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This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hello out there and welcome to episode 51 of the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: Welcome to 2018 again. We’re almost – how many weeks are in a year, 52?
Schenk: So I guess we’ve done this for a year, but we do this weekly. Oh, we took two weeks off. That’s why we’re not quite there.
Smith: We took two weeks off.
Schenk: So we’re not quite yet at season two yet. We haven’t started season two yet, if this was a TV show.
Smith: Ah, because it hasn’t actually been a year.
Schenk: We’ve got to get 52 episodes in.
Smith: Yeah, okay.
Schenk: I feel like that’s – I don’t know if I’m going to get to it this time, but I think in the next couple of weeks, I might do a season two type – you know how season one of “Family Ties” or “Dukes of Hazzard,” the intro didn’t start the same as the first season. Maybe new characters were added. You hear what I’m saying? I’m thinking about redoing our intro and like new music, things like that. How are we going to let people know it’s season two of the Nursing Home Abuse Podcast if we don’t change the intro up?
Smith: No, I’m with you. That’s important.
Schenk: Yeah, it’s very important. So anyways, also happy Martin Luther King Day.
Smith: Happy MLK Day.
Schenk: MLK Day – as this goes to air, it’ll be January 15 of 2018 as we celebrate Martin Luther King across the country. And we are not taping this on Martin Luther King Day, however there is a Martin Luther King Day marathon, a half-marathon and I think a 5K, and I want to do one of those three. So hopefully by the time this airs, I will be finishing or starting actually one of those three races, but I’m not sure which one I want to do yet.
Smith: A marathon or a 5K?
Schenk: No, it’s a 5K, a half-marathon and a marathon. And you can choose to do one of those, you know what I’m saying? Everybody starts running together, but some people are going to run 26 miles.
Smith: Yeah, for me, I don’t understand the debate between doing a marathon and a 5K. Why wouldn’t you do the 5K? Who wants to run 26 miles.
Schenk: I mean a lot of people do.
Smith: No one does.
Schenk: It just depends on where your head’s at. It would be much more difficult for me to run as hard as I can for three miles versus run leisurely for 26 miles.
Smith: No thank you.
Schenk: Anyways, thank you for joining us on the program, and we have again, for the second week in a row, who do we have as a guest, Will?
Smith: So we have Richard Armond, who is my friend.
Schenk: Just your friend.
Smith: Yeah, just my friend. Richard was on with us last time, and like we told you last time, he was a prosecutor for almost a decade in Gwinnett County Solicitor’s Office and in the Gwinnett County District Attorney’s Office. An interesting that we forgot to mention last time is at one point, Richard’s trial partner was the co-founder of King of Pops, Nick Carse.
Schenk: Nick Carse. I actually graduated with Nick Carse from Georgia State College of Law in 2008, and he went onto the Gwinnett Solicitor’s Office.
Smith: Wait, Richard, when did you graduate?
Richard: I graduated in May of 2017.
Smith: Ah, so you were a year ahead of Rob. Okay. And you probably wouldn’t have remembered Rob. I don’t think Rob was very popular in law school.
Schenk: With Richard. But I was very popular in law school with the ladies.
Smith: Okay. Anyways, Richard was a phenomenal trial attorney for 10 years as a prosecutor, started his own practice – now he does plaintiff’s personal injury and wrongful death cases. His office is located just a mile from the Gwinnett County Courthouse, and we are again going to put his contact information up there, Jean, if you will do that.
The last time Richard was – well last week when he was on here, he talked about a case that he specifically prosecuted as an ADA, but there was another case that gained some pretty wide coverage in the news media, the case of Lisa Williams, that while Richard didn’t prosecute this case himself, his office did while he was there. Richard, do you remember this case in Gwinnett County?
Richard: I do. It took place in the superior court courtroom where I was the supervising assistant district attorney over two other district attorneys. However, this particular case at that time, the office had very recently started a special victims unit and it was handled by the special victims unit prosecutor when that case got assigned to that courtroom. I remember some of the proceedings taking place before the judge I was assigned to, and I was present and know some of the basic details of this case.
Smith: Okay. So let’s do this then. Let’s just go ahead and jump into the case, Richard, and you just tell us the basic facts – who, what, when, where, why – starting out with when did this happen?
