Dean Obeidallah is a former lawyer turned political comedian and commentator. Dean has appeared on numerous TV shows including CNN, Comedy Central's "Axis of Evil" Special, Current TV's "The Young Turks," ABC's "The View," MSNBC's "Up With Chris Hayes," NBC's "Rock Center," and ABC's "Nightline." Dean has written articles for CNN.com, The Huffington Post, BBC Radio and written jokes which have appeared on NBC's "Saturday Night Live's Weekend Update" segment and CBS' "The Late, Late Show." He is also co-director of the soon to be released "The Muslims Are Coming!" Twitter: @deanofcomedy
Website URL: http://www.deanofcomedy.com
Two lesbians and a black man walk into a sperm bank – sounds like the beginnings of a bad joke. Unfortunately, it is the true reality for a couple in Ohio who sought to have a white baby by choosing a white male donor until the sperm bank made an irreparable error.
Jennifer Cramblett and Amanda Zinkon, a white couple, went to the Midwest Sperm Bank in the Chicago area and chose donor #380. They picked that donor because his coloring, blond-haired and blue-eyes, is similar to Zinkon. The goal was obviously to have a baby that resembled them as much as possible.
As you probably figured out, the couple didn’t get donor #380. Instead, Cramblett was inseminated with sperm from donor #330, who was neither blonde hair nor blue eyed. In fact, the donor was actually a black male.
The couple learned of the clinic’s mistake in the 5th month of the Cramblett’s pregnancy yet still decided to have the child, even if she would bear little resemblance to them physically.
So in 2012 the couple welcomed into the world baby Payton. A healthy baby girl that the couple says they love, “unconditionally.” End of story, right?
Of course, not. It turns out while the couple was welcoming of Payton, not everyone in the 98 percent white community where they live shared those warm, fuzzy feelings. (Apparently being a lesbian in the town is fine, as long as you’re a white one.)
Citing fear for the child’s future in an all-white school, the couple now want to move to a more diverse area. And, as would be expected, the couple did what any red-blooded American would – they sued.
The couple’s lawsuit asks for $50,000 in damages that frankly seems quite reasonable for such a monumental blunder. To be clear, donor #380 was substituted for donor #330 because a “3” and an “8” look alike when handwritten because Midwest Sperm Bank’s records are HANDWRITTEN. There is no computer database to hold what is supremely private, personal information - just a bunch of papers probably mis-alphabetized in a file cabinet.
How can this be??? Don’t sperm banks have to abide by certain regulations? Yes they do. The U.S. Food and Drug Administration (FDA) started regulating reproductive tissue banks in 2005. The FDA rules include protocols for screening and testing donors as well as record-keeping. The FDA also audits sperm banks through site inspections to insure compliance. And most major sperm banks are licensed and inspected by states.
Still, am I the only person who thinks this has got to have happened before? Whether it’s a mix-up, mistake or what Jason Bateman did to Jennifer Aniston in The Switch. (If I can admit I’ve seen it 12 times, you can admit you’ve seen it once.) I am not all that surprised in what I originally thought was a more common method of conception.
There are no industry-wide statistics on the number of anonymous donors inseminated births per year - strange, no? The media often reports it as 30,000-40,000 annually, whereas the American Association of Tissue Banks states it to be only between 4,000-5,000 (based on 1.5 vials per insemination, a 10% pregnancy rate per cycle and a 20% spontaneous miscarriage rate.)
Cramblett and Zinkon’s lawsuit foreshadows a stifling future if Payton is to be raised in their small “racially intolerant” town. But should that be the couple’s only concern? Doesn’t simply being a child that is a partial product of an anonymous donor have other long-term repercussions?
In 2010 the Institute For American Values published a study on young adults conceived through sperm donation. “My Daddy’s Name is Donor” examines multiple facets of the donor child’s experience and whether a connection exists to how they were conceived. The study found that the children “fare worse than their peers raised by biological parents on important outcomes such as depression, delinquency and substance abuse.”
While 45% overall reported that it bothers them that money was exchanged for their conception, children born to heterosexual or lesbian couples seemed to “hurt” less than those born to single mothers. Yet practically half (47%) of donor offspring are concerned that their mothers may have lied about “important matters” while growing up, compared to only 27% of the adopted and 18% with biological parents.
