for this country's legal system is a reason to punish him MORE, not less, for his crime. It may be a decades-old case, but it bears stating the obvious that the law should not reward fugitives for their successful efforts to evade justice.
Nonetheless, Mr. Polanski is a man of wealth and power, and kids don't vote or have any money. Which is why people like you are so quick to say things that degrade children. Admit it Whoopi, you'd be talking out of the other side of your mouth if filmmaker Polanski were garbageman Polanski.
Next time, try reading the Constitution BEFORE speaking on this topic. There's nothing in there that says people of influence should not be held accountable for their crimes. In fact, try focusing on the 14th Amendment for a few minutes - especially the part about how all citizens are entitled to "equal protection" of the laws. Then try reading some of our most basic court decisions that discuss how the law is supposed to protect the weak, and deter the cunning.
You have a 13 year-old granddaughter, Whoopi. What does she call you? "Nana"? "Grandma"? What if she told you that she had been "raped" by a 45 year-old man who stripped her naked and then penetrated her private parts even as she cried "no". Would you correct her for using the word "rape"? Would you say, "sorry sweetheart - what happened to you was not a 'rape rape'".
No matter how hard some people try to make the crime seem harmless and full of gray areas - - it really is quite simple if you think about it the way someone famous once did: "rape is to sex what a punch in the mouth is to a kiss". Not all punches knock teeth out - but nobody ever says "it wasn't a 'punch punch'".
I will say one thing, Whoopi - in your defense. Maybe we SHOULD give up the term "rape" altogether, and start calling it "bodily enslavement". We could put it in the Constitution as a civil rights crime, rather than in the lowly statute books alongside shoplifting.
I'm thinking if we had initially codified the offense in law where it truly belongs - under the umbrella of fundamental liberty - you might have stopped yourself before saying "it wasn't a violation of civil rights civil rights".
Can you see how dumb that sounds, Whoopi?
I hope so - because you are an important voice for women and children and I want you to sound smart.
Yours truly,
Wendy Murphy
New England Law|Boston
Yesterday on "The View", you said Roman Polanski pleaded guilty to "unlawful sex with a minor", but that it wasn't "rape rape". So I've been wondering -
What the hell is "rape rape"?
I know you said your point was to articulate the nature of the crime to which he pleaded guilty - which, you said, was somehow DIFFERENT from "rape".
It isnt.
"Unlawful sex with a minor" IS the crime of child rape in California.
So again - I ask you - how is "rape rape" different from "rape"?
Regular folks understand "rape" to mean "sexual penetration without consent" - and of course, consent is irrelevant when the victim is a child.
The law says "rape" means: "sexual penetration".
The dictionary says "rape" is: "forced sexual intercourse".
No matter which definitional source you use, Whoopi, Polanski "raped" his victim.
So I'm trying to understand what you meant when you say it wasn't "rape rape".
Did you mean it wasn't "real rape"?
What wasn't "real" enough about the crime for you, Whoopi?
A 43 year old man forced his penis into a 13 year-old child's vagina - and then he forced his penis into her anus. How is this "rape", but not "rape rape"?
The victim was not only a child, she was also intoxicated because Polanski gave her booze and drugs before the crime. The child protested - told him to stop - but he continued. She was incapacitated to a point where she could barely walk, much less defend herself against her 43 year-old attacker. Is that enough for "rape rape", Whoopi?
What would have done it for you? If he'd used a knife - or jumped on her in a dark alley instead of a bed? If it had happened at a homeless shelter instead of the mansion of a famous Hollywood actor? If he'd had to remove a trench coat before committing the crime, rather than silk underwear from a fancy shop on Rodeo Drive?
What if the victim had been a little black girl from a triple decker in the poorest part of Los Angeles? Would that have been "rape rape", Whoopi? Or would you have still offered the same lame excuse you came up with on The View - that "people in other countries see things differently" when middle-aged men force themselves on children.
If it's true that 13 year-old kids in France are so disrespected they can anticipate being attacked by men - you can and should condemn the practice - not chalk it up to a "cultural difference" - as if to suggest that the United States might evolve one day to a period of enlightenment when we will be "liberated" enough to celebrate the sexual abuse of children.
Your audience is filed with women who need and deserve the empowerment potential in a show like yours. Cultural values are created, in part, through the dissemination of ideas. You had a chance to explain to millions of people why the personal autonomy, bodily integrity and liberty of all women and children is at stake when even one rapist is not held accountable for his actions. At a minimum, you could have explained how backward we really are in this country - and how the epidemic of rape and child sex abuse serves as a kind of domestic terrorism that interferes with the freedom of millions of people who are affected by the disproportionate failure of our legal system to redress sexual violence. According to a study submitted to Congress in support of the Violence Against Women Act in the 1990s, by then Senator Joseph Biden, only 2% of rapists spend even one day behind bars. Violence against women and children is grossly underreported and underprosecuted, and the data consistently shows that crimes against property are punished much more harshly than crimes against female bodies.
Rather than highlight this profound and pervasive injustice, you bemoaned the fact that Mr. Polanski was compelled to flee the United States after pleading guilty to child rape because he was about to go to jail for "a hundred years".
Many people would argue he deserved such a sentence, and under California law today, but not back then, drugging and raping a child would expose Mr. Polanski to a mandatory minimum term of 25 years. But because he was allowed to plead guilty to only one of six felonies with which he was originally charged - he faced no more than four years behind bars, and some reports say the judge intended to impose a sentence of only a few weeks of incarceration.
Mr. Polanski arrogantly decided that he shouldn't spend any time in jail, and he fled this country spinelessly for a nation he knew would not extradite him for his crime. If it's true, as has been reported, that he took off because he thought it was unfair that he should go to jail after his lawyer worked out a "no jail" deal with the prosecutor, he had a right to withdraw his guilty plea and go to TRIAL - not PARIS.
That Mr. Polanski would show such disrespect for this country's legal system is a reason to punish him MORE, not less, for his crime. It may be a decades-old case, but it bears stating the obvious that the law should not reward fugitives for their successful efforts to evade justice.
Nonetheless, Mr. Polanski is a man of wealth and power, and kids don't vote or have any money. Which is why people like you are so quick to say things that degrade children. Admit it Whoopi, you'd be talking out of the other side of your mouth if filmmaker Polanski were garbageman Polanski.
Next time, try reading the Constitution BEFORE speaking on this topic. There's nothing in there that says people of influence should not be held accountable for their crimes. In fact, try focusing on the 14th Amendment for a few minutes - especially the part about how all citizens are entitled to "equal protection" of the laws. Then try reading some of our most basic court decisions that discuss how the law is supposed to protect the weak, and deter the cunning.
