Rene Fomby

Author, Lawyer, Winemaker...

Category: Injustice

My God is a God of love…

I know that these people number in the dozens, not the millions, but they help maintain the fiction that Christianity – my chosen religion – is a religion of hatred and intolerance. My big question is, why do we not hear calls from the political right demanding that the President denounce these people as “Radical Christian Extremists”, and call on the larger Christian community to close their churches and disperse their followers? Should we now close our borders to all Christians?

NYTimes: Pastors Praise Anti-Gay Massacre in Orlando, Prompting Outrage

Think DNA is a perfect tool for catching criminals? Think again…

This chilling new article in The Atlantic explains how imperfect DNA testing really is. Once again, the police and prosecutors are touting imperfect science to “prove” defendants are guilty. Maybe we should just go back to the witch trials and call it a day… throw defendants into the lake and hang’em if they float.swab

Law Still Treats Rape as a Property Crime Against Men

Only two of 100 rapists spend time in prison, 68% of sexual assaults aren’t reported, and those victims who do go to trial are often traumatized by the experience. But while the criminal justice system has failed women, victims are increasingly turning to the civil courts for some kind of remedy.

Philosophers on everything that’s unethical about US sexual assault law


LGBTQ Bathrooms: Should We Add a P for Parents?

All the recent hubbub about transgender access to bathrooms, and laws restricting access to bathrooms according to your gender at birth, seems in my mind to raise another issue, one that even Republicans should understand. Adam and Jen are nearing thirty now, but when they were very small Elizabeth and I had to face the challenge of how to manage their bathroom needs. If I had Jen by myself, would I send her into the Ladies room by herself, or smuggle her into the Mens room, desperately trying to shield her eyes from the urinal showcase? (Men are pigs, by the way.) Before Jen mastered the delicate art of bathroom hygiene, the choice was clear, except for the rare occasion where a kind lady offered her services. And I think all of the women had no issue with Adam waltzing in amongst them, his mother in tow. But is that even legal anymore in North Carolina? At what precise age does a person stop being innocent and evolve into a potential predator? And are public bathrooms truly the first line of defense against sexual predators?

All this reminds me of the time when Adam was a baby and Elizabeth and I traded off diaper duty. I took him into a men’s bathroom at a restaurant and was changing him using a rollout changing mat on the filthy floor. (Men are pigs, by the way.) An older man wandered in, saw what I was doing, and asked me “Why don’t you let his mother handle that?” I looked up at him with anguish draping across my face and answered, “His mother died in a car crash two weeks ago!” I never saw a guy back out of a room sputtering “I’m sorry” so fast in all my life. I guess if it’s all right to speak truth to power, it’s also all right to speak untruths to assholes.

Does a Right to Counsel Still Exist in Bell County?

Last Monday morning, I appeared with my client, ready to defend her in a jury trial for assault. The case involved my client, then seven months pregnant, who discovered her baby daddy in flagrante delicto with one of her closest friends, just two hours after he had left her own bed. She confronted her boyfriend, asking him pointedly why he was “f***ing this ho!” The other girl then jumped in, virtuously asserting that “I ain’t no ho! I’m a stripper!” Heated words were exchanged, a lamp got knocked over and broken, and then my client left the scene. Shortly thereafter she was stopped and arrested by Killeen police, based solely on the statement of the stripper. I got the case two years ago, and over that time have fought with three different prosecutors about dismissing the case, twice bringing the stripper to meet with the prosecutors to recant her story and ask that the case be dropped. All this time we have had almost twenty court appearances in the case, with my client showing up on time for all of those appearances but one, when her bond company abruptly went out of business, but left their automated check in system in operation, falsely informing their former clients that there were no court dates pending for them. That led almost all of those clients to fail to appear for their next court date, and in virtually every case the county simply put them on a PR bond for free and reset their next court date with no penalty. In the present case, however, prosecutor Jamie Decker filed bail jumping charges against my client just before she was due to appear in court for the Friday afternoon pretrial conference to finalize plans for the trial the following Monday. Decker thought she could have my client arrested at that time, and thrown in jail over the weekend, making if very difficult for me to meet with her to prepare the case. When she learned that the judge had previously excused my client from appearing, Decker then moved to continue the trial to another date. The next Monday I walked my client through turning herself in to the jail on the new charge, then immediately bonding out on a free PR bond.

