Northern Virginia Personal Injury Lawyer Blog : Northern Virginia Injury Lawyer & Attorney : Brien Roche Law Firm : Medical Malpractice, Product Liability, Car Accidents : Washington DC, North Virginia, Maryland

College fraternities often impose strenuous requirements on new pledges to instill a sense of brotherhood. In the case of a University of Texas fraternity, however, the ideal of brotherhood was shattered when, following weeks of hazing, Phanta “Jack” Phoummarath was left to die of alcohol poisoning at a pledge initiation party.

During his second week at the university, Jack, 18, pledged to the Zeta chapter of Lambda Phi Epsilon fraternity. Jack and six other pledges underwent a rigorous first-semester pledge process, culminating on the first weekend of December, dubbed “Hell Weekend.” The pledges were confined for the weekend to a guarded, isolated room in the fraternity house, where they were required to perform intense calisthenics and other demeaning activities, wearing only boxers and T-shirts. A single trash can was placed in the center of the room for bodily waste and vomit. One pledge collapsed and was dragged to the side of the room.

The following weekend, the pledges participated in a “crossing over” ceremony, in which they each lit a candle and said an oath to the fraternity. A full liter of rum was then passed among the pledges, who drank until the bottle was empty. Following this initiation ceremony, the fraternity held a party, which commenced with other school organizations presenting the pledges with gifts of alcohol. One of the pledges later explained that they finished some of the bottles because it would have been disrespectful not to.

Later that night, Jack passed out and was dragged to the small garage apartment behind the fraternity house. There, other fraternity members and alumni wrote obscene messages on him with permanent black marker—including on his teeth, the insides of his ears, and the bottoms of his feet. Jack did not respond or resist and was left alone overnight.

The next day, Jack lay unconscious on the bed while other fraternity members sat nearby, eating and watching a basketball game. Around 2:00 p.m., one of the members realized that Jack was not breathing and called paramedics, who arrived to find Jack dead of alcohol poisoning. His blood alcohol level was later determined to be .5, six times the legal limit. He is survived by his parents and four adult siblings.

The attorneys faced a considerable challenge in proving these allegations. Within days of Jack’s death, the fraternity chapter’s president called an emergency meeting to declare that all photographs and videos of the party should be destroyed. “What really stood out in this case was the concerted effort by the fraternity and its members to let as little evidence out as possible”, says Sorrels.

To further complicate matters, over 30 students who they deposed were present at the initiation party. The sheer volume of depositions made it hard to keep track of what had happened that night. Many of the students could not remember details of the party or the names of the individual participants. Fortunately, the Phoummaraths’ attorneys were able to find the evidence they sought on the Internet, through social networking Web sites where photographs and videos of the party had been posted.
Counsel used the photos and video to counter defendants’ contention that Jack contributed to his own death by voluntarily consuming the alcohol. “We wanted to emphasize the power of peer pressure,” explains Garza. “Drinking until you pass out was part of the culture for this fraternity; they behaved like they were bulletproof.”

The parties settled during mediation for $4.2 million. Forty-one individuals and five Greek organizations contributed to the settlement, and several of the individual defendants participated in an educational video produced by counsel about binge drinking and hazing. Three fraternity chapter leaders are currently on probation on criminal charges of hazing. “It appeared both the civil and criminal defense lawyers were sympathetic to the issue, and made a good effort to convince the boys to cooperate in making the video as part of the plea bargain,” says Sorrels. “They knew that some lives could be saved.” The Zeta chapter of Lambda Phi Epsilon was ordered to forfeit its charter until 2011 and pay a $5,000.00 fine as a result of the criminal investigation.

Jack’s parents are directing a portion of the proceeds from the settlement toward the creation of an endowment to provide scholarships and promote alcohol awareness, as well as distribution of the anti-hazing video, titled “Enough is Enough,” to universities and organizations in all 50 states.

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STUDENT RAPED, KILLED IN DORM: FAILURE TO TIMELY NOTIFY OF NATURE OF DEATH; INADEQUATE SECURITY; EMOTIONAL DISTRESS; SETTLEMENT

Doe, 22, was raped and killed in a dorm room at the university she attended. When school officials first notified her parents, they told them the death seemed to be accidental even though the circumstances—she was found half nude with bruising and a pillow covering her face—indicated there had been foul play. Neither Doe’s parents nor the campus community was notified the death was a homicide until 10 weeks after she died. The university was fined $357,000 by the federal government for its failure to timely notify. Doe’s parents suffered severe emotional distress when the circumstances were finally revealed to them.

