The Republican Party controls both the Governorship and the General Assembly in Harrisburg, and they have made it one of their top priorities to prevent injured workers, consumers, and patients from receiving fair compensation for their preventable injuries.  Back in September, I wrote about this attack on Pennsylvanians’ rights, discussing a legislative alert put out by the Pennsylvania Association for Justice which described some of the bills that Republican legislators had proposed as a means of further eroding Pennsylvania’s civil justice system.

Those bills included, for example, HB 304, which would impose a 15 year statute of repose in all product liability cases, which would mean that manufacturers of all types of products would be completely immune from any liability for products made before 1998.  If you were driving down the road and a 1997 Ford suddenly caught fire and crashed into you, you would have no recourse against Ford.

Then there’s HB 808, which would force injured workers to continue treating with employer-designated healthcare providers for 180 days, instead of the current 90 days.  The point of that law is to allow employers to send seriously injured workers to doctors the employers know will discount their complaints and dismiss their injuries, thereby making the worker and their lawyer more likely to settle their workers compensation claim. Even if the worker doesn’t settle, the employer-designed physicians can create an unfavorable, inaccurate medical record about the most important time in the care, the first six months after the accident, just in case the plaintiff decides to seek more compensation.

There’s also HB 1552, which would sharply limit where personal injury lawsuits could be filed (it would no longer matter where the defendant committed the negligence, where the defendant did business, or where the defendant kept their offices), part of an effort to pull personal injury lawsuits away from the fast-moving urban courts in Philadelphia and Pittsburgh and put them instead in the underfunded rural courts. Rural courts don’t have the same resources, so cases take longer to complete, thereby making it more likely the plaintiff — who, being injured, may have lost their ability to work and has incurred significant expenses relating to the injuries — will compromise the value of their case, all while allowing insurance company to make more money investing the insurance proceeds.

So imagine my surprise when I saw many of these same representatives who fight so hard to limit Pennsylvanians’ access to civil justice suddenly developing a passion for a certain type of civil lawsuit.  Was their sudden display of sympathy for children brain damaged by malpractice in delivery?  Workers paralyzed by employers who violated safety laws and regulations?  Consumers who were injured or died as a result of taking dangerous prescription medicines?  Victims of sexual abuse precluded from justice by the statute of limitations?  
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I’ve written several times before how difficult it is to sue the government for failing to do its job, like how you can’t sue the police department for failing to enforce a court order. It’s tough to sue the government even when they wrongly entrap and then kill your son for the trivial ‘crime’ of sports betting. The government doesn’t even need to train its prosecutors in the basics of constitutional law.

“Civil rights” is a tough area in which to practice law, if you’re representing the plaintiffs. There aren’t “typical” civil rights cases, because typical isn’t good enough under the law. The facts need to be extraordinary and egregious. “Shocks the conscience” is the verbage ordinarily used by courts to deny claims:

To this end, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience. We first put the test this way in Rochin v.California, supra, at 172-173, where we found the forced pumping of a suspect’s stomach enough to offend due process as conduct “that shocks the conscience” and violates the “decencies of civilized conduct.” In the intervening 847*847 years we have repeatedly adhered to Rochin `s benchmark. See, e. g., Breithaupt v. Abram, 352 U. S. 432, 435 (1957) (reiterating that conduct that “`shocked the conscience’ and was so `brutal’ and `offensive’ that it did not comport with traditional ideas of fair play and decency” would violate substantive due process);Whitley v. Albers, 475 U. S. 312, 327 (1986) (same); United States v. Salerno, 481 U. S. 739, 746 (1987) (“So-called `substantive due process’ prevents the government from engaging in conduct that `shocks the conscience,’. . . or interferes with rights `implicit in the concept of ordered liberty’ “) (quoting Rochin v. California, supra, at 172, and Palko v. Connecticut, 302 U. S. 319, 325-326 (1937)). Most recently, in Collins v. Harker Heights, supra, at 128, we said again that the substantive component of the Due Process Clause is violated by executive action only when it “can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.” While the measure of what is conscience shocking is no calibrated yard stick, it does, as Judge Friendly put it, “poin[t] the way.” Johnson v. Glick, 481 F. 2d 1028, 1033 (CA2), cert. denied, 414 U. S. 1033 (1973).

County of Sacramento v. Lewis, 523 U.S. 833 (1998)(emphasis added). Unfortunately, the lack of a “calibrated yard stick” often leaves civil rights victims at the whim of courts. If the federal district judge or two of the federal appellate judges assigned to a case believe the conduct in question doesn’t “shock the conscience,” then the case is dismissed, without a minute of testimony in front of a jury.

All of those barriers apply to cases even where the government actor — a police officer, parole officer, a prison guard, et cetera — is the one who directly caused the harm. If the harm was caused by someone else, like an abusive spouse the police refused to enforce an order against (the situation in the Gonzales case in the first link), then there are even more barriers. A basic precept of tort law is that there is no duty to control the conduct of a third person to prevent him from causing harm to another absent a “special relationship” between either the dangerous person or potential victim. Restatement (Second) of Torts Section 315.

