Tuesday, September 22, 2009

Historic Photos of Puget Sound


Turner Publishing Company has listed my Historic Photos of Puget Sound in their shopping cart and you can order it now by clicking on the link.

My own copies are in and they are beautiful. The publisher is arranging local media interviews and a launch party. Stay tooned.

Friday, September 18, 2009

Termination

I just concluded almost three weeks of trial to terminate the parental rights of a father whose three children were removed from the home (a cheap motel room) three-and-a-half years ago. Well, two were removed. The third was born during the dependency and she is now two-and-a-half. This has been an amazingly complex case that has surprised everyone with its twists and turns ("Oh, THAT case") and has churned through seven or eight social workers, fifteen or more different public defenders and retained counsel, several dozen hearings, and two trials. At one time there were six children, nine assigned lawyers, two social workers, two mothers, four fathers, one Indian tribe... and one volunteer CASA, me. Imagine the public payroll for just one court appearance.

The number of parties dwindled as one child and his tribe were dismissed out of the case, one mother and two fathers had their parental rights terminated (the parents didn't show up in court), and another child found her biological father. That left two boys and one little girl with one father.

The dependency system is set up to return kids home if the parents work to alleviate the conditions that led to state intervention in the first place. In this case two of the children were abused and they all had been exposed to domestic violence. When the kids came into care they were all revealed to have special needs, particularly developmental delays. The State will pay for things like parenting classes, psychological evaluations, domestic violence intervention, therapeutic child care, special ed classes, drug and alcohol evaluations and rehab, and whatever it takes to return the kids home not take them away. But the parents have to cooperate. In my very first case the mother was a junkie, but she got sober and won her son back. In another it took the mom five years to get her psychological stuff together enough to be a parent again. Unfortunately some people just never get it because they relapse or their mental health issues prove overwhelming. I seem to always get the mental health issues. Bipolar disorder, anti-social personality disorder, even personality disorder not otherwise specified, just ask me.

So, for three and a half years the social workers in this case tried to steer the parents (those who showed up) to services. But the parents blew them off. Failure to complete the services within a certain period of time, usually eighteen months, is grounds for the worker to petition the court to have parental rights terminated. Kids cannot languish in foster care, even relative care, indefinitely. For a child in care, time is the enemy.

Part of the case involved the paternity of the little girl born ten months into the process. The mother named a mystery man as the father and denied that her partner and the the father of two of her children was the father. He denied it too. Until the little girl was almost two-and-a-half. Then he raised his hand and said I'm the guy and I want her back. The state said prove it, but we're not paying. He paid $510 and proved he was the dad. The state still wanted to terminate his parental rights as well as those of mystery man. I agreed.

Through all the the hearings (many of them continued, meaning oops no court today, come back another day), the different judges and commissioners, the substitute lawyers, the newly-assigned social workers, the flurry of letters to the parents reminding them of services, and the lies and evasions there was one constant, me, the volunteer CASA whose job it is to speak for the children. At one hearing the judge and the lawyers turned to me for answers on the status of the case and the most recent court orders. Me, a volunteer. I had the answers for which I am paid mileage.

The last barrier to permanency for the three youngest children was termination of the parental rights of the father, a convicted felon, registered sex offender, documented batterer ("dangerous to his family and the community") and walking advertisement for the need for anger management. Some parents agree to have their rights terminated in exchange for open adoptions. In those cases the biological parents get to keep in touch with the children while the adoptive parents do the heavy lifting of raising the children. But the parents usually have to admit that they have been poor parents and cannot overcome their deficiencies. No one in this case was about to admit that and certainly not this father.

I have an amateur theory about these parents. They are generally from the lowest income levels and suffer from an array of psychoses from substance abuse to mild disorders to serious mental health issues. When pulled into court they are entitled to public defenders at no cost (even those with jobs get free legal help) and these clients discover that they have rights. They interpret "rights" as "power" and play it for all that it is worth. Instead of cooperating for the benefit of their children they use their rights/power to fight every inch of the way.

