Saturday, January 28, 2012

Care Academy Strip Search Case Decision Overturned!!! Let's Get Ready for Trial!

I begin writing this with an initial hesitation.  In the back of my mind, the words, “Watch what you say” resonate with such magnitude that it really isn’t in the back of my mind anymore.  More like blaring in the front of my mind.  This initial hesitation is followed by a wave of guilt – because I write this for you – and it isn’t really fair for me to act like I’m going to give you every bit of raw truth about the judiciary and the law and then hold back on you.  So when you get to the point reading this, where you think – “That’s not what he really wants to say!”  Feel free to throw your hands in the air and yell obscenities.  Do it.  And judge me.  Some say “Judge me not, lest ye be judged.”  But I don’t.  Seriously, do it – it will make you feel better.  About yourself, about the fact that people have judged you in the past, etc.  So, go ahead.

The most honest I can be right now is to tell you that I am not going to tell you 100% of the truth in this blog post.  It will be the truth;* it will be nothing but the truth.  But it won’t be the WHOLE truth.

On with it.

So, yesterday I got an Opinion back from the Court of Appeals.  It is a favorable written Opinion about the Care Academy (hereinafter, at times when I get lazy, “CA”) strip search case.  Before I get too ahead of myself, let me give you a little bit of foundation about the Care Academy strip search case.

I have the honor and privilege of representing a boy (hereinafter, “SBJ”) who attended the Care Academy, a private school in Washington County.  His attendance at the CA was short lived.  The Care Academy was a school for children with behavioral problems, and special needs.  My client was not court ordered to be at the CA, and he was not a resident student.  He rode the bus to and from school.  Whilst at school one day, SBJ was called down to the “Ranger Room” with a group of 10-12 other boys, ranging in age from appx 12-14 years of age.  When the boys got to the room, several employees at the CA brought them in, 3 by 3, to strip search the children, fully nude, in front of each other.

Here is the Care Academy’s reasoning for the search (in terms expressed as objectively as my biased mind can express them):  One night before the search, a CA employee found a broken CD player.  We don’t know who found it.  We don’t know exactly where it was found, and we don’t have any record of anyone finding it.  But we promise that someone found a broken CD player.  Since a broken CD player was found, at night, in the residential student area, we decided that one of the students might have dismantled the CD player in order to make a homemade tattoo gun.  And the child who might have made a tattoo gun might be hiding the bulky, sharp, dangerous instrument in his anus.  So we strip searched all of them.  In front of other nude children.  And made them bend over, hold their genitals and cough.  Also, we gave them the "option" of participating in the strip search, so it was consensual.

The CA is unrepentant.

Our version of the story is this:  Who cares whether anyone found a CD player.  It is asinine to believe that grown adults actually came to the conclusion that based on a broken CD player and no other evidence of dangerous contraband, that a child may be hiding dangerous contraband in their anus.  And children cannot CONSENT to a strip search.  They are children.  You don't even let children give their own consent to taking  an aspirin in school, much less to a strip search.  The search was unreasonable, and even if someone believes that it was reasonable, they have to agree that the search could have been done in a less intrusive and less embarrassing manner.  At the very least, you can strip search them individually.  Failure to do so is Negligence.

I had a difference of opinion with the Trial Judge.  Judge Allen Ray Bertram, a Washington Circuit Court Judge, granted Summary Judgment AGAINST my client.  In order to do that, a judge must find that no genuine issues of material fact exist.  Basically it means that the judge felt like the facts were not in dispute, and that there was no way my client could possibly win at Jury Trial.  I took exception to his ruling.
Are your hands up yet?  Which obscenity did you choose?

Because of the ruling against us, I appealed the decision of the honorable Allen Ray Bertram to the Court of Appeals.  In my career as an attorney – not that I’m “old hat” at this job by any means – I have appealed about 25 cases.  I say this without actually looking back through my cases, and simply guessing off the top of my head.  Out of the 25 cases, I have asked for oral arguments on just about every case.  That means I request that the Court of Appeals take the time to listen to me rant about the case for 15 minutes (exactly) instead of just relying on my brief.  The Court of Appeals has granted my request for oral arguments precisely two (2) times.  The first was the Dr. Hall murder case (turned Man2 case), and the second was the Care Academy strip search case.

The Court of Appeals seemed to have the same difference of opinion with the Trial Judge.  They reversed and remanded the case back to Washington Circuit Court.  So now, at least my client looks like he will finally get his day in Court.  About 5 years after the strip search occurred.  Even in the judicial system, where the wheels of justice turn slowly, 5 years is kind of a long time. 

Throw your hands in the ay-er.  If yous a true play-er.  I don’t need to ask about the obscenities.  I know which one you chose.

The decision handed down by the Court of Appeals is cause for celebration.  It is momentous.  The Court of Appeals really stepped up to the plate and righted something that had been wronged.  But let’s not pop bottles just yet.  There is a lot of work to do on this case, and I’m foaming at the mouth just thinking about walking up to talk to the jury in this case.  What a beautiful day that will be.

On a side note – I am way too personally invested in this case.  Emotional attachment to a case is never a great thing.  More on that, later.

I have work to do.





*Appropriate use of a semi-colon like a Boss.

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