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Posts Tagged ‘Supreme’

In a stunning and unexpected 6-3 ruling the right-leaning Supreme Court went against the wishes of the last president, took the wind out of the sails of health care reform of the current president, sent irresponsible Big Pharma a major wake up call, and bluntly told the arrogant FDA that they are indeed not above the rule of law.  It is a major victory for every American citizen.

Central to the issue is a power a struggle between the federal government and states, which in this situation meant the federal government authority to pre-empt your state rights to sue if you are injured by a drug.  The FDA, acting on behalf of the Bush administration and on the side of Big Pharma, has helped tie up thousands of drug injury lawsuits across the country.  The FDA, who is supposed to be protecting consumers from drug injury and ensuring a correct risk/safety picture for any person taking a drug, was instead trying to shirk their responsibility and simply claim that Americans had no right to sue.

This convoluted attempt by the FDA to undermine consumer safety was one of the main themes in my 2006 book, Fight for Your Health: Exposing the FDA’s Betrayal of America.  The Bush Administration had intentionally appointed anti-safety people in high positions within the FDA, starting with its Chief Counsel, Daniel Troy (and continued as a legal philosophy after Troy was forced out for his Big Pharma connections).  Troy set in motion the legal problem the Supreme Court just decided.

During the final years of the Bush administration cancer industry insider Andrew von Eschenbach, MD, was appointed to run the FDA, and Wall Street insider, Scott Gottlieb, MD, was second in command.  These individuals sought to fully implement the FDA label as senior to any rights of citizens.  Their intention was to make sure that new biotech drugs would be protected from lawsuits, as the FDA wanted to speed new and even more dangerous drugs onto the market so as to foster the development of the biotech industry.  In essence, the FDA management wanted to turn the American public into one large clinical experiment, with no right of recourse when injured.

This was occurring against a backdrop wherein the FDA couldn’t even name all the drugs currently on the market, had failed to demand required aftermarket follow up safety testing on drugs, and had intentionally withheld safety information on existing drugs from the public.  The current situation with drugs is that almost no drug, even blockbusters and those in use for decades, have an accurate risk/benefit profile.

Americans who use medications are already taking risks of unknown magnitude, which is a main reason over 100,000 Americans are killed every year and over 3 million are injured so seriously they need hospital care (ironically, over half those injuries occur while already in the hospital).

The FDA knows full well that when a drug is approved for the market the full extent of the side effects won’t be known for years.  History shows us time and again that Big Pharma actively hides risk data from the FDA and pays for “science” that distorts reality.  This irresponsible behavior goes along with closed-door negotiations with the FDA, and has resulted in numerous drug disasters like Vioxx.  FDA managers oftentimes go against the wishes of their own safety scientists and then move on to six figure salaries in the industry they regulate.  Doctors are not apprised of the actual risks and consumers are in the dark. 

Currently, there are 450,000 additional new cases of heart failure every year in Americans over 65, a fact that parallels the increased use of heart-weakening statins in this older group.  It is only a matter of time before the shoe drops on the 20-billion-dollar-a-year statin industry.

The FDA insistence that a drug label, based on what is known at the time of approval, should supersede citizen’s states rights to sue if they were injured, has almost nothing to do with consumer safety.  Rather, it is a federal power grab that is in the best financial interests of Big Pharma and Big Biotech, industries that do not have consumer safety as their top priority.

By the way, don’t think President Obama is on the side of the citizens.  In the health care section of the stimulus bill, there is specific pre-emption language.  If the federal government is in charge of health care it will be named in future lawsuits when patients are injured from the care it doles out or doesn’t allow. 

The current Supreme Court ruling will undermine any system of federal health care wherein the drugs being used are injuring people.  Experts believe this system is so badly broken, due to gross FDA management incompetence, that it will take 10 years of studies and many billions of dollars just to understand the actual risks of the drugs Americans are already taking.

In writing for the majority, Justice John Paul Stevens put Big Pharma on notice.  The defendant in this case, Wyeth, had argued that it could not comply with both federal and state law.  Stevens told them they had a fundamental misunderstanding of regulation and were trying to hide behind the FDA, going on to say that it is a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times.  That is not the news Big Pharma wanted to hear.

