Category Archives: Fifth Amendment

PHILADELPHIA (AP) Bill Cosbys sexual assault conviction was thrown out Wednesday by Pennsylvanias highest court in a ruling that swiftly freed the actor from prison more than three years after he was found guilty of drugging and molesting Temple University employee Andrea Constand at his suburban Philadelphia mansion.

Cosby, 83, was the first celebrity tried and convicted in the #MeToo era, and his conviction was seen as a turning point in the movement to hold powerful men accountable for sexual misconduct.

Heres a look at the case against Cosby and the courts decision:

WHY DID THE COURT TOSS HIS CONVICTION?

The split court found that Cosby was unfairly prosecuted because the previous district attorney had promised the comedian once known as Americas Dad that he wouldnt be charged over Constands accusations. Cosby was charged by another prosecutor who claimed he wasnt bound by that agreement.

The court said thats not the case. The justices found that Cosby relied on that promise when he agreed to testify without invoking his Fifth Amendment right against self-incrimination in a lawsuit brought against him by Constand.

The court concluded that prosecutor who later brought the charges was obligated to stick to the nonprosecution agreement, so the conviction cannot stand. The justices wrote that denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade.

WHATS THE DEAL WITH THE NONPROSECUTION AGREEMENT?

The promise not to prosecute Cosby was made in 2005 by Bruce Castor, who was then the top prosecutor for Montgomery County. Castor was also on the legal team that defended former President Donald Trump during his historic second impeachment trial over the Jan. 6 insurrection at the U.S. Capitol by his supporters.

During a court hearing weeks after Cosbys 2015 arrest, Castor testified that he promised Cosby he wouldnt be prosecuted in the hopes that it would persuade the actor to testify in a civil case brought by Constand and allow her to win damages. Castor acknowledged the only place the matter was put in writing was in the 2005 press release announcing his decision not to prosecute, but said his decision was meant to shield Cosby from prosecution for all time.

His successor noted, during the appeal arguments, that Castor went on to say in the press release that he could revisit the decision in the future.

Castor had said that Constands case would be difficult to prove in court because she waited a year to come forward and stayed in contact with Cosby.

The first jurors who heard the case may have agreed with him, as they could not reach a verdict in 2017. But a second jury empaneled after the #MeToo movement exploded found him guilty at his 2018 retrial. Constand settled her civil case against Cosby for more than $3 million.

Castors successor, District Attorney Kevin Steele, charged Cosby in 2015 after a federal judge, acting on a request from The Associated Press, unsealed documents from her 2005 lawsuit against Cosby, revealing his damaging testimony about sexual encounters with Constand and others. Castor has said Cosby wouldve had to have been nuts to say those things if there was any chance he couldve been prosecuted.

HOW RARE IS THIS?

Extremely rare.

Wesley Oliver, a Pennsylvania law professor who has followed Cosbys case closely over the years, said he has never heard of a high court in Pennsylvania or anywhere else grappling with a prosecutors informal promise not to prosecute.

It breaks new ground entirely, said Oliver, who teaches at Duquesne University School of Law in Pittsburgh. It sets precedent not just for Pennsylvania but probably other states.

He said the ruling should drive home to prosecutors the risks of suggesting at news conferences, in press releases or verbally in private that they will not prosecute.

They should at least add three words at this time, he said. If you add that qualifier, which wasnt done in Cosbys case, you should be good to go, Oliver said.

CAN COSBY BE TRIED AGAIN?

Its highly unlikely. The decision on Wednesday bars Cosby from being tried again over Constands complaint, finding it to be the only remedy that comports with societys reasonable expectations of its elected prosecutors and our criminal justice system.

And the accusations raised by dozens of other women, including the five who testified at his 2018 trial, often go back decades and are most likely too remote to prosecute.

Cosby turns 84 next month. However, his lawyer said he remains in good health, except for vision problems that render him legally blind.

The trial judge deemed him a sexually violent predator who could still pose a danger to women given his wealth, power and fame, and ordered that he be on a lifetime sex offender registry and check in monthly with authorities. However, the decision negates that finding.

___

Richer reported from Boston. Associated Press reporter Michael Tarm contributed to this report from Chicago.

Continued here:
EXPLAINER: Why Bill Cosbys conviction was overturned - WKRG News 5

2020 saw the courts continuing to play an important role in health policy with several notable lawsuits related to the Affordable Care Act (ACA). Several other Trump administration policies were challenged, including Medicare payment policies, price transparency, how the Medicaid program can change and whether Medicaid beneficiaries can sue over curtailed benefits, and immigration changes affecting access to programs like Medicaid. In 2021, the courts will continue to play an important role.

Texas v. United States.In April 2018, a group of Republican-controlled states and two Texas residents argued that the entire ACA became unconstitutional when Congress eliminated the penalty for individuals who fail to obtain health insurance, known as the individual mandate. The initial ruling was that the provision was now unconstitutional. The case was then appealed. On February 14, 2019, 5th U.S. Circuit Court of Appeals permitted a coalition of 17 states to intervene in the case and defend the ACA (the state intervener-defendants). On May 13, 2020, the 5th Circuit allowed four more states to intervene in the case on appeal, bringing the total number of states defending the ACA to 21.

In Oct. 2020, a divided three-judge panel of the 5th U.S. Circuit Court of Appeals issued a ruling stating the individual mandate was unconstitutional because it can no longer be justified as a tax since Congress set the penalty at zero. However, the panel also remanded the case to the lower court to determine what portions of the ACA are or are not severable from the individual mandate.

The coalition of Democratic attorneys general who had asked to intervene in the case then asked the U.S. Supreme Court to take up the case and not wait for the Texas court to rule on whether some or all of the ACA provisions are unconstitutional.

Update:On Feb. 10, 2021, the Department of Justice (DOJ) sent a letter to the U.S. Supreme Court that stated the new administration believes the individual mandate and its tax penalty are constitutional, and if the Court determined that they are not, the provision can be severed from the remainder of the act. With this letter, the Biden administration reversed the Trump administration position that was presented to the Court. The Trump administration had claimed that the tax provision is unconstitutional and could not be separated from the ACA, making the entire ACA unconstitutional as a result. On June 17, 2021, the Supreme Court threw out the challenge to the ACA in a 7-2 decision, citing lack of standing by the plaintiffs.

Risk Corridors.The temporary risk corridors program was one of the Affordable Care Acts (ACA) three stabilization programs, alongside the temporary reinsurance and permanent risk adjustment programs. The goal of risk corridors was to persuade risk-averse insurers to participate in the new health insurance marketplacesto offer a new product to a new population with uncertain prospects. The program did so by limiting participating plans profits and losses during the first three years of exchange operations.

In Dec. 2014, Congress passed anappropriations riderthat limited the Department of Health and Human Services (HHS) ability to make payments to cover risk corridors payments. In response to a request from Congress in Feb. 2014, the Government Accountability Office (GAO)reportedthat HHS could use CMS program management funds to make risk corridors payments. Congress included identical riders in appropriations legislation and continuing resolutions for 2016 and 2017.

