Category: News Feeds

Judges and prosecutors, particularly in New York but also around the country, are facing a big dilemma. Typically, people who get arrested for serious crimes have very high bails slapped on them which they’re unable to make.  They stay in jail awaiting trial. Nobody generally cares.

But with the threat of COVID-19 infecting (and even killing) more and more inmates every day, judges and prosecutors must weigh the possibility of the virus killing inmates with pre-existing conditions against the presumed danger of letting them by reducing their bails.

The choice is tough. A primary concern of judges and prosecutors is public safety. Although the system pays lip service to the presumption of innocence, the real presumption upon arrest is that of guilt. The more serious the charge a person faces, the more dangerous he’s assumed to be and thus the higher the bail. The worse the defendant’s record, the higher his bail.

The fallacy of this argument, however, is that no matter the charge or the prior criminal history, defendants with money make bail, while the indigent get stuck inside. It’s really a system based more on economic ability and not dangerousness or likelihood of return to court.

At least 90% of the people in jail awaiting trial are poor. They’re in jail because they can’t afford bail.

But now there’s a new issue. Many people in jail have pre-existing conditions that make them particularly vulnerable to COVID-19.  One of those pre-existing conditions is asthma and according to studies, more poor people suffer asthma than do the wealthy.

Asthma is tied to home environment. Data shows that housing projects and other low-income housing are fecund places for the factors that contribute to asthma — poor ventilation, living close to polluted areas, cockroach waste, etc.

Four out of five of my jailed clients called me last week, telling me they suffer severe asthma. They use inhalers and are living in close quarters with other inmates who may be carriers of Covid-19. They’re panicked. Some have been hospitalized in the past for TB or other lung-related diseases; many suffer other immune deficiency problems and mental health issues. They’d all like to get out of jail or at least have their bail lowered to an amount they can afford. They all promise to return to court.

The problem is each one has been indicted for serious crimes ranging from murder to gun possession and domestic violence. Two have been remanded (no bail set). The others have had bail set so high that they have no hope of making it. I’m making renewed bail applications for each of them.

Judges and prosecutors have a choice — leave bail as is and hope these guys don’t die in jail from the virus, or reduce their bail and hope they’ll come back to court without posing a danger to the public.

The defense bar is urging prosecutors and judges to rethink their standard positions and employ a new, more open-minded approach to pretrial incarceration.

The theory of bail is that setting it high enough will act as a surety that the defendant, not wanting to lose his money, will return to court. If money is posted by his family and friends, the defendant arguably would not want to leave family or friends in the lurch by causing them to lose money.

Traditionally, judges set extremely high bail for violent crimes -– hundreds of thousands of dollars. But for some families, $5,000 is an enormous sum — money they can’t afford to lose. Setting bail at a lower amount than usual could still guarantee the defendant’s return.

Because people in jail are contracting Covid-19 at a rate 10 times that of the general public and have been dying in state and federal prisons, remand (having no bail set) should only be used in the most extreme circumstances –- potentially only post-conviction when future incarceration is certain.

The cost-benefit analysis is the following: possible risk to the public by setting a bail the defendant can make, versus possible death to the inmate.

It behooves everyone with the power to make these decisions to rethink the old rules and weigh heavily the risk of death to inmates with compromised health.

These cases must be looked at individually. The old standard calculations should not apply. For some, this is truly a matter of life and death.

Lower bail can and should be set, no matter the crime charged.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

I ask my outside law firms the obvious question: “Will we win at trial?”

I always hear the same responses: “We haven’t yet finished discovery. We don’t know.” Or:  “Juries are always unpredictable.” Or: “I’ll get back to you five minutes after the jury renders a verdict.”

It’s exactly the way one should hedge one’s bets, but it’s not what the questioner is looking for.

So, too, with COVID-19. Will hydroxychloroquine treat this problem? “We haven’t yet finished the clinical trials. And, like Sergeant Schultz, we know nothing until five minutes after we see the results of the clinical trials.”

That’s crap. You know something. You’re just hedging your bets, and you’re afraid to speak.

So I asked a couple of physicians to go out on a limb for me — anonymously, of course — and tell me what’s really going to happen, even though we of course don’t know anything until the results come in. Here’s what I heard.

COVID-19 causes serious trouble breathing — physicians call it “acute respiratory distress syndrome,” but I’m leaving the fancy words to people with medical degrees. Serious trouble breathing has been causing people to be admitted into intensive care units ever since they invented intensive care units. As you would expect, because this has been a problem for decades, physicians have been studying it for decades. But they haven’t yet found a cure. There’s no decent medication for the problem. Many, many drugs don’t work. In the words of one recent study: “We found insufficient evidence to determine with certainty whether corticosteroids, surfactants, N‐acetylcysteine, statins, or beta‐agonists were effective at reducing mortality in people with” acute respiratory distress syndrome. I don’t even know what all those words mean, but you can tell it ain’t good.