Trial

To terminate the parental rights of this father we had to go to trial. I, as the Court Appointed Special Advocate (Guardian ad litem) am a party to such an action and I appear as a witness. As luck would have it the trial began as the long trial in which I was a juror was wrapping up. I missed the first day and a half of the termination trial.

Just a week before the trial was scheduled to begin, the father fired his public defender (who is quite good) and hired his own lawyer. Did I mention he had anger management issues?

Interestingly, in these cases, the first witness called by the state is the parent himself. You would think that would not come until the defense put on its case, but this was a civil case. The Assistant Attorney General questioned the father, but his time on the stand was broken up several times over many days to bring in other witnesses who were scheduled. Some witnesses testified in person and some appeared by phone (the judge tells the person to raise his or her right hand). When done each time, the father went back on the witness stand.

The court hears testimony four days a week leaving Fridays for sentencings and hearings. The lawyers expected the trial to last seven or eight days. Then the judge got sick two days and and things spilled over into week three. After two weeks of jury duty and more than two weeks of trial I was getting pretty familiar with the courthouse and lunch places nearby.

I testified about day five. I am comfortable on the witness stand, having been sworn dozens and dozens of times starting with traffic court in 1969. I have testified before the Queen's Bench in Canada and before a Congressional committee. And I still clean up pretty good. Not that the judge much cares. She is trained to look at the evidence, not the shine on my shoes. Still, it feels good to put on a professional face with a suit and tie. I testified how the father was always angry, to how he stomped out of a hearing calling everyone "kidnappers", and how he dismissed advice from experts who evaluated his sons as developmentally delayed.

In his defense the father pulled in the mother who had fled the state and had her rights terminated for not showing up. At first he didn't know where she was, but when the judge pushed he had her there in twenty-four hours. She lied on the witness stand, but she always does that. We got in all our evidence and adjourned to get the judge's verdict after lunch.

Usually, in handing down a ruling, a judge will start with comments to the opposite of where the ruling is going. I expected things like, "the father really loves his children," or "the father has been remarkable faithful in attending all court dates." Not so this time. She launched into what a sad case this is and how many times the father blew off his services. It took forty-five minutes for her to comment and then to read an eighteen-page order of findings of fact and conclusions of law.

What now?

So the kids are "legally free" and living in prospective adoptive homes where they have been thriving. The six-year-old says he wants to stay there. The ten-year-old half brother now in a group home wants to live with his younger brothers.

Happy ending? Not yet. The state is required to consider placing the children within the extended family. The kids could still be pulled from the only stable homes they have ever known and placed with "relative" they do not know. With the State of Washington headed in that direction the only voice for the children is a volunteer, me.

Stay tuned.

Saturday, September 12, 2009

We Have a Verdict


I have been thinking a lot about my jury experience. The testimony, etc. lasted the best part of ten days. At ten dollars day, I made one hundred dollars. The lawyers and the plaintiff made much, much more.

Ours was a medical malpractice case. A surgeon mistakenly cut a nerve which was in an unexpected place (no it wasn't the plaintiff argued). He attempted a repair (no he shouldn't have the plaintiff argued), but the outcome was poor to moderate and the patient ended up with impaired speech and swallowing, devastating to a woman in show business and with an active social life (not so bad the defendant argued).

We listened to surgeons describe their experience and education. and they described procedures and anatomy and something called the "standard of care." As many as five percent of patients experience some nerve damage and this patient, an operating room nurse, was aware of the risks. But the procedure promised to prevent a stroke and to save her life.

On top of all the medical evidence we had to sit through a parade of friends and colleagues testifying how the injury ruined her life and her career. An expert projected her medical costs. An economics professor project her past and future lost income. She testified and we heard her slurred speech. The surgeon testified and we heard his sincere regret. The lawyers introduced hundreds of pages of her tax records to show how much money she made and could have made. Her monthly planner showed how her life has not slowed down since the injury. Veins are blue and nerves are white. Not always. Back and forth the assertions and arguments flew.