Meanwhile, Decker still refused to drop the charges in the assault case, even though she was well aware that the so-called “victim” was now living in North Carolina and had no intentions of showing up for trial, forcing the case to be dismissed. And then another issue popped up. A few months ago I started preparing for trial and attempted to review video and audio evidence the state had provided. When I popped the DVD into my computer, however, I discovered that the county had mistakenly put the wrong evidence on the DVD. Instead of my client, the DVD actually contained a video from a felony case I tried two years ago. The only trial I have ever lost. I requested a correct copy, and last week Decker sent me an email saying the State had destroyed the two police cam videos and the 911 audio recording. I immediately filed a motion to dismiss, which the judge initially denied, then offered to reconsider if I could research the issue and bring him a stack of case law on Monday morning. At the minimum, he said, I could get an instruction on spoilation, an instruction to the jury that they could presume that the destroyed material contained evidence that was favorable to my case, an instruction that almost guaranteed a not guilty verdict. (I also filed a motion to dismiss in the bail jumping case, pointing out that Texas law prohibits selective enforcement of the law, and the Constitution prohibits prosecutorial abuse for the purpose of coercion and denial of due process rights.)  I spent ten hours over the weekend researching relevant case law and proving that the case should be dismissed. I also spent eight hours preparing for trial on Monday if somehow I got overruled and the victim actually showed up.

On Monday I arrived in court at 8:30 am, and sat there until almost eleven waiting for Decker to finally hand the judge the documents for dismissal. A new issue had popped up. Evidently my client had failed to pay an old traffic ticket, and Decker was trying to get the Killeen police to arrest my client and haul her off to jail again. Eventually, however, they finally acknowledged that they had no legal authority to arrest her, and Decker, having played her last trick, caved in and handed dismissals on both cases to the judge.

But the story didn’t end there. As a court appointed lawyer on the first case (pro bono on the second), I then submitted my request for two half-day charges, one for trial prep and the other for my appearance for trial. The total bill for those eight hours I submitted was $800. For in excess of 32 hours work on the case. The judge rejected the bill, and instructed me to resubmit it for a simple dismissal for $300. My response to him is copied below:

I can do that, but the bigger issue is that when the State is aware that their victim is in the wind and that the trial has no chance of happening, but nonetheless forced me to fully prepare for trial and show up and spend two hours waiting for them to put the dismissal in front of you, then that creates a strong economic disincentive for defense attorneys to force their hands and bring cases that are unwinnable by the State to trial. This is the eighth case in a row that the State either dismissed or severely modified their plea demands on the morning of trial. That means I spent 6-8 hours over the previous weekend and two or so hours on Monday morning, plus all the time managing the case over the previous year or so, including, in this case, bringing the victim to meet with the prosecutor — TWICE — to recant their previous statements and ask that the case be dropped. Also, in this case, four hours to research, prepare and file a motion regarding the State’s destruction of critical evidence, and six hours researching the coercion issue. Added up, in this case alone that amounts to a minimum of twelve hours directly related to preparing for trial alone, plus another ten or so hours managing the case pretrial, and ten more hours on research. Dividing that into $300 (the second case was pro bono, to deal with the State’s decision to charge my client with the crime of being poor and out on bail with a failed bonding company), that equates to $25 per hour for the trial alone, and less than $9 per hour for the entire case. At those rates, no attorney who has to pay his own bills (fortunately, not a condition that applies to me) would ever do more than bleed and plead his clients. Fighting for true justice would be a sure fire route to personal bankruptcy. On top of this is the County Attorney’s new policy of dismissing cases only if the defendants agree to reimburse the county for their court appointed attorney fees, even when the defendants are severely mentally ill and barely surviving on disability. And you know where I stand on that issue — over the past two years I have regularly waived my fee and personally shouldered the burden of my clients’ defense, meaning this is the first bill I have submitted in almost two years. Justice should not be on sale.

