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I had the privilege of being asked by the newly inducted State Bar President, Buck Rogers, to deliver the Invocation at the 269th Board of Governors Meeting held this past weekend on Saturday, June 10, 2017 at The Westin Jekyll Island.  It was, of course, my honor to do so.  I have had many requests for a copy of the invocation, including from President Rogers himself, so I thought I would share it hear with all of you along with my sincere best wishes to President Rogers for a wonderful Bar year.

INVOCATION at the State Bar Annual Meeting

JUNE 10, 2017

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As I work at my desk in my office today, I have the voir dire (jury selection) in the retrial of Ray Tensing livestreaming on one of my monitors. Some folks have called jury selection the most boring part of any trial, but it may very well be the most important, because from jury selection comes the group of local citizens who will decide the fate of the parties in the case and really decide what the conscience of the community is regarding the issue being tried. The Ray Tensing case is an excessive force case being tried in Cincinnati, Ohio this week. Tensing is the former University of Cincinnati police officer charged with one count of murder and one count of voluntary manslaughter in connection with the 2015 shooting death of Sam DuBose. The deadly encounter happened during an off-campus traffic stop. Tensing has said he fired his service weapon in self defense. The incident was captured by Tensing’s police-issued body-worn camera. A am watching the criminal trial of Mr. Tensing, who is being tried for on one count of murder and one count of voluntary manslaughter.  There has already been a civil case that settled for money damages against the University of Cincinnati, Mr. Tensing’s employer at the time of the killing.  It is being tried for a second time because the first trial ended in a mistrial.  Watching voir dire or jury selection is helpful to me as a trial lawyer, not only in ideas of potential bias to explore but in hearing how a certain cross-section of our nation feels about jury trials in general. It is interesting that in Ohio, if a lawyer asks the Court to strike a juror for cause, meaning the juror has expressed so much bias about the issues and has stated he doesn’t think he could be fair on the case, the lawyer moves to strike the juror out loud in front of all the other jurors.  For example, one juror who the judge struck for cause said in jury selection that he thought Mr. Tensing “deserved a medal” for shooting Mr. Dubose.  No wonder why he was struck for cause.  In Georgia, we don’t do it that way because of the fear that once the judge strikes one juror for cause, in front of all the other jurors, the rest of the jurors will figure out what to say to get off the jury and then pretty soon all the jurors are gone. So in Georgia we approach the bench and make these sort of motions to the judge at her bench.

Many of the folks in the Tensing jury panel have mentioned the concern and anxiety they had simply upon receiving a juror summons requiring them to be present in court for the jury selection of this case.  They have expressed their bewilderment about whey they of all people in Cincinnati received a juror summons, why they have to be there, why they have to take time out of their jobs and lives to be there…in short, why them?  Why me?

Interesting question, and with a recent opinion issued by the Supreme Court of Georgia, Ricks v. State, infra, regarding how a jury panel is composed, I thought it merited looking into the issue of jury composition a bit deeper.  Georgia has a fairly new Jury Composition Rule that controls the manner in which Georgia citizens will be summoned for jury duty. For use in compiling official lists of potential jurors, the Jury Composition Act directs the Clerks Council to obtain voter registration records from the Secretary of State and driver’s license and identification card records from the Department of Driver Services (“DDS”); the Act also directs the Clerks Council to obtain records on individuals who are ineligible for jury service, including certain records regarding mentally incompetent persons and convicted felons who have not had their civil rights restored. See id. § 1-16 (codified as amended as OCGA § 15-12-40.1 (b), (c)).  Ricks v. State, S17A0465, 2017 WL 2061675,  (Ga. May 15, 2017)

