The McTexLaw Email Alert for October 15, 2002
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MARYLAND BRAIN SURGEON CLAIMS CELL PHONE CAUSED BRAIN TUMOR Talk about shooting yourself in the head. Dr. Christopher Newman, a neurologist, sued Motorola, and several major cell phone carriers, in federal court for $800 million, claiming the Motorola analog cell phone he used from 1992 to 1998 caused his brain tumor. Cell phones are used by 97 million Americans. The new phones are digital, emitting radiation in pulses, whereas the older version analog phones emit continuous waves. My cell phone does both. If it can't make the digital signal work, it switches to analog. It seems that some outlying areas don't have digital capabilities yet on the towers. There has been some scientific findings over the last several years that radiation from analog cell phones may cause cancer. But there are many more studies that show no relationship between tumors and cell phones. Three major studies published since December of 2000, including one by the National Cancer Institute, have found no harmful health effects from cell phones. Based on this evidence, U. S. District Judge Catherine Blake dismissed Dr. Newman's suit without even allowing it to go to a jury. And so the entire cell phone industry breathed a big sigh of relief. And the rest of us are left to ponder the simple irony of a neurologist-a brain surgeon-suing a cell phone company for causing his brain tumor. But I suppose even the well educated, and well off, deserve a chance to play the lawsuit lottery. GET OUT THE VOTE The American Bar Association has joined with Youth E-Vote, a 501(c)(3) charitable organization, asking all Americans to send an unmistakable message to those who want to attack our very core values and right to exist, by voting in the upcoming election. Heightened participation in one of the most basic elements of a free society, the election process itself, can serve to reinvigorate our democracy. In the upcoming weeks you may run into high school students participating in this joint project, known as "Freedom's Answer," which is a non-profit campaign led by high school students this fall, to achieve the largest ever voter turnout in a non-presidential year. We should broadcast the message by action alone that America's freedoms are alive and well. This is also a way to honor America's servicemen and women who are risking their lives everyday for our freedom, chief among them our right to vote. Freedom's Answer is a non-partisan group, and in fact both the Republican and Democratic party chairmen are members of the Freedom's Answer Advisory Council. (Interesting side note-the American Bar Association Section of Dispute Resolution has agreed to help ensure non-partisan implementation of the project by recruiting volunteer mediators to help resolve any disputes that arise.) Please consider the candidates, learn about their stands on the issues and which issues are important to them, and when the time comes, vote. This is indeed the very fabric of our freedom. SOUTH DAKOTA FREEDOMS Yet another installment of "truth is stranger than fiction." John Denver sang about the Rocky Mountain highs in Colorado. Now, Bob Newland wants to write a new tune called "I'm free from the laws you don't like." It's called Amendment A and it's on the South Dakota ballot this November as a proposed constitutional amendment. Amendment A is the first initiative of its type to make it onto a ballot, and it works like this. In criminal cases, a defendant has the option to admit guilt, but then argue to the jury that he should be acquitted because the law, including sentencing, is unfair or draconian. It is designed, according to proponents, to fill a gap where certain prosecutions fit the letter of the law, but don't result in justice. And proponents have even made up an example: a nice, wonderful, loving couple is convicted of child pornography for taking photos of their toddler in the tub. Right. Newman, who is not a lawyer, is the Libertarian candidate for attorney general. He wants this to operate as "instant and constant feedback to the legislature on the laws they create." I suppose this means that, if juries reject a certain law repeatedly, then the legislature should formally repeal that law. First, did this guy ever take and pass Civics 101? Whatever happened to the three co-equal branches of government concept? How in the world can a panel of unelected jurors basically sit as the legislature, passing and repealing statutes at their whim? Second, as several people have pointed out on this South Dakota matter, "jury nullification" (that's the fancy term lawyers use meaning "the jury's not following the law") supposedly already exists within the confines of the secret jury deliberations. In other words, it is possible, and some think probable, that a jury can determine, during their secret deliberations, what they feel is the appropriate ending to the case, taking into account whatever they want, and then make whatever decision they need to make in order to "cause" that appropriate result. It already happens. Mr. Newman's proposal simply moves this process out of the jury room into the courtroom for all to see, and for the lawyers to participate in. I'm not sure I fully subscribe to that theory. I've participated in mock jury trials and watched the mock juries deliberate. Most of what I have ever seen, or heard about from jurors whether live or on TV, is how they tried to follow the law and understand the case. Of course, I've also seen them be very mistaken on one or both, or decide to go beyond their proper role in our system of government...... In any event, Amendment A courts anarchy and tempts would-be criminals to set up their justification before committing the crime. In a civil society, we must have agreed upon and known rules, which must be followed by all. And so here's to the voters of South Dakota hopefully saying "Goodbye, Newman." REFERRAL NETWORKS Your new client referrals are a big part of our continued success, and the same is true about this newsletter. Please take a moment to think about friends and colleagues you know who might enjoy receiving our Email Alerts and forward this to them. Individual subscription information is below. 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