So I would submit there is a bigger issue here than five hundred dollars, which in the end actually matters very little to me. The real question is the public policy issue of whether Bell County is truly committed to the Constitutionally mandated right of defendants to assistance of counsel, or whether we will continue to erode this right piece by piece, until in the end only the wealthy will have a right to counsel, and the poor will be left to accept whatever pitiful morsels the County Attorney chooses to mete out to them.

Small Town Justice

Adam and I just received another graduate degree in small town justice. In a summary judgment hearing in a small county court, the judge didn’t even try to disguise his bias, acknowledging on the record that his upcoming decision against our clients would almost certainly be bounced back by the appellate court. So why go there in the first place? The answer is actually very simple. In small counties, everyone of significance knows every other person of any significance in the county. And not just peripherally. Going back many generations, families intermarried, fellow elders in the First Baptist Church, wives best friends. So making a ruling in favor of your local heroes ingratiates you to the the leadership of your community, a factor that is particularly important in election years. Sure, the big-city boys on the appellate court will get it all wrong and overrule the local wisdom, but by golly, Bobby, I stood up for you. Now my hands are tied. It’s all just part of the game that passes for justice in these small towns, a game they never manage to teach you in law school.

Oh, well, we will win the case in the end, and if we get lucky, we might even be able to force the trial back to Harris County, where the Law still means something to judges. In the meantime, I guess I can just chalk it all up to more fodder for the next Claire Tulley book…


Criminal Recklessness or Criminal Negligence?

Mens rea is a critical element of most crimes. In Texas, the four key forms of mens rea are intentional conduct, knowing conduct, reckless conduct and criminal negligence. The first two forms – intentional and knowing conduct – are generally obvious from the nature of the crime itself. If I walk up to you with a gun, put it to your head and pull the trigger, it should be obvious that I “intended” to do so. Similarly, if I point a gun into a crowd of people and pull the trigger, no one would argue that I didn’t “know” that someone would likely be injured or even killed.

Where we run into trouble is when the mental state of the actor is not obvious, but must be deduced by examining their actions in context. If someone is driving wildly on the road, flipping lanes at high speed, surely all of us would say he was acting “recklessly”, in both the normal use of that word as well as the legal definition.

But what about when the “reckless” conduct is not so obvious? Where exactly do we draw the lines between “recklessness” and “criminal negligence”?

The following is an excerpt from a motion for a new trial I am filing tomorrow that discusses how the Texas Court of Criminal Appeals has addressed this issue. At the heart of this discussion is the case Williams v. State, 235 S.W.3d 742 (Tex.Crim.App. 2007). In Williams, a mother left her children in the care of her boyfriend while she went grocery shopping. Being poor, Williams could not afford electricity, and her children were afraid of the dark, so she left a candle burning in their room. The candle ignited a curtain, a raging fire broke out, and the children were killed. Williams was convicted of the criminal offense of reckless injury to a child. The Court overturned this conviction, and in the process established the existing baseline for proving whether behavior is “reckless”, “negligent”, or simply tragic.

The fundamental problem manifested in the State’s failure to properly designate which conduct it construed as “reckless”, and compounded by the State’s assertion during rebuttal that Defendant’s failure to instantly exit her vehicle constituted “recklessness” under the law, is that such actions served to confuse the issues of “recklessness”, “criminal negligence” and simple “negligence.” The Texas Supreme Court addressed the issue of awareness of risk in the case Transportation Ins. Co. v. Moriel, involving the imposition of punitive damages in the context of bad faith insurance litigation. “Determining whether an act or omission involves extreme risk or peril requires an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight. In every negligence or gross negligence case, some injury has allegedly occurred. However, the magnitude of the injury may be entirely disproportionate to the riskiness of the behavior. For example, inadvertently dropping a wooden board into the metal hold of a ship may constitute negligence, but cannot be gross negligence. This is so even though the board, upon landing, triggers a Rube Goldberg chain reaction, eventually causing the whole ship to explode.  See In re Polemis, [1921] 3 K.B. 560. If somebody has suffered grave injury, it may nevertheless be the case that the behavior which caused it, viewed prospectively and without the benefit of hindsight, created no great danger. In such a case, punitive damages are not appropriate. In summary, the definition of gross negligence includes two elements: (1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.” Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994).

