Archive | Blind Justice

More on the waterslide case

Verruckt at Schlitterbahn Kansas City Waterpark

Tragedy struck last week for a Kansas family whose 10-year-old died during a ride on the world’s tallest waterslide. The accident occurred on the Verruckt, a raft-ride at the Schlitterbahn WaterPark in Kansas City, Kansas. While the park has reopened for business, the 168-foot slide remains closed during an ongoing investigation. The accident comes during a week when at least four amusement park accidents have left children aged 3 to 16 hospitalized.

According to media reports, the boy, who is the son of Kansas state representative Scott Schwab, died of neck trauma and possible decapitation. Two women in the same raft with Caleb Schwab were treated for facial injuries. The women were not related to the boy who was seated with them for the ride.

Verruckt has been open for two years at the Kansas City park, and has drawn some criticism for the straps that hold riders in the rafts being Velcro instead of buckles. During preliminary tests, sandbags used as dummies flew off the ride, prompting designers to change the descent angles and delay the opening.

The ride, which reaches speeds of up to 65 mph. during the 17-story drop, has a minimum height requirement of 54 inches. Two to three riders in a single raft must also meet a combined weight of 400-500 pounds. Riders must make reservations as a group and are given a specific ride time. However, there is also a stand by walk-up line for single riders and those unable to make a reservation.

With about 30,000 children suffering injuries each year at the nation’s amusement and water parks, the Schlitterbahn death and other recent accidents raise serious questions about safety and liability. Kansas statutes don’t specifically mention water slides, but permanent rides must be inspected at least once a year by a qualified individual. Schlitterbahn had passed previous state audits despite discrepancies in record-keeping.

The park has been sued for negligence at least three times in the past few years. Two of the suits involved another inner-tube water ride, but none of the suits have involved the Verruckt water slide. All were settled out of court for undisclosed terms.

Amusement park riders accept some responsibility in that they are expected to follow the posted rules and regulations. Where a ride states a specific height requirement or weight restriction; or advises riders with pre-existing medical conditions not to participate, it is axiomatic that the rider must faithfully abide by those conditions.

Personal injury attorney John Yannone commented, “Riders do not waive all liability claims simply because of posted ride regulations. While tort and liability laws vary across the nation, there are general legal assumptions that hold some universal applicability. In product liability law, one of the foremost principles is that the product is free of defects that may pose a hazard to health and life. A rider boarding a rollercoaster naturally assumes that the track, rollers, cars, and safety restraints have been designed and tested to protect her from injury or death.”

Therefore, when a serious accident like the one in Kansas City happens, both riders and owners must be looking to the law for guidance on liability. Already, media reports are surfacing of riders who complained about the Verruckt restraint system being too loose or failing. This could have a significant impact on Schlitterbahn’s liability in the death of 10-year-old Caleb Schwab.
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Parole and due process

Leslie Van Houten - Patricia Krenwinkel - Susan Atkins

I imagine this also had something to due with the fact that one prisoner had a wealthy, well-connected family which could afford good lawyers:

Last week, on opposite coasts of the United States, two very different and controversial parole and release decisions were made. In one case, a grey-haired woman was denied parole after nearly fifty years in prison. In another, a sixty-year-old man was released. Both have been supervised for decades and both have lived under the scrutiny of the public and media spotlight since the day they committed their crimes.

The cases, however, demonstrate a key inequity in the criminal justice system as it exists. Disparities in sentencing, length of time in prison, and parole requirements and release decisions across the various jurisdictions in the U.S. provide significant fodder for legal scholars and policy makers alike.

On July 23, 2016, California Gov. Jerry Brown denied parole to Leslie Van Houten. A former so-called Manson family member, Van Houten had been recommended for parole by the California Board of Parole Hearings. Originally sentenced to death, Van Houten has been imprisoned since her conviction in 1971.

Though she has been described as a model inmate who works with other prisoners and has earned a college degree during her decades in prison, Gov. Brown issued Van Houten her 20th parole denial. He declared that she remains an “unreasonable risk” to society. Prior to the governor overruling the board recommendation, the Los Angeles district attorney turned over 140,000 signatures petitioning for Van Houten’s continued confinement.
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Fatal hot air balloon crash raises new legal questions

Hot air balloon

Following the deaths of all sixteen passengers after a hot air balloon crashed in Texas on Saturday, July 30, 2016, investigators have raised new legal questions concerning liability for balloon accidents. The hot air balloon allegedly caught fire and crashed into an open field, possibly after hitting a power line nearby.

The US National Transportation Safety Board (NTSB) has opened a federal probe of the crash in the hopes of uncovering what exactly happened and how such events can be prevented in the future.

Meanwhile, the answers to legal questions that have arisen since the incident are abundantly unclear: Who is liable for hot air balloon accidents? Are they subject to the same liability laws as aircraft? Is it impossible to determine liability given the nature of navigating a hot air balloon?