Doe’s parents, on behalf of her estate, claimed the university violated federal law by not immediately notifying the community of the nature of the crime. Doe’s parents also claimed the university failed to have adequate security, as there had been an increase in crime on campus in the two years before Doe’s death, but the school did not address the problem.

The parties settled for $2.5 million before suit was filed, paid by the university’s insurer.

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EXCULPATORY CLAUSE IN LEASE ABSOLVING LANDLORD OF LIABILITY FOR ANY OCCURRENCE ON RENTAL PROPERTY IS OVERLY BROAD, UNENFORCEABLE.

The Supreme Court of Idaho held that exculpatory clause in a lease that absolves a landlord of liability for any occurrence on the rental premises is overly broad and unenforceable.

Here, Jesse sued the owner of her apartment complex for failure to maintain the premises after she fell into a sinkhole in a planting area on the property. A trial court granted defendant summary judgment, finding that an exculpatory clause in plaintiff’s lease immunized him from liability.

Reversing, the state high court first reviewed a landlord’s common-law duties to a tenant as well as those under the state’s implied warranty of habitability law, Idaho Code Ann. §6-320. A landlord must exercise reasonable care to protect a tenant, and this includes the duty to maintain the premises in a condition not hazardous to the tenant’s health or safety, the court said. Noting that a landlord has the freedom to contract away certain duties and liabilities, the court pointed out, however, that such exculpatory clauses must “speak clearly and directly” to the injury-causing conduct.

There are two public policy exceptions to this rule exempting a party from liability for negligence, the court said. The first is when one of the parties is at an obvious disadvantage in bargaining power, and the second is when a public duty is involved. When the state legislature passed §6-320, it established such a public duty of landlords to maintain their premises—areas covered by a lease—in nonhazardous conditions. The lease at issue here does not cover the planting area where plaintiff fell, and public policy does not require areas not necessary for habitation to be subject to the same nonhazardous conditions requirements, the court said. Thus, the only question is whether the exculpatory clause is enforceable as written.

Looking to the language of the clause, which states that a landlord is not liable for any occurrence anywhere on the property, the court found it to be too broad because it does not speak “clearly and directly” to what conduct it immunizes.

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In the chapter on tort law, strict liability and vicarious liability are discussed. To some extent, those concepts are also recognized in criminal law. Strict liability arises when a conviction can be obtained merely upon proof that the defendant perpetrated an act forbidden by statute. A common type of strict liability offense is a traffic violation. If you run a stop sign, it makes no difference what your intent was. The mere act of running the stop sign makes you guilty of a violation.

Vicarious liability can arise in the criminal context when the conduct of another person can be attributed to you.

Example: If Debbie runs a restaurant and an employee of hers sells alcohol to a minor, then she may be liable under the local liquor laws.

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An essential element of a criminal offense is what is known as mens rea or intent. Different crimes may require different levels of intent. There are a variety of different ways that the courts have addressed these levels of intent. Two common distinctions, though somewhat confusing, are specific intent and general intent. A specific intent crime is one that calls for a particular state of mind in order to satisfy the elements of that offense.

Different crimes may require different levels of intent.

For instance, in first degree murder there must be premeditation—a specific intent to kill. In second degree murder, however, there need not be a specific intent to kill. There may simply be a general intent. If a person fires a gun into a crowd of strangers, with no intent to kill anyone, he or she could be guilty of second degree murder for acting recklessly.

Another aspect of intent is what is referred to as transferred intent. Transferred intent arises when a person intends to harm one victim but in fact harms another.

Example: If Bobby throws a rock at you and rather than hitting you, hits your next door neighbor, he may still be guilty of the crime of assault and battery even though he did not intend to hit your neighbor. His intent is deemed to be transferred from you to the neighbor.

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There also several crimes that are classified as crimes against property. Larceny is a property crime that involves the taking and carrying away of the valuable personal property of another with the intent to permanently deprive the person of that property. Larceny differs from robbery in that the property is not under the immediate control of the victim.

Example: If Barbara walks into a department store and picks up a coat off the rack and walks out the door with the intent of not paying for the coat, then she has committed larceny. If, on the other hand, she snatches the coat out of Sally’s hands on the street and runs off with it, she has committed a robbery.

