Society wins not only when the guilty are convicted, but when criminal trials are fair

Attorney David BetrasIn his most recent MahoningMatters column, BKH managing partner David Betras, one of the area’s leading criminal defense attorneys, discusses prosecutorial misconduct and the threat overzealous prosecutors pose to every American’s freedom…

Prosecutors in the United States wield awesome power and have access to immense resources that dwarf what is available to criminal defendants and defense counsel. The lawyers who represent the people of the United States or the people of Ohio have near-total discretion to decide who is charged and with what—the old saying that a prosecutor can convince a grand jury to indict a ham sandwich is basically true, they are funded by taxpayer dollars, work hand-in-hand with the law enforcement officers who investigate crimes and have unlimited access to state-of-the-art forensic science.

To balance the legal playing field and protect society, the rules of criminal procedure, the law, and codes of conduct administered by the courts and bar associations have established strict guidelines and boundaries designed to prevent prosecutors from abusing their authority. Chief among them is the admonition that a prosecutor’s job is to secure justice, not convictions.  This principle is embodied in Ohio’s Code of Professional Conduct which states:

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”

It is also included in the American Bar Association’s (ABA) Criminal Justice Standards (CJS):

“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict… The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”

Man in handcuffsAlong with defining prosecutors’ role, the rules, laws, and Supreme Court decisions also set forth their responsibilities, which, according to the ABA’s CJS include the duty to “…make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…”

This standard encapsulates the Supreme Court’s 1963 decision in Brady v Maryland, In that case, a 7-2 majority held that “…the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment… Society wins not only when the guilty are convicted, but when criminal trials are fair.” The Court has revisited Brady numerous times over the years, including in 1985 when the justices ruled in United States v. Bagley  that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request.

Despite the guardrails that have been erected, some prosecutors misuse their power and abuse their discretion. They place more value in securing convictions than preserving justice. They commit what are known as “Brady Violations” by refusing to turn over or concealing exculpatory evidence to the defense and violate defendants’ due process rights in other disturbing ways.

This matters for two reasons. First, because when prosecutors violate the rules, innocent people go to jail for decades or are executed. Some of the wrongful conviction cases have penetrated the national consciousness: the Central Park 5, Walter McMillan, the Brown brothers, and Anthony Ray Hinton. Thousands of others, however, suffer in silence outside the spotlight, hoping that justice will be done.

Second, each case of prosecutorial misconduct, each Brady violation, each wrongful conviction weakens the criminal justice system and puts every American’s freedom at risk.

M.J. Joseph Development, Corp files complaint for Declaratory Judgment against city of Youngstown, denies default and restates commitment to project

For Immediate Release
Monday, May 24, 2021
Contact: Atty. Brian Kopp, 330-502-8825

In response to public statements made by city officials regarding the M.J. Joseph Development, Corp (MJJDC) and the Chill Can project, Attorney Brian Kopp today filed a Complaint for Declaratory Judgment in the Mahoning County Court of Common Pleas on behalf of the company.

In the Complaint, MJJDC denies that it has either defaulted or abandoned the project and asks the Court to declare that the city does not have a right to recover grant funds for the alleged default, has no right to title and possession of the company’s property, and does not possess a right to monetary damages under the Enterprise Agreement contract.

“Representatives of the city have repeatedly claimed Youngstown has powers and avenues of recourse that are not explicitly spelled out in the contracts,” Atty. Kopp said. “To counter those statements, we are asking the Court to clarify the rights and obligations of both parties so MJJDC can move forward.”

“Unfortunately, the city’s rhetoric makes it extremely difficult for MJJDC to achieve its stated goal: completing the facility, hiring local residents, starting production, and making Youngstown and the Mahoning Valley a center of the company’s operations,” Atty. Kopp said.

“The future is bright for our company and we are excited about the opportunities that will accompany the end of pandemic-related restrictions,” MJJDC President Mitchell Joseph said.  “We have committed millions of our own dollars to this project and we want and need it to become an integral part of our operations. We acknowledge that there have been delays, but our global business partners continue to work with us, and we hope the city will do the same.”

It was necessary to file the lawsuit to secure my client’s investment and to ensure that this project will pay dividends to the city and MJJDC for years to come,” Atty Kopp concluded. The Complaint for Declaratory Judgment may be viewed here: Joseph Complaint File 5-24-21

For more information, please contact Atty. Brian Kopp at 330-502-8825.

Libel, slander and why Facebook can’t be held accountable for outrageous statements posted by users

Attorney David BetrasIn his most recent blog post/Mahoning Matters column, BKH Managing Partner David Betras defines defamation, libel, and slander and explains why it is virtually impossible for public figures to win defamation suits and the legal shield that protects Facebook and other social media sites from being helped accountable for statements posted by users…

As I have noted in previous columns, the rights enumerated in the U.S. Constitution are not absolute.