Stevens went on to write that there was no merit in the argument that the FDA’s labeling decisions could supersede state law, saying that this argument was “an untenable interpretation of congressional intent and an overbroad view of an agency’s power to pre-empt state law.” He pointed out that the FDA tried to push this on the public without any opportunity for comment from the public or from states, all done against a backdrop wherein the FDA is not able to keep up with safety issues in the first place, meaning that the FDA position lacked “thoroughness, consistency and persuasiveness.” Stevens stated that under such lacking standards the Bush position “is entitled to no weight.”

This is a major victory for all Americans and for states.  While the case itself is on the topic of Big Pharma and the FDA, the ruling is sweeping in nature and will extend far beyond prescription drugs.  States have just been handed a major legal ruling against the ever-growing incursion of federal power.

Florida Supreme Court Ordered Mandatory Statewide Mediation

In December 2009, The Florida Supreme Court ordered the creation of a mandatory statewide mediation program for homeowners and their lenders before a property can be sold through foreclosure. The administrative order creates a statewide program that requires mediation on all homesteaded properties before a foreclosure hearing is held. It guarantees homeowners will have a third party with their lender to discuss whether a loan modification or short sale is an option instead of foreclosure.

The order makes lenders responsible for paying a maximum mediation fee of $750 per case, which would help pay for the mediator and cover administrative costs. Judges hope the mediation requirement will reduce the thousands of foreclosure cases clogging the system.

Each circuit court will approve its own mandatory program and will have some flexibility in how it is managed, according to the ruling. The main parts of the order, however, are the same statewide. Every residential homesteaded property foreclosure will be referred to mediation, unless the lender and borrower agree otherwise. There are also waivers in the event a homeowner cannot be located or refuses mediation.

The homeowner must be referred to foreclosure counseling before mediation. The mediation must take place no earlier than 60 days and no later than 120 days after a foreclosure suit is filed. And, the mediation must be provided by a nonprofit organization with mediators specially trained and court certified in mortgage foreclosure matters.

KALIS & KLEIMAN is recognized and experienced foreclosure prevention attorneys. Neal Kalis and M. Scott Kleiman pride themselves on not just being lawyers, but being lawyers and trusted counselors. The firm’s personal attention to its clients’ needs and desired results produces a customized approach that this firm delivers to each case. Neal and Scott are both AV-rated, which indicates that an attorney has reached “the height of professional excellence” and is recognized for the “highest skill and integrity.” They have more than 50 years of combined experience, and they have participated in thousands of transactions, settlements and trials. KALIS & KLEIMAN will help you through the entire process in order to help you reach an outcome that is the most beneficial to your financial future. KALIS & KLEIMAN has earned a reputation of legal excellence and a history of successfully managing Foreclosure Defense cases.

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What is a Source Code?

In simple terms, the source code is the computerized language that operates a device.   It provides the device with a set of commands on how to analyze data and even when to turn “on” or turn “off.”  Source codes are used to operate your computer, your microwave, or your cell phone.  They are also used to operate devices used in DWI cases to determine blood alcohol content.

What is the issue?

As anyone who has used a computer knows, coding errors can occur.  Source codes are not infallible.  They are subject to human error, mechanical failures and even malicious coding. Treating them as infallible in court when it comes to testing blood alcohol in the breath, violates due process of a defendant when that defendant is unable to seek independent testing of the code used.

The Legal Issue?

In 2006, defendant’s in a DWI case in Florida sought the computerized source code for the breath testing device used in DWI offenses, a version of the Intoxilyzer 5000.  The source code, it was argued, was necessary for testing to determine if proper programming was included in the device so that it was accurately assessing blood alcohol concentrations.

The issue with the request that occurred was that the manufacturer of the Intoxilyzer device, CMI, Inc., of Kentucky, considered its source code a trade secret and, as a result, refused to release it to the state to be turned over as discovery to the defendant.  Ultimately, the Florida Court refused to require the state to provide the defendant, Todd Moe, the source code.

Similar challenges began to spring up in many states.  In Minnesota, two Dakota county cases raised the issue.  In those cases, State v. Underdahl, and State v. Brunner, the lower trial courts ruled that the source code was discoverable and had to be turned over to the defense.   When the company, CMI, Inc., refused to part with its source code, the breath test results were suppressed.  The cases were appealed, finally making their way to the Minnesota Supreme Court for review.

On April 30, 2009, the Minnesota Supreme Court issued its ruling on the two combined cases.