By 2016, HHS owed more than $12 billion to insurers under its risk corridors formula. There are dozens of lawsuits over unpaid risk corridors payments, including a class action with at least 116 insurers.

Lower court rulings were mixed. Of the four insurers whose cases are pending before the Supreme Court, judges in the Court of Federal Claims ruled against three insurers (Land of Lincoln,Blue Cross and Blue Shield of North Carolina, andMaine Community Health Options) and for one insurer (Moda Health Plan). In June 2018, a three-judge panel of the Federal Circuitheldthat the government did not have to pay insurers the full amount owed to them in risk corridors payments.

The insurers request foren bancreview by the Federal Circuit wasdeniedin Nov. 2018. The insurers then petitioned the Supreme Court to hear their appeal in early Feb. 2019. The Supreme Courtgrantedthe request in June 2019, consolidated the three cases, and scheduled one hour for oral argument which was held in Dec. 2019.

Update:On April 27, 2020, The Supreme Court ruled 8-1 in favor of commercial health insurers stating that they are owed $12 billion in unpaid risk corridors payments from 2014-2016. The case, Maine Community Health Options v. United States is the result of three consolidated cases brought by four insurers.

Association Health Plans.In June 2018, the Department of Labor (DOL) expanded the circumstances when an aggregation of small groups could be considered a large-group health plan. These association health plans (AHP) sought to make it easier for small employers to band together and offer plans that do not comply with Affordable Care Act (ACA) consumer protections. In July 2018, 11 states and D.C. sued in federal court to block the rule in the case of New York v. U.S. Department of Labor. The District Judge ruled that the DOL had stretched the definition of employer beyond what the Employee Retirement Income Security Act (ERISA) intended.

In a March 28, 2019 decision, a federal judge struck down the rule that had relaxed restrictions on multiemployer AHPs.

On July 22, 2020, two employers brought parallel litigation in Texas, asking for a declaratory judgment that their health coverage arrangement is a single-employer self-insured group health plan, and thus exempt from most ACA rules. The employers had requested an advisory opinion from the DOL, which concluded that the arrangement did not qualify as a single-employer group health plan.

On Aug. 3, 2020, the District Court for the Southern District of New York gave its opinion in favor of New York State, ruling that the DOL too broadly defined the term healthcare worker, and exceeded its authority as a result. The Court ruled that the Labor Departments definition was not in line with what Congress intended when it enacted the Families First Coronavirus Response Act (FFCRA) and, as a result, could lead to non-clinical employees or medical practice affiliates being excluded from the FFCRA protections.

The challenge is currently pending before the Court of Appeals for the D.C. circuit court. Oral arguments began in Nov. 2020.

Update:On Jan. 28, 2021 the Department of Justice (DOJ) requested a 60-day abeyance to give the Biden Administration time to review the issues in the case and determine how to proceed.

Short-Term Plans.On Aug. 1, 2018, the Departments of Health and Human Services (HHS) and Treasury issued a final rule to expand access to short-term, limited-duration insurance coverage that do not need to comply with ACA requirements.

On July 22, 2020, a divided panel of the D.C. Circuit upheld the short-term plan rule, concluding that the governments interpretation was entitled to deference and was neither inconsistent with nor impermissible under the ACA or HIPAA. The lead plaintiff, the Association for Community Affiliated Plans, stated it would ask for en banc review by a full panel of judges on the D.C. Circuit.

Update:On Feb. 8, 2021, the D.C District Court agreed to the Department of Justices (DOJ) unopposed request to delay proceedings in order to give the Biden Administration an opportunity to review the case. The parties are to update the court again on April 9, 2021 and every 60 days thereafter.

Cost-Sharing Reductions (CSR).ACAs cost-sharing reduction program was intended to compensate insurers for setting low deductibles and copayments on the exchanges. In 2017, the Trump administration decided to stop making the CSR payments, prompting numerous lawsuits from insurers. Insurers figured out a work-around, dubbed silver-loading, that allowed the plans to mitigate the CSR losses through increased tax credits. The insurers have won various lower-court rulings, and a consolidated group of the lawsuits was on appeal at the U.S. Court of Appeals for the Federal Circuit. Oral arguments were held Jan. 9, 2020.

On Aug.14, 2020, the Court of Appeals for the Federal Circuit affirmed a lower court ruling that the federal government is liable to insurers for the loss of cost-sharing reduction (CSR) reimbursements. The court determined that the federal government could reduce the amount owed to insurers since many insurers utilized a practice called silver-loading to mitigate losses.

On Aug. 17, 2020, a three-judge panel of the Court of Appeals for the Federal Circuit issued two decisions forSanford Health Plan v. United StatesandCommunity Health Choice v. United States. The Court concluded that under Section 1402 of the ACA, insurers are entitled to unpaid cost-sharing reductions (CSRs). The Federal Circuit agreed with the lower courts that Section 1402 imposes an unambiguous obligation on the federal government to make CSR payments to insurers and that this obligation is enforceable for damages. The three-judge panel limited the amount of unpaid CSRs that insurers can recover based on premium loading.

Update:On Feb. 19, 2021, insurers Maine Community Health Options and Community Health Choice asked the Supreme Court to review the Federal Circuit decision. On Feb. 24, 2021, Common Ground Healthcare Cooperative filed its own cert petition. On June 21, 2021, the Supreme Court denied the insurers request to take up the CSR case, leaving in place the Aug. 2020 Federal Circuit decision that the insurers reimbursement for money owed could be offset by other income received from the government in the form of premium tax credits. Litigation will continue in the lower courts to determine how much the insurers can claim.

Contraceptive Mandate.The ACA exempts non-profit religious organizations from complying with the contraceptive mandate. In 2017, the Department of Health and Human Services (HHS) created new rules to give for-profits groups the ability to exempt themselves from the mandate for religious or moral reasons. As a result, several states sued the government.

On July 12, 2019, the U.S. Court of Appeals for the Third Circuit upheld a temporary injunction on the HHS rules, stating they were arbitrary, capricious, and violated the Administrative Procedure Act (APA).The Little Sisters of the Poor and the government petitioned the Supreme Court following the third Circuit decision. The Supreme Court consolidated the two petitions, and heard oral arguments on May 6, 2020.

Update:On July 8, 2020, the U.S. Supreme Court issued a 7-2 decision inLittle Sisters of the Poor v. Pennsylvania,upholding the Trump Administrations rules that allow religious and moral exemptions to the Affordable Care Acts (ACA) contraceptive mandate. The ruling reversed the Third Circuit decision. Litigation continues before the district courts in California, Pennsylvania, and the First Circuit Court of Appeals.

Nondiscrimination Provisions.On June 19, 2020, the Trump administration issued its new final rule to implement Section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits discrimination based on race, color, origin, sex, age, and disability in health programs receiving federal financing. The final rule eliminated provisions specifically protecting discrimination based on gender identity and sex-stereotyping that had been issued in the ACA.

