What were they thinking? Why did Alex Murdaugh’s lawyers allow the now convicted killer to testilie for hours on end?

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Attorney David Betras
BKM Managing Partner David Betras

Judging by the number of people who have yelled, “Hey Betras, what the xxxx (readers are free to insert the word of their choice) is up with that Murdaugh trial?” I am not the only person who has been obsessed with the sordid saga of the once prominent South Carolina trail lawyer who was recently found guilty of murdering his wife and his son.

Okay, I wasn’t “obsessed” with it, I was consumed by it. I watched every moment of the trial, hours of analysis of each day’s proceedings offered by “expert” criminal lawyers, as well as all of the documentaries, docudramas, and special reports that streamed into my smart TV, smart phone, and laptop.

The discussion and speculation that raged during the trial continues today—much of it focused on Murdaugh’s decision to take the stand. In the immediate wake of his testimony, in which he basically admitted to being a pathological liar who couldn’t tell the truth if his life depended on it, which it did, a number of talking head criminal lawyers told the media the defense team had to allow the accused killer to look the jurors in their collective eyes and refute the charges. One of the pundits, criminal attorney and former prosecutor Mark Eiglarsh told CNN “If you’re going to have somebody testify, having a lawyer who’s smart, who’s been in the courtroom, who’s lied for 20 years … that’s the guy you want on the stand…all it takes is one juror to connect with him emotionally.” 

To be frank, Mr. Eiglarsh and anyone else who thought it was a good idea for Murdaugh to hitch up his pants, take the stand, and admit to being a drug-crazed criminal who did everything but murder his wife and son is just plain stupid—a fact underscored by the verdict.

During my career I have represented numerous clients charged with murder and I have never put one of them on the stand, including those who have literally begged me to allow them to proclaim their innocence in open court. I have adopted this strategy for a number of reasons beginning with the fact that it is not my job to prove my client is innocent, it is the prosecutor’s job to prove they are guilty, and I refuse to do anything that will make that job easier.

And permitting a client to give up their Fifth Amendment protections against self-incrimination by testifying does exactly that.

Think of it this way: the accused takes the stand, I ask them if they committed the crime, they emphatically say no. This has absolutely no impact on jurors who fully expect defendants to say they didn’t do it. I sit down, the prosecutor stands up and immediately begins tearing my client apart limb from limb. Check the video of the Murduagh cross and you’ll see how this works—or I should say how it doesn’t work for the defense.

Clients also ask to take the stand because they fear the jury will believe they are guilty if they just sit quietly as I defend them. I point out that this is, for the most part, not true and that judges are required to instruct jurors that they may not draw any inference from the fact that a defendant does or does not testify—the presumption of innocence that is the beating heart of our judicial system stands.

Whether Murdaugh would have benefited from keeping his mouth shut is a question that will be debated in legal circles for years. One thing is certain, however, testilying for hours on end didn’t help at all.

Nothing frivolous about it: Trial lawyers who hold doctors and other providers accountable when they injure or kill patients play a major role in improving America’s health care system

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Attorney David Betras
BKM Managing Partner David Betras

Over the years I’ve developed a relatively thick skin—something that is basically a job requirement for criminal defense and personal injury attorneys and chairs of political parties. I’ve lost track of how many times I’ve been called an “ambulance chaser,” “shyster,” “commie,” “hack,” yelled at for getting criminals off, and been told the “What do you call 99 lawyers at the bottom of the sea?” joke, 99,000 times. (The answer: a good start.)

For the most part, this stuff just rolls off my back. But there is one two-word phrase that simply sends me over the edge: “frivolous lawsuit” as in  “If you ambulance chasers would stop filing frivolous lawsuits health care costs wouldn’t be so high. Thanks to you shysters medical malpractice insurance premiums are skyrocketing. You’re forcing doctors to practice expensive defensive medicine and driving them out of the profession.”