Richard: This was a case that happened back in 2016. It was one that the first time I got wind of it, I was watching the evening news, and it was a loved one who had suspected that his mother was being abused in a nursing home type facility. And based on that suspicion, he planted a camera in her room at the facility to try to observe if there was any abuse going on. And what the camera captured was quite shocking. Essentially there was a nurse that basically punched his mother in the face. This is a wheelchair-bound elderly lady that was defenseless basically. So it was quite shocking. And it ended up resulting in, based on that video evidence, the police took charges and the case was prosecuted by the SV unit in the Gwinnett District Attorney’s Office, one of the best prosecutors in the office is the one who handled it before the judge in superior court.
Smith: Go ahead.
Richard: It ultimately, with that type of evidence, resulted in the particular defendant entering a guilty plea just about a year ago. Looking at court records it says, “Sentenced on January 5, 2017,” so a little over a year ago was when this guilty plea was entered. And that statute we discussed last week, that 16-5-102, exploitation/intimidation of elder persons statute, was used in this. And this one was part of the statute involving willfully inflicting physical pain or physical injury on an elder person. I believe, if I recall, there was also a charge of aggravated assault included on. It was a three-count indictment, two counts of the exploitation, willful infliction of pain statute, and one count of aggravated assault. But it was such strong evidence that I don’t think there was much chance of a defense in the case and it ended in a guilty plea to those charges.
Smith: Now the evidence, there’s a video in this. We’ve actually got a video.
Schenk: Jean, can we get the video up?
Smith: If Jean, our producer, plays it. So we’re going to play this video, and just as a caution, it is pretty shocking.
Schenk: Oh gosh. Okay, so those that aren’t able to watch this video, what we’re looking at is a nurse or a CNA…
Smith: A CNA, it’s a CNA.
Schenk: A CNA that’s just manhandling the resident. The resident is wheelchair-bound. So she’s pushing him around, yelling at his face. It’s just tragic. And this was, as Richard says, this was a hidden camera that was placed in the room by the son. So at least you have some visual evidence of the crime being committed, which is in our experience, fairly rare.
Smith: Against his mother, just FYI. You were using pronoun “he.” Just for clarification for anybody looking this up…
Schenk: What did I say?
Smith: You said he. The resident was a female. Not that it mattered…
Schenk: That’s right, I’m sorry.
Smith: The man did this for his mother. So anyways, I guess you rarely have that kind of evidence in a case. Was there even any – did she enter the guilty plea at arraignment?
Richard: I don’t believe it was at arraignment – January 5th of 2017. This was beyond the arraignment date, just looking at the court system.
Smith: So here’s a question for you too, and I know a lot of people see cases like this and they think, “Hey, I need to put a camera or some kind of recording device into my mom or my father’s nursing home room.” Can you give us just a broad perspective of recording other people in Georgia?
Richard: I can give a broad summary of the law.
Richard: Not giving anyone legal advice here of course, but as for the law in Georgia, there is a specific statute that deals with when it is lawful for a person to do this type of surveillance videoing because I’ve actually handled a case, I got assigned kind of a high profile case involving a law enforcement officer doing unlawful surveillance of a person, so I’m a little familiar with the statute.
Schenk: The criminal penalties for unlawful recordings such as this is 16-11-62, OC-GA-16-11-62, and it deals with that it is unlawful for a person in a clandestine manner intentionally to overhear, transmit or record or attempt to overhear, transmit or record the private conversation of another which will originate in a private place, and it goes on with other criminal violations of the statute, including recording. But the key thing is in a private place is where it’s unlawful to do that. And there are definitions that are applicable to that criminal statute, which are found in 16-11-60. And under Georgia law, private place means a place where there is a reasonable expectation of privacy. And honestly, that is not a very good definition for our laws to have. That’s a Fourth Amendment search warrant type term. It’s a legal term of art. But essentially in this particular case that we were talking about in Gwinnett Superior Court, this was not unlawful surveillance, and it would not be unlawful surveillance for an occupant of a room at a care facility when it’s that person’s own room to record their own room.
Schenk: So in essence then, charges would not be brought against the individual placing the camera by the state based on I guess the CNA being a victim of the unlawful recording.
