Federal administrative health courts are unconstitutional: a reply to Elliott, Narayan, and Nasmith

This commentary responds to the essay by Elliott, Narayan, and Nasmith wherein they propose that the federal government may preclude plaintiffs with medically inflicted injuries from bringing state common-law tort claims against those whose negligence caused their injury. The administrative system championed by Elliott and other proponents is a radical departure from the current civil justice system. Specifically, we argue that the administrative health courts, as proposed, violate the commerce clause, the spending clause, the Seventh Amendment, and separation of powers principles. The commentary concludes that such a system is fatally flawed and cannot withstand constitutional scrutiny. Moreover, we are not persuaded that Congress will be able to ground such a radical constitutional restructuring in any sound public policy, as the majority of studies do not evidence Elliott, Narayan, and Nasmith's presumption that the civil justice system has failed in the medical malpractice context.     

Delayed death in sudden infant death syndrome: a San Diego SIDS/SUDC Research Project 15-year population-based report

A fraction of SIDS cases have death delayed by successful CPR, yet they have not been compared to SIDS cases which were found dead or not successfully resuscitated. Our aims were to: (1) determine the percent of SIDS cases in the San Diego SIDS Research Project database for whom death was delayed by CPR and subsequent life support; (2) compare demographics, circumstances of death and autopsy findings of delayed death SIDS cases (delayed SIDS) with those whose deaths were not delayed (non-delayed SIDS); (3) examine the evolution of pathologic changes in delayed SIDS as a function of survival interval. A retrospective 15-year population-based study of 454 infant deaths attributed to SIDS revealed 29 delayed SIDS cases (Group I) and 425 non-delayed SIDS cases (Group II). Group I cases were significantly older than Group II cases (mean age 132 days vs. 102 days and p<0.0001). Eighty-nine percent of the Group I cases were discovered between 08.00 and 19.59 h; none were found between 00.00 and 07.59 h, compared to 38% of the Group II cases. Group I infants were found significantly more often away from home (at daycare, or at the home of a relative, friend, or baby sitter) than Group II infants (45% vs. 25%, p<0.05). There were no differences between groups with regard to gender, gestational age, type of delivery, bed sharing, URI within 48 h of death, ALTEs, a history of referral to child protective services, body position when placed or found, or face position when found. Pathologic changes were semiquantitatively evaluated; findings were characteristic of anoxic-ischemic injury that generally became more severe with increasing survival intervals. Anoxic-ischemic brain injury was the immediate cause of death in all delayed SIDS cases. Aspiration of gastric contents was identified in Group I cases surviving less than 48 h and was the likely etiology of acute bronchopneumonia occurring in 83% of the Group I cases. We did not identify factors that would reliably predict which SIDS cases might be discovered soon enough to allow earlier and more effective CPR and survival without permanent brain injury.     

Chemical Enhancement Techniques of Bloodstain Patterns and DNA Recovery After Fire Exposure*

Abstract: It is common in forensic casework to encounter situations where the suspect has set a fire to cover up or destroy possible evidence. While bloodstain pattern interpretation, chemical enhancement of blood, and recovery of deoxyribonucleic acid (DNA) from bloodstains is well documented in the literature, very little information is known about the effects of heat or fire on these types of examinations. In this study, a variety of known types of bloodstain patterns were created in a four‐room structure containing typical household objects and furnishings. The structure was allowed to burn to flashover and then it was extinguished by firefighters using water. Once the structure cooled over night, the interior was examined using a bright light. The bloodstains were evaluated to see if the heat or fire had caused any changes to the patterns that would inhibit interpretation. Bloodstain patterns remained visible and intact inside the structure and on furnishings unless the surface that held the blood was totally burned away. Additionally, a variety of chemical techniques were utilized to better visualize the patterns and determine the possible presence of blood after the fire. The soot from the fire formed a physical barrier that initially interfered with chemical enhancement of blood. However, when the soot was removed using water or alcohol, the chemicals used, fluorescein, luminol, Bluestar^®, and Hemastix^®, performed adequately in most of the tests. Prior to DNA testing, the combined phenolphthalein/tetramethyl benzidine presumptive test for the presence of blood was conducted in the laboratory on samples recovered from the structure in an effort to assess the effectiveness of using this type of testing as a screening tool. Test results demonstrated that reliance on obtaining a positive presumptive result for blood before proceeding with DNA testing could result in the failure to obtain useful typing results. Finally, two DNA recovery methods (swabbing the stain plus cutting or scraping the stain) were attempted to evaluate their performance in recovering samples in an arson investigation. Recovery of DNA was more successful in some instances with the swabbing method, and in other instances with the cutting/scraping method. Therefore, it is recommended that both methods be used. For the most part, the recovered DNA seemed to be unaffected by the heat, until the temperature was 800°C or greater. At this temperature, no DNA profiles were obtained.     