You have a 13 year-old granddaughter, Whoopi. What does she call you? "Nana"? "Grandma"? What if she told you that she had been "raped" by a 45 year-old man who stripped her naked and then penetrated her private parts even as she cried "no". Would you correct her for using the word "rape"? Would you say, "sorry sweetheart - what happened to you was not a 'rape rape'".
No matter how hard some people try to make the crime seem harmless and full of gray areas - - it really is quite simple if you think about it the way someone famous once did: "rape is to sex what a punch in the mouth is to a kiss". Not all punches knock teeth out - but nobody ever says "it wasn't a 'punch punch'".
I will say one thing, Whoopi - in your defense. Maybe we SHOULD give up the term "rape" altogether, and start calling it "bodily enslavement". We could put it in the Constitution as a civil rights crime, rather than in the lowly statute books alongside shoplifting.
I'm thinking if we had initially codified the offense in law where it truly belongs - under the umbrella of fundamental liberty - you might have stopped yourself before saying "it wasn't a violation of civil rights civil rights".
Can you see how dumb that sounds, Whoopi?
I hope so - because you are an important voice for women and children and I want you to sound smart.
Yours truly,
Wendy Murphy
New England Law|Boston
Tuesday, August 25, 2009
PROPOFOL SAYS IT ALL (and there's no defense)
(originally written for the Patriot Ledger)
After weeks of speculation, it’s clear now that Michael Jackson's death is being treated as a "homicide" and that the focus of the investigation is Conrad Murray, a doctor who was at Jackson's house when the singer died. Search warrants were executed at Murray’s homes and offices in two states and Murray reportedly admitted giving Jackson several different drugs before he died, including Valium, Versed and the powerful anesthetic Propofol (aka Diprivan).
Declaring that the case is a "homicide" means experts have determined Jackson did not die because of an "accident" or "natural causes". "Homicide" means his death was the result of a criminal act. But the term leaves open the important question: murder or manslaughter?
Based on what we know so far, either charge is possible. The final decision will involve an assessment of Murray's "recklessness". The more his actions seem like careless negligence, the more likely he will be charged with the less serious crime of manslaughter. Behavior that moves higher up the recklessness scale will push the decision-makers toward murder.
Toxicology tests (not yet released) will reveal how much and what types of drugs were in Jackson's system when he died, and whether he was also under the influence of other drugs seized from the home, such as Trazodone. While it's not uncommon to use Versed in conjunction with Propofol for surgical patients, Trazodone is such a powerful medication, patients planning to undergo a medical procedure with anesthesia are advised to stop using the drug weeks in advance of surgery. A lay person would know this by Googling "Trazodone". Murray, a doctor, would have known this without consulting the internet.
Propofol essentially induces a coma, which is why patients under anesthesia must be monitored constantly by a medical professional. Propofol isn't even on the government's controlled substances list because it is NEVER used outside of a hospital setting. In other words, there's no need to "control" it - because nobody has ever been dumb enough to use it as a sleep aid in a private home. The stuff is so dangerous, in fact, anesthesiologists don't even turn their backs on patients in the operating room - much less leave to make phone calls as is alleged Dr. Murray did after administering the drug to Jackson the morning he died.
The strangest part of the story isn't that a medical professional would be so irresponsible with such dangerous drugs, it's that after Murray finished his phone calls and returned to Jackson's bedroom to find that the singer was not breathing, he waited a ridiculously long time before calling 911.
One excuse his lawyer gave was that Murray didn't know the address. Another was that there was no landline phone in the house. Neither of these explanations makes sense.
Circumstantial evidence suggests the delay might have been for a more nefarious reason designed to cover Murray’s role in Jackson’s death.
For starters, Murray apparently made additional phone calls during the delay - and while the specifics have not been released, it's fair to say his decision to dial any number other than 911 will support the prosecution's theory that he was unconcerned about Jackson's life; an issue that will predominate in any homicide trial where jurors are assessing whether Murray was "reckless".
When 911 was finally called, the security guard said Murray was with Jackson, who was lying on a bed. The 911 operator told the guard to put him on the floor, presumably because CPR has to be done on a hard surface.
Murray, a cardiologist, would have already known this - - so why was Jackson on a soft bed?
One possibility is that if Jackson died from Propofol, Murray would have known that the drug, especially in combination with benzodiazepines such as Valium and Versed, would have caused respiratory collapse BEFORE heart failure; a serious risk when a patient under anesthesia is dehydrated - and Jackson had just come off a long practice session for his upcoming concerts in London.
When Propofol causes respiratory failure for a "dry" patient, the person needs hydration. And if Murray understood this, maybe his delay in calling 911 was because he was giving Jackson IV fluid – a procedure that takes time and doesn’t need a hard surface. Murray also might have known that because Propofol dissipates quickly, delaying the arrival of emergency officials might have allowed time for the drug to disappear from Jackson's system. Indeed, although Murray reportedly admitted giving Jackson 25 mgs of Propofol, experts say such a small amount would not have been lethal and that it's likely Jackson got a much higher dose. If some of the drug HAD dissipated by the time Jackson got to a hospital, it would be tough to know for sure how much Propofol was actually given to Jackson before he died.
But a medical examiner would be able to determine that a bag of IV fluid had just been administered, which means Murray would have to explain why he thought Jackson needed urgent hydration more than an ambulance.
Whatever he's charged with, Murray will have a field day arguing the pop star caused his own death.
For example, he might try to argue that Jackson died because of his prolonged use of Propofol as a sleep aid. He might even claim that Jackson lied about what drugs he was using - and how often - and that this information made it impossible for Murray to know how risky it really was to give Jackson Propofol on the day he died.
But the prosecution will point out that no matter what Jackson said and did - a doctor has NO authority to give Propofol to a patient to help with insomnia. No matter how hard Jackson begged for the drug, Murray had a responsibility to say no. And the jury will be instructed that a homicide victim - no matter what he did to contribute to his own demise - cannot be blamed for another's person's deadly actions.
Jackson’s use of other drugs and demand for Propofol might be fair game in a civil suit for damages - where blame can be apportioned among many responsible parties - but in criminal court, the defendant is either guilty - or not. There’s no such thing as “partly guilty” and a prosecutor needn’t prove that Propofol was the SOLE cause of Jackson’s death. It’s enough if Murray’s actions were A cause. If the jury finds that what Murray did was also “reckless”, it’s at least manslaughter - which is defined as conduct that involves "a high degree of risk of death or serious bodily injury...or a gross deviation from the ordinary standard of care". It's hard to see how Murray's conduct doesn't fit.