It decided that computer source code for the intoxilyzer 5000 machine is within the control of the state and that it must be turned over to defense counsel when the defense makes a showing that the under the Minnesota Criminal Rules of Procedure Rule 9.01, subd. 1, provided, however, a showing is made that the information may relate to the guilt or innocence of the defendant or negate guilt or reduce the culpability of the defendant as to the offense charged.

The end result is that the Minnesota opinion provides defense attorneys a template by which they may seek  the source code in cases where computerized analysis of breath samples occurs.  It does require, however, that the defense, provide a reasonable basis as to why the code is relevant to the guilt of innocence of the individual in more than general terms.  In most instances expert testimony related to the nature of the source code and how errors may occur would be necessary coupled with any indicia that errors have occurred historically. Ultimately, if CMI, Inc. continues in its refusal to provide the source code to the state, challenges to the admissibility of breath test results in DWI cases will continue to increase and provide defense attorney’s a much needed tool in combating the reliability of the Intoxilyzer 5000

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While they can get re-elected over and over, it is no sure thing. With the Supreme Court, the Justices serve for life. This gives them a unique opportunity to greatly influence society over a significant amount of time. Since they are not elected to the position, they also have more freedom to rule as they wish without concern for their poll numbers.

With the appointment of John Roberts as Chief Justice, the Supreme Court has recently been transformed for the foreseeable future. As Chief Justice, Judge Roberts controls much of the court through procedures. He can define the amount of debate on subjects while also picking which Justice will write the majority opinion on certain cases. It may sound simplistic, but these procedural elements go along way in deciding cases and laying out the specific legal rulings in them. In the case of Chief Justice Roberts, he has the opportunity to really define the law of the land for the next 20 to 30 years since he is only 52 years old.

So, who is John Roberts? He was born on January 27, 1955 in Buffalo, New York. He is a Roman Catholic and attended private Catholic school while growing up in an upper middle class family. He attended Harvard for both his undergraduate education and law school, obtaining the top rank in his class. In his professional life, he has worked in positions ranging from a law clerk for former Chief Justice Rehnquist to acting as Associate Counsel for President Ronald Regan.

Oddly, Chief Justice Roberts does not have much “time in the chair.” His first judicial position was on the Court of Appeals for the District of Columbia Circuit in 2003. A scant two years later, he was nominated and confirmed to his current position. Now that is serious career advancement!

Philosophically, Chief Justice Roberts is considered to be a conservative. His decisions reveal him as a man that generally believes in government rights and a strict interpretation of the law. He appears, however, to also be a cautious man when it comes to changing the law. In practical terms, he seems to respect well established law and is more like to tweak it than seek a blanket change. In the case of Rowe v. Wade, the standard of most Supreme Court discussions, he seems unlike to support overturning it although he is probably interested in tweaking it.

The really interesting thing about Chief Justice Roberts is his age. He is so young, that we can expect to see him controlling and shaping the legal landscape for an extended time period. Let us hope he makes wise decisions!

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On June 28, the Supreme Court ruled that the Second Amendment, which gives citizens the right to bear arms, is not limited by state and local laws. This means that states do not have the power to pass laws that put a limit on the amendment and an individual’s right to carry a weapon.

The controversial topic of gun control is not new to the United States. In fact, it is an issue the country has faced since the days of the Revolutionary War, Prohibition, and even the hippie era.

The following timeline highlights some important landmarks in the history of gun control that lead up to the recent Supreme Court case.

1775: As American try to gain independence, the British limit the amount of gun powder shipped to the colonies. Paul Revere is caught by British on their way to take U.S. weapons at an arsenal.

1822: Bliss v. Commonwealth solidifies peoples’ rights to bear arms to defend themselves. The right to bear arms is seen as an individual right.

1842: State v. Buzzard changes opinion and the right to bear arms is now seen as a political right, not an individual right. The case sends the country into decades of debate over whether the right to bear arms is an individual or collective right.

1856: The well known case of Dred Scott v. Sandford gives African Americans the right to bear arms.

1868: Amid worries that the Southern states were attempting to disarm former slaves, the 14th Amendment is enacted, stating that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

1934: Soon after the repeal of Prohibition and the violent gang related Saint Valentine’s Day massacre, the National Firearms Act is passed, requiring the registration of firearms.

