Monthly Archives: February 2010

Opening Day

College baseball season begins today. I’m getting ready to head out to the ballpark to watch Kentucky and Virginia Tech open it up. Afterwards, it will be Coastal and West Virginia. The weather is great and I’m excited about the new season.

It’s been an incredibly busy week for us with court so I haven’t written anything about how promising the season looks for Coastal Carolina University. In short, this might be Coastal’s best chance to get to Omaha. They look good on paper and they are rated in the top 20 in every preseason poll. Only time will tell.

Two things to add before I go. One, Kentucky’s starting rotation has been announced this morning and Paxton is not listed.  Two, I came across a baseball blog that is fantastic: College Baseball Today. Eric Sorenson is a workhorse and his coverage is spot on.  His blog is a must read for any college baseball fan.

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Filed under Coastal Carolina Baseball

A Common Sense Approach to Ethics

This morning I read about another prosecutor getting suspended for ethics violations. Ethics can be a complicated field of law. I believe there are 59 Rules listed under the heading Rules of Professional Conduct.  There are scores of cases on the subject.  It can be difficult. But it doesn’t have to be, particularly for prosecutors.  Here are my four simple rules.

  1. Don’t become the lowest common denominator. I think this is simple, but for clarification I will explain it like this. You are prosecuting a bad guy. You think he broke the law and should be punished.  Don’t stoop to his level of conduct.  Don’t break the law just because you think he did.
  2. Don’t lie. Cops get to lie to suspects. They don’t get to lie on the witness stand. Fact witnesses sometimes like to lie. Prosecutors are never allowed to lie. Don’t let your witness lie on the stand.
  3. Don’t cheat. Not disclosing evidence in a timely manner is, for all intents and purposes, the same as not disclosing it. Not disclosing evidence is the same as hiding it. Hiding evidence is cheating.
  4. Don’t disobey court orders. If you don’t like a judge’s order, do what we do: Appeal it or move on.

That’s it. An entire rule book and years and years of jurisprudence boiled down into four simple rules. Actually, I think rule number one takes care of it all. I would add one other bit of advice. If you are questioning yourself about a potential course of conduct, then the answer is you probably shouldn’t do it.

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Filed under Ethics, Prosecutorial Misconduct

Book Review: Strike IX

College baseball season opens in one week. You have plenty of time to read Strike IX -The Story of a Big East College Forced to Eliminate its Baseball Program and the Team that Refused to Lose by Paul Lonardo.

The book has everything: law and baseball. What else could you want? Seriously, Lonardo has done a very good job explaining Title IX and the final season of Providence College Baseball. It is a good read.

Lonardo starts out with background of the class action lawsuit against Brown University over Title IX. The Supreme Court refused to hear a 2-1 decision of the First Circuit Court of Appeals, despite the fact that amicus curiae briefs were filed on behalf of 1,700 colleges and universities.

Lonardo then tells us how Providence College decided to cut the baseball program. He shows us how the players responded despite the school’s lack of support for the final season.

I admit that I didn’t remember how well the Friars did in 1999. After I started reading the in-depth coverage of the players and their determination to win a championship, I couldn’t wait to get to the end of the book  to see how far they went in the tournament.

For most schools there is always next year. That was not an option for the 1999 Friars. They didn’t win it all, but they did win the season. They won the conference tournament and set several records that season. They couldn’t win over their school administration but they won fans all over the country.

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Filed under Book Reviews

Three Years in Prison for Refusing Breathalyzer Test

This is one of the most outrageous articles I have read:

A South Euclid man who became the first person in Summit County to be found guilty of tampering with evidence for refusing to take a Breathalyzer test was sentenced to three years in prison in Summit County Court.

Apparently there is a new law in Ohio that equates refusing the Breathalyzer with tampering with evidence. According to Summit County Prosecutor Sherri Bevan Walsh:

The law is now clear that drunk drivers cannot refuse to take a breath test,” she said in a news release. “It is mandatory, and the jury agreed that Mr. Simin broke that law and deserved prison time. Bottom line: It doesn’t pay to refuse to cooperate. It will increase your sentence.

I can’t figure out how refusing to take a test is the same as tampering with evidence. Especially since we know that these tests are unreliable. I welcome any comments that might help explain what happened to the Fifth Amendment.

H/T: Dane Johnson


Filed under DUI/DWI, Fifth Amendment

Nurse on Trial for Blowing Whistle on Doctor

Discretion is a wonderful concept, in theory. In criminal law, discretion starts with the beat cop or patrol officer. It’s his decision to make an arrest, write a ticket or issue a warning. That discretion goes right up the chain of command in law enforcement. Although the top cop usually uses hers for making policy. Then we have the prosecutors. The decision to plead a case out, go to trial or even dismiss – it is completely discretionary. This leads me to the following question: What the hell is wrong with the Sheriff and the prosecutor in Kermit, Texas?