Though balloons are technically governed by U.S. Federal Aviation Regulations since they are human-operated, their regulation is often hindered by the fact that they are mostly controlled by the throes of nature.

This has created a host of issues in pursuing a liability claim in this case, and is likely to do so if such accidents happen in the future.

The NTSB has performed investigations into 800 hot air balloon accidents in the United States from 1964 to 2016, noting that 71 of these accidents caused fatalities.

The organization apparently issued a recommendation letter to the Federal Aviation Administration (FAA) in April 2014, warning that the current loose regulations could result in risking a “high number of fatalities in a single air tour balloon accident.”

Furthermore, there has been speculation as to how thoroughly hot air balloon operators are trained and vetted. It was recently discovered that the pilot in the recent crash, Alfred “Skip” Nichols, had pleaded guilty to drunk driving charges at least three times between 1990 and 2010, and he also pled guilty to a drug-related charge and served prison time in 2000.

Personal injury attorney Thomas Soldan commented, “Answers to these difficult liability questions are still few and far between. As the NTSB investigation continues, it is likely that more information will come out that will help determine who is responsible for the crash, and what legal measures can be taken to prevent such tragedies in the future.”

Since the crash, advocates for tighter regulations have called for stricter background checks, asking hot air balloon companies take more legal responsibility in ensuring passenger safety.

What is the ripple effect of SCOTUS abortion decision?

U.S. Supreme Court, Washington, D.C.

By Koria Stanton

Two weeks ago, the United States Supreme Court struck down a Texas law that sought to restrict abortion access under the auspices of health and safety. The 5-3 ruling in Whole Women’s Health v. Hellerstedt not only affirmed women’s rights, but also sent a clear message about “clinic shutdown” laws. The ruling will likely spur action on both sides of the abortion question.

The Court decided two issues related to a Texas law that did not place restrictions on a woman’s right to obtain abortion services, but instead limited how abortion clinics and staff were licensed. By placing severe restrictions on clinics and doctors who perform abortions, Texas had essentially eliminated the availability of abortion services and thus, a woman’s right to pursue an abortion.

The majority opinion relied in part on a 1992 decision of the Court. In Planned Parenthood of Southeastern Pa. v. Casey, the Court ruled that if the “purpose or effect” of a law “is to place a substantial obstacle in the path of a woman seeking an abortion,” then the law is unconstitutional. The provisions of the Texas law in question in Whole Women’s Health were found to violate the U.S. Constitution because they failed to offer any justifiable medical benefit. Both were deemed to place undue burdens on a woman’s access to abortion.

The ruling, however, is not likely to spark any changes to abortion practices in Washington, D.C.

The District has the least restrictive abortion laws in the United States. Unlike Texas, Washington, D.C. abortion clinics need not be licensed as a type of surgical center and an abortion does not need to be performed by a licensed physician – let alone one with admitting privileges at a hospital. Additionally, public funds are available for a woman seeking termination of a pregnancy due to rape or incest.

It has been nearly forty-five years since the Supreme Court legalized abortion in Roe v. Wade, but the ongoing controversy demonstrates that women’s rights are still being attacked in jurisdictions across the United States. Even as the Court affirmed women’s rights, there is some irony in an analogy used by Justice Breyer in the Court’s opinion.

Early in the majority opinion, while discussing claim preclusion, the Court justifies the suit against Hellerstedt, despite its appearance as successive litigation. Therein, a parallel is drawn to prisoners filing suit for prison conditions violations.

The Court’s use of prison conditions is a reminder of the larger battle for women’s rights in 2016. Despite over a century of progress, women are still imprisoned by legislation that presumes to dictate the choices they are allowed to make in regard to their bodies, medical care, and personal decisions that will ultimately affect their lives and futures.

While the pro-life movement may not condone or appreciate it, Washington, D.C. has an open door policy for women seeking assistance with an abortion. According to the Centers for Disease Control, over half of all abortions performed in the District are for out-of-state residents. Even without restrictive ordinances and statutes like those proposed in Texas, Washington, D.C. is able to offer a service to women, for women, without dire consequences.

The majority justices of the Court needed only to look out their office windows for guidance in their decision. The nation’s capital sets a strong example on a question that affects women across the country. Abortion rights are congruent with women’s rights and District abortion laws make that abundantly clear.

Attorney Koria Stanton, with the Maryland Criminal Defense Group, handles cases ranging from assault and disorderly conduct, to sex offenses and robbery.

Minnesota judge will try to untangle Prince’s estate

8.12_Jacob Burns Film Center presents Purple Rain

This month the Minnesota judge who is handling the case regarding musician Prince’s fortune and assets has started the proceedings in order to determine the legitimate heirs of the late musician after his unexpected death. Prince left no will indicating how his fortune should be divided and to whom the inheritance should be awarded.

