Does Alabama law put minors seeking abortion on trial?

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(CNN) — The American Civil Liberties Union is challenging an Alabama law that will force those under 18 seeking an abortion to go through an adversarial process that’s akin to a trial.

Generally, laws in the United States require parental consent for a minor to obtain an abortion. But for some children, parental consent is impossible or even dangerous. This class of minors must seek a judicial bypass. While the bypass is a common feature of abortion laws in other states, this Alabama law may have gone too far. Here are the suspect provisions of this “bypass by trial”:

  • Alabama has turned what is supposed to be an informal, child-centered hearing into more of a trial.
  • The court can appoint a Guardian ad Litem — normally an appointed lawyer for a child in, say, a divorce proceeding or a hearing involving unfit parents — for the fetus.
  • The minor may be cross-examined by the district attorney and possibly the minor’s parents.
  • Information about the minor’s pregnancy may be disclosed to her family, friends and employers, and they might even be brought to court to testify — against the minor.

When it comes to abortion, minors are supposed to enjoy the same constitutional right of privacyas adults, free from undue state interference. However, the Supreme Court has also specifically articulated reasons why the constitutional rights of children are not identical to the rights of adults. Children are vulnerable and unable to make critical decisions and, of course, parents have a right to participate in raising their child.

States may pass laws that subject minors seeking an abortion to an additional requirement: parental involvement. However, if the state chooses to require parental consent for a pregnant minor to get an abortion, the state also must provide an alternative procedure for obtaining that authorization — one that “bypasses” having to get Mom and Dad’s permission.

The Supreme Court has required that these hearings “must assure that resolution … be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained.” Plus, and perhaps most importantly, the procedure bypassing parental consent cannot be a thinly veiled mechanism for an “absolute, and possibly arbitrary, veto.” In plain language, hearings must be quick and quiet, and they cannot be held in kangaroo court.

The problem is, this does not give a lot of detailed direction to courts about how exactly to conduct these hearings. It’s not surprising that court procedures vary wildly, and that sooner or later, a state like Alabama would experiment with state abortion law. Our system was specifically designed to allow states to experiment with social and economic legislation. Of course, that state prerogative is also tempered by a federal court’s power to strike these laws down if they are unconstitutional.

In this case, the ACLU’s position is that creating an adversarial hearing goes too far. A hearing is fine, it seems, but something approaching a trial rises to the level of an impermissible “undue burden” on the right to have an abortion. This has been defined by the courts as placing a substantial obstacle in the path of the adult, or minor child seeking the abortion.

The federal court that reviews these state statutes will be charged with determining whether Alabama’s law violates established Supreme Court bypass requirements.

But what about the actual bypass requirements themselves? They are a creation of the Supreme Court. Striking down an act of a state legislature is one thing — challenging settled Supreme Court precedent is entirely another.

What if the constitutional standards for bypass procedures contain something of an intrinsic paradox? Consider how it applies in this case.

In Alabama, a judge at one of these hearings is required to waive the parental consent requirement if the judge finds either:

  1. that the minor is mature and well-informed enough to make the abortion decision on her own; or
  2. that performance of the abortion would be in the best interest of the minor.

Abstract concepts like “mature” and “best interest” are rather amorphous at best. (True story: A respected law professor advised many classes of students that when confronted on the bar exam with a question about a child, do the following: Write “best interest of the child” somewhere in the first sentence; then write “whatever the heck you want” for the rest of the answer.)

So then, the court must determine whether the minor is mature — mature enough that she may have the court’s permission to have an abortion. This means the court can then arrive at this Kafkaesque, perplexing alternative: A particular minor is too immature to have an abortion — with the result being that this immature minor … should therefore be … a parent of an infant? It gets stranger: What about a finding that it is in the best interest of the young mother to have the baby, even though she is deemed too immature to have an abortion? How would it be in the best interest of the immature mother to have a child?

State courts and legislatures are not completely to blame; after all, the law of minors and juveniles is always going to be about some difficult but arbitrary line-drawing. Whether we’re considering the drinking age, the driving age or the voting age, we’ve learned over the centuries that kids mature at different ages. Plus there is no easy legal formula to address the myriad situations of messed-up families.

Unfortunately, legislatures must draw some lines — lines that will not always be workable in every situation. And there are surely situations where the bypass might actually be effective: for example, a very young pregnant minor with completely absent parents, who needs court intervention. The problem is, if it creates an undue burden in one situation, then it’s constitutionally suspect.

But ultimately, building up the procedural hurdles for a pregnant minor almost by definition encroaches upon the limits set some time ago by the Supreme Court. It’s a procedure that needs to be defined; teen pregnancy certainly isn’t going anywhere anytime soon. Neither are lousy families, unfortunately. Whether the boundary lines of judicial bypass ebb toward the autonomy of minors, or back toward the state interest in the fetus, the broader social “findings” of judicial bypass proceedings will always remain the same: It’s all very sad.