Aside from the fact that my firm has never filed a lawsuit that in any way comports with the definition of frivolous: i.e. not having any serious purpose or value, the medical malpractice cases trial lawyers like us bring play an important role in preventing doctors, other health care providers, and hospitals from killing and maiming patients.

And believe me, there is nothing at all frivolous about that when you consider that a John Hopkins University School of Medicine study found that medical errors and malpractice could feasibly be the third leading cause of death in the U.S. killing between 250,000 and 440,000 Americans each year. Imagine how much higher the death toll would be if lawyers like us were not holding medical professionals accountable.

Those statistics in and of themselves are troubling, but when you put a face, a name, and an actual case to the numbers they become downright heart wrenching. For example, last year, Brian Kopp who heads BKM’s complex litigation practice group and is one of the nation’s preeminent medical malpractice and wrongful death attorneys, represented the family of Megan Clay, a perfectly healthy 20-year-old who died after having what should have been a routine tonsillectomy on March 29, 2018.

More than four years after Megan passed away, her case went to trial and a Common Pleas Court jury awarded her family significant damages. After the verdict was returned Brian offered this comment: “I am the father of seven daughters and have one granddaughter and I cannot imagine for a moment what it is like to walk in the shoes of Jay Clay and his family. Jay, his wife Christine, and Megan’s brothers and sister have suffered a devastating loss. It is always humbling to represent a family that has suffered as they have.”

Despite all the data about the number and consequences of medical errors and tragic stories Megan Clay’s, the insurance industry, doctors, and business groups continue to use frivolous lawsuits as a stalking horse for their attempts to enact tort “reform” laws that severely limit the ability of victims and families to seek justice and just compensation—even though fewer than 2% of those impacted by malpractice ever file suit.

I mention all of this because the Center for Justice and Democracy at New York Law School recently issued a comprehensive briefing book “Medical Malpractice by the Numbers” that refutes the misinformation regularly dispensed about the impact lawsuits have on the practice of medicine. Here are few relevant facts:

So-called “defensive medicine” is a myth. Researchers found that physicians order tests because they are focused on patient safety not malpractice risks, or “more focused on not harming patients than on not getting sued.”

Medical malpractice premiums are rising even though claims are dropping. More than 6 in 10 medical groups report their doctors’ malpractice premiums have increased since 2020 even though overall claims throughout the United States have dropped.

Caps on damages harm patients while doing nothing to stop insurance premium price-gouging. Researchers found that while caps drive down insurer costs, premiums do not fall and that by lowering the risk of suit for malpractice … imposing caps is associated with a 16% increase in adverse events.

The United States health care system is severely failing women. Among women of reproductive age in high-income countries, rates of death from avoidable causes, including pregnancy-related complications, are highest in the United States.

The Briefing Book is bursting with facts about they intersection of the legal and medical professions and, take if from your favorite ambulance chaser, is well worth a look.

A message from David Betras to anyone who is being questioned by the police: Shut Up!

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Attorney David Betras
BKM Managing Partner David Betras

On a number of occasions, I’ve addressed what people should do if they are stopped and questioned by the police. Here’s an excerpt from an August 2021 blog post on the topic:

“First, if you are stopped by law enforcement and questioned you are under no obligation to do anything other than provide your name and ID.
Second, remember, the police will delay placing you in custody so they can use what you say to establish probable cause for arrest.
Third, your pre-arrest statements are admissible in court.
Fourth: Shut up. What you do not say cannot be used against you.”

That’s right I said just shut up.

I raise the topic today because as New York Times columnist Faraj Manjoo points out in his most recent piece, prosecutors in New Mexico plan to charge actor Alec Baldwin with involuntary manslaughter in the death of cinematographer Halyna Hutchinson. Hutchinson was working on the set of the movie rust when Baldwin pulled the trigger of a gun that was not supposed to be loaded with live ammunition. She was struck by a bullet and died shortly thereafter.

After the shooting Baldwin agreed to be interviewed by police without his attorney present, waived his Miranda rights, and did anything but shut up: “Still, for about an hour, Baldwin not only answered detectives’ many questions about the shooting but also offered his own theories about the incident and suggested the next steps the police might pursue in their investigation.”