It doesn’t take too much of a logical leap to see how a parole board has a “special relationship” with a parolee or how child protective services have a “special relationship” with both the children they’re supposed to protect and the suspected abusers they’re supposed to protect those children from, and some courts have adopted that approach — perhaps most notably, the Supreme Court of Arizona in Grimm v. Arizona Bd. of Pardons & Paroles, 564 P.2d 1227 (1977), but many courts don’t see it that way, particularly not for constitutional claims. In DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189 (1989),

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles — so full of late of patriotic fervor and proud proclamations about “liberty and justice for all” — that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve — but now are denied by this Court — the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U. S. C. § 1983 is meant to provide.

Justice Blackmun’s “Poor Joshua!” lament, though, as a dissent. Joshua wasn’t even allowed to present his case that the Winnebago County Department of Social Services failed him and put him in further danger by leaving him with his father. He lost without his day in court.

That’s what came to mind for me when I read that Jaycee Dugard had sued the United States and a variety of its parole officers (complaint here; a summary here) for a litany of astonishingly lapses in judgment during Phillip Garrido’s parole for rape:

Garrido’s federal parole officers, therapists and counselors described him at various times throughout his federal parole term as follows: ‘a time bomb,’ ‘like a pot boiling with no outlet valve,’ ‘potentially very volatile,’ ‘potential for causing great physical harm is present,’ ‘problems with sexual overtones,’ ‘did not seem honest … as if he was putting on an act,’ ‘possible danger to the community is high,’ ‘major problems are presented in this case,’ ‘there is always threat of repeat [kidnap/rape],’ ‘still seems dangerous to the public … is liable to give little or no warning,’ ‘substantial risk to women,’ ‘is always a threat to women,’ ‘potential rapist.’” …

Despite Garrido’s well-known propensities, federal parole authorities ignored report after report of sexual misconduct by Garrido. For example, Garrido’s parole officers were informed by his 1976 rape victim that shortly after being paroled, Garrido appeared at her workplace and made an alarming comment to her. Inexplicably, the federal parole authorities responsible for Garrido’s direct supervision disregarded the victim’s concerns as mere ‘hysteria’ even though Garrido’s time cards indicated he was not at work during the hours he was alleged to have been seen by the victim. Upon learning of the victim’s statement, Garrido’s own counselor suggested that Garrido be placed on electronic monitoring. Garrido’s parole officer, however, ignored this recommendation and concluded that ‘to subject this individual to electronic monitoring would be too much of a hassle.

The Dugard kidnapping — which, as the complaint alleges, would never happened had the federal government taken the threat Garrido posed towards women seriously — should have become part of the national conversation about the ways that government agencies systematically downplay and under-report rape and sexual assault, but that’s an issue for another day.

For now, there’s the question of the United States’ liability for Dugard’s ordeal. Dugard and her daughters already collected $20 million from the State of California for its role; I don’t know if that reflected an assessment of the merits of her claim or a recognition that the social contract required we do what we can for Dugard and her kids.
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The “West Memphis Three” have long been a cause célèbre, for good reason: the case had all the hallmarks of a railroad prosecution, from hysteria over Satanism to a coerced confession by a minor with a well below average I.Q. to the lack of any forensic evidence or eyewitness testimony connecting Damien Echols, Jason Baldwin and Jessie Misskelley to the brutal murder of three young boys in 1993.

NPR’s blog sums up much of the story:

The original convictions, based on a theory that Echols, Baldwin and Misskelley killed the three children as part of a Satanic ritual, were the subject of the 1996 HBO documentary Paradise Lost: The Child Murders At Robin Hood Hills and the 2000 follow-up Paradise Lost 2: Revelations. Paradise Lost 3: Purgatory is set to premiere at this year’s Toronto International Film Festival. All three come from filmmakers Joe Berlinger and Bruce Sinofsky.

The case is also the subject of the 2002 book Devil’s Knot.

The first two documentaries — and presumably the third — argue that the three were wrongfully convicted primarily because they were, in a word, weird, and because of fears whipped up in the community by mentions of Satanism.

As the films tell the story, they were misfits in West Memphis, teenagers who listened to the wrong music and dressed the wrong way and made people intensely uncomfortable. Misskelley, a 17-year-old with a reported I.Q. of 72 when he was arrested, confessed to the police after a lengthy interrogation, only to almost immediately recant. The Supreme Court of Arkansas later called the confession, in which he admitted being present but primarily incriminated Echols and Baldwin, “virtually the only evidence” against Misskelley, and noted that it contained “a confusing amalgam of times and events” and “numerous inconsistencies,” both internally and with the actual physical evidence in the case. The court nevertheless upheld his conviction.

After a long, long journey through the court systems, in November of last year the Arkansas Supreme Court unanimously ruled the West Memphis Three were entitled to hearings on whether they could use Arkansas’ DNA exoneration statute for post-conviction DNA testing. Those hearings were scheduled for December when, just yesterday, Craighead County Circuit Judge David Laser announced that the three would be in court the next day.

