At  Above the Law a while back, Mark Herrmann explained why old lawyers were always seeing problems where newer lawyers saw none.  They had the misfortune of experience, having been there, done that, and learned the hard way how ideas that seemed so good at the time ended up in the toilet. 

Whether it was because of the certainty that nothing could possibly go wrong, or merely the manifestation of the ancient legal maxim, stercus accidit, it happens.  Old lawyers experienced it. Young lawyer had yet to, and were unpersuaded that there was any reason to doubt their certainty.

At Tempe Criminal Defense, Matt Brown provides another remarkably astute observation about scientific expert witnesses.

Expert one is young and arrogant. He has no practical experience. He testifies to scientific “facts” that seal a person’s fate. He grudgingly acknowledges that science is not absolute, yet he speaks in nothing but certainties when it comes to each and every fact weighing in favor of guilt. He insists that his “science” is infallible and that things must be a certain way. He uses big words to build even bigger claims.

Expert two has a half-century of practical experience, and he more or less founded his field of study. He’s conducted over fifty clinical trials involving the type of thing to which he’s testifying. He has academic and professional credentials that can’t be beat. He testifies that things are complex and that no reputable scientist would ever dare to make the ridiculous claims expert one did.

Expert one wins. Every time.

There is no expedient to which a man will not resort to avoid the real labor of thinking.

–Sir Joshua Reynolds

By its very nature, science is fluid. Reputable practitioners gather measurable evidence and subject it to specific principles of reasoning. From that, they develop theories to test and retest. They gain knowledge, but they don’t produce “facts” beyond the empirical data of the studies themselves. They gain knowledge and produce other theories which each must then be tested and retested. Validation does not create truths, but rather principles at best. Outliers exist. They may be explained, but that process too requires more testing and analysis. When the reason for discrepancies is explained, it isn’t much more absolute than the initial hypothesis. It’s a tendency, an assumption, or at best a theory. It certainly isn’t a “fact” by any stretch of the imagination.

One of the few holidays I’ve recognized  year after year is Memorial Day.  There are few things more real than young men and women dying. Via Ken Lammers at CrimLaw :



As a parent, an old man, an American, a person who gives a damn, I grieve when I see this image.  I don’t care about their politics, the number of twitter followers or whether they have an iPhone.  I feel what their parents, spouses, children and friends feel. 

General George Patten, a tough old man, famously said :

The object of war is not to die for your country but to make the other bastard die for his.

They did not give their lives for iPads, political parties, more laws or bigger prisons. They gave their lives for freedom. Honor it.

This fundamental rule of life from the great philosopher and cat lover, Bernard Kliban, has long guided my blawging.

Any criminal defense lawyer who has had the pleasure of being involved in a case subject to media scrutiny has heard the judge’s admonition to keep his yap shut to avoid prejudicing the jury pool.  These warning, by definition, come after the District Attorney has held a press conference explaining, without contradiction, about the great glory of nailing the evil defendant, since this comes before the judge gets his hands on the case.  The myth is created, and the defense better do nothing to screw it up.

But once there is a judge involved, and should that judge inadvertently follow the law and make a ruling that favors the defense, what’s a prosecutor to do?  Bingo! Put out a press release!  And that’s exactly what Albany County District Attorney P. David Soares did,  ripping County Court Judge Stephen Herrick a new one for ruling against him.

“Judge Herrick’s decision is a get-out-of-jail free card for every criminal defendant in New York State. His message to defendants is: ‘if your DA is being too tough on you, sue him, and you can get a new one.’ The Court’s decision undermines the criminal justice system and the DA’s who represent the interest of the people they serve. We are seeking immediate relief from Judge Herrick’s decision and to close this dangerous loophole that he created.”

The problem stemmed from Soares’ being sued by Florida defendants for being indicted in New York, after the federal court ruled against Soares’ motion for summary judgment.  Given that the case would be proceeding in federal court, Judge Herrick’s determined that a conflict of interest existed, dismissed the indictments with leave to represent, and appointed a special prosecutor.

