Monthly Archives: July 2021

This past Friday, attorneys for disgraced Dodgers right-handed pitcher Trevor Bauer and the petitioner who accused him of sexual assault in the civil restraining order case against him appeared in court. The headlines were that the hearing was continued to three days in August for the presentation of testimony and evidence by the two sides, but what occurred at the hearing before the continuance was issued perhaps was of greater import.

Bauer was represented at the hearing by Shawn Holley, who is widely considered among the best criminal defense attorneys in the country in private practice. Holley has represented Lindsey Lohan, the Kardashian and Jenner families, and served on O.J. Simpsons defense team, among other notable cases. In short, Holley is really good. That made her strategy at Fridays hearing notable when it came to a colloquy about Bauer himself testifying.

There is a pending criminal investigation, Holley said to Superior Court Judge Dianna Gould-Saltman. For that reason, I and Mr. (Jon) Fetterolf (Bauers agent) have advised Mr. Bauer not to testify about any of the substance of this matter. My question is ... does the court intend to have him take the stand and invoke?

Holley suggested Bauer could invoke the Fifth Amendment privately in chambers instead of open court and also suggested the judge ask him at the appropriate time whether or not he intends to follow my advice.

Having him take the stand and invoke with each question has no probative value at all (and would be) nothing more than a prejudicial exercise given the media attention in this matter, Holley said.

An attorney for the woman said, Under civil law, he does have to take the stand.

He does have to invoke his right with respect to each question, so we would ask that he do so, said the attorney, Lisa Helfend Meyer. There may be some questions that answers might not tend to incriminate.

The judge indicated Meyer was correct.

Lets break down what this means, and then well dive into why this matters.

The Fifth Amendment to the United States is one of the most important. Most people think of it as the amendment that talks about your right to remain silent, but it actually doesnt say that exactly. Ive boldfaced the part that matters to us here.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In other words, the Fifth Amendment says that the government cant compel you to testify against yourself, which includes a right against self-incrimination. The most basic application of this right is that the prosecution cant call you as a witness in your own criminal trial, and cant ask the jury or judge to draw any adverse conclusions from your refusal to testify. The more modern conception of a right to remain silent comes from the U.S. Supreme Court decision in Miranda v. Arizona, and yes, that is where the term Miranda rights - which youve seen on every cop show - comes from. Miranda explained that the Fifth Amendments protection against self-incrimination means little if you can be forced to speak or incriminate yourself before the trial begins. Cue Chief Justice Warren:

Our holding will be spelled out with some specificity in the pages which follow, but, briefly stated, it is this: . . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

What does this have to do with Bauer? Actually, quite a lot. You see, the restraining order case is civil - and the plain language of the Fifth Amendment means that it applies to criminal cases and proceedings, not civil cases. In other words, you can be called as a witness against yourself in civil proceedings, and the Fifth Amendment is not a defense to purely civil matters. However, since the U.S. Supreme Court case of Pillsbury Co. v. Conboy, its been clear that statements you make in a civil matter can be used against you in a criminal case. So how do you navigate this?

In other words, lets say that John and Jacob are in a car accident. There are no criminal statutes implicated; no one did anything criminally wrong, but John was civilly negligent. Perhaps he failed to brake quickly enough, or he was following too closely, or there was someone in his blind spot; it doesnt matter. Jacob can call John as a witness and force him to answer questions about the accident and his negligence.

But now lets assume that John was texting whilst driving and that doing so is a crime in the state of Jingleheimer. Jacob can call John to the stand and ask him questions, but if John answers, those statements can be used against him in a later criminal proceeding. So John has two choices:

Most attorneys correctly conclude that being ordered to pay money is better than being found guilty of a crime, and so Ms. Holley, quite correctly and properly, has instructed Bauer to remain silent and invoke his Fifth Amendment rights. Now, in order to invoke this right to remain silent, you - somewhat paradoxically - cannot remain silent. The Supreme Court held in a case called Salinas v. Texas that you must properly say you are invoking the right to remain silent, not just sit there and be silent. On television, you often see a dramatic moment where a person cries I invoke my right to remain silent under the Fifth Amendment on the grounds that the answer might serve to incriminate me, which is a terrible answer that actually does a really bad job of invoking the Fifth Amendment. In reality, I invoke the Fifth Amendment is often enough, but its a lot more boring for television.

