Tuesday, January 17, 2017

Introduction to Justice Cases for Students


Unlike Hollywood law dramas, which neatly wrap up cases in an hour or two, achieving actual justice through the legal system is often slow, frustrating, and requires patience and persistence.

Below are real cases that I have studied, written about, and in some instances, maintained contact with the legal underdogs involved.  Each case has deeply personal significance to me for different reasons, and thus I write about them in the first person.  My hope is that if teachers and students experience my passion and engagement, they may be inspired to follow a local, national, or international cause and choose to participate as an impactful voice, whether through social media or some other avenue.

Summary of the Three Legal Underdog Cases

(1)  Grandpa v. Coal Mining Company.  A mining company dumped coal waste in a dammed river, with an elementary school directly downstream.  Elevated incidences of cancer were reported for school staff and students, prompting a student’s grandfather to walk 400 miles to get an audience with his U.S. Senator.  Grandpa tried to secure funding to build a new school, away from the coal company.

Perry’s Personal Connection:  For years, I taught a justice course using a book, The Buffalo Creek Disaster.  The author of that book represented plaintiffs in West Virginia, where a dam with coal waste gave way, and devastated coal miners and their families living downstream:  125 dead. 1000 homes destroyed. 4,000 survivors reliving the horror.  That case was from the 1970’s.  When I read about Grandpa’s case, I could not believe that history could potentially repeat itself in the 21st century, this time with students and teachers in harm’s way.  I became a Facebook administrator for Grandpa’s cause, and interviewed people connected to his initiative.

(2)  9/11 Families v. U.S. Government.  Ten days after 9/11, Congress passed the Victim Compensation Fund.  Its purpose was to provide monetary relief to injured individuals on the ground and for family members of those who died.  Ninety six families bypassed the Fund and filed lawsuits, seeking answers from the government on what security breaches occurred on that fateful day.

Perry’s Personal Connection:  The students reading about this case are likely not old enough to remember September 11, 2001.  I am originally from New York City and felt as helpless as anyone that day.  Living in Atlanta, I wanted to be connected to New Yorkers somehow.  Soon thereafter, I set up a website, 9-11 Civil Liability, with case updates and other information, and corresponded with a few family members seeking legal counsel.

(3)  Innocent Man? v. D.A.’s Office.  A father and son were arrested for alleged child molestation acts committed in their basement.  The father, a retired high school teacher who was teaching computer classes in his home, entered into a plea deal.  While maintaining his innocence, he believed that his plea would somehow benefit the son’s case.  However, facing a hostile community and life in prison if convicted, the teenager accepted a plea deal too.  Years later, the son was granted an “Actual Innocence” hearing, to try to clear his name.

Perry’s Personal Connection:  The father was my favorite high school teacher, and I was confused and emotional as the facts of the case unfolded.  I've published three articles on the son’s case (while maintaining an objective stance concerning his innocence), and get periodic updates from his Twitter feed and representative.

Case Update:  New York's highest court will hear oral arguments on Oct. 18, 2017, as to whether the DA must turn over every piece of evidence connected to this case, in preparation for an eventual "Actual Innocence" hearing.

Please keep reading, and then learn from your teacher in class, just how long it takes to achieve justice -- or not!

Monday, January 9, 2017

Lessons of Justice for Students: Grandpa versus Big Coal


Lessons of Justice for Students: Grandpa versus Big Coal
© Perry Binder 2011-2017

“This is not an environmental issue. This is about a little human being.” — Ed Wiley (Grandpa) speaking to West Virginia Governor (now Senator) Manchin

While the media insults and labels the youth of every generation like a W or X or Y or Z (oh you Slackers, Echoes, Netters, and Millennials), I instead see students bringing energy and a common message of hope to the table: to make a difference in their lives and those of others. And in an Introduction to Law class, it is my job to find them real world cases to teach lessons of justice and injustice. So let’s meet Ed Wiley and the kids at Marsh Fork Elementary School.

