Attorney Charles Ware's Blog

Thursday, December 13, 2012

"PREGNANT MAN" THOMAS BEATIE, IS "MOTHER" AND "FATHER" OF 3 CHILDREN, SEEKS DIVORCE FROM "WIFE": Family Law Update!

THOMAS BEATIE, "THE PREGNANT MAN"

From a family law perspective, Thomas Beatie raises a number of interesting issues.

Depending upon which "experts" one consults regarding the "Thomas Beatie" phenomenon, Beatie may be all of the following in one person:
a son, a daughter, an uncle, an aunt, a man, a woman, a husband, a wife, a father, a mother, etc.!

Beatie is a "transgender male" who kept (preserved) all of his female reproductive organs, and gained international media attention after publicly announcing his first pregnancy in 2007. He (she) has now given birth to 3 children and is working on having a fourth child [see, www.huffingtonpost.com/2012/09/04/ "Thomas Beatie, 'The Pregnant Man', Wants a Fourth Child"].

In 2010 "Guiness World Records" recognized Mr. (Ms.) Beatie as the world's "First Married Man to Give Birth" [see, Guiness World Records, 2010 Edition, page 110].

When announcing his (her) first pregnancy, Beatie posted photographs of his (her) body shirtless with a beard and a very pregnant belly on the Internet. Thus, Beatie immediately became popularly known as the world's first "Pregnant Man", and began a long string of publicity appearances on such television shows as "The View", The "Anderson Cooper" program, et al.

DIVORCE DEBACLE IN ARIZONA

Thomas Beatie and his now-very estranged "wife" live in the state of Arizona.

Arizona is one of many states that does not recognize same-sex marriage.

Thomas Beatie and his "wife" have filed for divorce in Arizona. But, there's a problem: Neither the judge in the Beatie divorce case nor the Arizona Attorney General are sufficiently confident as to what Beatie's gender is!

Therefore, the Arizona family law judge (Judge Douglas Gerlack of Maricopa County, Arizona) is presently considering whether he actually has jurisdiction to grant a "divorce" to a transgender male who married a woman and then gave birth to 3 children.

Beatie was allowed to change his birth certificate to say he is a man, and allowed to enter into marriage as a man. But Judge Gerlach says same-sex marriages are not allowed in Arizona and he’s not sure whether he has jurisdiction. He asked the Arizona Attorney General's office for an opinion, but it declined. On Friday, Gerlach said he planned to rule by February.

Even if he does not have jurisdiction to grant the divorce, Judge Gerlach said, he can still rule on custody and property division under his common law authority.

[see, Family Law: "Arizona Judge Ponders Jurisdiction in Divorce Case of Pregnant Man", www.abajournal.com/news/article/12-13-2012/ Debra Cassens Weiss; www.dailymail.co.uk/news/article/11-15-2012/ "Pregnant Man and New Girlfriend Talk Babies..."]

MARYLAND CRIMINAL DEFENSE ATTORNEYS' ASSOCIATION (MCDAA): Veteran, Renowned Defense Attorney Charles Jerome Ware --- Integrity, Ability and Experience

Tuesday, December 11, 2012

FEDEX OVERCHARGED BUSINESS CUSTOMERS, SEALED EMAIL SAYS:

GOKARE v. FEDERAL EXPRESS CORPORATION, U.S. Dist. Court, Tennessee (W.D.)

This class-action update is brought to you as a public service by Charles Jerome Ware, P.A., Attorneys and Counsellors: "Still working. Still committed. Still here to make a difference." Visit us at www.CharlesJeromeWare.com.

Attorney Charles Jerome Ware is renowned and consistently ranked among the best attorneys and legal counsellors in the United States. [GQ Magazine, The Washington Post, The Baltimore Sun, The Columbia Flier, USA TODAY, The Howard County Sun, The Anniston Star, The New York Times, et al.]

It is being reported in major media today that FedEx Corp. (FDX) has been “systematically overcharging” customers by billing businesses and government offices at higher residential rates, a company sales executive said in an internal e-mail unsealed in a lawsuit.

“I have brought this to attention of many people over the past five or six years, including more than one managing director, and no action has been taken to address it,” Alan Elam wrote in an e-mail on Aug. 2, 2011. “My belief is that we are choosing not to fix this issue because it is worth so much money to FedEx,” Elam said in a separate e-mail that day [Bloomberg, by Margaret Cronin, 12-11-2012].