It might even rise to the level of murder if the jury finds Murray's conduct was so beyond the pale, he acted with "malice"; a term of art in law that usually means "intent to kill" or "intent to do grievous bodily harm", neither of which appears to apply here - but "malice" also includes a rarely used "third-prong" definition, too, that allows jurors to convict on murder if the evidence shows that the accused did "an act creating a strong and plain likelihood that death or grievous harm will follow". This theory of implied malice is so close to manslaughter's recklessness standard, whether a defendant is guilty of murder or manslaughter is usually left to a jury to decide after a careful weighing of all the facts.
Proving either malice or recklessness won't be easy – but jurors will hear that Dr. Murray knew it was wrong to use Propofol in a private home - and that the law has no exceptions for sycophant-ish medical professionals who work for celebrities. The jury will also hear that Murray was neither an anesthesiologist nor an addiction expert, yet was providing anesthesia and giving addictive drugs to a guy with a very serious drug problem.
Bottom line – even without the toxicology report, it makes sense that the cause of death is "homicide" and that either a murder or manslaughter charge against Murray is likely - not because the victim was the “King of Pop ” but because it is profoundly disturbing that a man sworn to do "no harm" thought it was OK to put a human being into a coma to help him sleep.
Monday, August 17, 2009
DEAD WIVES TALKING
Drew Peterson's attorneys filed a much-anticipated motion last week in the criminal case involving Peterson's alleged murder of his ex-wife, Kathleen Savio. They asked the court to render a new Illinois law unconstitutional because it allows certain statements, presumably made by Savio as well as Peterson's missing (though presumed dead) "current" wife, Stacey, to be admitted against him at trial.
It's unclear exactly what statements Peterson's lawyers are complaining about because they nowhere describe what the women said that's so devastating to the defense. The motion simply lodges a broad-sweeping complaint that the new law is unconstitutional because it allows the prosecution to use "hearsay", which is legal lingo for - things said by people who aren't available to testify at trial.
Peterson's lawyers make two basic arguments. 1. It violates the "ex post facto" rule which forbids the retroactive application of a new law it if enhances the prosecution's ability to prove a crime. 2. It violates Peterson's rights to confrontation and cross-examination because it allows witness statements to be used against him even though the witnesses are unavailable to physically attend the trial so that his attorneys can challenge their credibility under oath.
Peterson certainly has the right to raise these issues, but it takes a lot of chutzpah to whine about a witness' unavailability when the REASON they're unavailable is Peterson's inability to keep a wife around long enough that she might have a chance to testify against him!
Put another way - the prosecution is planning to use statements made by Kathleen Savio and Stacey Peterson precisely because Drew Peterson himself has made it, um, tough for the women to attend the trial.
The prosecution's strategy isn't unconstitutional. It's based on the "forfeiture by wrongdoing" rule; a longstanding legal doctrine that says a defendant "forfeits" his rights if the reason he can't cross-examine a dead witness is that he CAUSED their unavailability, in part to make sure the witness WON'T be around to testify. Hardly a constitutional insult, defendants forfeit their rights all the time when they engage in wrongdoing. For example, a criminal trial can continue in the defendant's absence if he fails to show up even though he has a fundamental Due Process right to be present.
And contrary to Peterson's crankiness about how it's all terribly unfair because the "forfeiture by wrongdoing" rule is brand new and is thus ex post facto, the doctrine has been around for over 300 years. The only thing "new" is that the Illinois legislature codified the rule after the United States Supreme Court, in the recent Crawford and Giles decisions, reminded prosecutors of its existence. The act of codifying an old rule is not the same as "creating" a new one.
If anyone deserves criticism about how this "new" rule is unfair to Peterson, it's Peterson's defense attorneys - who had a duty to understand the law, including old doctrines, and to advise their client about the impact of the "forfeiture by wrongdoing" rule on the potential for a successful prosecution. If they'd done so after Savio died, maybe Peterson wouldn't have caused the disappearance of his next wife, which led police to rethink whether they got it right the first time when they ruled Savio's death an accident.
Peterson's lawyers acknowledge in their motion that the Illinois legislature was indeed only codifying a settled rule of law, established in American courts from virtually the beginning of our nation's legal system. Their real beef is that the Illinois law seems to be more broad - and thus more generous to the prosecution - than the common law. Their claim is that the old rule forbids use of the "forfeiture by wrongdoing" doctrine unless the ONLY reason a witness is dead is that the defendant killed them in order to prevent their testimony. The Illinois rule provides that preventing testimony need only be ONE motivating factor - not the exclusive reason a witness isn't around anymore.
It's not an illegitimate argument - but it is ultimately a losing one, as such a narrow use of the rule would have ensured its demise long ago. Witnesses are rarely killed or rendered "unavailable" ONLY to keep them quiet - and the point of the forfeiture rule is not to require the splitting of such hairs but to ensure that criminals are not rewarded for behavior that inhibits access to justice.
Peterson's attorneys also complain that the forfeiture rule shouldn't apply in Savio's case because the prosecution claims Savio was killed not to keep her from testifying in her own murder trial, but to keep her out of court in her divorce case against Peterson. The defense has it exactly backward. The fact that Savio was killed because of the divorce trial is exactly the type of case where the rule applies best - where the witness is killed because of some OTHER litigation - not the murder case itself. Indeed, it would be odd to create a rule of law that allows hearsay statements of a murder victim to be admitted at the murder trial on the theory they were killed to prevent them from testifying – because there isn’t even a death yet, much less a judicial proceeding. Which is not to say murder victims' hearsay statements don't get admitted at trial. They do - all the time - primarily to show the victim's "state of mind". The point is that if the reason Savio was killed is related to her possible testimony in a DIFFERENT trial, the use of her statements regarding her fear of Peterson and knowledge of his actions makes their admissibility in her murder trial especially logical and fair under the "forfeiture by wrongdoing" rule.
Finally, the defense complains that allowing hearsay evidence to be used when it is rooted in a claim of the defendant's "wrongdoing" offends Peterson's presumption of innocence. If this silly argument carried the day, it would also be unconstitutional to allow into evidence, if it exists (as has been reported), the fact that Peterson told his buddies he wanted Savio dead, that Peterson has a history of beating and abusing women, and that he tried to hire someone to kill his wife. Surely this unproved "wrongful" behavior makes a dent in the presumption of innocence at trial - and - um - isn't that the point?