DNA Preservation in Skeletal Elements from the World Trade Center Disaster: Recommendations for Mass Fatality Management*,†

Abstract: The World Trade Center (WTC) victim identification effort highlights taphonomic influences on the degradation of DNA from victims of mass fatality incidents. This study uses a subset of the WTC‐Human Remains Database to evaluate differential preservation of DNA by skeletal element. Recovery location, sex, and victim type (civilian, firefighter, or plane passenger) do not appear to influence DNA preservation. Results indicate that more intact elements, as well as elements encased in soft tissue, produced slightly higher identification rates than more fragmented remains. DNA identification rates by element type conform to previous findings, with higher rates generally found in denser, weight‐bearing bones. However, smaller bones including patellae, metatarsals, and foot phalanges yielded rates comparable to both femora and tibiae. These elements can be easily sampled with a disposable scalpel, and thus reduce potential DNA contamination. These findings have implications for DNA sampling guidelines in future mass fatality incidents.     

THE MEDIATOR'S ASSESSMENT OF SAFETY ISSUES AND CONCERNS (MASIC): A SCREENING INTERVIEW FOR INTIMATE PARTNER VIOLENCE AND ABUSE AVAILABLE IN THE PUBLIC DOMAIN

Screening for intimate partner violence and/or abuse (IPV/A) in family mediation is important, perhaps particularly among cases without attorney representation. While most mediators agree that it is ideal to consider IPV/A in case planning, there is less agreement regarding the need to universally and systematically screen for IPV/A among all cases. Such attitudes are of concern, given research in other fields (e.g., medicine, couples therapy) and our own research in a family mediation clinic, which documents that the lack of consistent and formal IPV/A assessment results in underdetection of IPV/A. While a variety of IPV/A screening measures exist, each has shortcomings. Thus, our research and clinical experience led us to develop a new IPV/A screening measure, the Mediator's Assessment of Safety Issues and Concerns (MASIC). We discuss features of the MASIC and provide the full measure in the Appendix. The MASIC is a behaviorally specific IPV/A screen that assesses various types of abuse (e.g., coercive control, stalking, physical violence) over the course of the relationship and in the past year. It is administered as an interview to build rapport and assesses lethality indicators and offers optional recommendations for procedural changes in mediation based on IPV/A. Although we have begun relevant research, it is important to note that the MASIC has not yet been validated. Nonetheless, we recommend the use of systematic IPV/A screens in family mediation and suggest that such measures may prove especially important in providing unrepresented parties a safe and appropriate environment for mediation.     

Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom

This article considers the role of emotion in the eighteenth-century courtroom. It discusses the work of judges and magistrates in constituting and upholding a ‘grand narrative’, which legitimized English criminal law. This grand narrative was inherently emotional, activating patriotism and love of justice, but also fear of punishment through the performance of ‘emotional labour’ from the judgment seat. However, while performing the majesty of the law, judges attempted to balance a number of complicating factors, such as the rise of sensibility, the role of the press, and their own emotions about criminal justice. The growing presence of professional counsel from the end of the century also complicated the emotional tenor of criminal trials. Moreover, the majesty of the law was undermined and even corrupted by the representation of trials and executions in the popular press. Far from viewing displays of emotion as inappropriate, it appears that many contemporaries held emotion to be an integral part of trial process, and of the majesty of the law.     

Problems and service needs among ex-offenders with HIV risk behaviors entering sober living recovery homes

There is currently a nationwide effort to decrease the number of persons who are incarcerated in jails and prisons. However, many ex-offenders on probation or parole do not have access to affordable housing and larger proportions have histories of HIV risk as well as substance abuse problems. In California, sober living houses (SLHs) are becoming an increasingly popular housing option for these individuals. Based largely on the principles of alcoholics anonymous, SLHs require abstinence from alcohol and drugs and provide peer support for recovery. The current study examined the types of problems experienced among 330 ex-offenders with lifetime risk for HIV during the six months prior to entering SLHs. Nearly three fourths (74%) of all ex-offenders entering the houses had at least one HIV risk. The importance of housing was evident in the finding that housing status and participants’ perceptions of their housing situation were associated with a variety of problem areas, including substance use, HIV risk, psychiatric severity, and legal problems. SLHs represent an important housing option for ex-offenders, but many residents may need additional services to address various problems.     

A mixed methods study of the mental health and criminal justice histories of missing persons

Approximately 35,000 people are reported missing each year in Australia; rates elsewhere are even higher, with a recent UK study suggesting that a person goes missing every 2 min. Missing persons place a significant burden on police services; it is interesting, therefore, that very little research attention has been paid to this topic. This mixed methods study aimed to address this significant gap by analysing the mental health and criminal justice histories of a sample of missing persons and comparing them to rates in the general community. The study found that both mental health and criminal justice histories were significantly overrepresented among missing persons compared to those in the general community, and that young people reported missing commonly displayed suicidal behaviour. Results highlight at risk groups and suggest that criminality is much more commonly implicated in missing person incidents than previously thought.