1968: The Gun Control Act makes it illegal for anyone except licensed manufacturers, dealers, and importers to participate in interstate firearms transfers.

1974: The National Coalition to Ban Handguns is founded. It includes labor, religious, and nonprofit groups who support gun owner licensing, firearm registration, and the ban of privately-owned handguns (with a few exceptions) to fight gun-related crime.

1990: The National Coalition to Ban Handguns is renamed the Coalition to Stop Gun Violence.

1993: The Brady Act requires federal background checks to purchase guns in the United Sates.

1994: It becomes illegal to sell assault weapons to civilians, according to the Assault Weapons Ban.

2007: Background check requirements are added to by the NICS Improvement Amendments Act.

2008: The Supreme Court rules, in District of Columbia v. Heller, that the 2nd Amendment allows individuals to cary firearms in federal enclaves. The ruling does not make it clear whether the decision also applies to states.

2010: The Supreme Court rules that the 2nd Amendment is not limited by state and local laws and that individuals have the right to bear arms.

This summary is only the beginning. The history of American government and laws is very interesting, in depth, and pertinent to today’s rulings. Both the criminal justice and legal industries are full of exciting information and opportunities.

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When Lori Drew was brought before a Missouri Court, there was no standard addressing cyberbullying or in this case cyber-harassment.  The difference between these two terms is that cyberbullying occurs between children or teens, while cyber-harassment or cyberstalking is the result of an adult harassing another adult or exploiting a child.

Cyberbullying is a serious epidemic in the United States.  In the case of United States v. Lori Drew, this was the chance for the Supreme Court to set down some serious guidelines regarding the issue.  Some say that the Supreme Court all the way down to the Missouri Court failed miserably in addressing this.  Instead, they contend that some weak standard about violating a Terms of Conditions on a social networking website sets a precedent that allows website owners to make their own laws and prosecute accordingly.

Here’s a quick recap on Lori Drew.  Lori Drew was a 48-year-old mother that had a 15-year-old daughter.  They lived in the same neighborhood as another clinically depressed 15-year-old child named Megan Meier.  Lori Drew decided to pose as a 16-year-old boy named Josh Evans and start a romantic interlude online with Megan.  Her goal?  She wanted to find out what Megan really thought about her daughter.

Drew continued to communicate with the child and things got ugly.  She began to tell Megan that “he” was hearing ugly rumors about her and, “The world would be a better place without you…”  This resulted in the suicide of Megan Meier.

Drew was brought up under some fuzzy charges of the Computer Fraud Act that were later dismissed because they were vague.  MySpace decided to sue in violation of their Terms and Conditions and won three counts.

Should Missouri Court or Supreme Court have stepped in?  Quite possibly there could have been a better precedent.  Different groups are campaigning as we speak to address the poor standards in legislation regarding this and many other examples of cyberbullying.

In a world where children spend more time on social networking sites like MySpace and Facebook, the results of some of these websites are detrimental to a child’s self-esteem.  Think of schoolyard bullying only a step further.  In some cases, Internet savvy children are able to create a whole web 2.0 property that allows children to vote on the fattest, ugliest, or most promiscuous child in their middle school!

Parents can take matters into their own hands.  Monitor your children’s activity.  If you suspect cyberbullying, retrieve an address and take to a national database for records that can do a reverse IP address lookup.

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Opponents of healthcare reform failed to prevent bills passing in the Senate and the House of Representatives. These Democratic-sponsored bills seek to provide health insurance plans to the millions of uninsured Americans. Republicans, among those opposed to reform, raised the specter of socialized medicine and drew attention to the soaring cost of the legislation. Although they managed to kill the government-run public option in the Senate bill, their protests largely fell on deaf ears.

When it comes to this issue, conservatives are down but not out. President Obama has vowed to sign the combined bill once it reaches his desk, thereby making it into law. At that point, healthcare reform is open to a judicial challenge. Some people are now considering the possibility that parts of the healthcare reform bill, as enacted, may be unconstitutional. Moreover, they are willing to bring the issue to the Supreme Court if need be.

The proposal of involving the court system appears slightly unusual. After all, much of the contingent that has expressed vociferous disapproval for healthcare reform has also railed against what they consider to be “activist judges” who are “legislating from the bench” in the past. Nevertheless, some constitutional questions have been raised.