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My office is in downtown Atlanta and I drive each day through Georgia State University, which now has an enrollment of 32,802.  You can imagine how many of those 32,802 are walking on the sidewalks and crossing busy downtown streets at any given moment on a weekday. And just add these students to the normal, everyday Downtown Atlanta population of employees, deliverymen, and homeless people, bicyclists who weave in and out of traffic and the schizophrenic Streetcar, which can wait at a station for interminable minutes or pull away without notice at any given second. Suffice it to say there are a lot of pedestrians on our streets downtown. Nearly every day at least one of them attempts to dart out in front of my car, regardless of whether they are even close to a crosswalk.  Apparently, crosswalks are for looks only in downtown Atlanta. A driver must be extremely vigilant while driving downtown not to have a mishap with a pedestrian. Add to the inherent danger of crossing a street the aggravating factor that many pedestrians are on their phones while walking out in the middle of the road. I have seen pedestrians talking on their phones, listening to their phones with earphones, texting on their phones, texting on their phones while talking on their phones on speakerphone and every other possible configuration of phone use while walking.  Surely, if they are hit this would amount to a heck of a lot contributory negligence?  The number of incidents of pedestrians being hit by cars is on the rise. For example, in 2013, 180 pedestrians were killed statewide, making it the deadliest year for pedestrians since 1997.  The CDC reported that in 2015  5,376 pedestrians were killed in traffic crashes in the United States. This averages to one crash-related pedestrian death every 1.6 hours.  Additionally, almost 129,000 pedestrians were treated in emergency departments for non-fatal crash-related injuries in 2015. Pedestrians are 1.5 times more likely than passenger vehicle occupants to be killed in a car crash on each trip.    Atlanta is reportedly the 8th most dangerous city for pedestrians.

So who has the right of way?

The Governor’s Office on Highway Safety does a pretty fair job at trying to educate pedestrians regarding right of way and their duties to watch out for their own safety, in addition to vehicle driver’s duties to watch for pedestrians.

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Many of you readers know I have often blogged, tweeted and spoken in public about suicide and what we as someone’s friends, family or colleagues can do to recognize a real suicidal threat and what we can do to get help to someone before he or she attempts to take his or her own life.  We know so much more about suicide today than we did just 20 years ago.  I would venture to say that what we thought about suicide and it’s causes 100 years ago would border on naivete, akin to treating leukemia with leeches.  For example, today we know that means restrictions, preventing access of the means or instruments to kill oneself, dramatically lowers the suicide rate, where 100 years ago we simply concluded if someone is suicidal it could not possibly be prevented. In a recent Harvard School of Public Health study, it was shown that if someone who is suicidal is simply prevented from having access to the means to commit suicide one time, 90% of those who had wanted to kill themselves but did not have access to the means or instrument (guns, drugs, rope) to kill themselves did not attempt suicide again.  Cyberbullying has become a leading cause of teen suicides. Social media has been at the root of numerous teenage suicides, especially where embarrassing photos or videos are posted online, which then go viral and are be seen by hundreds of classmates before the next day of school. This type of cyberbullying, using compromising or embarrassing images, has become so prevalent in our schools that many states are enacting legislation to criminalize it. This fact alone suggests suicide following cyberbullying is predictable.

Probably one of the most well-known and saddest cases of cyberbulling was the case of Tyler Clementi, an 18 year old freshman at Rutgers University, who jumped off the George Washington bridge into the Hudson River, killing himself. Tyler’s roommate had secretly filmed him having a private, sexual encounter with another male in Tyler’s dorm room. The roommate then live-streamed the intimate encounter on the internet. Would anyone doubt that Tyler would have been suicidal following a livestreaming of his most private, intimate moment in his own room? Studies have shown that cyberbullying, especially when it involves intimate photographs or videos, leads to an increased risk of depression and suicidal ideation.  Thus, it has become foreseeable and even highly likely that a young person may want to commit suicide after experiencing sexual or intimate cyberbullying.   Who could blame them?

Which brings me to City of Richmond Hill v. Maia, S16G1337, Supreme Court of Georgia, May 30, 2017.  You may remember I have written about this tragic case before, in my June 9, 2016 blogpost “Who Is Legally Responsible for a Suicide?”  I was writing about the decision by the Georgia Court of Appeals at that time.  To remind of you of the horrible facts in Maia, this is what I wrote then:

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You Supreme Court nerds out there (and you know who you are) are probably aware of the fact that the United States Supreme Court  recently heard oral arguments in  McWilliams v. Dunn. At issue in the case is whether James McWilliams, an indigent defendant whose mental health was a significant factor at his capital trial, was entitled to an independent psychological expert to testify on his behalf. The prosecution presented the expert testimony of one psychiatrist and argued the Defendant was not entitled to his “own” psychiatrist as the one offered by the prosecution was essentially neutral, even though he was retained and paid by the State.  Stephen Bright, longtime president of the Southern Center for Human Rights, represented McWilliams.  The issue presented to the Supreme Court in McWilliams was this:  “Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.” Amicus, the podcast by Slate that focuses on the Supreme Court, covered the McWilliams case in its latest episode, “The Myth of the Neutral Expert.”

