Why have we never heard of this?

Why have we never heard of this? I heard that in early February, and the question was a bit disheartening. More troubling though, I was without a sound answer. In response, I could muster only conjecture, discomfiture, and perhaps even regret. Not regret in facing the question, but perhaps in the absence of any rational or logical answer.

From another perspective, there’s plenty of room to complain about generations. The old one complains about the new, the new about the old, and in the end, it’s likely largely misunderstanding or misinterpretation. It seems that in our generational cycles, there is less friction between the adjacent generations. But the older and the younger seem persistently inclined toward misapprehension.

In that regard and others, the only way that we can attack any form of preconception or bias is through interpersonal relationships and experience. We must grasp the disconnect(s) and appreciate that while generations exist, they are made up of people. We must push aside the bias of aggregating "them" or "those" based on age, experience, or our perceptions. Because "them" are not a conglomerate and our efforts must be with each.

I got the opportunity for just that, with the next generation of law students at the University of Florida. One Monday morning, I hit the highway around 3 AM and drove to Gainesville. The Workers' Compensation Section of The Florida Bar, under the leadership of Paolo Longo, Has made outreach a special effort over the last 14 months. I think many had their doubts about the magnitude of this effort. See Let's Get Together (May 2023).

We have seen the Section host meet and greets in Orlando, Jacksonville, Ft. Myers, Tampa, and Tallahassee. We will be in Miami (03.28.24) and West Palm Beach (03.29.24) next. The leadership of the Section will change in June, and in less than 18 months, we will have been live in all the regions of Florida, with the sole exception of here in the state capital, Paradise (well, Paradise was the capital once, or one of them).

I am gobsmacked at the dedication to collegiality and professionalism exhibited by bar leadership, section members, Judges, mediators, and more.

As an outgrowth of the recognition that recruiting lawyers has been challenging, someone said "Why not talk with law students?" The Section engaged, first to be at St. Thomas. A scheduling glitch put that one off, and the first was at Florida State. Thirty students there met a panel of speakers last year. More recently it was UF, and Ave Maria is scheduled.

I shared the panel stage in Gainesville with Stuart Suskin, who did not come to Florida with Ponce de Leon (as has been rumored). No Stuart did not sail with Ponce, but in fairness, he remembers speaking to him often. Also present was Mr. Longo, on behalf of the section, Mr. Hesser, on behalf of injured workers, and Sean O'Connor behalf of the employer carrier practice. Judge Sancerni, a product of the UF experience, made the trip from Orlando. It was a well-rounded set of perspectives on why the practice of Worker’s Compensation law is an attractive avenue for new lawyers.

My readers won’t find the talking points new or surprising. (1) Workers comp affords a great opportunity to practice law as opposed to supporting others who do. (2) There’s a great deal of exposure to legal and medical challenges, that will both stimulate an attorney’s mind and afford ample growth opportunities. (3) The medical puzzles are the beginning, there are a raft of complexities and intricacies here that periodically need analysis, explanation, and expertise. (4) Florida workers' compensation offers unparalleled, collegiality, and mentor opportunities, which are simply unheard of in other practice areas. (5) Lawyers are either seeking and hiring new practitioners and Clerks, or they know someone who is.

Did some of the students show up just for the free Chick-fil-A? Undoubtedly. I often lament my mandated avoidance of fast food. While I can usually drive past it, life is more difficult when someone brings those smells into the room. Sure, the food is a draw. I might like it to be about the chicken, but somehow that place's draw is the pasta. Who knew?

Whatever drew them, these students were engaged and engaging. They had the opportunity to scoff or challenge our comp references. There could have been doubts or incredulity. But, in the end, there was the "why have we never heard of this." The answer to that one is pretty easy actually.

We are failing. No, not economically, or functionally, or professionally. But we are failing in that the next generation has never heard of us. We can all say it was the same for us. To a person, we all fell into this community by accident. Once here, we all seem to have found opportunities, mentors, and success. But we did not set out to come here, and upon arrival, we were likely all a bit disoriented and challenged. Why did no one teach us about workers' compensation in college, law school, or beyond?

Yes, why did no one come to seek us? Turn that about. Why are you not out seeking them?

Each of us, at some point, could validly ask "Why have we never heard of this?" One of the panelists responded we are the "best-kept secret." There were humorous retorts and conjectures. But in the end, we are failing. That other generations before us fell short and the community nonetheless survived (thrived) is no excuse or explanation. That we are now approaching our Golden Years, and the unfamiliarity remains is on us. Gone are the days when this community can thrive on the accident of great youth just showing up. Now come the days that youth must be informed, sought, recruited, and nurtured.

We stand on the edge of a precipice. See The Donut Hole (February 2023). In the J.R.R. Tolkien masterwork The Lord of the Rings, a wise advisor warns the intrepid adventurer "Your Quest stands upon the edge of a knife. Stray but a little and it will fail, to the ruin of all." So it is here, and so it is now. Not for lawyers alone, though that is an area in which I can readily effect information and perhaps make headway. But the need for young people in this community crosses all professional boundaries.

Young people are needed in claims management, risk management, programming, accounting, nursing, doctoring, and so much more.

"Why have we never heard of this?"

That is on us folks. What are you doing to awaken those around you to the truth of the potential in this billion-dollar, life-restoring community? Are you finding ways to speak to the younger generations? Are you even looking?

The Grand Jury Reports

For over a year, the 22nd Statewide Grand Jury has been looking into the potential of "crimes and wrongdoing committed against Floridians related to the COVID-19 vaccine." There has been a nice post-COVID period in the last two years. We have seen the world come back together, with significant normalcy.

Well, significant. I still see people wearing masks. I still see the occasional social distancer. I even saw a shopper recently in the store wearing rubber gloves. There is no way to know what people are going through, what their comorbidities may be, and what their logic or reason(s) may be. In fairness, I never believed in masks, one-way store aisles, plexiglass, or the rest. See The Unmasked Man (September 2021). 

Recently, masking is back in the news. Your decision to mask or not is not protected by the First Amendment. U.S. News reports on a recent court decision to that end. The government is well within its authority to tell you what you will wear:

“A question shadowing suits such as these is whether there is a First Amendment right to refuse to wear a protective mask as required by valid health and safety orders put in place during a recognized public health emergency. Like all courts to address this issue, we conclude there is not,”

The corollary seems as likely - that the government can tell you what you cannot wear. There is careful phrasing here. It need not require a "valid" health emergency or crisis, merely a "valid health and safety order()." Regardless of the science or methodology, the influence or the consensus, if your government issues a valid order, the result is that you will comply.

The government is very powerful and exercises enormous reach. See Could the Federal Government Meddle in Comp (March 2016). The government can undoubtedly tell you what you can grow or even must grow in your garden. It can also undoubtedly force you to make purchases against your will. Somehow in this free country, the rights of the people are subverted at times to government constraint. Government need not prove its constraint is rational, only that it is valid. 

I bought into the vaccine. Notice the Grand Jury is focused specifically on "nonpharmaceutical interventions (NPIs)," but there is mention of "related to the COVID-19 vaccine." I know many who hate the vaccine and several who are "black helicopters" over the vaccine (no, the NFL is not conspiring with the singer either - cannot name the singer, that would be considered by some as "stalking"; well, perhaps at least in some small minds). 

