Monday, September 6, 2010

What was he thinking? - People v. McCollum 1992 and 2010

At the age of 15 he had his own uniform,
Every line of track was burned into his mind,
And the tire track crews are smiling to see
Darius McCollum coming down the line.

-- Alexis Harte, "Ballad of Darius McCollum"

The legendary Darius McCollum was arrested again last week - reportedly for the 27th time - for a transit-related offense. He allegedly took a Trailways bus from a maintenance garage in Hoboken, NJ, and he was apprehended in Queens while driving it. The story of McCollum's latest arrest was immediately picked up by the Associated Press and was reported in the New York Times and the Wall Street Journal.

According to news stories, McCollum has Asperger's Syndrome and a life-long intense special interest in mass transit. He has been prosecuted for transit-related crimes and has spent some years in prison, but apparently it has not deterred him from doing what he loves most - driving transit vehicles, with or without permission, and returning them in good condition to their owners if he isn't stopped first.

By all accounts, Darius McCollum is a likeable, honest, intelligent man. In a 2002 article in Harper's Magazine, "The boy who loved transit: how the system failed an obsession," Jeff Tietz wrote:

It is difficult to find anyone who knows Darius well and does not express an abiding protective affection for him. Cops always refer to him by his first name, and often with wistful amusement, as if he were a wayward godson. In discussing his cases, they have called him "great," "endearing," and "fabulous." They mention his honesty and abnormally good memory. Sergeant Jack Cassidy, a high-ranking transit cop who has interviewed Darius more often than anyone else in the NYPD, told me, "You'll be talking to a fantastic person when you talk to Darius, and I hope prison never changes that."
Though some reporters have expressed surprise that McCollum was driving a bus instead of a subway train last week, this is not his first case involving buses. Twenty years ago, the New York Times reported that McCollum was arrested driving a New York Transit Authority bus. That 1990 incident resulted in a reported appellate case, People v. McCollum, 183 A.D.2d 413, 583 N.Y.S.2d 269 (1992).

In the 1992 case, McCollum was accused of taking two city buses in one day. Allegedly he took the first from a Manhattan terminal and left it off at another depot in Queens, where he took a second bus and drove it back to Manhattan. He was arrested driving the second bus in Manhattan.

The interesting thing about the 1992 case is that McCollum was charged with burglary, an intent crime. The Grand Jury indicted him for that, but the court dismissed the indictment. The State of New York appealed and lost. In its decision, the Appellate Division of the New York Supreme Court explained that the crime of burglary requires that the defendant enter a building with the intent to commit a crime therein. Becauses the buses were not buldings, and because there was no evidence that McCollum intended to commit a crime in the buses, there was no basis for indicting him for burglary. On the intent element, the court said:

We also find that the unexplained and uncontradicted evidence of defendant's conduct presented to the Grand Jury, viewed in the light most favorable to the People, provided no basis to infer that defendant's intent was to commit a crime inside the buses (Penal Law § 140.20), and would not warrant a conviction for burglary by a petit jury (see, People v Jennings, 69 N.Y.2d 103). Defendant's intent is not apparent from the circumstances of his entry into the buses (compare, People v Henderson, 41 N.Y.2d 233, with People v Gilligan, 42 N.Y.2d 969) or his use of the buses. While the evidence was sufficient to show that defendant took the buses without authorization, and while intent must be established by proof of conduct and the surrounding circumstances (People v Mackey, 49 N.Y.2d 274, 279), there were no passengers on the buses when defendant entered them, he did not damage them and he simply abandoned the first at a transit authority lot and was doing no more than driving the second when his jaunt was interrupted by the police.

In the present case, McCollum isn't being charged with burglary, or even with larceny (at least in New York). According to New York court records, the charges are:

  • Criminal Possession of Stolen Property in the Second Degree
    (PL 165.52 00), a Class C Felony based on stolen property having a value exceeding $50,000.00;

  • Criminal Possession of Stolen Property in the Fourth Degree
    (PL 165.45 05), a Class E Felony based on a stolen motor vehicle;

  • Unauthorized Use of Vehicle without Owner's Consent
    (PL 165.05 01), a Class A Misdemeanor; and

  • Operation of a motor vehicle by an unlicensed driver
    (VTL 509.1 01), an Infraction.

