The following three articles.

The following three articles will deal with three important pieces of evidence that the jury was prevented from hearing. There will be others to follow.

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The articles may be summarized as follows:

1. During the trial, an employee of a mental health care provider, came forward to express concerns that the child's mother, Carol Weaver, became suicidal over her feelings of guilt after the criminal investigation began.

2. The Weavers had a strong financial interest in making it appear that the nurse caused the death of their child because they we're seeking to profit from the death by suing Bayada Nursing.

3. Joys 70 character witnesses we're not allowed to give any detailed information to the jury.

I. Carol Weaver was guilt ridden but her psychological records are sealed.

Sometime in early January, 2010 while the trial was already in progress, an employee of a mental health care provider appeared on the fourth floor of the Lancaster County Courthouse. At the risk of losing her job, she wanted to come forward because of her concerns that a grave miscarriage of justice was occurring with Joy being prosecuted for a crime she did not commit. This woman did not know Joy. She knew about the trial from news reports. (Unfortunately, due to a court order entered more than one month after the trial, we cannot name the mental health care provider. There will be more about this later in this article.) Once the woman arrived on the fourth floor of the Courthouse, she did not know what to do. She wandered up and down the hallway looking visibly distraught.

A Lutheran Pastor, who was in the Courthouse to support Joy and her family, noticed this distraught woman and went over to offer assistance. The woman told the Pastor that she had valuable information that Joys attorneys had to know and she needed to speak to Joys attorneys. At a recess the Pastor arranged for the woman to meet Joys attorneys.

The woman told Joys attorneys that sometime after the criminal investigation began, Carol Weaver sought psychiatric help due to her feelings of guilt. Although the woman was not present when Carol Weaver spoke privately to the psychologist, the woman spent some time with Mrs. Weaver. She described Mrs. Weavers condition as guilt ridden. Mrs. Weaver was considered at risk for suicide and advised to be voluntarily hospitalized for 72 hours. Mrs. Weaver stayed less than one day and left the facility against medical advice.

Upon learning this information, Joys attorneys asked for a meeting with Judge Ashworth. It was an ex parte meeting, meaning that the prosecutor was not at the meeting. However, a court reporter was present to make a record of everything that was said between Joys attorneys and the Judge. On January 11, 2010 the Judge signed an order directing the mental health care provider to release to Joys attorneys all psychological records of Carol Weaver from 2002 until 2010. However, within 30 minutes, prior to the order being served upon the mental health care provider, the Judge rescinded the order. The Judge decided that the patient psychologist privilege outweighed the need for the truth to be known.

The docket entries for the case make no mention of the January 11, order. However, when transcripts to the trial we're requested the Judge entered the following Order:

AND NOW, this 23rd day of February, 2010, upon review of the trial transcript in the above-referenced case and concerns with regard to the rights and privileges protected by the Health Insurance Portability and Accountability Act (HIPPA) of 1996, it is hereby ORDERED that all counsel and their representatives are directed not to reveal the identity of any health care providers for any of the witnesses called in this case.

It is further ORDERED that those portions of the trial transcript which address the identity of any health care providers for any of the witnesses called in this case shall be sealed and not open for public inspection.

BY THE COURT:

DAVID L.ASHWORTH

JUDGE

What is so amazing about this order is that HIPAA does not apply to the Court. Why did the Court manufacture this as an excuse to seal records that could exculpate Joy?

The Judge directed Joys attorneys to give the prosecutors the name of the mental health care provider employee. We do not know whether the prosecutors talked to this woman or what was said to her. However, this woman is now remaining silent. Joys attorneys are following the Judges directive and have refused to even tell Joy the name of this woman. It is intolerable that Joys attorneys we're required to give information to the prosecutors, even though Joy is not allowed to know the information.

When the transcript was obtained, (at a cost of approximately $2,500 to Joys family), the court reporter refused to provide 18 pages of transcript, which is believed to be the record of the ex parte meeting concerning Carol Weavers psychological records. The Court reporter stated that the Judge would not allow her to provide these 18 pages. These 18 pages are to be sealed. However, there is no record of anyone in this case requesting that this part of this record to be sealed. The order of February 23, 2010 could have been followed by simply redacting the name of the mental health care provider and the employee of the mental health care provider. What is the Judge trying to hide?

Perhaps the psychological records provide an answer. Perhaps they do not. We know that Carol Weaver has made untruthful statements throughout this entire process. For example, at the preliminary hearing, she testified that Brent did not have a cold before he died. However, cold medications we're in his system according to the autopsy, so Mrs. Weaver changed her story for the trial. Mrs. Weaver may have been less than truthful with her psychologist.

No accusation is being made here that Carol Weaver is responsible for the death of her son. She may have been guilt ridden for other reasons. Remember, Carol Weaver had a financial interest in making Joy appear guilty. She and her husband filed a lawsuit against Joys employer, Bayada Nursing. They needed to make Joy look responsible for the death in order to make a large amount of money from their lawsuit. Perhaps Mrs. Weaver was guilt ridden over destroying evidence that could have shown some other explanation for her sons death. There is more about the lawsuit in the next article.

II. The Weavers lawsuit against Bayada Nursing

It is a matter of public record that the Weavers wanted to make a financial profit from the death of their son. On April 12, 2004 they filed a lawsuit against Bayada Nursing alleging that Joy, an employee of Bayada Nursing, was responsible for the death of their son. They filed the lawsuit in Philadelphia, even though their allegations are based upon events in Lancaster County.