As Manjoo notes, “The Fifth Amendment of the Constitution allows Americans to refuse to answer questions from law enforcement. Yet despite the ritualistic incantation of the Miranda warning on every TV police procedural, silence is a right that people can find hard to accept. If you’re convinced of your innocence, aren’t you obligated to help the police solve the matter under investigation? Refusing to talk to the police seems like something people do only when they’ve got something to hide.”

I’ve lost count of how many clients I’ve defended in court because they decided to abandon their Fifth Amendment rights and “help” the police who in turned helped themselves to an arrest.

In the column Manjoo praises the work of law professor and former defense attorney James Duane, one of the nation’s leading proponents of just shutting up when questioned by law enforcement. The video of his lecture “Don’t Talk to the Police,” has been viewed millions of times on YouTube, you should make it millions plus one by watching: https://youtu.be/d-7o9xYp7eE

In his lecture Duane offers this quote from former US Attorney General Robert Jackson: “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.” It’s good to know that AG Jackson, one of the most respected lawyers in the history of American jurisprudence would think I am worth my salt.

“The average American — even if they’re a highly sophisticated college graduate or a law school student — really doesn’t know an awful lot about the many different ways in which even innocent people can regret for the rest of their lives the biggest mistake of their lives, the decision to waive their Fifth Amendment right and agree to talk to the police,” Duane said.

Duane argues that a key danger is that in trying to defend yourself to the police, you may unwittingly admit some wrongdoing. Navigating around such dangers is made all the more difficult because courts have given the police wide leeway to lie to people being interrogated.

“They will lie to you about what crime they are actually investigating,” Duane writes in his book, “whether they regard you as a suspect, whether they plan to prosecute you, what evidence they have against you, whether your answers may help you, whether your statements are off the record, and whether the other witnesses have agreed to talk to them — even about what those witnesses have or have not said.”

Manjoo closes his column with this passage: “The Fifth Amendment is no mere formality. It is among the best defenses against government overreach that Americans enjoy. We should guard it vigorously. Anytime you’re asked to talk to the police about an incident you are involved in, there are just four words you need to say: “I want a lawyer.”

And then please for the love of God, shut up.

The weather outside is frightful so now is the time to check out BKM’s winter driving tips…

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Just in case you haven’t looked outside yet, our “Three Ps” of safe winter driving tips will be extremely relevant and useful over the next couple of days.

Please be careful on the roads, and remember, if someone who isn’t driving safely runs into you or a member of your family, contact Betras, Kopp & Markota right away to arrange a free consultation to discuss your accident. Our experienced team of investigators and attorneys will evaluate your case, provide rock-solid advice, and fight to get the money your family needs and deserves.

So, call the LOCAL law firm big enough to win millions from the insurance giants: Betras, Kopp & Markota.

SAFETY ON WINTER ROADS

Bad roads can lead to bad wrecks. Driving on snow-covered, icy roads is tricky—even for those of us who have been doing it for decades. In order to help drivers avoid accidents, the National Highway Transportation Safety Administration and OSHA have developed the “Three Ps” of winter driving safety:

PREPARE for the trip; PROTECT yourself; and PREVENT crashes on the road.

Some of the advice is pretty obvious—like making sure all the ice and snow is scraped off all your windows before you head down the road. But even though common sense dictates that being able to see is critical to safe driving, we’ve all seen people weaving around as they peer out of the very small space they’ve cleared on their windshield that looks like a porthole on a tank’s gun turret. There’s only one difference: a car isn’t a tank rolling through woods, it’s a car lurching down a road crowded with other vehicles that can be hit because the driver can’t see them, lane lines, traffic signals or stop signs. So let’s start with the obvious, clear off all your windows, it’s great way to prevent collisions. We’re talking to guys in particular, because as the graphic shows, men are a lot more likely to drive in cars with ice-covered windows then women…

Here’s rest of NHTSA’s “Three Ps:

PREPARE

Maintain Your Car: Check battery, tire tread, and windshield wipers, keep your windows clear, put no-freeze fluid in the washer reservoir, and check your antifreeze.