The e-mails were unsealed yesterday in a class-action lawsuit claiming FedEx Corp. and FedEx Corporate Services Inc. overcharged commercial and government customers as much as $3 each for millions of packages delivered. The plaintiffs, who claim violations of federal civil racketeering laws, seek three times the amount of the alleged overcharges in their lawsuit.

FedEx, based in Memphis, Tennessee, has charged residential rates for deliveries to the U.S. Citizenship and Immigration Office, Bank of America Corp., Toyota Motor Credit Corp. and the National Passport Processing Center, according to the amended complaint filed yesterday in the lawsuit.

“Perhaps most telling, on at least 70 separate occasions, FedEx improperly charged a residential delivery surcharge to its customers for deliveries to FedEx’s own headquarters,” according to the complaint.

The lawsuit, filed in federal court in Memphis in 2011 seeking to represent a national class of consumers, also asks for an injunction barring FedEx from charging commercial customers at residential rates. The Elam e-mails were among 11 documents unsealed and attached to the amended complaint yesterday.

“These 11 documents do not tell the entire story of this case,” a FedEx spokeswoman, said in an e-mail today. “We will continue to defend these allegations in a court of law and not the media.”

FedEx customers with billing concerns can seek refunds by going online at fedex.com or by calling 1-800-GoFedEx.

The Elam e-mails point to the company’s internal knowledge of overcharging, lawyers suing the company said. The e-mails were initially classified by FedEx as confidential and unsealed by court order yesterday.

“Defendants’ own internal documents prove that defendants have known for years that they are unlawfully charging residential surcharges when they do not apply, but have permitted the unlawful surcharges to continue because they generate substantial illicit profits,” plaintiffs’ attorneys said in an amended complaint filed yesterday after the order.

“We believe that FedEx’s own e-mails show that the overcharges were not an accident or error, but rather an intentional decision to employ a system that overcharged customers.”

Elam said he became aware of a problem in 2008, according to the e-mails. “It became clear to me at this time that we had a systemic problem that was likely causing overcharges for thousands of our customers, and that the dollar value was huge,” Elam wrote in an Aug. 12, 2011, e-mail to Daniel Mullally, FedEx senior vice president for sales.

Elam said he brought the issue to the attention of three of his superiors, including his managing director. “In conversations with each, I used the language, ‘This is a huge class-action lawsuit waiting to happen.’ None of them have ever reported back taking any action to elevate this issue,” Elam wrote.

“FedEx has been systematically overcharging our customers for services that we know we did not provide, and we have been doing so for many years,” Elam said.

In a prior e-mail attached to this string, Mullally told Elam that he didn’t know about any possible overcharging.

‘Understand the Gravity’

“Quite frankly I was not aware of this but certainly I understand the gravity of the situation so let me involve Solutions, Customer Service and Billing to see what we are doing to resolve,” Mullally wrote. “Thanks for bringing to my attention.”

Chris Suhoza, vice president of solutions at FedEx, responded to Mullally and Elam: “Alan rest assured your concerns and those of others in this area have not gone unheard. We are working this customer experience issue through ...” The rest of this sentence remained redacted, or blacked out.

The case is Gokare P.C. v. Federal Express Corp., 11- cv-02131, U.S. District Court, Western District of Tennessee (Memphis).

[www.bloomberg.com/news/print/2012-12-11/ "FedEx Overcharged Customers for Years, Sealed E-Mail Says"; www.leagle.com/August 1, 2012/ Manjunath A. Gokare, P.C. (class actions) v. Federal Express Corporation, Case No. 2:11-CV-02131_SHM-cgc, U.S. Dist. Ct., W.D. Tennessee, Western Division, August 1, 2012; dockets.justia.com/Manjunath A. Gokare, P.C. v. Federal Express Corporation, February 18, 2011, W.D., Tennessee; www.businessweek.com/12-11-2012/ "FedEx Overcharged Customers for Years..."]

"SCOTUS" UPDATE (Supreme Court of the United States): SCALIA COMPARES SODOMY TO MURDER

Attorney Charles Jerome Ware is renowned and consistently ranked among the best attorneys and legal counsellors in the United States. [GQ Magazine, The Washington Post, The Baltimore Sun, The Columbia Flier, USA TODAY, The Howard County Sun, The Anniston Star, The New York Times, et al.]

Admittedly using the "form of argument... called the 'reduction to the absurd'," in an appearance at Princeton University on Monday, December 10th, 2012, SCOTUS Justice Antonin Scalia defended his dissent in the 2003 Supreme Court case, Lawrence v. Texas, Docket No. 02-102, 459 U.S. 558 (2003), which overturned a Sodomy ban.