Cramblett and Zinkon are worried about raising their biracial daughter in a rural homogeneous area which unquestionably is a valid concern. But apparently that is only one of many issues when having a donor child. The lawsuit has two causes of action; breach of warranty, which is basic contract law, and wrongful birth. Ouch. How is a grown-up Payton going to feel about that one?
This intersection of law, race, sexuality, medicine and parenting has prompted interesting debate and criticism but it isn’t just part of the news cycle; it is going to define a baby girl’s life. If Midwest Sperm Bank wants to keep its best swimmers in stock, they will settle this case thereby allowing Cramblett and Zinkon to relocate. And then maybe buy a computer so this type of error never occurs again.
October 13, 2014
Dear Bill (I hope you don’t mind if I call you Bill because it’s the nicest word I can use to describe you at this point):
We get it. You are an aggressive atheist. You abhor religions. For you it is fashionable to be controversial. Being edgy is part of your job description. Congratulations, you are now so edgy that Bill O’Reilly of Fox News agrees with your views. Bill the Liberal and Bill the Conservative have now found common ground – Islamophobic Bigotry.
Let me ask you, Bill, are you back-paddling out of the muddy creek you created on your HBO Show Real Time With Bill Maher last weekend with your recent remarks: “We’re liberals! We’re liberals? We’re not crazy tea-baggers, y’know.” Your definition of a liberal and the responsibility of being one, is as ludicrous as ISIS’s distorted execution of Islam. You said: "Liberals need to stand up for liberal principles… these are liberal principles that liberals applaud for [pointing to his audience], but then when you say in the Muslim world this is what’s lacking, then they get upset."
When did principles “like freedom of speech, freedom to practice any religion…” become principles defended only by liberals? Your guest on the show Sam Harris added, “Liberals have really failed on the topic of theocracy…” Theocracy failed by liberals? Pandering much? These “principles” you throw around are U.S. constitutional rights championed by all liberals, non-liberals and anyone in between. Why must a liberal have a duty to “criticize” bad ideas where “Islam is the mother lode of bad ideas” according to Harris? Feel free to stereotype almost 1.6 billion people worldwide because this is your God-given liberal duty? Really?
Since you have been pushing the envelope of bigotry, increasingly so in the past few years, I am glad Ben Affleck called you on it, if only to open a door for fair discussion. Go ahead and instigate debate on the general uselessness of religions. You may think Muslims can’t take a joke or two. “We” can. What upsets “them” is the persistent spin of Islamic views and utter lack of knowledge of the diverse 1.6 billion people so conveniently generalized and stereotyped.
Bill, can I ask you a simple question: what does the “Muslim World” look like to you? What is the color, race, age, or gender of the 1.6 billion people you casually label as “they”? Can’t answer this question? Don’t worry, there is no easy answer because we are not as homogeneous as you would make everyone believe “us” to be.
It seems that sometimes you are so in love with your own views that you argue to spread bigotry and not to understand the multitudes of varied Muslims who universally champion human rights and all the “liberal principles” you mentioned. What would you accomplish by asking liberals to criticize 1.6 billion people? Present the caricature of Islam and Muslims as one homogeneous evil and intolerant group of 1.6 billion people?
Stop propagating hate by equating a small subset of 1.6 billion people to the whole of 1.6 billion people. This concept is not rocket science. But let me simplify it even further. Would you say: All creatures of the sea are sharks? No, you wouldn’t because it is false and presents an incomplete picture of all the creatures of the sea. You are being immensely unintelligent when you lump together what you perceive to be “us”. I suggest you do your research, use your writers to provide credible, fair and historically correct information.
Now, Bill, you said: “the only religion that acts like the mafia, that will fucking kill you if you say the wrong thing”. Do you even realize how unintellectual this statement is? A religion in itself can’t act like a mafia only individual elements can. And no, I will not “fucking kill you” (as you hypothesized) because I think you said a “wrong thing”. But I will not laugh either because Islamophobic bigotry is not funny.
