The other day, I watched a Law and Order SVU episode about a child who had a genetic defect that caused her to grow abnormally. In order to be able to better care for her, the parents forced her to take medication that permanently stunted her growth. The episode was based on real life events.

In January of 2007, the parents of a girl named Ashley had a surgery entitled “growth attenuation” performed on her to permanently stunt her growth to keep her at 4 feet 5 inches. This treatment also includes sterilizing Ashely. Ashley has severe physical and mental disabilities. The parents stated the treatment was for her comfort and to make it easier to carry her and include her in family activities. Ashely was of course much to young to consent to or even understand what was being done to her.

The case created a huge medical and ethical controversy. The hospital and parents defended their decision to to do the surgery while others in the medical community and general public were outraged. You can read the story and see photos of Ashley here

The hospital and the doctors who performed the surgery were roundly criticized for performing the procedure. The Seattle hospital performing the surgery was later found to have broken state law when doctors performed a hysterectomy on Ashley as part of the treatment. Under Washington law minors can not be sterilized without court order.

At what point does the attempt to control genetics become perverse and who gets the say in how much is too much? In Ashley case, there was no guardian ad litum appointed. There was no independent voice speaking for Ashley. Do we need better legal checks and balances before we permanently alter the life course of those who can not speak for themselves. I am not passing judgment on what went down. I do not have children and don’t know what I would do. You can get her parent’s perspective by viewing their website.

Where do we draw the line between the best interest of the child and the best interest of the parents.

This is just the tip of the genetics sword. What if genetic testing during pregnancy told Ashley’s parents that Ashely would have these problems? It is a given that in my lifetime, your lifetime or your child’s lifetime, genetic testing will advance to the point where many deadly and life changing maladies will be able to be detected prior to birth. Genetic engineering and testing is BIG business.

Am I a going to far when I state that I see a world in the not to distant future where genetic testing for certain diseases will be mandatory and it will be a crime to conceive if you test positive for certain genetic disorders. Such a movement would most likely start in more overpopulated areas of the world with less freedoms but I do see it coming. China already has its’ “one child policy“. Is the next genetic step a “One Child No Defects” policy?

The law is now only beginning to address these issues. We can expect that it will lag behind scientific discovery. Lawmakers are not known for foresight. It is fear that generates action. Congress just recently reached an agreement clearing the way for a bill to prohibit discrimination by employers and health insurers on the basis of genetic tests. You can read about it here.

Are we moving towards a “Gattaca” society?

In a case that has sparked national attention and will surely spark a new Law and Order SVU episode, a Dallas women has been sentenced to 5 years in prison for making a false rape accusation that ultimately lead to the murder of her lover.

The sentence stems from a bizarre set of facts starting with a false claim of rape to cover up an affair and ending with the murder of her lover (the man she falsely accused) by her outraged husband.

Mrs. Tracey Roberson, 37, was convicted Friday of manslaughter in the 2006 shooting death of Devin LaSalle. Prosecutors said it was Mrs. Roberson’s husband, Darrell, who fired the fatal shot but only because his wife falsely claimed she was being raped by Mr. LaSalle.

Mr. LaSalle died in December 2006 after Mr. Roberson shot him outside the Robersons’ south Arlington, Texas home. Mr. Roberson shot Mr. Lasalle after he returned home from a card game and caught Mr. LaSalle and his wife – who was clad in only a bathrobe and underwear at the time – together in Mr. LaSalle’s truck

The case was presented to a grand jury. In a soap opera crime show twist the grand jury declined to indict Mr. Roberson(the husband) for the actual shooting and instead indicted Mrs. Roberson on manslaughter charges. Yes, that is correct , at least for now,Mr. Roberson will face no criminal responsbility here for the actual shooting.

The sentencing jury deliberated more than 2 days before sentencing Mrs. Roberson to Five Years in Prison.

This case really bothers me. Not because Mrs. Roberson is going to do time but because Mr. Roberson who engaged in a textbook case of manslaughter himself will walk away scott free. My gut tells me that he killed this guy because he was having an affair with his wife and not because his wife cried rape. Did he take his rage of past indiscretions in the relationship out on this guy? Did he know about this guy prior to the shooting?  There was some testimony that he was suspicious of her infidelities….  It is not clear whether he knew anything about this specific affiar prior to the shooting.  Would that change your opinion on justification if he did?

If the husband knew absolutely nothing and this was a pure spur of the moment decision to try to save his wife, I would feel better about the justification defense here.