This is a fascinating discussion, especially considering the very life of an inmate hinges on the opinion.  Some states have even placed a temporary halt on executions for inmates on death row until the McWilliams opinion is delivered.   As a personal injury trial lawyer, I mused how expert witnesses are treated differently in civil cases, you know, in cases where mere money is at issue and not someone’s life or liberty.  Of course, having one so-called “neutral” expert witness, to testify for both sides of a case, would never happen in civil cases.  I haven’t tried a case without the appearance of at least one expert witness at trial in well over 20 years now. My cases are complex and naturally either require or will benefit from expert testimony. At a minimum. I will present the testimony of a treating physician, who certainly is an expert in his or her medical specialty, even if not an expert “specially retained to testify at trial.”  In civil cases, especially medical malpractice cases, we often hear such testimony described as “The Battle of the Experts.”  Defense attorneys have gotten into the habit of hiring just one more expert than the plaintiff has so that they can argue they have “more” experts on their side and, therefore, naturally, you should side with the party who has more experts (regardless of how credible those experts are!).  What jurors may not be aware of is that the defense experts are being paid by the defendant doctor’s malpractice insurance carrier, not the doctor himself, so the sky’s the limit.  Not so for plaintiffs.  Plaintiff’s must front those expenses out of their own pockets, and because no individual plaintiff can afford to do so, this means the plaintiff’s attorney must pay for the experts in a case on his or her own dime. That may not make sense to you but that’s how it works.  As you can imagine, hiring numerous experts simply to have one more than the other side has can get expensive.  Where does this end? But defendants have unlimited sources of money for this and plaintiffs don’t.

Here is the law of Georgia that the trial judge will read to the jury regarding expert witnesses:

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I read with interest the news today that Governor Andrew Cuomo announced the State of New York will no longer send 16 and 17 year olds to prison for criminal offenses. Instead, they will be sent to special newly created youth courts for felonies and to family court for misdemeanors. This new law is called “Raise the Age” initiative.   Kudos to New York. And kudos to the other states that have raised the age for incarceration in state prisons.  Since 2009, seven states have raised the age of adult proscecution to 18 and five more have tried during their 2015-16 legislative sessions.  Here in Georgia, Representative Mary Margaret Oliver, Representative from the 82nd District, filed proposed legislation that would raise the age of adult criminal prosecution to 18 and enlarge the jurisdiction of Georgia Juvenile Courts to include 17 year olds.  House Bill 53 was attempt by Oliver to treat juveniles under age 18 as just that…juveniles. “There are only six states that allow minors to be treated as adults for the criminal prosecution of all crimes,” said Rep. Oliver. “HB 53 is intended to bring Georgia into the mainstream so that 17-year-old minors will no longer be prosecuted as adults, but will be adjudicated in the juvenile court. Expanded juvenile court jurisdiction to include 17-years-old children is a needed reform.”  If passed, HB 53 would adjust the juvenile court’s jurisdiction to include children under the age of 18. This jurisdiction includes the investigation and examination of delinquent acts committed by minors. Under current law, only children under the age of 17 are included in the jurisdiction of the juvenile court.  HB 53 was read on the House Floor, but unfortunately, never received a vote. In fact, there was other legislation filed in the Georgia General Assembly that would lower the age for criminal prosecution for certain offenses rather than raise it.