Addressing the distinctions between recklessness, criminal negligence and simple negligence, the Texas Court of Criminal Appeals cited Moriel extensively in the case Williams v. State, involving whether the Defendant was reckless in leaving her children in the care of another while she went to the store. In Williams, a candle that was left burning in the children’s room started a fire that resulted in the death of the children. The Williams court held that the Defendant was not guilty of recklessness, explaining:

Criminal recklessness must not be confused with (or blended into) criminal negligence, a lesser culpable mental state. With criminal negligence, the defendant ought to have been aware of a substantial and unjustifiable risk that his conduct could result in the type of harm that did occur, and that this risk was of such a nature that the failure to perceive it was a gross deviation from the reasonable standard  of care exercised by ordinary people. Tex. Penal Code § 6.03(d). Criminal negligence depends upon a morally blameworthy failure to appreciate a substantial and unjustifiable risk while recklessness depends upon a more serious moral blameworthiness—the actual disregard of a known substantial and unjustifiable risk.

At common law, “the word ‘reckless’ or ‘recklessly’ was commonly used in expressing the concept of criminal negligence.” Rollin M. Perkins and Ronald N. Boyce, Criminal Law 849 (3rd ed.1982). However, Professor Perkins notes that, in most modern penal codes, the two concepts have been distinguished and separated: “recklessness” and “criminal negligence” represent different mens rea concepts —– [but they] have one component in common. Each requires conduct which represents a gross failure to measure up to the reasonable-person standard of care. Assuming such conduct, if the actor was aware of the risk he was creating, and consciously disregarded that risk, however much he may have hoped that no harm would result, he was acting recklessly. Id. at 850. Thus, “[a]t the heart of reckless conduct is conscious disregard of the risk created by the actor’s conduct[.]” Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim.App.1975). As has often been noted, “[m]ere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the consequences may happen to be,” do not suffice to constitute either culpable negligence or criminal recklessness. People v. Carlson, 176 Misc. 230, 26 N.Y.S.2d 1003, 1005 (N.Y. County Ct.1941). Recklessness requires the defendant to actually foresee the risk involved and to consciously decide to ignore it. Cannon v. State, 91 Fla. 214, 107 So. 360, 363 (Fla. 1926).  Such a “devil may care” or “not giving a damn” attitude toward the risk distinguishes the culpable mental state of criminal recklessness from that of criminal negligence, which assesses blame for the failure to foresee the risk that an objectively reasonable person would have foreseen. Tex. Penal Code § 6.03(d). “Those who are subjectively aware of a significant danger to life and choose, without justification, to engage in actions (or in some cases inactions) that threaten to bring about that danger have made a calculated decision to gamble with other people’s lives.” James Gobert, Searching for Coherence in the Law of Involuntary Manslaughter: The English Experience, 6 Crim. L.F. 435, 454 (1995). This combination of an awareness of the magnitude of the risk and the conscious disregard for consequences is crucial. “It is callous disregard of risk, and not awareness vel non of risk, however, which is critical.” Gobert, at 461. And, of course, determining whether an act or omission involves a substantial and unjustifiable risk “requires an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight.” Transportation Ins. Co. v. Model, 879 S.W.2d 10, 23 (Tex. 1994).

Whether a defendant’s conduct involves “an extreme degree of risk” must be determined by the conduct itself and not by the resultant harm. Nor can criminal liability be predicated on every careless act merely because its carelessness results in death or injury to another. People v. Sikes, 328 Ill. 64, 159 N.E. 293, 297 (Ill.1927).