At least five lawsuits challenged the rule, which include coalitions of plaintiffs arguing that the rule should be invalidated. Each lawsuit asked the court to vacate the Trump administrations rule in its entirety and prevent HHS from implementing or enforcing its provisions. The lawsuits argued that the 2020 rule violates the Administrative Procedure Act (APA) as it is arbitrary, capricious, and contrary to law. They also argued that the rule exceeds HHSs statutory authority and violates the Fifth Amendment.

On June 15, 2020, the Supreme Court ruled in Bostock v. Clayton Countyand found that discrimination based on gender encompasses sexual orientation and gender identity in the context of employment. Based on that decision, two federal courts have issued nationwide preliminary injunctions blocking the Trump administration from implementing parts of the final rule.

On Aug. 17, 2020 New York court blocked the implementation of provisions excluding sex stereotyping from the definition of sex discrimination. After the plaintiffs requested clarification of the preliminary injunction order, the court directed the plaintiffs to submit a list of the 2020 rules provisions other than gender discrimination that can be kept despite the Supreme Courts decision.

On Sep. 2, 2020 the D.C. Federal District Court blocked the implementation of provisions excluding gender stereotyping from the definition of sex discrimination as well as provisions incorporating a blanket religious freedom exemption from claims of sex discrimination. Several other legal challenges are pending.

Update:Lawsuits challenging the Trump administrations rule to implement Section 1557 of the Affordable Care Act (ACA) are pending. The Trump administration had appealed the decisions made by the 2nd and D.C. district courts, and the appeals as well as pending litigation in D.C. and New York are held in abeyance with status reports due on May 14, 2021.

Columbus et al. v. Trump - Take care Clause.The 2018 case of Columbus et al. v. Trump brought by a group of five cities: Columbus, Baltimore, Cincinnati, Chicago, and Philadelphia argued that the Trump administration violated the Constitution by sabotaging the ACA and went against the Constitutions requirement that the president take care that the laws be faithfully executed. In addition, the plaintiffs stated that they had to spend more money on uncompensated care for their residents as a result of the Trump administration limiting care.

In April 2020, the district court held that the lawsuit could proceed under the Administrative Procedure Act (APA) but not the Take Care Clause of the Constitution.

Update:On March 4, 2021 a federal court in Baltimore ruled that the Trump administration unlawfully undermined the Affordable Care Act (ACA) and struck down four provisions of a 2019 Trump administration rule. The provisions vacated by the federal court include requiring federal review of network adequacy, income verification, standardized options, and a medical loss ratio.

Section 1332.On Oct. 22, 2018, the Departments of Health and Human Services (HHS) and Treasury released new guidance on Section 1332 that allowed states to waive certain requirements of the ACA following approval from HHS and Treasury. The Trump administration created these state innovation waivers with the objective of enabling states to pursue alternative coverage approaches in the individual and small group markets.

On Nov. 1, 2020, the Trump administration approveda waiver request from Georgia under Section 1332 that authorized the state to establish a reinsurance program for plan year 2022 and eliminate the use of HealthCare.gov starting in 2023.

On Jan. 14, 2021, Planned Parenthood Southeast and the Feminist Womens Health Centerfiled a lawsuitin D.C.s federal district court challenging the Trump administrationsapproval of Georgias Section 1332 waiver. The lawsuit alleges that the Trump administrations 2018 guidance and approval of Georgias waiver are unlawful because these actions violate Section 1332 of the ACA and the Administrative Procedure Act (APA).

Update:On March 26, 2021, a district judge granted Georgia permission to intervene in a lawsuit filed by Planned Parenthood Southeast and the Feminist Womens Health Center that challenged the Trump Administrations approval of Georgias waiver under Section 1332 of the Affordable Care Act (ACA). The state of Georgia had submitted a motion to intervene, stating its interests were not adequately served by either party in the case.

Section 1115 of the Social Security Act gives the Secretary of Health and Human Services (HHS) the ability to approve experimental or pilot projects that are deemed likely to help promote the objectives of the Medicaid program. The Centers for Medicare and Medicaid Services (CMS) carries out a review of each proposal to determine if its objectives align with those of Medicaid. Some states have requested that Medicaid eligibility be contingent on whether an individual is working, volunteering, or in some way participating in the community.

On Dec. 4, 2020, Supreme Court granted Arkansas and Trump administration petitions for certiorari in Arkansas v. Gresham and Azar v. Gresham.

As waivers including work requirements were approved, opponents responded with lawsuits challenging those waivers. D.C. District Court Judge James Boasberg repeatedly sided with the opponents of work requirements, ordering Arkansas to suspend its work requirement program and blocking the policy from taking effect in Kentucky and New Hampshire.

Other lawsuits challenged the policy in Indiana and Michigan. Boasbergs rulings against work requirements were on appeal at the D.C. Circuit, which heard oral arguments in October 2020. The D.C. Circuit considered the case on an expedited schedule.

On July 22, 2020, the Supreme Court heardGresham v. Azar.The D.C. District Court set aside state Medicaid waivers with work requirements. That decision was affirmed by a unanimous panel of the D.C. Court of Appeals in a decision written by Judge David Sentelle. The attorney general of Arkansas and the Trump administration filed cert petitions on July 13, 2020.

A March 11, 2021 HHS Report found that a number of state Medicaid waivers correlated to coverage losses and negative health outcomes. The report states this is partly because beneficiaries do not understand the new conditions of the waivers related to work requirements, health savings accounts, premiums, and more. HHS carried out the report in response to President Bidens executive order that directed the agency to review demonstrations that could reduce Medicaid coverage.

On Feb. 12, 2021, CMS told states it does not believe that Medicaid work requirements promote Medicaid objectives. States had thirty days to provide CMS with information on why they disagreed.

The Supreme Court canceled oral arguments in the Medicaid work requirements lawsuit March 11, 2021.

Update:On April 5, 2021, the Supreme Court announced it temporarily suspended its review of the Medicaid work requirements that the Trump administration had approved for Arkansas and New Hampshire. The Biden administration had revoked Arkansass and New Hampshires Medicaid work requirement 1115 waivers on March 17, 2021. The cases are still on hold, pending another Supreme Court order.

On April 6, 2021, the Biden administration revoked Wisconsins and Michigans Medicaid work requirement waivers granted by the Trump administration, bringing the current total of states with revoked 1115 waivers to four. Unlike several other states, Michigan and Wisconsin did not defend their work requirement programs to CMS in March.

Beneficiaries right to sue.Another policy tested in the courts is the extent to which beneficiaries have a right to sue state officials to challenge state actions that curtail Medicaid benefits. The ability to bring such lawsuits in federal court has long been viewed as an important safeguard for beneficiaries, but in recent years, some courts have expressed doubt about the legal theories underlying such lawsuits.

The U.S. Supreme Court declined to weigh in on the issue in 2018. However, a lawsuit was brought to the 5th Circuit by beneficiaries challenging Texas attempt to remove abortion providers from its Medicaid program. In a Nov. 2020 decision, the 5th Circuit Court of Appeals allowed Texas to kick Planned Parenthood out of its state Medicaid Program, saying that states have a right to determine which providers are qualified.