Many are alternatively in the mandate crowd. I went to conferences during the pandemic at which organizers asked attendees to self-identify as non-vaccinated (they wanted people to sew red "A" on their shirts, I jest; please don't email me Ms. Actress). Interestingly, some of the same people who favored forcing vaccines on others for the common good are also in the "my body my choice" group on other issues. 

That has been worthy of some thought throughout. But, right or wrong, I was inoculated. I am in a seemingly small club of people who have never had COVID. Somehow, I have been very lucky or very right. 

All that said, there is a great deal of skepticism about the manner and extent of our collective and individual reactions to SARS-CoV-2 and COVID-19. The near-total economic shutdowns, the distancing, the masking, and more have generated strong feelings and opinions. The economic impacts are undeniable, and the volume of fraud and waste involved is astounding ("billions . . . stolen or wasted"). There is talk now of ending some programs. Some likely thought that the COVID aid programs ended back when the pandemic did? Not so. 

The Grand Jury is making progress. However, there has been some reluctance by various organizations. Apparently, the following have refused to provide testimony: "the Centers for Disease Control (CDC), the Food & Drug Administration (FDA) and the U.S. Army." It is not clear why these agencies would be reluctant to provide documentation of the extent, timing, and purpose of their respective involvements and efforts. It might seem that more information is usually better. If you think or fear someone is misstating the facts, perhaps show up and provide your facts as a counterpoint? 

The first report of the Grand Jury has been released. It notes that there were failings in judgment and the engagement of "nonpharmaceutical interventions (NPIs)." The report concludes that available information was not heeded or leveraged in the response to the SARS-CoV-2. Specifically, the report mentions information "ignored or even attacked." This was perhaps the fault of groupthink, consensus, and fear. When SARS-CoV-2 landed, no one "knew" anything. Even those funding high-level research were essentially guessing back in 2020. Educated guesses, certainly, but guesses nonetheless. 

There is criticism of "lockdowns." The report notes that where lockdowns were employed there remained "excess mortality," and ongoing risk. The broad prophylactic of "lockdowns were not a good trade." This likely refers to the societal, economic, and production detriments of isolation and immobilization. Perhaps it refers also to the psychological impacts foist cavalierly upon the young, old, and vulnerable?

There is criticism of masking. This is perhaps the most specific and critical mentioned. The report concludes "we have never had sound evidence of their effectiveness against SARS-CoV-2 transmission” and “there have always been legitimate questions around the impracticality of individual adherence to mask recommendations." The report alleges "failure" in the communications about masks and the purported benefits. Undoubtedly, masking had emotional benefits. We wanted to be protected, proactive, and engaged. With masks, we could either wear them or complain about them, and either way we had some perception of being involved and responding. 

There is Grand Jury criticism of record keeping, particularly as to the measure of "hospitalization" necessity. It appears that those admitted for hospital care for COVID were statistically co-mingled with those admitted for treatment of other maladies, who also had "incidental SARS-CoV-2 infection." The Grand Jury expresses some belief that medical statistics may be characterized as "inflated to some degree." Why? Was there any economic benefit to labeling a patient as "COVID?" Was there medical benefit in precautions (keeping the infected consolidated to prevent exposure and spread?) There is much to consider. 

The overall tenor of the report is critical of the government's response to this health threat. It accuses of "panic, hubris, ineptitude or some unfortunate combination of the three," contributing to the response and its efficacy. It concludes that "whatever benefits inured from these mandates, they were not worth the price.” That is fairly frank. 

The efforts continue. It is likely an unimaginable volume of data and retrospection. And, with each passing day, it seems, another scientific study is published as to this viral threat and the reactions to it. I predicted back in 2020 that information was scarce, and conjecture and consensus were prevalent. I suggested that with time more science would come to bear. See Nature.com for a partial list.

In the end, will there be repercussions? Time will tell. In all, however, it is interesting to observe the retrospection and analysis. Did we respond well to SARS-CoV-2? That is for the observer. Could we have responded better?

Safety and Technology

I would not have believed it, had it not been in the news. Of course, you can believe anything you read in the news. But, whether you believe it or not, the press reports there were two people recently identified as not having a cell phone. In the twenty-first century, I really thought everyone over the age of two had a pocket computer (yes, you can also make a phone call with these little computers).

The first story comes from KCRA channel 3, and introduces us to Monica Laso. She was skiing with her friends in Tahoe. In fairness, Tahoe is not heaven. But in reality, it is pretty darn close. Ms. Laso picked a tremendous location for a ski outing. The food, the scenery, the people, all are outstanding. Ms. Laso rode the gondola up the hill and concluded that she was too tired after all. So instead of skiing back down (some outlets have said snowboard, tom a toe, tom ah toe), she got back on the gondola to ride back down. She says that an employee on the slopes knew of her decision.

Well, "two minutes later," the gondola system shut down for the night. And there sat Ms. Laso hanging from a cable in a little glass room. In the dark, in the cold, she found herself stranded. And, much like the intrepid Gilligan of old, she found herself with:

"No phone, no lights, no motor car, Not a single luxury, Like Robinson Crusoe, It's primitive as can be"

As I said, I thought everyone had a cell phone. But, with no light to send a signal and no phone to call for help, Ms. Laso spent the night screaming at the slope workers below her. About 15 hours later, the slope reopened, the lift restarted, and she was conveyed safely to the foot of the hill. She had been missed by friends, reported as missing, and literally "left hanging." She was evaluated and apparently declined medical care. Hoarse, and likely exhausted, but safe.

The company that operates the gondola seems to feel something went wrong. in this situation. Might there be sensors in such devices to detect people? 

Around the same date, 200 miles away in Alameda County, California, another woman had an adventure, according to Daily Express. She too was stranded "for 15 hours." She did not walk out like Ms. Laso, but was "hoist(ed) . . to safety" by helicopter after being "stranded on the bottom of her upturned car." She had "attempted to drive across a flooded road." The water was more than she expected, her car overturned, and she was lucky to both get out and find refuge on the overturned car.

The news reports that "the unnamed woman underestimated how deep the water was." She took a risk, and "when her car turned over," she lost her cell phone in the excitement. Thus, there she found herself.

There are those out there (Statler and Waldorf) complaining this is a blog about workers' compensation. That is true. And the foundation of workers' compensation is work. Fundamental to work, and the avoidance of workers' compensation, is safety. There are distinctions between the two stories, though they also can be viewed in terms of both inference and corollary.

First, how did the two get in danger? One made a sound judgment (too tired to ski) and sought a safe path out. She did so with the help of local officials (the company staff). Despite those sound actions and decisions, she was left stranded. The second woman knowingly drove into moving water on a flooded road ("Danger, Will Robinson"; Lost in Space, 1965). Everyone knows you do not drive into moving water, and make assumptions about roads you cannot see. Those poor decisions resulted in her stranding. In either instance decisions have consequences. The time to think those through is before the consequences.

But, this reminds us that in the workplace it does not matter. Whether the employee makes a sound decision or a poor one, workplace injuries are usually covered. The idea of fault is largely avoided (unless the employer's fault is beyond a certain pale, is "nearly intentional," in which case civil damages in tort may be available).  