In 2009, I wrote:
I came across a story from July 2005 about West Virginia’s Marsh Fork Elementary School, which is situated 400 yards below a 2.8 billion gallon coal waste dam. 400 yards? 2.8 billion gallons. With the kids breathing coal dust and chemicals from the coal silo which sits 150 feet away. The only reason this is making any news is that the grandfather of one of the elementary school kids sat on the West Virginia Capitol steps and refused to leave until the governor addressed these rather serious concerns. The guy was just a little curious why the Department of Environmental Protection approved a permit for an additional coal silo adjacent to the school. He was just wondering why in a school of 200 students, three kids and four teachers had died of cancer. And with 240 significant safety violations since 1991, why nothing was being done, like building another school. Away from the madness. 2.8 billion gallons. 2.8 billion. School’s not out. School’s gone!

In 2008, Mr. Wiley went on a 455-mile hike to Washington, D.C. and actually got a meeting with United States Senator Robert Byrd. He started a web site, Pennies of Promise, to raise money for a new school, and I eventually became the administrator of the organization’s Facebook page, with many of my enthusiastic students joining the cause.

Truth be told, while grandpa was getting publicity for his cause, the money raised was a mere fraction of the $8,000,000 needed to fund a new school. But Mr. Wiley persisted, as attested to by his many supporters.

Francine Cavanaugh, co-director of On Coal River, a documentary about Mr. Wiley’s West Virginia valley community offered: “Ed Wiley is a former coal miner who worked at mines all over West Virginia, including one that threatened his granddaughter’s elementary school. In the film, we capture his attempts to have the school relocated to safer ground, and he goes about it directly, and with conviction.”

In 2009, I had a hint of resignation that grandpa might not round up the dough, when I wrote:
I smile because I’m not sure how far grandpa will get in raising money to move the school, but I do know he’s learned an important lesson. When you are outmatched by the war chest or political clout of opponents, you need to be patient and search for their weak spot to find leverage. And in this case, grandpa’s leverage is in the form of embarrassment through media attention.

Then came 2010. With the kiddies out for spring break, Marsh Fork Elementary became the media staging ground during the Upper Big Branch mine disaster which cost the lives of 29 miners. Now, the world was watching Massey Energy (Massey owns that mine and the silo and impoundment facing our school kids). The tragedy occurred mere weeks before the School Building Authority voted on allocating precious few funds to schools across West Virginia. Now, the world was watching after Marsh Fork.

Finally, a new school can be built, thanks to commitments of:
-          $2.5 million grant from the Annenberg Foundation
-          a gift from the Coal River Mountain Watch
-          $2.6 million from the West Virginia School Building Authority
-          $1.5 million from the Raleigh County Board of Education, and
-          $1.5 million from Massey Energy (the mining company)
Source: Jeff Biggers, Goodbye Massey Coal Dust: Welcome to the Ed Wiley Elementary School!, The Huffington Post (June 30, 2010) (updated May 25, 2011).

This month, the Raleigh school board announced it had finalized the land purchase for the site of the new school.  Until then, these students still face a potential 72-foot tidal wave of coal sludge should the impoundment break, per Mr. Biggers. Such a breach could be on the scale of Buffalo Creek in the 1970’s.

Real victories are hard to come by these days, but Ed Wiley proved that passion and persistence can deliver gratifying results. The takeaway lesson for my law students comes from Ben Franklin: By failing to prepare, you are preparing to fail. I think that Ben got it so right in his quote. But great words are far greater than the person who utters them, and the real hard work is putting those words into action.

By doing. Something.

Like NOW, you Slackers, Echoes, Netters, and Millennials.


Published in The Huffington Post with Permission of author
Excerpted here

The Upcoming 9/11 Trial Isn’t About Money But Elusive Justice


The Upcoming 9/11 Trial Isn’t About Money But Elusive Justice
© Perry Binder 2011-2017

“Money is the universal lubricant. It makes it easier to go on with one’s life.”
Judge Alvin Hellerstein

Ten days after Sept. 11, 2001, Congress passed the September 11th Victim Compensation Fund. The law was designed to provide government relief to family members of victims and to those who were injured on the ground. In order to participate in the program, which paid out over $7 billion, claimants waived the right to litigate.

Of the 96 families that chose to litigate, all eventually settled except for one. The wrongful death trial against United Airlines and airport security firm Huntleigh USA begins Nov. 7, 2011, more than 10 years after victim Mark Bavis left Logan Airport in Boston on UAL Flight 175, the second plane to hit the World Trade Center.

