The Verdict - The Lombardi Law Firm Blog
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On October 2nd 2009 a Georgia man died after being stunned by a Taser during a law enforcement BADGES investigation. While the investigation is ongoing and there has been no word yet on how many times the individual was Tased, we have to ask ourselves how safe are these devices? And, should the public continue to call these devices non-lethal weapons?
The BADGE officers stated that they stopped the vehicle Friday afternoon in the area of the Turtle Lake Apartments, the officers saw that one of the vehicles occupants was, “consuming an unknown amount of what appeared to be narcotics” and in an attempt to prevent him from “consuming or destroying” a struggle began which is when the officer pulled out his Taser X26 and began to stun the man. While the stun guns are only designed to have 5 second blasts it is unknown how many times the officers stunned the individual. When the officers realized that he was in need of medical attention they rushed him to the hospital. The facts of this case raise questions of what substance the arrestee was eating and how that may have contributed to his demise.
Two other individuals in the vehicle where arrested and charged with possession of a controlled substance with intent to distribute, possession of drug paraphernalia, and a third was charged with weapons and drug charges.
Without referring to the facts of this case I’m predicting there will be continued litigation involving Tasers, how they are being used, how they function and it will lead to research that will demonstrate the internal functioning is not as reliable as has been assumed; the question will arise as to a defect in that the electrical pulse isn’t as constant, predictable and reliable as we are being lead to believe; or even what we have assumed. The Taser supporters can get as mad as they want towards those raising questions about the Taser’s reliability and how they are being used by law enforcement, but that will only spur on those asking the questions and demanding more research. Those individuals commenting on this blog in support of Tasers like to accuse the lawyers of trying to drum up business, but that only serves to deflect the main concerns of lawyers and other citizens. The civil rights of Americans is what is at stake, something much more important than a stock’s price. Many lawyers, including this one, believe there is a place for the Taser in the weapons police carry and are authorized to use; but we can’t blindly accept the notion that civil rights take a back seat to convenience or a stock's price. This fight is long from being over.
How about if Taser, International opens up its research library and testing data to some news organization along with what it gives to the Wall Street Journal?
Taser's stock price was down to around $4.62 from a high of over $33.00 since January 2005. One has to wonder if the 'market' suspects something about the product that most of America is willing to ignore or remain ignorant about.
It’s called the Hatley Amendment, in honor of Frank Hatley, a 50-year-old man who’s been in jail since June 2008 for not paying child support even though two separate DNA tests in the last nine years prove he’s not the father. The courts often times by technical defaults find a man is the father, even though he isn’t the father, order him to pay child support, and when he doesn’t he goes to jail for contempt of court. Even if wrong, you can’t ignore a court’s orders. You can appeal them but you can’t ignore them. If you do you go to the slammer.
For those mothers who wrongfully identify a man as the father father’s rights groups would love to see the accusing mother jailed.
Well, that’s not the law, but one wonders if it should be the law. You mother’s can calm down you’re not going to jail, but many believe you should for wrongfully accusing men you sleep with of being the father of a child born out of wedlock. Poor Frank Hatley sitting in jail all this time for contempt of court for not paying court ordered child support, based on a finding of fact that is clearly incorrect.
Most of you will wonder how this can be happening in America. Let me try to explain. State policy concerning entry of child support orders is broadly stated as follows:
1. That a parent should support their children.
2. That the child is the most important concern.
3. That parent-child relationship, including support orders should be established as close to the births date as possible.
That’s the state policy; when a single mother gives birth and files for state aid for the child the state steps in requiring her to identify the possible fathers. Moral values being what they are many don’t know who the sperm donor could be so they either name them all or pick and choose from the possibilities. Some were inebriated and have no clue who they slept with on any given night so those men are allowed a get out of jail card. The state then notifies the likely suspect or suspects, files for a court hearing on paternity and the Court decides on paternity, in many cases based on incomplete evidence. In some of those cases, probably where only one man has been identified as the most likely suspecting sperm donor, for many reasons doesn’t respond to the Petition. In some cases the service was on a relative where the father was thought to live. That’s called substitute service. If the father fails to respond, oops sorry Uncle Frank I forgot to give you those papers, the Court enters a default judgment finding this man is the man who gets the child support lottery ticket! The Court then enters Judgment and sends Frank the winner’s letter. “Congratulations Frank, You’ve won the right to pay child support for the next 18 to 22 years! Think of it like you would a lotto jackpot win; except in reverse. Instead of receiving a monthly check you get to send us one!”
Soon Uncle Frank gets news that he’s won and he’s probably mad, gets a lawyer and they do the DNA tests which show that Uncle Frank really isn’t Father Frank. He says this isn’t fair and the Court says read the rules. The mother sings,
“One, two, three and it’s you and me.