Have On Hand: flashlight, jumper cables, abrasive material (sand, kitty litter, even floor mats), shovel, snow brush and ice scraper, warning devices (like flares) and blankets. For long trips, add food and water, medication and cell phone.

Plan Your route: Allow plenty of time (check the weather and leave early if necessary), be familiar with the maps/ directions, and let others know your route and arrival time.

Practice cold weather driving when your area gets snow — but not on a main road. Until you’ve sharpened your winter weather driving skills and know how your vehicle handles in snowy conditions, it’s best to practice in an empty parking lot in full daylight. Note our emphasis on the word “empty.”

Know what your brakes will do: stomp on antilock brakes, pump on non-antilock brakes.

Stopping distances are longer on water-covered ice and ice.

Don’t idle for a long time with the windows up or in an enclosed space.

PROTECT YOURSELF

Buckle up and use child safety seats properly.

Never place a rear-facing infant seat in front of an air bag.

Children 12 and under are much safer in the back seat.

Stopped or Stalled? Stay in your car, don’t overexert, put bright markers on antenna or windows and shine dome light, and, if you run your car, clear exhaust pipe and run it just enough to stay warm.

Don’t idle for a long time with the windows up or in an enclosed space.

PREVENT CRASHES

Drive slowly. It’s harder to control or stop your vehicle on a slick or snow-covered surface. On the road, increase your following distance enough so that you’ll have plenty of time to stop for vehicles ahead of you.

A word of caution about braking: Know what kind of brakes your vehicle has and how to use them properly. In general, if you have antilock brakes, apply firm, continuous pressure. If you don’t have antilock brakes, pump the brakes gently.

Stay calm and ease your foot off the gas while carefully steering in the direction you want the front of your vehicle to go if you find yourself in a skid. Stay off the pedals (gas and brake) until you are able to maintain control of your vehicle. This procedure, known as “steering into the skid,” will bring the back end of your car in line with the front.

Drugs and alcohol never mix with driving.

Texting while behind the wheel is especially dangerous in winter conditions. Put your phone down.

You can check out NHTSA’s interactive winter driving safety website by clicking here.

Here’s one more tip: even though you do everything right, someone who does just one thing wrong in icy conditions can cause an accident in the blink of an eye. If you’re involved in a wreck caused by a careless or distracted driver, contact Betras, Kopp & Markota BEFORE you talk to an insurance agent or adjuster. We’ll arrange a free consultation that will give us the opportunity to evaluate your case and provide you with sound advice that will protect your rights and your ability to secure justice and the financial settlement you and your family needs and deserves.

New distracted bill is overdue, will save lives and make Ohio roads safer for all

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Betras, Kopp & Markota has long been a leader in the battle to end the carnage caused by distracted driving. That is why we are pleased to commend the members of the Ohio General Assembly for passing and Governor Mike DeWine for signing SB 288, which includes provisions that will significantly strengthen the penalties for using, holding, or physically supporting an electronic wireless communications device (EWCD)–yes that’s the new fancy acronym for “cell phone”–while operating a motor vehicle.

The new law makes using an EWCD while behind the wheel a primary offense. That means a law enforcement officer has the right to pull over and ticket any driver seen using, holding or physically supporting a cellphone. Officers may also follow vehicles that are swerving or drifting from lane to lane to determine if the driver is using an EWCD. Until now, texting while driving was a secondary offense which meant drivers could not be stopped just for using a cell phone unless they were under the age of 18.

Governor DeWine has been imploring members of the legislature to enact the law since it was introduced in 2021. “You’ll never have a chance to vote on a thing that is as clear-cut that you will be saving lives as when you vote ‘yes’ on it.”