The top charge of Second Degree Possession of Stolen Property carries a maximum sentence of 15 years. (PL 70.00 2(c)), with possible enhancements to the minimum sentence because of prior felonies as to which McCollum pled guilty.

There is an intent element in the current felony charges of possession of stolen property, both crimes requiring that the defendant "knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof."

In addition to the specific intent of these crimes, there's the threshold question of what "stolen property" means. As far as I can tell, "stolen property" is not statutorily defined in New York, but the crime of stealing is "larceny." Under New York law, "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof." (PL 155.05 1.) Depriving another of property, or appropriating property, are defined as being permanent, or virtually permanent. (NY PL 155.00 3 and 4.) Temporary use of another's property is not stealing.

It all comes down to what McCollum was thinking when he took the bus. Just as there was no evidence that he intended to commit crimes in the buses he allegedly took in 1990, I think it's very likely that there's no evidence that he intended to deprive Trailways of its property, or appropriate the Trailways bus to himself, as defined in New York law. If that turns out to be the case, and he didn't steal the bus, then I'd say that he wasn't knowingly in possession of stolen property, either.

I don't think that McCollum ever operated a bus or a train, or attempted to do so, with larcenous intent - not because he is legally insane or has diminished capacity due to his autism, but because he didn't intend to take them from their owners permanently. That McCollum has an autism spectrum disorder might be a factor in explaining why he is so fixated on transit vehicles and would intend to drive them temporarily and then return them, behavior that Lawrence Osborne in his book American Normal: The hidden world of Asperger Syndrome described as "egregiously bizarre." But this isn't the same thing as saying that he shouldn't be held responsible for stealing, or possessing stolen property, because he has Asperger's.

Of course, it is still illegal to use a vehicle without the owner's consent. But this is a misdemeanor, punishable by up to one year in jail. That should be the charge. He should not be facing up to 15 years in prison for a Class C felony.

I don't know what to say about how Darius McCollum can stop himself from the unauthorized driving of transit vehicles, or how an opportunty could be created for him to work in the transit industry. His story, however legendary and despite it's amusing aspects, is essentially a sad one. His attorney, Stephen Jackson, is quoted as saying that he is going to concentrate on getting McCollum help for his Asperger's. However they approach that goal, I hope that McCollum won't be pleading guilty to a felony again.

Wednesday, June 30, 2010

Judge Rotenberg Center shocks the United Nations

"To be frank, I was shocked when I was reading the report," said Manfred Nowak, the UN's Special Rapporteur on Torture. "What I did, on the 11th of May, was to send an urgent appeal to the U.S. government asking them to investigate."

-- ABC News, June 30, 2010

As I recently mentioned in my post about the Nicholson v. Freeport Union Free School Dist. case, Mental Disability Rights International sent a report to the United Nations Special Rapporteur on Torture concerning the use of severe Level 3 aversives, including electric skin shock, on disabled students at the Judge Rotenberg Educational Center in Canton, Massachusetts. Today, ABC News announced that it will air a segment on its "Nightline" program tonight (11:25 p.m. Eastern Time) about JRC. From ABC's announcement:
The skin shock treatment, used only after both a court and the student's parents have approved, has drawn criticism for years. But after the release of a recent study by Mental Disability Rights International, Rotenberg has come under the scrutiny of no less than the United Nations, which is calling the school's practices "torture."

"UN Calls Shock Treatment at Mass. School 'Torture'."

Tuesday, June 29, 2010

Andrew Moulden and his junk science in Vaccine Court - Veryzer v. HHS

Ideology is not science – which it pretends to be. Science accepts the results of the experiments it devises, whereas ideology systematically rejects empirical evidence.... All ideologies are aberrations. A sound and rational ideology cannot exist.

- Special Master Richard B. Abell in
Veryzer v. HHS, quoting Jean-François Revel

In a decision filed on June 15, 2010 - Veryzer v. HHS, US Court of Federal Claims, No. 06-0522V - Special Master Abell considered whether expert evidence may be excluded under the Daubert standard in a Vaccine Injury Compensation Program proceeding. These vaccine injury cases are handled at the trial level by the Office of Special Masters in the US Court of Federal Claims. The program is sometimes referred to as "Vaccine Court." In Veryzer, faced with the prospect of having to consider opinion evidence from the petitioner's expert, anti-vaccine crank and germ theory denialist Dr. Andrew Moulden, the special master ruled that he could exclude that evidence from consideration under Daubert.