With both parents deceased, no current wife and no living children, the case may prove to be difficult and drawn-out for District Court Judge Kevin Eide. He is willing to work through the case no matter how long it takes as this case may set a precedent in Minnesota law.

Prince Rogers Nelson is the full name of the pop icon who died suddenly of an overdose of the powerful opioid fentanyl in April of this year.

Presiding over the hearing of Prince’s fortune without a written will and with no clear-cut inheritors makes this case a first for Minnesota law. Several potential inheritors have come forward but none have been confirmed.

The fortune they have laid claim to is no small amount; experts have speculated that it is in the range of $100 million to $300 million. Prince left archives of unreleased music, rights to his music and the Paisley Park estate near Minneapolis, where Prince lived.

The court contracted a trust management group headed by trust attorney, David Crosby, to search Paisley Park for a will, but they have not found anything that even suggests that there is a will in existence.

The wealth management firm Bremer Trust is overseeing the estate and will run DNA tests on those who have alleged themselves to be heirs to Prince’s fortune. Exactly how this testing will be done was determined in the first hearing while another hearing will utilize the scientific evidence procured by the DNA tests to qualify those claims or not.

Six people so far will be represented by lawyers in the hearing as possible heirs to a percentage of the estate. At least two of these alleged heirs have protested the mandated blood and genetic testing as unnecessary, stating that they have a way to prove their relation to Prince.

Among those who have come forward are a young man in a Colorado prison who claims to be Prince’s son and two young women who claim to be his niece and granddaughter. Prince has one biological sister and five half-siblings.

Judge Kevin Eide has not released the affidavits and documents of those who have made a claim to the inheritance and will not allow any cameras to record the hearing despite petitions by several news outlets.

Another hearing will address the media’s ability to access the documents and to enter the courtroom.

Trust and Estates attorney Kerri Castellini commented, “Whether or not a rightful heir is found, there will be at least one party that benefits from Prince’s Estate: the IRS. State and federal taxes may consume a large portion of Prince’s estate if there was no prior tax planning.”

This ruling will certainly set precedents for future cases involving inheritance of large estates, especially when a prominent figure is implicated. It appears that Prince’s legacy will now sashay into the world of law.

Drip, drip, drip

Closer, ever closer:

NEWARK, New Jersey – A former top appointee of New Jersey Gov. Chris Christie pleaded guilty Friday in connection with a plan to cause traffic problems on the George Washington Bridge as political payback. Two other former Christie allies, meanwhile, face federal criminal charges in the scandal known as Bridgegate.

At the federal court here in the Garden State’s largest city, David Wildstein acknowledged conspiring with Bill Baroni, Christie’s then-top Port Authority appointee, and Bridget Kelly, Christie’s former deputy chief of staff, to punish Fort Lee Mayor Mark Sokolich by closing lanes on the entrance to the George Washington Bridge in 2013, because Sokolich had declined to endorse Christie in his re-election bid. At the time, Wildstein was a top official at the Port Authority of New York and New Jersey, which oversees the bridge.

Supreme Court Limits Drunk Driving Laws

SBSO DUI Checkpoint

On Thursday, June 23, 2016, the Supreme Court issued a ruling about laws some states have in which requiring suspected drunk drivers to submit to blood alcohol tests without the police having a warrant. They decided that in order for a blood alcohol test to be given, a search warrant for the driver’s blood must be obtained by police.

The Court also ruled that there is no need for a search warrant when it comes to breath tests because these are more common and not as invasive as the blood alcohol tests.

There were three cases in the states of Minnesota and North Dakota in which the constitutionality of the  “implied consent” rule was at issue.  The issue decided by the Court in each case was whether these laws were in direct violation of the Constitution’s forbiddance of warrantless and unreasonable searches and seizures. In each case, the state supreme courts  found the implied consent rules to be Constitutional.

In the three cases heard by the Supreme Court, the lawyers defending the cases made the argument that a warrantless search should be done in unusual circumstances that are not a part of everyday life. They claimed that alcohol testing for drunk driving is a normal function of the law and therefore police officers must obtain warrants before they administer any kind of testing.

The prosecution argued that such a warrant requirement would be unduly burdensome for small localities.   The Supreme Court was not persuaded by the government’s argument.

During their oral arguments, some of the justices made the point that you can get a search warrant in a small town in a matter of minutes by calling the magistrate on duty. Waiting a number of minutes is in no way a burden to the police officer administering the test.

And while they voted in favor of this ruling, Justices Sonia Sotomayor and Ruth Bader Ginsburg wrote a separate opinion where they stated that even breath tests should be subject to search warrants. They opined  that there is no governmental circumstance in which an officer having to get a search warrant for a breath test is in any way out of the ordinary or detrimental to law enforcement.