During the signing ceremony for SB 288 DeWine said “Right now, too many people are willing to risk their lives while behind the wheel to get a look at their phones. My hope is that this legislation will prompt a cultural shift around distracted driving that normalizes the fact that distracted driving is dangerous, irresponsible, and just as deadly as driving drunk.”

We share that hope because since 2017 people using EWCDs while driving in Ohio were involved in 73,945 accidents including the 31 fatal crashes and 258 that resulted in serious injuries in 2022 alone. The real tragedy: each and every one of those collisions was 100% preventable.

Here is what you need to know about the new law:

It goes into effect on Monday, April 2, 2023. For the first six months officers may only issue written warnings for violations.

As noted above, the law prohibits drivers from operating a motor vehicle, trackless trolley, or streetcar on any street, highway, or property open to the public for vehicular traffic while using holding, or physically supporting with any part of the person’s body an electronic wireless communications device. In essence this means drivers may not input information or type on a screen while driving.

There are a number of commonsense exceptions written into the law. Drivers may:

Call 911 or contact a health care provider or hospital in case of emergency;

Use a EWCD while parked outside a lane of travel or stopped at a red light or on a road or highway that has been closed due to an emergency situation;

Hold a device up to their ear during a call or use a speakerphone;

Use a navigation service as long as the driver is not inputting destinations or information;

Begin or end a call with a single swipe of the screen;

Store a device in a holster, holder, harness, or article of clothing.

Violations carry an escalating series of fines:

Up to $150 and two points on your license for the first offense.

Up to $250 and three points on your license for a second offense within two years.

Up to $500, four points on your license and a 90-day driver’s license suspension for a third offense within two years.

We hope none of you ever has to pay a fine because that means the law is working and you are not putting yourself, your passengers, other drivers, and pedestrians at risk by driving while distracted.

And just in case you’ve forgotten why we care so much about this issue and fight so hard to end the preventable carnage caused by distracting driving, we urge you to view this video: https://youtu.be/Uc7nviub_Tk

By defending people charged with crimes I protect justice for all

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During my career as a criminal defense attorney, I have represented hundreds of people who have been charged with serious offenses. From time to time either the nature of a particular case and/or its outcome will attract the attention of MahoningMatters and other media outlets. I know this will come as a shock, but I […]

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From exploding Pintos to out of control Teslas, trial lawyers fight to make cars safer

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Attorney David BetrasOn August 10, 1978, three teenage girls, sisters Lyn and Judy Ulrich and their cousin Donna traveling to volley practice on Route 33 in Goshen, Indiana were incinerated when the gas tank in their 1973 Ford Pinto exploded after the vehicle was rear-ended by a van. Technically speaking, they were killed in an auto accident. In reality, however, they were murdered by corporate greed.

That is because Ford executives, including President Lee Iacocca, knew the Pinto was a four-wheeled death trap. Rushed into production in 1970 after only two years of development and testing, the Pinto was Ford’s response to the influx of foreign-made subcompact cars into the American market that began in the late ‘60s. During the design process company engineers sounded alarms about the gas tank which was, for a number of reasons, vulnerable to rupture in low-speed rear-end collisions. They were also concerned because a large empty space behind the backseat allowed the entire back third of the car to crumple, wedging the body and frame tightly against the car doors, making them virtually impossible to open.

Fixing the lethal combination of an exploding gas tank and jammed doors would have cost the company $15 per Pinto. Iacocca’s response: “Safety doesn’t sell.” Not surprisingly, the boss’ attitude permeated the company when attorneys representing people injured and killed in the exploding cars unearthed what became known as the “Pinto Memo.” Prepared to help Ford block new fuel system safety standards being proposed by the National Highway Transportation Safety Administration (NHTSA), the memo’s authors estimated it would cost Ford $11 per vehicle or $137 million to comply with the new regulations. They weighed that against the $50 million in litigation and settlements costs the company would incur if the cars were not made safer. Their conclusion: “…the implementation costs far outweigh the expected benefits.“

Picture of Tesla that rear ended a fire truck.And so the company continued to manufacture and sell the deadly vehicles for more than a decade. During that time between 500 and 900 people were burned to death. The Pinto was not pulled from the market until the cost of settling lawsuits filed on behalf of the victims and the attendant negative publicity made the car unprofitable.