The Daubert standard was developed by the US Supreme Court as a means of determining the admissibility of scientific and other expert opinion evidence in federal courts. In US District Court, the Daubert standard serves a gate-keeping function by allowing the trial judge to apply various factors to determine the reliability of proffered evidence before it is put before a jury. If the judge determines that the evidence isn't reliable, he or she can refuse to admit it. That way, the jury isn't presented with junk science. The Daubert standard is supposed to be flexible enough to allow admission of novel scientific evidence, as long as the evidence is reliable.

There is no jury in Vaccine Court, however, so there is no need for a gate-keeping function. Nevertheless, special masters have used the Daubert standard to assess the reliability of expert opinion evidence that they have admitted and are considering. An example of this use of Daubert can be seen in Cedillo v. HHS, US Court of Federal Claims, No. 98-916V (appeal pending in the US Court of Appeals for the Federal Circuit).

In Veryzer, the special master ruled that Daubert could also be used to exclude evidence, but only in the most extreme cases. "In the Vaccine Program, then, exclusion from the record is an exceptional remedy, and should only be applied by the Court where the material sought to be excluded is so unreliable, it patently forfeits every trace of being helpful to the Court’s consideration of the facts of the case."

Andrew Moulden's proffered testimony fits the bill. Dr. Moulden has been described by ScienceBlogs blogger Orac at Respectful Insolence as having "plumbed depths of crankery that few pseudoscientists can even dream of plumbing." Although this sounds like hyperbole, Special Master Abell drew a similar conclusion after applying the Daubert factors to Dr. Moulden's expert report in Veryzer. Here are excerpts from the special master's analysis:

More than any arguments made by Respondent, or any failures to rebut by Petitioner, Dr. Moulden himself openly flaunts that he does not follow generally accepted medical science. He believes that none of the several theories found reliable by this Court over the years, none of the mechanisms identified by the IOM, and none of the medical literature on vaccine injury are correct. Even if this is not the heresy which Respondent would ascribe, it is undeniably a heterodoxy that veers sharply from the orthodox universe of accepted medical science. Similar to this is his belief that “all vaccines are useless,” and that vaccines are the primary pathogen in the world. It seems incredible that Dr. Moulden would find vaccines more destructive than smallpox, polio, measles, or tetanus. Without being hasty, it may be fair to say that this diverges from the understanding of acceptable medical science, not least in the field of immunology. And it is hard to conceive of a belief that would diverge more from modern medical science than his rejection of germ theory. On a fundamental level, Dr. Moulden breaks notably from medical science as it is practiced today. These are not prudential matters of opinion; these affect the very fiber of scientific methodology. As the Supreme Court stated in Kumho Tire, a reliable expert must adhere to “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” 526 U.S. at 152.

However, inasmuch as he has publicly released none of the results of his research, his toil in the laboratory does not bolster the reliability of his opinion either. One is left to assume that his experiments have followed the pattern of hypothesis, testing, theory, duplication of results, and falsifiability. However, the lack of published results leaves this supposition as a mere article of faith. Furthermore, as Respondent pointed out, the absence of publication within the medical field also makes testing, duplication of results, and falsifiability impossible for any others to perform. One of the identifiable hallmarks of science is the requirement of theoretical falsifiability; even if an individual theory has not undergone sufficient testing to prove or disprove its viability, the requirement remains that it must be falsifiable under some potential (even if not yet discovered) rubric, else it cannot bear the name “scientific” but is an article of faith. Petitioner even hoisted himself by his own petard by his citation to Paoli (supra at note 14), which states that an opinion is only reliable when premised upon “good grounds,” by which that court described an expert theory and conclusion that was “based on the methods and procedures of science.” 35 F. 3d at 744. There is a word for a postulated system that purports to be a unified theory of everything, explaining all phenomena by its one, reductionist theory: ideology. Indeed, Dr. Moulden’s seraphic vision of a MASS response smacks of a pensée unique, perhaps even devolving into an idée fixe. To be so engrossed in one way of perceiving reality, so as not to recognize the distinction between congenital defects and infection, is not helpful to understand reality, and it cannot prove helpful to the Court’s understanding. Thus, the Court stares askew at Dr. Moulden’s statements such as “Pasteur’s germ theory of mammalian disease is both incorrect and inaccurate [because] disease is not being caused by any particular pathogen or strain of pathogen [but] is the non-specific immune response to foreign substances [in] the body and blood stream that causes disease–all diseases.” Moulden Report at 90-91.