And Soares responded with his press release.

The grievance against Soares, which started in the Third Department and was transferred to the Fourth (presumably to remove the appearance of conflict given Soares’ position and his having fired the Third Department’s chief disciplinary counsel from the DA’s office when he took office) concluded the obvious :

We conclude that respondent has violated rule 8.4 (d) of the Rules of Professional Conduct (22 NYCRR 1200.0) – engaging in conduct that is prejudicial to the administration of justice. Inasmuch as Judge Herrick appointed a special district attorney and granted that prosecutor leave to re-present the dismissed indictment, we conclude that respondent’s statement that Judge Herrick’s determination constituted a “get-out-of-jail-free card for every criminal defendant in New York State” was objectively false. For the same reasons, we conclude that his statement that Judge Herrick created a “dangerous loophole” was reckless and misleading.

If only it were true that it was that easy to rid oneself of a wayward prosecutor.  But it’s not, and even a butthurt District Attorney doesn’t get to make public statements like this.  At least about judges. If it was about a criminal defense lawyer, it would be another story. But I digress.

A win!  Score one for the good guys!  A district attorney called on the carpet for making outrageous, false and misleading statements doesn’t happen everyday.  So what was done about it?  Did he get Nifonged? Was he required to stand in the public square in stocks?  Did they force him to walk the courthouse hallways with a sandwich sign that said, “I’m a lying District Attorney who can’t keep his mouth shut?” Well, not exactly.

We have also considered,however, respondent’s disciplinary history, which includes two letters of admonition for making improper and prejudicial public statements regarding pending criminal matters. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured.

Say what?  Two prior letters of admonition for making improper and prejudicial public statements.  Apparently, that didn’t work too well at getting Soares to shut up and stop doing the dirty.  So if two prior letters of admonition didn’t work, censure is the answer?  Because telling Soares he really, really has to stop making false, misleading and prejudicial statements to the media is the answer?

And yet, the story isn’t yet complete. 

Sheriff Bill Watson has a contraband problem in his jail in Portsmouth, Virginia.  Why, under his watchful eyes, he had such a problem, isn’t exactly clear, given that his adopted tough on contraband position didn’t do him much good before.  But one it was a gaggle of nurses coming into his jail to care for the health of prisoners. Watson appreciated the strictest need possible for thoroughness.

Via Fox 8 News :

Nine female healthcare contractors providing healthcare services to inmates at the Portsmouth City Jail claimed that when they arrived at work they were sent with a female guard to a private room.

“They were told to completely remove their clothing, they were forced to bend over and cough while jail officials looked in their bodily cavities,” said ACLU lawyer Rebecca Glenberg.

These were contracted nurses, not misdemeanant or people arrested for unpaid parking tickets that were actually paid.  You know, the sort of people who deserve a good body cavity search.  Sheriff Watson, whose nickname around Portsmouth is Mr. Sensitivity, was unimpressed.  When he learned he was being sued for the searches, he responded:

“I thought it was the biggest bunch of crap I’d ever heard in my life,” said Watson.

The Sheriff contends he has every right to strip search anyone coming in to his jail. He emphasized that includes his owns deputy. He says security is his primary concern and he had been having problems with contraband getting in to the jail.

Anyone?  Lawyers meeting with their clients, for example?  Though a defendant may have a constitutional right to counsel, the Constitution says nothing about the right of a lawyer to meet with his client with his clothes on, or not to undergo a myopic inspection as part of the entrance protocol.  And if Sheriff Watson was really intend on being thorough, there is always the colonoscopy, just in case.  You never know what a lawyer could be hiding in there.

“The nurses need to understand they don’t run the jail, we run the jail and they have the option to be searched or leave,” said Watson.

Watson believes the searches are part of his efforts to ensure inmate safety.

“The world’s gotten so politically correct you can’t do your job,” he said.