In any event, this creates a scenario where, in civil cases, a defendant or witness can answer I invoke the Fifth Amendment over and over again in response to questions. Thats why Ms. Holley wanted Bauer to invoke the Fifth Amendment just once in chambers because the spectre of Bauer invoking the Fifth Amendment repeatedly will justifiably cause the court to draw adverse inferences from his answers. The problem for Bauer - as Meyer correctly pointed out - is that drawing such an adverse inference in this particular case is entirely proper. Bauer is allowed to invoke the Fifth Amendment so as to avoid having his testimony be used against him in a later criminal proceeding. However, in doing so, he necessarily accepts the adverse inference in the civil case associated with his invocation.

Ms. Holley knows this, of course, and she also knows that because California follows the adverse inference rule for invocation of the Fifth Amendment in civil cases, it doesnt really matter where the invocation occurs; the court will draw the same adverse inference wherever Bauer invokes the Fifth Amendment. The evidentiary standard for a civil proceeding, like this restraining order hearing, is a preponderance of the evidence; that is, more likely than not. It is proper for a judge to conclude in a civil case (but never in a criminal case) that based on Bauers invocation of the Fifth Amendment, it is more likely than not that he did what is alleged in the petitioners pleadings, and Holley knows this too.

However, Holley noted the media attention in this matter, and thats what she actually cares about. After weeks of protesting his innocence in the media, Bauer would look, frankly, really bad if hes invoking the Fifth Amendment in the restraining order case on question after question. Holley doesnt want the media to draw the same adverse inference as the court will. After all, the existence of the adverse inference will make it really hard - though by no means impossible - for Bauer to win this hearing.

Now, to be clear, Bauer - and every other person facing potential criminal or civil liability - is and should be entitled to excellent legal defense. However, thats not whats happening here. Holley - and the rest of Bauers team - are fighting this case in the media. They want to keep Bauer off the stand because of how it will look when he testifies. Thats also why his team continues to harass and threaten members of the media (though with far less skill).

Holley also filed a motion asking for $30,000 in attorney fees as sanctions from the petitioner for purportedly improper subpoenas, a hyperbolically overinflated request even if the motions had merit. Again, this entire strategy seems designed to harass and disincentivize other potential witnesses and accusers.

At a certain point, though, Bauers scorched earth approach will backfire in the courtroom as well. Reports surfaced this weekend that the majority of Bauers teammates dont want him back in the clubhouse under any circumstances. Given Bauers conduct, thats perfectly understandable.

Sheryl Ring is a consumer rights and civil rights attorney practicing in the Chicago, Illinois area. You can reach her on Twitter @Ring_Sheryl. This post is for informational purposes only and is not legal advice, and does not create any attorney-client relationship.

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Trevor Bauers Hearing Strategy Is A Trial In The Court of Public Opinion - Beyond the Box Score

Real Housewives of Beverly Hills star Erika Jayne's estranged husband is refusing to answer questions about his client's missing millions.

According to a report, the lawyer representing Thomas Girardi dropped the bombshell news in court earlier today.

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Girardi was ordered to appear and answer questions about $2 million owed to his former clients. The once-respected lawyer represented family members who lost their loved ones in a plane crash.

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The widows and orphans scored a settlement in the case but claim Girardi failed to pay them out in full. They filed a federal lawsuit accusing their former attorney of embezzling their money. In the suit, they added Jayne as a defendant in the case accusing her of helping her then-husband steal their money.

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The judge presiding over the federal lawsuit referred the matter for possible criminal investigation. He also found Girardi and his firm partners in contempt of court over the missing settlement money. .

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They believed the couple used the money to keep up their lavish lifestyle. During the hearing today, the judge asked Girardi and his law firm bookkeeper David Lira plan if they planned to testify at the upcoming contempt hearing.

Lawyers representing Girardi and the bookkeeper told the judge their clients plan to invoke his Fifth Amendment right against self-incrimination.

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His attorney said Girardi was 82 and dealing with Alzheimer's disease. She said, I dont believe he would sufficiently, at least for any lengthy period of time."

