Valley So Low: New Book about a Coal Ash Waste Spill and Cleanup Lawsuit in Tennessee

A well-written account that reminds me of The Buffalo Creek Disaster book (West Virginia in the 1970's) that I've used in class. This coal industry disaster occurred in 2008 (Tennessee) and like most of these cases, took years for final resolution. The author, Jared Sullivan, chronicles events from 2008-2023.

Amazon: For more than fifty years, a power plant in the small town of Kingston, Tennessee,  burned fourteen thousand tons of coal a day, gradually creating a mountain of ashen waste sixty feet high and covering eighty-four acres, contained only by an earthen embankment. In 2008, just before Christmas, that embankment broke, unleashing a lethal wave of coal sludge that covered three hundred acres, damaged nearly thirty homes, and precipitating a cleanup effort that would cost more than a billion dollars—and the lives of more than fifty cleanup workers who inhaled the toxins it released.

 https://www.amazon.com/Valley-So-Low-Americas-Catastrophe/dp/0593321111 

In 2023, after a trial and appeals, Jacobs Engineering (company contracted by the TVA to clean up the mess) settled a lawsuit for $77.5 million with 230 workers who got sick from cleaning up the coal ash. After attorney fees/costs, each person received about $220,000.

https://www.enr.com/articles/60072-jacobs-role-in-a-huge-coal-ash-cleanup-and-the-workers-quest-for-justice

Testimony in the 2018 federal trial revealed that managers with both Jacobs and TVA repeatedly told workers coal ash was safe enough to eat and refused to provide them protective gear, including masks. When workers began pressing for respiratory protection, Jacobs’ safety manager Tom Bock ordered masks stored at the disaster site destroyed to prevent workers from wearing them, testimony showed.

Coal ash contains 26 cancer-causing toxins, heavy metals and radioactive material, including radium, lithium, selenium, molybdenum, arsenic, lead, cobalt and uranium. Initial testing in January 2009 by an independent firm showed the Kingston coal ash was six to eight times more radioactive than surrounding soil.

But training materials provided by both TVA and Jacobs to Kingston disaster workers never mentioned the radiological threat coal ash posed or provided a full list of dangerous ingredients in the waste. Instead, the training materials stated the only ingredients of concern in the ash were arsenic and silica.

 https://tennesseelookout.com/2023/05/23/jacobs-engineering-settles-kingston-coal-ash-case/

EPA sued in 2022 for exempting coal ash from health protections

https://earthjustice.org/press/2022/epa-faces-lawsuit-for-exempting-half-a-billion-tons-of-toxic-coal-ash-from-health-protections

Tennessee has 29 toxic coal ash dumpsites as of 2023

https://earthjustice.org/feature/coal-ash-states/tennessee

Amanda Knox re-convicted of criminal slander in Italy in case linked to her quashed murder conviction

 

I've been following Amanda Knox's case for years. (I even took students to one of the courtrooms in Florence.) The lesser-known charges were criminal defamation of police (overturned) but years ago she was convicted of that crime when she mentioned a bartender as a possible suspect. Recently, the European Court of Human Rights ruled that her confession was coerced so she just went back to court to clear that – a decade ago, she was sentenced to 3 years (but got time served since she was in jail for 4 years) and then left the country. The lower court just ruled against her. (There will be an appeal.)

In Internet Law, we go over some country laws of criminal libel.

Side Note: A colleague of mine did DNA forensic work on the homicide charge.

https://www.cbsnews.com/news/amanda-knox-italy-trial-slander-meredith-kercher-murder/

 

Major Case Updates in the Jesse Friedman Case Since 2015

May 2024: A promising court ruling in February but NY Governor Hochul vetoed a bill in 2023 which would've been a pathway to an Actual Innocence hearing. Unclear what the next steps are.

In 2015, I wrote for The Huffington Post: Jesse Friedman's Case and the Appearance of Impropriety Note: Judge Corrigan eventually recused herself from this case (June 2015).

2024 Good News: The New York State Court of Appeals on Tuesday reversed a decision by a lower appeals court that barred Jesse Friedman from gaining access to his case files, nearly 30 years after the former Great Neck resident’s guilty plea in a child sex abuse scandal. Click here to continue reading

2023 Bad News: NY Governor Vetoes Challenging Wrongful Convictions Act

Challenging wrongful convictions – A2878-A/S7548. Quote from above link: Sponsored by Assembly Member Jeffrion Aubry and Myrie, this bill would have made it easier for someone wrongfully convicted of a crime to have that conviction overturned, even if that person pleaded guilty [From Perry: Jesse Friedman entered into a plea deal for a more lenient sentence, believing at the time he couldn't get a fair trial], by removing procedural barriers to having new evidence heard by the court. In a veto memo, Hochul said that she supports the intent of overturning wrongful convictions and noted that she has approved numerous criminal justice reforms since taking office as well as existing avenues for post-conviction relief. But she said this bill is overly broad and would “create an unjustifiable risk of flooding the courts with frivolous claims.”

2022 News: update on "Establishes the actual innocence justice act"

2021-2022 Legislative Session:  NY State Assembly Bill A98A - Passed the Assembly but ran out of time to pass the Senate.  Likely re-introduced in 2022-2023

2018 Bad News: The NY Court of Appeals case of People v. Tiger, held 5-2 that there is no "actual innocence" cause of action for someone who has pled guilty, effectively ending Friedman's 440.10 motion (in the absence of legislation).