Many advocate groups are joining in the fight to raise the age for criminal prosecution. For example, the Campaign for Youth Justice, based in Washington, D.C.,  is focused entirely on ending the practice of prosecuting, sentencing, and incarcerating youth under the age of 18 in the adult criminal justice system.  Statistics show that every year in the U.S., as many as 200,000 youth are put into the adult criminal justice system, most of them for non-violent offenses. In 22 states and the District of Columbia, children as young as seven can be prosecuted as adults. Each year 95,000 youth are held in adult jails and prisons.  Research shows that youth in adult jails and prisons are at a higher risk of physical, sexual, and emotional abuse than their peers in the juvenile justice system.   Advances in behavioral and brain science show that adolescent brains are different from adult brains.  Consequently, the judgment “exercised” by youths is different than that exercised by adults.  The American Bar Association recently reported on this in its February 2017 Journal.  The article interviews Dr. Judith Edersheim, co-director of the Center for Law, Brain and Behavior at the Massachusetts General Hospital. As Dr. Edersheim  explains it, “there are three widely agreed-upon differences between adult brains and adolescent brains. One is that during adolescence, kids actually lose “gray matter,” the brain cells that do all of the brain’s computation. This “pruning” of gray matter is especially concentrated in the frontal lobes, which are responsible for self-control, planning, decision-making and other executive functions.At the same time, Edersheim says, teenagers get more “white matter,” the cells that pass messages between parts of the brain, which increases processing speed. Scientists think these two changes make the brain more efficient, even though it also loses some computational ability. This process of brain maturation continues after the body matures; some scientists think it ends as late as age 25.  But perhaps the most conspicuous difference, Edersheim says, is that adolescent brains have more circulating dopamine—a neutrotransmitter that scientists believe governs rewards and learning—and more receptors in their brains to pick it up. Dopamine is released when a person receives many kinds of rewards, including new experiences, as well as things such as food and sex. This predisposes teenagers to seek out rewards and novelty. The thinking, Edersheim says, is that this helps push adolescents out of the nest and into the world. And what kids learn during this process, she says, helps determine what parts of the gray matter get pruned. That means a kid’s environment matters a lot, and adult prison isn’t the best environment.  “If you don’t provide an adolescent with an opportunity to develop a social competency or self-esteem, if you don’t put them in contact with pro-social peers, then you’re setting trajectories which actually might persist through adulthood,” Edersheim says. “Adolescents are really these neurologic sponges for their environment.””

One of the reasons I am interested in this legislation to raise the age is because I represent the mother of a young man who was incarcerated in adult state prison here in Georgia at the age of 16.  At the age of 17, he attempted to kill himself by hanging from his bedsheet. He now remains in  a constant minimally conscious state in a nursing home in South Georgia due to the brain damage he suffered during the suicide attempt. He is 19 years old.  I firmly believe that had he not been sent to an adult prison at age 16 he would be a healthy 19 year old now, looking forward to rehabilitation for the offense he committed. That will never happen now.  Solitary-Confinement-Canada-Prisons-SAN-300x210

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We are about to reach the 100 day milestone of the current POTUS, and with that come many criticisms and many “attaboys.”  It’s all in the eye of the beholder. This POTUS is the first in a string NOT to be a lawyer.  When you think about that, the fact that he is not a lawyer, nor has he ever served in any public service role, means he has had no formal training in the Constitution nor in either drafting, interpreting or applying legislation. These are things that lawyers do every day, day in and day out. That is pretty obvious. What may not be at the forefront of your mind when thinking about lawyers is the professionalism displayed by lawyers every day.  Not only must lawyers as professionals in the practice of law abide by certain formal ethical rules and rules of professionalism, they must also insure they practice with a certain courtesy and respect for their opponents and for the judicial system that other people, say, real estate tycoons, for example, do not.  So as we approach that 100 day marker for the POTUS, I have been thinking of a few things that POTUS, a non-lawyer, so far has failed to demonstrate consistently in the last 100 days and what he could learn from lawyers…things I think would naturally serve him, his administration and most importantly, the people of the United States, well.