Let’s address the white elephant in the room you so enjoy to beat to death. Yes, Muslims face an array of issues based on their region of residence and geo-economical factors. Yes, a radical element has taken a very sadistic turn, and unfortunately shaped up to be ISIS or the Taliban or the numerous other fundamental groups and regimes, the majority of Muslims also abhor and stand up against. Thank you for highlighting ad nauseum the horrors of the “Muslim World” but for the sake of variety let’s also talk about the majority of the 1.6 billion Muslims who are peaceful and tolerant. For example, talk about the fact that five out of the last twelve Nobel Prize winners have been Muslims, out of which 3 were Muslim women. Focus on these Nobel Prize winners who do not represent the horrendous minority segment you love to highlight to spread Islamophobic bigotry.
Can you please stop making each and every Muslim accountable for the actions of the small unrepresentative minority. Stop stereotyping. And stop spinning what a Muslim may or may not believe. Understand, for example, I as a female Muslim, have not been brainwashed and I definitely don’t need to be rescued by a “liberal” like yourself.
And please, do not act like I don’t exist. Muslim women exist and excel in many shapes and forms all over the world. We do have grievances and issues just as women of any faith or set of beliefs, in any part of the world. But the issues we face are as diverse as the colors we are. In veils, in scarfs or in skirts (depending on which premium cable and satellite television you follow) we have arrived. And we are here to stay. So might as well acknowledge and embrace our diversity.
In closing Bill, I request you to invite scholars to engage in a calm conversation about Islam to present real and representative views from all sides, and most importantly without the predisposed Islamophobic bigotry.
What do you say, Bill?
Faryal Malik is an Intellectual Property attorney by profession and an avid backpacker by passion. She aspires to be kind, humble and generous to attain peace in the journey of life. She tweets @desinewyorkers
October 11, 2014
I can see where a man like Bill Maher is coming from when it comes to Islam. As he would have it, Islam is a violent religion that runs counter to all that we as Americans hold dear – freedom, justice, democracy. Of course, he is not alone in this assessment. Indeed, such a view is a majority opinion among non-Muslim Americans.
It’s an opinion that, as a child of 9/11, I grew up believing too.
But then I grew up.
My understanding of what Islam is and who Muslims are changed from being obscured by the gore of terrorism to one more rooted in reality. The slime of stereotype applied by those who touch topics in the most superficial of ways was replaced by revelations of actual experience. I took Arabic in college, took courses on the Middle East and Islam, and even studied abroad in Egypt. Then I lived in Pakistan. I worked in Islamabad which, translated, means the “Abode of Islam.”
Now, let me get something straight. I’m a Christian American, which are two things we’ve been taught that people like those Muslims in Pakistan just don’t like. In our current understanding of Islam, I’d fall into the category of the kuffar, or “the unbelievers.” As such, to all those who view Islam as evil, I should be put to death by all able-bodied Muslims. Anywhere. So how is it that a young kid like me could possibly survive even a day in the very den of this vile religion?
My answer: putting faith in people. This faith was backed by an effort to understand their state, their position, and their history so as to more aptly engage in what many would see to be a hostile environment. I did not go to Pakistan as some imperialistic, ignorant American. I went to learn and to represent my country by representing myself as best I could. That required me to live as a regular citizen. No bodyguards, no compound, no gun.
But in an effort to break my own stereotypes of this place and this religion, I had to work to show Pakistanis a different side of America than what they may be used to. Think about it: if you were a Muslim in Pakistan, what would you think when you think about America? Apple pies and the Fourth of July? Hardly. You’d think of soldiers, drones, ignorance, and probably a Big Mac. I worked hard to share a different side of the States, which I believe enabled me to see a different side of Pakistan and Islam than what I previously accepted as fact. As a result, I had an incredibly positive time in this “ally from hell” of ours. My experiences may well go beyond anything that those hung up on this hatred of Islam could comprehend.
Truly, my experience there was an introduction to an Islam that I never knew. It’s an Islam that, unfortunately, so many at home in the States seem too stubborn to ever want to know. But I have a few questions for these folks that might shed some light on the Islam that they never knew existed.
To those who believe that Islam is the antithesis of Christianity, I ask if you’ve ever heard the solemnity of the call to prayer. I wonder if you wish peace upon others (a common greeting among Muslims the world over) more than once a week in church. I yearn to know if you disown Terry Jones (the man who burned the Quran a few years ago) to the same extent that you ask Muslims the world over to speak against the self-proclaimed Muslims that all Islamist terrorists are.
