A tattoo is not a legal document

According to a recent letter in the New England Journal of Medicinedoctors at Florida’s University of Miami Hospital had to decide whether an unconscious patient’s “Do Not Resuscitate” tattoo should be honored:

His anterior chest had a tattoo that read “Do Not Resuscitate,” accompanied by his presumed signature.  Because he presented without identification or family, the social work department was called to assist in contacting next of kin. All efforts at treating reversible causes of his decreased level of consciousness failed to produce a mental status adequate for discussing goals of care.

We initially decided not to honor the tattoo, invoking the principle of not choosing an irreversible path when faced with uncertainty. This decision left us conflicted owing to the patient’s extraordinary effort to make his presumed advance directive known; therefore, an ethics consultation was requested…

The doctors noted that “tattoos might represent permanent reminders of regretted decisions made while the person was intoxicated.”

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A few too many Duff beers, and this could happen to you.

The decision was subsequently reversed, however, with an ethics consultant determining that if the guy went so far as to get a tattoo reading “Do Not Resuscitate,” he really meant it.  And it turned out that he had filed a written directive confirming these instructions:

After reviewing the patient’s case, the ethics consultants advised us to honor the patient’s do not resuscitate (DNR) tattoo. They suggested that it was most reasonable to infer that the tattoo expressed an authentic preference, that what might be seen as caution could also be seen as standing on ceremony, and that the law is sometimes not nimble enough to support patient-centered care and respect for patients’ best interests. A DNR order was written. Subsequently, the social work department obtained a copy of his Florida Department of Health “out-of-hospital” DNR order, which was consistent with the tattoo. The patient’s clinical status deteriorated throughout the night, and he died without undergoing cardiopulmonary respiration or advanced airway management.

The physicians conclude, “this case report neither supports nor opposes the use of tattoos to express end-of-life wishes when the person is incapacitated.”

My own suggestion is that you draft (or have a lawyer prepare for you) a personal directive setting forth your wishes regarding treatment should you become incapacitated, and/or appointing a substitute decision-maker.  And make sure your close friends and family know where it is and what it says.

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How Jose Ines Garcia Zarate avoided a murder conviction

Garcia Zarate, an illegal immigrant who had already been deported several times, was acquitted of murdering 32 year-old Kate Steinle on a San Francisco pier, and the President of the United States is responding with his usual restraint:

 

Mind you, some anger is understandable considering that Garcia Zarate wasn’t legally in the country to begin with, and was arguably on the streets because of San Francisco’s “sanctuary city” policies:

The judge in the trial did prohibit discussion of Garcia Zarate’s immigration status and the mention that he was deported to Mexico, but returned to the U.S. five times. Instead, jurors were told to focus on the events surrounding Steinle’s death.

[…]

Garcia Zarate, who also used the name Juan Francisco Lopez Sanchez, had been deported five times before the deadly encounter. He had finished a federal prison sentence for illegal re-entry into the United States and was transferred in March 2015 to San Francisco’s jail to face a 20-year-old charge for selling marijuana.

But three months before the deadly encounter on the pier, Garcia Zarate was released after the district attorney dropped the marijuana charge — despite a request by federal immigration authorities to detain him for yet another deportation.

His immigration status, however, has nothing to do with whether he is guilty of murder.  Writing for the conservative site RedState, Sarah Rumpf explains why he was likely acquitted:

…The main issue is that the defense was able to present a credible case that the shooting was an accident, and the prosecution aggressively overplayed their hand. Add in a misguided police interrogation strategy and you have reasonable doubt…

[…]

…we have a defendant with zero connection to Steinle. He had a history of drug crimes but no known violent crimes. The bullet that killed Steinle hit the ground and then ricocheted upwards. There was a video possibly showing another group of people disposing of the gun where Garcia Zarate said he found it.

Reviewing the SIG Sauer website shows [the handgun used in this case, which had been stolen from a federal officer a few days before] cost $1,000 or more. You can see how defense counsel could easily argue that a homeless illegal immigrant would be unfamiliar with one.

All of this adds up to the defense presenting a plausible explanation for how Garcia Zarate could have fired the gun and killed Steinle by accident. That’s reasonable doubt. 