In addressing the sufficiency of evidence to prove criminal recklessness, it is not enough to provide the jury with a set of legally correct definitions and then simply turn them loose and accept whatever they decide. Instead, there are “intermediate and progressively more demanding burdens of production that must be met by the State, as a matter of law, before the fact-finding process is even ratcheted up from one to the next higher level of possible culpability[.]” Pagotto v. State, 127 Md.App. 271, 732 A.2d 920, 924-25 (1999) The State cannot be permitted to submit its case to the jury unless it has offered a prima facie case of a defendant’s actual, subjective “disregard of the risk of a resulting [injury] which … rise[s] to the level of a ‘gross deviation’ from an ordinary standard of conduct.” Crume v. State, 658 S.W.2d 607, 609 (Tex. Crim.App. 1983). The incremental risk and mens rea that may transform mere civil negligence into criminal negligence and then possibly into criminal recklessness are, although elusive, substantive elements with unique burdens of production that must be satisfied as a matter of law.

Williams v. State, 235 S.W.3d 742 (Tex.Crim.App. 2007)

Applying this reasoning to the facts of the case, the Williams court found:

[E]ven though appellant’s act of leaving the girls with a lit candle in the room under the care of Bowden may have, in a “Rube Goldberg” chain of events, ultimately led to their demise, “it may nevertheless be the case that the behavior which caused it, viewed prospectively and without the benefit of hindsight, created no great danger.” Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994). Here, as in Moriel, the task in evaluating legal sufficiency of the evidence to support a finding of “gross negligence” for civil lawsuit purposes (or “recklessness” for criminal liability) is to “determine whether the proffered evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” 25.Appellant cannot be liable for a reckless injury to her children unless she was actually aware, at the time she left, of a genuine and unjustifiable likelihood of serious harm to her children from leaving a lit candle in the bedroom while her children were under Bowden’s care. Id. Here, as in Moriel, the evidence does not support (1) the inference that appellant had any subjective awareness that her children would probably suffer serious bodily injury because of the lit candle in the bedroom while under Bowden’s care, or (2) the inference that appellant’s action of leaving the children under Bowden’s care with the lit candle in the bedroom created a risk of serious harm to those children. <em>Id.</em> Appellant’s mother’s warning was too general and unfocused to suffice to raise a jury issue on either of these prongs. Here, as in Jones, Riggs, Owens, and McLaughlin, the warnings given were too general and unfocused to establish that (1) the mother was subjectively aware of the risk of a deadly accident, and (2) her actions created a severe risk that such an accident would occur. State v. Jones, 151 S.W.3d 494, 497-501 (Tenn. 2004), State v. Riggs, 2 S.W.3d 867, 868, 872, 875 (Mo.Ct.App. 1999), State v. Owens, 820 S.W.2d 757, 760-61 (Tenn.Crim.App.1991) , State v. McLaughlin, 42 Or.App. 215, 600 P.2d 474, 475-77 (1979).

As the court of appeals noted in this case, criminal prosecutions for tragic accidents are inherently troubling. Williams, 190 S.W.3d at 717.  They are also rare.

Although we agree that “the decision to file criminal charge[s] is justifiable in cases involving gross negligence because of its deterrent and expressive effects[,]”the specific acts alleged and proven by the State in this case do not support a finding of such gross negligence amounting to recklessness on appellant’s part. Collins, 100 Nw. U.L.Rev. at 811. In the vast majority of cases, the issue of whether the evidence supports a finding of culpable recklessness is a question for the jury. But on occasion it becomes a question of law. If the acts themselves do not pose a “substantial or unjustifiable risk” that the harm will occur, or if that “extreme degree of risk” was not actually foreseen by the defendant, or if the defendant’s conduct was clearly not sufficient, by itself, to result in the injury but the conduct of another was clearly sufficient, then the evidence is not legally sufficient to submit the case to a jury or to sustain a conviction. We do not sit as a “thirteenth juror” and disagree with the jury’s finding that the appellant did the very acts that the State alleged she committed. The jury followed the law as it was given to them. But the State’s allegations of the purportedly reckless acts committed by appellant are simply not acts that, viewed objectively under these particular circumstances, involved “an extreme degree of risk, considering the probability and magnitude of the potential harm to others.” Moriel at 25. Appellant may have been a “bad” mother, unworthy of her mother, her children, and her boyfriend, but she did not commit the crime of reckless injury to a child merely because she took her children from a house with utilities to one without utilities, and left them, under the care of a responsible adult, with a lit candle in the bedroom.