She claims, "He does not recall one of my conversations with him between conversations. In the past, Lira claimed he had no knowledge of where the money went.

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As Radar previously reported, Jayne has yet to respond to the allegations in the embezzlement case. She has claimed on Real Housewives of Beverly Hills, not under oath, that she had no knowledge of her husband's financial dealings.

In the middle of Girardi's financial problems, Jayne decided to file for divorce from her husband after 21 years of marriage. She demanded he cough up monthly spousal support but he is refusing.

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Some of his creditors believe the divorce is a "sham" meant to hide assets. The trustee presiding over Girardi's Chapter 7 bankruptcy recently hired a lawyer named Ronald Richards to investigate Jayne.

As we first reported, a separate lawsuit was filed against Jayne as part of the bankruptcy demanding she return $25 million. Thus far, the Bravo star has refused to return a dime. She claims everything in her possession was a "gift" by her ex. The creditors have scoffed at her stance.

Original post:
Erika Jayne's Husband Thomas Girardi To Plead The Fifth As Part Of Embezzlement Investigation - Radar Online

BRONX, N.Y. (WROC) New Yorkers will be shocked when they hear the full story regarding the New York Attorney Generals investigation into sexual harassment claims made against Gov. Andrew Cuomo, the governor said Monday.

The governor made the comments during the question and answer session of a coronavirus briefing at Yankee Stadium. When asked about the investigation, the governor said:

In general, with the attorney generals review, let the process continue, Gov. Cuomo said. Let the facts come out. Im very eager to get the facts to the people of this state, and I think when they hear the actual facts of what happened, and how the situation has been handled, I think they will be shocked.

Shocked because at the end of the day, the truth wins, and facts when, and then I dont care what your bias, whether youre a reporter, and I am eager for the truth to come out and New Yorkers will be shocked, Gov. Cuomo said.

Investigators recently appeared to be close to finishing their investigation into the sexual harassment and misconduct allegations that have shadowed the governor for months.

The probe overseen by state Attorney General Letitia James, a fellow Democrat, is not a criminal inquiry but it could have significant influence on an impeachment inquiry in the state legislature that could result in the third-term Democrats removal from office. Any findings from the investigation that corroborate the allegations could sway impeachment proceedings or add to already sizable pressure for Cuomo to leave voluntarily.

Cuomos accusers gave sworn depositions to investigators, meaning they were under oath and faced the possibility of perjury charges if they lied. Andrew G. Celli Jr., an attorney who was chief of the civil rights bureau in the attorney generals office from 1999 to 2003, said he expects that Cuomo will be questioned under the same conditions.

Im sure it will be respectful but it will be rigorous. It will be detail oriented. It will not be a conversation or a chat or a discussion. It will be this question and answer format. Its very much unlike a press conference, said Celli, who is now at the firm Emery Celli Brinckerhoff Abady Ward & Maazel LLP.

Though the investigation is not criminal in nature, Celli said Cuomo can assert his Fifth Amendment right and refuse to answer questions he feels may incriminate him.

Celli Jr. recently served as the special investigator who oversaw Rochester City Councils independent investigation into the citys handling of Daniel Prudes death.

Thetiming of Cuomos interview with investigatorswas confirmed Thursday to The Associated Press by two people familiar with the investigation. They were not authorized to speak publicly about the case and did so on condition of anonymity.

Cuomo, in office since 2011, has rebuffed those calls and is moving forward with plans to run for a fourth term next year. Rivals, though, see a Cuomo weakened by scandal as politically vulnerable.

Cuomo raised $2.3 million from January through June down from $4 million in the second half of 2020, according to campaign finance filings released late Thursday.

James, who is independently elected and does not report to the governor, hired former Acting U.S Attorney Joon Kim and employment discrimination attorney Anne Clark in March to lead the inquiry. Their findings will go in a public report.

Several women have accused Cuomo of unwanted kisses, touches and groping and inappropriate sexual remarks. Former aide Lindsey Boylan said Cuomo once suggested a game of strip poker aboard his state-owned jet. Another former aide, Charlotte Bennett, said Cuomo made sexual advances by making unwelcome comments, including asking if she ever had sex with older men.