The prosecutors were under tremendous political pressure. People wanted Kate Steinle’s killer’s head on a platter, even before Donald Trump ever tweeted her name.

So it’s not that surprising that “San Francisco prosecutors told the jury that Garcia Zarate intentionally brought the gun to the pier that day with the intent of doing harm, aimed the gun toward Steinle and pulled the trigger,” as the Chronicle reported, adding that the Assistant District Attorney also “spent much of the trial seeking to prove the gun that killed Steinle couldn’t have fired without a firm pull of the trigger.”

This seems to be a classic example of prosecutorial overreach.They pushed hard for a first degree murder verdict, which requires not only proving that the defendant killed the victim, but that he did it intentionally, and that it was premeditated (planned or thought out beforehand). [emphasis in original]

For the record, Garcia Zarate was convicted of a firearms offence, and it will likely head to his deportation.  Again.

One quick but important note: Garcia Zarate is not going free. The jury did convict him of a lesser charge of being a felon in possession of a gun, and he now awaits sentencing, which will be 16 months, two years, or three years in state prison. He has already served two years and will get credit for that time, but even if he is not given the maximum sentence, there is an outstanding U.S. Marshals Service warrant against him, and despite the sanctuary cities policy, San Francisco apparently does turn over undocumented immigrants to the feds when they have a warrant. So he is either getting deported, or spending more time in prison first, and then getting deported.

This case does raise real concerns about American immigration and border policies – the very concerns that arguably got Trump to the White House.  It should not be an excuse for the President to call into question the integrity of his own country’s justice system.  But then again, look who we’re dealing with.

I’ll give federal prosecutor (and veteran blogger) writing under the name “Patterico” the last word:

…My gut tells me that prosecutors were handed a flawed case with a bad interview. Once the defendant has a lawyer appointed, deficiencies in the interview will never be clarified. I’m reluctant to play armchair quarterback from the comfort of my living room.

There’s plenty to be angry about here. San Francisco’s self-righteous sanctuary city policy clearly cost Kate Steinle her life. The man who handled the gun that shot her had no business being on the streets of San Francisco. He should have been deported, yet again. But thanks to leftist lawmakers, he wasn’t, and a beautiful young woman died as a result.

But that fact alone does not make this verdict wrong. Once you understand the law, it’s easy to see that the verdict may well have been correct.

The only undeniable crime here was committed by San Francisco leftist policymakers. If anyone needs to be held accountable now, it’s them.

 

Should your religion prevent you from adopting children?

It wasn’t too long ago that same-sex couples were denied the opportunity to open their homes to children who needed a family.  Now, the Alberta government is allegedly denying a couple the chance to adopt children because of their conservative Christian beliefs about homosexuality:

An evangelical Christian couple have filed a court application alleging the province discriminated against them based on their religious beliefs by rejecting their application to adopt a child.

The Edmonton couple — whose are identified only by initials in court documents — allege an initial recommendation they be allowed to adopt was revoked after “interference” by the Ministry of Children’s Services, and that they were told their religious beliefs related to gender and sexuality were contrary to the “official position of the Alberta government.”

“If we did not change our religious beliefs regarding sexuality, to conform to the beliefs of Child and Family Services, we would not be approved for adoption,” said the woman in an affidavit filed Nov. 1 with Court of Queen’s Bench in Edmonton.

The couple’s identities have been redacted from the documents filed in court, but a copy of a Safe Home Study Report completed in February 2017 describes them as employed, owning their own home and having happy and healthy family and community networks. They indicated they hoped to adopt a child, or up to three siblings, between the ages of seven and 17. The Catholic Social Services worker who prepared the report said in an email she was “pleased” to recommend them for adoption.

However, the report recommended a “homosexual child” not be placed with the couple because of an assessment that though they said would unconditionally love a child questioning or exploring their sexuality, they would not support the “lifestyle,” which could mean a child may not feel accepted.

[…]

During subsequent meetings with Catholic Social Services and Child and Family Services, the couple said they made it clear they would seek counselling and support if their child was questioning their sexuality, but they could not encourage a lifestyle that “we knew caused a higher proportion of anxiety, depression, and suicide attempts than other lifestyles,” according to the affidavit.