In this case, the evidence of a criminally reckless mens rea and causation were legally insufficient to sustain appellant’s conviction. We thus reverse the court of appeals and order an acquittal.

Williams v. State, 235 S.W.3d 742 (Tex.Crim.App. 2007)

Medical thievery: In-network ER services billed as out of network

A new story out in the Austin Statesman addresses one of the new tricks insurers are using to avoid paying for otherwise valid hospital claims. What makes this particularly outrageous is the fact the most ER visits are by their nature critical in nature, so patients are unable to “shop around” to make sure they are getting the best price and insurance coverage. What’s worse, most hospitals refuse to disclose their prices up front, even when asked, and later sue patients for poorly-defined expenses under the legal concept of “quantum meruit”. We are currently contesting one such claim where the hospital insists our client should pay $15,000 for one minute of ER time!

Many in-network ER services billed as out of network
Contractors often are not part of an insurer’s network.
AUSTIN — When Terry Combs suffered a stroke the day before Thanksgiving of 2011, he and his family felt reassured knowing that paramedics had rushed him to a hospital in the network of their insurance company.

So it was a shock when the Dallas-area facility sent the bill a few days later: Combs had been treated by emergency room staff on contract with the hospital, with no tie to its network agreements. He had been charged as an out-of-network patient — at a rate several thousand dollars higher.

“When I saw the bill, I just about had a second stroke,” said the 64-year-old retired high school science teacher, adding that he fought the charges for a year before realizing he had no hope of winning.

Such stories are common in Texas, according to a recent report released by the Center for Public Policy Priorities, a liberal-leaning think tank in Austin.

About half of charges billed by doctors at an emergency room of a hospital in a network of one of Texas’ three largest insurers are billed as out-of-network services because the doctor is contracted, the report found.

For the state’s second-largest insurance company, UnitedHealthcare, more than two-thirds of ER charges at in-network hospitals are billed as out-of-network, according to the report. And nearly half the hospitals technically in that network have no in-network ER doctors.

“Even if you are a very sophisticated customer and try to choose hospital ‘A’ over hospital ‘B’ based on network, you can’t control who sees you,” said Stacey Pogue, the report’s author. “It’s a total roll of the dice.”

The report provides an unusually numbers-based look at a long-standing problem that patient advocates say is getting worse.

Health insurance companies are increasingly focused on offering network coverage in which certain providers agree to accept discounted rates for services. Hospitals and the doctors with whom they contract strike separate agreements, often with different insurance companies, but patients still tend to think of all hospital staff as bound to the same billing practices.

That can leave unsuspecting patients with a large gap between what the contracted provider charges and what the insurance company agrees to pay. The patients are ultimately responsible for the gap, called a “balance bill.”

Balance billing has been scrutinized in recent years, with Texas lawmakers acting to add transparency and some mediation rights for patients.

New regulations for hospitals and insurance companies to disclose more information about network agreements allowed the think tank to do its analysis.

The analysis uses the most recent information on the websites of the three biggest insurance companies in the state: Blue Cross Blue Shield, UnitedHealthcare and Humana. Most of the data was from 2013, although Humana’s numbers were from 2012.

Among other findings, the analysis highlighted how emergency room patients are the most common victims of balance billing.

Unexpectedly high charges can come after planned procedures, especially if a patient goes to see an in-network primary care doctor without realizing a specialist needed during the visit is out of network.

But it is in ERs, where patients have the least ability to call ahead to find out if doctors are in network, that have the highest rates of out-of-network staff, according to the report.

Trey Berndt, a lobbyist for the Texas chapter of AARP, called the report “alarming.”

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