In setting aside the guilty verdict, Strackbein ruled that the witness the state presented as a computer expert, a Norwich police detective, provided “erroneous” testimony about the classroom computer.
“The jury may have relied, at least in part, on that false information,” said Strackbein.
Truth, Justice and the American Way: 1 Mark Lounsbury: 0
And this, again from Rick Green:
But today, Smith said state would take no position on Dow’s motion for a new trial, making it unlikely she will be tried again. Smith also acknowledged that erroneous information about the computer was presented during trial.
Update#2Raw Video News Feed: It has some excellent and interesting comments from the experts involved. Update:The Day.com’s article, and a screenshot of their page with a terrific photo from the Hartford Courant (more here):
Julie Amero is scheduled to be sentenced today at 10AM EDT in New London, CT. But as I reported earlier today, her lawyers have filed a last-minute motion for a new trial. Here are some more details about the motion:
In addition to William Dow, III, the motion was filed with three other lawyers: Richard Emanuel (click his name to see an interesting quote from him — the second one down), Timothy H. Everett(law professor at the UConn School of Law) and Todd D. Fernow (law professor and director of the Criminal Law Clinic at UConn School of Law).
According to the Norwich Bulletin article, the judge is expected to rule on the motion before sentencing. If she denies it, I assume the attorneys will move on to the appellate court and Julie will be sentenced with some sort of stay pending appeal. If she grants it, it could be interesting…would the prosecutors even think about trying this case again?
Here’s an excerpt from the motion:
“The state and the defense now possess additional forensic evidence concerning the history of the computer’s use both before and after the alleged incident,” Dow wrote in his motion. “Had that information been available to the state at the time of the trial, the state … would not have urged the jury to reach certain inaccurate conclusions regarding … the alleged purposeful access to offensive Web sites. In the interests of justice, the jury’s verdict must be set aside.”
Herb Horner, the expert who was not allowed to testify about porn storms at the trial, expects for the verdict to be thrown out altogether. I agree with him — it should be. But there’s face-saving and political gains and losses at stake for the prosecutor and police…and from everything I read, it’s very unusual for the trial court to grant these motions. In this case, however, NOT granting the motion could be even more politically disastrous for the judge, given the obvious error made in not allowing evidence of malware and porn storms to be introduced by the defense. After all, if it was a slam-dunk for the majority of people who hear about this case, then the only conclusion that can be made about the judge’s ruling is that she was ignorant or intentionally conspired to keep evidence that could exonerate Julie away from the jury.
Amero’s attorney, William Dow III, based today’s motion for a new trial on “evidence discovered after the verdicts and now in possession of the state and the defense.” In light of the new evidence, Dow said the jury reached inaccurate conclusions about Amero’s alleged Web surfing.
Judge Hillary Strackbein is expected to rule on the motion prior to sentencing.
Now, if the Judge has been paying attention and reads the motion carefully, she should grant the motion for a new trial right now, opening the door for the prosecutor to then do the right thing.
Via Kevin, MD, this article on the New York Personal Injury Law Blog from Eric Turkewitz about how the plaintiff’s attorney discovered Flea’s blog and was able to discover his identity:
So I called plaintiff’s counsel, Elizabeth Mulvey, of Crowe & Mulvey to find out. She told me she was tipped off to his blog by another attorney. How did the other attorney know? Because Flea had blogged about a subject that Mulvey had spoken on some time back and the other attorney realized that she had the case. Flea had unwittingly given out the identifying information when he discussed her talk. On this cached version of Flea’s site, you can see his comments discussing Mulvey on April 28th.
With that information in hand Mulvey scoured his blog for helpful information, much the way any attorney would review writings produced by a witness for the other side. She found a post where Flea referred to Nelson’s Pediatrics as the bible of pediatrics. (I have the 11th ed. from 1979 on my own bookshelf.) So she asked him on the witness stand if he considered Nelson’s the bible for pediatrics. He said no. Lawyers call that a “prior inconsistent statement” that allows us to confront the witness with the other statement. That meant asking him if he was Flea and confronting him with the blog posting.
