Lindy
Well-known member
- Joined
- Nov 25, 2001
- Posts
- 250
Why and What
Caveat: I have not "practiced" for a few years and any information provided below is for informational purposes ONLY.
First, I know that it will not help, but I can shed a little light on the "WHY." The attorney was hired (or appointed) to provide his client the best defense/counsel possible. Evidence is a proffer to "an out of court statement to offer the truth of the matter asserted," that being said, there are many evidentiary rules. Statements can include business records, medical records, video and audio tapes, etc.
Skipping over the things that are not relevant in this discussion, the most basic issue is the veracity of the witness. When a witness is testifying, i.e., providing evidence, counsel can assert that witness is unreliable and said counsel has different evidentiary rules to assist in proving the reliability/truthfulness of the witness.
In your case, counsel could have run a background check and found your former felony. Most, if not all jurisdictions, do not permit "prior criminal acts" to be admitted for more than 10 years old (we'll skip the few exceptions). So, the attorney new about your prior felony, but couldn't bring it up. He decided to keep after you, [probably] thinking that he could prove that you were an unreliable witness; which in turn would limit the use of your testimony to the jury and help his client.
NOTE: I neither condone or approve of such behavior, however, the attorney was trying to find every possible way to assist his client, albeit over-zealously.
Now, here is what I do not understand. I believe the FAA medical records are private and cannot be viewed unless there is a release; what I am trying to say, I don't think a FOIA request should have permitted counsel to obtain copies. If it is true that a FOIA request would bar release of medical records, then HOW did the attorney obtain your records? A little research in this area is needed.......
Questions you need to be asking yourself:
1. Did he obtain the records under false pretenses?
2. Who provided the records?
Now, the attorney went beyond his scope and contacted your employer, the FAA, and Homeland Security. Now it is time for you to provide damage control.
First, you previously did check the box stating that you have a felony. It has been noted in prior records. Upon receipt of your next medical, check it in the affirmative. There may or may not be questions from the AME. This issue I would suggest contacting an aviation attorney for assistance. Someone suggested AOPA legal services. I second that recommendation.
Next, the employers. Do you have copies of your application? Does it state anywhere "have you ever...."? This could be where you have the biggest issues. If you checked "yes" and discussed it, then you are ok. If you checked "no" to the felony question/arrests etc. then there are a few issues. The employer can always dismiss an individual for lying/fasifying employment applications.
Finally, Homeland Security. I believe the new applications have a restriction of felonies to 10 years (or less). If that is the case, you were not required to notify HSA because their time-line does not require it.
Finally, you might be wondering if there is any recourse against the attorney for bringing the records into the trial. It depends. It depends upon how the records were obtained from the FAA. It depends on your state's Attorney Grievance Commission. One thing that is taken extremely seriously is [alleged] misconduct of attorneys. The regulating committees of each state will investigate, however, you have to find an charge that is investigable, i.e., obtaining the records vis-a-vis fraud.
Everyone has spoken to and provided words of encourgement. Please take care of yourself.
Caveat: I have not "practiced" for a few years and any information provided below is for informational purposes ONLY.
First, I know that it will not help, but I can shed a little light on the "WHY." The attorney was hired (or appointed) to provide his client the best defense/counsel possible. Evidence is a proffer to "an out of court statement to offer the truth of the matter asserted," that being said, there are many evidentiary rules. Statements can include business records, medical records, video and audio tapes, etc.
Skipping over the things that are not relevant in this discussion, the most basic issue is the veracity of the witness. When a witness is testifying, i.e., providing evidence, counsel can assert that witness is unreliable and said counsel has different evidentiary rules to assist in proving the reliability/truthfulness of the witness.
In your case, counsel could have run a background check and found your former felony. Most, if not all jurisdictions, do not permit "prior criminal acts" to be admitted for more than 10 years old (we'll skip the few exceptions). So, the attorney new about your prior felony, but couldn't bring it up. He decided to keep after you, [probably] thinking that he could prove that you were an unreliable witness; which in turn would limit the use of your testimony to the jury and help his client.
NOTE: I neither condone or approve of such behavior, however, the attorney was trying to find every possible way to assist his client, albeit over-zealously.
Now, here is what I do not understand. I believe the FAA medical records are private and cannot be viewed unless there is a release; what I am trying to say, I don't think a FOIA request should have permitted counsel to obtain copies. If it is true that a FOIA request would bar release of medical records, then HOW did the attorney obtain your records? A little research in this area is needed.......
Questions you need to be asking yourself:
1. Did he obtain the records under false pretenses?
2. Who provided the records?
Now, the attorney went beyond his scope and contacted your employer, the FAA, and Homeland Security. Now it is time for you to provide damage control.
First, you previously did check the box stating that you have a felony. It has been noted in prior records. Upon receipt of your next medical, check it in the affirmative. There may or may not be questions from the AME. This issue I would suggest contacting an aviation attorney for assistance. Someone suggested AOPA legal services. I second that recommendation.
Next, the employers. Do you have copies of your application? Does it state anywhere "have you ever...."? This could be where you have the biggest issues. If you checked "yes" and discussed it, then you are ok. If you checked "no" to the felony question/arrests etc. then there are a few issues. The employer can always dismiss an individual for lying/fasifying employment applications.
Finally, Homeland Security. I believe the new applications have a restriction of felonies to 10 years (or less). If that is the case, you were not required to notify HSA because their time-line does not require it.
Finally, you might be wondering if there is any recourse against the attorney for bringing the records into the trial. It depends. It depends upon how the records were obtained from the FAA. It depends on your state's Attorney Grievance Commission. One thing that is taken extremely seriously is [alleged] misconduct of attorneys. The regulating committees of each state will investigate, however, you have to find an charge that is investigable, i.e., obtaining the records vis-a-vis fraud.
Everyone has spoken to and provided words of encourgement. Please take care of yourself.