Every day, I caught a bus at 8 a.m. to get to the courthouse by 9:00. I filled two steno pads of notes. Other jurors took even more notes.

The lawyers were all very good and it was clear they had invested a great deal of time and money in their cases. The computerized audio-video system allowed them to quickly punch up power point slides, pages from text books, photographs, documents, and video clips. It worked efficiently indicating extensive rehearsal. It's show business after all. We heard from twenty-nine witnesses. The documentary exhibits filled three large loose-leaf binders.

Deliberations

We got the case on day nine and I volunteered to be the "principal juror." I'm a recovering bureaucrat and can keep meetings on track pretty well. On the jury form we had to determine if 1) the standard of care was violated, 2) the violation was the proximate cause of the injury, and 3) any damages. If we answered no to the first question, the case was over. If we answered no to the second question, the case was over. If we answered yes to 1) and 2) we calculated damages.

It was a good, balanced group. Ten men and two women, a couple of retirees, several corporate employees whose companies allowed them time off for jury duty, and some civil servants. One man was a veteran of World War II. Another showed elaborate body art reflective of Generation Y. Two jurors were foreign-born.

We voted on the original injury and came down seven to five that the standard was NOT violated. I was one of the seven. We needed ten for a verdict. After discussion it was obvious that no one was willing to budge on that. So I moved the topic to the repair of the injury. This was seven to five that the standard WAS violated. I was one of the seven.

We hashed it around and slowly it came down to ten to two against the defendant because the surgeon had the opportunity to get expert help in repair of the nerve. We felt he should have asked for help and an expert was right next door. We never resolved the issue of the cutting of the nerve. Then we had to determine proximate cause and we quickly found that the cause was there. On to question 3).

Damages

This tied up the rest of the day and brought us back in the morning. We took the economist's word that she lost money. We took the expert's word about future medical expenses. We argued a lot about how much future income was at stake and even reduced the economist's projections. It was still a lot of money and left her more than comfortable for the rest of her life.

Non-economic damages. Pain and suffering. Loss of enjoyment. Difficulty swallowing. Loss of a career she loved. All of us were totally offended by the requested amount, but there was little hard evidence to guide us. Here we had to project ourselves into her situation and here we disagreed the most. I came down at the low end of the range.

As the principal juror I had to make sure people spoke one at a time, to draw out jurors who tended to remain silent, and not dominate the deliberations myself. One end of the table tended to be more vocal. "I want to hear from this end of the table," I said several times. Once or twice people became testy, but I kept things civil. I used to attend meetings where people carried guns (which I taught them to use).

We finally came up with a number. I won't disclose it because then the number becomes the story and that's not my point here. It was way below what the plaintiff asked and, I learned later, way below what the plaintiff asked for in settlement negotiations.

The plaintiff did not attend the verdict, but the surgeon did. I didn't even wait to see the reactions of the players. As soon as we delivered the verdict and were discharged, I took off because one of my CASA cases had started the morning before and I needed to be there. But the experience stayed with me. It was a sad story all around. The surgeon was experienced, talented, and dedicated. He apologized for the mistake. It was just one of those things. The patient had a compelling life story. She was attractive, popular, and very good at what she did. She made a good living until things went bad.

Did I do the best job I could have? Should I have insisted we resolve the issue of the cutting of the nerve? Should we have spent more time on proximate cause? Did I compromise too much on my opinions in the damages? A surgeon's distinguished career has been tarnished, but the plaintiff's life was transformed by his decision. Would another surgeon have done any better? The experts disagreed, but we had to make a decision.