To those who see Islam as anti-democratic, how is that we allow ourselves to define Islam by a few unelected individuals who no more represent someone’s faith than Donald Trump represents America? If we believe in democracy at home, surely we must apply it to our portrayal of others.
To those who see Islam as anything but tolerant, how is that we tolerate ourselves so carelessly referring to a “Muslim world,” as if all Muslims existed on another planet? Such convenient phrasing serves to externalize over a billion people in the one world in which we all live. When we use such intergalactic references, we’re not talking about Muslims anymore – we’re talking about Martians. We need to bring this conversation back to earth – this earth.
Islamophobia is real, it is a problem, and it’s a really big problem. The fact that Islam is the fastest growing religion in the world should not be a concern to us; rather, it should serve as a reminder of the importance to understand it better. This necessary understanding need not involve going to Pakistan, but it absolutely requires another proud American trait of ours: courage.
We would do better to muster the mental courage to think beyond what the pundits and the pols might say about a certain place or a certain religion. When we assume this courage and are no longer beholden to stereotype, we can make our own determination of the world. We can change what we think we knew about Islam by allowing ourselves to seeing the reality so readily available to us.
David Peduto is a student of Islam, the Middle East, and Arabic. He lives in Boston where, when he's not working for a Big Data company, he enjoys paddle boarding on the Charles River and performing improv comedy.
How To Get Away With Murder, the latest venture in Shonda Rhimes’ quest for network television domination, stars Viola Davis as Criminal Defense Attorney/Professor Annalise Keating. As a real-life defense attorney and former prosecutor I am always curious to see how accurately the criminal justice system is portrayed in entertainment. They usually get it wrong – and this show is no exception.
Now before everyone jumps all over me, let me begin by declaring I am a fan of all things Shonda. I still adore Greys Anatomy (that’s right, where are the rest of you, huh???) I continue to mourn the end of Private Practice (why, oh why, God did You take Dr. Taye Diggs away, God – WHY??!) And I never miss a solitary second of Scandal. So despite my inclination to reject another lawyer show….I live Law & Order folks, I don’t need it in my free time…I decided to take a gander for no other reason than Viola teaming up with Shonda is an epic meeting of mighty females.
Five minutes into the pilot I was renaming the show, How To Get Away With Playing A Defense Attorney. Definitely less OMG than WTF?! And by the second episode I compiled a list of why I reasonably doubt the premise of Shonda’s new gig. Ladies and Gentleman – here are your Top 10:
1. The Field Trip
In the first episode Annalise takes her entire law school class to interview her client accused of attempted murder……uhhhh…..WHAT????? People – this would NEVER happen. First off, the client would never agree to it; but putting that aside each student becomes a potential witness. The attorney-client privilege does not attach because at that point none of the students were working there. Each student could be called by the prosecution to testify (don’t say they would never find out because they always do) and those little notebooks they were eager beaver scribbling in would also have to be turned over to the prosecution.
2. Where is Magnum PI?
Criminal defense attorneys do not have 1st year law students collecting evidence. They’re barely equipped to make coffee (or maybe that was just me?). If any of those knuckleheads were to get injured/threatened/in trouble it’s the attorney who faces a malpractice suit, disciplinary action or worse, suspension from the Bar. Further, if you don’t have an investigator and lose at trial, the attorney could face an ineffective counsel claim on appeal. Luckily Connor bed the IT geek to get an email, Michaela impersonates an insurance rep breaking health privacy laws and Annalise wins the case.
3. Reality Check
Professor Keating uses her own, open, ACTIVE, PENDING cases to teach her criminal law class. Through a power point the case photos, evidence and crime scene are displayed. So. Much. Wrong. It’s a violation of professional conduct, the code of ethics, undoubtedly attorney-client privilege and just plain dumb. Equally perplexing is that Annalise asks the students for help on these cases; a seasoned, skilled 40-something-year-old trial attorney is asking for Romper Room’s assistance. Really. That would happen.