One might muse that the good Sheriff could be asked the same question if he happens to appear in an emergency room in extremis, and a nurse orders him to squat and spread before showing him any concern.  While he may own the guns in the jail, the nurses have the juice in the ER.  I wonder whether Sheriff Watson understands that it works both ways?

Certainly, one has to wonder why the nurses didn’t turn on their heels and walk out of Sheriff Watson’s domain.  Perhaps they felt they had no option, since the screws had guns and gave them order. Maybe they were so dedicated to the health of prisoners they felt morally bound to endure the search lest the inmates’ health suffer. It could even be as simple as they needed the money.  Or maybe there were just foolish.

At a time when employer’s  demanding Facebook passwords causes outrage, it seems almost quaint in comparison to a body cavity search.  This hardly seems to fall under the facile rubric of political correctness.  The notion that Sheriff’s keep their eyes (and all other body parts) out of nurses’ orifices without a damn good reason.

The alternative for healthcare professionals who are needed to tend to the care of prisoners is to tell nice old sheriff’s like Watson to enjoy his own body cavity search, and refuse to suffer the indignity.  But then, that doesn’t do much to help the prisoner in need of medical attention.  Should they refuse to enter as long as Watson continues to have his head firmly implanted in the search zone and allow inmates to suffer, perhaps die, for lack of medical care?

The most absurd part of Watson’s thinking, and I use that word in its broadest sense, is that there is an easy alternative means to protect against the introduction of contraband.  After a prisoner is seen by a nurse, and before they re-enter general population, search the prisoner.  It’s not that I’m advocating this be done, or that prisoners should be needlessly search and forced to undergo the indignity of a body cavity search in order to obtain health care, but to note the stupidity of Watson’s position.

Relative to the nurse, the prisoner is more rationally subject to search.  That’s comparative, of course, rather than absolute. There is just no sound reason to engage in any of this, absent a specific reason to believe that an individual has secreted contraband on his person.  As far as Watson’s contraband problems are concerned, there is an even better solution available to him since the primary source of unlawful stuff coming into a jail isn nurses’ tushies. 

The Sheriff contends he has every right to strip search anyone coming in to his jail. He emphasized that includes his owns deputy.

Now he’s on to something.  Maybe Sheriff Watson will let us know how that turns out.  And when it’s his turn to squat and cough, I’m sure there will be no shortage of volunteers to do the job.

The police announced that they had solved one of the most horrific and long-standing open cases in New York City history, the disappearance of Etan Patz.  Perhaps “solved” is a bit of exaggeration, given that Pedro Hernandez confessed to the crime, saying he strangled the child in the basement of a SoHo bodega across the street from the bus stop. 

Solved might have suggested that the cops spoke with him 33 years ago and pieced together evidence to prove his guilt. Somehow, despite the enormity of the interest in the case, that never happened. It wasn’t until a family member told police that Hernandez had confessed that they first went to speak with him. And he spilled his guts.

But the  New York Times calls this the “worst case scenario.”

“Time is an enemy here,” said Vernon J. Geberth, a retired New York City police lieutenant commander in the Bronx. He said he was struck by the absence of corroborating details in the news accounts of Mr. Hernandez’s confession. “I have to ask myself a question, do they have something they’re not telling us?” he said.

No body. No physical evidence of any sort connecting Hernandez to a crime. And a confession that provides essentially no factual hook beyond he did it.

Why? “Great evidence in court,” [some unspecified detective] said. “When you go to court, you not only have his statement saying that’s what happened, but you have evidence for jurors to see.”

Jurors. That there are 12 people walking around who may one day sit in judgment of Mr. Hernandez is what has the police hunting for proof and for the holy grail — motive, the prosecutor said. “Corroboration is such a legal thing, it’s a thin requirement,” he said. “The question is, do you get the jury to believe this is the real thing?”

Jurors, he said, “care about why.”