Did Mrs. Roberson deserve to do 5 years? I don’t think so but I was not siting on the jury.

If you read up on the case there were a lot of facts presented that certainly did not make Mrs. Roberson likeable person and I am sure that had a lot to do with the severe sentence. There was also testimony of Mrs. Roberson of abuse by her husband with no corroborating evidence. I think introducing this testimony with nothing to back it up backfired on her and made her even more unlikeable as simply looking like someone with her hand caught in the cookie jar……

Finally and in my mind most importantly , juries take claims of rape very seriously. Juries don’t like people who don’t take them seriously. Juries don’t like people who cry wolf with a cry of rape to cover up affairs….

Juries maybe want to send a message to the next person who thinks about crying rape in a crowded theater…..

Any criminal lawyers out there to comment?

What would Oliva Benson and Elliot Stabler think?

The Dallas Morning news is reporting that a former judge now running for Cook County District Attorney (on the Oklahoma border) committed prosecutorial misconduct during the murder trial of a man accused of raping women twenty years ago.  Judge Mike Snipes concluded that the Court of Criminal Appeals should grant Clay Chabot a new trial because Janice Warder, the lead prosecutor in the case, failed to disclose information favorable to the defense that could have changed the jury’s verdict.

The 10-page finding said that Ms. Warder did not tell Mr. Chabot’s defense attorneys about inconsistent statements by his brother-in-law Gerald Pabst, whom DNA tests now show to be the rapist. The judge also said that Ms. Warder did not disclose discussions with another witness about her not being interested in prosecuting him for drug dealing.

Ms. Warder violated what is called “The Brady Rule“. This is a court ruling that requires the prosecution to turn over to the defense evidence which may be “exculpatory”(which may prove the defendant’s innocence)  This was a court ruling in the 1963 Supreme Court  case Brady v. Maryland.

I admit that I have long since forgotten anything I learned about criminal law and procedure in law school and studying for the Texas Bar Exam.  I also admit that anything I know about criminal law is as a result of watching re-runs of Law and Order and Law and Order SVU ad-naseum…..   That makes it easy for me. When someone asks me for advice in the criminal law area, I simply research a particular Law and Order episode, tell the person when that episode will air and to watch it and send them a bill……. Well not really but I do know some attorneys who I would swear practice law that way…… Sure as hell beats going to the law library or paying for Lexis…..  Law and Order comes with my basic cable so it saves me a hell of a lot of money in legal research…..

In any event, I digress…….

I was simply shocked that the article inferred that there was no administrative or criminal legal recourse against Ms. Warder for her conduct in the trial. I clearly recall a Law and Order episode entitled “Under The Influence” that dealt with this issue. 

In this episode, Jack McCoy withheld the statement of a flight attendant whose testimony would have resulted in a lesser charge for person accused of murder by running over some people while drunk. He even encouraged her to leave the country during trial!   There was clear implication in the show that this was prosecutorial misconduct and sanctionable…. 

Jack gets off the hook but hey I love Law and Order, don’t you?

Jack McCoy is my idol.  Isn’t he yours?  I have every episode ever broadcast Tivo’d.  I am sure you do too.  I think I could have bypassed law school and just watched Jack McCoy prepare and try cases.  I would pass the bar and be the best trial attorney ever!  Isn’t that what you did?  I love Jack!  He wins the great majority of his cases, and certainly all his rape cases!  He withholds evidence from the defense and walks away without as much as a slap on the wrist!  He lies to witnesses and defendants and it is okay!  Jack makes inflammatory comments not supported by the evidence to the media and he is a hero for it!   His trial arguments are often emotional and not based on any evidence, but no one objects and he gets the conviction! 

Wait, there is a catch here.  Sam Waterston, who plays Jack McCoy, is an actor – not an attorney.  Sam Waterston, after committing all those terrible legal sins every episode, gets to go home to his wife and kids every night and read his script for his next episode.  

Does anything happen to Janice Warden for her legal sins which in my book are no less egregious twenty years later? 

Don’t get me wrong, I am not advocating some “absolution” for guy on the receiving end of the misconduct….. If you read the article, he is clearly a bad guy and contrary to popular believe the ends often due justify the means. 

What I am concerned about is the drunk driving rule which states for every time you get pulled over for drunk driving, you drove drunk up to 100 times without getting caught. (I can’t remember where I heard that) There has to be an innocent schmoe caught up in that math somewhere……

Maybe I am just naïve and Dallas Justice and justice everywhere is just like the Law and Order television show….

What am I missing here…..