Cuomo initially apologizedand said he learned an important lesson about his behavior around women and would fully cooperate with the investigation. Since then, hes denied that he did anything wrong and questioned the motivations of accusers and fellow Democrats who have called for his resignation.

Cuomos spokesperson, Rich Azzopardi, on Thursday claimed without evidence that leaks about Cuomos interview were more evidence of the transparent political motivation of the attorney generals review.

Debra Katz, Bennetts attorney, said the governor is deflecting from his own conduct by trying to attack the attorney general and the investigation.

It suggests hes trying to give himself an out if he doesnt like what they come up with, Katz said.

There is no deadline for completing the investigation. A 2010 probe Cuomo oversaw as attorney general into his predecessor, Gov. David Paterson, lasted about five months.

The state Assemblys Judiciary Committee, which is conducting the impeachment inquiry, also has the power to subpoena documents and witness testimony. It could rely on work done by the attorney generals team of investigators, or gather its own evidence.

The scope of its inquiry goes beyond Cuomos conduct with women. The governor is also under fire for his handling of theCOVID-19 crisis in the states nursing homes.

The committees work could result in the drafting of articles of impeachment against Cuomo, though that outcome is far from certain.

Cuomos campaign has paid $285,000 in legal fees to a firm representing him as he faces the sexual misconduct allegations. Taxpayers are on the hook for nearly $760,000 in legal fees to a law firm representing the governors executive chamber as federal prosecutors probe how the Cuomo administration reported coronavirus deaths of nursing home residents, according to the campaign finance filings.

___

Sisak reported from Port St. Lucie, Florida. Associated Press writer Michael Balsamo contributed from Washington, D.C.

See the rest here:
Gov. Cuomo: New Yorkers will be shocked when they hear facts of AGs harassment investigation - RochesterFirst

BASTROP, Texas (KXAN) Rodney Reeds push to appeal his 1998 conviction of the killing of Stacey Stites could wrap up a day early, his defense team told a judge.

Originally, Reeds attorneys had a full week to bring forward new evidence and witnesses before District Judge J.D. Langley. He will consider these and make recommendations to the Court of Criminal Appeals on whether Reed will get a new trial. Reed is facing the death penalty, but his execution has been delayed while the courts consider the evidence.

So far this week, Reeds defense team has presented 17 witnesses two forensic pathology experts and more than a dozen personal accounts of interactions with Reed, the victim Stacey Stites and her fianc Jimmy Fennell.

Dozens of Reeds supporters have filled the gallery each day of the proceedings, many of them wearing shirts that read I Stand with Rodney Reed and Give Rodney Reed a New Trial.

His brother Rodrick told reporters at the onset of the hearing, All I know is that we stand on the truth, and I know my brother did not commit these crimes. Theres testimony, theres medical and forensic science.

Over the years since Stites death, Reed and his attorneys have asserted Fennell was responsible. Defense has brought forth several witnesses over the last few days who testified to seeing contentious interactions between Stites and Fennell; some even believed their relationship was abusive.

Stites family told us they disagree. They still keep in touch with Fennell and believe Reed is guilty.

So far, I havent seen anything that changes my mind that there was absolutely no reason for Rodney Reed to have any type of DNA on my sister, her sister Debra Oliver said on Tuesday.

Oliver emphasized she had not yet heard from any witnesses they deemed credible. She added they understood the first forensic expert, Dr. Andrew Baker, and his opinion but said, its just that an opinion.

She also referenced other allegations of sexual assault against Reed and said her family had connected with the families of other women who spoke out against him.

We are together; we are one voice, Oliver said. We are saying no more sexual assaults of women.

Reed has not been indicted in any of these cases, but Oliver said she believed he would face more charges in these instances, if his conviction in her sisters death was ever overturned.

Fennell arrived at the hearing room in Bastrop early Thursday morning to testify.

Moments after Jimmy Fennell was sworn in to testify on Thursday morning, defense attorney Andrew MacRae fired off a series of questions, accusing Fennell of violating his sworn oath to protect the public as an officer with Giddings Police and Georgetown Police.