On May 3, the couple’s adoption application was officially rejected, according to court documents.

They are asking the court to rule that their rights were violated, and for an order that they be approved as adoptive parents.

While I do not share this family’s beliefs about homosexuality, I also don’t believe a person’s religious or political beliefs automatically make a home unsuitable for a child – especially when the alternative is for the young person to remain stuck in the foster care system.

Of course we’re only hearing the family’s side of the story, and we don’t know if there are other factors which call their ability to parent into question.  We’ll find out when the matter goes to court next year.  But I am extremely nervous about a government deciding that being an evangelical Christian – or a member of any other faith with conservative views on sexuality – renders you unable to adopt.

Everyone supports freedom of speech they agree with

While everyone argues about Masuma Khan’s anti-Canada social media postings, Dalhousie University’s investigation of same and the implication for freedom of expression on campus, I think they’re overlooking the real lesson of this mess.

Which is: vote in your student council elections.

As a proud UNB alumnus I can’t speak for the home of Atlantic Canada’s second-best law school, but I’m sure the overwhelming majority of students do not agree with Khan.  But she was elected fair and square, because most people simply couldn’t be bothered to vote.  This is why most university student unions are politically somewhere to the left of the Symbionese Liberation Army.

Now that she is being investigated by the school for expressing her opinion, this is a good test case to determine who really believes freedom of expression is sacrosanct, and who just supports it for their own side.  I was personally offended by much of what Khan wrote, but I believe this investigation is a travesty:

A Dalhousie University student is facing disciplinary action over a post she made to Facebook in the summer about Canada 150 celebrations.

Masuma Khan said she was given the option to undergo counselling and write a reflective essay after the Halifax-based school conducted an investigation into a complaint about her online comments, but she says she refused.

[…]

Earlier this year, Khan, who is a vice-president of the Dalhousie Student Union (DSU), put forward a motion that the group not participate in Canada 150 celebrations. The executive passed her motion, saying it wouldn’t hold or endorse Canada Day events on campus, describing this year’s events as an act of colonialism.

The student union faced a serious backlash over the decision and Khan took to social media in response, writing that “white fragility can kiss my ass. Your white tears aren’t sacred, this land is.”

Some libertarians have risen to Khan’s defence, and like Reason‘s excellent Robby Soave, note that this is the inevitable result of policing “offensive” speech:

…this is what happens when she hurt my feelings, burn the witch! becomes the dominant norm on campus. Of course such a regime would backfire on the left. It was only a matter of time before fed up conservatives, who are already outnumbered on campus, made use of the considerable administrative bureaucracy that exists for the sole purpose of making everybody comfortable. When the radicals gave up on free speech, they put themselves at greatest risk.

Many others who usually consider themselves free-speech activists have been notably silent, however.  If Ezra Levant has tweeted about it, I must have missed it.

On the other hand, some law professors at Dalhousie have published an open letter backing Ms. Khan, but also implying that speech they agree with must be defended:

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Someday a Dalhousie student will get in trouble for posting some political opinions the law professors deem offensive.  Will they defend that speech as well?

Three things you should never, ever do

A Connecticut man called the radio show of personal-finance guru Dave Ramsey, and inadvertently gave a master class in what not to do in a divorce:

1. Never, ever, sign away your interest in a matrimonial home without the other party refinancing the property.  This poor fellow signed a quit claim deed, but his ex-wife didn’t obtain a new mortgage.  Now she’s decided she’s not going to make the payments anymore, and the mortgage company is coming after him.

There is a court order stating that she must refinance and have his name removed from the covenants of the mortgage, so she may be in contempt of court.  But it would have been much easier if the caller ensured that this was done as a condition of him signing the deed.

So why didn’t his lawyer catch this?  Well, about that…

2. Never “share” a family lawyer with the other party.  Even if both parties apparently agree on all the major issues, something inevitably comes up which they hadn’t thought about until a lawyer points it out.  And it’s sadly not uncommon for one party to be coerced or bullied into a blatantly unfair, one-sided “agreement.”