Embezzlement is a property crime that is defined as the fraudulent conversion of the property of another by a person who has lawful possession of the property. If an employee removes money from the cash drawer and converts that money to his or her own personal use, then that person has committed embezzlement. Embezzlement normally involves someone who is in a position of trust and has access to the money or property of another.

False pretenses is also a property crime. False pretenses is defined as obtaining title to property by knowingly or recklessly making a false representation of a presently existing fact of monetary significance that is intended to and does defraud the victim. False pretenses is very much like the civil claim of fraud.

Forgery is another property crime. The most common instruments involved in forgery are checks. If you have insufficient funds in your banking account and write a check on that bank account, it is not forgery. The check is genuine. Forgery is the false making or altering of a legally significant instrument (for instance, a check) with the intent to defraud.

Uttering is related to forgery. Uttering consists of negotiating or attempting to negotiate an instrument that is known to be false. This is very similar to simply passing a bad check. If you write a check on your own account when you know that there are not sufficient funds in the account, that, however, is not uttering but simply passing a bad check. The term uttering comes from the fact that words are uttered in presenting that document for negotiation.

Receiving stolen goods is another property crime. To be guilty of receiving stolen goods, the receiver must know or believe the goods were stolen.

Extortion is a property crime that involves making threats for the purpose of obtaining money or property. If someone threatens to expose you as a philanderer unless you give him or her a thousand dollars, that may be extortion.

Burglary is another property crime. Burglary is breaking and entering the structure of another with the intent of committing a crime. Normally the crime that is intended to be committed is theft or larceny—removing something from the premises.

There are a multitude of other property crimes.

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Murder is the most significant crime against a person. Other crimes against a person are such crimes as battery, assault, mayhem, forcible rape, kidnapping, and robbery. Kidnapping is the unlawful carrying away of a person typically for purposes of obtaining a ransom. Robbery is the theft of property from the control of another. It is to be distinguished from burglary, which involves an unlawful entry into a premises for the purpose of obtaining property or committing some other crime. Rape is forcible sexual intercourse with another.

In addition to these personal crimes, there are a number of socalled victimless crimes. Some people take issue with the use of the term victimless on the notion that all crimes involve a victim, whether it be the perpetrator or someone else. The crimes of prostitution, drug abuse, and obscenity are sometimes called victimless crimes.
 

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At the heart of mystery novels is homicide, sometimes referred to as murder. There are different degrees of murder. The premeditated, willful, and deliberate killing of another is murder one or capital murder.

In most jurisdictions, the person who kills while attempting to inflict serious bodily injury on another has shown sufficient malice to be guilty of murder. In those jurisdictions where murder is divided into different degrees, this type of murder is generally referred to as murder in the second degree. What principally distinguishes murder in the first degree from murder in the second degree is the premeditation that is part of the murder one offense.

Example: If Tony sets out to kill you, and then in fact does kill you (still with the intent to kill you), then that constitutes murder in the first degree. If, on the other hand, Tony kills you in the heat of an argument and there is no element of premeditation, then that may qualify as murder in the second degree. If Tony is simply negligent and as a result of that negligence you are killed, it may be negligent homicide.

Felony murder arises where any death results during the commission of a felony. A felony is a crime for which a person can be imprisoned for more than a year. A misdemeanor is a crime for which a person can be imprisoned for up to a year. Many jurisdictions make distinctions as to whether felony murder will be murder one or murder two depending upon the type of felony that is being committed.

A rule that applies in many jurisdictions is the so-called year and a day rule. Under this rule, a death cannot be attributed to the defendant’s wrongful conduct unless the death occurs within a year and a day of that conduct. So if the person died after a year and a day of the wrongful conduct, then the defendant could not be charged with murder.
 

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The distinguishing feature of criminal law is the element of punishment. The purpose of criminal law is to punish wrongdoers. If someone is accused of a crime and subsequently convicted of that crime, then they are to be punished. That is dramatically different than the purpose of civil law. Generally, civil law is intended to compensate someone for an injury suffered or to undo a wrong that has been committed. In the field of criminal law, the victim is not necessarily compensated, but the perpetrator is punished. In the eyes of the criminal justice system, the purpose of that punishment is to help reform the perpetrator; to restrain future misconduct by that perpetrator; to create a system of deterrents to other potential perpetrators; and, finally, to obtain retribution for the crime that has been committed.

Although most criminal prosecutions are initiated against individuals, there are certain types of crimes for which corporate entities may be responsible. Those crimes fall under the category of financial crimes—fraud and other types of financial transactions.