4. Fashion Police
Who doesn’t love a tight, sleeveless dress on the body of Viola Davis? Any Judge in America that’s who! Relax feministas. The unwritten rules are for both male and female lawyers in the courtroom – sleeves are just one of them. There is no way any Judge would let a lawyer strut around inside the courtroom like that, especially on trial. Point of fact, I almost had a Judge refuse to allow me to do an arraignment because I had a sweater on instead of a suit jacket (arraignments is a smelly, dirty, lively circus where I don’t bring my best duds). A male attorney friend once went into night court (yes, that’s a real thing) with a jacket sans tie; the Judge then ordered him to put on a tie if he wanted his case called. Luckily Canal Street, with an impressive $10 selection of menswear, is around the corner.
5. “You’re only as good as the people you hire” – Ray Kroc
By now you’ve become weary of my repetitive ‘this would never happen.’ So I will pause it. Let’s just examine the facts: after about a month of being in law school Annalise hires 5 students from her introductory criminal law class. Five children who at that point in their studies don’t know the difference between a brief and a bong hit. She’s known them for what twenty minutes? Yet she entrusts them with her home, her office and her career. Jeez, I went through a more rigorous application process to work at Dairy Queen.
6. Sleeping with the Enemy
Annalise has a husband and a boyfriend – remember that no so subtle introduction to Detective Nate? The defense attorney sleeping with the cop isn’t the most likely scenario because after being a defense attorney for a while you start drinking the Kool Aid. You start believing the cops really did frame your client, beat a confession out of him and hid evidence. Defense attorneys don’t often mingle with the fuzz. On the other hand, as a prosecutor it’s practically a rite of passage to sleep with a cop (so I’ve heard). And although the prosecutor-defense attorney affair is cliché it is completely accurate (hey, stop pointing fingers!) and rampant in the courthouse. Well, maybe not in the courthouse. Actually……
Apparently they were on vacation during the second episode. The crime scene is a bedroom where the defendant, played by Steven Weber, allegedly killed his wife. The bedroom is left ‘as is’ replete with bloody linens, walls and carpets. This is not just reality ridiculous – anyone who watches anything knows that evidence WITH BLOOD ON IT is collected! And remember when one of her legal genius law students suggests retesting for DNA. After you’ve rolled around in the bed? Great idea, kiddo.
8. The Bail Out
Why are all the murderers out??? In the first episode the crime was attempted murder, the defendant appeared wealthy and it was probably her first arrest so perhaps she was able to pay the high bail. But Steven Weber’s character in the second episode? Very little chance bail would have been set; he would have been remanded to stay in jail while awaiting trial as is often the case with murder. The Court would have looked at his ability to flee the country, that the murder occurred in his home and that he was accused of murdering his first wife. At least make the guy where an ankle bracelet!
9. Rap It Up
I am almost done with the #HTGAWM bashing, but this is a big one. In the second episode Annalise finds out, in the middle of trial, that Weber’s character was accused (and actually did it) of killing his first wife in Switzerland. In the middle of trial. Why didn’t she know this before? Either her client didn’t tell her or she didn’t find out - because she doesn’t have an investigator! Result is that Annalise Keating looks like a bad defense attorney. And the prosecutor is obligated to have turned the rap sheet over wayyyyy before trial. Pulling that kind of stunt mid-trial has mistrial written all over it.
10. Innocent until proven Guilty
Professor Keating opened last week’s show with: "The question I’m asked most often as a defense attorney is whether I can tell if my clients are innocent or guilty? And my answer is always the same: I don’t care." Now that is real! Truly we don’t care. It has nothing to do with the job and as the Prof. correctly explains it is because our clients, like everyone, “lie”.
So there you have it. My real-life criminal defense attorney perspective of How To Get Away With Murder. Will I continue to watch? Of course. Even though it may be off base it’s Shonda. And Viola. I just wish someone would create an accurate portrayal of the criminal justice system and realize, - the truth is way more fun than fiction.
[Sidebar – for an authentic depiction of a criminal defense attorney’s life see The Lincoln Lawyer with Matthew McConaughey]
There is a war going on at University of Chicago on social media. And here’s the part that should concern you: Your own freedom of speech might just be a casualty in this battle.
Last week, University of Chicago students published The Hyde Park List, via Tumblr, with names of men who have allegedly committed “varying levels of gender-based violence.” This list, complete with color-coded threat levels, was quickly taken down. But as it seems as with so many things posted online, it reappeared a few days later. This time there were more names added and the list was soon circulated on the university’s campus.
