posted by Justin C. Leto

 

At what point does the media’s coverage of our courtrooms become so fanatical and outrageous that is endangers our entire system of justice?  The answer is now, today, as we speak.

 

The recent trials of Casey Anthony, Jodi Arias and George Zimmerman have turned our news outlets into something that even the daytime soap opera writers would scoff at.  Instead of covering the trials and providing us, the viewers, with sound legal analysis and perspective, the media and its so-called legal experts have lowered itself and themselves and become an outlet to create juror bias and witness intimidation.  Never has this been more apparent than the George Zimmerman trial and its aftermath.

 

Realize, I am not offering any comment or opinion on the outcome of the trial.  That is for each person to analyze personally and that is not the reason for this blog.  Instead, my commentary and concern is the way in which the media has invaded the personal lives of unwilling trial particpants in order to turn a profit.

 

Case in point, number one, is the treatment of Rachel Jeantel.  As a lawyer, I just assumed that everyone watching this trial, including the media and its lawyer talking heads, would understand that Rachel Jenteal was not in that courtroom because she wanted to be there.  Instead, she was forced to be there as the State of Florida’s star witness against George Zimmerman.  As a matter of bad luck, Ms. Jeantel happened to be talking to her friend, Trayvon, when he was shot and killed.  And as a result of being the last person to talk to her friend before he died, she was thrust into the spotlight without any way to protect herself from the vultures that were coming to peck away at her character and attempt to destroy her life.

 

This girl is a teenager.  She is, for all intents and purposes, a kid.  Yet, the media has taken every opportunity to label her as stupid, unpolished, uneducated, and homophobic.  For example, a recent headline of Drudge Report reads “JEANTEL WARNED ZIMMERMAN COULD BE GAY RAPIST–TRAYVON: NOT THAT KIND OF WAY ”  The article goes on to insinuate that this teenage girl is some type of homophobe that believes that strange men are out to rape children.  First of all, that is not what she said.  And second of all, why is Matt Drudge so insistent on tearing this girl to shreds?  What do he, and others that have railed on her, have to gain from trying to destroy this girl’s life?  Is it for ratings?  Is it because Matt Drudge and Sean Hannity and Rush Limbaugh are so aligned with the plight of Geroge Zimmerman that they feel the need to take this otherwise private citizen and excoriate her in the national headlines?  Whatever the reason, I see no justification for it.  In fact, my fear, as a lawyer, is that actions like this by the media will act to infiltrate the very core of our justice system and encourage important witnesses to stay quiet.  Why would anyone that has important information in a legal case come forward if they know there is a chance they could be torn down in such an evil and hate-filled way?  Even Piers Morgan, who I expected to be a bit more sensitive to Rachel Jenteal, asked her in front of a live studio audience how she felt about being called uneducated and stupid.  Rachel looked like she was holding back tears when that was asked and I found it despicable.  For the treatment of Rachel Jenteal, shame on the media.

 

Next, there is Don West’s daughter, another teenager that is being unnecesarily assaulted in the media.  Why?  Because she posted a picture of her and her Dad (George Zimmerman’s lawyer) having ice cream after a day of trial  (for those of you unfamiliar, Don West is George Zimmerman’s lawyer that looks a bit like Walter White from Breaking Bad; compare here and here).  And because she was proud of her Dad, she wrote that her Dad was “killing it” in trial under her caption.  Sure, that is not the best choice of words during a murder trial, but she is not part of the trial.  That was her personal facebook or instagram account and the media has no right to invade the privacy of a lawyer’s family (especially their children) just because that lawyer has the courage to defend someone in an incredibly public trial.  This is another kid that the media saw fit to excoriate all in the name of upping their ratings.  Just as the treatment of Rachel Jeantel may discourage other important witnesses from coming forward in the future, the treatment of Don West’s daughter may make a lawyer in a future high profile case to think twice before representing a client due to fear of how the media will attack that lawyer’s family.  For the treatment of Don West’s CHILD, shame on the media.

 

And lastly, there are the media talking heads that are lawyers by day and television personalities by night.  At one point, I made appearances on Fox News and HLN and CNN.  However, my publicist starting telling me that the networks wanted me to take a position that was contrary to my belief system.  There were times when I was told I could only appear on TV if I would advocate for a position that I did not truly believe in.  I never bowed to that pressure from the producers and, as a result, I stopped making television appearances.  Now, I watch these folks on TV and it just infuriates me.  They do not even try and hide their bias for one side of the case.  It is as if the TV camera in their face has hyponotized them and made them lose touch with the realities that exist in our great system of justice.  And I am talking about the guests, not the hosts.  When you listen to the hosts, the level of disgust just goes up higher.  Between Vinnie Politan, Jane Velez Mitchell, Sonny Hostings and Nancy Grace, you have the very worst kind of legal soap opera.  Each of them is so much more interested in outdoing the other in high dramatics that they have completely forgotten about the fairness of a trial, innocent until proven guilty, and the rights of the accused.  And their behavior has gotten so out of hand that I worry they are infecting our future jurors.  People who watch these folks and listen to their mantras may actually believe that what they are saying has validity when, in truth, there is virtually nothing valid that comes out of their mouths.  They do a great disservice to our system of justice by making unbridled attempts to influence our juries and intimidate our witnesses.  Throughout the entire Casey Anthony trial (where the jury was not sequestered) it was as if these hosts were just praying that some jurors would violate their oath and listen to HLN so Vinnie, Jane, Sonny and Nancy could act as a side-show prosecution and influence a guilty verdict.