Second, how did they get out? Ms. Laso simply waited it out. She was lucky that the slopes opened the next day. The motorist had to be winched out, after someone happened to, luckily, spot her. Unlike either lady, the camper who spotted the woman on the car had a cell phone. This reminds us that some challenges can be more easily extricated than others, but you seldom get to choose. When you make decisions, do you contemplate the potential for unexpected or untoward outcomes? Do you consider your flexibility, adaptability, and resiliency?

And what of our ability to be the solution. In these stories were opportunities for others to positively impact the one in need. The slope workers might well have looked up. Or the one that put her on the gondola might have called the base end and let them know of a passenger. How did those employees from the top of the slope get to the bottom after their shift? Like the camper with the cell phone in the second story, any number of people might have aided Ms. Laso. 

Third, what about the modern convenience of a cell phone? Well, the lady on the car had hers but lost it in the midst of the car turning over. Even if she had kept it, the odds are the water would have disabled it as she swam out of the car. But Ms. Laso is the one person in America who does not have a cell phone (or she made a conscious decision not to carry it or forgot it that night). In any of these, we see that technology is grand, But, we also see that technology can fail us through inadvertence, incidence, or mistake. Technology is great, but it is no more infallible than we are. As AI and robotics progress, we have to remember that our brains and foresight will still be required for workplace safety. 

In the end, the best safety protections we have are likely human. What if Ms. Laso's friends had committed to meet her at the bottom of the ski run after that run? Upon their arrival, they would have found (1) no Ms. Laso, and (2) an immobile lift. They might have raised a louder and more immediate missing person complaint right then. What if the car driver had noted the recent weather, and looped in a friend or family with a call? What if someone had known then of a potential for issue, and to anticipate a follow-up ("I arrived safely"). In either event, a tough situation might have been much shorter if others had been informed. Is it any different when difficult tasks are engaged at work?

In the end, despite all we might do with technology, it is the human element that will most effectively prevent accidents and injuries. There is value in both looking out for the coworker and in being willing to facilitate your coworker looking out for you. And our own awareness about our personal safety is critical. The more that we focus on and prioritize our personal safety, the more likely accidents and injuries will be avoided. Through decreased accident frequency, we can best minimize the need for and impact of workers' compensation.

Its the Appearance

According to Oxford Reference, it was Walter Reuther who coined the phrase:

"If it looks like a duck, walks like a duck and quacks like a duck, then it just may be a duck."

Similarly, at some point, someone said "Sometimes a cigar is just a cigar." Many attribute to Freud, but there are doubters and even critics. The point of the phrase is explained to focus on analysis and consideration: "the importance of considering both the conscious and the unconscious aims of an action."

This blog is often about workers' compensation, and there are those who strive to hold me to that. But, it is often about the challenges of judging and the many issues that can accompany the task. For some reason, the news has recently been a verdant ground of judicial ethics stories. See Arrested and Charged (January 2024) and Asleep at the Switch (January 2024).

This weeks brings to focus two intersecting thoughts about judicial behavior stemming from accusations against a judge in the great state of Nevada. The American Bar Association (a private, voluntary organization to which some lawyers belong) notes Judge's hot tub social media post makes waves with judicial conduct commission; she quotes Cardi B in response.

At the outset, most judges would be well served to avoid the perils of social media. See Lyric Choices (July 2023). There is bad behavior, poor appearances, then there is the stupidity of recording your behavior and advertising it voluntarily to the whole world. See, in the world of judging, behavior still matters. But the appearance is as relevant, and much harder.

Judge Erika Ballou is reportedly charged with two events. The first involves her posting pictures of herself with two friends in a hot tub. The second involves her social media post about attendance at a concert. Neither of those seems so troublesome on the face of things. But, the Code of Judicial Conduct itself is not so much about the surface as it is the substance.

In 2022, the judge took a selfie showing the judge and some public defenders together in the hot tub. The caption was descriptive and classless, but let's skip over that. Click on the link to ABA is "know you must." The problem with the hot tub shot is likely tied to the troublesome caption, but as much to the fact that the judge is a former public defender and is posing with public defenders. The implication is that she is intimate friends with these two, who are on one side of the disputes that she adjudicates. That creates two potential Canon One problems (Rule 1.2 in Nevada).

"A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary"

Does the picture of a judge with two public defenders in a hot tub with a risque caption "promote public confidence in the independence, integrity," of the judiciary? But, it certainly creates a Canon One problem (Rule 1.2 in Nevada):

"and shall avoid impropriety and the appearance of impropriety."

Cambridge Dictionary says impropriety means

"behavior that is dishonest, socially unacceptable, or unsuitable for a particular situation."

Ok, classless picture caption? check. Appearing in social setting, most relaxed social setting, with two members of an office that regularly appear in court before you? check. Problem? check.

Before this little picadillo, back in 2021, the judge complained on Instagram about the tardiness of a musical act. Not a problem. Complaining about the fact the judge had a busy schedule the next day? Still not a problem. Creating a hashtag for the post to suggest that the judge's reaction will therefore be to make expeditious and rote (likely inappropriately blanket) decisions in difficult cases? Priceless Inappropriate. (#VacateTheShitOuttaOutofCustodyCases).

The reader will easily see a similar problem here with the "public confidence." Some might additionally see a Rule 2.2 problem: "A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially." When a judge announces ahead of time how she or he might rule, might someone feel that there is a lack of "fair(ness) and impartiality?"

Might a judge be perceived as having a Rule 2.3 problem, deciding cases "without bias or prejudice?" Might one see an issue of Rule 2.5: "A judge shall perform judicial and administrative duties competently and diligently." Some might question the competence of a judge that prejudged and decides to just "#vacatetheshit" as somewhat less than diligent or competent.

In the judge's defense, she became a judge only three years ago, 2021. Certainly, there may be a learning curve for any new job. Perhaps there is an inclination for a bit of leeway, some latitude? But, one might note that the Code is fairly simple reading and these examples are not really close calls, objectively or subjectively.

On the side of punishment, an "aggravating factor" perhaps, the judge had a previous run-in with the Code of Judicial Conduct for her racially charged statements against the police (the ones that make the arrests, for which the prosecutors prosecute, and for which her hot tub buddies defend). The judge allegedly made disparaging remarks about "the cops," in a generalized and disrespectful manner. The news is not clear, but it appears she was not punished or counseled for that previous inappropriateness. Perhaps, the failure of consequence in one instance led to or facilitated the hot tub debacle?

For now, it appears, the judge is not responding publicly (the ABA Journal notes its contacts were not responded to). But, perhaps she will respond on Instagram with some additional wit and wisdom? Perhaps she can counter the reality of the situations, and the existence of any actual bias, doubts about confidence, and partiality. Her words may be powerful in explaining how the Instagram post and the hot tub photo are not, objectively, troublesome. 

But, the Code is much broader than actuality and reality. To be blunt, it is the "Appearance":

"and shall avoid impropriety and the appearance of impropriety."

Despite any actuality, practicality, or demonstrability, the judge faces serious issues with appearance(s). And the fact that many news outlets find this newsworthy and salacious perhaps somewhat contributes to the probable perception of an "appearance." In all, across the world wide web, it may be fair to say that Judge Ballou has brought untoward, unfortunate, and inappropriate attention to herself, the bench, and Nevada. According to News8, she is pleased that she is getting more social media attention: "I started speakin’ my mind and tripled my views.”

