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Sunday, January 29, 2006

Three Lawyers For Haleigh's Life

Lawyers are not, as a profession, held in high esteem by the public. But the three lawyers who took Strickland's case pro bono did so, apparently, out of the feeling that something was wrong with the process. It now appears that they had quite a point. They say they were disturbed by the fact that DSS sought to remove both the ventilator and the feeding tube after just 9 days. They say they were disturbed by the fact that the two doctors whose testimony was presented to the juvenile court judge did not agree about whether the feeding tube should be removed. And as it turned out, these three lawyers are probably responsible for Haleigh's life, even though they did not succeed in winning their case before the Massachusetts Supreme Court, because they delayed and caused enough controversy to buy her time.

Their names are John J. Egan, John M. Thompson and Edward J. McDonough, Jr. McDonough appeared on "The Abrams Report" in December:
EDWARD MCDONOUGH, ATTORNEY: Well, Dan, actually, the appeal that we brought before the Supreme Judicial Court does not ask for the right to have him make the decisions. First of all, Dan, the question of the motive is a natural one to be asking. But really, it‘s kind of a convenient way of avoiding the real issue in this case.

Our firm is not handling the criminal case. We took this case pro-bono, and we took it because of the interest of the child. It‘s our view, and we argued to the court, that the hearing, which was held, which decided that Haleigh would die of starvation, was a one-sided hearing. It was not a fair hearing. And basically, we advanced three reasons.

The first one is, unlike the Terri Schiavo case, this is an 11-year-old child who never really had the opportunity to express her wishes as to what she would want to have done.

Secondly, this is not a decision made by the family. This is a decision made by the government. And, Dan, they made it after only after nine days. They relied on two doctors. One of the doctors said that it was not appropriate to remove the feeding tube.

And the third reason is that no one argued in favor of keeping the child alive. Justice Spina, at one point Tuesday, leaned over and he asked the attorney for the state, who at the hearing argued in favor of life? And it was clear that the answer was no. And, Dan, as any good trial lawyer will tell you, if you have no opposition, it‘s not a difficult case to win.
I think the facts that are now emerging considerably strengthen their point. See this article by Dean Barnett of SoxBlog for a good outline of events and the overall issues. The basic legal argument here is that sealing records, holding hearings with no public notice and not providing any independent spokesperson who had the right to seek consultation with additional doctors for Haleigh prevented a true legal review of her situation from happening.

As more information emerges, it does appear more and more likely that the conflict of interest that DSS had in the case did affect the proceedings. According to this article in The Republican, at least one statement filed with the MA Supreme Court by DSS was inaccurate:
A police report filed July 15, 2004, states police arrested Strickland that day for shoplifting at the Springfield Road Wal-Mart. Holli Strickland was in the store with Haleigh and her son, 1-year-old Cody Strickland.

The police report states that a store security worker watched Holli Strickland as she placed a bag of dog food, a container of cat litter and a baby gate into a shopping cart that Haleigh was pushing.

"They moved to a different part of the store, then Haleigh retrieved the car keys from Holli's purse while Holli watched," the report written by Westfield Police Officer Juanita M. Diaz states. "Holli said something to Haleigh, and Haleigh then left the store with the cart of unpaid for merchandise."
"While in the security office, Haleigh stated to security that she had done this before with baby formula. ... Wal-Mart security stated that numerous employees notified security of Holli Strickland bragging about shoplifting with her daughter," the report states.
Strickland got probation for the incident on May 4, 2005. And what did the MA Supreme Court hear of this?
The Supreme Judicial Court decision states DSS opened a child abuse-neglect investigation on the day of Strickland's shoplifting arrest. But the DSS ultimately blamed the shoplifting on Haleigh.

"Mother inadequately supervised (Haleigh) in store despite prior history of (Haleigh) stealing in a store," the Supreme Judicial Court decision stated in referring to DSS reports.
One would think that such an incident would have caused DSS to take a second look at the multiple reports of possible abuse and reassess the mother's truthfulness. Previously DSS has claimed that Holli Strickland was an incredibly good liar who convinced DSS that Haleigh was a self-injurer. Surely such a discrepancy between the police report, legal conviction and DSS records has at least potential significance? There are other legal factors here. To put if bluntly, if Haleigh survived there was potential legal liability for DSS. If she ever passes into the custody of an independent person, that person would be able to file a tort claim against DSS for misconduct and damages. Such actions are incredibly hard to win, and rightly so (the best child-protection agencies in the world can't ensure a good outcome in all cases), but factors such as the above seem to indicate that this would be one of the rare, rare cases in which such a claim might have a decent chance at success.

If it doesn't have any validity, this sort of legal process has such a suspicious appearance that DSS and those who worked on Haleigh's case may have been exposed to unnecessary legal jeopardy. Haleigh is now in a rehabilation hospital after Spence, the head of DSS, visited her and observed that she was able to pick up two toys on command and followed him with her eyes. The DNR order has been lifted and she is being fed. Strictly speaking, however, DSS still has the legal right to remove her feeding tube and dehydrate her to death. Legally, they have custody and legally they have the right to do it.

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