The Bavis family wants answers that they likely will never get, such as what the United States government knew and told the airlines about terrorist threats in the days leading up to Sept. 11. On Oct. 17, 2011, Judge Hellerstein will hold a closed-door conference with the parties to rule on the government’s designated “sensitive security information.” (U.S. District Court, http://www.nysd.uscourts.gov/index.php)   In 2009, he said that he favored keeping more than 1 million pages of 9/11 documents secret.  (Leonard Greene, Legal War Over 9/11 Air Secrets, NY Post (Mar. 26, 2009).

According to The New York Times, “[Judge Hellerstein] said the trial would focus on whether there had been negligence in screening, which he said was the responsibility of United and Huntleigh.” (Benjamin Weiser, Judge May Let 9/11 Lawsuit Pursue Damages for Suffering on Doomed Flight, NY Times (July 27, 2011)). In a lawsuit involving negligence, a plaintiff must prove elements of liability:
1.       The existence of a duty of safety owed by the airline and security firm to passengers
2.      A breach of that duty (the plaintiff will have to show that the defendants did not take reasonable and necessary precautions to prevent injury)
3.      The defendants’ conduct was a substantial factor in proximately causing the passengers’ deaths

In 2002 I predicted that if one of these cases actually made it to trial and key documents were not withheld by the court, then a reasonable jury would hold for the plaintiff. In addition, if the plaintiffs could prove that the defendants were “grossly” negligent, the court could permit an award of punitive or punishing damages against the defendants.
According to the Boston Globe, “[Judge Hellerstein] said he is inclined to allow jurors to consider awarding damages for the final ‘21 minutes of terror’ on United Flight 175 before its crash into the World Trade Center.” (Such damages were not available under the Victim Compensation Fund.) In this regard, the plaintiff’s attorney “intends to use an animated re-creation of Flight 175, showing the flight pattern, with all its erratic twists and turns, from the time it was seized and diverted until its ultimate crash into the World Trade Center.”  (Stephanie Ebbert, Jury set to view hijacking terror, Boston Globe (July 29, 2011).

A settlement can only provide money, with no admission of liability or explanations. Even though the small group of litigants settled their cases for a substantial sum of about $500 million dollars, the Bavises, according to The New York Times, “say the case is not about money. They say they want to prove in a public courtroom what they and their lawyers believe was a case of gross negligence.” (Benjamin Weiser, Among 9/11 Families, a Last Holdout Remains, NY Times (Sept. 10, 2010)).

Trial lawyers often say that “the devil is in the details.” But we may or may not get those details, depending on what documents the judge designates as sensitive security information on Oct. 17. I frequently tell my college students that “it’s good to be the judge” because of the power that comes with the position. While Judge Hellerstein has looked after the financial interest of the victims’ families, it’s not always about the money. I believe he dreads sifting through these documents and being held accountable for his ruling on their admissibility at trial, and privately hopes for a last-minute settlement. (Benjamin Weiser, Judge Overturns Accords in 4 Suits by 9/11 Families, NY Times (July 25, 2008))

I wrote to Judge Hellerstein early on with my thoughts on this case, and I now offer him my two cents for the trial in November:

Your Honor, I wouldn’t greet the Bavis family with the insights you imparted to counsel at a June 25, 2007 court conference:
I learned long ago as a lawyer that many cases of principle stop being cases of principle when there are elements of expense or recovery that are presented. ... [P]eople say, ‘I don’t care what the recovery is, I want my day in court,’ until someone gives them a check. It is very crass and it probably will come back to be critical of me, but there is an expression that is sometimes very useful: ‘Money is the universal lubricant.’ It makes it easier to go on with one’s life.

Your Honor, unless you order another trial delay, prepare to reacquaint yourself with the Bavises. Again and again.

Published in The Huffington Post with permission of author
Excerpted here


Judge Hellerstein Transcript Excerpt
June 25, 2007 Court Conference- Pages 41-42 below:
       SOUTHERN DISTRICT REPORTERS, P.C.
                                                                            41
       25  THE COURT [JUDGE HELLERSTEIN]:
              
I learned long ago as a lawyer that many
                                                                            42
             76PJ911C                 Conference
        1    cases of principle stop being cases of principle when there are
        2    elements of expense or recovery that are presented.  I have had
        3    clients come to me and say look, I want you to defend me, it is
        4    a case of principle.  Then when I presented my first bill, it
        5    stopped being a case of principle.  I think it is common
        6    experience.
        7             Similarly on the other side, people say I don't care
        8    what the recovery is, I want my day in court until someone
        9    gives them a check.  It is very crass and it probably will come
       10    back to be critical of me, but there is an expression that is
       11    sometimes very useful, "Money is the universal lubricant."  It
       
12    makes it easier to go on with one's life.