But let's face it folks, anyone that wants to be can become Instagram famous. It does not take skill, intellect, or cleverness. Any fool willing to debase themselves can easily go viral. But, is viral for viral's sake worthwhile? Is debased for the sake of popularity appropriate?

This set of charges may be critical. Judge Ballou may look back on this with different feelings in retrospect. As to the potentials, some might suggest merit in Cardi B's thought: "Yeah, it's not a threat / It's a warnin'."

"If it looks like a duck problem, walks like a duck problem and quacks like a duck problem, then it just may be a duck problem." This will be intriguing to watch evolve.

Arrested and Charged

The Alabama Daily News brings word of an Alabama judge who has been "arrested (and) charged with using office for personal gain. I cringe at such headlines. However, in any example of alleged wrongdoing or misfeasance, there are potentials for us all to learn a bit or be reminded of the lines. And, coincidentally, the story is all about "self," Judge Self, that is.

This judge presides in Lauderdale County, Alabama. That is about as far north as you can go and still be in Alabama. The judge was elected in 2009 and as part of his job duties, he was apparently responsible for maintaining some financial accounts. Prosecutors allege that he spent some of that money on self, for "a sofa, alcoholic beverages and eyeglasses" as well as for "a variety of vacations." There are 16 counts in all. On top of the stack is an additional charge of "making a false representation to" the accountants. AL.com says that there is an eighteenth charge for "perjury."

The judge "faces a maximum penalty of 20 years of imprisonment and a $30,000 fine for each of the sixteen B felony charges for violating the ethics law. He faces up to 10 years of imprisonment and a $15,000 fine for making a false statement." I am not so good with math, but that sounds like a potential of 330 years in jail and approximately a half-million dollars in fines. I am dubious that will be the outcome, but it is nonetheless a scary prospect. And, that may not be all the charges, see below.

The judge is said to have traveled "to Montana, a beach trip, a cycling trip across three states and a trip to St. Ignace, Michigan" at state expense. He reportedly says that "proper bookkeeping during COVID was really virtually non-existent.” He conceded that "We didn’t follow acceptable accounting principles, primarily because there’s no one trained or experienced in those principles."

I am curious how the "we did not have an accountant" defense plays out. I have seen some intriguing books from time to time as I have volunteered for various organizations. I have even heard the "we didn't know better" a time or two. But, will this situation over "$50,000 of public funds" be just some accounting technicalities?

One of the counts alleges he spent some of the funds "to employ his son," but the news offers no detail on what purpose or project for which that was intended. And, in addition to the trips noted above, "the indictment also charges him with paying himself out of public funds for travel to events he did not attend in Reno, Nevada; Duck Key, Florida; Mackinac Island, Michigan; and Alabama." So, no travel, but claiming reimbursement may be an issue.

It is worth noting that much of the history described occurred during the challenges of the recent pandemic ("April 2020 through February 2023," according to AL.com. If there is someone out there who did not find that time stressful and even oppressive in some regard, write me. I would love to hear that perspective of a carefree experience. And, perhaps it was that pandemic that kept the accountant or bookkeeper from the process or diminished focus. That will all likely be examined as this proceeds.

It is also worth noting that the judge "voluntarily repaid the funds." That is a good sign. Furthermore, AL.com reports that the judges in that area have jointly "implemented improvements to the accounting and recordkeeping practices." And, of course, the pandemic is over.

In the event that there was no criminality here, the charges will diminish or dissolve. The fact is that not all accused are convicted in this world. And, all are considered innocent until proven guilty. Indictment is not a positive event, but it is also not a conviction.

If the criminal issues are resolved, one wonders if the judge might still face challenges from the state courts. Alabama has a Code of Judicial Conduct, like most states. Similar to the others, it includes canons originally suggested by the ABA, such as:

• Canon 1. A judge should uphold the integrity and independence of the judiciary.
• Canon 2. A judge should avoid impropriety and the appearance of impropriety in all his activities.
• Canon 3. A judge should perform the duties of his office impartially and diligently.
• Canon 4. A judge may engage in activities to improve the law, the legal system, and the administration of justice.
• Canon 5. A judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties.

Any of those might be the subject of discussion when the performance of official duties is the topic. In short, it is possible that the criminal charges are the beginning but perhaps not the end.

In any event, there are lessons here. I have complained from time to time about "the accountants." They seem to always have a reason I cannot do this, or have to do that. They are both gatekeepers and rule enforcers. As Joe Walsh noted so long ago, "I can't complain but sometimes I still do" (Life's Been Good, Old Grey Whistle Test, Asylum, 1978). Yes, I do. It is frustrating to follow rules. But "I still do." The rules are there for a reason, usually because someone along the line was not very careful or attentive and did something that got attention. They got in trouble and the rest of us got more rules. So, lesson one is to have experts on your team.

The second lesson is that we all have to know when we are in unfamiliar territory. If you are not familiar and comfortable then you should seek assistance. If there is no accountant down the hall, perhaps you should make a call? Perhaps in the world of high finance ignorance is bliss, but this instance reminds us that even if the judge's actions are all deemed excusable and innocent, his name has been in the news (and social media) and he has expended time and effort in his defense. Oh, and he has hired attorneys to address the charges against him. In all, a stressful and expensive experience even if it turns out the judge acted appropriately and legally.

As a side note, one might wonder if the county pays for "errors and omissions" coverage? Investopedia explains 

"Errors and omissions (E&O) insurance is a type of professional liability insurance that protects companies, their workers, and other professionals against claims of inadequate work or negligent actions."

That E&O concept is surprisingly a new one to some involved in charitable work and responsibilities. When you take on responsibility, as a director, officer, or in this instance judge, would you want some assurance of the benefits of coverage? Such a policy might pay the lawyers to defend any claim made against you, and might be responsible for the loss in the event someone does not pay the money back.

In all, this example is an object lesson. It supports having knowledge, respecting the need for the expertise of others, and perhaps being more patient with the constriction of rules. The situation in Alabama will undoubtedly play out in the news in months to come. It is intriguing and educational.

Harmless?

We must remember what we are being told persistently: "Pot is harmless." See Edibles and Illness (November 2023). If I had a nickel for every time I have been told "harmless," I would be able to buy a really nice value meal. Nonetheless, I do hear it a great deal. Everyone who tells me they use it says there are no side effects and it is really efficacious for whatever it is that ails them. Folks love pot. People seem to forget those assorted instances in which death occurs. I am not a scientist, but I have concluded that death is harmful to your health. I can accept you may feel differently and would love to hear your perspective.

California this week made the news. No, I am not talking about their $68 billion budget deficit. I am not talking about their plan to make people with money move to Florida and Texas. I am not even talking about an iconic California landmark closing its doors "due to a wave of car break-ins and robberies." California has had its share of problems. See Purpose (October 2023). No, those are interesting. I am talking here about dope, the "harmless" stuff.

There is only a modicum of research regarding pot. It has been studied here and there. However, the federal prohibition on cultivation and distribution is long-standing. That has inhibited research. While there are a great many voices today in the chorus of consensus - "harmless," there is a growing body of anecdotal evidence that suggests potentially otherwise. Consensus is not evidence. 