For example, some conservative legal scholars have said that the individual mandate–which requires all Americans to buy health insurance plans or pay a fine–is unconstitutional. They believe that such a mandate would only be constitutional under a far too loose interpretation of the Commerce Clause, and would allow the federal government to require any kind of purchase from a private company. If that provision was struck down as unconstitutional, it would be a severe blow to both the House and Senate legislation. The insurance mandate is essential for insurers’ cooperation with new regulations and a centerpiece in their reform strategy: bringing healthier, uninsured individuals into the nation’s health insurance pool would supposedly lower costs for all.

If the mandate for individuals to acquire health insurance plans sounds like state laws that force individuals to buy auto insurance, it is because the two are very similar. The latter has been found to be legal, even though it mandates the purchase of a particular project. On the other hand, unlike people who don’t own a car in order so they don’t have to pay for auto insurance, there is no way to forgo the human body in order to avoid paying for one of the many health insurance plans available. Opposition to the mandate on legal grounds is largely based on the opinion that the fines that would be imposed for noncompliance are not included in the right of Congress to levy and collect taxes. Moreover, the inactivity of individuals who fail to buy health insurance plans would not qualify as interstate commerce, and as a result cannot be regulated by the federal government.

Regardless, the issue is probably moot. As an important, high priority piece of legislation, the healthcare reform bill has most likely gone through stringent vetting to ensure the legality of all its provisions. Supporters would not want to see their efforts fall short due to a constitutional law mishap anywhere in the 2,000-plus page legislation. Senator Max Baucus and other Democrats have made this very point, while accusing Republicans of grasping at straws to stop the nation’s reform of health insurance plans. Nevada Republican John Ensign recently proposed that the Senate vote on a point of order acknowledging that the healthcare reform bill was unconstitutional due to the individual mandate. Unsurprisingly, it failed strictly along party lines; the entire Democratic caucus voted against it, while all Republicans were in favor.

Most mainstream legal scholars reject these arguments against the healthcare reform bills. They point to the fact that past Supreme Court rulings have allowed Congress to regulate activities that, even if they are not interstate commerce in and of themselves, “substantially affect” such commerce. By that definition, there is no doubt that whether or not people buy health insurance plans qualifies. Therefore, the case is unlikely to reach the Supreme Court. If healthcare reform legislation actually made it past the lower courts and reached them, how would the Court rule? Most likely, the ruling would be split among ideological lines. With liberal Justice Sonia Sotomayor replacing fellow left-leaning Justice David Souter, the balance between conservative and liberal justices has been maintained. Justice Anthony Kennedy tends to be the swing voter; on business issues, he has tended to lean conservative and take positions in favor of free markets. Still, the Court must judge based on precedent, and would probably uphold the legality of the individual health insurance mandate.

According to the Second Amendment of the Bill of Rights, Americans have the right to hold and bear arms for self-defense, an ability that aggressive Michigan criminal defense lawyers work hard to protect. However, in recent years handgun bans in various major cities in the United States have made that a difficult task. Fortunately, in a recent U.S. Supreme Court decision, the rights of

American citizens to keep and bear arms were upheld, extending to state and local levels. Since 1982, the Midwest city of Chicago has had some of the strictest handgun laws in the country. Residents were not allowed to own handguns for personal use, even in their homes.

Despite these harsh firearm laws, changes were set in motion in 2008. This was when the United States Supreme Court ruled that the Second Amendment assertion that the rights of individuals to possess a gun for self-defense applied to the nation’s capitol. However, since Washington D.C. is a federal city and not a state, it was not specified whether or not the ruling extended to other state or municipal laws.

Fortunately, early Monday morning the Supreme Court clarified themselves. In a 5-4 ruling, the court reasserted the constitutional protection of the Second Amendment to include state and municipal laws, ultimately having both national and local implications. According to gun-rights advocates, this victory for the Second Amendment could potentially allow constitutional appeals to restrictions on handguns be heard and granted nationwide.

As evidenced by the decision handed down from the Supreme Court, the legal process is a complex and ever-changing one. If you have been accused of criminal charges, it is important to find out all your options before proceeding with any type of defense. For this, it is in your best interest to contact knowledgeable Michigan criminal defense attorneys for assistance. Doing so immediately can provide superior legal representation designed to protect your individual rights and freedoms including the right to own handguns for personal use.

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