The constitutional arguments are interesting - but in this case, won't amount to much. The real public benefit of the defense motion is the stark way it reminds us that women in violent homes must speak up more about domestic violence.
Women too often feel ashamed of their husband or partner, so they suffer in silence and don't tell others what's going on behind closed doors.
Thanks to Drew Peterson, women everywhere will now better understand the importance of putting their fears in writing, making audiotapes and videotapes of their concerns and finding a way to make sure their recorded statements are kept in a safe place to ensure their use as evidence, in the event they become "unavailable". It is particularly important that women include in their recorded statements not only that they fear being killed, but also that they have been threatened with death "for the purpose of preventing them from testifying against their abuser in court".
Telling others might not save every endangered woman's life, but if more women worked together to teach each other about the benefits of the "forfeiture by wrongdoing" rule, violent men might think twice before deciding to kill. With victims systematically arming themselves with the power of the "forfeiture by wrongdoing" rule, a few women might still end up dead - but not a single one will be silenced.
It's unclear exactly what statements Peterson's lawyers are complaining about because they nowhere describe what the women said that's so devastating to the defense. The motion simply lodges a broad-sweeping complaint that the new law is unconstitutional because it allows the prosecution to use "hearsay", which is legal lingo for - things said by people who aren't available to testify at trial.
Peterson's lawyers make two basic arguments. 1. It violates the "ex post facto" rule which forbids the retroactive application of a new law it if enhances the prosecution's ability to prove a crime. 2. It violates Peterson's rights to confrontation and cross-examination because it allows witness statements to be used against him even though the witnesses are unavailable to physically attend the trial so that his attorneys can challenge their credibility under oath.
Peterson certainly has the right to raise these issues, but it takes a lot of chutzpah to whine about a witness' unavailability when the REASON they're unavailable is Peterson's inability to keep a wife around long enough that she might have a chance to testify against him!
Put another way - the prosecution is planning to use statements made by Kathleen Savio and Stacey Peterson precisely because Drew Peterson himself has made it, um, tough for the women to attend the trial.
The prosecution's strategy isn't unconstitutional. It's based on the "forfeiture by wrongdoing" rule; a longstanding legal doctrine that says a defendant "forfeits" his rights if the reason he can't cross-examine a dead witness is that he CAUSED their unavailability, in part to make sure the witness WON'T be around to testify. Hardly a constitutional insult, defendants forfeit their rights all the time when they engage in wrongdoing. For example, a criminal trial can continue in the defendant's absence if he fails to show up even though he has a fundamental Due Process right to be present.
And contrary to Peterson's crankiness about how it's all terribly unfair because the "forfeiture by wrongdoing" rule is brand new and is thus ex post facto, the doctrine has been around for over 300 years. The only thing "new" is that the Illinois legislature codified the rule after the United States Supreme Court, in the recent Crawford and Giles decisions, reminded prosecutors of its existence. The act of codifying an old rule is not the same as "creating" a new one.
If anyone deserves criticism about how this "new" rule is unfair to Peterson, it's Peterson's defense attorneys - who had a duty to understand the law, including old doctrines, and to advise their client about the impact of the "forfeiture by wrongdoing" rule on the potential for a successful prosecution. If they'd done so after Savio died, maybe Peterson wouldn't have caused the disappearance of his next wife, which led police to rethink whether they got it right the first time when they ruled Savio's death an accident.
Peterson's lawyers acknowledge in their motion that the Illinois legislature was indeed only codifying a settled rule of law, established in American courts from virtually the beginning of our nation's legal system. Their real beef is that the Illinois law seems to be more broad - and thus more generous to the prosecution - than the common law. Their claim is that the old rule forbids use of the "forfeiture by wrongdoing" doctrine unless the ONLY reason a witness is dead is that the defendant killed them in order to prevent their testimony. The Illinois rule provides that preventing testimony need only be ONE motivating factor - not the exclusive reason a witness isn't around anymore.
It's not an illegitimate argument - but it is ultimately a losing one, as such a narrow use of the rule would have ensured its demise long ago. Witnesses are rarely killed or rendered "unavailable" ONLY to keep them quiet - and the point of the forfeiture rule is not to require the splitting of such hairs but to ensure that criminals are not rewarded for behavior that inhibits access to justice.
Peterson's attorneys also complain that the forfeiture rule shouldn't apply in Savio's case because the prosecution claims Savio was killed not to keep her from testifying in her own murder trial, but to keep her out of court in her divorce case against Peterson. The defense has it exactly backward. The fact that Savio was killed because of the divorce trial is exactly the type of case where the rule applies best - where the witness is killed because of some OTHER litigation - not the murder case itself. Indeed, it would be odd to create a rule of law that allows hearsay statements of a murder victim to be admitted at the murder trial on the theory they were killed to prevent them from testifying – because there isn’t even a death yet, much less a judicial proceeding. Which is not to say murder victims' hearsay statements don't get admitted at trial. They do - all the time - primarily to show the victim's "state of mind". The point is that if the reason Savio was killed is related to her possible testimony in a DIFFERENT trial, the use of her statements regarding her fear of Peterson and knowledge of his actions makes their admissibility in her murder trial especially logical and fair under the "forfeiture by wrongdoing" rule.
Finally, the defense complains that allowing hearsay evidence to be used when it is rooted in a claim of the defendant's "wrongdoing" offends Peterson's presumption of innocence. If this silly argument carried the day, it would also be unconstitutional to allow into evidence, if it exists (as has been reported), the fact that Peterson told his buddies he wanted Savio dead, that Peterson has a history of beating and abusing women, and that he tried to hire someone to kill his wife. Surely this unproved "wrongful" behavior makes a dent in the presumption of innocence at trial - and - um - isn't that the point?
The constitutional arguments are interesting - but in this case, won't amount to much. The real public benefit of the defense motion is the stark way it reminds us that women in violent homes must speak up more about domestic violence.
Women too often feel ashamed of their husband or partner, so they suffer in silence and don't tell others what's going on behind closed doors.
Thanks to Drew Peterson, women everywhere will now better understand the importance of putting their fears in writing, making audiotapes and videotapes of their concerns and finding a way to make sure their recorded statements are kept in a safe place to ensure their use as evidence, in the event they become "unavailable". It is particularly important that women include in their recorded statements not only that they fear being killed, but also that they have been threatened with death "for the purpose of preventing them from testifying against their abuser in court".