Scalia’s dissent had called the majority decision in Lawrence v. Texas "a massive disruption of the current social order." Scalia said the Texas ban on sodomy was an expression of Texas citizens’ beliefs about morality, “the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality and obscenity.” Scalia said the Supreme Court’s justification for overturning the sodomy law could call into question laws banning gay marriage, and the majority had "largely signed on to the so-called homosexual agenda."

At the Princeton appearance, a student who identified himself as gay asked how Scalia can compare moral objections to sodomy with moral objections to things such as bestiality or murder.

Scalia said his comparisons are intended to make a point. "It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd,' " Scalia said. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

U.S. Rep. Barney Frank once called Scalia a “homophobe” in a 2009 interview in which he said that at some point the U.S. Supreme Court will have to review the Defense of Marriage Act barring federal benefits for married same-sex couples. His prediction proved true on Friday when the U.S. Supreme Court accepted a challenge to the law along with a separate case challenging California’s voter-approved ban on gay marriage.

Scalia has been giving speeches around the country to promote his new book, "Reading Law."

In response to those who proclaim that the U.S. Constitution is a "living document", Justice Scalia is well-known for responding: "It isn't a living document. It's dead, dead, dead."

[see, Lawrence, et al. v. Texas, No. 02-102, 539 U.S. 558 (2003); Bowers v. Hardwick, 478 U.S. 186 (1986); www.abajournal.com/news/ "Scalia Explains Why He Compares Sodomy Bans To Murder Laws"/ 12-11-2012; Associated Press, 12-11-2012/ "Antonin Scalia Defends Legal Writings Some View As Offensive, Anti-Gay", www.law.cornell.edu/supct/htm/02-102.ZD.html]

MARYLAND CRIMINAL LAW UPDATE: "SHAKEN BABY SYNDROME" UNDER SCRUTINY BY EXPERTS

"SHAKEN BABY SYNDROME"

"Every year in this country, hundreds of people are convicted of having shaken a baby, most often to death. In a prosecution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the defendant caused the infant's death by shaking, and that the shaking was sufficiently forceful to constitute depraved indifference to human life.

Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely on the presence of a diagnostic triad: (1) retinal bleeding, (2) bleeding in the protective layer of the brain, and (3) brain swelling.

New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. Most recently, after a seventeen-month investigation costing $8.3 million, a Canadian commission recommended that all SBS cases be reviewed. In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change, yet the response has been halting and inconsistent."

[Deborah Tuerkheimer, 87 Wash. U. L. Rev. 1 (2009)]

The term "Shaken Baby Syndrome" was first coined in the early 1970s. As previously stated, supra, it has been used to describe a characteristic set of head injuries found in infants who have allegedly been subjected to violent shaking: (1) swelling of the brain, (2) bleeding around the brain, and (3) bleeding in the retinas.

The theory was first espoused by a pair of pediatric specialists as a possible cause of the otherwise unexplained head injuries sometimes seen in infants with no visible signs of physical abuse. It quickly took root in the medical community.

Before long, SBS became widely accepted as a clinical diagnosis for head injuries inflicted on small children. And a nationwide educational campaign to alert the public to the dangers of shaking was launched.

In fact, SBS is now so firmly ingrained in the public consciousness that the World Health Organization has a diagnostic classification for it; the American Board of Pediatrics offers a subspecialty in it; and last year, for the fifth year in a row, the U.S. Senate designated the third week in April as National Shaken Baby Syndrome Awareness Week.

To this day, there is widespread consensus among medical professionals that shaking a baby is dangerous and often lethal. The American Academy of Pediatrics, the American Academy of Ophthalmology and the National Association of Medical Examiners have all issued position papers embracing the theory, although the NAME paper, which was published despite failing peer review, was later withdrawn. The Centers for Dis ease Control and Prevention publishes SBS prevention guides for public health departments and community organizations. And several states, including Ohio, New York and Texas, require prospective parents and child care providers to learn about the perils of shaking.

Audrey Edmunds

In or about 1996, wife, mother and child care provider Audrey Edmunds of Wisconsin, then a 35-year-old stay-at-home mom, was convicted of reckless homicide in the 1995 shaking death of a neighbor couple’s infant daughter. She was sentenced to 18 years in prison.

In 2008, however, a Wisconsin appeals court granted her a new trial on the grounds that a shift in mainstream medical opinion as to the cause of the girl’s injuries now casts doubt on Edmunds’ guilt.

