Category Archives: Health

More details about the case against the Surgeon General

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Here’s a link to my latest Civil Beat column that you might find interesting. It’s a follow-up to my earlier post concerning the charges against the U.S. Surgeon General for allegedly violating certain of Mayor Kirk Caldwell’s Covid rules (“Prosecution of the U.S. Surgeon General is an expensive embarrassment“).

Click on that link to read today’s Civil Beat column.

Basically, the Covid emergency rules and their enforcement have created an ugly mess, leaving prosecutors and courts to cope with the overwhelming tsunami of criminal cases stemming from citations for violating emergency rules.

I get it. This was an emergency, the pressure was on to take action, and even ill-conceived action was probably better in the long run than inaction.

But the mishmash of confusing, sometimes misguided, occasionally contradictory, and rapidly evolving emergency rules created lots of unintended consequences, including leaving many citizens with undeserved criminal records that will follow them through the rest of their lives and courts flooded with insignificant cases.

Ordinarily, police and prosecutors rely on discretion to separate out the “real” violations worth pursuing from technical violations that are clearly not worth the cost of enforcing.

There’s even a legal term used, de minimis. It means “manini” in legalese.

With tens of thousands of citations being dismissed by prosecutors and courts, it certainly appears that discretion is the order of the day.

Why that same discretion hasn’t been applied in a review of the criminal charges in the Surgeon General’s case remains an open question.

Perhaps there’s a perverse dynamic on display. Do prosecutors feel justified in throwing the book at defendants who have the temerity to insist they are innocent? Is that perceived as waving a red flag in the face of a prosecutor? It’s beginning to look that way to me.

Prosecution of the U.S. Surgeon General is an expensive embarrassment

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I am so very embarrassed by the decision of the Honolulu prosecutors office to press ahead with criminal prosecution of U.S. Surgeon General Jerome Adams for violating Mayor Kirk Caldwell’s emergency orders. And I’m angry, as a citizen and taxpayer, that we’re wasting public funds and resources, and adding unnecessarily to the case load facing Hawaii’s already bogged down courts, to prosecute this public official who was, after all, here to assist the state in ramping up its Covid-19 testing.

I decided to check the court records on his case. Not only did prosecutors follow the original citation by filing a written criminal complaint against Adams, the case has now been assigned to attorneys normally handle felony cases, you know, serious crime.

Here’s an excerpt from the court docket.

Let’s walk back to the beginning.

Adams and an aide were cited by a Honolulu police officer about 10 a.m. on August 20 while stopped at Kualoa Regional Park. Here’s the citation as it appears in court files.

Prosecutors followed with a written criminal complaint, charging that Adams “did intentionally, knowingly, or recklessly enter or remain in a City and County of Honolulu park and/or botanical garden and/or State of Hawaii park within the City with intent, knowledge or reckless disregard of the substantial and unjustifiable risk….”

The citation notes Adams told the officer he did not know the parks were closed to the public. And, of course, the weren’t totally closed to the public, since they allowed people to gain access to the ocean through the park. You may recall that there’s been confusion about these rules all the way along.

How easy would it have been for the officer to simply say, “Well, sir, I’m sorry but the parks are closed by the mayor’s emergency rules, and you’ll have to leave the area. I’m know you understand our attempt to control the Covid outbreak. Thank you for your cooperation. And thank you for your service.”

Would that have been so difficult?

Now that this has become a criminal case, prosecutors must prove “beyond a reasonable doubt” that this visitor from Virginia “intentionally, knowingly, or recklessly” violated the mayor’s emergency orders. These elements are basic to the supposed “crime.”

Absent proof of those elements, there’s no way to prove a violation of law.

According to an article today in the Honolulu Star-Advertiser, prosecutors must believe that an email sent to Adams which included links to county rules was sufficient evidence of an intentional, knowing, or reckless violation. So they didn’t deliver the rules to him, or explain the rules to him. They sent an email with links. Right.

Good luck with that argument in court, folks. Especially with noted defense attorney Michael Green arguing on behalf of Adams and his aide.

The emergency rules, a copy of which was attached to the written criminal complaint, run 45 printed pages. And, it turns out, prosecutors attached the wrong version of the rules and have had to come back an request permission to amend the complaint to attached a corrected version of those rules. That request to amend is still pending.

And note: There have been reports that these citations for violation of emergency rules are being dismissed wholesale.

It didn’t take me more than a couple of minutes to find this example in which prosecutors simply declined further prosecution of 25 individual cases involving citations for violating emergency rules without explanation. All it took was a short, simple declaration by a deputy prosecutor declining further action. No muss, no fuss.

It’s time for prosecutors to stop digging their hole even deeper. Let common sense prevail.

Sign language interpreter conveys a heckler’s comment

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This capture comes from Nick Lindblad at A-1 Bail Bonds.

Quick Facts:

Everyone has been talking about it, and yes, it’s hilarious.

Mayor Caldwell held a press conference to disclose the extended lock down order.

A driver heckled Mayor Caldwell by yelling “F&^k You”

The sign language interpreter signed “F&^k You,” and everyone had a chuckle.

Mayor Caldwell had the perfect response to the heckler:

“Someone with strong opinions on what we’re doing” said Mayor Caldwell, with a light hearted tone.