While organizations like Mothers Against Drunk Driving supported the government’s position that implied consent laws are necessary to ensure public safety, civil liberty groups sided with the Supreme Court on the grounds that one’s Constitutional right against warrantless and unreasonable searches and seizures should not be violated by enacting statutes that criminalize a driver’s refusal to submit to a blood alcohol test.

Defense attorney Karin Riley Porter commented, “The Court’s ruling supports the position of civil liberty activists who favor  keeping the public safe, but demand protection of their constitutional rights.”

Alligators, etc.

3S5X1787  Lazy Days

I remember being a kid and seeing “No swimming” signs at the local creek. We figured that meant it was okay to go wading, so:

When unspeakable tragedies occur, it seems to be human nature to ask the questions, why and how. Why did this terrible event happen? How could this have been prevented? When events seem so much out of our control, we want to feel that someone or something is to blame. We somehow take comfort in that.

When a toddler from Nebraska was swept away by an alligator while playing on a beach by a man-made lagoon at Walt Disney World in early June, the world was shocked, saddened and wanting to know how this could happen. Even though alligators are a known fixture in the state of Florida, most people would not expect that kind of danger at a prominent resort.

Initially, when the news first broke, as often happens with tragedies involving small children, people were quick to question the parents. However, as more information became available, it seems the incident was absolutely no fault of the parents.

According to eye-witnesses, the parents were within five to 10 feet of the toddler, along with many other people along the beach. The child was walking along the water’s edge when the alligator attacked and the shocked parents immediately attempted to rescue their child.

So now, the question is – could Disney have done more to prevent this incident? There were “No Swimming” signs posted around the man-made lagoon, but was that enough? Technically, the toddler was not swimming – only wading in very shallow water.

Guests vacation at these resorts and play on these beaches with the expectation that they are reasonably safe. The fact that Disney built this man-made lagoon and has knowledge that alligators can potentially be present and enter these lagoons, could be sufficient to prove liability.

However, because alligators are known inhabitants of Florida and because this is an extremely rare incidence, Disney may have a defense against a claim of foreseeability.

Attorney Peter Tragos commented, “This tragedy underscores the need for businesses and organizations to properly post warnings no matter how remote the danger may be.”

Since the attack, Disney has posted additional signs around all bodies of water on the property. In addition to the “no swimming” warning, there is also a warning of alligators.

Supreme Court Rules in Favor of Death Row Inmate in Recusal Case

In 1984, former Philadelphia District Attorney Ronald Castille successfully sought the death penalty for 18-year-old Terrance Williams, who was convicted of murdering a man named Amos Norwood. Within a week of Williams’ scheduled execution almost 30 years later, newly uncovered evidence caused the Philadelphia Court of Common Pleas to reverse Williams’ death sentence.

Prosecutors appealed this decision to the Pennsylvania Supreme Court, where Castille now presided as Chief Justice, and Williams’ death penalty was reinstated despite a motion filed by Williams’ attorneys requesting Castille’s recusal.

Following oral arguments in February, the U.S. Supreme Court reversed the Pennsylvania Supreme Court’s ruling in a 5-3 decision on June 9, 2016, citing due process concerns under the Fourteenth Amendment in Chief Justice Castille’s unwillingness to recuse himself from the case.

Justice Anthony Kennedy wrote the majority opinion, joined by the liberal justices of the Court, claiming that Castille should have stepped aside to avoid violating Williams’ Eighth and Fourteenth Amendment rights.

The due process guarantee that, “no man can be a judge in his own case,” he noted, “would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision.”

The Court ordered the Pennsylvania Supreme Court to reconsider the appeal, and since Chief Justice Castille is now retired, the risk of bias is much less likely.

Joined by Justice Samuel Alito, Chief Justice John Roberts issued a dissenting opinion criticizing the Court for making a decision solely based on “proverb rather than precedent.”

He claimed that Chief Justice Castille did not have significant personal involvement in the case because the case at the Pennsylvania Supreme Court regarded prosecutorial misconduct, not the death penalty.

Justice Clarence Thomas also filed a dissenting opinion, in which he further pressed a distinction between Williams’ criminal proceedings issued 30 years ago and his post-conviction proceedings within the last few years.

Philadelphia Defense Attorney Amato Sanita commented, “In cases involving our Supreme Court in Pennsylvania, any such perception of bias from a particular Justice’s comments should be taken into consideration when deciding whether a recusal is in order. It is the only way to ensure an individual’s rights and liberties are protected.”

In essence, the Court has used a fairly broad legal argument citing fundamental Constitutional concerns to create a much narrower decision, since most states already use this type of judge-recusal practice to prevent bias.

However, it could be an important step in making recusal law a Constitutional right, preventing similar instances in the future.

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