The ultimate punishment allowed in our criminal justice system is that of capital punishment. That form of punishment is reserved for the most heinous crimes.

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The procedure by which a criminal case is handled in the federal court is not dramatically different than that described above for the state courts. Within the federal court system, there are a specific set of rules called the Federal Rules of Criminal Procedure that govern the conduct of a criminal case. Within the federal system, the law enforcement agency initiating the prosecution is a federal law enforcement agency such as the F.B.I., Secret Service, or other federal agency rather than being a local police department. Cases in federal court will be prosecuted by the U.S. Attorney’s office that operates within that federal district. Crimes that are committed within that federal district will be tried in the U.S. District Court that has jurisdiction for that federal district, and will be subject to appeal to the Circuit Court of Appeals that covers that federal district.

One of the distinguishing features of the federal courts is that they are courts of limited jurisdiction. However, Congress over the last several years has enacted federal criminal statutes dealing with such things as carjacking and nonpayment of child support. Those traditionally have been offenses that would have been governed exclusively by state law and prosecuted exclusively in state court. Because Congress has passed federal legislation dealing with those issues, they may now also be prosecuted in federal court. The expanding criminal jurisdiction of the federal courts has been slow moving but fairly steady over the last several years. Our founding fathers would probably say that this ever expanding scope of federal legislation is contrary to their intent.

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After sentencing and after all appeals have been exhausted, a criminal defendant may pursue another avenue in order to have his or her case reviewed. That avenue is what is referred to as a habeas corpus petition. The term habeas corpus literally means “you have the body.” A habeas corpus petition is one requesting that the court compel the government to justify or explain what may appear to be some irregularity in the prosecution of that defendant. That is, a defendant who has been tried in state court and found guilty may appeal that conviction up through the state court system, through the intermediate court of appeals, if one exists in that state, and then to the high court of that state.

After having exhausted those appeals, he or she may file a petition for habeas corpus in federal court requesting that the federal judge direct the state authorities to show why this defendant should not be released from incarceration because of what may be deemed to be some irregularity in that state court prosecution. Although habeas corpus petitions were much more common years ago, the courts more recently have somewhat restricted the rights of defendants to pursue that type of relief.

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The double jeopardy clause of the Fifth Amendment provides that no person shall be tried twice for the same offense. Jeopardy is deemed to attach in jury trials once the jury is impaneled and sworn. The double jeopardy prohibition, however, is somewhat flexible. That is, if a mistrial is declared before a verdict is reached due to the inability of a jury to reach a unanimous verdict or for some other reason other than misconduct on the part of the prosecution, then a new trial would not be deemed to be a violation of the double jeopardy clause. Double jeopardy also only applies to the governmental entity who is bringing the charge. 
 

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After a sentence has been imposed, the defendant has the right to pursue an appeal. All states now provide for appellate review. The availability of that appellate review cannot be conditioned upon the convicted defendant’s financial status. If a trial transcript of the proceedings is required in order to pursue an appeal, then the government must provide that transcript for the indigent defendant. Likewise, the state must provide counsel for an appeal to an indigent defendant.

Once a defendant has been found not guilty, the government has no right to appeal that finding.

Once a defendant has been found not guilty, the government has no right to appeal that finding. The logic of this rule is that to allow appeals by the government would essentially allow the government to potentially utilize its vast resources to wear down the defendant.
 

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The final stage of a criminal case in the trial court is sentencing. The federal judiciary as well as many states now operate under sentencing guidelines. These sentencing guidelines are very detailed and very complex formulas that govern the parameters of a sentence that a judge can impose on a defendant for a specific crime. Within those sentencing guidelines there are a variety of factors that may be considered by the court including (but not limited to):

* the defendant’s prior criminal history;
* the defendant’s cooperation with the government in the investigation of other related crimes;
* the defendant’s feelings of remorse after conviction; and,
* the nature and seriousness of the offense itself.

The purpose of these sentencing guidelines is to eliminate the significant disparity that can exist from one judge to another in sentences for the same crime.

The judiciary, to some extent, has been rather critical of sentencing guidelines because they significantly restrict a judge’s discretion. The guidelines, however, do allow for exceptional circumstances when the sentence imposed may vary from what the guidelines call for. The purpose of the guidelines is admirable—to eliminate unfairness or gross disparity in the way that defendants are treated for similar crimes. But like any guidelines, they are not perfect.
 

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