For example, the Supreme Court ruled in 1919 that yelling “fire” in a crowded theater is not protected speech under the First Amendment. Not surprisingly, this one exception has given rise to many questions and hundreds of cases regarding what type of expression is shielded by the Bill of Rights. For example, can a person in that hypothetical crowded theater stand up and accuse another of a crime or pass out a leaflet that impugns someone else’s character?

As is often — and often maddeningly — the case with issues involving the Constitution, the answer is, “It depends.”

In this instance, it depends on the laws governing defamation which is defined as a false statement presented as a fact that injures or damages a third party’s reputation. There are two types of defamation: slander, an untrue statement made orally; and libel, an untrue statement made in writing. And, since the dawn of the computer age and the internet, that includes email and social media posts.

While defamation is not considered a crime at the federal level or in Ohio, both libel and slander are civil torts which means victims can sue for damages. To win in court a plaintiff must prove:

1.) The statement was reported as fact to another person;
2.) The statement was false;
3.) The plaintiff suffered damages;
4.) The person making the statement was negligent.

Seems pretty straightforward, except we are talking about the law so nothing could be further from the truth. And speaking of the truth, it is an absolute defense to defamation because if what is said or written is true, it cannot be false, and therefore, it can be neither libelous nor slanderous no matter how much damage it may cause.

Here is another fun fact: Public figures have virtually no chance of winning defamation suits thanks to New York Times v. Sullivan, a unanimous 1964 Supreme Court ruling that established the “absent malice” standard. Under this legal principle, the target of a defamatory statement must prove the person or entity that wrote or uttered it did so with knowledge of or reckless disregard for the fact that it was untrue.

Who qualifies as a public figure? Politicians, celebrities, business, labor, and community leaders, and, well, me. This means Mahoning Matters can publish just about anything they want to about me and there is not much I can do about it.

Finally, consider this scenario: two neighbors who are not public figures have a contentious relationship. Neighbor A posts on Facebook that Neighbor B beats his wife and kids and kicks his dog. The statement is false, but people believe it and ostracize Neighbor B, he is fired from his job and suffers other torments.

Neighbor B can sue Neighbor A, but can he sue Facebook for providing a platform for the lies?

No, because Section 230 of the Communications Decency Act (CDA 230) holds that Facebook and other computer service providers are not considered publishers of content posted by users and are not responsible for it.

So while Neighbor B may be able to wring a few bucks out of Neighbor B, he will not be getting a check drawn on Mark Zuckerberg’s multi-billion dollar account

David Betras: I’ve never filed a frivolous lawsuit…

Medical MalpracticeFrivolous, adjective: not having any serious purpose or value.

My decades-long legal career has been filled with interesting cases, challenging litigation, and high-stakes trials. But in all my years as a member of the bar, there is one thing I have never done: file a frivolous lawsuit.

That makes me an anomaly in the eyes of the insurance industry, the American Medical Association, the U. S. Chamber of Commerce, and others who claim frivolous lawsuits filed by ambulance-chasing attorneys clog our courts, are responsible for skyrocketing insurance premiums and health care costs, force doctors to practice “defensive medicine” and generally make the world a horrible place to live.

At least that is what they say when they are pushing the passage of tort “reform” legislation that slams the courthouse door in the face of Americans seriously injured or killed because someone else was negligent or reckless.

Along with venting my resentment at having my life’s work denigrated and dismissed as frivolous, a number of things motivated me to once again note that restricting access to the civil justice system makes the world a more dangerous place for our families: The drive to enact tort reform laws is continuing unabated in state legislatures across the nation.

Iowa, Missouri, Texas and Florida, where I will soon be licensed to practice, are among the states attacking victim’s rights. Here in Ohio, an effort to reverse a Draconian cap on non-economic damages is being blocked by the special interest groups and Republicans who imposed the limit in 2004.

A new report issued by the Center for Law and Justice at New York Law School thoroughly debunks many of the myths obscuring the truth about medical malpractice in the U.S. This free-to-download, 172-page publication provides a comprehensive review of the latest statistics about litigation, cost, access to doctors, insurance and patient safety.

I found the following facts to be especially compelling:

  • Experts agree that when cases are filed, they are not “frivolous.” Among the experts is Victor Schwartz, General Counsel of the American Tort Reform Association who admitted in 2011 that “It is ‘rare or unusual’ for a plaintiff lawyer to bring a frivolous malpractice suit…”
  • Litigation and settlements enhance patient safety. Tort reform laws put patients at risk.
  • Neither “tort reforms” nor “caps on damages” lower insurance premiums for doctors.
  • Stripping away patients’ legal rights will not reduce health care costs and may actually increase them.

Finally, a case being litigated by our office underscores how serious and difficult our work is.

While I am unable to discuss the matter in detail, it involves a client who was horribly injured during a medical procedure some time ago. Since agreeing to represent the victim, we have devoted hundreds of hours and tens of thousands of dollars to trial prep and gone toe-to-toe and face-to-face with insurers, defense attorneys and health care providers determined to trivialize our client’s life-altering, lifelong injuries.

