'Resolved from each and every legal consideration'

Submitted by Bill St. Clair on Mon, 28 May 2001 10:03:00 GMT

FROM MOUNTAIN MEDIA
FOR IMMEDIATE RELEASE DATED AUG. 13, 2000
THE LIBERTARIAN, By Vin Suprynowicz
'Resolved from each and every legal consideration'

As we might have anticipated, Clark County District Court Judge Nancy Saitta on Wednesday dismissed Russian immigrant Anya Shapiro Duke's civil suit against Las Vegas eye doctor Roger M. Simon of Retina Consultants of Nevada, over on South Maryland Parkway.

Plaintiff contends Dr. Simon and an associate misdiagnosed the minor eye problem with which she was referred to them nine years ago. She contends Dr. Simon performed an inappropriate surgery, causing her partial blindness. Over the years -- during which she and her husband (an army combat veteran and Green Beret) were drained to the tune of $100,000 in legal costs until Mrs. Duke was left to plead her case by herself last week (in English, which is neither her first nor second language) -- a string of local attorneys handled the matter in what might be called a less than exemplary manner, until one legal expert described her case as having been "stipulated away; the other side just papers you to death."

Wrapping up the somewhat bizarre proceedings, Judge Saitta ordered Mrs. Duke not to mention to Wednesday's jury the fact that she has been partially blinded, or much of anything else, restricting plaintiff's brief to the single question of whether the last remaining defendant had comported himself according to established standards of medical care.

Sort of like convening a hearing into whether the White Star Line failed to properly honor Frequent Sailor Vouchers for passengers aboard the Titanic.

"During my first five minutes of presentation, the jury had to come out twice," Mrs. Duke recounts. "The first time the judge sent them out of the room because she wanted to caution me and chew me out and you name it. The jury was seated at 8 o'clock, and by 9 o'clock it was all over."

Having allowed Mrs. Duke to deliver part of her prepared opening statement -- interrupted by the aforementioned pauses, during which Mrs. Duke was lectured by the judge not to mention anything that might actually indicate she had a cause for action -- Judge Saitta cheerfully invited defense attorney David Mortensen, of the politically well-connected law firm Alverson, Taylor, Mortensen, Nelson & Sanders, whether he'd like to move for dismissal.

Taking the hint, attorney Mortensen -- who until then had been making noises about seeking a mistrial -- moved to dismiss, and the judge did exactly that. No witnesses, no cross-examination, no arguments -- neat as you please.

"I'm sure you've figured out that something unusual has happened in this case and indeed it has," Judge Saitta explained to the puzzled jurors as she sent them on their way. "Many elements of this case during pre-trial procedures have been sort of taken out. ... The presentation by the plaintiff failed to get over the hurdle, shall we say. In this case a proper motion was made to dismiss. ..."

"With a motion for a mistrial, Mortensen could have asked for another jury," explains former Judge Don Chairez. "But now, with a motion to dismiss and a dismissal, there's no right for another trial.

"People's image of what the legal system is all about ... is very different from a lawyer's version. The question would be: Is it a judge's job to make sure that justice is done in their courtroom, or just to make sure that all the procedural technicalities are complied with? I personally believe it's the former," Chairez said.

I decided to call Judge Saitta and ask her the same question.

"Was justice done in your courtroom Wednesday?"

"Yes. I'm quite comfortable that we did as best we could given the facts and the law."

But wouldn't it have benefitted everyone -- including the defendant -- for the full claims of the plaintiff to be heard, and then for the doctor to be given the opportunity to explain in court what happened, why he believes he did nothing wrong?

"Often times, simply believing that you have a case doesn't make it a case in the true sense of the legal world," Judge Saitta responded.

Sure, judges dismiss frivolous complaints all the time. But this case was not dismissed; it was allowed to go to trial, or at least some rude and unconvincing simulacrum of a trial.

"I didn't come anywhere close to suggesting it was a frivolous claim. I can only evaluate a case based on the evidence that is presented to me."

"But you implied she had no case. Do you believe this woman is some crank, who spent the past nine years just pretending that someone blinded her?"

"I wouldn't even come close to saying anything that like; that would be totally inappropriate."

"Did Mrs. Duke suffer any damages?"

"The case was dismissed because of a valid legal motion. There was a legally well-founded motion to which there was no basis for me to do anything but dismiss the case."

"That sounds like lawyer-talk," I said.

"I am a lawyer," the judge replied.

"I thought you were a judge," I said.

Judge Saitta volunteered she did not understand the distinction.

"Well, is it the job of a judge to see that justice is done in her court, or simply to make sure that all the proper legal procedures are followed?"

"I don't understand your question," Judge Saitta said. "I don't understand where you're going with this."

I repeated the question.

"I don't know what you're trying to get me to say. ... I think assuring justice on behalf of the whole community while complying with the rules of evidence go hand in hand," the judge replied. "It is certainly resolved from each and every legal consideration. ... I think if you'll refer the court file you'll find that both sides in this case were given ample opportunity."