 

Overall, this blog (which has digressed into a rant) is from a lawyer that truly respects this profession.  I do not practice in the criminal arena but I think the actions of the media reach far outside just the criminal justice system.  They affect the way every day people view a trial and a courtroom and a judge and a lawyer.  Their actions will have a profound effect on our system of justice and, at this point, the only way to stop it is to stop watching.  I admit, I tune in.  But I must stop because the only way to prevent the continuing perversion of our justice system is to just turn these talking heads off.

 

Written by Justin C. Leto

 

Medical Malpratice lawyers, hospitals, doctors and insurers are eagerly awaiting the Florida Supreme Court decision in the case of McCall v. United States.  In that case, the Court has been asked to decide whether Florida’s caps on pain and suffering damages are unconstitutional.  Presently, Florida Statute section 768.118 sets forth the maximum amount of money an injured plaintiff and their family may receive for pain and suffering following a medical malpractice incident.  In McCall, the Court has been asked to review the statute to determine whether it is constitutional or whether Florida’s caps on damages should be eliminated.

 

The Court has not yet issued its opinion, but a recent opinion from the Court may signify how the Court will ultimately decide the issue.  The case is Samples v. Florida Birth Related Neurological Injury Compensation Association.  As a brief background, Florida has established a system to compensate children who suffer neurological injuries during the birthing process.  If a child suffers a brain injury or other neurological injury during birth, the child and their family cannot sue the doctor or hospital.  Instead, the family is limited to recovery under the Neurological Injury Compensation Association, known as NICA.  NICA is a state run association that provides compensation to victims of birth related injuries regardless of whether the doctor or hospital is at fault for the injuries.  In establishing NICA, the Florida Legislature decided that it was best to provide a no-fault system of compensation for injured babies instead of allowing the children and their families to utilize the civil justice system to seek compensation.

 

Under NICA, the child is provided money over time for care and treatment of the birth relates injury.  Further, NICA provides the parents with $100,000 as a maximum compensation for their pain and suffering.  The statute provides that the award of $100,000 is a maximum, regardless of whether there is one or two parents.

 

In the Samples v NICA case, the parents of a brain injured child challenged the constitutionality of the statute because it provides unfair and unequal compensation to families with two parents versus families with only one parent.  Under the sensible analysis set forth by the Samples, if there is a one-parent home, that one parent recieves $100,000 for their pain and suffering.  However, if there are two parents, and the parents are divorced, each parent is limited to $50,000 (or whatever apportionment the Administrative Law Judge deems appropriate).  This, in the Samples view, is a violation of the Equal Protection Clause of the Constitution.

 

In analyzing this case, the Florida Supreme Court reviewed the reasoning of the 5th District Court of Appeals in holding that the statute was constitutional.  The Florida Supreme Court identified all of the reasons why the 5th District found the NICA statute constitutional, as follows:

 

“The Fifth District then denied each of the Samples’ constitutional claims, holding that the parental award provision: (1) does not cause disparate treatment among similarly situated persons and—even assuming discrimination did exist—is rationally related to the State’s legitimate interest in maintaining the actuarial soundness of the Plan, id. at 25-26; (2) “is sufficiently clear in its intent to provide no-fault economic compensation to parents” and thus allows for an award to be split—if at all—”based on articulable economic reasons supported by detailed factual findings,” id. at 28; and (3) “provides both a reasonable alternative remedy and a commensurate benefit” to the Samples’ right of access to courts and is the only method of meeting the overpowering public necessity of ending the medical malpractice crisis.”

 

Ultimately, after a lengthy analysis, the Florida Supreme Court affirmed the decision of the 5th District and held that the monetary limitation for parental pain and suffering is constitutional.  But, it is the reasoning behind this holding that may give us a preview of how the medical malpractice caps on damages will be decided in the McCall case.

 

In Samples, the Court was certain to distinguish the NICA cases from other types of medical malpractice cases because of two factors: (1) NICA is a state run compensation association that relies on acturial soundness in order to successfully compensate children injured at birth, and (2) NICA is a no fault system, meaning there is never a determination that malpractice has occurred.  Instead, if you are injured at birth and qualify under all other NICA factors, NICA applies regardless of fault.

 

The key issue for the Court to decide was whether the limitations in NICA were rationally related to a state interest.  In the past, whenever the Courts have held that a malpractice limitation on damages was constitutional, the “rational basis” has been the existence of a “medical malpractice crisis” which needed to be fixed.  Although the studies all conclude that there is no “malpractice crisis” in Florida, this remains the key basis cited by Florida courts in holding that caps on damages are rationally related to a state interest. That is what makes the Samples case so intriguing.

 

As is shown in the quote above, the lower appellate court found the “malpractice crisis” to be a rational basis to find NICA’s caps constitutional.  But the Florida Supreme Court never addressed this basis.  Instead, the Florida Supreme Court held that NICA’s damage caps were rationally related to the legitimate state interest of providing an actuarial sound system for compensating neurologically injured children.  The fact that the Court was completely silent as to whether there is a “malpractice crisis” leads me to believe the Court rejects this reasoning.  In fact, one of the major points of contention in the oral argument in the McCall case was whether such a “malpractice crisis” even existed at all.  Proponents of the caps (insurance companies, doctors and hospitals) all argued that the “malpractice crisis” is prevalent and detrimental to Florida.  However, challengers of the caps (victims of medical negligence, advocacy groups, the Florida Justice Association) all presented actual data which showed that no such “malpractice crisis” existed and that it was all a farse created to deprive injured people from fair compensation.

 

While there is no way to predict with any certainty what the Florida Supreme Court will do with the medical malpractice caps, their silence on the medical malpractice crisis gives me hope that they will ultimately hold that caps on medical malpractice damages are unconstitutional.