Given that Dr. Moulden diverges (even veers) from accepted medical science on such a fundamental level in his methodology, that there is no single indicium of reliability that would bolster his opinion, and that the fact that his opinion would manifestly be unhelpful to the Court’s resolution of the issues presented in this matter, the Court rules that Dr. Moulden’s opinion shall be excluded from the record to be considered in ruling on the Petition, and that he shall not testify at any hearing held herein.

The special master also excluded evidence from petitioner's other expert witness, Huffington Post blogger and anti-vaccine activist Dr. Sherry ("Become a Vaccine Refusenik") Tenpenny. He found that she didn't have the expertise to give the opinion that was offered in the case, and that, even if she did have the qualifications, her opinion was not reliable. The special master found that Dr. Tenpenny's report "is thoroughly worthless to the Court, and is not helpful enough, not relevant enough, to be admissible, considering the strong arguments against its admissibility."

In the end, the special master found that neither Dr. Moulden nor Dr. Tenpenny "should be permitted to waste the Court’s (or counsel’s) time at a hearing held merely to endure testimony that is patently unreliable," and ordered the petitioner to "seek out a credibly qualified, methodologically reliable expert witness to opine on the specific matter at issue in this case: namely, can the Hepatitis A vaccine cause Petitioner’s injury, and if so how; and did the Hepatitis A vaccine follow such a process in Petitioner’s case, with reference to his medical records."

Friday, June 18, 2010

One bite at the apple of justice - Nicholson v. Freeport Union Free School Dist.

While the infliction of severe pain on children and adults at JRC has been challenged in the courts time and time again, the legal system of the United States has failed to provide basic human rights protections for this population.

-- From "Torture Not Treatment," an Urgent Appeal to the U.N. Special Rapporteur on Torture

Antwone Nicholson has lost his case against the Freeport Union Free School District, the New York school district that placed Antwone as a special education student at the infamous Judge Rotenberg Educational Center (JRC) in Canton, Massachussetts. I wrote about the JRC a couple of months ago. Since then, a human rights organization known as Mental Disability Rights International has filed an Urgent Appeal with the United Nations Special Rapporteur on Torture, requesting that the UN investigate JRC. In its Urgent Appeal, MDRI says that domestic remedies have failed.

Antwone Nicholson and his mother, Evelyn, have been trying to find a remedy for damages caused to Antwone from being subjected to punishment by electricity at JRC. In a May 2006 article in the Boston Globe, the Nicholsons' complaint was described as the impetus for the New York State Education Department's enactment of emergency regulations putting tighter limits on the use of electric shock and other aversives on students from New York.

Antwone and Evelyn also sued the State of New York in the New York Court of Claims for violating New York education law and Antwone's civil rights by putting JRC on on the State Education Department's list of approved schools for New York students. The Nicholsons lost that case in December 2008. Nicholson v. State of New York, 23 Misc.3d 313, 872 N.Y.S.2d 846 (Cl. Ct. 2008). The Court of Claims decided that the Nicholsons didn't have a right to sue the State of New York, but suggested that they could "pursue judicial remedies against JRC and the local school district ... ."

Antwone and Evelyn had, in fact, sued the JRC and the local school district, Freeport Union, in December of 2006. The case is Antwone Nicholson and Evelyn Nicholson v. Freeport Union Free School District and The Judge Rotenberg Educational Center, Inc., Supreme Court of New York, Nassau County, Case No. 11506/06. (In many states and in the federal system, the supreme court is the highest appellate court. In New York, it's the trial court.) In May of 2009, the Supreme Court judge denied the school district's motion for summary judgment, finding that there were "questions of fact regarding the role and responsibility of defendant Freeport in the education of plaintiff that precludes summary disposition." The school district appealed and won.