Originally posted at http://www.cnn.com/2015/03/23/opinions/cevallos-alabama-abortion-trial

Robert Durst’s bathroom folly

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(CNN) — The end of “Jinx,” the six-part HBO documentary about real estate heir Robert Durst, has launched a debate about whether some potentially incriminating statements Durst made while in the bathroom to a microphone may be used in his criminal prosecution.

Durst, as you probably heard, is charged with murder in a killing in California 15 years ago, and he has been suspected, but never charged, in the disappearance of his first wife in New York.

Whether or not the taped words of an accused person will be admissible against him involves a look at the rules of evidence and the Constitution, as well as our fast-evolving ideas about privacy. While Durst’s attorneys can make a number of arguments to suppress these statements and bar their admission at trial, the bathroom confessions will likely be factored in.

Let’s go over three main reasons why:

1. Is this inadmissible hearsay? Probably not.

Hearsay is defined as a statement made outside of court that is offered in court for its truth. It really just means a witness can’t testify at trial about someone else’s version of the facts.

If a sentence starts with “He told me” or “She said that,” it’s probably hearsay. As general proposition, hearsay is supposed to be inadmissible, but the exceptions nearly swallow the rule itself — so much so that many commentators have suggested abolishment of the exception-riddled rule itself.

Perhaps the largest and best known category of hearsay exceptions is admissions and confessions. These can be admitted against a defendant. Why? Well, the idea is that these statements are reliable. The thinking is that people don’t ordinarily confess to something unless they did it.

2. Is this a violation of Durst’s constitutional privilege against self-incrimination? Again, probably not.

The rules of the U.S. Constitution are a different matter. The Fifth Amendment’s self-incrimination clause states that “[n]o person … shall be compelled in any criminal case to be a witness against himself …”

By definition then, compulsory self-incrimination requires, well, “compulsion.” And not just any compulsion. The kind of compulsion targeted by the Fifth Amendment is governmental coercion.

Durst may still contend that his “confession” wasn’t voluntary. It’s true that confessions deemed “involuntary” are often excluded at trial under the Due Process Clause of the 14th Amendment. However, a confession will only be considered involuntary if it is the product of police activity.

Voluntariness is not an issue when admissions are made to a private person, such as a journalist.

What of Durst’s likely claim that the filmmakers were essentially acting as an arm of the police? Sometimes law enforcement exercises so much control over a civilian that his private actions become police action, constitutionally speaking.

This is not an easy case for a defendant to make, though. Durst would have to establish that the HBO interviewers were direct agents of the police and that the interview was coerced by police.

The police undoubtedly benefited from the work of these citizen documentarians. But the police frequently benefit from the work of good Samaritans or citizens volunteering information, photos or iPhone videos. The television show “America’s Most Wanted” has been premised on this idea for decades. Given the defendant’s burden here, it’s unlikely that he can convince a judge that, in light of all the circumstances, filmmakers acted as an instrument or agent of police.

The bottom line is this: A voluntary confession must be the product of a rational intellect and a free will, not physical intimidation or psychological pressure. How was Durst “pressured” when alone in the bathroom? However, his attorneys might argue that some mental impairment rendered him incapable of the necessary rational intellect and free will.

3. Can Durst argue for some “reasonable expectation of privacy” that was violated by his being taped in the bathroom? Not in our modern world, and not in this case.

Perhaps in decades past, a court might be offended at an audio recording of someone in the bathroom, but things have changed.

Subjects of documentaries and reality TV stars alike routinely sign contracts allowing camera crews to pin a microphone to their lapels and follow them around 24 hours a day. Moreover, everyone in the television news business has a story about some famous correspondent going to the bathroom and forgetting about their “hot” mic. In this brave new media world, the rule appears to be: You wear a lavalier microphone at your own risk.

This is why defense attorneys tell clients to not give interviews. No matter how good an interviewee a client may be, audio and video editors have an uncanny knack for isolating the less than flattering sound bites. Admitting to killing “them all” would fall into this category.

When it comes to giving interviews, it’s probably better for defendants such as Durst to keep silent and be thought a fool than to open your mouth and remove all doubt, especially doubt of the reasonable kind.

Originally posted at http://www.cnn.com/2015/03/18/opinions/cevallos-hbo-robert-durst/index.html

 

Fun in the Sun, but a Dangerous Drive to the Jersey Shore

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As weather gets warmer, many Pennsylvania residents are traveling to the Jersey Shore to enjoy their weekend and spend time with friends and family, but many do not realize that once they cross state lines into New Jersey their insurance changes dramatically.  So why does this happen and how?