  1.  Be Impeccable With Your Word.  A lawyer’s ability to advocate successfully for his or her client is only as good as his or her credibility, and credibility directly flows from being able to count on what a lawyer says as being true.  No half-truths, no hedging the truth, no embellishment to make your facts seem just a little bit better than they really are.  A lawyer must always tell the truth in all dealings or risk  complete  ineffectiveness, or worse, a client’s, or an opposing counsel’s, or a judge’s (gasp!) not being able to believe what the lawyer is telling them. Once that happens, all is lost. You may have heard this referred to as “your word is your bond.” The Cambridge Dictionary defines this as “If someone’s word is their bond, they always keep a promise.”  Nothing is truer for a lawyer.  Lawyers even have a duty of candor to the court to inform the court of case law or precedent that goes against their client’s position in court.  Can you imagine a salesperson having to tell a customer that he could actually sell a car to you for less than what you, the customer, is willing to pay for it? Of course not, but lawyers are required to act with that much candor and honestly at all times before the Court.  The ideals of professionalism in the practice of law are aimed at ensuring our profession remains a “high calling” and not “just a business like any other,” enlisted in the service not only of the clients, but of the public good as well.  “A Lawyer’s Creed,” developed by the Chief Justice’s Commission on Professionalism (the Commission),  states it as thus:  “To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice. ” 
  2. Never Take Anything Personally.  I think this is good advice for everyone, but especially lawyers must behave like this and are expected to do so.  Trial lawyers must always do their jobs in an adversarial situation. By definition, there will also be another lawyer representing the opposing party in a lawsuit trying his or her level best to prevent you from succeeding. Think how hard this is!  If we were talking about the profession of medicine and using surgery as our analogy, no other surgeon comes into an operating room to try to prevent the operating surgeon from performing the surgery successfully! No other doctor comes in and tries to kill your patient! But that is precisely what occurs in the practice of law. Every time I represent a client there is an opposing counsel trying to prevent me from succeeding. It’s pretty stressful, but would be even worse if the lawyer takes his opposing counsel’s efforts personally.  The opposing counsel is just trying to do his job well, too. That’s all. And The Lawyer’s Creed requires lawyers to promise this to opposing counsel:  “To my colleagues in the practice of law, I offer concern for your welfare. I will strive to make our association a professional friendship.”  We also are required to make this promise: “To the opposing parties and their counsel, I offer fairness, integrity and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one.”  Temper tantrums and other demonstrations of pettiness and “unsportsmanlike conduct” have no place in the legal profession.   Following a trial, adversaries shake hands, regardless of the outcome. I have never had a problem shaking the hand of my able adversary when he or she has conducted himself or herself with integrity and professionalism throughout the litigation. It honors our justice system and your opponent. As Shakespeare wrote in “The Taming of the Shrew,” “do as adversaries do in law, strive mightily but eat and drink as friends.”

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It’s only a matter of time before you or a loved one is injured by one of these nuisances that are so prevalent on Atlanta city and county streets these days.  Or it’s just a matter of time before you damage your car from driving over one of them.  The ubiquitous metal plate. Who thought these were a good idea in the first place?  The metal plates in the photographs above are currently on my street, Oakdale Road in unincorporated DeKalb County. These two metal plates have been there for months.  And notice there is really nothing hold them in place other than the mere weight of the things and gravity.  But a truck that ways 60,000 pounds loaded, or an SUV that weighs 10,000 pounds or even a small car that weighs 6,000 pounds going 35 m.p.h. can easily move these plates when they are not pinned down.  Once moved, they become a potentially fatal hazard to the motoring public. Imagine coming upon this monster (see photograph below) as you mind your own business driving down the road. Once your car ran over it, you and your car wouldn’t stand a chance.  The weight of your car would cause the metal plate to flip and your car would fall into the sinkhole below. It is doubtful you could escape without serious bodily injury.  The photographs below show several metal plates that are clearly not pinned down or held down in any way whatsoever.  Car and truck traffic have obviously shifted them, so that the next unknowing driver, potentially YOU, could be swallowed by the hole they are supposed to be covering.  I am confident this is not an isolated situation;  my guess is that you have seen the frightening scenario below multiple times.

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There are actually requirements for the way these metal road plates are required to be placed on the roadway.  For example, steel plates must be fixed in place to avoid movement.  In addition to being firmly in contact with the pavement, they should be either pinned, recessed into the pavement, or secured with asphalt wedges around the perimeter. Pinning into the pavement involves driving pins into the pavements along the edges of the steel plates to prevent movement. Recessing involves cutting out the area where the steel plate will be placed.  If these are the mandatory requirements for use of these monsters, why are they so seldom pinned down or recessed?  As a member of the motoring public, you are entitled to assume these plates have been put down and affixed to the street properly so that they are safe for you to drive over. The law does not require you to drive around them in an effort to avoid them.

Remember the “Pothole Posse” formed by then City of Atlanta Mayor Shirley Franklin?  It seemed to make progress for awhile, but after the initial excitement about bringing back safe streets, we are right back where we were with our streets littered and cluttered with these metal plates. Recently, in New York, such metal road plates may have played a role in a fatal crash that killed six people.