Telling others might not save every endangered woman's life, but if more women worked together to teach each other about the benefits of the "forfeiture by wrongdoing" rule, violent men might think twice before deciding to kill. With victims systematically arming themselves with the power of the "forfeiture by wrongdoing" rule, a few women might still end up dead - but not a single one will be silenced.
Saturday, August 8, 2009
Testimonials about And Justice for Some by Wendy Murphy
“Wendy Murphy’s fearless television reporting on the JonBenet Ramsey murder always made me sit up and listen. She wasn’t afraid to say the things a lot of us thought but didn’t say because of the threat of litigation. Now Ms. Murphy has written a book, And Justice for Some, in which she exposes the injustices in our justice system. She is an activist for victims’ rights. I loved her book.”
—Dominick Dunne, author of Justice: Crimes, Trials, and Punishments and the forthcoming novel A Solo Act
“Thanks to Wendy’s no-bull book the dirty tricks of the legal trade get the grilling they’ve deserved for decades. As one of the nation’s most effective advocates for crime victims’rights, she demonstrates why and how innocent citizens often get the short end of the legal stick. She’s got the guts and grit to expose everyone from the lazy corrupt judges to the sleazeball lawyers who don’t care about right or wrong.”
—Geraldo Rivera, Fox News Correspondent-at-Large
“The fearless Wendy Murphy names hundreds of names in And Justice for Some. You’ll be amazed at how often—and deliberately—liberal judges and defense lawyers put the criminal’s rights ahead of his victim’s.”
—Mark Levin, nationally syndicated radio show host and author of Men in Black: How the Supreme Court Is Destroying America
“Every couple of years, a courageous lawyer comes along and shares the richness of her career by exposing the soft, dark underbelly of our criminal justice system. Whether it is the government breaking its own laws, the courts doling out justice by whim, or the system blaming the victims, there are tough harsh tales to be told. Among the best tellers of those tales is Wendy Murphy, and this book is her tour de force. In And Justice for Some, Ms. Murphy writes with passion and conviction and bravado. If you’ve ever wondered why it frequently seems that the good guys suffer and the bad guys walk, read anything you can get your hands on written by Wendy Murphy, especially this book.”
—Hon . Andrew P. Napolitano, Senior Judicial Analyst, Fox News Channel
“Wendy Murphy’s And Justice for Some will make your eyes pop. Her stories of judges and lawyers who don’t seem to care one iota about the victims of violent crime are practically unbelievable. If you want to know the truth about our warped justice system and learn how you can fight back, read this book!”
—Rita Cosby, Emmy Award–winning journalist
—Dominick Dunne, author of Justice: Crimes, Trials, and Punishments and the forthcoming novel A Solo Act
“Thanks to Wendy’s no-bull book the dirty tricks of the legal trade get the grilling they’ve deserved for decades. As one of the nation’s most effective advocates for crime victims’rights, she demonstrates why and how innocent citizens often get the short end of the legal stick. She’s got the guts and grit to expose everyone from the lazy corrupt judges to the sleazeball lawyers who don’t care about right or wrong.”
—Geraldo Rivera, Fox News Correspondent-at-Large
“The fearless Wendy Murphy names hundreds of names in And Justice for Some. You’ll be amazed at how often—and deliberately—liberal judges and defense lawyers put the criminal’s rights ahead of his victim’s.”
—Mark Levin, nationally syndicated radio show host and author of Men in Black: How the Supreme Court Is Destroying America
“Every couple of years, a courageous lawyer comes along and shares the richness of her career by exposing the soft, dark underbelly of our criminal justice system. Whether it is the government breaking its own laws, the courts doling out justice by whim, or the system blaming the victims, there are tough harsh tales to be told. Among the best tellers of those tales is Wendy Murphy, and this book is her tour de force. In And Justice for Some, Ms. Murphy writes with passion and conviction and bravado. If you’ve ever wondered why it frequently seems that the good guys suffer and the bad guys walk, read anything you can get your hands on written by Wendy Murphy, especially this book.”
—Hon . Andrew P. Napolitano, Senior Judicial Analyst, Fox News Channel
“Wendy Murphy’s And Justice for Some will make your eyes pop. Her stories of judges and lawyers who don’t seem to care one iota about the victims of violent crime are practically unbelievable. If you want to know the truth about our warped justice system and learn how you can fight back, read this book!”
—Rita Cosby, Emmy Award–winning journalist
Wendy Murphy's Bio
WENDY J. MURPHY, J.D.
Wendy is an adjunct professor at New England Law|Boston where she teaches a seminar on sexual violence and directs two projects she developed in conjunction with the school's Center for Law and Social Responsibility. The "Sexual Violence Legal News" project is an internet-based alert service that distributes appellate cases of interest, with editorial comment, related to interpersonal violence. The "Judicial Language Project" uses socio-linguistic research to critique the language used in law and society to describe interpersonal violence.
She was a Visiting Scholar at Harvard Law School from 2002-2003 where her work focused on the status of women in their capacity as victims in the criminal justice system. Wendy previously taught "Reproductive Rights and Technologies" at the Massachusetts Institute of Technology and in 2002 served as the Mary Joe Frug Visiting Assistant Professor of Law at New England Law|Boston where she has taught courses in sexual violence, reproductive rights and technologies and constitutional criminal procedure.
She is a trial and appellate attorney specializing in the representation of crime victims, women, children and victim service providers and is the founder and director of the Victim Advocacy & Research Group, a volunteer legal advocacy organization that has provided free legal services to victims and other third-parties in the criminal justice system since 1992.
Wendy is a former child abuse and sex crimes prosecutor who sits on many boards and has served on the Massachusetts Governor's Crime Commission and Commission against Sexual and Domestic Violence. She has also consulted with Congress, worked with the White House Women's Office and has served on the faculty at the Poynter Institute in connection with programs related to language and the media's reporting on sexual violence, and provides consultation on constitutional law, legal policy and litigation strategy regarding victims', children’s and women's rights. Wendy has published numerous law review and pop culture articles and she lectures widely on women's, children's, and victims' rights and criminal justice policy. She has worked for CNN, Fox News, MSNBC and CBS News as a legal analyst, and appears regularly on network and cable television. A columnist for The Daily Beast and Gatehouse News, and author of several chapters in consortium books, her first solo book, And Justice For Some, was published by Penguin/Sentinel in September 2007.
Impact Litigation
Wendy planned and brought the first test case in the country using an anti-SLAPP statute law to win the dismissal of a retaliatory lawsuit against a domestic violence victim who was sued by her batterer for reporting his crimes to police, and testifying against him in court.