It is what is known as the Deemer Statute, New Jersey Statutes Annotated Section 17:28-1.4., effectively turns a non-New Jersey resident’s automobile insurance policy into a New Jersey policy if their insurance company is licensed to transact business in New Jersey.  Therefore, if you get in a car accident in New Jersey and your insurance company is licensed to transact business in New Jersey, the elections you made under your automobile insurance policy may no longer apply.

The Deemer Statute gives you a little but takes away a lot.  If you are a non-New Jersey resident and have the unfortunate luck to be involved in a car accident in New Jersey the Deemer Statute will give you $250,000.00 of PIP (personal injury protection) or medical benefits.  Sounds good, right?  Seems like you’re being given a lot, but what is being taken away?  Your legal rights!!!  If you are a non-New Jersey resident and get into a car accident in New Jersey, you will automatically be deemed to have chosen verbal threshold.  Verbal threshold is the equivalent of choosing limited tort in Pennsylvania.  It means that your rights to sue and be compensated are limited, and you will likely not be able to recover for non-economic damages such as pain and suffering unless your injury qualifies as one of the exceptions: death; dismemberment; serious disfigurement; loss of fetus; displaced fracture; or permanent injury.

So if you are a non-New Jersey resident, but do a good deal of driving in New Jersey for work or going to the shore, what can be done to adequately protect yourself so that the tort option and elections you have chosen and paid for are not taken away from you?  The answer is to follow the link below that I have provided.  It will display a list of all of the automobile insurance companies licensed to transact business in New Jersey.  If your insurance company is not on the list, then you will avoid the Deemer Statute and avoid being subject to New Jersey’s verbal threshold if you are injured in an automobile accident in New Jersey.

If your insurance company is on the list, don’t worry too much.  You can still protect yourself.  One avenue you have is to switch to another insurance company that is not on the list.  Thus, you will evade the Deemer Statute in the event you are injured in an automobile accident in New Jersey.

http://www.state.nj.us/mvc/pdf/Vehicles/insurance_codes.pdf

The Deemer Statute affects Pennsylvania residents greatly, but it is something that no one really knows about.  To protect yourself and your family, consider what I have mentioned above.  If you wish to discuss New Jersey’s Deemer Statute, verbal threshold, or other related car insurance issues in more detail, feel free to contact Cevallos & Wong.  As the weather gets nicer and you drive down the shore, make sure you and your loved ones are protected.

What You Don’t Tell Your Attorney Might Hurt You

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Lawyers hate surprises. Most of all, we hate to be surprised by a fact we should have known previously. When we represent a client, we like to believe that we know everything that is essential about the case. It’s important to be confident that we understand exactly what happened during the client’s auto accident or injury case. And it’s even more important to know our client’s health history before that injury ever occurred.

When we learn a new detail at the last minute, it may require a very different approach as to how we will try to persuade the judge or jury to compensate our client in the manner he or she deserves. Of course, at that point, there simply may not be enough time to frame the case in another way. The end result may be that our client gets less than the full, fair compensation he or she deserves for their injuries.

Don’t Try to Cover up Your Previous Injury History

It should go without saying that you must answer all your lawyer’s questions fully and truthfully. But you shouldn’t limit communications with your lawyer merely to answering their questions; you should feel free to volunteer information that you think is important. Once you have hired an attorney to represent you, it’s important that you share with him or her any details that you might think may have a bearing on your case. Don’t restrict yourself to information about the recent circumstances that are the subject of your Pennsylvania personal injury lawsuit—make sure to mention anything else that you believe may have a bearing on your case.

One of the key issues that ought to be discussed is your previous injury history. Your attorney should know any of the following:

  • If you have ever been involved in a injury resulting in a claim or lawsuit before;
  • Whether you ever filed a lawsuit or received a settlement for injuries in a previous accident;
  • Whether you have ever complained to your family physician or any other doctor about any pain or discomfort the body part injured in the present claim – even if the pain was minor;
  • If you ever sustained a sports injury or an injury at home;
  • If you ever sustained an injury at work whether or not connected with a claim or lawsuit;
  • The names and contact information of any physicians you complained to about your pain or problems;

Many clients are reluctant to share this information. They may believe that their previous injury history is not relevant to their current case, or they may be embarrassed by some private facts in their personal health history. Many believe that the record of their prior injuries won’t come up in their court case.

In fact, a previous history of injuries or pain can easily become a key issue in your current case. The defendant’s attorney may argue that because of your history of injuries or pain, your current complaint were not caused by the recent car crash but instead by one of your prior accidents.

Your lawyer will be able to refute all these arguments effectively if he knows what to expect. Do not try to conceal your past health and injury history. Tell your attorney everything—it will make your case even stronger.