Well, not exactly. There is another reason for needing corroboration, that being New York Criminal Procedure Law, §60.50, which provides:

A person may not be convicted of any offense solely upon evidence of a confession  or  admission  made by him without additional proof that the offense charged has been committed.

This is called the confession corroboration rule, its purpose being to preclude someone from being convicted upon a false confession, where there is no evidence to prove the commission of the crime beyond the confession.   After all, there are some folks who inexplicably like to confess to crimes for fun, and there used to be some  folks manipulated or coerced into giving false confessions (until scientific lawprof expert Paul Cassell concluded that evolution never happened and there is no such thing as a false confession, just evil defendants who DID IT!!!).

Hernandez doesn’t seem likely to be a false confessor type, having never confessed before nor been arrested for any crime up to now.  And yet there is little with which to corroborate what he said, other than the absence of a little boy for the past 33 years.  And that doesn’t do much to show that Hernandez is responsible.

This case will prove an enormously difficult test of the corroboration rule.  Nobody wants to see the killer of Etan Patz walk.  It was a crime that shocked New Yorkers, who aren’t easily shocked.  The loss broke hearts, and there is no parent, if anyone, who doesn’t share the pain.  If Hernandez killed this child, committed this heinous crime, then he must not walk.

And yet, there is an excellent chance that the law will require otherwise, in the absence of corroboration.  Indeed, this may well be a case where the law, if a judge is bold enough, would compel the grant of a motion to inspect the grand jury minutes and dismiss the indictment for lack of corroboration.  Of course, that judge would be assured of a front page picture in the New York Post as the world’s worst judge.

In the old days, the maxim was bad cases make bad law. And this is a very old case.  It boggles the mind when contemplating what sort of machinations the prosecution will employ to claim the existence of evidence to corroborate the confession.  It’s not that the district attorney won’t try, or shouldn’t try.  If they believe Hernandez’s confession (and there isn’t any known reason not to), then pursuing this prosecution seems a duty.  Just as it’s the defense’s duty to test that pursuit if it fails to satisfy the requirements of the law, and the judge’s duty to grant the motion to dismiss for that failure.

The scenario is indeed worst case.  Of course, if the police had done as thorough an investigation as they would have us believe in the first place, as they lay claim now despite the fact that the extent of their involvement was to answer a phone call and listen to an old man, perhaps there are facts, photos, evidence that will suddenly make sense, suddenly connect, suddenly corroborate this awful confession.

Or maybe the killer of a smiling, happy, beautiful child will go free because they can’t corroborate a thing 33 years after their claims of thoroughness, dedication and professionalism are exposed as crap. Should that happen, you can bet they will blame the judge, the defense lawyer and the law for the outcome.  What you won’t hear is the Police Commissioner’s true confession that they screwed up when they failed to properly investigate the disappearance of Etan Patz 33 years ago.

The black letter rule seems simple enough. From Roberts’ majority opinion in Blueford v. Arkansas :

The Double Jeopardy Clause protects against being tried twice for the same offense.

The Double Jeopardy Clause “unequivocally prohibits a second trial following an acquittal.”

nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .

The Clause does not, however, bar a second trial if the first ended in a mistrial. Before the jury concluded deliberations in this case, it reported that it was unanimous against guilt on charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. The court told the jury to continue to deliberate. The jury did so but still could not reach a verdict, and the court declared a mistrial. All agree that the defendant may be retried on charges of manslaughter and negligent homicide. The question is whether he may also be retried on charges of capital and first-degree murder….

The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either. When the jury was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury.  As a consequence, the Double Jeopardy Clause does not stand in the way of a second trial on the same offenses.

But wait, you say. Didn’t CJ Roberts already state that the jury “was unanimous against guilt on charges of capital murder and first-degree murder”?  Isn’t that kinda like, oh, an acquittal? Not any more. Sotomayor explains:

The Court holds that petitioner Alex Blueford was not acquitted of capital or first-degree murder, even though the forewoman of the Arkansas jury empaneled to try him announced in open court that the jury was “unanimous against” convicting Blueford of those crimes.  Nor, the Court concludes, did the Double Jeopardy Clause oblige the trial judge to take any action to give effect to the jury’s unambiguous decision before declaring a mistrial as to those offenses.