The lawyer’s job is to represent your interests.  By definition, your interests and those of your ex are not the same.  There is an inherent conflict of interest.  Had this guy retained his own legal counsel, he likely wouldn’t have gotten into this mess in the first place.

The caller almost certainly has the law on his side, but he remains reluctant to take the matter back to court.  Which raises my third point:

3. Don’t “give in” to the other party in the hopes of “keeping the peace.”  The caller tells Dave that he isn’t sure taking legal action “is the best decision for [his] children,” because he’s concerned about “keeping the peace between the two households.”

Ramsey responds, “I missed the part where she cares about that.”

Sadly, I’ve seen it many times: a client comes into my office to discuss the other party’s settlement proposal, I point out some blatant deficiencies, but he or she wants to agree “just to get it over with.”

A separation agreement or consent order might be the most important document you will ever sign in your life.  If you accede to terms you don’t really agree with, you – and your children – may be stuck with them indefinitely.  You can make a court application to vary an order or agreement, but the burden is on you to show that a “material change of circumstances” has occurred.  If you knew about these potential problems when you made the agreement, it’s that much harder for you to meet the test.

When one party folds and just accepts what the other side demands, it’s usually shows a severe imbalance in power between the parties.  (And it’s not always the female partner being coerced by the man – I’ve worked on several cases where it’s the husband who just wants to “get it over with,” not to mention some same-sex relationship cases.)  Rest assured, the party dictating the terms of agreement couldn’t care less about your feelings.

 

Why are Kinder Eggs banned from America?

It actually happened: Piers Morgan made a good point for once.

America’s founding fathers, in their wisdom, never saw fit to include “the right to low-quality European chocolate with cheap toys you’ll be stepping on for weeks thereafter” in the Bill of Rights.  But why can’t Kinder Surprise Eggs be sold in the United States, anyway?

As with most American stories, the answer involves a lot of corporate intrigue and legal wrangling:

Since production began in 1974, the company has sold more than 30 billion Kinder Surprise eggs around the world. But in the United States, they are prohibited by Section 402 (d)(1) of the 1938 Federal Food, Drug and Cosmetic Act, which bans any candies with non-nutritive objects “embedded” inside them.

[…]

Though the original law is nearly a century old, it came up for debate in the 1990s. In August, 1997, Kreiner Imports Inc. of Chicago said it would voluntarily recall 5,000 Kinder eggs to cooperate with the U.S. Consumer Product Safety Commission (CPSC.)

It was the same year that Nestle USA Inc and Mars Inc. went to war over a copycat product. The Nestle Magic was a hollow chocolate globe surrounding a plastic shell with a Disney toy inside.

Though the Consumer Product Safety Commission ruled the candy didn’t violate its safety regulations, the Food and Drug Administration wrote to Nestle in July 1997 saying it violated the 1938 Food and Drug Act.

Leading the charge was an elite group of consumer lobbyists known for taking on big adversaries. Soon after Carol Tucker Foreman criticized the product, supermarket chain Stop and Shop announced it would no longer sell them. Also on the team was Connecticut State Atty. Gen. Richard Blumenthal, who called on officials to address the issue “before Nestle Magic could become Nestle tragic,” according to the L.A. Times. [Interestingly, Blumenthal is now one of the Senate’s leading voices in favor of gun control. – DJP]

Though Mars Inc. representatives originally denied involvement in the effort,  the company later acknowledged that it had picked up the tab, according to the Times.

In September 1997, Mars executives wrote a letter to the Food and Drug Administration saying it had joined critics because “we care about the public interest,” according to the Washington Post. A month later, Nestle announced that it would discontinue sales of its competing product, telling the L.A. Times that the company felt its candy was safe but took it off the market due to “an unresolved technical, legal problem.”

In 2013, Mars Inc. spent $1.99 million on lobbying efforts, according to data from the Senate Office of Public Records that was compiled by OpenSecrets.org. Nestle spent a total of $4.8 million in the same year, with the vast majority going toward food processing and sales.

The 1997 fight wasn’t the first time toy-filled chocolate eggs came under fire. In 1989, the candies were discussed in British Parliament after a child died from choking on a small piece.