You're up on deck, now send the check!”
Meanwhile the Franks out there say no way for me to pay. The Franks don’t act like fathers and the kids get caught up in a childhood of legal wrangling and fighting that further destroys the fabric of a pleasant childhood. So is the state policy really making any sense? It doesn’t seem to be.
So I ask the question what does make sense. Certainly mothers can see the unfairness of making a man pay child support for a child that is someone else’s. The States shouldn’t have to pay for ADC (Aid to Dependent Children and Title XIX medical benefits) when there is a father out there that can be identified. But is it right for the States to take money from just anyone that has slept or she says slept with her just because they failed to defend themselves? Even if the man did defend, if a DNA test later shows the man isn’t the sperm donor is it right for the States to continue to require him to pay child support on a child that isn’t his? It doesn’t seem to be.
You might wonder how this miscarriage of justice can be corrected. Simply put if all support orders required a DNA test it would go a long way to avoiding injustices like the one befalling Frank Hatley. But, who is going to pay for the DNA tests when many of those having sex and babies can barely afford to pay the filing fee to file the case? Are the tax payers going to be the one’s to do it? We could enter an order requiring the father’s to pay. That way if we later find them they could be ordered to reimburse the State.
As a lawyer I find it an interesting legal question, whether the entry of a child support order is state action requiring constitutional safeguards that would also require a DNA test before a child support order could be entered when the alleged putative father is in default; not defending himself.
In conclusion, my title is misleading, you mother’s aren’t going to jail but I did need to get your attention. You need to do everything you can to make sure these men defend and that you’re identifying all the likely suspects. The wrong man is the wrong parent for the child’s court ordered father. Childhood isn’t in anyway enhanced by the Court finding the Frank Hatley’s of the world the putative fathers – when in fact they are not.
And Frank Hatley has a little different fact scenario, based on his discussions with the mother it’s reported that he believed he was the father and had agreed to reimburse the State of Georgia.
“Hatley had a relationship with Essie Lee Morrison, who had a baby in 1987 and told Hatley the child was his, according to court records. The couple never married and split up shortly afterward.
In 1989, Morrison applied for public assistance through the state Department of Human Resources. Hatley agreed to reimburse the state because he believed the boy was his.”
If you’ve slept with other men then you need to make a complete disclosure to the man you believe is the father. A complete disclosure is necessary for the man to agree he is the father. In those instances the man should have the option to consider DNA testing before agreeing to consent to paternity.
As for Frank Hatley seeking compensation or his friends saying he should be compensated, I don’t agree. He agreed to reimburse the State of Georgia. Men have to be smart enough to challenge a woman with a DNA test before consenting to paternity.
Fair is fair and it appears that Frank Hatley didn’t have all the necessary information before agreeing to reimburse the State of Georgia. If he had I would have no sympathy for him today.
If you want to see how contentious the issue of child paternity can get, watch this video where it’s alleged child support was ordered to be paid on a child that never existed. I’ll blog on this and report more on it later.
According to the Des Moines Register, Ryan Wacome has been charged with a series of thefts at Des Moines City Hall. Wacome was a 20 year-old janitor. The Register says that small amounts of money were missing from desks over the past month so they contacted the Des Moines Police Department and set up a sting operation. A detective put a "small amount of money" in a desk and placed a camera to record whatever occurred. The camera allegedly caught Wacome removing the money. I hope he has not been charged with the other alleged thefts as has been reported. It would be one thing for him to agree to make restitution for the other amounts of money, but it would likely be a violation of his rights to get convicted of the other alleged thefts. Even if he confesses, Iowa criminal law requires more than that for an otherwise uncorroborated crime. I would also be curious to hear what evidence there is that the other thefts actually did occur. I keep some pennies and nickels in my desk but I can't tell you how many. Let me look, hmmmm, I thought I had a few more. Better call the Des Moines PD and set up a sting.
But here is the other thing: video and photographic evidence are sometimes the most unreliable evidence. Look at this photograph of an alleged burglary yesterday in Des Moines. Jurors are common people just like you or I, and if its difficult to tell who is in the photo, then that is not proof beyond a reasonable doubt. Thankfully most jurors are cognizant of that fact. I once had a convenience store robbery case where it was caught on surveillance video. The clerk alleged a weapon was displayed and she was stuck in the cooler. There was a cop in the parking lot and my client was nabbed walking out the door into the parking lot. It was 5 a.m. Very few other persons were around. The person in the video did resemble my client and he was facing a 62-year prison sentence. For good reason, my client is a free man today. A photo is not always worth a thousand words.
Next week let me talk about eyewitness testimony and whether or not it's reliable. In the meantime you can watch this video clip and test your own ability for being an eyewitness.