The first question in my mind was why he would have written that it was the bible for pediatrics and answered “no” on the witness stand? What a fatal mistake that was. If he had given a consistent answer the door would not have opened for her to bring in what he wrote on the blog, which brings me around to this: What you write will bite if you aren’t writing what you truly believe. Making a statement that a reference work is the ‘bible of anything’ is a strongly expressed opinion. Why write it if you don’t believe it? And why deny it under oath? Was there some sort of treatment or diagnostic protocol in Nelson’s Pediatrics that Flea didn’t follow?
Update: I found the reference by having Google Reader pull up the entire feed for his blog. Here’s what he wrote, with my emphasis added:
I went back to my other bible, Nelson’s Textbook of Pediatrics. To my surprise and delight, Nelson’s says you can use polysporin or bacitracin ointment nightly for one week!
Did Flea believe what he wrote on his blog or did it just make good reading? In retrospect, reading through some of the cached posts, I’m starting to think that the adulation and recognition his blog received went to his head.
We’ve only heard one side of this story, but from what I’ve read so far, it seems to me that the plaintiffs had a really good attorney who had pinned Flea in a corner with his own words after Flea walked over and stood in it. The takeaway for me is to be absolutely 100% sure that what I’m writing is true, and where I express an opinion or belief to make sure I say so. While I’m not likely to be sued for liking one camera over another or one website better than another, I will definitely be reviewing some of the other categories on this blog to be sure they don’t cross any lines. I know I believe what I wrote, but I need to be sure I expressed it in terms of opinion rather than fact.
Via Kevin MD, this article from the Boston Globe unmasking Dr. Flea and how his blog was used against him at trial:
As Ivy League-educated pediatrician Robert P. Lindeman sat on the stand in Suffolk Superior Court this month, defending himself in a malpractice suit involving the death of a 12-year-old patient, the opposing counsel startled him with a question.
Was Lindeman Flea?
(snip)
With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.
The next morning, on May 15, he agreed to pay what members of Boston’s tight-knit legal community describe as a substantial settlement — case closed.
I’m not sure what specific relationship Flea’s blogging had to do with the case, but it’s obvious that there was one. His blog came completely down the same day he settled the case.
If you were not a Flea reader, you may not know that he was live-blogging the trial, which caused a huge stir among legal and medical bloggers. Attorneys felt that by blogging the trial and the sessions with his attorney, he was waiving his attorney-client privilege, and medical bloggers were concerned that the shutting-down of such a high-profile medical blogger would put a chill over medical bloggers as a group. HIPAA concerns were raised, particularly in the context of anonymous bloggers.
I think one of the commenters on Kevin’s post has it right, at least with regard to the blogging analysis (I have no idea about the medical analysis, since Flea never blogged the medical specifics of the case):
Flea may be book-smart but I don’t think he’s street-smart.
He failed to consider the worst case scenario in both situations, in caring for the patient and in blogging the trial while it was ongoing.
Whatever the reasons, it does serve as a reminder to all bloggers (not just medbloggers) to remember that what they write, they own, and it can work to their detriment.
About the time I think I’ve written everything I can possibly write about Julie Amero, something else comes up. This latest postponement of her sentencing date has created opportunities for some very interesting articles and interviews.
Rick Green of the Hartford Courant has an excellent column today summarizing possibilities for the ongoing delays. He writes:
Then, a few weeks ago, as Amero faced sentencing, Assistant State’s Attorney David J. Smith filed a startling motion in Superior Court:
“The state has not completed a full examination of all the issues which may affect its position at the sentence hearing.”
Translation: We were wrong. We are trying to figure a CYA way out of this mess.
They still are. Amero’s sentencing Thursday was delayed again until June 6 - the fourth postponement since March. She’s still convicted of four counts of risk of injury to a minor, facing a potential 40 years in jail.
He also did an interview with WTIC News/Talk this morning about possible reasons for the .
As I was listening to the podcast, I was overcome with one thought: Why is it so wrong to just do the right thing? IF the prosecutor went to court and simply said “The verdict should be vacated because evidence exonerating Julie Amero has come to light”, wouldn’t that resolve it? IF the defense attorney said “I was wrong — I didn’t represent her properly when I failed to turn over the expert’s reports to the prosecutor”, wouldn’t that carry weight? If the so-called expert Mark Lounsbury backed down from his false contention that she actually had to click links to arrive at those sites and admitted it, wouldn’t that make a difference?
