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Time for a Supreme Court retrospective; ‘goodbye and good riddance’

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Three days after assuming the presidency in 2009, Barrack Obama looked House and Senate Republican leaders in the eye and uttered the phrase, “Elections have consequences.” The just-concluded term of the U.S. Supreme Court proves the former president was exactly right — most likely much to his chagrin. I know I have written about the court often over the past few months. Thankfully, this will be the last time I address the topic for a while because the justices are headed off to do whatever they do when they remove their robes and go on vacation. Here is a retrospective on the 2021-2022 term, which, by any measure, was one of the most consequential in history.

I will begin with the biggie: Dobbs v. Jackson Women’s Health Organization, the 6-3 decision that overturned Roe v. Wade and tossed nearly a half-century of legal precedent on the trash heap of history. With hours of the decision, Ohio AG David Yost successfully petitioned a federal court to lift a stay on the state’s “heartbeat bill,” which bans abortions after six weeks and does not include an exception for rape or incest. A few days later a 10-year-old girl who was six weeks and three days pregnant as result of a sexual assault was forced to travel to Indiana to receive the medical care she needed.

The 6-3 ruling in New York State Rifle & Pistol Assoc. v. Bruen eviscerated a New York state law that required residents to obtain a permit to carry a weapon and will make it extremely difficult for other states to strengthen their gun safety regulations. Keep in mind, this is the same year in which there were mass shootings in Buffalo, New York; Uvalde, Texas; and the July 4th massacre in Highland Park, Ilinois, where seven people died including the parents of a 2-year-old toddler who was left to wander down the street as her mother and father laid dead.

A number of decisions eroded the constitutional wall the Founding Fathers erected between church and state. Most notable were Carson v. Makin, which will make it easier for state governments to divert tax dollars from public education to religious schools, and Kennedy v. Bremerton School District, which cleared the way for prayer at public school football games and other events.

The conservative 6-3 majority struck a blow in West Virginia v. Environmental Protection Agency by curtailing the EPA’s ability to order existing power plants to reduce their carbon emissions. Ironically, this means that if more kids are born as a result of Dobbs it will be more difficult for them to breathe. Just saying.

Because the federal government has not broken enough promises to or heaped enough indignity upon Native Americans, the Court ruled against the Cherokee Nation in Oklahoma v. Castro-Huerta. Conservative Neil Gorsuch joined the court’s three liberals in dissent arguing that the decision reneges on the federal government’s centuries-old promise that tribes would remain forever free from interference by state authorities.

Because even a stopped clock is right twice a day, I will acknowledge that the justices ruled correctly in a few cases, including Biden v. Texas, a 5-4 ruling that permitted the current administration to reverse a Trump-era policy that requires asylum seekers to remain in Mexico while their cases are reviewed in U.S. courts. And Biden v. Missouri approved a federal vaccine mandate for health care workers employed at facilities that receive Medicare and Medicaid funding.

So, with that, I will say goodbye and good riddance to SCOTUS’s 2021-2022 term and take a three-month break from writing about the Supreme Court.

Abortion rights supporters and anti-abortion demonstrators rally outside the U.S. Supreme Court on Nov. 1, 2021. | Drew Angerer/Getty Images

Leak of Alito’s draft Roe v Wade opinion threatens American jurisprudence

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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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Judge dismisses felony charges against former Liberty Schools Superintendent Joe Nohra

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In a ruling handed down on Wednesday, December 30, 2021, Trumbull County Common Pleas Court Judge Ronald Rice dismissed six felony counts that had been lodged against former Liberty Local Schools Superintendent Joe Nohra earlier this year. The ruling came in response to a motion filed by Atty. David Betras arguing that the statutes under which Mr. Nohra had been indicted were unconstitutionally vague. In a well reasoned six-page decision Judge Rice agreed:

“Therefore, upon reconsideration of Defendant’s Motion to Dismiss Counts 1-6 of the Indictment for Vagueness, the Court finds by clear and convincing evidence the Defendant has presented a presently existing set of facts that make the statutes unconstitutional and void when applied to those facts. The Defendant’s Motion is well taken and the same is hereby granted.” The decision may be viewed and downloaded here: Rice dismissal of Nohra felony charges

Atty. Betras hailed the decision as a victory for Mr. Nohra and the justice system. “As we have said previously, Mr. Nohra, at the discrection of the school board, and with approval of legal counsel, took appropriate action to protect the district and the taxpayers. He should have been commended instead of prosecuted,” Betras said.

Media coverage of the dismissal may be accessed by following these links: Vindicator       WKBN     WFMJ

Atty. Betras said BKM is prepared to mount a vigorous defense against the remaining misdemeanor charges that were included in the indictment.

When Mr. Nohra was indicted Atty. Betras pledges that the BKM legal team would aggressively defend Mr. Nohra in court and in the court of public opinion. “We simply won’t allow the people we represent to be smeared or damaged by rumors and innuendo,” he said. The firm also released the following statement on Mr. Nohra’s behalf:

“Mr. Nohra emphatically and categorically denies the baseless allegations contained in the indictment handed down yesterday by the Trumbull County Grand Jury.

