National Roundup

Pennsylvania
Judge tosses suit over ‘race-norming’ in NFL dementia tests
PHILADELPHIA (AP) — A federal judge on Monday dismissed a lawsuit that challenged “race-norming” in dementia tests for retired NFL players, a practice that some say makes it harder for Black athletes to show injury and qualify for awards.

A hearing had been set for Thursday. The judge instead ordered the NFL and the lead lawyer in the overall $1 billion settlement to resolve the issue through mediation. That process would appear to exclude the Black players who sued.

“We are deeply concerned that the Court’s proposed solution is to order the very parties who created this discriminatory system to negotiate a fix,” said lawyer Cyril V. Smith, who represents ex-players Kevin Henry and Najeh Davenport. “The class of Black former players whom we represent must have a seat at the table and a transparent process.”

The demographic factors that doctors consider during testing for dementia often include race. If so, lawyers say, the testing assumes that Black athletes start with worse cognitive functioning than white people — which means it’s harder for them to show a deficit and qualify for awards. Both Henry and Davenport were denied awards but would have qualified had they been white, according to their lawsuit.

Smith hoped to learn the scope of the problem through discovery as the lawsuit progressed, but the dismissal by Senior U.S. District Judge Anita B. Brody in Pennsylvania means he may never know how many Black players lost out on payments because of the practice.

Brody has steered the litigation since the first suits were filed in 2011, alleging that the NFL had long hidden what it knew about the link between concussions and brain injuries. The judge also ordered secret negotiations then that led to the surprise settlement of the case — long before discovery or trial — in 2013.

The settlement fund has so far paid more than $765 million to retired players for neurocognitive problems linked to NFL concussions, including about $335 million for dementia. Payments are expected to top $1 billion long before the 65-year settlement plan ends.

The dementia claims have proven especially contentious. Many of them have been denied, often after challenges from the NFL.

Smith believes the “race-norming” practice violates federal law and wants to see doctors banned from using it. He also wants to ensure that Black players denied awards for dementia get a chance to be reexamined.

Spokespeople for both the NFL and lead class counsel Christopher Seeger did not immediately return calls seeking comment Monday. League spokesman Brian McCarthy called the lawsuit “entirely misguided” when it was filed last year.

“The settlement program ... was the result of arm’s-length, comprehensive negotiations between the NFL and Class Counsel, was approved by the federal courts after a searching review of its fairness, and always contemplated the use of recognized statistical techniques to account for demographic differences such as age, education and race,” he said at the time in a statement.

Seeger, at the time, said he had seen no evidence of racial bias in the settlement program. He said that the testing was designed by experts and approved by Brody and that it was up to the evaluating physician to decide whether to include race as a factor.

Henry, who played for the Pittsburgh Steelers from 1993-2000, said his claim was denied although he suffers from headaches, depression and memory loss that leave him unable to hold a job.

Davenport, who played for the Steelers, Green Bay Packers and Indianapolis Colts from 2002-2008, said he suffered more than 10 concussions, including one that broke his eye socket and left him unconscious. He was approved for an award until the NFL appealed, asking that his test results be recalculated using racial norms, Smith said. By that measurement, his claim would fail.


Washington
Convicted killer Joseph Duncan has terminal brain cancer
SPOKANE, Wash. (AP) — Convicted child killer Joseph Duncan has terminal brain cancer and will likely die before his federal death sentence is carried out, according to court documents.

Duncan was convicted of killing four members of a family from Coeur d’Alene, Idaho, in 2005. He kidnapped two children, Dylan and Shasta Groene, from the family’s home and tortured them in Montana before killing the boy.

Shasta Groene was the only survivor of the rampage and was rescued when Duncan stopped at a restaurant in Coeur dÁlene and the girl was recognized by the staff.

Duncan was also linked by DNA to the murder of a 10-year old boy in California. He was convicted of that crime after he was convicted of the Idaho murders and kidnappings.

KXLY-TV reports Duncan, who is from Tacoma, Washington, has been on federal death row in Indiana for years as his appeals move forward.

In court filings earlier this year, attorneys disclosed that Duncan underwent brain surgery last October and was diagnosed with glioblastoma, stage IV brain cancer. According to court records, he has declined chemotherapy and radiation.

“In November 2020, Bureau of Prisons medical staff determined his life expectancy to be 6-12 months…. medical staff discussed end-of-life preparations with Mr. Duncan,” according to court documents.

Maine
Man cites COVID-19 restrictions in murder appeal
BANGOR, Maine (AP) — A man who’s serving a 40-year sentence for killing his wife is citing Maine’s COVID-19 restrictions in his appeal.

Noah Gaston, of Windham, contends his constitutional right to confront parties applies to sentencings in addition to trials, and that there would have been no harm in delaying the sentencing, the Bangor Daily News reported.

Gaston acknowledged killing his wife, Alicia, with a shotgun blast in 2016, but maintained that he thought she was an intruder.

Assistant Attorney General Donald Macomber, the state prosecutor who is handling the appeal, said the judge properly followed pandemic guidelines and did not violate Gaston’s rights.

The prosecution allowed the victim’s family and friends to testify by video at the sentencing last June while Gaston’s family and friends viewed the proceedings from a separate room at the courthouse to allow for social distancing during he pandemic.

In his appeal, Gaston also contends the sentence was too long and that the judge wrongly concluded his waived his right to religious privilege when he told a third party about conversations with church members.

The church members, who picked Gaston up at the local police station after his wife died, said he told them he saw a figure he thought was an intruder before he fired. But he also told them that was the only story he could tell if he wanted to see his kids again, according to the police affidavit.