I was reminded of the Pinto debacle when I read a New York Times article about a series of accidents caused by Tesla’s autopilot system. The story focused on the death of 22-year-old Naibel Benavides who was killed when a Model S in autopilot mode traveling 66 MPH on a city street ran a stop sign and slammed into the parked Chevy Tahoe in which she was sitting. The car’s brakes were never applied.

While a Tesla is as different from a Pinto as the Wright Brothers’ plane is from an F-16, the cause of the crashes that killed the Ulrich’s and Ms. Benavides are the same: placing pursuit of profit ahead of people. Unlike Ford, GM, and other carmakers who use technology to restrict their systems to divided highways where there are no stop signs, traffic lights or pedestrians, Tesla allows drivers to use autopilot anywhere and everywhere. The results are predictable and tragic: the number of accidents involving Tesla’s system is skyrocketing.

And I suspect that lawsuits filed by victims are the only thing that will stop the carnage.

Every time I think of the victims we represent or read reports about companies who place no value on human life, I am reminded of why I went to law school, why I go to work every day, and why we should all fight to preserve the civil justice system that makes our world a safer place to live.

You have the right to remain silent…Use it because what you don’t say can’t be used against you in a court of law.

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Attorney David BetrasIf you have viewed Law and Order, Law and Order SVU, Law and Order Organized Crime, Law and Order LA, Law and Order Def Comedy Jam or one of the dozen or so other iterations of the franchise, you have undoubtedly heard a cop recite the following to a suspect as they slap on the cuffs:

You have the right to remain silent.

Anything you say can and will be used against you in a court of law

You have the right to talk to a lawyer and have him or her present while you are being questioned.

If you cannot afford an attorney, one will be appointed to represent you before any questioning if you wish.

You can decide at any time to exercise these rights and not answer any questions or make any statements.

Do you understand each of these rights I have explained to you? Having these rights in mind, do you wish to talk to us now?

Just a hint: the answer to the last question is always “no.” I will expand on this point shortly.

After watching Lenny Briscoe “Mirandize” a couple thousand criminals, people think they understand what the warning means. Believe me, they do not because this area of the law, like most, is extremely complicated. And that explains why 90% of criminal cases are solved when people who think they know their rights tell on themselves.

Man in handcuffsFor starters, according to the Supreme Court’s 1966 ruling in Miranda v. Arizona, law enforcement officers do not have to issue a Miranda warning unless they are conducting a custodial interrogation. In plain English, that means suspects do not have to be advised of their right to keep their yap shut unless and until they have been deprived of their freedom of action in a significant way.

In light of this fact, police officers often delay placing a suspect in custody and tell them they are free to go. They then begin asking questions that can lead to an arrest. For example, a police officer stops a driver who is swerving and asks, “Have you had anything to drink tonight?” More often than I care to remember, the driver, who I am almost invariably standing next to in front of a judge, will answer, “Well, I’ve had a couple of beers,” as if the officer will be satisfied by the qualifier “couple of beers” and happily send the driver on his or her way with a friendly wave.

Uhm, not so much. At that point, the officer, who was not required to issue a Miranda warning when he posed what amounts to the $10,000 dollar or so question, will ask the driver to exit the car, submit to a field sobriety test, and then a breathalyzer exam. At the end of the process, the driver will be arrested and Mirandized—which does not mean much at that point.

So, here are the takeaways from this week’s column:

First,  if you are stopped by law enforcement and questioned you are under no obligation to do anything other than provide your name and ID.

Second, remember, the police will delay placing you in custody so they can use what you say to establish probable cause for arrest.

Third, your pre-arrest statements are admissible in court.

Fourth: Shut up. What you do not say cannot be used against you.

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

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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.

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

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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