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The Georgia Supreme Court today issued an opinion that makes it clear the age-old rule of “one free bite” for a dog before an owner can be held responsible is no longer Georgia law.  The Court’s opinion in Steagald v. Eason, S16G0293 (Ga. Sup. Ct. March 6, 2017) overturned prior case law that held the opposite. (“To the extent that the Court of Appeals held otherwise in Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120) (1998) (a 4-3 decision), when it said that “the dog must have, on a prior occasion, done the same act which resulted in the injury comprising the tort action,” id. at 635 (citations omitted), the Court of Appeals misconstrued its own precedent, and that decision is disapproved.”). In Steagald, the dog at issue, “Rocks,”  had twice before “snapped” at neighbors, without actually biting them. Then, in a third incident, when the neighbor  approached the dog and extended her arm, Rocks jumped at her, bit her arm, and latched onto it. The neighbor attempted to run away, and when she did, she slipped and fell. At that point, Rocks bit and latched onto her right leg. The woman sustained serious injuries as a result of the attack.

The time-worn “one bite rule” refers to this:  A rule that says that the owner of a domesticated animal (e.g., a dog) will be held strictly liable for injuries caused by the animal only if the owner knew or should have known about the animal’s dangerous or vicious propensities, which have been manifested in the past. The burden of proof is on the injured party to show that the animal owner possessed this knowledge. The “one-bite” rule originated in common law and has been rejected or modified by most states, either by statute or by case law, with regard to dogs.  Many states, including Georgia, have long followed this rule, holding that a dog owner has no liability as a matter of law to a person who his dog bites and injures unless the owner was aware of a previous bite by his dog. But today the Georgia Supreme Court acknowledged that the two prior “snaps” by Rocks at the neighbors were really just “unsuccessful bites.”  The two prior “unsuccessful bites” were enough to put the owner on notice that his dog may have a vicious propensity, which is part of what a plaintiff must prove to prevail in a dog bit case. Justice Keith Blackwell authored the opinion of the Court. Known for his sense of humor, Justice Blackwell apparently found the serious injuries of the Plaintiff no laughing matter and wrote:  “An attempt to bite in the absence of provocation most certainly may be proof of a propensity to bite without provocation. And as the Court of Appeals correctly recognized in earlier decisions, when the evidence shows that an owner or keeper knows of such an attempted bite — that a dog has snapped at someone, nicked someone with its teeth, or otherwise used its mouth to attack someone without injuring her — it may well be sufficient to establish knowledge of a propensity to bite.”  The opinion was unanimous by the Court.

I think the Georgia Supreme Court has fashioned a fair and common sense rule here. The “one free bite” rule let the owners of vicious dogs off the hook, or off the “leash” so to speak, too easily.  We all know a pit bull who barks at someone and snaps and jumps at someone but doesn’t actually bite, is just one leash-break away from a horrific mauling. Dogsbite.org reports in the 12-year period of 2005 through 2016, canines killed 392 Americans. Pit bulls contributed to 65% (254) of these deaths. Combined, pit bulls and rottweilers contributed to 76% of the total recorded deaths. Family dogs inflicted 45% (14) of all deaths in 2016; family pit bulls accounted for 86% (12) of these deaths, up from an 11-year average of 63%. Of the 22 fatal pit bull attacks, 55% (12) involved a family or household member vs. 45% (10) non-family. Many Georgia counties and cities have in place specific ordinances about dogs with vicious propensities, especially pit bulls.  And who can  forget the tragedy of the death of a little boy and mauling of a little girl this January as they walked to their bus stop in Southwest Atlanta by pit bull?  These ordinances are created with the policy in mind of encouraging owners to have better control over their dogs.  And the Georgia Supreme Court’s opinion in Steagald will help hold negligent dog owners responsible for the havoc created by their vicious dogs.  Dog owners should take notice and act accordingly.