In retaliation, the "UChicago Electronic Army" hacked into a student club’s website, targets one of the victims and promises to “rape harder.” Nice.
These students are at war with each other, albeit a war of words, yet one that raises the question – do we have the right to accuse, threaten or harass using social media as a shield and our language as the sword?
The First Amendment includes Freedom of Speech aka Freedom of Expression which allows us the ability to communicate our ideas and opinions through words or action without the government butting in. (I believe the technical term is ‘restriction.’) Presumably the Hyde Park List was disseminated to warn, to inform and, perhaps also, to send a message that the University of Chicago was not doing enough to safeguard its students.
Here’s the thing: despite what many believe, freedom of speech does not mean the government can never stop you from saying certain things. No, our government can impose constitutionally permissible limits on freedom of speech in a few settings. For example, you can’t go running into a crowded movie theater and yell “FIRE.” That very point was made in the seminal 1919 U.S. Supreme Court decision of Schenck v. U.S. which tells us that you cannot incite actions that would harm others. Makes sense.
So what about the kids from UC? Who is protected by the First Amendment? The listmakers or the hackers?
The short answer is maybe both. The Hyde Park list on Tumblr enjoys more First Amendment protection because it is off school grounds. The problem arises when the list is displayed on campus. Speech in schools is often restricted-even with public schools.
Over the years the U.S. Supreme Court has ruled that the principal can prevent articles in the school newspaper from going to print (Hazlewood School District v. Kuhlmeier, 1988) and students can neither make potty-mouth speeches (Bethel School District #43 v. Fraser, 1986), nor encourage “bong hits” at school sponsored events (Morse v. Frederick, 2007).
Does this mean students do not have constitutional rights? No, they do. But just not to the same extent as adults.
For instance, when the students in the 1969 landmark case of Tinker v. DesMoines protested the Vietnam War by wearing armbands, the U.S. Supreme Court found in favor of the students. After all, political speech is the essence of Freedom of Speech; it will only be prohibited in a school setting if it disrupts the educational process.
So listmakers, Tumblr was the better choice. But before we address the hackers, it must be asked, did the listmakers consider a possible defamation lawsuit by the men on the list? I am all about taking justice into your own hands folks – just don’t get them too dirty.
Certainly the men will claim their reputations, relationships and vocations have suffered but alas ‘truth’ really is a defense. And I wager that none of the men will force the listmakers to prove up the accusations…..that only occurs when a statement is false…..I’m just saying.
Leading us to the obvious inquiry; are the men on the Hyde Park list the UChicago Electronic Army undercover or simply employed to do the dirty work? Akin to ‘murder for hire’ maybe now there are ‘Hackers For Hire’ - a techy team of hit men.
Nonetheless, was the UChicago Electronic Army’s post protected by the First Amendment? Considering they hijacked a student club’s website, the parameters of school regulated speech kick in. The hackers would have been better off making their violent, vile threats on social media the way the law now stands. The U.S. Supreme Court says only “true threats” are not entitled to constitutional protection. I regretfully acknowledge that “rape harder” appears to be a generalized threat, though the targeting of one of the victims does evince some actual intent.
This brings us to the SCOTUS fall lineup preview. The Supreme Court will be examining this precise issue, of intent in threats on social media in Elonis v. U.S. Mr. Elonis was prosecuted for rap lyrics, that read and sound like specific threats, on Facebook. But was that his intent? Or just some warped semblance of artistic expression? The lower courts said it does not matter. Will the Supreme Court agree? Stay tuned.
Remember there is a difference between what we can say and what we shouldn’t say. Every day that line is crossed online because it is so blurred. While one can rightfully claim Freedom of Speech does that give us the right to put others in fear? Not too long ago we didn’t have social media as a vehicle for vengeance or salvation. For some it voices a plea for help from a system that is failing them; for others it is a mask that both hides and spreads hate. Either way, it is simply – Freedom.
The convergence of law and technology always makes interesting bedfellows.
To be clear, some of the data on your iphone is on the device itself and some is in the iCloud. And yes, actor Jason Segel was right when he exclaimed in the recent film "Sex Tape – “no one understands the cloud!” But thankfully Apple has now made it easier to adjust settings to prevent data from going into the iCloud. (Sorry folks, less naked celeb pics but at least your sex tapes are more secure). Because Apple has the capability to recover data from the iCloud it will still have to turn over that information when legally requested…….unless you use your user friendly blockage setting…..hint hint.