She generated numerous test cases, starting in 1992, to improve constitutional and common law privacy rights for victims of violence.
She planned and brought the first federal test case in the aftermath of the United States Supreme Court's decision in Jaffee v. Redmond, to establish that the federal common law privilege of confidentiality for licensed social workers extends also to non-licensed volunteer rape crisis counselors.
She was the first attorney to write and submit an amicus brief supporting the admissibility of "grooming" evidence in a child rape case to explain a pattern of offender behavior that inhibited the child's ability to report the violence to authorities.
She planned and brought the first test case in the country to establish that crime victims have a right to be heard in criminal proceedings and may directly address the court, with their own private attorney, to advance their rights under victims' "Bill of Rights" laws.
She represented a therapist who successfully resisted a subpoena for her treatment records in a military rape trial, even after her refusal led to the court's issuance of an arrest warrant.
She planned and brought an unprecedented case using Title IX and civil rights injunction laws to force a public school to provide special protection for a female student who received an internet death threat. School administrators, who refused to provide protection for the girl, were ordered by the court to restrain the freedom of the offending student and to take specific steps to ensure the victim's safety.
She used Title IX to initiate first-ever legal action at the Department of Education against Harvard University after the college instituted a new policy requiring sexual assault victims to produce "sufficient independent corroboration" before a rape allegation would be accepted for resolution under the school's disciplinary proceedings. The case forced Harvard to rescind the policy.
She wrote the winning brief in a California case establishing the principle that the crime of rape occurs even if a woman agrees to the initiation of an act of intercourse, then changes her mind before the act is complete.
She won a groundbreaking case before the Massachusetts Supreme Judicial Court which established that an abusive parent loses their legal presumption of parental "fitness" in grandparent visitation cases, making it much easier for a protective grandparent to participate in the child's life even over the objection of the abusive parent.
She represented Nebraska rape victim Tory Bowen, in state and federal litigation, after Bowen was ordered not to use the words "victim", "rape", "sexual assault nurse examiner" or "sexual assault kit" during her trial testimony. A federal judge ruled that the state court's order was reminiscent of the types of decisions rendered in countries where women wear "burkas".
She wrote the winning brief in a case where a rape victim was incapacitated and unable to freely decide whether to consent to sexual contact. A lower court had ruled the jury could not consider the victim's intoxication on the issue of consent unless she was so drunk, she was "wholly insensible" or "utterly senseless." Wendy successfully persuaded the appellate court to adopt a more appropriate standard such that the jury could determine inability to consent based simply on whether the victim was "too intoxicated" to consent.
She prevailed against Ohio State University, forcing them to lower the burden of proof imposed on victims in campus judicial proceedings when sexual assault allegations are at issue under Title IX. OSU had adopted a policy requiring victims to prove their claims by "clear and convincing" evidence. Wendy's complaint with the Department of Education's Office on Civil Rights led OSU to retract that standard in favor of the lesser "preponderance of evidence" standard.
Wendy is currently representing a victim of sexual harassment in a case of first impression involving the question: does a university have a duty to takes steps to prevent sexual harassment that occurs on internet gossip sites, such as "Juicy Campus"?
She is also writing a cert petition for the United States Supreme Court on behalf of a child rape victim who, at the behest of her attacker, (who confessed) was ordered to submit to a penetrating vaginal examination, to determine the condition of her hymen. This order was affirmed by the state's highest court even though defendants enjoy no constitutional right to demand such an intrusive examination of a child rape victim, and studies show that, because children's bodies are growing and heal rapidly, only about 5% of child rape victims will show evidence of hymenal damage.
Wendy has an appeal pending on a matter of first impression involving the question: can a private plaintiff who experiences targeted violence based on gender, use a civil rights statute to obtain a class-based equitable remedy against a private actor?
Wendy is an adjunct professor at New England Law|Boston where she teaches a seminar on sexual violence and directs two projects she developed in conjunction with the school's Center for Law and Social Responsibility. The "Sexual Violence Legal News" project is an internet-based alert service that distributes appellate cases of interest, with editorial comment, related to interpersonal violence. The "Judicial Language Project" uses socio-linguistic research to critique the language used in law and society to describe interpersonal violence.
She was a Visiting Scholar at Harvard Law School from 2002-2003 where her work focused on the status of women in their capacity as victims in the criminal justice system. Wendy previously taught "Reproductive Rights and Technologies" at the Massachusetts Institute of Technology and in 2002 served as the Mary Joe Frug Visiting Assistant Professor of Law at New England Law|Boston where she has taught courses in sexual violence, reproductive rights and technologies and constitutional criminal procedure.
She is a trial and appellate attorney specializing in the representation of crime victims, women, children and victim service providers and is the founder and director of the Victim Advocacy & Research Group, a volunteer legal advocacy organization that has provided free legal services to victims and other third-parties in the criminal justice system since 1992.
Wendy is a former child abuse and sex crimes prosecutor who sits on many boards and has served on the Massachusetts Governor's Crime Commission and Commission against Sexual and Domestic Violence. She has also consulted with Congress, worked with the White House Women's Office and has served on the faculty at the Poynter Institute in connection with programs related to language and the media's reporting on sexual violence, and provides consultation on constitutional law, legal policy and litigation strategy regarding victims', children’s and women's rights. Wendy has published numerous law review and pop culture articles and she lectures widely on women's, children's, and victims' rights and criminal justice policy. She has worked for CNN, Fox News, MSNBC and CBS News as a legal analyst, and appears regularly on network and cable television. A columnist for The Daily Beast and Gatehouse News, and author of several chapters in consortium books, her first solo book, And Justice For Some, was published by Penguin/Sentinel in September 2007.
Impact Litigation
Wendy planned and brought the first test case in the country using an anti-SLAPP statute law to win the dismissal of a retaliatory lawsuit against a domestic violence victim who was sued by her batterer for reporting his crimes to police, and testifying against him in court.
She generated numerous test cases, starting in 1992, to improve constitutional and common law privacy rights for victims of violence.
She planned and brought the first federal test case in the aftermath of the United States Supreme Court's decision in Jaffee v. Redmond, to establish that the federal common law privilege of confidentiality for licensed social workers extends also to non-licensed volunteer rape crisis counselors.
She was the first attorney to write and submit an amicus brief supporting the admissibility of "grooming" evidence in a child rape case to explain a pattern of offender behavior that inhibited the child's ability to report the violence to authorities.