Several Texas Planned Parenthood affiliates filed a lawsuit in Feb. 2021, stating that they had not been issued a proper notice of termination from the Medicaid program.

Update:On March 10, 2021, a state district judge ruled that Texas can remove Planned Parenthood from its Medicaid program.

In Medicare, the Centers for Medicare and Medicaid Services (CMS) took part in two controversial payment policies that the agency said would bring down costs. Hospitals claim these policies are illegal, and fighting the policies is a priority for the hospital industry in 2021.

340B cuts.One lawsuit challenges the agencys 2018 and 2019 reimbursement cuts for drugs in the 340B drug discount program. Hospitals argued that the agency did not have the authority to make those cuts, and a federal district judge agreed. Oral arguments were heard in Nov. 2019.

On July 31, 2020, the Court of Appeals for the D.C. Circuit overturned the 2018 district court decision that found the Department of Health and Human Services (HHS) exceeded its statutory authority when it reduced 2018 and 2019 Medicare payment rates by 30 percent for many of the hospitals in the 340B Drug-Pricing Program.

In Dec. 2020, the American Hospital Association, joined by four other national hospital groups and hospital pharmacists, filed afederal lawsuitagainst HHS over its failure to enforce program requirements and halt drug company actions that undermine the program, such as limiting the 340b program through contract pharmacies.

The groups were joined in the lawsuit by three 340B hospitals serving patient communities in need that have been harmed by the companies refusals to provide discounts on prescription drugs dispensed at community-based pharmacies, as required by the 340B program.

On Feb. 11, 2021, the American Hospital Association (AHA) and member hospitals filed petitions asking the Supreme Court to reverse two appeals courts decisions related to hospital payments.

Update:On Feb. 17, 2021, a federal judge from the U.S. District Court for the Northern District of California dismissed the lawsuit, stating that hospitals cannot sue individually under federal law for 340B violations. The judge stated that hospitals must use the dispute resolution process that was finalized last month.

Site neutrality.American Hospital Association et al. v. Azarchallenged CMS 2019 site-neutral policy, which cut payments for outpatient clinic visits at certain off-campus hospital facilities. Under the policy, the agency reimbursed hospitals for those visits at a rate equivalent to the cost of such services provided in doctors offices under the physician fee schedule. In Sep. 2019, a judge from the D.C. District Court said CMS lacked authority to make the cuts and vacated them. As with the 340B reimbursement cuts, the litigation did not stop CMS from going ahead with phasing in the cuts in its 2020 outpatient rule.

Update:On July 17, 2020, the Court of Appeals for the D.C. Circuit reversed the district court decision to uphold the 2019 Medicare payment rule, expanding outpatient site neutral payment policies to apply to all hospital outpatient clinic visits, including longstanding off-campus provider-based hospital departments (PBDs). The decision by the Court of Appeals allowed the Expanded Site-Neutral Policy to stand, unless reversed by the Supreme Court. On June 28, 2021, the Supreme Court announced it would not take up AHAs site-neutral cuts lawsuit. This decision allows the Department of Health and Human Services (HHS) to move forward with the reimbursement cuts included in the 2019 Outpatient Prospective Payment System rule.

CMS faces drug and hospital industry-led legal challenges to two final rules issued last year that require drug companies and hospitals to disclose more information about pricing. Both challenges are based on the First Amendment.

Drug prices.A May 2019 drug pricing rule by the U.S. Food and Drug Administration (FDA), required pharmaceutical companies to include the list prices of their drugs in television advertising, which led to the lawsuitMerck & Co. Inc. et al. v. U.S. Department of Health and Human Services et al.

Update:On June 16, 2020, a three-judge panel from the D.C. Circuit Court backed a lower court's decision that the Department of Health and Human Services (HHS) overstepped its regulatory authority by requiring pharmaceutical companies to list their drug prices in television advertising. The case is on appeal at the D.C. Circuit.

Hospital prices and transparency.CMS issued the Transparency Final Rule in Nov. 2019, which required hospitals to publish the confidential rates they negotiate with private insurers. The hospital industry sued, arguing the rule is highly burdensome and violates hospitals free speech. The district judge presiding over the case set an expedited schedule to review it.

In late June 2020, the district court upheld the Trump administrations rule to require hospitals to publicly disclose negotiated rates and prices of certain shoppable items and services. The rule was promulgated under Section 2718(e) of the Public Health Service Act, a provision of the ACA known as the medical loss ratio provision. Hospitals challenged the rule, arguing that it is capricious, arbitrary, and violates the First Amendment. The hospitals also claimed that the government exceeded its authority in issuing the rule. The American Hospital Association, the lead plaintiff, quickly appealed to the decision to the D.C. Circuit. However, on Dec. 29, 2020, the D.C. Court of Appeals upheld the district courts ruling and rejected the American Hospital Association (AHA) and other hospital groups challenge of the hospital price transparency rule.

Update:On Dec. 29, 2020, a Federal Appeals Court ruled against the American Hospital Associations (AHA) legal challenge to the Centers for Medicare and Medicaid Services (CMS) final rule requiring hospitals to disclose their private negotiated charges with health insurers. The rule went into effect Jan. 1, 2021.

Immigrants and health insurance.The Public Charge rule, issued in Aug. 2019 by DHS, made it harder for legal immigrants who received certain forms of public assistance, including Medicaid, to remain in the U.S. and become permanent residents. The proclamation required new immigrants seeking entry into the country to demonstrate that they would be able to obtain health insurance, excluding subsidized ACA plans or Medicaid.

On Aug. 5, 2020, a Fourth Circuit panel ruled 2-1 in favor of the Trump administration policy and reversed the nationwide injunction of the policy issued by a federal judge in Maryland. On Jan. 11, 2020, the U.S. Court of Appeals for the Fourth Circuit was the only federal appeals court to allow the rule to proceed.

On March 9, 2021, the Supreme Court dismissed the case.

Update:On March 9, 2021, a court order vacating the 2019 Public Charge Rule went into effect, and the Department of Homeland Security (DHS) immediately stopped applying the rule. On March 15, 2021, the Biden Administration officially removed the 2019 Public Charge rule from the Code of Federal Regulations.

Conscience rule.On May 2, 2019, the U.S. Department of Health and Human Services (HHS) and Office of Civil Rights (OCR) released a final rule that expanded the ability of medical professionals to refuse to provide care based on religious or moral objections.

The state of California and two additional states and cities sued the Trump Administration on May 21, 2019, stating that the conscience rule would encourage discrimination against women and the LGBT community.

On Nov. 6, 2019, a federal judge voided the conscience rule, stating that HHS did not have the authority to impose major portions of the rule.

Update:Multiple district court decisions related to the Provider Conscience Rule were appealed and consolidated before the 2nd and 9th Circuit Courts of Appeal. Oral arguments before the 9th Circuit were scheduled for Feb. 2021, but the court granted the governments request to hold the appeals in abeyance. A status report is due by June 1, 2021. Oral arguments scheduled for March 17, 2021 in the 2nd Circuit were also removed from the calendar after the court agreed to hold the appeals in abeyance, and status reports were filed on March 8.