He was referring to Fennell pleading guilty to kidnapping and improper sexual activity with a person in his custody in a separate case out of Georgetown.

MacRae then reminds him four years ago, Fennell exercised his Fifth Amendment right and refused to answer questions in a proceeding for the Reed case. He peppered Fennell with questions about whether anyone had promised him protection or immunity for testifying in this hearing. Throughout his questioning, MacRae questioned the role of the states attorneys in Fennells testimony, calling him their star witness.

When Fennell denies receiving anything in return, MacRae asks whether he understood anything he testified to today could be used against him later on.

The judge also addressed Fennell directly, to ensure he didnt want to be represented by an attorney.

Fennell explained, I didnt feel I needed to, because I know the truth will come out.

The defense also pressed Fennell on the details of two meetings he had with members of the prosecution team and an investigator with the state.

Then, MacRae asked Fennell specific questions about testimony given by witnesses earlier in the week. Fennell responded all of the witnesses were lying, who testified about Stites and Reed knowing one another or having an affair.

The defense asked, Do you know why they would do that?

He answered, Besides attention? No.

He said other witnesses, who testified to a contentious or even abusive relationship between himself and Stites, were also lying insisting he and Stites were together all the time.

Then MacRae pressed Fennell on details from April 23, 1996. For instance, he wanted to know why Fennell cleaned out his bank account the morning before her body was was found, why Fennell sold the truck believed to have been involved in her murder and why he failed two polygraph tests.

The state objects here, noting polygraphs are not admissible evidence in a court of law, due to their unreliability. Later on in the day, Fennell would tell the court he felt guilty about protecting Stites by not driving her to work on the day she was killed, which could explain the test results.

In the 1998 trial, Fennell testified to being at home with Stites from 9 p.m. to 3 a.m. but told the court he had no memory of when she left their apartment that morning.

You were the prime suspect, you have no alibi, you failed two polygraphs, you asked for an attorney, and then you invoked your Fifth Amendment rights? MacRae said.

Fennell also denies confessing to men in prison about killing Stites.

MacRae asserted, You took a belt, and you wrapped it around a 19-year-old girls neck, and you killed her.

Fennell interrupted to say, That is incorrect. They are just telling what they think they heard. They are lies.

At one point MacRae asked Fennell again, are you sure you dont want an attorney? and we should believe you?

Fennells response: No matter how many people are lying, the truth is going to be the truth.

On their cross examination, prosecution spent some time using Fennells accounts to oppose earlier defense witnesses accounts. For instance, in response to a woman named Ruby Volek testifying that she heard Fennell tell Stites, if I ever catch you messing around on me, I will kill you and nobody will know I did it. She said she heard this at a social event in Round Rock in 1995 where Fennell was working security.

However, his employment records filed with the Texas Commission on Law Enforcement show he worked security for these kinds of events in 1993, before he ever met Stites. An attorney with the state, Travis Bragg, asked, so, if someone said you were working security for SPJST in 1995 thatd be false, right? and Fennell agreed.

As for the testimony given by a man named Brent Sappington, who said he heard a fight between the couple and possibly throwing furniture while visiting a nearby apartment, Fennell says they didnt have much furniture. Plus, he said they spent more time in her mothers apartment, also nearby.

There was no doubt we loved each other greatly, he said, calling them a happy family of three.

When asked about Stacey Stites, Fennell took a long pause before saying, She was beautiful. We got along great. There was open communication always. She was athletic, I was athletic we did things together. It was not just a romantic relationship, but a friendship also.

He testified they were excited to be married and were already talking about having children.

Tensions began to mount, and Fennells testimony elicited an audible response from the gallery filled with Rodney Reeds supporters, when he told the states attorney he never got to marry Stites because Rodney Reed murdered her.

Bragg began to ask about the morning Stites body was found. Fennell became emotional, putting his head in his hands and appears to fight back tears. He said the morning was scary to say the least.

A piece of me was ripped out, he said, appearing to begin crying. My heart was ripped out of my chest at that moment.

The prosecution could begin their case and start bringing witnesses to the stand as soon as Friday. They were scheduled to begin next Monday, and attorney Travis Bragg told the judge they were working to see which witnesses could appear earlier than planned.