She planned and brought the first test case in the country to establish that crime victims have a right to be heard in criminal proceedings and may directly address the court, with their own private attorney, to advance their rights under victims' "Bill of Rights" laws.
She represented a therapist who successfully resisted a subpoena for her treatment records in a military rape trial, even after her refusal led to the court's issuance of an arrest warrant.
She planned and brought an unprecedented case using Title IX and civil rights injunction laws to force a public school to provide special protection for a female student who received an internet death threat. School administrators, who refused to provide protection for the girl, were ordered by the court to restrain the freedom of the offending student and to take specific steps to ensure the victim's safety.
She used Title IX to initiate first-ever legal action at the Department of Education against Harvard University after the college instituted a new policy requiring sexual assault victims to produce "sufficient independent corroboration" before a rape allegation would be accepted for resolution under the school's disciplinary proceedings. The case forced Harvard to rescind the policy.
She wrote the winning brief in a California case establishing the principle that the crime of rape occurs even if a woman agrees to the initiation of an act of intercourse, then changes her mind before the act is complete.
She won a groundbreaking case before the Massachusetts Supreme Judicial Court which established that an abusive parent loses their legal presumption of parental "fitness" in grandparent visitation cases, making it much easier for a protective grandparent to participate in the child's life even over the objection of the abusive parent.
She represented Nebraska rape victim Tory Bowen, in state and federal litigation, after Bowen was ordered not to use the words "victim", "rape", "sexual assault nurse examiner" or "sexual assault kit" during her trial testimony. A federal judge ruled that the state court's order was reminiscent of the types of decisions rendered in countries where women wear "burkas".
She wrote the winning brief in a case where a rape victim was incapacitated and unable to freely decide whether to consent to sexual contact. A lower court had ruled the jury could not consider the victim's intoxication on the issue of consent unless she was so drunk, she was "wholly insensible" or "utterly senseless." Wendy successfully persuaded the appellate court to adopt a more appropriate standard such that the jury could determine inability to consent based simply on whether the victim was "too intoxicated" to consent.
She prevailed against Ohio State University, forcing them to lower the burden of proof imposed on victims in campus judicial proceedings when sexual assault allegations are at issue under Title IX. OSU had adopted a policy requiring victims to prove their claims by "clear and convincing" evidence. Wendy's complaint with the Department of Education's Office on Civil Rights led OSU to retract that standard in favor of the lesser "preponderance of evidence" standard.
Wendy is currently representing a victim of sexual harassment in a case of first impression involving the question: does a university have a duty to takes steps to prevent sexual harassment that occurs on internet gossip sites, such as "Juicy Campus"?
She is also writing a cert petition for the United States Supreme Court on behalf of a child rape victim who, at the behest of her attacker, (who confessed) was ordered to submit to a penetrating vaginal examination, to determine the condition of her hymen. This order was affirmed by the state's highest court even though defendants enjoy no constitutional right to demand such an intrusive examination of a child rape victim, and studies show that, because children's bodies are growing and heal rapidly, only about 5% of child rape victims will show evidence of hymenal damage.
Wendy has an appeal pending on a matter of first impression involving the question: can a private plaintiff who experiences targeted violence based on gender, use a civil rights statute to obtain a class-based equitable remedy against a private actor?
Are We There Yet
One of the children's books I've written, with the help of Massachusetts artist Valerie Battaglia.
Please Don't Call Me "White'
Disclaimer: I represented Lucia Whalen – the “911 caller” in the arrest of Harvard Professor Henry Louis Gates, Jr.
In the flurry of commentary from columnists, bloggers, pundits and activists hoping to shine a light on "lessons learned" from the arrest of Henry Louis Gates, Jr., the rhetoric around what it means to be "post-racial" or to "transcend" race - has been mind-numbingly unenlightening.
It's not even clear what some of the basic words mean anymore.
What is a "minority" anyway? Is it a member of a group whose population is relatively small? If so - will "white" people be a minority the moment the population of "minorities" outnumbers them, which Frank Rich says in his New York Times piece this week will occur around 2042?
Or does "minority" mean a group of people who are disenfranchised and relatively powerless? Women and children aren't under-represented in numbers, but they suffer a lot of prejudice when it comes to social, political and economic equality – and yet we don’t call them “minorities”.
What if there's still systematic bigotry against “minorities” in 2042? Can they be a majority and a minority at the same time?
And what's with the words "black" and "white"? Even the darkest skin is only dark brown; the whitest skin some form of pale beige - with a zillion colors and shades in between. The starkness of the black v. white dichotomy in the public dialogue is at once incorrect and incendiary - and yet even those who would label themselves post-racial buy into it.
Indeed, when Lucia Whalen called 911, she was asked by a law enforcement official in the "progressive" community of Cambridge, Massachusetts whether the men she saw were "white, black or Hispanic"? Surely, in the year 2009, it's obvious that an awful lot of people are "none of the above".
Ms. Whalen herself is "white" as a matter of race, because she is Portuguese-American, but her skin color is an olive-ish tan. If Professor Gates had observed Ms. Whalen on HER porch, which of the options would he have selected? If he said "Hispanic", which is wrong though understandable given that lots of Hispanic people have skin color similar to Ms. Whalen's, would that make him racist, racially sensitive or race-neutral?
Keith Woods, a dean at the Poynter Institute, argues that descriptive terms, rather than political categories, are a more fair way for people to describe each other. If he’s right, maybe 911 operators should stop asking whether a person is “white, black or Hispanic”, and instead, say: "can you describe the person's skin color?"
Even if we do language right, it won't fix racism. Hell, even if we fix racism, we’ll find other ways of creating hierarchies that put some "types" higher up the ladder of human value than others.
I once asked my students what prejudice would look like if we were all grey and gender and religion neutral. Some said a class-based pecking order would remain, but it wouldn't feel like hatred so much as a necessary byproduct of capitalism where people don’t have equal wealth, but the poorest aren’t predetermined based on what they look like, or how they practice their faith. In short, prejudice would lose a bit of its sting.
Better yet, as a bunch of grey people, with our differences barely visible, we could more easily bond as Americans - unified by common values as well as physical similarities.
Of course, a nation of sameness has its own burdens, and in any case won’t happen in this country for a very, very long time. But we can seize some of the benefits right now by agreeing to use precise language - rather than fighting words – to describe our differences.
In the flurry of commentary from columnists, bloggers, pundits and activists hoping to shine a light on "lessons learned" from the arrest of Henry Louis Gates, Jr., the rhetoric around what it means to be "post-racial" or to "transcend" race - has been mind-numbingly unenlightening.