Link:
The Courts and Healthcare Policy - July 2021 | McGuireWoods Consulting - JDSupra - JD Supra

To the editor: From the constitution's Fifth Amendment: "... nor shall private property be taken for public use without just compensation."

How much clearer can it be? Mortgage-holders and landlords in Massachusetts are being forced by the state to allow their creditors to stay on their property without paying their debt. The victims are the mortgage-holders and the landlords.

Prior to the pandemic, a homebuyer of mine chose to no longer make his monthly payments to me. The foreclosure process was started, but was stalled by the pandemic moratorium. As of this writing, the occupants have been in that house for nearly three years, without paying a cent. Meanwhile, I have to pay their insurance, taxes and fire district fees to protect the property. And, I have a mortgage of my own to pay, so I don't lose the property. All because the government orders it to be so.

It's delusional and naive for legislators to assume that these creditors will make up the missed payments they'll just move on to other housing accommodations. So where's my "just compensation"? I suggest that the compensation checks being doled out by state and federal authorities are probably better at supporting the vape shops, tattoo parlors and retail marijuana stores than paying rents and mortgages. How fair and just is that? Why am I forced by the government to let these people stay in my house?

We're all sympathetic to this situation where people have lost their livelihoods due to this pandemic. But what gives the government the authority to conscribe me to cure this? I submit that this should be the responsibility of all of us as a whole, not a select few. We all read about how difficult it is to find affordable housing. How do you think that this moratorium stuff is going to impact that? I suspect that there will be fewer folks staying in the landlord business after this, since now it's clearly understood that the government can arbitrarily trample on that Fifth Amendment right at any time.

I propose that these landlords and mortgage-holders be given tax credits to compensate for lost payment. I'm confident that the credits won't be abused any more than the stimulus checks.

Jon Macht, Pittsfield

Original post:
Letter: Where is our Fifth Amendment? | Letters To Editor | berkshireeagle.com - Berkshire Eagle

opinion

Andrew P. Napolitano| Special to the USA TODAY Network

The dispute over whether Roman Catholics who facilitate abortions should be permitted to receive the Blessed Sacrament appears to be coming to a head as President Joseph R. Biden Jr., a public Roman Catholic and public abettor of abortion, continues to attend Mass regularly and receive.

The Church has condemned abortion as being among the gravest of sins. To Catholics, the baby in the womb is a distinct human being who enjoys the right to live, and the Blessed Sacrament is not a symbol; it is substance. It is the body, blood, soul and divinity of Our Lord and Savior Jesus Christ, and there are necessary preconditions to its reception.

Can a person who facilitates killing a class of innocent human beings worthily receive the Blessed Sacrament? In a word: No. Here is the backstory.

There is no ambiguity in the Church's teaching about abortion. It is the gravest of evils. All humans have the right to live from conception to natural death. It is a core teaching of the Church: "Thou shalt not kill."

Also core among the Church's teachings is that Catholics have a duty to inform their consciences of what the Church teaches, to exercise their informed reason in distinguishing right from wrong and to conform their acts to core Church teachings. A properly formed conscience will conclude that it is always wrong intentionally to kill an innocent human life. I doubt that Biden disagrees with these principles. If he does, he is in the wrong church.

The stumbling block for Biden and other Catholic supporters of abortion is whether or not the baby in the womb is a person. If the baby is a person, then all abortion is homicide. The Fifth Amendment protects the life, liberty and property of all persons, and the 14th Amendment requires the states to do so on an equal basis. Thus, if the baby is a person, the states cannot outlaw and prosecute only postnatal killings; they must outlaw and prosecute prenatal killings as well.

We know the baby in the womb is a person because she or he has human parents and possesses from conception all the genomic material needed to be viable. Through guardians, the baby can inherit, litigate and own property.

The reception of the Blessed Sacrament is limited to Roman Catholics who are not in a state of grave sin. The sin is facilitating abortions, not politically supporting those who favor them. Here is where Biden would have a sound point when he argues that this is a private matter if he were just private citizen Joe, voting for folks who support abortion. Then, his conscience and his beliefs would be mostly a private matter between him and his confessor.

But he is not private citizen Joe. He is the president of the United States who exercises his authority under unjust laws to facilitate and pay for abortions, and that is a grave sin.

What is a grave sin? It is a grievous act of weakness or defiance done with sufficient reflection and full consent of the will. All three aspects of sinfulness gravity, reflection, consent must be present for the sinner to have culpability. There is no dispute but that abortion is a grievous matter. Unless Biden's exercise of his presidential powers is not done with sufficient reflection and full consent of his will, he is likely culpable for the sin of abetting the killing of innocent human life.

On the other hand, if he firmly believes that the baby in a womb is not a person, that somehow abortion does not kill an innocent human life, that Jesus in Mary's womb was not God and that Mary could morally have killed Him, then he should leave the Catholic Church. For if he stays, at the least, he is culpable for having a gravely and substantially malformed conscience one that embraces heresy.

Even the arguments of the preeminent modern Catholic defender of the primacy of conscience, St. John Henry Newman, would not help Biden. Newman was a 19th-century British academic and Anglican priest who converted to Catholicism and rose to the College of Cardinals. At his beatification, Pope Benedict XVI summarized Newman's teaching on conscience as "not a path of self-asserting subjectivity, but, on the contrary, a path of obedience to the truth that was gradually opened up to him."

The key word here is "gradually." This is so because one's conscience Biden's, yours and mine discerns more as one's intellect learns more.

Stated differently, no one knows how Biden discerns right from wrong, and could change his mind, but Biden himself. If his conscience tells him that the baby in the womb is not a person as un-Catholic and irrational as that is his aiding abortion is still gravely sinful, but he may not be culpable.

Now back to Biden's public dispute with the American Catholic hierarchy. It is profoundly the duty of the bishops to safeguard and protect the sacraments. Traditionally, priests trust the recipient of the Blessed Sacrament not to be in a state of grave sin at the time of the reception.

But one who directly and publicly employs the assets of government to kill babies and then receives the Blessed Sacrament nevertheless if uncorrected by the hierarchy will cause grave scandal. As Biden's reception of the Sacrament and his facilitation of abortion are public, his admonition should be public as well.

A retired bishop friend of mine recently put it this way: Do you think it was right for the Catholic hierarchy in Germany to remain silent and permit priests to give the Blessed Sacrament to SS officers whose regime was slaughtering the Jewish people because unjust laws permitted them to do so? The answer is obvious because Catholics who help to kill innocents are Catholic in their own minds only.

More:
Joe Biden and the Blessed Sacrament | Napolitano - New Jersey Herald

On Wednesday, the Court decided four cases. Each decision resolved an important question of constitutional law. First Collins v. Yellen held that the structure of the Federal House Finance Agency was unconstitutional. Second,Mahanoy Area School Districtheld that a school could not punish a student for sending "vulgar" snapchat messages. Third,Cedar Point Nursery v. Hassid held that California violated the Takings Clause of the Fifth Amendment by requiring farmers to admit union organizers. Fourth,Lange v. California held that the hot pursuit doctrine does not categorically apply to a fleeing misdemeanant. I have now edited all four cases for the Barnett/Blackman supplement. (Randy and I have added a chapter on constitutional criminal procedure to the Fourth Edition of our casebook.) Please email me if you'd like a copy.