The good news for American children, if not their parents, is that a similar Kinder product will soon be available in their country:

In 2018, Ferrero International will release the “Kinder Joy” in America. Unlike the Kinder Surprise it has two distinct, sealed halves. One half contains the mystery toy, and the other half is filled with chocolate, milk-crème, and chocolate wafer bites. This tweak of having the toy and chocolate packaged in separate sections makes this version of the Kinder egg adhere to the FDA regulation.

The Kinder Joy was originally developed to sell the chocolate treats in warm-weather markets (such as India, China and Korea) where the traditional exposed chocolate egg melted.

It’s better than nothing, I guess, but if President Trump wants to get rid of allegedly useless and outdated regulations, I know where he can start.

 

The T-word

In light of the deadliest mass shooting in modern American history, by a 64 year-old white man whose political or religious motivation, if any, remains unknown, I’ve seen much of this kind of thing on social media:

Because when you want a nuanced and informed discussion of legal issues and systemic racism, you turn to Twitter.

Huffpost explains why law enforcement officials are avoiding the T-word for the time being:

There’s a reason that law enforcement authorities are hesitant to label an attack like the one in Las Vegas as terrorism. Specific federal statutes target international terrorism and acts associated with groups that the U.S. government has labeled as foreign terrorist organizations. But there’s no specific federal statute aimed at acts of domestic terrorism, meaning acts inspired or carried out on behalf of domestic extremist organizations. Some federal laws are aimed at particular acts that might be carried out for terrorist purposes, like hijacking planes or assassinating government officials, but mass shootings are not on that list.

So had Stephen Paddock lived, it’s unlikely that he would have faced federal terrorism charges. And unless authorities turn up evidence that his attack was motivated by hatred for a specific racial group ― which is unlikely, given that he fired indiscriminately into a crowd of thousands ― there’s a good chance he wouldn’t have faced any federal charges at all.

[…]

…it’s not clear the Las Vegas massacre would qualify as an act of domestic terrorism. There is a federal definition of the term ― yes, even though there isn’t a charge. An act of domestic terrorism must be intended to intimidate or coerce a civilian population, to influence a government policy by intimidation or coercion, or to affect the conduct of government by mass destruction, assassination or kidnapping. We don’t know yet if Paddock had any of those goals in mind.

There is a Nevada state law which may define the Vegas massacre as terrorism, but not a federal one.  The ACLU, notably, is wary of what would actually be targeted by a specific law against “domestic terrorism”:

In the U.S., there’s still a great deal of reluctance to create a criminal charge of domestic terrorism.

“It’s an incredibly broad label,” Hina Shamsi, director of the national security project at the American Civil Liberties Union, told NPR in August following the white nationalist rally car attack in Charlottesville, Virginia.

“There’s a real danger of the government criminalizing ideology, theology and beliefs rather than focusing on specific criminal acts,” she said.

According to Shamsi, the ACLU opposes any such law, because it believes it infringes on free speech and religion and could be politicized and used against groups like anti-war groups or environmental activists.

Reason’s Ed Krayewski made a similar point after Charlottesville:

The FBI has specific legal criteria it uses to define international terrorism, domestic terrorism, and the federal crime of terrorism. To be terrorist, an act must appear to intend to “intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping.” The federal offense is defined as a criminal act “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”

In political rhetoric, by contrast, the word is frequently deployed as a thought-terminating cliché—a way to promote the idea that some military or police activity should be permitted to occur outside of the constraints of the Constitution, particularly against certain classes of people. In the last few decades, and particularly since 9/11, those classes of people have tended to be Muslim.

[…]

At the beginning of his term as attorney general, Holder sought to treat terrorism as a law enforcement issue. This was the right instinct. Terrorists are criminals with political ideas, but they are still criminals. The term terrorism is used to strip those criminals—and many noncriminals—of longstanding legal protections. And its ultimate effect has been to make it politically harder to defend the idea of treating “terrorism” as a law enforcement issue, often while creating the space for even more terrorism.

The Shawn Kings of the world want the definition of “terrorism” to encompass more white guys, but they aren’t the only ones who will be caught up in the net.  They should be very careful what they wish for.