Convictions: Slate's blog on legal issues

Admission of Medical Negligence

Earlier this month, I wrote about a lawsuit against the government brought by the family members of Francisco Castaneda, who was refused a biopsy for a lesion on his penis while in immigration custody, and then died after having his penis amputated. The government initially moved to dismiss the suit on grounds of immunity. Judge Dean Pregerson of federal district court in California rejected that argument after some neat statutory detective work, which makes it look as if a lot of other courts have been wrong to grant the government immunity under the Public Service Health Act, which addresses medical negligence by government doctors and nurses.

Now the government has in fact admitted negligence. That could mean up to $250,000 in damages for Castaneda's family. More importantly, it shows why Congress was right not to give blanket immunity to government health care providers, as Judge Pregerson found.The doctor who treated Castaneda (or rather, apparently failed to treat him) testified that she doesn't feel responsible for Castaneda's death. But now the courts can find otherwise.

Not Just Dandy, Also Memoirist

 To respond to David’s questions on the deported dandy Sebastian Horsley, here’s the governing law from the State Department.  The United Kingdom is one of the countries recognized under the Visa Waiver Program, which is what it sounds like.  But according to the State Department site an individual otherwise eligible for a waiver must apply for a visa if the alien “[h]as a criminal record or other condition making them ineligible for a visa.” 

That infelicitously worded provision makes it sound like you have to apply for a visa if you aren’t eligible for one.  The reality is not quite so Kafkaesque.  Yes, classes of ineligible aliens include “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of, a crime involving moral turpitude.”  Such aliens, however, can still be admitted if:  (1) the crime was committed when the alien was under 18; (2) the crime was committed more than five years before the visa application; or (3) “the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year.” 

Unfortunately for Horsley, none of these exceptions apply to him.  He has admitted that he spent 100,000 pounds (about $200,000) each on prostitutes, drugs, and suits.  Disclaimer:  fashion crimes are not deemed acts of moral turpitude, though Horsley was pulled out of the line for wearing a three-piece suit and a top hat on this occasion.

While we’re on the sartorial point, it does seem that Horsley wanted to make an entrance to this country in more ways than one.  He had come here without incident on prior occasions.  One wonders whether this may have been because he waited until he got through customs before going into full dandy persona.  Because I don’t want to encourage end-runs around the law or stifle personality, I’m not recommending that the soignée artiste abjure the Oscar Wilde “I-have-nothing-to-declare-but-my-genius” approach to customs.  But the occupational hazard of being fashion-forward is that you do stand out. 

With that background in mind, let’s move to David’s questions: “What’s a poor memoirist to do when confronted at the border with his own tell-all tome?  How does he avoid getting booted for ‘moral turpitude’?”  He has at least three options.  He can get all the turpitude out of his system before he is 18.  He can place a five-year moratorium on his turpitude in the years before applying for a visa.  Or he can live a life free of turpitude and write a memoir about his veterinary practice in Yorkshire, like that nice James Herriot. 

You also ask whether “the book was sufficient evidence of his moral failings,” or whether the deportation rested “on the admission he made (presumably by confirming facts in the book) in the interview.”  According to the press, his book was “considered,” but it’s hard to believe it was the only ground for his deportation.  The book is 368 pages long.  The interrogation lasted for eight hours.  Perhaps the book is one of those dense poetic efforts where skimming feels itself like an act of moral turpitude.  But that’s still 50 pages an hour for one official.  Recall as well that the book is touted as an “unauthorized autobiography,” which presumably means that Horsley’s superego did not hold the other parts of his self to strict levels of truthfulness.  Because of that disclaimer, it’s hard to see how officials could properly use the book as stand-alone evidence of his bad acts.  Besides, Horsley generally seems like a open person—in interviews prior to the one he had at Newark airport, he has talked about sleeping with a thousand prostitutes and why he felt the need to stage his own crucifixion.

And let’s not miss the silver lining.  As someone who likes reading memoirs, I, like others, was dispirited to learn that James Frey’s A Million Little Pieces and Margaret Seltzer’s Love and Consequences were fictionalized.  It’s comforting that customs officials believe that Mr. Horsley, unlike Ms. Seltzer, has done many of the things he says he has done.  I hope they put a sticker on the book to that effect.  Indeed, given that publishing houses say that fact-checking memoirs is impractical, maybe they should farm out the vetting process to the government.  The Secretary of Homeland Security could be renamed the Master of Revels, and citizens would feel safe—well, more safe--from the serious threat dandy memoirists pose to this country.

Passports, Privacy & Politics

CNN says the blogosphere is abuzz with news of the Obama passport story, so I feel somehow obliged to make it true.  Trouble is, I'd always figured most lawyers should have way more questions than answers at such an early point in such a story.  So what could we possibly have to contribute? 

 For what it's worth, here's what I got.  According to the U.S. State Department website, the Passport Services division maintains U.S. passport records for passports issued from 1925 to the present. "These records normally consist of applications for United States passports and supporting evidence of United States citizenship, and are protected by the Privacy Act of 1974. Passport records do not include evidence of travel such as entrance/exit stamps, visas, residence permits, etc., since this information is entered into the passport book after it is issue[d]."  On the law, violation of the relevant Privacy Act provisions (like willful disclosure of protected agency records) can subject the violator (provided he/she's an "officer or employee of an agency") to criminal fines up to $5,000, or a civil action by the individual.  So assuming contractors count as agency employees within the meaning of the statute (and I wonder whether there's case law here), I could imagine finding statutory violations under these circumstances.  And boy does it look bad. 

The thing is, while I'm certainly pleased such personal records are protected from disclosure, and am appalled at the thought of politically motivated snooping, I don't get what could be of such great interest in a passport file to warrant the trouble?  It seems hard to picture someone successfully using Obama's Social Security number in any kind of identity theft scheme.  Does someone seriously think he might be lying about his citizenship?  Or does "imprudent [read cat-killing] curiosity" by poorly trained contractors ring true? 

Anyone care to buzz back?

A Dandy Deportation…

I hate, once again, to be the guy to bring our blog down from the empyrean of Supreme Court analysis and that whole "Unitary Executive" thing, but can we talk -- just for a minute -- about what went down at Newark Airport on Tuesday when a British memoirist was denied entry to the US because, it seems his book described using lots of drugs and having sex with prostitutes?

Now I get why if you are, say a Governor of New York who has made his reputation by busting callgirl rings, actually being caught on a federal wiretap being all John-y is aproblem, but writing about it in an arch tell-all memoir?

The Times indicates that Sebastian Horsley, whose memoir, "Dandy in the Underworld," was published last week by Harper Perennial, was "detained by United States customs authorities for eight hours and questioned about his former drug addiction, use of prostitutes and activity as a male escort."  The results were, of course, that he was denied entry to the US and returned to England (even though he's visited many times before without any trouble).

So here's the question for all of you:  What's a poor memoirist to do when confronted at the border with his own tell-all-tome?  How does he avoid getting booted for "moral turpitude"?  And do you think the book was sufficient evidence of his moral failings, or did the deportation rest on the admissions he made (presumably by confirming facts in the book) in the interview?

Thoughts and schemes welcome.