Prosecutors subsequently dismissed the case against Edmunds—not because they think she is innocent but to spare the victim’s parents the agony of having to revisit their daughter’s death.

Now, in 2012, Edmunds’ culpability remains a hotly contested topic of conversation in criminal justice circles. And her case has reignited a fierce debate in the forensic community over the science behind what’s called "shaken baby syndrome" (SBS).

Certainly, the vast majority of doctors still regard it as a valid and reliable diagnosis, one whose scientific basis has been proven time and time again by decades of peer-reviewed research, clinical experience and caregiver confessions.

But a small and apparently growing number of forensic experts have begun to question many of the assumptions upon which the diagnosis rests—like whether shaking alone can produce the kind of traumatic head injuries attributed to SBS in the absence of other injuries, like a broken neck, or whether a child who has been shaken violently would immediately be rendered unconscious.

The decision marks the first time that an appeals court has questioned the scientific basis for a shaken baby conviction, and some hope the Wisconsin ruling will lead to a systematic court review of the evidence in other shaken baby cases, or even an independent examination of the underlying science by some neutral third party like the National Academy of Sciences.

Today, a freed Audrey Edmunds, now 51, continues to maintain her innocence, though she is still angry about her prosecution.

[lawreview.wustl.edu/inprint/Volume 87, No. 1/ 87 Wash. U. L. Rev. 1 (2009)/ "The NExt Innocence Project: Shaken Baby Syndrome and the Criminal Courts"/ by Deborah Tuerkheimer; www.abajournal.com/ December 1, 2011/ "Unsettling Science: Experts Are Still Debating Whether Shaken Baby Syndrome Exists"/ by Mark Hansen; blogs.findlaw.com/blotter/June 22, 2009/Javier Lavagnino, Esq./ "Reliability of Shaken Baby Syndrome Diagnosis Questioned"; www.thecrimereport.org/SBS and Audrey Edmunds; www.nytimes.com/02-02-2011/ "Shaken-Baby Syndrome Faces New Questions in Court"/ by Emily Bazelon; mip.medill.northwestern.edu/blog/ Sept. 19, 2012/ "A Point of View: Shaken Baby Syndrome"]

MARYLAND MEDICAL MALPRACTICE CLASS ACTIONS: An Update by Attorney Charles Jerome Ware

SETTLEMENT UPDATE ON THE EARL "DR. PEDOPHILE" BRADLEY CASE FOR DELAWARE, MARYLAND AND PENNSYLVANIA CLAIMS

Attorney Charles Jerome Ware is renowned and consistently ranked among the best attorneys and legal counsellors in the United States. [GQ Magazine, The Washington Post, The Baltimore Sun, The Columbia Flier, USA TODAY, The Howard County Sun, The Anniston Star, The New York Times, et al.]

For background, see: Attorney Charles Ware's Blog, Wednesday, November 21, 2012, charlesware.blogspot.com/ "Dr Pedophile's" Social Child Sex Abuse Case Ends: $123,000,000 Class Action Settlement"; twitter.com/charlesjware/11-21-2012.

On or about November 19th, 2012, Wilmington, Delaware Superior Court trial Joseph Slights III approved the $123,000,000 class action settlement for more than 900 victims of child sex abuse over a 15-year period of time by pediatrician Dr. Earl Bradley, now age 59, aka "Dr. Pedophile."

Victims of Dr. Bradley were children from communities in Delaware, Maryland and Pennsylvania (including several infants).

Plaintiffs who entered into the $123 million settlement now have until Friday, December 14th, 2012 to submit their claims for compensation (a form to be filled out) to former Philadelphia-based judge Thomas Rugger, who will determine the payout (compensation) for each victim.

According to Plaintiff's attorneys, about $90 million should be available for victims, after attorneys' fees and expenses are paid. Judge Rugger also over-saw payouts to victims of sexual abuse by members of the Catholic Diocese of Wilmington, Delaware.

Dr. Bradley was convicted in August 2011 of multiple counts of child rape involving his patients, and is serving a term of 14 life sentences. He recorded his abuse on videos that he kept at his office. These recordings amounted to more than 13 hours of videos.

Since Bradley did not have malpractice insurance, the money comes from the hospital where he had privileges, Beebe Medical Center. Apparently the hospital feared bankruptcy and chose to settle. The first checks should start going out in early 2013.

[baltimore.cbslocal.com/12-10-2012/ "$123 M Settlement..."; thedailyrecord.com/12-10-2012/ "Claims Due In Delaware Doctor's Abuse Settlement"]