There’s some evidence that if you turn up the ventilator a little higher, that helps patients. But, for the most part, physicians have spent decades trying to cure acute respiratory distress, and no one has come up with anything that works.

President Donald Trump says that hydroxychloroquine might work. President Trump tells us that he’s a smart guy, and he feels good about hydroxychloroquine. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, then says that he’d be more cautious; he’d wait for the results of the clinical trials to come in.

Translation: “This is way too optimistic. I have to correct the president in a way that won’t get me fired. We’ve been working on the problem of breathing difficulties for decades, and no one has yet solved it. What are the odds that a drug that has been on the market for 50 years — and is not aimed specifically at this virus — is going to be the cure for COVID-19? It’s conceivable, of course, but the odds are overwhelmingly against it.”

Not only that: About half of the patients with COVID-19 who are put on ventilators die. Suppose a drug works. Perhaps it reduces the mortality rate from 50 percent to 40 percent of those put on ventilators, which would be a great treatment. Even with a 40 percent mortality rate, we still have a heck of a problem on our hands. Scientists hit singles and doubles more often than they hit home runs; it’s very unlikely that we’re going to unearth a miracle.

How about the other ideas for treating COVID-19? They’re interesting, but they’re all crapshoots. Don’t count on ’em.

How about a vaccine?  That’s far more likely. As Fauci said, proving that a vaccine is safe and effective will take a year to 18 months. A year to 18 months is a long time to wait.

After the vaccine is developed, it will not be 100 percent effective. Perhaps it will be 70 or 80 percent effective.

So how will this all play out?

COVID-19 will not disappear. It exists, and it will exist for a long, long time.

But COVID-19 appears to be seasonal. The virus appears to spread far less in warm weather.

Thus: We now have flu season every year. Flu season arrives in the winter.  Some people choose to get a vaccine, which is not 100 percent effective.  Some people choose not to get a vaccine. Every year, the flu kills tens of thousands of people.

Starting two years from now, we will have COVID-19 season every year. It will arrive in the winter. Some people will choose to get a vaccine, which will not be 100 percent effective. Some people will choose not to get a vaccine. If enough people take the vaccine to create “herd immunity,” then relatively few people will die from COVID-19. Otherwise, every year, COVID-19 will kill tens of thousands of people.

And we’ll live with it, just as we live with the flu, and people dying in car accidents and plane crashes, and the many other deaths that regularly occur in the background noise of society.

But don’t expect a miracle cure in the next month or two.

The jury won’t come back by then.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

* The New York Attorney General has ordered New York Sports Clubs to stop charging membership dues while gyms are closed. Now everyone has an excuse not to go to the gym, and they might even save some money too. [Gothamist]

* A noted Chinese human rights lawyer has finally been released from prison. [New York Times]

* A lawyer who worked at a well-known New York personal injury law firm claims that a supervisor repeatedly showed her pornographic images. And this is not a “I know it when I see” situation. [Law 360]

* President Trump indicated that he intends to nominate a White House lawyer to be the inspector general overseeing COVID-19 relief funding. [Bloomberg Law]

* Lawsuits about COVID-19 are piling up, and because many courts are all but closed, it may take a while for these matters to be resolved. [New York Daily News]

* Attorneys are offering drive-up estate planning services so you can have a will signed without leaving your car. They should throw in a burger and fries to provide the entire drive-thru experience… [CT Post]

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

ANKARA

Zimbabwean doctors and nurses said Friday a plan to pay an extra $37 in risk allowance for dealing with the deadly coronavirus is a slap in the face, according to media reports.

“It’s an insult to the doctors who are the frontline soldiers right now in this battle,” Secretary of the Zimbabwe Association of Doctors for Human Rights (ZADHR) Norman Matara, was quoted by The Zimbabwe Mail website. “We were already demotivated coming out of a strike, and this will demoralise a lot of doctors. Some doctors have already indicated they will stay home than risk their lives for a pittance.”

Dr. Anele Bhebhe from the Zimbabwe Hospital Doctors Association also blasted the government, saying: “The government is sending health workers as sacrificial lambs for slaughter. The risk allowance offered is just ridiculous. These cadres are working without protective gear in a very unsafe environment. Certainly, they deserve to be compensated better.”

Health workers went on strike last month demanding risk allowances as well as personal protective equipment to help deal with the deadly virus.

They returned to work after the government committed to work on the complaints, according to the Zimbabwe Mail.

Matara appealed Thursday to the international community to take action to save the country from a “catastrophic attack,” considering its weak health system and struggling economy, according to the Newsday website.