After being presented with credible evidence that an employee of the Liberty Local Schools was engaged in activities that constituted theft in office, Mr. Nohra, with the knowledge and approval of the members of the Liberty Local Schools Board of Education and the Board’s legal counsel, initiated an investigation that resulted in the suspect employee’s resignation from the school system.

The actions described in the indictment were conducted in conjunction with and for the sole purpose of facilitating the above-referenced investigation. The members of the Board of Education and the Board’s legal counsel approved the use of surveillance equipment before it was installed. In addition, written Board policy authorizes the superintendent to utilize surveillance equipment when necessary and with approval of the Board which Mr. Nohra sought and received.

Mr. Nohra ensured that the Board members and their legal counsel were kept fully informed during each step of the investigation, were apprised of the evidence of wrongdoing that was gathered and were aware of its outcome. 

My client is both bewildered and astounded that he now faces criminal charges for taking decisive steps to protect the taxpayers and looks forward to defending himself against these ludicrous accusations.”

PREP Act Liability Protections worked, COVID-19 vaccines are safe and life-saving

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Attorney David BetrasAs Brad Pitt and J-Lo know only too well, being a celebrity, a status I achieved thanks in no small part to this column and the quite fetching full-color headshot that runs with it, can sometimes be a pain in the gluteus maximus. That pain has become excruciating in recent weeks as a growing number of incredibly intense people have accosted me in public because I believe everyone should receive the COVID-19 vaccine and I support vaccination mandates.

Look, I am more than willing to engage in a fact-based debate about the pandemic and the measures being taken to end it. But I run out of patience when someone shoves their smartphone in my face while I am sitting in a restaurant eating and screams DAVID, DAVID, look at this Facebook post—thanks for that Mark Zuckerberg—and then proceeds to tell me at the top of their lungs that the vaccines contain computer chips, are made from dead babies, will alter my DNA, and render me infertile.

Well, okay, none of those things are true, a detail that has exactly zero impact on the wild-eyed disbelievers who hover around me like buzzards circling roadkill until I give up and run for the door.

A couple of days ago, however, one of the vaccine resisters who has dedicated his life to disrupting my dinner made a relatively cogent point, albeit in a belligerent manner. “Hey, Mr. Big Shot Trial Lawyer, if the vaccines are so safe, how come the government passed a law that says vaccine makers and those who dispense it can’t be sued when their poison kills and maims people? Why did they leave victims out in the cold? They did it because they know the death toll is going to be in the millions, that’s why.”

COVID Vaccination Rates, U.S. and OhioSo, my tormenter is right about one thing: the federal government has extended nearly total liability immunity to manufacturers, distributors, prescribers, and dispensers of products developed to treat, diagnose, or prevent the onset of COVID-19.

But it is important to remember that the Public Readiness and Emergency Preparedness Act (PREP) which provides the immunity was not enacted specifically to protect the makers of COVID-19 vaccines. It was enacted by Congress and signed into law by George W. Bush in 2005 in the wake of a serious bird flu outbreak. The rationale for the law was simple: the liability shield would give drug makers the protection they needed to respond quickly and effectively to a public health crisis.

When Coronavirus hit, the law worked exactly as planned. On February 4, 2020, the Trump Administration declared COVID-19 to be a public health emergency and invoked PREP. Within months the first vaccines were ready for use. Today, 191 million Americans have been vaccinated, and due in large part to vaccine mandates imposed by employers, the spread of the Delta variant is easing rapidly.

While my anti-vax buddy was right about the existence of the liability shield, he was wrong when he said those hurt or killed by the vaccine would be left out in the cold. Anyone who believes they have suffered serious side effects from a COVID-19 vaccine is eligible to file for benefits from the Countermeasures Injury Compensation Program (CIPC), a special fund established to provide payments to anyone who was injured by any drug or treatment related to a PREP emergency declaration. To date, while 416 million doses of the vaccine have been administered only 296 COVID-19 related claims have been filed.

Now that is a statistic that should be all over Facebook.

Supreme Court will decide unprecedented number of blockbuster cases during 2021-2022 term

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Attorney David BetrasLike kids counting the days until Christmas, attorneys, legal scholars, and jurisprudence junkies, including me, eagerly anticipate the first Monday in October, the day the Supreme Court of the United States (SCOTUS) begins its new term each year. We can barely control ourselves as we wait for the justices to decide which of the 7,000 cases submitted to them annually become one of the 150 or so they hear.

Under normal circumstances, the justices go about their work in relative obscurity because the cases on the Court’s docket, which is dominated by battles between states over water rights, business disputes, and arguments about arcane legal principles, do not impact the lives of most Americans or generate much media coverage aside from long, jargon-packed pieces posted on SCOTUSblog. Believe me, if you have insomnia, spend a few minutes on the site and you will be sleeping in no time.