I plan to write more about each case. Here, I'd like to revisit my dismal predictions. I correctly predicted that Justice Alito would writeCollins. I whiffed on the other three. I had hoped Justice Kagan would write Mahanoy. She would have brought verve to the topic of student free speech. Alas, generations of principals, teachers, and students will have to suffer from Justice Breyer's staid prose. I thought Justice Alito or Kavanaugh would write Cedar Point. Wrong. The Chief kept it for himself. In light of his votes inHorne I and II, Roberts is especially strong on the Takings Clause. If there is a vehicle somewhere to overrule Kelo, now is the shot. Finally, I didn't have strong thoughts onLange. I predicted Sotomayor, but instead we got a Kagan opinion.

We are left with eight cases. The Court will hand down some tomorrow, and probably the rest on Monday, possibly Tuesday.

January Sitting

Only one case is outstanding: Guzman-Chavez. I still don't have a strong prediction here. I'll give this statutory interpretation case to Barrett. She was very active during oral arguments on statutory nuance.

February Sitting

Only one case is outstanding:Brnovich. Because Roberts ended up writingCedar Point, I am going with Alito or Kavanaugh forBrnovich.

March Sitting

Only one case is outstanding: TransUnion. I'll stay with Kagan for this Rule 23 case.

April Sitting

Justice Breyer wrote the majority in Mahanoy. There are five outstanding cases from that sitting: PennEast (Barrett),Minerva (Kagan), AFP/Thomas More v. Bonta (Roberts),Chehalis (Gorsuch), andHollyFrontier (Barrett).

Read this article:
Recapping Wednesday's Cases, and Predicting the Remaining 8 Cases - Reason

In a major victory for property owners facing state and local land use regulation, the U.S. Supreme Court on Wednesday ruled 6-3 that a California regulation granting union organizers the right to access private property is a per se physical taking requiring the payment of just compensation under the Takings Clause of the U.S. Constitution. Cedar Point Nursery v. Hassid, 2021 WL 2557070 (U.S. June 23, 2021). Cedar Point represents another expansion by the Roberts Court of property owner rights under the Takings Clause and opens the door further to legal challenges to government mandates allowing access to private property.

Cedar Point began with a federal lawsuit under the Fifth and Fourteenth Amendments by two California growers challenging a decades-old state regulation granting labor organizations access to an agricultural employers property for up to three hours per day, 120 days per year, for labor organizing purposes. The lead plaintiff, a grower, challenged the regulation after union organizers entered the companys property without notice, causing some workers to join in a protest and others to leave the job site. Plaintiffs alleged that the regulation created an easement on their properties that amounted to a per se physical taking, requiring just compensation under the Constitution.

The trial court rejected the growers argument that the regulation was a per se physical taking because it did not allow the public to access their property in a permanent and continuous manner for whatever reason. The Ninth Circuit affirmed, explaining that the Penn Central analysis for regulatory, not physical, takings was appropriate, and holding that because the growers did not contend that the regulation deprived them of all economically beneficial use of their property, per se treatment was inappropriate and the takings claim was invalid. 923 F.3d 524 (2019).

Writing for the Court, Chief Justice Roberts held that the Ninth Circuit erred when it applied Penn Central because the appellate courts decision was incorrectly focused on the fact that the government action was a regulation. Rather, the essential question is whether the government has physically taken property for itself or someone else by whatever means or has instead restricted a property owners ability to use his own property. The Court reasoned that because a physical appropriation of property had occurred regardless of whether it was a result of a state regulation Penn Central has no place.

The Court also rejected the Ninth Circuits holding that the regulation did not constitute a per se taking because it only granted temporary access to the union organizers. The Court held that this position is insupportable as a matter of precedent and common sense, citing several Supreme Court precedents that established temporary takings as physical takings requiring compensation.

The three dissenting justices argued that the California regulation falls within the scope of Penn Central and voiced concerns about the potential for the Courts decision to require compensation for government access for health and safety inspections and similar activities. The majority opinion dismissed those concerns, noting that such access is typically required as a condition of a permit, license, or registration.

The Cedar Point Nursery decision broadens the reach of the law of per se physical takings, a typically more straightforward and plaintiff-friendly form of takings claim than regulatory takings. Coupled with the Supreme Courts 2019 decision in Knick v. Scott Township, 139 S.Ct. 2162, that expanded access to the federal courts for takings claims, property owners and businesses now have more tools to negotiate, limit, and where necessary, litigate in federal court state and local mandates that involve intrusion on land. Per se takings that require compensation may well extend beyond easements created by regulation, such as the requirement at issue in Cedar Point.

[View source.]

Go here to see the original:
Supreme Court Finds Fifth Amendment Taking in State Regulation Granting Access to Private Property - JD Supra

Lucas Wall posted this photo of himself on social media at his mothers home in The Villages after an interview with a TV station.

A Villagers son stranded in Floridas Friendliest Hometown wants a judge yanked from his case in a legal fight over a mask mandate for air travelers.

Lucas Wall, who has been staying with his mother in The Villages due to the COVID-19 pandemic, had been hoping to travel again. He was prevented from doing so earlier this month at the Orlando International Airport because he refused to wear a mask due to an anxiety issue. Since he was prevented from boarding a Southwest Airlines flight to Fort Lauderdale, Wall has filed a flurry of legal motions in federal court, in a bid to be able to fly without wearing a mask.

The Washington D.C. resident on Friday filed a motion to disqualify Magistrate Judge Daniel Irick from his case.

Wall wants Irick removed for bias shown against me and violation of my Fifth Amendment right to due process.

Wall has attempted to bolster his case with numerous media appearances, including on Fox News. He is also riding the wave of Americans growing frustration with the air travel mask mandate at a time when the nation is seeing an explosion in travel as the July 4 holiday nears.

Wall has indicated his need for a legal remedy is urgent as his latest travel itinerary nears.

He has a flight booked for Thursday to Germany to see his brother and his wife. He said a ruling is required in the matter no later than Wednesday.

Read the original here:
Villager's son wants judge yanked from case in legal fight over mask mandate - Villages-News

By JUDGE ANDREW P. NAPOLITANO

The dispute over whether Roman Catholics who facilitate abortions should be permitted to receive the Blessed Sacrament appears to be coming to a head as President Joseph R. Biden Jr., a public Roman Catholic and public abettor of abortion, continues to attend Mass regularly and receive.

The Church has condemned abortion as being among the gravest of sins. To Catholics, the baby in the womb is a distinct human being who enjoys the right to live, and the Blessed Sacrament is not a symbol; it is substance. It is the body, blood, soul and divinity of Our Lord and Savior Jesus Christ, and there are necessary preconditions to its reception.