On June 8, 2010, the Appellate Division of the Supreme Court of New York reversed the trial court's order, holding that the school district was entitled to summary judgment in its favor. Nicholson, et al. v. Freeport Union Free School Dist., et al., 2010 NY Slip Op 04975. (The Appellate Division is New York's intermediate appellate court, with the Court of Appeals being the state's highest court.)

In order to use skin shock on Antwone, JRC went to the Massachusetts probate court for permission, as it does in all cases. In these proceedings, the JRC student is represented by counsel. So Antwone was represented at the probate hearing by his attorney and Antwone's mother, Evelyn, was also there. The probate judge approved the use of skin shock on Antwone before it was used.

The New York appeals court concluded that, because the Massachusetts court had already decided that it was okay to shock Antwone with electricity, and because Antwone and his mother were present or represented at the hearing, they are barred by the doctrine of collateral estoppel from asking the New York court to decide the same issue again.

The doctrine of collateral estoppel, or "issue preclusion," prevents a party from litigating an issue that has already been decided against him or her in another court. It is a doctrine of fairness that is meant to promote judicial economy and the finality of judgments. If a court decides an issue of fact or law against you, and you had a full and fair opportunity to litigate that issue in the first court, then you can't go to another court and ask that it decide the identical issue. You only get one bite at the apple.

To me, the pertinent inquiry in the Nicholson case is, how do we know that the Nicholsons had a full and fair opportunity to litigate the issues of the appropriateness and legality of the GED use in probate court? The Nicholson appeals court says simply that they appeared in the proceedings. That's not enough.

Under New York law, a court has to consider the realities of litigation and various factors to determine whether there was a full and fair opportunity to litigate an issue in a prior proceeding:
Thus we noted in the Schwartz case (at p 72) that when collateral estoppel is in issue, the question as to whether a party had a full and fair opportunity to litigate a prior determination, involves a practical inquiry into "the realities of litigation. A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation" (see, also, Restatement, Judgments 2d [Tent Draft No. 3], § 88).

Gilberg v. Barbieri, 53 N.Y.2d 285, 292, 423 N.E.2d 807 (1981).

So, what about the probate proceeding in Massachusetts? What was the nature of that proceeding? What opportunity was actually given to Evelyn and Antwone to litigate the issues of the appropriateness and legality of using electric shock on Antwone? Who was Antwone's attorney, and what level of competence and experience did he or she have? Is there new evidence available for the later proceeding that wasn't available to Evelyn and Antwone in the Massachusetts proceeding? What differences are there in the law to be applied in the Massachusetts case and the New York case? The New York court didn't look at *any* of these factors, and therefore didn't do a proper analysis of whether the doctrine of collateral estoppel applies in this case.

I have always wondered about JRC's probate proceedings. If JRC is also going to use collateral estoppel as a defense in Nicholson, or in any other case, I hope that information about the nature of these proceedings and how they work will be fully developed.

As far as I can tell from the docket, the Nicholsons are heading for trial against JRC, even through Freeport Union Free School District won its appeal. The Nicholsons' attorney is Kenneth M. Mollins of Melville, New York.

Will the legal system of the United States will provide Antwone Nicholson with a remedy?

Tuesday, May 18, 2010

Money, happiness and constitutional rights - Matter of Mark C.H.

But for the occasion of the 17-A proceeding belatedly commenced by petitioner, Mark would, most likely, still be an entirely isolated institutional resident. Although his basic needs were met, he lacked the resources to reach his best potential and to thrive — even as significant monies left to care for him increased, unspent in his trust, from which both trustees presumably took their annual commissions.

The facts in this case dramatically demonstrate why a statute that gives a guardian control over the life of a person with mental retardation and/or developmental disabilities must include provision for periodic court review.

-- Hon. Kristin Booth Glen, Surrogate's Court, New York County in
Matter of Mark C.H.

One of the most challenging issues facing parents of developmentally disabled children is how to provide for their care when the parents are gone. In the Mark C.H. case, an adoptive mother made arrangements for her autistic son's care after her death from cancer, leaving several million dollars in trust for him. Because of what happened after the mother's death, Judge Glen of the New York County Surrogate's Court decided that New York's guardianship law puts an unconstitutional restriction on the liberty of mentally retarded and developmentally disabled people unless the court also monitors the activities of the appointed guardians. In the Matter of Mark C.H., 2010 NY Slip Op 20156 (April 21, 2010).