Do yourself a favor and take 10 seconds to watch the entire clip (Volume Up). ?

By the way, Nick does regular interviews that get behind current events, including interviews with the candidates for Honolulu prosecutor. You can find them on his YouTube channel.

Watch by clicking on the photo below.

[Note: Ryan Ozawa has posted a clearer video, complete with a slow-motion replay.]

The contact tracing debacle is probably part of bigger woes

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Last week, Jennifer Smith, a state epidemiologist turned whistleblower, confirmed that she was aware of just 10 contact tracers following up on Covid-19 cases for the Department of Health. She had made that statement before, but this time put it in writing as part of a statement distributed by her attorney, Carl Varady. Carl is a very, very good attorney.

The ridiculously small number of contact tracers was quite different from what the public was being told for months. We heard officials continually telling us how the number of contact tracers was being rapidly ramped up, as it needed to be.

KHON, May 8, 2020.

…the health department says it’s already training more people for contact tracing and will have the capacity to trace up to 920 people per day before any surge occurs.

“Nine hundred twenty people a day. That’s as many as we can possibly imagine can happen, given the limits of our health system,” said Dr. Bruce Anderson, DOH director.

Bruce Anderson, quoted in a Star-Advertiser story on May 19, 2020 on the importance of contact tracing:

As Anderson explained Monday, “It’s not going to disappear. We’re going to have COVID-19 with us for many, many years to come, possibly our lifetimes. Our ability to manage the disease is going to be based on our ability to respond quickly and appropriately to new cases and contacts, and we expect that will continue.”

Elsewhere in the story, it was estimated that Hawaii needed 300-500 contact tracers.

Big Island Now, May 21, 2020.

A contact-tracing program — developed via a partnership between the Hawai‘i Department of Health and the University of Hawai‘i — will supplement the state with between 100 and 300 new contact-tracers as necessary, DOH Director Bruce Anderson said.

KHON-TV, June 19, 2020.

The health department is ramping up its contact tracing capability to prepare for more surges and it’s getting help from the University of Hawaii.

“We’re training 64 people per week in that program and we’re just about to finish week two. So we’re on track to train about 370 people by mid July 2020,” said Aimee Grace, UH Health Science Policy director.

Hawaii Public Radio, July 8, 2020.

In a sober tone, the normally upbeat Caldwell revealed that he was informed by the state Department of Health that if the daily rate of new infections remains at the level seen on Tuesday, it could prohibit the ability of the state’s contact tracers to effectively track down others potentially exposed.

That kind of tracing is widely viewed as essential to containing the pandemic. The health department already has 30 contact tracers on staff, with hundreds more being trained.

“Hundreds more being trained.” Really?

Hawaii Public Radio, July 16, 2020.

Park told the senators that the department is hiring and training more contact tracers but the focus shouldn’t be on contact tracing or testing, but rather on whether the community is abiding by the measures to reduce the spread of the virus.

You get the idea. Everyone acknowledged that contact tracing is critical. And we were repeatedly assured that the number of trained contact tracers was rapidly growing.

Then along came Jennifer Smith with a reality check.

From her statement September 10.

Contrary to other public statements I have read and heard, I was aware of a total of only 10 epidemiologist investigators at the Department on Oahu tracking the spread of COVID-19. The members of our team worked six to seven days a week 10 to 12 hours per day, often with no pay for overtime, trying to defend Hawai‘i from the pandemic while the numbers of infected people continued to mushroom. Our workload reached 300% of intended capacity, working with outmoded computers, overwhelmed phones staffed by people without complete training, and a data system that was never validated. Even working from home on weekends, we could not keep up.

In a meeting with Dr. Park on July 31st, I told her that our team was overwhelmed and could not keep up with the escalating numbers of infected people because our time and resources were already stretched to capacity. Her only response was to demand that we had to do more. A management culture of “bullying, shame and blame” fosters a culture of fear, not the solid science that is essential to insure Hawai‘i’s public health. Employees should not have to choose between protecting their careers, through unquestioning loyalty to ineffective leadership, versus asking for the tools to do the kind and quality of science necessary stop the pandemic. Our job is saving lives, not saving face. I was forced to leave the Department on September 4th when the faction protecting Dr. Park, at what I believe is the cost of public health, prevailed.

Contrary to public statements made by others, the only thing I have ever threatened was the toxic management culture at the Department and that has directly impeded my and other epidemiologist investigators’ work.

On top of the toxic administrative culture, the Department of Health was relying on obsolete technology, including a pair of fax machines, to communicate Covid-19 data through the system.

Okay, the terrible part of this story is that I’m afraid this is a template for critiques of most state departments. Too few people staffing key offices with little or no training, obsolete technology, and abusive management. When state departments are doing their jobs, or are not doing them as well as we should expect, we can’t blame the front-line workers. I’m willing to bet that in many other cases, those front line staff are facing the same toxic mix.

Officials like Bruce Anderson and Sara Park are smart and experienced people. Even they are caught in an under-resourced and overly political system.

We’ll eventually get past the Covid-19 pandemic. But will we find a way to get past a dysfunctional bureaucracy?