Can a person who facilitates killing a class of innocent human beings worthily receive the Blessed Sacrament? In a word: No. Here is the backstory.

There is no ambiguity in the Churchs teaching about abortion. It is the gravest of evils. All humans have the right to live from conception to natural death. It is a core teaching of the Church: Thou shalt not kill.

Also core among the Churchs teachings is that Catholics have a duty to inform their consciences of what the Church teaches, to exercise their informed reason in distinguishing right from wrong and to conform their acts to core Church teachings. A properly formed conscience will conclude that it is always wrong intentionally to kill an innocent human life. I doubt that Biden disagrees with these principles. If he does, he is in the wrong church.

The stumbling block for Biden and other Catholic supporters of abortion is whether or not the baby in the womb is a person. If the baby is a person, then all abortion is homicide. The Fifth Amendment protects the life, liberty and property of all persons, and the 14th Amendment requires the states to do so on an equal basis. Thus, if the baby is a person, the states cannot outlaw and prosecute only postnatal killings; they must outlaw and prosecute prenatal killings as well.

We know the baby in the womb is a person because she or he has human parents and possesses from conception all the genomic material needed to be viable. Through guardians, the baby can inherit, litigate and own property.

The reception of the Blessed Sacrament is limited to Roman Catholics who are not in a state of grave sin. The sin is facilitating abortions, not politically supporting those who favor them. Here is where Biden would have a sound point when he argues that this is a private matter if he were just private citizen Joe, voting for folks who support abortion. Then, his conscience and his beliefs would be mostly a private matter between him and his confessor.

But he is not private citizen Joe. He is the president of the United States who exercises his authority under unjust laws to facilitate and pay for abortions, and that is a grave sin.

What is a grave sin? It is a grievous act of weakness or defiance done with sufficient reflection and full consent of the will. All three aspects of sinfulness gravity, reflection, consent must be present for the sinner to have culpability. There is no dispute but that abortion is a grievous matter. Unless Bidens exercise of his presidential powers is not done with sufficient reflection and full consent of his will, he is likely culpable for the sin of abetting the killing of innocent human life.

On the other hand, if he firmly believes that the baby in a womb is not a person, that somehow abortion does not kill an innocent human life, that Jesus in Marys womb was not God and that Mary could morally have killed Him, then he should leave the Catholic Church. For if he stays, at the least, he is culpable for having a gravely and substantially malformed conscience one that embraces heresy.

Even the arguments of the preeminent modern Catholic defender of the primacy of conscience, St. John Henry Newman, would not help Biden. Newman was a 19th-century British academic and Anglican priest who converted to Catholicism and rose to the College of Cardinals. At his beatification, Pope Benedict XVI summarized Newmans teaching on conscience as not a path of self-asserting subjectivity, but, on the contrary, a path of obedience to the truth that was gradually opened up to him.

The key word here is gradually. This is so because ones conscience Bidens, yours and mine discerns more as ones intellect learns more.

Stated differently, no one knows how Biden discerns right from wrong, and could change his mind, but Biden himself. If his conscience tells him that the baby in the womb is not a person as un-Catholic and irrational as that is his aiding abortion is still gravely sinful, but he may not be culpable.

Now back to Bidens public dispute with the American Catholic hierarchy. It is profoundly the duty of the bishops to safeguard and protect the sacraments. Traditionally, priests trust the recipient of the Blessed Sacrament not to be in a state of grave sin at the time of the reception.

But one who directly and publicly employs the assets of government to kill babies and then receives the Blessed Sacrament nevertheless if uncorrected by the hierarchy will cause grave scandal. As Bidens reception of the Sacrament and his facilitation of abortion are public, his admonition should be public as well.

A retired bishop friend of mine recently put it this way: Do you think it was right for the Catholic hierarchy in Germany to remain silent and permit priests to give the Blessed Sacrament to SS officers whose regime was slaughtering the Jewish people because unjust laws permitted them to do so? The answer is obvious because Catholics who help to kill innocents are Catholic in their own minds only.

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Biden and the Sacrament | News, Sports, Jobs - Gloversville Leader-Herald

More than 30 years ago, based only on the statements of two witnesses who either recanted or failed to appear in court, Curtis Crosland was convicted of the 1984 murder of South Philadelphia store owner Il Man Heo and sentenced to life in prison.

On Thursday, Crosland, 60 a father of five and grandfather of 32 was released from the State Correctional Institution Phoenix in Montgomery County. So many loved ones crowded onto his sisters narrow block in the citys Cobbs Creek section, screaming and hugging, that traffic ground to a halt.

I just came home after 34 years. Ive been exonerated, Crosland apologized to one driver. She responded, Praise God!

Crosland is the 21st person exonerated with support from District Attorney Larry Krasners Conviction Integrity Unit, which concluded that investigators had illegally concealed troubling information about the witnesses who accused Crosland and evidence pointing to another suspect.

U.S. District Judge Anita Brody this week ordered Crosland released or retried, and the DA formally dropped the charges. In her order, Brody affirmed the CIUs efforts, saying the DAs first responsibility is to justice: The responsibility of doing justice does not disappear once a conviction is achieved. In some circumstances, the duty to seek truth can and should extend to cases long closed.

The victims family also welcomed Croslands release, said Charles Heo, 50, who recalled translating the trial prosecutors explanations into Korean for his mother when he was just a teenager: He said, We got the guy. We believed him.

He and his sister Song, 52, described their father, known in the community as Tony, as a revered, lighthearted, generous, and gregarious figure who took care of his neighbors, often carrying over more than $1,000 in I owe yous from those who couldnt afford to pay. He was shot during a gunpoint robbery of his H&B Grocery Store by a masked perpetrator who knew to call him by his first name.

Despite his loss, Heo said he was grateful to see Croslands family reunited. There was an injustice in this case, he said, and the ripple effects caused untold damage through our familys lives, through the Crosland familys lives.

READ MORE: Phillys murder exonerations raise questions about decades of homicide investigations

In court filings, the CIU made clear Croslands case involved not only apparent misconduct but also a compelling innocence claim.

To me, its a case that has all the telltale signs of a wrongful conviction, CIU supervisor Patricia Cummings said. You have a case that was cold. Then you have snitches involved wanting something in their case, and then the historical lack of understanding and appreciation of [disclosure requirements].

According to legal filings, the case was built on lies by informants police knew were tainted long before Croslands arrest.

One man, Rodney Everett, was facing a parole violation when he agreed to provide information in multiple murder cases even testifying in two preliminary hearings on the same day.

The DAs search of the police file yielded extensive undisclosed documents, including a failed polygraph test, a statement from Everetts wife that he had identified a different perpetrator, and an undated letter from Everett to a homicide detective, seeking help in exchange for information.

The other informant, Delores Tilghman, had previously given a false statement in a different murder case, prosecutors say.

In interviews Thursday, both witnesses said they felt coerced into giving false statements.

It was just very brutal. They threaten you. They will use your family and they will tell you what they will do to your family, taking your kids, said Everett, who testified at Croslands preliminary hearing but said he repeatedly tried to recant. When you tell the truth, they dont care. Theyll accept the lies, but they wont accept the truth.