Our society doesn’t reward elected officials for doing the right thing — it flogs them. We applaud officials for ‘protecting the children’, for ‘putting away the bad guys’, for ‘keeping our streets and schools safe’, but we do not applaud them for stepping up and taking moral responsibility for what they’ve done wrong. As a result, we have a situation where one person is wrongfully convicted, the one truly responsible for the situation has been shielded from blame (the Norwich Schools IT administrator, Robert Hartz), everyone is trying to dodge responsibility and no justice has been done at all.
Perhaps it’s time for us to start encouraging behavior from our officials that includes accepting responsibility for mistakes. As humans, we all make them. Why shouldn’t we applaud when a prosecutor steps up and says “Yes, a wrong needs to be made right, my mistake needs to be corrected.”? They should not have to fear “flip-flopper” and “Swiftboating” ads in their next campaign because they did the right thing, and they should be given the space by their constituents to make mistakes and correct them.
As Rick Green points out in the interview, the prosecutors, police and school district are now in a lose-lose situation. Admitting they had less than a full understanding of the technology leaves them vulnerable to public scorn. Not admitting it means Julie Amero continues to wear the scarlet letter. The school certainly isn’t going to admit their role in this because they don’t want any lawsuits, yet that is EXACTLY where the true blame and criticism should be placed.
Julie Amero was supposed to be sentenced on Friday, but it has been postponed for the fourth time to June 6th, according to the Norwich Bulletin. According to the article, it’s unclear who requested the change, but I can only hope that the continued requests for delays means that her new defense lawyer is working hard to turn this case around.
Update: One item of interest popped out at me from the Norwich Bulletin article — the venue has been changed to New London. The NB speculates that it may be related to the addition of a new judge, but I wonder if there’s another, more optimistic reason.
Attorney General Alberto Gonzales is pressing the U.S. Congress to enact a sweeping intellectual property bill that would increase criminal penalties for copyright infringement, including “attempts” to commit piracy.
Some of the scariest provisions:
Create a new crime of life imprisonment for using pirated software. Anyone using counterfeit products who “recklessly causes or attempts to cause death” can be imprisoned for life. During a conference call, Justice Department officials gave the example of a hospital using pirated software instead of paying for it.
This makes very little sense to me — what difference should it make whether it’s pirated? Any product which would “recklessly cause or attempt to cause death” seems to me to be the issue, not whether it’s pirated. But wait, it gets better…
* Permit more wiretaps for piracy investigations. Wiretaps would be authorized for investigations of Americans who are “attempting” to infringe copyrights.
You steal my Flickr photos; they tap your phone. Seem fair to you? Gives me the willies.
Add penalties for “intended” copyright crimes. Currently certain copyright crimes require someone to commit the “distribution, including by electronic means, during any 180-day period, of at least 10 copies” valued at over $2,500. The IPPA would insert a new prohibition: actions that were “intended to consist of” distribution.
How exactly are they going to determine intent? If I buy a DVD and a spindle of 100 blank DVDs, would that be viewed as intent? One could have absolutely no relation to the other whatsoever, but could be construed as intent to duplicate and distribute DVDs. But WAIT…there’s even more.
The scariest of them all:
Require Homeland Security to alert the Recording Industry Association of America. That would happen when compact discs with “unauthorized fixations of the sounds or sounds and images of a live musical performance” are attempted to be imported. Neither the Motion Picture Association of America nor the Business Software Alliance (nor any other copyright holder such as photographers, playwrights, or news organizations, for that matter) would qualify for this kind of special treatment.
Doesn’t DHS have enough on their hands already protectin’ us from terrorists? Do we really need to put pirates on their plate? What are they thinking?
Under this provision, I could have been reported to the RIAA for recording Sticks’ performance at the street concert last month. I could be on my way to jail RIGHT NOW. I would most certainly be tagged as ‘one to watch’.
…living life in 19/7 time 