Things are always better in the morning and this is no exception. I suppose that there was nothing else I could do for any of the parties and the result was probably the same if they had just settled. The other trial quickly took my attention as I worked to find permanent and safe homes for three young children. Them I could help. As I write this, that case has stretched over two weeks and goes into next week.

For the CASA case I don't even get the ten bucks a day.

Sunday, September 6, 2009

Summons to Appear


About five or six times since reaching my majority I have received the annoying notice in the mail to appear for jury service. Since my first career was in law enforcement, this was generally unproductive. Cops and their kin are routinely dismissed from juries because of some belief that they cannot be fair and objective, an insulting prejudice.

While living in San Francisco, the dates to appear invariably interfered with some personal business. One time, we left a wedding reception on a Sunday afternoon in Santa Monica to drive 300 miles back to San Francisco in time for Monday morning. After all the waiting around and telephoning recorded messages, I got as far as a jury box to be questioned by counsel. On an assault case (homeless person punching a blood bank employee) I was excused after explaining that I had "been in lots of fights." In an asbestos liability case I explained that was responsible for the largest asbestos prosecution in U.S. history, I was the only one in the courtroom who could pronounce mesothilioma, and I had past dealing with one of the defendants. Excused.

Lorraine has had a drivers license and voted every election for over forty years and has never received a single jury summons. Not one. Go figure.

When I moved to Seattle, the jury network must have somehow flagged my electronic dossier as one who appears and I received regular summonses from the county and the city. Last year, I was actually selected for a criminal case involving drugs (I was a narcotics agent for ten years). That was the first time I actually sat through a case. We returned a verdict of guilty (there was no real defense), but the process tied up two or three days.

One year later, another summons arrived for August. I cleared my calendar and arranged to be home from vacation in time to catch a bus Monday morning in time to be there by 8:00 a.m. The summonses come with a bus pass (one way) and a juror badge with a bar code. You walk into the jury assembly room and the worker scans you in and directs you to fill out a short bio form. The assembly room is like any waiting room, but with television monitors everywhere, a kitchenette, and a lunch area. A smaller waiting room to one side was built, I think, when they allowed smoking in public buildings, but serves now for people who need to make phone calls. We heard that most of those summonsed do not respond.

On Monday mornings the room fills up with those willing to do their civic duty reading, sipping coffee, snoozing, tapping away on laptops or PDA until the ubiquitous orientation tape runs. Then one of the judges stands up and gives us a pep talk. Next comes the list of names to draw numbers and be dispatched to courtrooms. Those not called continue to sip, read, snooze, tap, and chat. It's a pretty well-organized system and its designers are conscious of the contribution being made by citizens for ten bucks a day. Ten bucks. It just covers a good lunch in downtown Seattle and in no way compensates for any lost wages. The state legislature has had many opportunities to change this, but has found other priorities to fund.The County does pop for bus passes or mileage.

Those whose names are called assemble on the designated floor. In the elevator lobby the bailiff lines us up by number and files us into the courtroom where lawyers and parties look at us with a mixture of curiosity, anxiety, and anticipation. My group numbered thirty-nine. The first fourteen fill the jury box and the rest of us take seats on the spectator benches.

Our case was a civil case. No prosecutor and cops to justify being dismissed. The judge introduces himself and the lawyers and the plaintiff and the defendant. We learn this is a medical malpractice case and will last a couple weeks. This will prove to be a problem for me as I was set to begin a trial in my child advocacy job the following week.

Then each of the jurors is asked to stand and introduce himself or herself and answer a few simple questions about occupation, marital status, etc.The people at the tables include the now de rigueur jury consultant with a sheet of post-it notes, one for each potential juror. The consultant and the lawyer all note the answers to the judge's questions. He excuses jurors because they know the plaintiff and because of job conflicts and work history.

Alas, my prior law enforcement career, my child advocacy, my enrollment with the health plan being sued, and my pending trial are not enough to get me excused. I take a seat as juror number five and settle in for opening arguments.

Next: We Have a Verdict