Anne Mitchell and Vickilyn Galle were nurses at Winkler County Memorial Hospital. They worked there a combined 47 years, most recently as its compliance and quality improvement officers. According to the New York Times, they were fired without explanation last June. Then things went from bad to worse. They were arrested.

Turns out these nurses had committed the unspeakable act of ratting out a bad doctor. Mitchell, with help from Galle, wrote an anonymous letter to the Texas Medical Board complaining about Dr. Rolando G. Arafiles Jr. when

she saw as a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services.

You might think that when the good doctor found out about the anonymous complaint that he went to consult a lawyer. No, he went to see his friend the sheriff. You might think that would have been the end of it. I could imagine the sheriff saying something like this. “Well Dr. that’s really unfortunate but you know that sounds like a civil or administrative type issue. Good luck with it.” But that was hardly the end of it.

The sheriff got a search warrant for the nurses’ work computers and found the letter. The two nurses were charged with “misuse of official information,” a third-degree felony in Texas. A third nurse also complained about the doctor and she actually signed the letter according to the article. However, she resigned from the hospital because of her concerns about the doctor and was not prosecuted. I guess that is an example of prosecutorial discretion.

Another example of discretion might be that the prosecutor has dismissed the charge against Nurse Galle. The article doesn’t say whether or not Ms. Galle is “turning on” her co-defendant in exchange, but I hardly doubt that she is. These nurses risked their jobs, and maybe their careers, for doing what they thought was right.

To convict Mrs. Mitchell, the prosecution must prove that she used her position to disseminate confidential information for a “nongovernmental purpose” with intent to harm Dr. Arafiles.

I don’t see how reporting concerns about a doctor’s competency to the state medical board violates the law. Especially since:

Several Texas laws would seem to enshrine a nurse’s right, and perhaps duty, to report a physician when he or she believes that patients are at risk.

So, the criminal case will be decided by a jury and it looks like the question will be whether Nurse Mitchell acted in “good faith” or “bad faith” when she mailed in her complaint. Here’s something else to consider:

In a surprise inspection last September, state investigators found several violations by Dr. Arafiles and concluded that the hospital had discriminated against the nurses by firing them for “reporting in good faith.”

Some have called this prosecution outrageous and I agree. The burden of proof in a criminal case is a high burden and it should be. In criminal cases, the state is seeking to deprive someone of their life or liberty. In civil cases the burden of proof is much lower and the case usually is dealing with money. We have seen many examples where a case failed in criminal court and later was a success in civil court. The prosecutor in Winkler County has turned this concept on its head.

Many people are looking at the chilling effect this case will have on whistle blowers in general, and nurses specifically. I agree, but I also see this case as an example of prosecutorial discretion. It’s simply a bad one.


The jury took less than one hour on Thursday to acquit Nurse Mitchell after a four day trial.


Filed under Prosecutorial Discretion

Sentencing Reform

The S.C. Sentencing Reform Commission released its final report to state lawmakers last week. According to the Commission, the recommendations will make South Carolina safer while saving millions of dollars.

The Commission is led by state Sen. Gerald Malloy, D-Hartsville. The report appears to have the same old get tough on criminals rhetoric. According to WBTW New 13:

The most important issue for those here in this state is that we’re going to keep the citizens in South Carolina safe, and that’s why you have a focus on violent crimes and those that have victims,” Malloy said. “And so those crimes we are very tough on.

The report recommends adding 24 additional crimes to the list of “violent” crimes. It also recommends increased penalties for violent repeat offenders. By my calculations, if we label more criminal acts violent and impose longer sentences on violent criminals, we will need more prisons. That sounds about right.

The problem with this is that the prison population is currently made up of about one-half non-violent offenders. Some, if not most, of these non-violent offenders are serving mandatory minimum prison sentences. According to the report:

49 percent of state prison inmates are serving time for non-violent offenses, such as driving under suspension, shoplifting or forgery. If the state doesn’t make changes, the state will soon need another prison, which would cost more than $317 million to build and add more than $141 million every year to the cost of running the Department of Corrections.

Shoplifting? DUS? How about the war on drug addicted people? They are usually serving mandatory minimum sentences.

The report was unanimous and the bipartisan commission hopes the legislature will adopt the recommendations. Looks like we will be getting a new prison.


Filed under Prisons