An accountant in California is perhaps doubting the "harmless" label. Well, he might if he were among the living. The Los Angeles Times reports that a woman was prosecuted there for his death. After pondering her actions, we might decry Brian Wilson's sentiment "wish they all could be California girls." (California Girls, Beach Boys, Summer Days, 1965). This California Girl was in a relationship for a few weeks with Accountant Chad O'Melia. He apparently smoked dope with her at his apartment. NDTV reports that Mr. O'Melia "pressed her to take another bong hit after not getting high off the first hit."

Well, if you are not getting high from one, have another. The same works for alcohol and a variety of other chemical. One of the challenges is in our bodies' somewhat individualized processing of such influences. I have known many a person who went from coherent to black-out drunk in very rapid succession. It is possible for an accumulation of consumption to catch up with you somewhat suddenly.

Well, Mr. O'Melia's houseguest took "another bong hit" and then stabbed him. Well, perhaps "stabbed him" is not a fair description. The LA Times says she stabbed him "dozens of times." NDTV says it was over 100 times. But hey, who's counting, right? As a side note, the young Floridian who stabbed the cheerleader 114 times is spending the next 40 years of his life in prison.

The California woman will spend no time in prison for taking the life of Mr. O'Melia. She will serve "two years’ probation and 100 hours of community service." What is the difference? Well, admittedly there was discussion of premeditation in the Florida example. That may be a distinction. But, the California Girl also was in California. Some believe California to be "soft on crime" in a general sense. See CBS, Newsweek, and San Diego Tribune (the reports are not hard to find).  The reader can judge whether the soft is descriptive or hyperbole. 

After this California Girl inserted the knife repeatedly into the young accountant, she "repeatedly stabbed herself," though apparently less effectively. One news outlet alleged she even went after Mr. O'Melia's dog as well. The California Girl's attorneys argued that she was "involuntarily intoxicated," and suffered "a cannabis-induced psychosis." Some define that defense as involving "involuntary ingestion," like when someone's "drink(s) a spiked drink." But in California, it is involuntary if someone urges you to consume and you do so of your own accord (in some places that "own accord" part might seem more like "voluntary"). 

The California Girl's expert might be expected to reach such a conclusion. However, the "prosecutor’s medical expert agreed with a defense expert." The prosecution expert explained, "that the behavior was the result of cannabis-induced psychosis." You see, apparently, in California if you voluntarily intoxicate yourself you are not responsible for your actions or inactions thereafter. Whether the experts are correct about the psychosis or not, the whole "voluntary" analysis is intriguing. 

If there is no responsibility for intoxicating yourself, does that mean that one cannot be responsible in California for any post-potting (or drinking) decisions? Is driving under the influence to be excused (if one is not responsible for the decision to pick up a knife, can she be responsible for the decision to start a car?). Well, perhaps only if someone told you to drink? In the end, the story is perhaps a mere flash in the headlines. But some may see it as a harbinger of things to come.

So what killed the accountant? Was it the psychosis? Was it the knife? Was it the pot? Or, was it the California Girl and her voluntary ingestion of a universally (in America) illegal substance? Perhaps the accountant's survivors will sue her for wrongful death in the spirit of Orenthal James Simpson?

Or, as dope is "harmless," according to the chorus, perhaps it is more Mr. O'Melia's fault for being in the wrong place with the wrong doper? Maybe if you encourage someone to voluntarily ingest drugs, you get what you get? Well, in any event, no one has seemingly ever self-harmed because of pot (though this California Girl did stab herself somewhat ineffectively). Harmless? It may become increasingly difficult to attribute that description. 

AI and the Singer

The world is evolving at such a rapid pace. A brilliant man once said to me "No matter how cynical I get, I can't keep up." That resonated then and frankly, it resonates at an increasing frequency and pace with each passing day.

Days ago, I recapped the exceptional webinar "The Point." Last week it was all about Artificial Intelligence. See A Fool With a Tool (January 2024). There were great quotes delivered in that interchange and much knowledge. I got some great feedback on the web, and frankly, positivity in social media can be rare and appreciated.

Then the news broke Friday of "deepfakes" and a victimized singer. The same singer was recently the butt of a joke at the Golden Globes and the world reacted, according to Deadline. At the time, I was reasonably unimpressed. The joke was clean. The singer is a public figure. The intent was not malicious. And, frankly, there were seeming overreactions and untoward recriminations. It was, in the end, a joke. And you know what they say when you can't take a joke. Part of our problem today may be our distraction by little things that correspondingly matter little.

But the deepfakes. There is suddenly a massive awareness that deepfakes are a thing. No, they are not a new thing. No, Artificial Intelligence is not responsible for deepfakes. No, social media is not responsible for deepfakes. Those are certainly tools that facilitate deepfakes. Artificial intelligence, nay computers themselves, make the creation of deepfakes easier, faster, and more convenient. But the fault is with the miscreants that run the software, on the hardware, and use the social media.

Shall we ban computers? Must we fear them because they can be misused? I am dubious of that. I am no more confident in the mantra of the pitchfork crowd that will undoubtedly suggest that somehow it is AI at fault or social media at fault.

There is a positive in the singer's story. The media is expressing outrage. National Public Radio (NPR) headlines this as "exploiting." They note this is a "scourge." They note that the Internet and social media collaborated to facilitate rapid and widespread distribution of the scourge. To their credit, they do not seemingly advocate the demise of those technologies.

Another positive aspect is the singer is a public figure and is an adult. That does not make any of the recency appropriate or excusable. It is absolutely not. But, it is somewhat tragic that it takes an attack like this on a public figure to perhaps sufficiently raise consciousness. I am suggesting that while the singer is a victim, she is a fortunate soul in several ways. That does not mean the attack is less despicable, but it has meaning. Read on.

NPR notes that "90-95% of deepfake videos are now nonconsensual pornographic videos and, of those videos, 90% target women—mostly underage." I am not sure what "mostly" means. That could mean more than half, way more than half, or even "almost all." The point of the statement, however, is that deepfakes are predominantly an affront to one particular group. This singer's victimhood publicizes and emphasizes that despicable fact.

Anyone remember AI is a Tool (October 2023)? Yes, I have been on this topic before. That post is about young people in Spain and their suffering at the hands of AI. Children are being victimized by AI? No, children are being victimized by miscreants. The world has a great many miscreants and malcontents. The Internet and AI did not create them, but it merely facilitates them.

The singer is fortunate. That is not a statement that will resonate with people. But she is a billionaire with a real (not Internet) social circle (actual, in-person, friends and family). She is an adult with some measure of experience and maturity. She is, in those regards, far better equipped to deal with the emotional onslaught that such a miscreant attack portends. There is no excusing or explaining the miscreants, but in great measure the singer is fortunate.

What of the less prepared? What of the immature? What of the youth who are utterly unprepared for the assault and damage such deepfakes might portend? Cyberbullying is a threat to adolescents, according to the National Institute of Health (NIH). The Wiki bunch asserts that many suicides are attributable to bullying (I have minimal editorial Wiki-faith, but it is worth considering). The Suicide prevention folks are convinced cyberbullying is an issue. What of the non-billionaire, immature, isolated, and more fragile members of society?