Why did they file in Philadelphia? Did they want to keep their case a secret from the people in their community? Or we're they hoping that a Philadelphia court would be more liberal and award them more money than a Lancaster County court?

At any rate, the Philadelphia court was not going to help the Weavers keep their case out of Lancaster. The Philadelphia Court refused to hear the case, citing lack of venue and directed the Weavers to proceed in Lancaster County if they wanted to pursue their case. The Weavers appealed this decision to the Superior Court of Pennsylvania, which agreed that the case should have been filed in Lancaster County. Desperate to keep the case in Philadelphia, the Weavers then filed an appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court refused to allow the Weavers to proceed in Philadelphia.

After two years of fighting to keep the lawsuit in Philadelphia, the Weavers moved their lawsuit to Lancaster County. They then reached an out of court settlement with Bayada Nursing for an undisclosed amount of money. The Lancaster Court, which apparently likes to keep public records secret, sealed the settlement terms. An order was entered by Judge Hobart to seal the settlement terms. Although the settlement terms we're the only thing ordered to be sealed, the Prothonotary in Lancaster County sealed all pleadings.

Throughout the criminal investigation the Weavers had the assistance of their attorney, whose law firm was also handling the Weavers lawsuit against Bayada Nursing. Although the fee arrangement between the Weavers and their attorney is not certain, personal injury attorneys typically take cases on contingent fees and collect their fee only if their client is awarded money in the case. The contingent fee is usually one third of the amount of the recovery.

Thus, the Weavers and their attorney had an economic incentive to make Joy look guilty. If Joy was responsible for the death of the child, they could make a lot of money. If there was another explanation for the death of the child, the Weavers would not make any money. All evidence at the house was under the Weavers control. Is it possible that some of the evidence was destroyed to prevent anyone from finding another explanation of what happened to Brent? The Weavers admit that they discarded the childs feeding machine and formula. It seemed like a logical explanation to the jury due to the passage of time. But, during this time, the Weavers we're gearing up for their lawsuit? Why would evidence be discarded if they we're planning to sue?

Judge Ashworth recognized that the lawsuit had some significance, but he did not want to disturb Judge Hobarts decision to seal the settlement of the lawsuit. The only explanation given to Joy is that one judge would not want to disturb an order entered by another judge in the same court. It would not be polite to enter an order contradicting the order of another judge in the same county. Something far more important than Joys innocence was at stake: judicial etiquette. The privacy of the personal injury settlement between the Weavers and Bayada Nursing was far more important than the possibility of convicting an innocent person.

However, the Judge had to recognize that there was relevance to the personal injury case. Therefore, he entered an order that allowed the jury to be told about the lawsuit, but limited the questions that could be asked on this subject to two. The order entered on January 7, 2010 provided as follows:

AND NOW, this 7th day of January, 2010 it is herby ORDERED that Mark and Carol Weaver are required to testify, if asked, that a lawsuit was filed on their behalf against Bayada Nurses and that the lawsuit did settle.

BY THE COURT

What is so amazing about this order is that it not only directs defense counsel on what questions may be asked, but also directs the Weavers on how to answer. The Court did not want to risk that Carol Weaver would give an incorrect answer, as she had done on other issues at the preliminary hearing.

Joys attorneys limited themselves to these two questions. Reporters in the courtroom who knew many of the details of the personal injury lawsuit we're shocked that defense counsel did not go into more detail about the lawsuit. The limitations imposed by the Judge prevented Joys attorneys from going any further on this issue.

Rumor has it that the Weavers we're seeking over $1,000,000 from Bayada Nursing. Rumor also has it that the case against Bayada was settled for nuisance value. However, these are only rumors. The truth is sealed. Was nuisance value to a $1,000.000 lawsuit, still a sufficient amount of money for the Weavers to remodel their home and build an in ground pool? We do not know. What is abundantly clear, however, is that the Weavers are financially far better off now than when Brent was alive. There is an old saying that money corrupts. How much corruption did money cause in this case? The jury was prevented from considering this.

At sentencing the prosecutor sought restitution for Brents funeral expenses of over $6,000. The funeral expenses we're an issue in the personal injury case which was settled with a payment of some amount to the Weavers. So, they are seeking to be paid twice for the same expense. This is known as double-dipping. Nevertheless, the Judge awarded restitution.

III. Limitations placed on character witnesses.

There we're over 70 people who knew Joy well and who we're planning to testify as character witnesses. They spent two days sitting in the hallway of the courthouse waiting to be called as witnesses. They all had many things to tell the jury about Joys character as a wonderful and caring person who would never harm a patient.

Unfortunately, only a handful of witnesses we're allowed to be called individually and their testimony was limited to two general questions about Joys reputation for being law abiding and honest. Several other character witnesses we're herded in front of the jury in groups of ten where they we're asked the same questions en mass. Many of the other character witnesses never saw the inside of the courtroom.

The only explanation given for limiting the character witnesses was that it would take too much time. The trial needed to be over before the three day weekend began. The judge would be willing to listen to more details about Joys character at the sentencing hearing (as if the verdict was a foregone conclusion).

If the jury had heard what the character witnesses said at the sentencing hearing, there most definitely would have been a not guilty verdict.

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Posted in Law Post Date 07/11/2016


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