It's not even clear what some of the basic words mean anymore.
What is a "minority" anyway? Is it a member of a group whose population is relatively small? If so - will "white" people be a minority the moment the population of "minorities" outnumbers them, which Frank Rich says in his New York Times piece this week will occur around 2042?
Or does "minority" mean a group of people who are disenfranchised and relatively powerless? Women and children aren't under-represented in numbers, but they suffer a lot of prejudice when it comes to social, political and economic equality – and yet we don’t call them “minorities”.
What if there's still systematic bigotry against “minorities” in 2042? Can they be a majority and a minority at the same time?
And what's with the words "black" and "white"? Even the darkest skin is only dark brown; the whitest skin some form of pale beige - with a zillion colors and shades in between. The starkness of the black v. white dichotomy in the public dialogue is at once incorrect and incendiary - and yet even those who would label themselves post-racial buy into it.
Indeed, when Lucia Whalen called 911, she was asked by a law enforcement official in the "progressive" community of Cambridge, Massachusetts whether the men she saw were "white, black or Hispanic"? Surely, in the year 2009, it's obvious that an awful lot of people are "none of the above".
Ms. Whalen herself is "white" as a matter of race, because she is Portuguese-American, but her skin color is an olive-ish tan. If Professor Gates had observed Ms. Whalen on HER porch, which of the options would he have selected? If he said "Hispanic", which is wrong though understandable given that lots of Hispanic people have skin color similar to Ms. Whalen's, would that make him racist, racially sensitive or race-neutral?
Keith Woods, a dean at the Poynter Institute, argues that descriptive terms, rather than political categories, are a more fair way for people to describe each other. If he’s right, maybe 911 operators should stop asking whether a person is “white, black or Hispanic”, and instead, say: "can you describe the person's skin color?"
Even if we do language right, it won't fix racism. Hell, even if we fix racism, we’ll find other ways of creating hierarchies that put some "types" higher up the ladder of human value than others.
I once asked my students what prejudice would look like if we were all grey and gender and religion neutral. Some said a class-based pecking order would remain, but it wouldn't feel like hatred so much as a necessary byproduct of capitalism where people don’t have equal wealth, but the poorest aren’t predetermined based on what they look like, or how they practice their faith. In short, prejudice would lose a bit of its sting.
Better yet, as a bunch of grey people, with our differences barely visible, we could more easily bond as Americans - unified by common values as well as physical similarities.
Of course, a nation of sameness has its own burdens, and in any case won’t happen in this country for a very, very long time. But we can seize some of the benefits right now by agreeing to use precise language - rather than fighting words – to describe our differences.
Selected Publications
And Justice For Some, Penguin/Sentinel (2007)
Using Title IX's "Prompt and Equitable" Hearing Requirements to Force Schools to Provide Fair Judicial Proceedings to Redress Sexual Assault on Campus, 40 New England Law Review, No. 4, pp. 1007-1022 (2006)
"Federalizing" Victims' Rights to Hold State Courts Accountable, 9 Lewis & Clark L.Rev. 647 (2005)
The Overlapping Problems of Prosecution Sample Bias and Systematic Exclusion of Familial Child Sex Abuse Victims from the Criminal Justice System, Journal of Child Sexual Abuse, Volume: 12 Issue: 2, 129 - 132 (2004)
New Strategies for Child Abuse Prosecutions After Crawford, ABA Journal, vol. 23, #8, pp. 129-133 (2004)
Special Problems Regarding the Discovery and Use of Privileged Information, Massachusetts Continuing Legal Education, Superior Court Criminal Practice Manual, Spring, (1999 and update 2003)
The Victim Advocacy and Research Group: Serving a Growing Need to Provide Rape Victims with Personal Legal Representation to Protect Privacy Rights and Fight Gender Bias in the Criminal Justice System,11 Journal of Social Distress and the Homeless, No.1, p. 123 (2001)
Minimizing the Likelihood of Discovery of Victims’ Counseling Records and Other Personal Information in Criminal Cases: Massachusetts Give a Nod to a Constitutional Right to Confidentiality, 32 New England Law Review, No. 4, Summer (1998) (recognized in “Worth Reading”, National Law Journal)
Gender Bias in the Criminal Justice System, Harvard Women's Law Journal; 20th Anniversary Edition, June (1997)
Legal Rights of Trauma Victims, in “Trauma and Memory: Clinical and Legal Controversies”, Oxford University Press, (1997)
Debunking "False Memory" Myths in Sexual Abuse Cases, Trial, Journal of the Association of Trial Lawyers of America, (November 1997)
Using Title IX's "Prompt and Equitable" Hearing Requirements to Force Schools to Provide Fair Judicial Proceedings to Redress Sexual Assault on Campus, 40 New England Law Review, No. 4, pp. 1007-1022 (2006)
"Federalizing" Victims' Rights to Hold State Courts Accountable, 9 Lewis & Clark L.Rev. 647 (2005)
The Overlapping Problems of Prosecution Sample Bias and Systematic Exclusion of Familial Child Sex Abuse Victims from the Criminal Justice System, Journal of Child Sexual Abuse, Volume: 12 Issue: 2, 129 - 132 (2004)
New Strategies for Child Abuse Prosecutions After Crawford, ABA Journal, vol. 23, #8, pp. 129-133 (2004)
Special Problems Regarding the Discovery and Use of Privileged Information, Massachusetts Continuing Legal Education, Superior Court Criminal Practice Manual, Spring, (1999 and update 2003)
The Victim Advocacy and Research Group: Serving a Growing Need to Provide Rape Victims with Personal Legal Representation to Protect Privacy Rights and Fight Gender Bias in the Criminal Justice System,11 Journal of Social Distress and the Homeless, No.1, p. 123 (2001)
Minimizing the Likelihood of Discovery of Victims’ Counseling Records and Other Personal Information in Criminal Cases: Massachusetts Give a Nod to a Constitutional Right to Confidentiality, 32 New England Law Review, No. 4, Summer (1998) (recognized in “Worth Reading”, National Law Journal)
Gender Bias in the Criminal Justice System, Harvard Women's Law Journal; 20th Anniversary Edition, June (1997)
Legal Rights of Trauma Victims, in “Trauma and Memory: Clinical and Legal Controversies”, Oxford University Press, (1997)
Debunking "False Memory" Myths in Sexual Abuse Cases, Trial, Journal of the Association of Trial Lawyers of America, (November 1997)
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