The New York Times reports that the deepfake images of the singer "swamp(ed) social media" last week. The full might of whatever efforts or protections exist in the software and personnel there were overwhelmed. Images propagated and spread. Millions viewed these deepfakes of the singer, according to the Associated Press (AP).

But, the AP also noted evidence of the singer's good fortune. You see, this singer has a fan base both broad and deep (I am not personally a huge fan, but seriously, if you are reading this and know for sure "where (she) was on April 29th," drop me a line. It has been killing me not knowing). High Infidelity, 2022. The AP notes the singer has fans who were "quick to mobilize in support."

She is blessed that literally thousands of social media users launched a counter-campaign against the deepfakes. They had no orders, but merely "rode to the sound of the guns" (source unknown). While the social media companies strove to catch up to and delete the fakes, the loyal fans flooded social media with praise and support for their idol. They posted real pictures, adopted various hashtags, and revolted against the miscreants. Fortunate. Fortuitous. Admirable.

When you are assailed and affronted, how comforting it must be to know people have your back. How much more so that there are an army with such devotion to you. Are young people today aware there is an army at their back? How often do we collectively say it or demonstrate our devotion to the next generation? Do they know we would back them and not the miscreants?

ABC News and others reported that "the White House" is "alarmed by the reports of the…circulation of images . . . of false images to be more exact, and it is alarming." The singer has brought an unprecedented profile to this trend that has even awakened the White House. Well, perhaps. A sound bite is a sound bite, but will there be action? Politicians tout the "task force" on "online harrassment." But that is almost a year old, where are its plans, results, and progress? What has the task force accomplished in the first 12 months? Where is the progress?

The responses to this latest deepfake instance with the singer might sound a bit like Louis, "I'm shocked, shocked, to find that gambling (harrassment) is going on in here." Casablanca, Warner Brothers 1942. Where is the action, the arrests, the prosecutions?

What of the less fortunate? What of the victims who are not billionaires? What of those who cannot afford good lawyers to file claims and seek redress? What of those who do not have cadres of devoted followers who can leap into action to flood the social media platforms to drown out the miscreants? What of those to afraid to speak up, confide in an adult, and accept that being bullied is never the victim's fault? This bullying is a general concern, but we must emphasize the impact on youth.

No, this singer's story is not about AI. It is not about social media. It is not about computers, software, or a host of other tools that are increasingly at people's fingertips. This story is about harassment, bullying, and the miscreants and criminals who engage in it. Today is a product of yesterday. A yesterday during which the sentimentalists and apologists in our society found great offense in the punishment of wrongdoers. The huggers and forgivers of yesterday convinced people that punishing the wrongdoer was misdirected. They were sadly mistaken.

For the last 50 years or more, there has been an ongoing tendency to hate the crime and hug the criminal. Well, the criminal is the one creating these deepfakes, not AI. The criminal is the one distributing these images, not social media. The assault on our sensibilities, youth, and selves is being afforded by miscreants who are misusing and misapplying tools. The answer to that is not constraining or eliminating the tools, it is punishing the criminal. We need not hate the criminal, but the punishment must deter the behavior.

No, NTSB, the solution to auto accidents involving speed is not to legislate and regulate how fast the tool (a car) can go. Yes, people are going to drive too fast, like the miscreant last week in Orlando. First, he likely should not have had "dad's Camaro." Second, perhaps parents could be held responsible? Like the Michigan miscreant situation recently in the news? Perhaps if we punish more consistently and directly, we might see less of the poor behavior?

No, the solution is not more anti-bullying, anti-harassment, anti-miscreant laws. We should all be chagrinned that harassing school children last year was not a universal and deafening call to arms. AI is a Tool (October 2023). The examples have been in the news. We should be embarrassed that Tom Hank's experience did not spur action, nor the bad experiences of a myriad of others.

No, it took the singer. The headlines are finally large. It took an entrepreneur billionaire. You see it could happen to anyone, but now it happened to royalty. The attention is drawn. She can obviously defend herself and has a raft of supporters for that effort. But, this assault will perhaps bring change because it involves royalty. She will perhaps drive a campaign of outrage and recompense that changes our course.

That is what is needed for our unsuspecting, underage, futures. Yes, those people headed to school each morning may look like "students," but in reality, they are "futures." Yours and mine. They deserve a fair, viable, safe chance to learn, grow, and succeed. They are being pursued, cornered, and bullied. The miscreants are gaining tools and efficiency, and basking in the shadows.

What if those "futures" don't thrive and succeed? Shame on us. Time to quit "harumphing" and do something meaningful. It is not time for task forces, meetings, and hyperbole. Time for action. Perhaps we start by finding the particular miscreant(s) responsible for the singer's assault/harassment and make their prosecution a shining and memorable learning opportunity for all?

"A Fool with a Tool"

Wednesday was all about AI. Bob Wilson hit us with the title of this post "A Fool with a Tool is still a Fool." I thought he would go the other way: "A Fool with a Tool may be a Tool."

The Point is a webinar produced by the team at WorkCompCollege.com. We started it in November 2022, and it is hard to imagine it was that long ago. We have had some great guests, and the focus of this quarterly gathering is to ask the simple questions in life, like "What is the point?

We have addressed some intriguing questions, like "what is the point of workers' recovery," and "the future of whole person recovery management."  We touched on AI: "Just How Smart is AI?" That was an eye-opener. But on January 24, 2024, we really dug into the nuts and bolts of AI and got a better understanding of the subject. Bob Wilson and I were joined by Jackie Jackson of the Colorado Division of Workers' Compensation and Jeff Snider, General Manager of P&C at Gradient AI. 

Ms. Jackson is studying IA, and focusing on the benefits it could bring to the regulator population. Mr. Snider is living AI, and is involved in both development and deployment. They each brought great perspective to the conversation.  As usual, Bob Wilson framed the conversation and the chat room bubbled with thoughts, perspectives, and questions. It was a fantastic foray into what AI means to you. 

What did I learn? Well, there is a revolution at hand. We have all heard of the industrial revolution. The time came when hands were replaced by machines. Productivity grew, economies grew, populations grew, and prosperity spread. You hear very few people today lament the implementation of steam engines, the cotton gin, the combine, the telephone, the airplane, and so much we take for granted. We were (most of us) born into a world in which these were ubiquities. 

We did not have to adapt to their innovation, disruption, and influence. We needed only to accept them as a part of our world. And Artificial Intelligence will be that for the next generations. The young of today are already taking AI for granted. Some of us old folks are also, but we did not know it perhaps. The point was made that many of the apps on our pocket computers (some call them phones) are AI. Things like the map program and suggested words in our texts are all on an AI foundation. Its been there a while. 

The point was made that AI is math. That drew some ire. RosemaryMcKenzie Ferguson (Australian advocate for workers, see The Man or Woman in the Glass (July 2019). I have never met Rosemary, but we have had a pretty good interaction over the years. She brings much to the table. She noted that "math is nothing to do with injured workers. Math is data not humanity." That is a valid criticism. And AI is math. But the two thoughts can co-exist. 

The point of the math, as Mr. Snider illuminated, has been with us since the beginning of socialized loss. There is a need to predict, to plan, and to fund loss. For eons, that was done with pencils and personal perceptions. That evolved into computers and personal perceptions. He highlighted the limits of our human recollection and perception. Now comes AI and it is going to (already is) do the math. Not new math, the same old math. But, it will do it with broader recollection, less inherent bias, and greater efficiency. 