Marie H. was diagnosed with terminal cancer in 2003. She had two adopted boys. One of them, Mark, was autistic. Because she would no longer be able to care for Mark, she put him in an institution. Mark was 14 at the time. Marie died in 2005, leaving $3 million in trust for Mark's care. Marie's attorney was a trustee of Mark's trust, and he made a death-bed promise to Marie that he would also be Mark's personal guardian.

In 2007, four years after Mark and been institutionalized and two years after Marie had passed away, the attorney filed his belated petition to be appointed Mark's guardian under Article 17-A of New York's Surrogate’s Court Procedure Act (SCPA). Under Article 17-A, New York courts can appoint a guardian of the person and/or property of "mentally retarded persons" and "developmentally disabled" persons. In this case, the attorney was to be appointed as guardian of Mark's person only, since his financial affairs were (supposedly) being handled through the trust.

There was a hearing on the petition in October 2008. Mark had been in the institution for five years. The trustees admitted that they had never visited Mark or taken any steps to find out what Mark's needs were, and they had not spent any of Mark's trust funds on his behalf. At the court's direction, the trustees hired a Care Manager, Robin Hoffman, who visited Mark and his caregivers at the institution. This is what the Care Manager learned:

In her interview with Mark's residence manager, Hoffman was informed that

"as far as [the resident manager] knew, Mark [had] not had any visitors in the five years that she had worked with him nor has he had a vacation. She stated that most of the students leave school over Christmas vacation, [but] Mark remains on campus with staff. She reported that Mark would enjoy eating in a restaurant, playing music on a synthesizer, and using a computer. He could benefit from enhanced augmentative communication devices."

In addition to these items and services that would likely improve Mark's quality of life, Hoffman also learned of significant medical issues that could be alleviated by expenditures from the trust.

Judge Glen decided that there was no way she was going to appoint the petitioner as Mark's guardian without requiring regular judicial review of his actions, even though the guardianship statute doesn't require such review. "The facts in this case dramatically demonstrate why a statute that gives a guardian control over the life of a person with mental retardation and/or developmental disabilities must include provision for periodic court review," Judge Glen said in her decision.

Why does the court have the power to make guardians of developmentally disabled wards report to the court when the statute doesn't require it? Because, Judge Glen decided, the statute would otherwise be unconstitutional. Because guardianship is a drastic restraint on a person's constitutional liberty right, due process is required. The guardianship statute, as written, does not provide for any judicial monitoring once the guardian is appointed, thus leaving the ward open to indefinite restrictions on his or her liberty regardless of what the guardian does or whether the guardianship continues to be in the ward's best interest. The judge reasoned that due process requires that the court read into the statute a reporting and review requirement.

Judge Glen also considered the UN's Disability Convention as a reason for imposing reporting and review requirements, even though it hasn't yet been ratified by the US Senate. "[A]s a matter of international human rights law, state interventions, like guardianships, pursuant to parens patriae power, must be subject to periodic review to prevent the abuses which may otherwise flow from the state's grant of power over a person with disabilities such as those covered by SCPA Article 17-A."

As the court noted, New York law regarding other guardianships, including guardianships of the incapacitated elderly or people with mental illness, requires annual reporting and court review, while guardianships of the persons of those with mental retardation and/or developmental disabilities does not. To add this requirement to the MR/DD personal guardianship is not unrealistic, and provides these wards with the same protections that other people under guardianship receive.

According to the Matter of Mark C.H. decision, in practice many parents of kids with developmental disabilities get Article 17-A guardianships over their kids at the point of adulthood, and then the court never hears from them again. If the New York courts start reading the report and review requirements into the guardianship law, these additional requirements may affect familial guardianships as well as non-familial guardianships like the one involved in this case. Although this would place an additional burden on family members who act as guardians, there's no guarantee that a guardian who is related to the ward will not neglect or abuse him. The story of Tiffany Pinckney, who died under her sister's guardianship, is an example. It seems sensible to afford people under MR/DD guardianships the protection of ongoing court supervision to preserve their constitutional and human rights.

Sunday, April 25, 2010

The Irony Dept - JRC student charged with assault

The Judge Rotenberg Educational Center in Canton, Massachusets - the notorious School of Shock - was in the news again. On April 20, 2010, the Stoughton Journal reported:

A 16-year-old resident of the Judge Rotenberg Center on Kevin Clancy Way was issued a summons for multiple assault charges following an incident last week.