Richard: Exactly. The employee of the facility did not have a reasonable expectation of privacy in the private place applicable to her victim. But it can be complicated. For example, let’s say a camera is placed by a loved one in a room where the loved one has the ability to not want that to happen, the loved one could potentially be committing a crime against their loved one for surveilling the room.
Schenk: Their mom.
Richard: It could be a situation where the loved one is capable of being able to consent to ask, was mentally able to, would have to get consent to the recording taking place…
Smith: It’s also a big deal…
Richard: The nurse would not have a reasonable expectation for privacy in her victim’s private place, if that makes any sense at all.
Smith: Yeah, it does. And it’s also a big deal when you’re dealing with the vast majority of nursing home rooms, which are semi-private and have other people in there. And we only bring that up because we’ve talked about this on a couple different podcasts. Should I put a recording in my mother, father or loved one’s nursing home residence? All I can tell you is that we, neither ourselves or Mr. Armond, are giving any legal advice on that, and I can say that the law in Georgia not quite as clear as it should be. So I would suggest that people take that into consideration before they do something like that. Go ahead, Richard.
Richard: What I was going to say, for example, if it was your own house, you can record what’s going on in your own house.
Schenk: Which we do.
Richard: You’re not violating somebody else’s reasonable expectation of privacy to what goes on in your own house. And when you are a resident and you are paying for that particular room in that facility, you as the resident have a reasonable expectation of privacy in that particular room. The nurse does not – is what I glean from the law. And again, I can’t give anyone legal advice on that, but it can be very useful evidence in either a criminal case or obviously if you were to ever get a civil case with that type of evidence, it would be incredibly useful evidence to be able to present to a jury in a case or settlement negotiations with an insurance company.
Smith: And it was in this case. And at the end of the day, so I guess she was represented by counsel, or did she have a court-appointed attorney?
Richard: I believe it was a court-appointed attorney that handled her defense in the case. There were actually several attorneys before the case got resolved, otherwise it probably would have been resolved sooner than it was. But just looking at the court history, there were about three total attorneys on the case before it was finally resolved.
Smith: And what was she charged under?
Richard: She was charged with two counts of 16-5-102, which is the elder person statute that criminalizes willfully inflicting physical pain or physical injury on an elder person, and one count of aggravated assault.
Schenk: And Richard, are you aware of in this case or maybe any other cases involved a CNA or a staff of a long-term care facility, any defenses that they bring up? So for example, self-defense or “I’m just doing my job” or they were being unruly? Do you have any understanding whether or not those defenses were made in this case or other cases under this exploitation statute?
Richard: In this particular case, I think criminal liability was pretty clear cut. I had other cases during my time as a prosecutor where liability was disputed, criminal liability was disputed where there were injuries to a person in a care facility. The particular case I’m thinking of was not an elder person but a disabled adult. The law applies equally to a disabled adult or an elder person. But certain injuries on the person, it was disputed whether they were due to routine type injuries that a person could get inflicting them on themselves or accidental causes versus it being a case of either neglect or willful infliction of physical pain. I have seen that where it is hotly disputed and there’s not evidence such has been the case we’ve been discussing with video evidence to sort of prove that it happened.
Schenk: So I’m understanding this is a felony, so the penalties can begin at one year, but what’s the maximum penalty if found guilty of this?
Richard: If found guilty under 16-5-102, the maximum penalty for one count of it is 20 years. It’s a one to 20 year felony, or a fine of not more than $50,000 or both.
Smith: So the charge of elder assault, or I guess it was elder battery, that’s used in place of actual battery? Because she’s charged with assault here but she wasn’t charged with aggravated battery or simple battery, right?
Richard: One count in the indictment was for aggravated assault.
Richard: But essentially, if a person inflicts physical pain or physical injury against a disabled adult in what would essentially be potentially a misdemeanor battery charge when it’s against a person who, for example, is 40 years of age, when it’s a willful infliction of the abuse, it can be a felony charge under Georgia law. The law recognizes and the General Assembly of Georgia recognizes the importance of protecting elder persons and the persons in that category in the statute, disabled adults and such.
Smith: So let’s do this for a quick clarification – we’re running up on the end of this podcast here. What’s the difference between assault and battery?