Originally posted here:
Fianc of victim in Rodney Reed case testifies, waives right to attorney - KXAN.com

As September beckons people back to the office and the highly infectious Delta variant of the coronavirus spreads rapidly across the country, workplaces are navigating a range of challenges, including whether to require employees to be vaccinated or to reimpose mask mandates.

Some, including Representative Marjorie Taylor Greene, Republican of Georgia, are resisting those calls, as she falsely claimed this week that disclosing vaccination status was a violation of my HIPAA rights, the federal regulation that protects confidential health information.

The Health Insurance Portability and Accountability Act, known as HIPAA, governs the privacy of a patients health records, but it is legal to ask Ms. Greene about her medical history. Still, her assertion reflects a misperception that has spread across social media and fringe sites as online misinformation and misstatements about vaccines help fuel a resistance to being inoculated.

Heres a look at what privacy protections HIPAA offers and why it is so frequently misinterpreted.

In 1996, President Bill Clinton signed into law HIPAA, a broad piece of health and privacy legislation that helped update and regulate how health insurance was sold and how personal medical information was stored as electronic processing took hold.

One aspect of the law, the privacy rule, makes it illegal for certain people and organizations, including health care providers, insurers, clearinghouses that store and manage health data and their business associates, to share a patients medical records without the patients explicit consent. Those parties handle patient health records on a daily basis.

No. The law applies only to companies and professionals in the health care field, although some people may incorrectly imply otherwise, as Ms. Greene did in suggesting that the measure offered Fifth Amendment-like protection against revealing personal health information.

HIPAA is extremely narrow, said I. Glenn Cohen, an expert on bioethics and health law with the Harvard School of Law. Whenever anyone says to you HIPAA prohibits that, ask them to point to the portion of the statute or regulation that prohibits it. They often wont be able to do so.

Moreover, nothing in the law prohibits asking about someones health, be it vaccination status or proof that such information is accurate.

Regardless, some have turned to the law as a pretext to deflect those questions, even though HIPAA is not applicable to employers, retail stores or journalists, among other parties.

In July, the lieutenant governor of North Carolina, Mark Robinson, falsely claimed on Facebook that President Bidens door-to-door campaign to encourage vaccination and asking whether residents have been inoculated were illegal under HIPAA.

July 27, 2021, 10:39 a.m. ET

It is at your discretion to disclose whether you have been vaccinated. No federal law prevents companies from requiring their employees to be vaccinated, though there are certain exceptions if you have a disability or a sincerely held religious belief.

Long before social media and fringe news sites disseminated harmful health misinformation, like whether masks work (they do) or whether the coronavirus vaccine will alter your DNA (it wont), HIPAA and its use as a catchall excuse for privacy have often lent themselves to misinterpretation.

I often joke that even though it is five letters, HIPAA is treated as a four-letter word, Mr. Cohen said. Physicians, he said, have often used it as a reason not to do something they dont want to do, like providing a patient certain information by saying perhaps believing it but being incorrect well, that would be a HIPAA violation.

Understand the State of Vaccine Mandates in the U.S.

But experts say politicians and public figures inflict further damage in perpetuating incorrect claims, allowing misunderstandings about HIPAA and vaccine skepticism to flourish.

This rumor might not be specifically harmful in itself, but its part of a narrative that is harmful, said Tara Kirk Sell, an assistant professor of health security at Johns Hopkinss Bloomberg School of Public Health. It is especially a problem when theres an information void and in this case, its that people dont know what HIPAA is.

Ms. Greene has previously spread misinformation about HIPAA and about vaccines. Twitter suspended her account this week after she asserted that Covid-19 was not dangerous to young, healthy people a claim that the Centers for Disease Control and Prevention has disproved.

The HIPAA laws are real and they do something important, Ms. Sell said. The misinterpretation of what its all about just adds to this firestorm of anti-vaccine sentiment.

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What Is HIPAA and How Does the Law Work? - The New York Times

American sprinter ShaCarri Richardson received perhaps the worst advice upon failing her drug test for marijuana.

Though she publicly apologized, she wasnt wrong. The World Anti-Doping Agency's cannabis policies and the federal prohibition of marijuana are wrong and a waste of resources. But this country has a real hard time admitting that.