Well, I noted that this sounds a bit like the assembly line or the production machine of the Industrial Revolution. When machines were created to crank out widgets, that was the end of craftsmen and women hand-making widgets (in truth, you cannot find a good widget anymore. Go ahead try). But, that was the beginning of more affordable widgets for us consumers. A plus. And, it was the beginning of a whole slew of new jobs like machine mechanics and product inspectors. The jobs did not disappear, they merely shifted foci. 

One of the commenters, Todd Holt, noted that "it seems AI is a tool in a toolbox." He likened it to a "Stradivarius in the hands of a master musician." He concluded that the "'tool' will not replace the skill, but it does help the master in making a better decision." A great view. That led Bob Wilson back to his point "A fool with a tool is still a fool." That is so true, whether the tool is a chainsaw, an automobile, or an AI. 

Mark Pew jumped in with a question on longevity. That was so apropos. Who wants to invest millions in the AI that turns out to be Wordstar, SuperCalc, or Pong? If none of these are familiar to you, each was once dominant for at least one brief, shining moment. Mr. Pew asked, "How quickly do AI solutions become outdated with the rapid evolution of the technology." That, it appears, can be answered with "pretty quickly." Bob Wilson has been using AI a fair bit already and he says that users can expect improvements on a recurring basis as the logic paths and the programming are adjusted and refined. 

Ms. Jackson put the demand issue bluntly. She noted that this community is struggling with an exodus of talent. She noted that her struggles persist in the recruiting, training, and motivating of the next generation of employees to manage the complexities that are workers' compensation. She is not alone, see The Donut Hole (February 2023). She hopes that the AI will be the tool that will enable experts to quit making widgets each day and to instead work on interpreting and adjusting the widgets that are made by AI. 

It is an exciting time. The perspectives are all worthwhile and influence us. There are potentials for greater efficiency and effectiveness. We must all remain focused on the injured worker and the employer (for whom this whole set of systems was created). We must not fear the future, or hide from the locomotives, airplanes, or robots. 

Asked to summarize what us normal folks should do today about AI, the consensus was clear. It is here. the best advice is to focus yourself on learning about it, understanding it, and using it as it is implemented. Study how you may implement it yourself. Evolve through knowledge into the next era of our information revolution age. 

Or, you may sit in the corner and text on your flip phone, but if you do you cannot complain that the world passed you by. If you are going to sit on the sidelines and complain, don't be surprised when the coach puts someone else in the game instead of you. 

I'm just sayin. Watch the recording here

https://event.webinarjam.com/go/replay/276/lq9k3sr7ty7szlak

Asleep at the Switch?

Two idioms share a meaning. Some say "asleep at the wheel," and others "asleep at the switch." The difference, it appears, comes down to whether you are an automobile or train person, according to Grammarist. This morning, I found myself thinking of that idiom(s) and Billy Shakespear's line in Hamlet - "Something is rotten in the state of Denmark." The two came to me when I heard from Horace Middlemier, Esq. about an intriguing situation in Kentucky.

Spectrum News 1 recently reported about an inmate who "will have a parole hearing 36 years after being found guilty." For several years, this inmate was on Kentucky's death row, but in 2019 "then-Gov. Bevin . . . change(d) (the) sentence from a death sentence to a life sentence.” That may not be so common, but it happens. The parole hearing is also likely to be surprising to some.

What is known for sure is that Debbie Pooley moved to Kentucky in the 1980s. She was 30 years old when she was abducted, raped, and robbed. Two people were arrested - Gregory Wilson and Brenda Humphrey. Ms. Pooley's body was then "dumped" in Indiana.

Gregory Wilson was convicted. Years later, the Governor commuted the sentence for "poor prosecution and defense." One source quoted by the Spectrum article says that there was some suspicion that the case was used by some to illustrate "how poorly funded the public defender system was." And he acknowledges that "Mr. Wilson was guilty as sin. I don’t think there’s anything the best attorneys in the world could’ve done to save him from being convicted."

The Spectrum story provides perspective from the relatives of Ms. Pooley, and some dispersions for the Governor who commuted the sentence.

The Cincinnati Enquirer ran a story about the commutation. It quoted the Governor's perceptions as noted there:

"To say that his legal defense was inadequate would be the understatement of the year,” “The prosecution and defense in this case were, from start to finish, incredibly incompetent.”

According to the Enquirer, "Several lawyers had been assigned to" defend Wilson, but for whatever reason those counsels did not persist. There was apparently a system in which attorneys could volunteer to defend such a case for $2,500, but no one stepped forward. The Circuit Judge "posted a notice . . . in a desperate plea for volunteers." Two lawyers volunteered; "one had never tried a felony before and the other, William Hagedorn, who offered to serve as lead counsel for free, had no office, no law books, and used the phone number of a local tavern on his business card."

The fact is that $2,500 sounds like real money, and was worth more in the 1980s. The Inflation calculator says that $2,500 in 1985 is the equivalent of about $7,500 today. However, defending a murder case is time-consuming and often complex. I have never had to do it, but it is a topic I have spent some time studying. Furthermore, I well know the amount of time required for prosecuting a workers' compensation claim, and can thereby appreciate how rapidly an attorney might invest time in any case.

Of course, there is no requirement that one have his own phone number, office, or books. After all, one might be The Lincoln Lawyer (Lionsgate, 2011) or even the more budget-conscious Impala lawyer. Perhaps, or possibly that is more Hollywood pablum.

But, the lawyer with the tavern phone "wandered in and out of the courtroom, cross-examined virtually no witnesses and presented no evidence to support a lesser penalty than death." Now, there are tactical decisions in any trial. Any good attorney will admit that how many witnesses to call, and what questions to ask are difficult decisions. It is never formulaic, and never easy to try a case. But it is very unlikely that "no evidence" is the right amount. 

Despite the need to be tactical and discerning, counsel must be present (as many an ad has noted over the years "you must be present to win"). Being in the room is critical and foundational. It is difficult to imagine any reason for not being present. The absence from the courtroom is a significant problem as is the failure to cross-examine thoroughly. I noted in If you are not Perry Mason, Bring Evidence (May 2013), you could win merely by destroying your opponent's case through exceptional cross-examination. However, that is not likely, not the way to bet.

In this case, there is a salacious element also. The co-defendant (Humphrey), "who testified against Wilson identifying him as the killer" was involved in an intriguing courthouse romance. No, she was not dating the presiding judge. However, she "was taken each day of the trial to the chambers of another judge, where they had sex." Well, as Meredith Willson noted years ago, perhaps "ya got trouble folks. Right here in River City." 

Yes, a witness in a capital case in coitus contemporaneous with one of the presiding judge's peers down the hall. The impropriety reeks and the appearance of impropriety is even worse. Canon 2, Code of Judicial Conduct ("A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities"). Did the trial judge know? Do judges talk among themselves?

The next red flag in this situation, according to the Enquirer is that the defendant, Wilson, told the trial judge he believed his two attorneys to be incompetent or inadequate. The defendant "represented himself during parts of the trial." For example, delivering his own opening and closing statements.