Sure the forewoman said so. Sure, that was what the jury found. Sure, the words rang out in the courtroom. But no, they don’t count.  You see the judge did not repeat the words on the record, as if some magical mantra uttered from a man in robes transforms the jury’s finding into legal reality. 

Instead of proclaiming, in a somber voice, that the defendant was hereby acquitted, or some other suitably officious words, and instead of putting quill pen to parchment to write in the Great Book of Acquittals the product of the jury’s deliberations, or having the jurors do so themselves, the judge skipped over that part and declared a mistrial.  According to the Supreme Court’s decision in Blueford, the judge’s failure to perform the ministerial acts of his office (as in, Oops, I forgot. Sorry guys) gives the state a full do-over, including another try at capital and first degree murder.

It’s as if the unanimous jury finding that the defendant was not guilty never happened. 

As Jeff Gamso notes, the argument is that it’s possible the jurors, after unanimously acquitting Blueford of the top counts, could have changed their minds later and decided instead to fry him.  The dissent responded that once the jury announces its unanimous acquittal, it’s game over, and the jury could not have gone back and decided to push the plunger.  The rest is just form over substance, which is ironically the argument usually leveled at the defense for expecting the words of the Constitution to be given meaning.

TV  Judge Andrew Napolitano call this “the most radical and dangerous departure from traditional criminal jurisprudence in the post-Warren Court era.”  How one rates this case on the most radical and dangerous scale isn’t clear, given a full field and such disparate impacts.  But what this case does reflect is a rule that so
clearly ignores the language, history and purpose of a constitutional amendment as to make one nervously chuckle whenever he hears the court pontificate about judicial modesty or faithful adherence to the intentions of our founding fathers.

Except the guy being retried after acquittal for capital murder. He’s not chuckling at all about the prosecution getting a mulligan.

The prosecution’s expert witness at the Frye hearing conclusively opined that

according to FBI figures, there are 900,000 arrests per year which, over a 23-year period add up to 20 million. [the expert witness] divided this figure by 60, which was the number of confessions that Dr. Ofshe had identified as false in a 1996 article. From this, [the expert witness] concluded that the frequency of false confessions is one hundredth of one percent.

There’s one little problem:  there was no head trauma.  No fractures, no abrasions, no nothing. Two leading medical specialists testified at trial that the baby died of natural causes. The medical records, beginning with the mother’s pregnancy complications and the baby’s premature birth, showed that he died of a systemic and chronic infection.

This didn’t stop the trial of Adrian Thomas from proceeding, with its videotaped confession.  The defense sought to introduce expert testimony of how the police interrogation methods induced the defendant to say whatever was necessary at the moment.  The court refused to allow the defense to call its witness, saying the jury could see the videotape and reach its own conclusion.  After all, scholar, judge, expert witness Paul Cassell said there was really no such thing as a false confession.

Cassell’s contribution to the truth-seeking process is his notion that nothing can be known about false confessions or their causes until we know how many there are. Just like nothing can be known about the flu until we know how many people have it. In the meantime, he wants to have videotaped confessions instead of Miranda warnings.  Needless to say,  there should be no expert testimony on the non-existent phenomenon of false confessions.

The trial judge swallowed this whole.

The basis upon which Paul Cassell was allowed to opine as an expert in false confessions seem simultaneously empty and full. How much more can one ask of an expert than to be endorsed as a scholar and former federal judge?  If he says he’s an expert, he must be, despite having absolutely no qualifications whatsoever to support his claim.

There is an occasional debate among law professors about selling one’s scholarly credentials, whether to the highest bidder or to further a personal agenda.  That Cassell has been a slavish ideologue in the fight for victims to be recognized before the crime is too well-known for dispute, but that it extends as far as flagrantly inserting himself in the war against the innocent is a new thing.

