Cut it Out

Straight from the Waking Nightmares file comes the story of a 61-year-old man who went in for a circumcision and came out with an amputated penis (for those of you wondering what would make a man suddenly decide to have a circumcision after 61 years, according to MSNBC the circumcision was intended to treat inflammation).

Phillip Seaton, 61, and his wife are seeking unspecified compensation from Dr. John M. Patterson and the medical practice that performed the circumcision for “loss of service, love and affection.” The Seatons also are seeking unspecified punitive damages from Patterson and the medical practice, Commonwealth Urology.

A woman who answered the phone at Commonwealth Urology would not take a message for the doctor Thursday. But the Seaton’s attorney said the doctor’s post-surgical notes show the doctor thought he detected cancer and removed the penis. Attorney Kevin George said a later test did detect cancer.

The lawsuit filed earlier this month in state court claims Patterson removed Seaton’s penis without consulting either Phillip or Deborah Seaton, or giving them an opportunity to seek a second opinion.

The couple also sued the anesthesiologist, Dr. Oliver James of Shelbyville, claiming he used a general anesthesia even though Seaton asked that it not be administered.

There are certain cases in which no matter how good the medicine or the expert testimony, the odds of a positive defense outcome are slim. Focus group participants have consistently demonstrated that any case involving the loss of private part use--or especially the loss of private parts--results in a near-automatic desire to award money.

To that point, the article casually mentions:

The Seatons’ suit is similar to one in which an Indianapolis man was awarded more than $2.3 million in damages after he claimed his penis and left testicle were removed without his consent during surgery for an infection in 1997.

However, in this case cancer was confirmed in the penis, making the "medical emergency" argument at least plausible. However, the consent issue will likely be a significant obstacle in making arguments about medical necessity. Brutal.

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Freakonomics Blog: Juror Unanimity Isn't Necessarily a Great Thing

Here is a compelling take on the unanimity requirement of our legal system:

Juror Unanimity Isn’t Necessarily a Great Thing: A Guest Post
By Ethan Leib

Thanks for putting up with my quirky intellectual agenda of friendship and the law in the last two posts. For my final post, I thought I would highlight a more traditional area of my legal research: the jury.

There is something quirky at play here too: the U.S. is one of the few democracies around the world to have a unanimity rule for juror decision-making. The Times’s Adam Liptak has been doing a series on American Exceptionalism — “commonplace aspects of the American justice system that are virtually unique in the world” — but he has yet to focus on the puzzling persistence of unanimity as our jury decision rule.

Here are a few facts that make unanimity a non-obvious choice for juror decision-making.

1) We don’t require unanimity for any other important decision in our pluralistic polity. Our Supreme Court doesn’t decide by unanimity and neither do our legislators.

2) No other modern country (save Canada and a few jurisdictions in Australia) requires it.

3) We require unanimity to acquit as well as convict, so the idea that it contributes to protecting defendants is not fully accurate.
4) The symmetrical unanimity requirement contributes to inefficiency by giving us hung verdicts more than necessary.

5) Our juries have gotten more diverse as we’ve made it harder to get out of service and as we’ve grown more inclusive in our political system. With that diversity, majoritarianism seems more appropriate.

6) Empirical evidence tends to support the view that verdicts don’t change all that much when you change the decision rule. So the idea that unanimity contributes to certainty is probably overblown.

7) There is also empirical evidence suggesting that people assigned a unanimous decision rule will often agree to decide by supermajority (albeit unanimously) — meaning that in such cases, there is no difference between the two rules, except that some jurors agree to pretend that they agree with a verdict from which, in fact, they may strongly dissent.

8) We all know that many people are willing to falsify their preferences by changing their votes to agree with the majority; the incentives for doing so are especially high when one is a holdout juror being berated by other jurors because everyone wants to get home faster.

9) We don’t have such stringent unanimity rules in the context of the civil jury or courts martial, yet both those systems are respected and deemed legitimate by the public. Moreover, the few states that have experimented with relaxed jury-decision rules for the criminal jury — Oregon and Louisiana — do not suffer especial deficits in legitimacy.

10) Unanimity is often an illusion. Suppose a jury hangs, leading to a retrial. The second jury empanelled to try the defendant then convicts unanimously. Despite this second “unanimous” verdict, the truth is that, of a total of 24 jurors who heard the evidence, fewer than 24 were persuaded to convict. Indeed, it’s possible in theory that only thirteen — a bare majority — were persuaded, if in the first trial the holdout favored conviction, not acquittal.

These facts should be enough to get us to question our fealty to unanimity. At the very least, I think it is high time we stopped requiring unanimity for acquittals.

Article: Airline Passenger Strikes Back and Wins Money from the Airlines

From CNN Money, we read about a victim of the infamous "weather-related" flight cancellation. As many of you know, if an airline cancels a flight they are often times obligated to refund your fare. However, if the cancellation is due to weather conditions, they don't owe you a dime (what, you didn't read the fine print?).

It seems to me this system provides financial incentive for airlines to more readily blame cancellations on weather, even when those claims of "no-fly" conditions are stretching credibility. And this man took them to task for it:

On Feb. 21, 2008, Mitchell Berns heard every flier's two least favorite words: weather related.

Citing snow, Delta Airlines was canceling his flight from Las Vegas to New York City and rescheduling him for a redeye connecting in Boston. With 47% of all delays so far in 2008 caused by weather (up 5% from last year), most fliers can relate. And they know that normally this story ends with a bleary-eyed tale recounted the next day at the water cooler. Not this time. It ends in court, with our traveler $838 richer.