Professor Binder's Letter to NY Attorney General

February 3, 2003 
Office of New York State
Attorney General Eliot Spitzer
Department of Law
120 Broadway
New York, NY 10271

Re:  Wrongful Death statute of limitations issues for WTC survivors
Dear Attorney General Spitzer:

I am a legal studies professor at Georgia State University's Robinson College of Business.  As a former New Yorker, I have kept a close watch on the legal issues revolving around 9-11.  In this regard, I set up an interactive 9-11 web site as an educational tool.  More specifically, I have followed the workings of the Government's Compensation Fund, and note that we are now witnessing many flaws in the procedures with which money is being disbursed.

I have no financial interest in this matter.  As an educator, I foresee additional complications on the horizon for WTC victims/survivors.  One such issue is the statute of limitations for New Yorkers wishing to file a wrongful death action, while foregoing relief under the Fund.

As you are aware, a New Yorker has two years to file this type of claim (thus, the statute of limitations will expire on Sept. 10, 2003 for the events of 9-11).  This date is in conflict with the deadline to file under the Fund (Dec. 21, 2003)..

Since the validity of the Fund has been challenged in court by victims from Cantor Fitzgerald (see David W. Chen, The New York Times, Jan.. 27, 2003, "Relatives of 7 Victims File Suit"), it is advisable for the legislature to extend the statute of limitations for WTC survivors to a date which at least mirrors the Fund deadline (I recommend an extension until Sept. 10, 2004).

I am writing to you specifically to utilize your resources and contacts in the New York legislature to lobby for this simple, but important deadline change.

Yours truly,
Perry Binder, JD
Assistant Professor of Legal Studies
Robinson College of Business
Georgia State University

Professor Binder quoted in these print sources:
Associated Press, 9/11 relief fund nears $6B mark (June 11, 2004)
"The process has been exhaustive, and seemingly exhausting," said Perry Binder, a professor at Georgia State University's Robinson College of Business who has tracked the fund's progress.
Associated Press, 9/11 Victims' Fund May Cost Less (Dec. 12, 2003)
CBS Radio News, Final Day To Apply For 9/11 Fund (Dec. 22, 2003)
The New York Times, Judge's Ruling Opens Door for More Families to Sue Airlines and Port Authority (Sept. 10, 2003)
The New York Times, 7 Families Sue Administrator of 9/11 Fund (Jan. 27, 2003)

Professor Binder's radio appearances:  
CBS Radio, AP Radio Network   Dec. 22, 2003
(WRVA) Richmond, (WSYR) Syracuse, (CFRB) Toronto  
Sept.10-11, 2003

Jesse Friedman’s Case and the Appearance of Impropriety

Case Update:  New York's highest court will hear oral arguments on Oct. 18, 2017, as to whether the DA must turn over every piece of evidence connected to the Friedman case, in preparation for an eventual "Actual Innocence" hearing.

Jesse Friedman’s Case and the Appearance of Impropriety
© Perry Binder 2015-2017

The Friedman case continues to be defined by delay. Two years after I posed the question, Is Actual Innocence ‘Capturing the Friedmans’?, the frustrating answer is: We still don’t know. Below is a tangled story of: evidence withheld by the Nassau County District Attorney’s office from its own case advisory panel; a panelist’s subsequent modification of the panel’s original recommendations; a defamation lawsuit filed by the defense against the DA’s office; the recent election of DA Kathleen Rice to U.S. Congress; and a judge set to hear Friedman’s case, though she worked as an Assistant DA with DA Rice for years.

In the above 2012 article, I summarized the case background:
On November 25, 1987, I was sprawled out on my parents’ couch, when my favorite high school teacher appeared on the TV news. Arnold Friedman was a retired NYC instructor who taught computer classes in his home for local kids. I watched as he and his 17-year old son, Jesse, were handcuffed and hauled away for horrific child molestation crimes occurring in their basement. I fell off that couch in disbelief. Arnold and Jesse Friedman each pled guilty to avoid a trial, and Jesse learned of his father’s prison suicide in 1995. Since his release in 2001, Jesse has attempted to clear his name, so he no longer must register as a Level 3 violent sexual predator. In 2003, new facts about his case emerged in the Oscar-nominated documentary, Capturing the Friedmans, which examined the evidence against the Friedmans and questioned whether any of the allegations against them were truthful. On August 16, 2010, the United States Court of Appeals for the Second Circuit found “a reasonable likelihood that Jesse Friedman was wrongfully convicted” and that “the police, prosecutors and the [trial] judge did everything they could to coerce a guilty plea and avoid a trial.” That November, the Nassau County District Attorney appointed a panel of four experts to review the evidence against Jesse.