This year, however, is far from normal. Although the 2021-2022 term is less than two weeks old, the Court is under intense scrutiny because the justices have agreed to hear a number of cases that may ignite legal and societal firestorms while further undermining the public’s waning support for the Court which was once widely regarded, in the words of Alexander Hamilton, as the “least dangerous” branch of government.

Entrance to US Supreme CourtChief among the potential blockbusters is Dobbs v. Jackson Women’s Health Organization, which centers on a Mississippi law which, with few exceptions, prohibits abortions after 15 weeks of gestation. Dobbs gives the Court the opportunity to overturn  Roe v. Wade which established a woman’s right to choose and Planned Parenthood v. Casey, which protects that right until viability. It is, quite simply, the most important reproductive rights case to come before the Court in 30 years.

New York State Rifle & Pistol Association Inc. v. Bruen is the first significant firearms case to come before the Court since the 2008 ruling in District of Columbia v. Heller that extended Second Amendment protections to individuals. Bruen arrives at the Court on appeal from the 2nd Circuit which upheld New York state’s strict gun licensure law which requires residents to obtain a permit to possess a firearm and totally bans open carry. A decision in favor of the Association could gut gun laws across the nation.

Like Bruen, Carson v. Makin which challenges Maine’s prohibition against using state funds to pay tuition for schools that offer religious instruction has nationwide implications. The justices will decide if Maine’s law violates the free exercise, establishment, and equal protection clauses of the Constitution. If they so hold, voucher programs across the U.S., including Ohio’s will be impacted and taxpayer dollars will begin flowing to schools that promote religion.

Other important cases include Students for Fair Admissions v. President and Fellows of Harvard College which poses a lethal threat to race-based college admission programs,  CVS Pharmacy Inc. v. Doe which involves alleged discrimination against persons with HIV, as well as cases focused on national security, campaign finance laws, and Texas’ new draconian abortion restrictions.

The last time the Court ruled on this many consequential cases in one term was, well, never. Throughout history, cases of similar magnitude to the ones on SCOTUS’ 2021-2022 docket were heard and decided every five or ten years. As a result, one thing is certain: the justices will not labor in obscurity over the next 12 months.

Ohio Supreme Court says hijacking law firm names to drive Google results is a deceptive practice…

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Attorney David BetrasI am the managing partner of this law firm which means I am a businessman, which means I am an advertiser. I understand that some people are appalled and offended by attorneys who market their services and are fond of referring to personal injury attorneys as ambulance chasers.”

That is ironic for two reasons: first, because the term was coined in the days when attorneys were forced to contact potential clients and their families directly because the bar was barred from advertising and, second because the pejorative is used regularly by the folks who run or work for mammoth insurance companies that spend hundreds of millions of dollars per year on marketing.

Talk about hypocrites. I guess it is ok for Allstate to spend $500 million annually to convince accident victims that they are in good hands, but I am a ghoul for spending less than one-two thousandth of that to tell them the company is using those hands to pick their pockets.

Go figure.

But I digress. What I really want to discuss in this column is the way marketing in my profession has evolved since 1977, the year the U.S. Supreme Court ruled that lawyer advertising was commercial speech entitled to protection under the First and Fourteenth Amendments.

Immediately after the decision in Bates v. Arizona was announced law firms began using every available advertising medium to contact clients including television, radio, billboards, direct mail, and the Yellow Pages. For readers too young to remember, the Yellow Pages were the business directory section of something known as a phone book—a thick printed directory that listed every phone number and address in a community. Think of it as a printed version of Google, only much more difficult to use.

Anyway, because the phone book was the way most people obtained phone numbers for businesses, competition for the highly visible and easily accessible parts of the directory including the covers was fierce. Attorneys often paid tens of thousands of dollars for the coveted spots which explains why every Yellow Pages sales rep back in the day drove a Porsche, Cadillac, or Corvette.

Today, the Yellow Pages have been replaced by Google, Yahoo, Bing, and YouTube. The bidding wars for frequently searched keywords like “accident attorney” are every bit as fierce as the battles that raged for prime placement in the phone book with one major difference: the competitors cheat by doing things like purchasing the names of other law firms.

Here is how it works: a person who has been injured wants to contact my firm. They search for Betras, Kopp & Harshman. The result comes back in a millisecond, but the phone number and website that pops up belong to the law firm that is paying the most for our name on that day. So instead of calling us, the potential client calls one of our competitors.

I think the practice is dishonest. The Ohio Supreme Court agrees and recently issued an opinion that said using another firm’s name to drive traffic to a law firm’s own site “may constitute conduct involving dishonesty, fraud, deceit, or misrepresentation,” and is an act “…designed to deceive an Internet user.”

I applaud the Court’s ruling. Now, if we could just get the justices to force Nationwide to admit they are not on our side…

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.