Whenever I look at the photos of this client or the hundreds of others we have represented over the years I am reminded of the fact that “frivolous” is the last word that can be used to describe what we do.

The George Floyd murder trial: the justice system worked–this time…

Attorney David BetrasAs a criminal defense attorney, I watched with great interest the trial of the former Minneapolis police officer convicted of murdering George Floyd.

Here are my thoughts on the case that has mesmerized the nation and the world since May 25, 2020.

The visual evidence secured the conviction. Creating reasonable doubt in the mind of at least one juror is a defense attorney’s No. 1 task. In this case, the astounding amount of video and audio evidence available to the prosecution made that task extremely difficult if not virtually impossible.

The cellphone video of Mr. Floyd’s killing captured by Darnella Frazier combined with newly released police body camera footage painted a stark and irrefutable picture of the incident. The defense attorney would have lost all credibility with the jury if he had asked them to disbelieve what they were seeing with their own eyes and hearing with their own ears: the defendant’s knee squarely planted on Mr. Floyd’s neck, the look of utter disdain on the officer’s face, Mr. Floyd’s pleas for his life and the defendant’s derisive and snide replies.

The defense attorney could not afford to lose all credibility with the jurors because he needed at least one of them to buy into the arguments he made on his client’s behalf.

First, he claimed that Mr. Floyd died because of the drugs in his system and because of his diseased heart — rather than the knee on his neck. In the practice of  law, this is known as the principle of causation and it was a dead-end for the defense because the prosecution had effectively proven that “but for” the actions of the officer Mr. Floyd would still be alive.

Next, he contended that the members of the crowd who were begging for Mr. Floyd’s life were at fault because the defendant felt threatened and turned his attention away from the person he was obviously killing — even though he could clearly be heard talking to Mr. Floyd while he had him pinned to the ground.

Finally, he said the defendant’s use of force was justified because he could not control Mr. Floyd, a statement directly contradicted by both the video evidence and the numerous law enforcement officials and experts who testified the officer’s actions were excessive and unjustified.

The jury did its job. In an earlier column, I said I was confident extensive voir dire had yielded an impartial jury capable of reviewing the evidence and rendering a just verdict. I believe the diverse group of 12 men and women who sat in judgment of what is undoubtedly the case of the 21st century did exactly that.

The system worked — this time.

That outcome would have been tragic for Mr. Floyd’s family and our nation.

Can employers ‘out’ unvaccinated employees?

Attorney David BetrasRecently one of our Facebook followers messaged us this important and interesting question:

“Can an employer ask workers if they have been vaccinated for COVID-19 and are they allowed to ‘out’ those who have and have not?”

Like most employment issues related to the pandemic, the answer to that straightforward question is complicated, multi-faceted, and evolving. But I am certainly willing to take a shot at responding.

I want to preface the discussion by reminding everyone of two critically important facts: First, employers are generally permitted to require all workers to be vaccinated. Second, workers who refuse may be disciplined and/or fired unless they are protected by a union contract, have a disability or object to getting a shot due to sincerely held religious beliefs.

Employers must offer people who fall into the latter two categories “reasonable accommodations” that will enable them to continue to work.

Now let us consider whether the Americans with Disabilities Act (ADA) permits employers to ask workers if they have been vaccinated. According to guidance issued late last year by the Centers for Disease Control and Prevention as well as the Equal Employment Opportunity Commission, the answer is yes as long as inquiry does not elicit information about a disability that would trigger the ADA’s requirement that all inquiries be “job-related and consistent with business necessity.”

Tip for employers: You do not want to do that.

To avoid running afoul of the ADA, employers should do the following when requesting vaccination information:

• Design the request so it is not likely to elicit information about a disability;
• Do not ask why a worker was not vaccinated;
• Warn employees not to provide any medical information when providing proof of vaccination.

Employers also have the right to ask for any number of reasons: to verify compliance with a vaccine mandate; prove that an employee has qualified for a vaccination incentive; to determine if an employee can return to work on-site; to comply with a customer’s demands that a vendor’s workforce has been vaccinated; or to inform the public that workers at a restaurant, store or other type of business that involves interaction with patrons have received their shots.

In fact, I can envision “Guaranteed COVID-19 Free” becoming a popular advertising slogan in the months ahead.

Now that we have a basic understanding of what employers may do, it is time to address what they may not do: They cannot “out” or identify workers who have or have not been vaccinated.

While it is generally legal to ask the question, it may be considered a medical inquiry which would make each employee’s response confidential medical information protected under statutory and common law. The law also obliges employers to protect workers’ personal and health information including their vaccination status.

I urge employers to take all steps necessary to meet that obligation.

As I mentioned at the beginning of the column, COVID-19 employment law is evolving rapidly so businesses and workers should protect themselves by keeping up to date with their rights and obligations.

While the pandemic is, hopefully, coming to an end, it may take years to resolve the legal issues and lawsuits it has spawned. I will do my best to keep my readers informed.