What The Heck Is Nolo Contendere?

Although the prosecutor has issued a statement (filled with an embarrassing use of capital letters for emphasis) claiming they plead “GUILTY,” various sources have confirmed the nuanced plea bargain:

The so-called West Memphis Three agreed to a legal maneuver that lets them maintain their innocence while acknowledging prosecutors likely have enough evidence to convict them.

“No contest,” a.k.a. nolo contendere, is indeed one of the strangest legal maneuvers on the books, allowing a defendant to plead neither guilty nor not guilty. Even the Supreme Court hasn’t figured out what the plea really means:

Courts have defined the plea of nolo contendere in a variety of different ways, describing it, on the one hand, as “in effect, a plea of guilty,” United States v. Food & Grocery Bureau, 43 F. Supp. 974, 979 (SD Cal. 1942), aff’d, 139 F. 2d 973 (CA9 1943), and on the other, as a query directed to the court to determine the defendant’s guilt. State v. Hopkins, 27 Del. 306, 88 A. 473 (1913). See generally Lott v. United States, 367 U. S. 421, 426-427 (1961), id., at 427-430 (Clark, J., dissenting), 21 Am. Jur. 2d, Criminal Law § 497. As a result, it is impossible to state precisely what a defendant does admit when he enters a nolo plea in a way that will consistently fit all the cases.

Hudson v. United States, supra, was also ambiguous. In one place, the Court called the plea “an admission of guilt for the purposes of the case,” id., at 455, but in another, the Court quoted an English authority who had defined the plea as one “where a defendant, in a case not capital, doth not directly own himself guilty. . . .” Id., at 453, quoting 2 W. Hawkins, Pleas of the Crown 466 (8th ed. 1824).

The plea may have originated in the early medieval practice by which defendants wishing to avoid imprisonment would seek to make an end of the matter (finem facere) by offering to pay a sum of money to the king. See 2 F. Pollock & F. Maitland, History of English Law 517 (2d ed. 1909). An early 15th-century case indicated that a defendant did not admit his guilt when he sought such a compromise, but merely “that he put himself on the grace of our Lord, the King, and asked that he might be allowed to pay a fine (petit se admittit per finem).” Anon., Y. B. Hil. 9 Hen. 6, f. 59, pl. 8 (1431). A 16th-century authority noted that a defendant who so pleaded “putteth hym selfe in Gratiam Reginae without any more, or by Protestation that hee is not guiltie . . . ,” W. Lambard, Eirenarcha 427 (1581), while an 18th-century case distinguished between a nolo plea and a jury verdict of guilty, noting that in the former the defendant could introduce evidence of innocence in mitigation of punishment, whereas in the latter such evidence was precluded by the finding of actual guilt. Queen v. Templeman, 1 Salk. 55, 91 Eng. Rep. 54 (K. B. 1702).

Throughout its history, that is, the plea of nolo contendere has been viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency. Fed. Rule Crim. Proc. 11 preserves this distinction in its requirement that a court cannot accept a guilty plea “unless it is satisfied that there is a factual basis for the plea”; there is no similar requirement for pleas of nolo contendere, since it was thought desirable to permit defendants to plead nolo without making any inquiry into their actual guilt. See Notes of Advisory Committee to Rule 11.

North Carolina v. Alford, 400 U.S. 24 (1970). The father of one of the victims, though, has it figured out just right:

The support for the West Memphis Three reaches some of the victims’ relatives who have questioned whether the right people were behind bars.

Byers’ adoptive father, John Mark Byers, said he believes Echols, Baldwin and Misskelley are innocent. He said prosecutors told him that they planned to reach a no-contest plea on Thursday.

“There’s certainly no justice for the three men that’s been in prison or my son and his two friends,” Byers said. “To me, this is just a cop-out from the state for not wanting to admit that they made a mistake.”

Exactly. Either the West Memphis Three murdered three young boys as part of a Satanic ritual or they didn’t. Agreeing to let them out now means the State of Arkansas believes they’re innocent. Like I wrote back when Fairfax County claimed it was “not an admission of liability” when it paid $2 million to settle a wrongful death lawsuit after its police officers pointlessly entrapped and killed an upstanding citizen in his prime, under the circumstances of that case and this case, it most certainly is an “admission of liability.”

The boys should never have been imprisoned at all.

Since most everyone, State of Arkansas included, believes they’re innocent, the question turns around to can they obtain any compensation for nearly twenty years of wrongful incarceration?
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Yesterday the Third Circuit released a unanimous precedential opinion in Reedy v. Evanson:

While working as a cashier at a convenience store, nineteen-year-old Sara R. Reedy was sexually assaulted and robbed at gunpoint by a serial sex offender. She reported the crime to

JURIST’s Paper Chase reports an interesting development:

Former US solicitor general Ted Olson and prominent litigator David Boies [professional profiles] announced Wednesday that they have filed suit [complaint, PDF] challenging California’s constitutional amendment banning same-sex marriage [JURIST news archive], Proposition 8 [text, PDF], on federal Constitutional grounds. The complaint, filed Friday in the US