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“They treated him worse than a dog.”  That is how Kevin Williams, brother of Elliott Williams, described what correctional officers did to his brother at the Tulsa (Oklahoma) jail where Elliott was held for a week after being picked up by Tulsa police for behaving erratically at a hotel. Apparently, Elliott Williams was in the throws of a mental breakdown after his wife informed him she was leaving him.  Tulsa police picked him but never charged him with any crime, never finger-printed him, never set bond and never allowed him to call his family, despite repeated requests.  Mr. Williams told the guards he could not walked and felt he may have injured himself in his cell by hitting his head.  The guards thought Mr. Williams was joking, despite Mr. Williams’ lying naked on a blanket on the floor of his cell. He obviously could not move his lower extremities.  The hard-to-watch video shows the six days of agonizing torture Mr. Williams suffered at the hands of the jail guards.  I am warning you: before you watch the video, which is linked in The Frontier’s article about the case. It is nothing short of humiliating, degrading human torture by these guards. The video clearly shows the guards barely walking into Mr. Williams’ cell.  One places a cup of water on the floor by him.  Several times they slide boxes of food near him, which, of course, he can’t reach, open or eat because he is paralyzed. He does not drink anything or eat anything for six days while these jail guards watch him die. The only water he has for those horrific six days are a couple of drops that he is able to put in his mouth after he somehow was able to dip his fingers into a cup of water on the floor.  The video shows no attempt to give Mr. Williams any assistance at all, much less medical assistance to determine whether he was actually paralyzed, during those six long days. On the sixth day and the day of his death, the medical staff finally arrives, tests for reflexes and of course there are none because he is paralyzed and dead or dying. Only on the sixth day, after no medical help, no food, no water, does the jail’s medical staff attempt CPR on Mr. Williams, which of course does not work as he is dead.  Mr. Williams was allowed to die a most inhumane death conceivable, and his brother very aptly described it:  “He was treated worse than a dog.”

I have recently filed a lawsuit against Georgia State Prison for the attempted suicide of an inmate after he was found to be experiencing a psychotic break and in need of emergency psychiatric attention.  The prison’s idea of “emergency” psychiatric referral was an appointment with a psychiatrist five days later. Of course, my client, Nicholas, who was only 19 years old at the time, never made it to that appointment scheduled  five days later because less than 24 hours after being diagnosed with experiencing a psychotic break he attempted suicide by hanging himself with his bed sheet in his cell. His cellmate yelled and yelled for help. After a prison guard finally arrived at the cell, the guard saw him hanging but refused to get him down from the bed sheet noose. Instead, that guard radioed for assistance and the other guards, rather than helping Nicholas down from hanging, retrieved a camera to film him hanging. That video, as you can imagine, is graphic. Then the camera runs out of battery charge. So the guards leave Nicholas hanging and retrieve a second camera (I am NOT making this up) to continue filming him. Finally, the guards go into the cell to remove Nicholas and find that he is still alive. They begin CPR.  They are able to revive him, but due to the lack of oxygen for such a long time, he is left in a persistent minimally conscious state and suffered irreversible brain damage. He now requires 24 hour care in a nursing home. He cannot eat, he cannot speak and he cannot move by himself.  To say this case is tragic would be a massive understatement.

So, I have been immersing myself in jail and prison suicide cases and the applicable law.  Essentially, the only way to sue a jail or prison successfully on this type of constitutional rights violation is under a Federal statute, 42 U.S.C. § 1983.  Under this statute, the plaintiff must prove that the state actor (individual state or government employee) acted with “deliberate indifference” to the constitutional rights of the inmate. The determination as to whether a state actor acted with deliberate indifference in violation of either the Eighth or Fourteenth Amendment consists of an objective and subjective inquiry.  Hopper v. Montgomery Cty. Sheriff, 3:14-CV-158, 2017 WL 495511, at *12 (S.D. Ohio Feb. 6, 2017).  “Deliberate indifference requires the following: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.” Shuford v. Conway, 16-12128, 2016 WL 6820764, at 6 (11th Cir. Nov. 18, 2016). The plaintiff must show the constitutional right allegedly violated was “clearly established” at the time of the incident, so that an officer cannot claim as a defense that he “didn’t know” his treatment of an inmate violated the inmate’s constitutional rights.  “In this circuit, the law can be ‘clearly established’ for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose.” Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997). This inquiry is limited to the law at the time of the incident, as “an official could not be reasonably expected to anticipate subsequent legal developments.”  A plaintiff can show the constitutional right violated was clearly established in three different ways: (1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law. Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009); see also Hope v. Pelzer, 536 U.S. 730, 743, 122 S.Ct. 2508, 2517, 153 L.Ed.2d 666 (2002) (noting that the reasoning of this Circuit’s holdings, even if a case did not involve the same precise facts, sends a sufficient message to reasonable officers in this Circuit for the purposes of the “clearly established analysis”).