So the case was actually settled long ago, during all those pre-trial motions, long before the court went through the empty motion of seating a jury for a single hour Wednesday morning?

"I think it's time to bring this conversation to a close," said Judge Saitta. "I'm not going to have my words twisted when I'm trying my very best to stay within my ethical bounds as a judge."

As usual, offered a chance to explain what happened to Mrs. Duke in his office back in August of 1991, Dr. Roger M. Simon declined to come to the phone or return my phone calls. His lawyers won't talk, either.

Because, you see, "It is certainly resolved from each and every legal consideration."

Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. His book, "Send in the Waco Killers" is available by dialing 1-800-244-2224 or via web site http://www.thespiritof76.com/wacokillers.html.

Vin Suprynowicz, vin@lvrj.com

"When great changes occur in history, when great principles are involved, as a rule the majority are wrong. The minority are right." -- Eugene V. Debs (1855-1926)

"The whole aim of practical politics is to keep the populace alarmed -- and thus clamorous to be led to safety -- by menacing it with an endless series of hobgoblins, all of them imaginary." -- H.L. Mencken

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Government doesn't work. Never did. Never will. Can't. But there are lots of good people. Love them.

-- Bill St. Clair

The Atlanta Declaration

Every man, woman, and responsible child has an unalienable individual, civil, Constitutional, and human right to obtain, own, and carry, openly or concealed, any weapon -- rifle, shotgun, handgun, machinegun, anything -- any time, any place, without asking anyone's permission.

-- L. Neil Smith

Reread that pesky first clause of the Second Amendment. It doesn't say what any of us thought it said. What it says is that infringing the right of the people to keep and bear arms is treason. What else do you call an act that endangers "the security of a free state"? And if it's treason, then it's punishable by death. I suggest due process, speedy trials, and public hangings.

-- L. Neil Smith

A Penalty Clause for the Bill of Rights

Any official, appointed or elected, at any level of government, who attempts, through legislative act or other means, to nullify, evade, or avoid the provisions of the first ten amendments to this Constitution, or of the Thirteenth Amendment, shall be summarily removed from office, and, upon conviction, deprived of all pay and benefits including pension, and sentenced to imprisonment for life.

-- L. Neil Smith

Based on 253 journal articles, 99 books, 43 government publications, and some of its own empirical work, the panel couldn't identify a single gun control regulation that reduced violent crime, suicide or accidents.

-- John Lott, commenting on the National Academy of Sciences report on gun control laws.

Who is a libertarian?

Zero Aggression Principle ("Zap")

"A libertarian is a person who believes that no one has the right, under any circumstances, to initiate force against another human being, or to advocate or delegate its initiation. Those who act consistently with this principle are libertarians, whether they realize it or not. Those who fail to act consistently with it are not libertarians, regardless of what they may claim."

-- L. Neil Smith

(Formerly called the "Non-Aggression Principle", or "NAP")

Why Did It Have to be... Guns?

Make no mistake: all politicians -- even those ostensibly on the side of guns and gun ownership -- hate the issue and anyone, like me, who insists on bringing it up. They hate it because it's an X-ray machine. It's a Vulcan mind-meld. It's the ultimate test to which any politician -- or political philosophy -- can be put.

If a politician isn't perfectly comfortable with the idea of his average constituent, any man, woman, or responsible child, walking into a hardware store and paying cash -- for any rifle, shotgun, handgun, machinegun, anything -- without producing ID or signing one scrap of paper, he isn't your friend no matter what he tells you.

If he isn't genuinely enthusiastic about his average constituent stuffing that weapon into a purse or pocket or tucking it under a coat and walking home without asking anybody's permission, he's a four-flusher, no matter what he claims.

What his attitude -- toward your ownership and use of weapons -- conveys is his real attitude about you. And if he doesn't trust you, then why in the name of John Moses Browning should you trust him?

-- L. Neil Smith

Concise

"Tell me," I was once asked, "What do you think about gun control? Give me the short answer." To which I replied, "If you try to take our firearms we will kill you."

-- Mike Vanderboegh

Also from The Atlanta Declaration:

... like going to the bathroom, breathing, eating, sleeping, or making love, it turns out that self-defense is a bodily function one cannot safely or effectively delegate to a second party.

-- L. Neil Smith

This does not mean that "Marijuana should be available by prescription." It means that morphine sulfate should be available in five pound bags at the supermarket for a couple of bucks, like sugar... but probably in a different aisle, to avoid confusion.

-- Vin Suprynowicz

If you refuse to pay unjust taxes, your property will be confiscated. If you attempt to defend your property, you will be arrested. If you resist arrest, you will be clubbed. If you defend yourself against clubbing, you will be shot dead. These procedures are known as the Rule of Law.

-- Edward Abbey

The state can only survive as long as a majority is programmed to believe that theft isn't wrong if it's called taxation or asset forfeiture or eminent domain, that assault and kidnapping isn't wrong if it's called arrest, that mass murder isn't wrong if it's called war.

-- Bill St. Clair

End the War on Freedom

'Resolved from each and every legal consideration'