Apple may have set out to please customers or respond to privacy groups in the wake of the Edward Snowden disclosures; either way, the population getting the greatest benefit from Apple’s lockdown are criminal suspects. Since they never get the benefit of anything this is certainly a nice change for them.
In June, the U.S. Supreme Court ruled in Riley v. California that police now needed a search warrant to retrieve data from a cell phone, unless it’s an emergency. That was big. This Apple situation is - HUGE.
Even with a valid search warrant, which requires probable cause and a Judge’s signature, law enforcement cannot get into the device. The act of giving the passcode requires speaking – that is a statement. That statement by an accused (or even a party to a civil action) is protected by the Fifth Amendment’s right against self-incrimination; you know, Miranda, “you have the right to remain silent…..anything you say can and will be used against you in a court of law” - that thing tv cops say while pounding on suspects.
Fortunately Courts have had to examine similar issues recently, which will provide guidance for Judges. The first case of this kind, in 2009, addressed whether a person could be forced to give up his/her “passphrase”. In re Boucher, a federal criminal case in Vermont, began with Boucher crossing the border from Canada to Vermont when he allowed his laptop to be inspected. Immigration officers saw child pornography on it which led to his arrest. Soon after when law enforcement was trying to search the laptop more thoroughly they could not access the “Z” drive. The Magistrate Judge quashed a grand jury subpoena to provide the passphrase, saying it would constitute self-incrimination. The government appeals that decision and the District Judge finds that because Boucher initially showed the Immigration officers at the border contents of the “Z” drive, the government already knew about it and its contents added little to the case, Boucher was ordered to provide the passphrase.
A more likely scenario is depicted in a federal criminal case from Michigan in 2010, United States v. Kirschner, where the prosecutors tried to use a grand jury subpoena to uncover the contents of an encrypted file from the defendant’s hard drive. The Judge decided that compelling Kirschner to disclose the password would require him to produce “testimony” that would violate his Fifth Amendment right against self-incrimination.
So either the accused is required to give the passcode or not; it depends on the facts, the evidence the government already has, and the level of cooperation. Another option to get the passcode is to give a suspect immunity. Meaning, ‘give us the password, we won’t hold it against you in court, we won’t use it show guilt and, in fact, we will give you a better offer (plea bargain)’.
These choices are all fine and dandy until it’s an emergency. Then what? Roll with this - you, the cop, is faced with immediate danger to a victim; you respond to a tip, find a man matching a photo but he is alone. His partner in crime is holding a young girl hostage somewhere. You need to get to her. The location where she’s being held is in a text message. The phone locks.
This guy is not giving the passcode. You hold a gun to his head, he gives the passcode, you get to the location, save the girl and…….all the evidence gets suppressed. Point of fact, the case against both the perps will probably be dismissed. You cannot threaten someone’s life to get them to say something, then use that statement against them. You just can’t.
It is often surprising how few bright line rules there are in the law. You can argue either side. You can win or lose. And while the dusty ol’ U.S. Constitution may not be a bright, shiny red Apple, it certainly wins out. Every. Time.
Joan Rivers’ death at 81 seemed sad yet predictable due to her age. The story surrounding her death was oddly secreted, but now piece by piece is being slowly revealed. And it appears the doctors involved may have made some serious mistakes.
By now we all know Ms. Rivers went to the Yorkville Endoscopy Clinic complaining of a sore throat and hoarse voice. The renowned gastroenterologist, Dr. Leonard Cohen, was tasked with performing an endoscopy to explore her digestive system suspecting acid reflux. During the procedure where Ms. Rivers was under full sedation (by propofol which ultimately killed Michael Jackson) Dr. Cohen called in Ms. Rivers’ Ear, Nose and Throat doctor to examine Ms. Rivers’ vocal cords. This ENT doctor accompanied Ms. Rivers to the clinic appearing as a member of her ‘entourage’ – mistaken for her makeup artist.