Will other scholars have anything to say about this?  Will the professoriate condemn their brother Cassell’s proffer of expertise as “no-such-thing-as-a-false-confession” expert?  We’ll see.

In the first part of the story, Appellate Squawk makes a point that I’ve argued for a long time, that the videotaping of confessions is not necessarily the panacea that so many on the criminal defense side believe it to be.  As this case shows, videotaping of only part of the interaction between cops and defendant provides the opportunity to conceal manipulative and coercive conduct, leaving the portion taped and presented to the jury making the police appear kindly and supportive.  It can be the coup de grace of false confession, conclusively proving the confession while conveniently concealing the coercion that led up to it.

Of course, had the defense expert, social psychologist and actual friggin expert on police interrogation techniques, Dr. Richard Ofshe, been allowed to testify, perhaps all of this would have been understood by the jury and the kindly confession videotape rejected for the sham it was. 

But scholar, judge and expert for sale, Paul Cassell, made sure that wouldn’t happen. And some say lawprofs have no impact on the lives of real people.

For many (and by that I mean many) bloggers, the only question is whether someone is friend or foe.  It’s all about partisanship, fellow travelers in the cause, whatever that cause may be.  Sides are chosen because someone else shares your ideology, loves the people you love or hates the people you hate.  We’re on teams, and our team is against their team.

At Popehat, Ken made the point, that we defend free speech because it’s speech, not because we agree with the speaker.  It’s not a novel point, by any stretch, but it needs to be repeated and reinforced constantly.  It seems that whenever an interest clashes with free speech, the latter is always the first to go.

Some of you may be familiar with blog called Patterico’s Pontifications, written by a Los Angeles County prosecutor named Patrick Frey.  He’s a good guy with a great sense of humor, despite the fact the we tend to view things pretty differently.  Because he took up arms against a fellow named Brett Kimberlin, he was SWAT-ed.

At 12:35 a.m. on July 1, 2011, sheriff’s deputies pounded on my front door and rang my doorbell. They shouted for me to open the door and come out with my hands up.

When I opened the door, deputies pointed guns at me and ordered me to put my hands in the air. I had a cell phone in my hand. Fortunately, they did not mistake it for a gun.

They ordered me to turn around and put my hands behind my back. They handcuffed me. They shouted questions at me: IS THERE ANYONE ELSE IN THE HOUSE? and WHERE ARE THEY? and ARE THEY ALIVE?

I told them: Yes, my wife and my children are in the house. They’re upstairs in their bedrooms, sleeping. Of course they’re alive.

Deputies led me down the street to a patrol car parked about 2-3 houses away. At least one neighbor was watching out of her window as I was placed, handcuffed, in the back of the patrol car. I saw numerous patrol cars on my quiet street. There was a police helicopter flying overhead, shining a spotlight down on us as I walked towards the patrol car. Several neighbors later told us the helicopter woke them up. I saw a fire engine and an ambulance. A neighbor later told me they had a HazMat vehicle out on the street as well.

Meanwhile, police rushed into my home. They woke up my wife, led her downstairs and to the front porch, frisked her, and asked her where the children were. Then police ordered her to stand on the front porch with her hands against the wall while they entered my children’s bedrooms to make sure they were alive.

The call that sent deputies to my home was a hoax. Someone had pretended to be me. They called the police to say I had shot my wife.

This is beyond any pale. This is sick stuff. This happened because Patrick wrote something on his blog that the other team didn’t like.

At Popehat, Ken (who has become perhaps the most active participant in the war against online censorship by his willingness to stand up for bloggers pro bono against threats and intimidation) has been writing about Aaron Worthing’s battle against a false prosecution designed to not merely shut up his criticism, but destroy his life.  It’s not because Ken is on Worthing’s political team. He’s not. But speech isn’t free for anyone if it isn’t free for everyone. That’s just how rights work.