From the Dissenting Opinion by Judge Wilson, joined by Judge Rivera:

"Ms. Tiger [caregiver for "profoundly disabled ten-year-old girl"] is neither the first nor last innocent person to plead guilty. Ms. Tiger's case (based on facts as she summarizes them, without the benefit of an evidentiary hearing) provides a compelling example. In brief, confronted by Child Protective Services with horrifying photographs of the child's skin blistering, she was: without the assistance of counsel; denied the accompaniment of a representative of her employer who attempted to attend; accused of "having boiled water and thrown it" on the child; and told she was responsible for the skin grafts the child was then undergoing. Ms. Tiger [*11] knew the bathwater was not inappropriately hot, but nevertheless concluded she must have been responsible. Faced with seven years in prison, she pleaded guilty after her lawyer told her she could not afford to hire an expert and a guilty plea could result in a suspended sentence. What she did not then know was that the child was taking medication that likely caused the blistering. Based on the sequence of events leading up to the child's injuries, and her meeting with the CPS interviewer who all but insisted that Ms. Tiger burned the child terribly, it is not hard to imagine that a compassionate and attentive caregiver — which other evidence in the record shows she was — could begin to believe that she somehow made a mistake and was to blame."

Click here for full Tiger opinion

2017 Bad News Fixed in 2024:  The NY Court of Appeals ruled, as to whether the DA must turn over every piece of evidence connected to this case, in preparation for an eventual "Actual Innocence" hearing in the Friedman case:  

It's up to the trial court to determine whether some witnesses expressly were guaranteed confidentiality by prosecutors — or the circumstances of the case are such that confidentiality "can be reasonably inferred" — and their identifying information and statements can therefore be kept secret.  Source: Newsday

NY Governor Vetoes the Challenging Wrongful Convictions Act

This bill likely would've helped Jesse Friedman get an Actual Innocence hearing.

Jesse Friedman case

Challenging wrongful convictions – A2878-A/S7548

Sponsored by Assembly Member Jeffrion Aubry and Myrie, this bill would have made it easier for someone wrongfully convicted of a crime to have that conviction overturned, even if that person pleaded guilty, by removing procedural barriers to having new evidence heard by the court. In a veto memo, Hochul said that she supports the intent of overturning wrongful convictions and noted that she has approved numerous criminal justice reforms since taking office as well as existing avenues for post-conviction relief. But she said this bill is overly broad and would “create an unjustifiable risk of flooding the courts with frivolous claims.”

 Quoted from: Notable December 2023 NY vetoes

 

In Memoriam: Innocence Project Founding Board Member and Exoneree Calvin Johnson

 

Calvin Johnson was wrongly convicted of a crime and was fortunate that the Georgia Innocence Project assisted in securing his freedom.  I posted this comment on Facebook to Greg Hampikian, a DNA expert and guest speaker in my class over the years.  Greg helped prove Mr. Johnson's innocence, and the two wrote a book together about the experience.

In Memoriam

Posted on Greg's Facebook Page: Very sad to hear about Calvin's passing. He was an inspiring, hopeful, and forgiving person, and the two of you were a dynamic duo in writing Exit to Freedom. I remember when we brought our science and law classes to hear him speak at Clayton State in the late 1990s. You went up to him afterward to say something. That may have been the beginning of your friendship with him? My thoughts are with Calvin and supporting innocence projects in Georgia and across the country. Perry

Georgia State University's Center for Access to Justice

 

Very interesting article in GSU's Research magazine on the law school's Center for Access to Justice.

I am currently writing a book on teaching with a few chapters dealing with access to civil justice.  I define civil justice as leveling the playing field for the little guy.

Click here to read about GSU's Center for Access to Justice and its Alternative Spring Break Progam for law students.

Troy Davis Case Discussed on HBO's The Newsroom

I re-watched an episode of the Newsroom (Season 2, Episode 2 if you have HBO Max) which discussed the case.  Here is a short YouTube clip from CNN, the day before Mr. Davis' execution.

This was a death penalty appeal from several years ago.  It gained international attention and some of my students protested at the Georgia Capitol when the Governor denied clemency in 2011.  By a 4-3 vote, the Georgia Supreme Court denied Mr. Davis a new trial, though seven of nine adverse witnesses recanted their testimony and another witness was a suspect in the crime.  The U.S. Supreme Court upheld that decision.  

Here is a portion of the Georgia Dissenting (Minority) opinion:

We have noted that recantations by trial witnesses are inherently suspect, because there is almost always more reason to credit trial testimony over later recantations.   However, it is unwise and unnecessary to make a categorical rule that recantations may never be considered in support of an extraordinary motion for new trial.   The majority cites case law stating that recantations may be considered only if the recanting witness's trial testimony is shown to be the “purest fabrication.” To the extent that this phrase cautions that trial testimony should not be lightly disregarded, it has obvious merit.   However, it should not be corrupted into a categorical rule that new evidence in the form of recanted testimony can never be considered, no matter how trustworthy it might appear.   If recantation testimony, either alone or supported by other evidence, shows convincingly that prior trial testimony was false, it simply defies all logic and morality to hold that it must be disregarded categorically.