Everett refused to testify at Croslands trial, invoking his Fifth Amendment right against self-incrimination, but his earlier statement was read into the record. After Croslands conviction was overturned, Everett was granted immunity to testify at the second trial but recanted on the stand.

Yet Crosland was convicted again by a second jury.

READ MORE: The battle in Philly DAs Office: Conviction Integrity Unit report shows rocky path to reform

As for Tilghman, she said detectives came to her home and woke her up, threatening to arrest her if she didnt testify.

It was him or me, she said. They were threatening me with putting me in jail. ... They can make that happen. I seen them make his life disappear with one witness.

She said shed long regretted her role in the case and was glad to learn of Croslands release.

Over the years, Crosland has presented a growing collection of evidence to support his innocence: three eyewitnesses to the robbery and murder who said he was not the killer, and eventually another witness willing to identify the alternative suspect. He filed nine post-conviction relief petitions in state court and four federal habeas petitions before he was finally cleared by evidence that was contained in Philadelphia police and prosecutors files all along.

Some of that information was sealed in connection with grand jury investigations, but Cummings said that doesnt excuse the nondisclosure.

The exculpatory information was technically in the hands of prosecutors, she said, and should have been provided.

Crosland represented himself for decades as lawyers botched his case, abandoned his claims, or filed letters with court saying his case had no merit. After the Federal Community Defender Office was appointed, they gained support from the CIU.

When he saw the evidence that had been hidden in the case last year, he said, it made me very emotional. It was mind-blowing that all that could be hidden, to convict an innocent man. It was painful. It was difficult to even share with my family some of the things I learned that happened to me.

But on Thursday night, home with his sons and wearing street clothes for the first time in 34 years, he and his family said it felt like divine intervention.

Risheen Crosland, 36, of West Oak Lane, was just 2 when his father was arrested. His oldest brother, Curtis Jr., became the father figure at age 6.

I was told when I was 16 that he would always belong to the state of Pennsylvania, Risheen Crosland said. I tried everything I could to get my father out. Then when nothing else worked, it seemed like God just showed me what he could really do.

Engaged to his childhood sweetheart Jackie Gray, Crosland said his goal now is to get a decent job, spend time with his family, and use his hard-earned legal knowledge to help the other family of innocent men he left behind in prison.

Then, more calls and FaceTime visits came in, from even more friends and relatives whod just heard the news. Crosland had decided to keep his homecoming a secret, after so many decades of hopes raised and then dashed.

You never know whats going to happen, he said. For years, Ive been saying, Im coming and Its gonna happen, and it didnt happen. I didnt want them to feel torn down.

See the article here:
A Philly man was cleared of murder after 34 years by evidence that was in the police file all along - The Philadelphia Inquirer

From Nunes v. Lizza, handed down yesterday by Magistrate Judge Mark A. Roberts (N.D. Iowa):

Defendants published an article about Plaintiffs' dairy farm. A thorough statement of the factual background is set forth in Judge Williams's Memorandum and Order regarding Defendants' Motion to Dismiss. Because of Judge Williams's ruling, the sole surviving claim is for defamation arising from Defendants' allegedly false statements that Plaintiffs knowingly employed undocumented or unauthorized workers.

Thereafter, discovery focused on the immigration status of Plaintiffs' employees, including, among other things, Plaintiffs' I-9 documentation and records in the possession of the Social Security Administration. Defendants noticed the depositions of six of Plaintiffs' current employees and had them served with subpoenas duces tecum that required them to bring identification to their depositions.

Plaintiffs' counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees, but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents. F.S.D. was the first such witness to be deposed on May 12, 2021.

While Defendants' counsel was questioning F.S.D. about his purported signature on various documents, Mr. Allen stated, "I've advised my client to invoke his Fifth Amendment right regarding questions about this document. [F.S.D.]" Mr. Biss then interrupted stating, "Hold on. Hold on. Can we go off the record for just a minute? I'd like to talk to Justin before we do this." In fact, the deposition was delayed for much more than just a minute. More than two hours later, the deposition resumed. When Defendants' counsel attempted to make record, Mr. Biss interrupted him several times insisting that Mr. Allen would make a statement and the deposition would be rescheduled. Once Mr. Biss got his way, Mr. Allen stated,

I am not going to allow [F.S.D.] to answer that question because when we left it I advised him to invoke his Fifth Amendment right. We took a break. We went off the record, and we've had several conversations with lots of people and I've talked to [F.S.D.], and as of now I am no longer representing him. I am not his lawyer.

The depositions were then halted. At the hearing, Mr. Biss stated that a new lawyer had been retained to represent the employee witnesses at their depositions, but he could only identify the new attorney by her first name, Jennifer. Mr. Biss was ordered to provide her name to opposing counsel and the Court. To date, I have not received that information.

Defendants complain about Mr. Biss's behavior during the deposition of F.S.D. Particularly, Defendants assert that Mr. Biss asserted argumentative objections that were disruptive and intended to intimidate or coach the witness. Mr. Biss asserts that his objections were proper and "intended to call out the Defendants' overt harassment of the NuStar employee." Mr. Biss's further explanation on this issue is puzzling and troubling:

No effort was made to "signal to the witness how to answer questions" or to "coach[ ] the witness to testify in a certain way." Counsel for the Defendants got answers to all his questions, including those about [F.S.D.'s] traffic tickets. The deponent was never instructed not to answer. Indeed, he wanted to answer all questions. Plaintiff's counsel sought a side bar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment. The witness did not, which is why the witness terminated the lawyer with absolutely no prompting by Plaintiffs' counsel.

During the deposition, Defendants' counsel was asking questions about documents such as a bond F.S.D. had posted and a traffic ticket he had received that bore his signature. Mr. Biss made a lengthy speaking objection claiming this was harassment. Here, where the identity and immigration status of the employees is a central issue, it is not harassing or irrelevant to ask questions about such documents. In the context of this case, it is not conducive to obtaining truthful answers from an employee such as F.S.D. to have his employer's lawyer making lengthy, animated objections to those questions.

The most puzzling and troubling aspect of Mr. Biss's explanation, however, is the representation that he "sought a sidebar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment." This two-hour "sidebar" occurred immediately after Mr. Allen stated, "I've advised my client to invoke his Fifth Amendment right regarding questions about this document."

Normally, one would expect the lawyer for a deponent to be in the best position to ascertain whether the deponent desires to assert a privilege. There is no record of the sidebar, only Mr. Biss's protestations that the employees are not being pressured regarding their rights under the Fifth Amendment. Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss's behaviorcoupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was firedgives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.

Here, the problem is at least the appearance of an attorney pressuring a witness not to assert a privilege and effectively canceling the deposition to obtain that result. I make no finding based on this record that such pressure did, in fact, occur. Nevertheless, the record lends itself to the appearance that [F.S.D.] may have been subject to pressure not to independently assert his rights.

Read more:
Devin Nunes's Libel Lawyering, Employee Witnesses, and the Privilege Against Self-Incrimination - Reason