Zimbabwe confirmed eight COVID-19 cases including one death, but health experts and the opposition contend the numbers are understated, a charge denied by government, according to The Zimbabwe Mail.

Zimbabwe has been suffering from a severe economic meltdown for the past two decades, resulting in inadequate medicines and general hospital supplies.

Donations from China and the United Arab Emirates have helped but Zimbabwean hospitals have remained poorly stocked and without water in most cases.

While the government maintains sanctions on top politicians are affecting economic reforms, the head of the Zimbabwe Anti-Corruption Commission (ZACC) said graft is the cancer that has eroded all economic gains.

“It’s not sanctions but corruption that has taken this country to its knees,” Justice Loice Matanda Moyo said in an earlier statement.

Zimbabwean have been experiencing inappropriate working conditions and low salaries even before the pandemic hit the African nation.

Since appearing in Wuhan, China, last December, the novel coronavirus has spread to at least 181 countries and regions, according to data compiled by the U.S.-based Johns Hopkins University.

The data shows more than 1 million cases have been reported worldwide, with the global death toll nearing 60,000 but more than 225,500 recoveries.

Br. Alfonce Kugwa – Harare, Zimbabwe

In a Pastoral Letter issued Thursday, the Catholic Bishops said Zimbabwe was born out of the hunger for freedom from oppression, racism, inequality, violation of fundamental human rights and dignity, and poverty.  The Bishops stated that Zimbabwe’s independence ushered high hopes for the majority; hope for economic growth, political tolerance, participatory democracy, justice, peace and reconciliation and these pillars should be respected.

Need to acknowledge dark chapter of Matebeleland

While the Bishops recognise some strides made soon after independence in areas of the economy, education and health sectors, they cannot turn a blind eye to how things have changed resulting in the suffering of the masses.

“As we celebrate our forty years of independence, we acknowledge that we have made some achievements, but also some things went wrong along the way. We need to acknowledge that dark chapter in our national memory, which led to the killing of many civilians in Matebeleland and parts of Midlands soon after independence. We have missed so many opportunities that God has given us. We missed the opportunity soon after independence to redefine and seek a different political path from what colonialism had chartered for us. We missed the opportunity of national healing processes based on the policy of reconciliation,” read the Pastoral Letter.

Peace and Reconciliation Commission still to have an impact

The Bishops highlighted that there was a hunger for reconciliation and addressing the past hurts and injustices. According to the Bishops, The National Peace and Reconciliation Commission (NPRC) gives people hope of resolving conflicts in the country. Still, they are concerned that it has to be fully operationalised with a precise duration and clear mandate for people to gain confidence in the Commission.

A distressed economy and hopelessness among citizens

The Bishops call upon the government to address the challenges assailing the country’s economy leading to desperation, especially among the youth and increased poverty among the citizens.

The prelates stated: “Zimbabwe has generally experienced a gradual economic recession that has led to closing down of industries and companies, foreign investor flight, job losses, and the decline in agricultural productivity, leading to escalation of poverty levels. A look at our health and education institutions shows a gradual and steep decline from where we started.”

Coronavirus: Our line of defence must be prevention

With the advent of coronavirus, the Catholic Church leaders urged the government to scale-up efforts to fight the pandemic considering that the country’s health sector is not in good shape and is lacking necessary equipment and medication to cure ordinary diseases.

“Now with the current COVID-19, there is need for outright and vigorous efforts to fight and prevent this pandemic, which if it is not carefully handled in our country, may spell doom to the whole of our nation where hospital structures are not fully equipped and ready to combat it. Our only line of defence is prevention. Let us be proactive and work hard to save lives,” the Bishops said.

Embrace dialogue and fight corruption

The Bishops emphasised on the need for dialogue. They called on the government to address corruption and other challenges such as international isolation, collapsing infrastructure, inequitable use of resources and joblessness, leading to massive emigration.

Maybe The Partnership Should Stop Eating Avocado Toast: Furloughs, layoffs, and salary cuts continue at Blank Rome, Clark Hill, Downey Brand, Bremer, Venable, and Nixon Peabody.

It’s PIT-PAT!: Even if you don’t get that reference, enjoy Jones Day’s ludicrous new video (and if you do get that reference, you’ll really enjoy it).

What’s That Diploma Worth?: Students flesh out what they think a diploma-privileged licensure would look like and it’s… pretty good.

Define “Our”: In truly Orwellian fashion, “our” ventilator stockpile was reimagined.

With states running with a patchwork of self-quarantine orders, some wonder when the White House will order a national quarantine. Those folks shouldn’t hold their breath (and not just because the 10-second thing is a myth). What Supreme Court ruling first laid out the hard line between state and federal powers to issue quarantines?

Hint: For a Chief Justice with little patience for the states, he took a hard line on this one.

See the answer on the next page.