Berns, 55, is a securities litigator with Lane Sash & Larrabee in White Plains, N.Y. On that night he was flying home from a romantic getaway with his wife, who was pregnant with twins. Seeing that other airlines' planes were still departing as scheduled, Berns asked Delta to refund his ticket so that he could book one of those flights. They told him (politely, as he recalls) that weather-related cancellations or delays are not the airline's fault and do not come with a refund.

Berns checked the National Weather Service report. It said snow that day was expected at five the next morning -- hours after his flight was scheduled to land. He and several other passengers from his Delta flight easily booked a JetBlue flight departing at the same time. His tab: $938. He landed at J.F.K. on schedule.

Back at home, Berns did what any consumer with $15 (in New York City) and a working knowledge of English (or Spanish, in most states) can do: He filed a small-claims suit against Delta for $938. Delta did not show up to defend itself, so on June 12 he won a default judgment.

When a legal analyst from the airline called him two weeks later to negotiate a payment, he declined an offer of frequent-flier miles ("Confederate currency," in his words) and made a counteroffer: If you pay me within two weeks, I'll knock $100 off. Delta agreed but asked for a confidentiality agreement. Berns said they couldn't have both, and Delta took the discount. (A Delta spokesperson did not respond to repeated requests for comment.)

The real kicker of this article is the fact that flights from other airlines had flights departing at the same time. Obviously airlines have differing weather policies, but booking a JetBlue flight while being told Delta's planes couldn't fly mitigates any claims of severe weather.

Again, with this system in place, it's no surprise supposedly weather-related cancellations have increased 5% since 2007.

Click here for the full article...

Judge Swears In All-White Jury

An all-white jury will judge O.J. Simpson and a co-defendant on kidnapping and robbery charges after defense lawyers lost a contentious courtroom battle to include two African-American women on the panel.

District Attorney David Roger gave the judge what he called "race neutral" reasons for removing the two with his peremptory challenges, and defended the final makeup of the jury chosen late Thursday night, saying that two of six alternate jurors are black.

Both of the women who were removed had strong religious views, and the prosecutor said he thought one of them would be inclined to "forgive" Simpson while the other said she was hesitant to send anyone to prison.

Simpson's 1995 acquittal on murder charges came from a predominantly black jury.
Clark County District Judge Jackie Glass said she saw no evidence of a systematic exclusion of African-Americans. The current panel also is made up of nine women and three men.
Defense attorneys for Simpson and co-defendant Clarence "C.J." Stewart, who are both black, moved to dismiss the entire jury panel and start again but the judge rejected the motion.

Lawyers and the judge worked into the night to select the final group, using peremptory challenges, which are reserved for removing prospective jurors without stating a cause.

The final pool of prospects included a number of people who disagreed with Simpson's acquittal in the murders of his ex-wife, Nicole Brown Simpson and her friend Ronald Goldman. But they said they could put that aside and weigh the Las Vegas case on its own merits.

Simpson, 61, is accused with Stewart, 54, of kidnapping, armed robbery and other crimes for allegedly stealing items from two sports memorabilia dealers in a hotel room confrontation last year. They have pleaded not guilty. Each could face life in prison with the possibility of parole if convicted of kidnapping, and mandatory prison time if convicted of armed robbery.

Opening statements were scheduled for Monday, and the trial is expected to last five weeks.
As they left the courthouse in darkness, Simpson attorney Yale Galanter said he was confident of his case.

"I don't think my client did anything wrong, I don't think he broke any laws. I'm glad that we're finally at the point where we can get these issues resolved," he said.

As Simpson drove away, he paused to sign a T-shirt for some fans. It was emblazoned with the words, "Pray for O.J."

Earlier, the judge issued an order refusing to release questionnaires filled out by the jurors who make up the panel. She said she had promised the panel she would keep their answers secret.

Colby Williams, a lawyer representing The Associated Press and Las Vegas Review-Journal who sought disclosure of the questionnaires, said he has filed an appeal with the Nevada Supreme Court on grounds that the public and the media have a First Amendment right of access to information about jurors in a criminal case.

Associated Press

Chris St. Hilaire on KNX 1070

Chris St. Hilaire, President and CEO of Jury Impact, was interviewed today on KNX 1070 AM regarding the OJ Simpson trial. Be sure to tune in!



If you're not in Southern California, you can listen online at http://www.blogger.com/www.knx1070.com/

OJ Part Deux

Oh boy. Here we go again.

According to CNN, OJ Simpson arrived in a Las Vegas courtroom today for the start of his robbery and kidnapping trial.

Ugh, I'm not sure if I can handle another OJ trial. The article states:

The court has eliminated 252 of 500 potential jurors based on their answers to a questionnaire. Attorneys for the prosecution and defense will start selecting a jury Monday, trying to find 12 jurors and four alternates from the remaining pool of potential jurors.

They eliminated half the jury pool right off the bat? Man, I'm dying to get my hands on that questionaire.

On the radio I heard the defense attorneys confidently proclaim that OJ could get a fair trial. That seems rather optimistic, but nothing compared to this gem from a "legal analyst":

Attorneys expect many jurors to have heard about the case but are looking for people who will make decisions based on the evidence presented at trial, said legal analyst Jim Moret.

"It's not whether or not you've heard a lot about the case," he said. "It's whether you can set that aside and listen to the evidence that's presented in court and determine the case based solely on that."

Right. Because jurors commonly disregard preconcieved notions and biases and make decisions strictly according to the facts. Good luck with that.



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