Richard: Assault doesn’t require any type of contact. Battery requires contact from person to person or some sort of infliction of contact, whether it’s transferred contact – you throw a baseball and hit a person even though you don’t touch him, that’s battery. If you threaten to throw the baseball at a person, that’s a simple assault.
Smith: So what the Georgia legislature has done here, in a case like this, the physical contact that occurred between this CNA and this nursing home resident, if she were just a regular person in the sense that she wasn’t an elder person or a disabled adult, it would have potentially been a misdemeanor battery, right?
Richard: In this particular case, she was actually convicted of aggravated assault. I don’t have all the details of that case in front of me right now. I don’t know if it involved to the extent beyond the video of what we saw – strangulation or the use of some sort of weapon against her, but looking at the clerk and court system, count three was in fact aggravated assault. But let’s say it went to the extent of a punch to the face that resulted in a black eye to the victim. That would be a felony under 16-5-102 when to any other person that doesn’t fit in one of the protected categories, either a minor child under a cruelty to children statute, an elder person, a disabled adult, to a person who doesn’t fit in one of those categories, that would be a misdemeanor offense of battery. So the law recognizes in Georgia the greater need for protection for people who cannot protect themselves.
Smith: So what happened to her? What happened to this defendant?
Richard: According to Gwinnett County court records, she was sentenced to a term of 20 years to serve four years on the 16-5-102 crimes in counts one and two and an additional five years probation consecutive to those for the aggravated assault on count three, so basically a total sentence of 25 years to serve the first four years in the state prison system with a balance of 21 years to be served on probation. And there would of course be other terms and conditions, probably some sort of counseling courses, a no contact order with the victim, and it’s not uncommon in cases like that where the other conditions for the protection of elder persons to be put on the sentence such as you can’t work in that type of industry at all. You can’t have unsupervised contact with elder persons. I don’t know if those were conditions put, but it’s pretty common to put those on a sentence for someone who commits a crime against an elder person.
Smith: Got you.
Schenk: So is it common in your experience in terms of the restitution, is she going to be financially on the hook for the 50,000? It’s usually just jail time, in other words? You don’t pay the monetary fee or the penalty?
Richard: The maximum fine is $50,000. In Gwinnett County, on most felony cases where there’s not some mandatory minimum fine, it’s typical on a felony charge to assess a total fine of $1,500, and there are applicable fees and surcharges on top of that.
Schenk: And that would go to the victim?
Richard: But most likely the $50,000 fine was not assessed here.
Richard: No, that would go to the state to pay for probation, supervision. Well there are monthly probation and supervision fees also, but there are different state funds that criminal fine money goes to. In some parts, they go towards compensating victims for crimes.
Schenk: I never knew that. So the restitution is restitution for government.
Smith: Well sometimes, not all the time.
Richard: There is restitution also that can be paid to victims when there are monetary losses in crimes. For example, a victim in an exploitation case had injuries, restitution could be applied in the criminal sentence. But anyone that is interested in seeking restitution in a criminal sentence should probably reach out to attorneys like Rob and Will to discuss that because restitution can sometimes be more limited in a criminal case than it is in a civil case, and there can be more to collect through a civil process than restitution in a criminal case.
Schenk: We need to have more guests on this show that plug us. That’s good.
Schenk: That’s fantastic. Richard, you are a wealth of knowledge. I mean you’re fantastic. We really appreciate you coming on two weeks in a row.
Smith: Two weeks in a row.
Schenk: First guest of 2018.
Smith: Yeah, you are the first guest of 2018.
Richard: Happy New Year.
Smith: And is he the last guest of this season?
Smith: Yes, so he’s the first guest of 2018, but oddly enough, the last guest of season one.
Schenk: Yeah, what we’re calling season one, which is 52 episodes.
Smith: Fifty-two episodes.
Schenk: Awesome Richard. Thank you so much. And I think that’s it. So this podcast, as you may or may not know, if you maybe are new for 2018, maybe your New Year resolution was to listen to this podcast. So this is an audio and video podcast, so you can download the audio on Stitcher or iTunes or perhaps Spotify, or you can watch us on our YouTube channel or on our website, which is NursingHomeAbusePodcast.com. We would love to see you again and on behalf of Richard, we will see you next time.
Smith: See you next time.
Schenk: See you next time for real.
Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information on the topics discussed on this episode, check out the show website – NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.