Original claims that a vocal cord biopsy caused Ms. Rivers’ death have since been denied by the clinic, which makes the cause of her death even more confounding. Privacy laws are shielding questions from the public however, both the New York City Medical Examiner and the NY State Health Department are investigating the clinic, the ENT’s name has still not been released and Dr. Cohen, also the clinic’s medical director, has…….‘left the building’ – or, more likely, asked to leave the building.
In 2009 a Scientific American investigation found that over 200,000 people die each year from preventable medical mistakes and infections – more than twice the amount from just a decade ago. According to Diederich Healthcare in 2012, 31% of all medical malpractice claims were death-related.
What went wrong first in Ms. Rivers’ case? With her advanced age, history of heart arrhythmia and bulimia, having an endoscopy in an outpatient clinic rather than a hospital seems like a poor choice. But she consented, essentially waiving that portion of any claim.
Dr. Cohen was indeed qualified to perform the endoscopy. During the procedure Ms. Rivers was sedated with propofol. The clinic has stated Ms. Rivers was not under general anesthesia but rather light to moderate sedation. Considering propofol is more commonly used for deep sedation and general anesthesia, the use of it as the clinic purports heightens suspicion. If Ms. Rivers stopped breathing because of complications from the anesthesia it could be because there is such a slim margin of error in the administration of propofol – a thin line between sedation and respiratory arrest.
Still the risks of anesthesia are quite low. The American Society of Anesthesiologists have found that over the past 25 years anesthesia-related deaths have decreased from two deaths per 10,000 to one death per 200,000-300,000 anesthetics administered.
A specific possibility related to both reflux and anesthesia, Ms. Rivers may have experienced laryngospasm, shutting of the vocal cords, which could have been managed with the drug succinylcholine. That drug was not on hand. Still, the clinic maintains it has the lifesaving equipment tantamount to a hospital emergency room.
It is still unclear why the ENT came into the room to examine Ms. Rivers - the ENT who did not have authorization to practice medicine at the clinic. Even if Ms. Rivers was in moderate sedation she wouldn’t have had the volition or authority to request her doctor, the ENT, to enter the room. And by examining Ms. Rivers did the ENT also administer treatment? Leading to the ultimate question – did the ENT contribute to Ms. Rivers’ death?
Doctors, hospitals, all medical providers in fact, have a legal obligation known as a duty of care – to provide a standard of reasonable care while performing any action that has potential to cause injury. Medical providers must adhere to the accepted standard of the medical community in their field.
There is no doubt that every doctor in Ms. Rivers’ case – from Dr. Cohen to the ENT, the anesthesiologists purportedly present at the clinic all the way to the doctors at Mt. Sinai hospital where she died – owed Ms. Rivers that duty of care. The next inquiry is whether that duty of care was breached.
From the limited information we have now, Dr. Cohen and the clinic appear to have been deficient in the endoscopy procedure. That could specifically include the anesthesiologist who administered the propofol. By allowing the ENT to examine Ms. Rivers without clearance, the ENT, Dr. Cohen and the clinic, as an entity, breached their respective duties.
Still breach means nothing without causation. The ultimate inquiry is whether the breach was the cause of the injury.
If the cause of death was not from propofol – the anesthesiologist did not breach any duty. And even if the ENT’s examination did not cause Ms. Rivers’ death, there was still a breach. However, breach without causation equals no recourse.
So maybe fault lies in the intubation, an emergency procedure to restore breathing. Extremely difficult to perform but for those few with expertise, perhaps that is what caused Ms. Rivers’ death. Might Ms. Rivers have had a natural adverse reaction? Or was an error during the endoscopy compounded with further mistakes during the attempt at saving her life. Bottom line – did medical negligence harm Joan Rivers?
That is what will surely be (or should be) litigated in the months to come. At eight-one years old, Ms. Rivers still juggled a demanding work schedule. In a wrongful death lawsuit, family members can recover both economic and non-economic damages. Ms. Rivers passed in New York where the medical malpractice payout is the largest in the land; in 2012 it was $763,088,250 compared with Pennsylvania far behind at second with $316,167,500.
Yes, it’s morbid to talk dollars right now when the country’s still mourning the loss of a comedic legend. Yet it’s never too early to investigate, analyze and question avoidable injury. Our doctors are held to impossible standards at times but ones they took an oath to uphold. Simply put, something went wrong in that room while treating Joan Rivers, something that made death come too early – even at 81.