His opening? He allegedly said, simply, "I am not a lawyer, and I’m not guilty.” His closing? Apparently, the transcript of his pro-se closing was "less than two pages" compared to the 54 pages presented by the prosecutor. And he was on trial for his life. 

One might conclude that this defendant was not competently represented. One might criticize his tavern phone lawyer. However, might one question the trial judge? Whose job is it to assure that there is protection of due process in the proceedings?

We like due process. I have noted, "We like it so much we put it in the Constitution twice." See Constitutional Challenge Recap and Overview (March 2016). Both the 5th and the 14th Amendments enshrine due process. We have an expectation that sufficient process will be afforded. 

That is a challenge in balancing the provision of due process. Due process is essentially the opportunity to be heard. The constitution does not require one to have an attorney, less so a competent one. The law allows the opportunity to be heard but does not require that one take advantage of that opportunity. 

Any party is free to represent him or herself. Thus, we see many litigants who decide to do so. They face significant challenges, complexities, and technicalities. I have seen a layperson prevail against an attorney. Despite the challenges, their choice to represent themselves must be respected in general. 

Too many judges do not respect that right to choose. Too many wring their hands and continue proceedings repeatedly, or indefinitely, in some hope that the party will rethink and hire counsel. Questioning the party's informed decisions is not the judge's job. 

Making sure the party understands the implications and potentials of such a decision is the end of our responsibility. We appropriately tell people that they are in a challenging, complex, and difficult process. We remind them that they face sophisticated attorneys (which some mistakenly misinterpret as our endorsement of such attorneys or their arguments). It is not ours to represent them, to contradict them, or to choose for them. But we must make sure they make informed choices.

In a criminal prosecution, though, there is also the Sixth Amendment right to counsel. That is not a label, "counsel," but implies at least that counsel will be competent, what we have come to refer to as "effective." Many an appeal is pursued based on the "ineffective assistance of counsel." How can you be both competent and absent? If you hired a physician to do your surgery, and she or he was not present in the room, would that be an effective surgeon? Would you watch her leave the operating theater and then take up the scalpel yourself?

One might indeed criticize the trial judge in this instance. One might question whether assistance was competent, and conjecture that the shortcomings noted in the Enquirer had to be apparent and obvious to the trial judge. But, as the advocates for Ms. Pooley note now, mentioned by Spectrum News, the conviction has been upheld through the appellate process. As troubling as one might find the attorney work (or absence) cited, it appears it was up to the standards we abide by?

One of those appellate judges felt differently. Dissenting from an appellate decision, one federal judge was critical of "the unfairness and abysmal lawyering." But his dissent is a quiet criticism heard perhaps by no one, or perhaps only by the Governor that commuted the death sentence. There is some tendency perhaps to doubt the efficacy of the due process and Sixth Amendment in this story.

There must be sympathy in this story for the victim of the crime and the many she left behind. She is a reminder for us all that violence exists in our world and ultimately life is short and fragile. In our considerations, such victims must remain prominent. Prosecutors, police, and more must be diligent and energetic in protecting the public. The Law must protect such victims. However, the judge's role must fulfill the obligation that adjudications provide meaningful due process. The judge is no prosecutor, no advocate, no cheerleader.

The judges in this instance concluded that the constitutional guarantees were met. But one might wonder whether due process really delivered? In any legal proceeding with pro-se parties, there must be some degree of deference. Not in the manner of a judge favoring that party, but in patience and explanation. The judge must remain neutral, and impartial. But, the judge is responsible for the proceedings, and for the party being fully informed. 

Did the trial judge in this instance notice that the attorney was leaving the courtroom during the trial? Did the judge notice the defendant was delivering his own opening and closing statements? If the attorney was not expected to be present and participate, then why did the judge bother with pleading for and appointing an attorney in the first instance? Was the attorney who failed so miserably reported to those who license attorneys in that state? 

Did the judge advise the defendant, counsel the attorneys, or otherwise support due process? Or, was he "asleep at the switch?"

Its unCOMPlex

In My Favorite Year (MGM, 1982) Peter O'Toole plays Alan Swann. He is a flawed protagonist, and it presents an entertaining premise. Essentially, he is an Errol Flynn kind of movie star cast to appear instead in a television skit show. He confides to the story's hero that he thinks he can get the scene that night "on the first take." Our hero informs him the show is live and that there is only one chance. Swann becomes agitated and exclaims, "I'm not an actor, I'm a movie star." It is a great line. 

Live. That is challenging. Blogging is easy by comparison. I can spend hours poring over the contents here. I have spell checkers and some AI thing that checks my grammar, usage, and so much more. I have the comfort of time, reflection, and revision. 

Live. That "is an entirely different kind of flying altogether." (it's an entirely different kind of flying, as in they repeat it, all together).  Or, let's just say that is entirely different. 

But, I have given a presentation or two in front of an in-person audience. I have presided over a video hearing or two. I have a few webinars under my belt. How hard could a free-flowing live webinar podcast be? Well, to be blunt, harder than I thought. 

In January, we debuted the new workers' compensation podcast unCOMPlex. It has a nice ring to it, but coming up with a name was challenging. This one has meaning, but I have not run into anyone who immediately got the double entendre there. See, the broad point is that workers' compensation does not have to be all that complicated (it's unCOMPlex). The word ties nicely into the fact that it includes "COMP," "so I got that going for me, which is nice."

But the Latin escapes most. Latin is perhaps the root of all pretentious communication, or at least "detached" communication. The folks at PBS say it is only useful if you want to "talk like a supervillain." That is likely going a bit too far. The article also makes the point Latin is "perfect . . . for introverts" as there is no one who speaks it. So, they argue, you would have an excuse not to talk to anyone. 

The medical and legal communities use a lot of Latin, and we get (and deserve) a fair bit of criticism for it. Plain speak would be better. By the same token, we should all avoid all those vague and uninformative shortcut acronyms we cling to in Comp. We tell ourselves they are shortcuts, but to the world, they are "detached," distant, and alienating. 

But, in this instance, it is poetic perhaps that "lex," as in COMPlex, is Latin for "law." And much of what people wanted to talk about in January was the law. That reference fits nicely in the broad purpose of the podcast. It will be a periodic opportunity for me to convey some updates on what is working and what is changing in workers' compensation, primarily in Florida law. 

But, more importantly, it is an opportunity to answer your questions. That is where it got harder than I expected. The chat room is difficult to monitor in real-time. It is doable, but not easy. So, without a producer or similar to catch, interpret, and categorize those questions it may be less fluid than one might hope. 

In exchange for that downside, the upside is the podcast will be real, timely, and focused where it should be - on the listener. So, the first episode is "in the can," and available for you:

YouTube (https://youtu.be/JAHMM4K4x_A)

iHeartRadio Link: https://iheart.com/podcast/143909915/

Pandora: https://www.pandora.com/podcast/uncomplex/PC:1001083575

Ress.com: https://media.rss.com/flworkercompensation/feed.xml

We have February scheduled (our goal is to be live at lunchtime on the second Wednesday of each month). The link will be posted on the OJCC Announcement Blog but is repeated here.

Log in for February 14, 2024:

https://us02web.zoom.us/j/81127816548

Meeting ID: 811 2781 6548; Dial by location 305 224 1968 or 646 931 3860

Or find your local number: https://us02web.zoom.us/u/kcSHim1a4w

See you in February.