Legal Briefs

Gay Murder Convict Appeal Scotched

A gay man convicted of the 1981 murder of another gay man suffered a reversal of a federal court victory he had earlier won from U.S. District Court Judge Michael A. Ponsor, when a 1st Circuit of Appeals panel unanimously ruled on June 27 that Posner had mischaracterized the Massachusetts Supreme Judicial Court’s review of the case.

Wayne Healy, who was 29 at the time, was convicted of the brutal stabbing murder of Richard F. Chalue, his former brother-in-law, in Chalue’s home. Healy, now serving a life sentence, claims that newly discovered evidence was withheld by the prosecution and could have changed the outcome of his trial. During the trial, he argues, prosecutors emphasized his sexual orientation and that of the victim, and they theorized that the murder occurred during sexual activity.

Healy petitioned for a new trial in 1999, relying on a pathologist’s notes from the autopsy report—which had not been released in full to the defense prior to or during the trial—showing no physical evidence of sexual activity nor any sperm in the victim’s mouth or anus. The Massachusetts courts rejected the motion, the Supreme Judicial Court pointing out that sexual intimacy was not necessarily ruled out by lack of evidence of trauma to the genitals or of sperm.

Healy then filed a habeas corpus petition, a procedural device for getting a federal court to review alleged constitutional errors in state criminal prosecutions. The federal district judge bought Healy’s argument that the Massachusetts high court had failed to grasp the centrality of sexual intercourse to the prosecution’s case, but the 1st Circuit panel, in an opinion by Judge Sandra L. Lynch, disagreed, finding that the Massachusetts courts had properly reviewed and taken note of the entire record, providing a reasoned explanation why they did not consider that the additional evidence would have necessarily helped Healy’s defense.

There was no direct evidence to convict Healy, but the state courts found sufficient circumstantial proof to uphold the jury verdict.

Gay & Lesbian Advocates & Defenders, the Boston-based gay public interest law firm, filed an amicus brief in the case, raising concerns about the possible role homophobia played in Healy’s conviction in light of the prosecution’s strategy. But the 1st Circuit panel, while acknowledging the problems of homophobic bias GLAD raised, found little relevance to the specific issue raised by the habeas petition.

“The [Supreme Judicial Court of Massachusetts] reasonably concluded that the suppressed evidence neither confirmed nor excluded a sexual encounter, and that given this limitation on the probative value of the evidence, its exclusion from the trial did not undermine that court’s confidence in the jury verdict,” the appellate panel found.

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When Is A Handbag Suspicious?

Reversing an evidence suppression order issued by New York County Supreme Court Justice James A. Yates, a unanimous panel of the Appellate Division in Manhattan ruled on June 20 that plainclothes police had sufficient basis to question and search a man holding a handbag on Second Avenue at 28th Street.

Yates, finding that the man, Stephen Lomiller, was “unquestionably” a “person of trans-gender appearance and display,” ordered suppression of the credit cards found in Lomiller’s possession as evidence against him in a theft prosecution.

“Simple possession of a purse by a person with, or without, Mr. Lomiller’s appearance would not justify approaching with gun drawn, placing the Defendant against a wall, seizing the purse, and focused interrogation,” Yates had written in his unpublished ruling of August 23, 2004, which was appealed by Manhattan District Attorney Robert Morgenthau.

Yates decided to give greater weight to Lomiller’s testimony about the circumstances of the search than to that of Detective Daniel Danaher, who claimed he saw a disheveled looking, unshaven man rifling through a handbag. In the paperwork accompanying the search and arrest, Danaher described the suspect as a “female impersonator,” but insisted Lomiller “didn’t look much like a female.”

The Appellate Division court, disagreeing with Yates based on the booking photograph and Danaher’s recorded testimony, emphasized the detective’s seniority and experience of more than a thousand theft arrests, as well as the conflicting statements given by Lomiller at various stages in the process. The court found “the stop of defendant, and his subsequent arrest, to have been lawful.”

The Appellate Division ruling stated that “a founded suspicion that criminal activity is afoot” is the legal standard required for a stop and search. The question whether Lomiller was a person “of transgender appearance” who should not be subjected to search when carrying or looking through a handbag on the street or a scruffy-looking man whose appearance and actions would justifiably give rise to suspicion by an experienced police officer may be a tough judgment call. It is, however, unusual for an appellate court to substitute its judgment on such a question for that of a trial judge who has seen and heard the participants.

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Alienation of Affections Is Not Medical Malpractice

What is a man to do when his wife falls in love and moves out to live with the female hospice worker assigned to care for his mother-in-law? Why, sue for alienation of affections, of course.

The problem is that Washington State, in common with almost all the other states, long ago abolished the legal claim of alienation of affections. So Douglas Prestrud’s lawyer came up with an alternative theory—sue for medical malpractice.

To no avail, however, as the Washington Superior Court Judge Gary Tabor granted a motion to dismiss filed by the hospice worker, Dr. Vivian Blanco, and the hospice, Group Health Cooperative of Puget Sound. The court of appeals approved Tabor’s ruling in an unpublished opinion issued on June 14.

Prestrud’s lawsuit claimed that Blanco was in his home to provide care during the final six months of the life of his mother-in-law, Yvonne Griffin. Prestrud argued that Blanco violated her duty of care as a physician by becoming emotionally involved with him and his wife. He claimed that Blanco had “little or no experience at providing in-home or hospice care,” and that the hospice supervisors knew that she was a “practicing lesbian,” which he characterized as “an increased risk factor for transgression and personality disorders.”

Prestrud’s complaint intimated that Blanco pushed for sexual activity with both him and his wife, that “the idea of a ménage a trois was in the air,” and that “soon after sexualizing her relationships, Dr. Blanco ceased showing concern for my welfare.”

Unfortunately for Prestrud, the courts were unwilling to treat this as a medical malpractice case. He was not a patient of Blanco, and although she provided hospice service for the entire family, caregivers as well as patient, the court found that Prestrud would not have a malpractice claim in the absence of a clear allegation that Blanco engaged in a sexual relationship with him.

Presumably, his wife would have the malpractice claim, but she’s not complaining.

The court rejected Prestrud’s claims that the hospice itself should be liable to him under a theory of negligent supervision of Blanco.

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