Below are the key developments since November 2012:

June 2013 - The DA’s office issues an unfavorable report on Jesse’s attempt to re-examine the case facts. The report is based on its advisory panel’s findings and recommendations. (Frankly, this author thought it was the end of the road for Jesse’s appeal, given panelist Barry Scheck’s stature as co-founder of the Innocence Project.)

August 2013 - Nassau County Supreme Court Justice F. Dana Winslow orders the DA’s office to disclose to the defense “every piece of paper for People against Friedman.” The DA’s office is appealing that ruling.  (William Murphy, Judge orders release of Jesse Friedman files, Newsday (Aug. 22, 2013).

June 2014 - Mr. Scheck states in a sworn affirmation:
I believe it would be desirable for the court and the parties, utilizing whatever procedural mechanisms the court deems suitable, to review materials not available to the Advisory Panel, such as grand jury minutes, the original case file, and the results of the re-investigation to aid in finally resolving, to the extent possible the issue of Jesse Friedman’s guilt or innocence.  This affirmation differs markedly with the panel’s June 2013 statement.
(Incorporated in Memorandum of Law in Support of Defendant’s Motion to Overturn His Convictions).

June 2014 - Counsel for Friedman files a defamation lawsuit against the DA’s office.

August 2014 - Counsel for Friedman files a motion to have Judge Teresa Corrigan removed from the case, based largely on the latter’s prior working relationship with DA Kathleen Rice.

September 2014 - The DA’s office consents to an “actual innocence” hearing for Friedman before Judge Corrigan.

October 2014 - Judge Corrigan refuses to step down as presiding judge in the case, though she worked with Ms. Rice as ADAs in Brooklyn for seven years, and as an ADA for DA Rice in Nassau County, until the judge was elected to the bench in 2012. Judge Corrigan cites “no personal bias or prejudice concerning any party in this matter.”

November 2014 - DA Rice is elected to the United States House of Representatives.

Under New York State rules governing conduct of the judiciary, a judge shall disqualify herself in a proceeding in which “a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter.” (22 NYCRR 100.3(E)(1)(b)(ii)). The obvious purpose of this rule is to prevent bias in the legal system. Further, the rules state that a judge, even if unbiased, must remove herself from a case if there is the mere appearance of impropriety:

A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.

(A) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. (Section 100.2(A))

In plain English, Judge Corrigan should remove herself from this case to maintain public trust in our judicial system. Such an act is not atypical for judges since they must project the highest level of professionalism in the legal process. For example, in The Buffalo Creek Disaster book I use in class, a judge removed himself from the lawsuit, citing his friendship with the president of a corporate defendant.

I’ll leave it to other commentators to consider the legal and/or political motivation of the players in this case. As a legal studies professor, I focus on objective fact finding towards truth, not speculation. In 2012, I wrote:

The truth is of paramount importance, wherever that leads us. I deeply hope that Jesse is innocent and that the [DA’s advisory] panel recommends exoneration. Then, the healing process may continue for his living hell of iron bars and digital chains [His sex offender profile is publicly available on the web]. And so that the rest of the Friedman family, Great Neck community, and former students of Arnold Friedman may find peace, however important Mr. Friedman’s role was in shaping productive lives. But the maddening truth is that if Arnold and Jesse Friedman are innocent, then the system has committed the gravest injustice of all, by suggesting to and reinforcing in children that crimes actually occurred in a teacher’s basement. For 25 years.

Now 29 years strong, Judge Corrigan, please stop adding to the madness of this matter. Reverse course and recuse yourself from Jesse Friedman’s case.

Editor's Note:  Judge Corrigan eventually recused herself from this case (June 2015).

Published in The Huffington Post with Permission of author
Excerpted here

Student/Prisoner Story - First Day of Law Class (3 Min. Video)