Richardson's disqualification from the Olympics is a gross injustice and they are taking away everything shes earned. The federal prohibition on marijuana has damaged American lives for half a century; this is the latest and most egregious example of it. Theyve taken a woman who is an American hero and gutted her.

She should be fighting this in court. The United States Olympic Committee is based in Colorado Springs. They are under the jurisdiction of the U.S. District Court of Colorado. Richardsons legal option would be to file a TRO (temporary restraining order) and injunction, seeking that the court order the United States Olympic Committee reinstate her on the team.

She would fight the TRO on grounds of 14th Amendment Equal Protection. Equal protection means that the rules and laws apply equally to everyone. Regarding cannabis, however, the rules are not applying equally to everyone.

For example, I represent 25-year-old Jonathan Wall, whos currently in jail for growing and selling weed. Theres a multibillion-dollar industry in the United States, with many people and corporations growing and selling weed all over the country. Its a violation of equal protection for one person to be able to do something in the United States while another person cannot.

It violates equal protection that Richardson could take one hit of pot and lose everything while other people in the country are making millions of dollars from growing, distributing, and selling it. Yet, while they get rich, she is deprived of everything she has earned.

Second ground would be the Fifth Amendments Taking Clause, which states: "Private property [shall not] be taken for public use, without just compensation."

To take her career and future earnings away from her causes a potential Fifth Amendment violation under the takings clause. Her career was a lifetime in the making. Earning it and going through the Olympic trials and everything else that shes done to deserve a spot on the Olympic team, thats her property. Yet, the government is taking it from her without due process. Its like going to a doctor or lawyer and saying, Were taking your license or coming to your house and saying, Were taking your home because you took a hit of pot in the backyard and cannabis is federally illegal.

This is a gross injustice and that they are taking away everything shes earned.

Its undeniable that the U.S. government has a much easier time punishing people of color than white people. The federal prohibition on pot has been a failed policy. Its been a racist policy. The very roots and motives of the drug war and the federal prohibition on cannabis are racist. This is just a continuation of a policy that is fundamentally racist, in a more high-profile setting.

President Joe Biden said: Rules are rules. But, as we saw in the past, just because something is a rule does not mean its brutally wrong and unjust. Do you want to argue Rules are rules to Jim Crow? Think about the lives that have been destroyed because of the federal prohibition of marijuana.

Rules are rules is one of the most intellectually and morally bankrupt arguments that you could ever offer because this country has a history of using unjust rules to damage people of color. And thats exactly what's happening here.

But it shouldnt be happening here. Richardson should be fighting it. As a representative of our country, it would be the most patriotic thing she could do.

Correction: An earlier version of this article misnames The World Anti-Doping Agency as the U.S. Anti-Doping Agency. We regret the error.

Read more:
How Sha'Carri Richardson Can Sue Her Way Back Into the Olympics - The Daily Beast

I love being right all the time. (Like all the time.)

So the day Ramirezwas decided I wrote this:

Ramirez absolutely torches the standing analysis applied by the Eleventh CircuitsoHunsteinis definitely going away now.

Proof.

Well a Court in New York addressed the issue just as directly on Friday holding:

The Supreme Courts decision in TransUnion casts significant doubt on the continued viability of Hunstein. This is so because of FN6, which appears dispositive of the mailing vendor theory.

That was easy. And rather obvious.

So Hunstein is dead and I was right. You can all go back to your Sundays now.

Case here: In re Letter Vendor cases_Dismissal

Ill have a post-mortem up on the HUGE palooza later this week. Bottom line: it was likely the best conference ever thrown. Certainly the best compliance-related conference.

BTWbunch of REALLY important TCPA cases out last week (a popular predictive dialers source code is likely to be handed over to the plaintiffs bar, a defendant almost got itself sanctioned for unprofessional conduct, and the Fifth Amendment is now critically important in civil TCPA suits.)

Will have coverage on all three for you tomorrow because I hate blogging on Sundays.

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Originally posted here:
QUICK BRAG AS I RECOVER FROM THE PALOOZA: Court in NY Says Hunstein Doesnt survive Ramirez and I Told You So - TCPAWorld.com