I may share very little ideology with Patrick or Aaron, but I most certainly share one belief: they have the right to express their views without fear of being gunned down because some sick, malicious individual on the other end of the political spectrum disagrees with their views.

A blogger named Lee Stranahan declared today, May 25th, to be Blog about Brett Kimberlin Day, as I learned from  Ken and Patrick, as Kimberlin has become the poster boy for this diseased approach to shutting down speech through the use of the most vile and outrageous means.  I lend my voice and bandwidth to support those, like Ken, who champion free speech and denounce anyone, whether Brett Kimberlin or anyone else, who would do harm to their enemies to stifle their voice, regardless of what they have to say.

Via Turley, 17-year-old Deltona, Florida high school student Michael Rudi collapsed on the floor, unable to breath.  The school nurse watched.

The school dean found the inhaler in its original packaging with the student’s name and directions for its use. He seized the inhaler because of the absence of a form. When the boy began to have trouble breathing the mother was called to come into school. It is not clear why, if they could reach the mother, they could not get telephonic approval. More importantly, with the boy having breathing problems, the school insisted that it was still more important to get a form signed than help the child. Rudi is quoted as saying “[a]s soon as we opened up the door, we saw my son collapsing against the wall on the floor of the nurse’s office while she was standing in the window of the locked door looking down at my son, who was in full-blown asthma attack.”

Volusia County School officials stand by a Deltona High School nurse’s decision to refuse a student his inhaler during an asthma attack, citing a lack of a parent’s signature on a medical release form.

There is a rule about students taking drugs.  Apparently, there is no rule against allowing students to die as the nurse watches.  The school has a policy about calling 911 when a student can’t breath, which is a reasonably good idea, though it strains reason to understand why adults in charge of children in school need a rule to figure out that calling 911 (or, for the matter, giving life-saving medication) is a better idea than poking them with a stick.

Selesky said the district is looking into whether proper procedures were followed by the school, and while nurses can’t give medications without the proper authorization, it is district policy to call 911 when a student cannot breath.

Selesky could not explain why 911 was never called.

It seems obvious to me: The nurse was only on page 36 of the rule book, and the 911 rule wasn’t mentioned until page 492.  There is a rule against skimming and jumping ahead.

So many of the absurdities that come from this slavish adoration of rules end up with a child suspended or expelled over things that, under any rational assessment, fall outside the parameters of the evils sought to be eradicated by the rules.  We can, in a sense, appreciate that schools craft rules to guide teachers and administrators, given that the false security of “common sense” would produce wildly disparate results.

Schools hope to limit the particularly bad discretion of its people and guide them toward the ideals that school boards and administrators seek to impose.  We all get that.  It’s better than leaving matters relating to children in the hands of the AP English teacher who expects to become a celebrity when the next episode of  Hoarders airs.

But crafting rules intended to be absolute in their application is extremely difficult, if not impossible. The law of unintended consequences is bound to come into play.  It’s beyond the ken of most school boards, not to mention school attorneys, to create an overarching rule, though it’s incredibly easy to add in the words “zero tolerance” and bask in the applause of an ignorant community that hasn’t thought matters through.

But when the product of what seems to the casual observer to be a good way to run a school is a dead student lying on the floor a few feet away from an inhaler that would save his life, someone in a position of authority has to concede that the rule has a problem. 

The question isn’t who to blame after the child dies.  Was the mother at fault here for failure to have the signed form for this school year on file? Sure.  She screwed up.  Does the school really take comfort in the ability to point the finger elsewhere as they stand over the corpse of a student? 

Here’s an idea.  Rule 1 for all schools, to be printed on page one of the rulebook in boldface type, 24 point type, with nothing else on the page:

No student shall be left to die because of a rule.

No doubt there will be an unintended consequence of this rule, but it seems as worthy of suffering that possibility as the rule the prohibits students from being educated because their pants are too saggy.