Staff at the center called police Tuesday, April 13, at 8:41 p.m. and reported one of their patients was out of control. The teenager allegedly assaulted staff members with his shod foot. None of the staff members were seriously injured, police said.

The teenager was held in a detention room at the center. He will be summonsed to court to face charges of three counts of assault and battery and two counts of assault and battery with a dangerous weapon.

The JRC is the special education school where they discipline disabled kids by tying them down to a board and shocking them with electricity, using a shocker device with the confusing name of "Graduated Electronic Decelerator." The JRC is currently under investigation by the US Department of Justice's Civil Rights Division after receiving a letter of complaint from 31 disability organizations. The letter, reproduced on the Left Brain/Right Brain blog here, details abusive practices by JRC far worse than a kid kicking out with a "shod foot." Isn't the wrong person being charged with assault and battery with a dangerous weapon?

Tuesday, April 13, 2010

Education or abuse? - Payne v. Peninsula School District

Here was neither education nor attempt at education. Here was a return to the bleak black days of Dickensian England.

-- Hon. John Thomas Noonan, Jr., Senior Circuit Judge, dissenting

If you repeatedly lock a seven year old child in a dark closet until he becomes emotionally traumatized, is that abuse or education? According to the US Court of Appeals for the Ninth Circuit, it's education - special education. The case is Payne v. Peninsula School Dist., 2010 U.S. App. LEXIS 5601 (9th Cir. 2010).

Windy Payne's six year old son D.P. attended Artondale Elementary School in Gig Harbor, Washington. He is an autistic child and had an Individualized Education Plan (IEP) under the Individuals with Disabilities Education Act (IDEA). D.P.'s IEP permitted the school to use what they euphemistically call a "safe room" to address D.P.'s educational issues. According to Windy Payne, her son was mistreated by his teacher's use of this "safe room," causing him anxiety, emotional trauma and academic setbacks. She sued the school, the school district, and the teacher in federal court for violating D.P.'s civil rights and for causing her emotional distress.

The federal trial court found that Windy didn't have the right to bring her claim in court because she had failed to exhaust her administrative remedies under the IDEA. When disputes arise about special education services provided to a student, the IDEA provides for an administrative claim procedure called "Due Process." Under the exhaustion of remedies doctrine, the parents of the student can't file a lawsuit in court unless they first go through the IDEA Due Process procedure.

No Due Process proceding is required in cases of physical abuse, though. In Witte v. Clark County School District, 197 F.3d 1271 (9th Cir. 1999), no exhaustion of remedies was required for a claim based on physical abuse such as strangulation, force feeding, "take downs" and food deprivation. Those actions, the Ninth Circuit said in Witte, served no legitimate educational purpose.

For Windy Payne's son, however, the majority opinion was that the use of the "safe room" did have an educational purpose, because proper conduct and education are inextricably intertwined in public education, the child's IEP contained aversive behavioral interventions, and state law allows the use of isolation rooms for disciplinary purposes.

Although Windy Payne lost her case, there was a dissenting opinion. Justice Noonan protested the abusive use of the "safe room," even though seclusion was permitted in the child's IEP. Justice Noonan wrote:

My colleagues, struggling to find a way between Robb and Witte find at least “an attempt at an educational program” in a teacher repeatedly locking D.P., a seven-year old autistic child, into an unventilated, dark space the size of a closet for indeterminate amounts of time, causing D.P. to become so fearful that he routinely urinated and defecated on himself. I disagree with the majority’s characterization of Coy’s conduct as part of an “educational strategy,” the resolution of which would require exhaustion under the IDEA. I respectfully dissent.

Viewing the facts as we must, in the light most favorable to the Paynes, it is clear that Ms. Coy’s misuse of the isolation room serves no legitimate educational purpose, is prohibited by state administrative regulations, and was imposed as punishment. ... As in Witte, D.P. was subjected to mistreatment that was part of no IEP and “served no legitimate educational purpose.” 197 F.3d at 1273. While D.P.’s proposed “behavior intervention plan” included “containment in [a] safe room,” it did not authorize the misuse at issue here.