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July 10, 2013
Advocates for the disabled cheered a recent Georgia Supreme Court decision that gives injured persons new rights to appear in court. Kesterson v. Jarrett, 291 Ga. 380 (2012). PCW attorney David Walbert represented Kyla Kesterson and her parents in the case, which involved claims of severe birth injuries and cerebral palsy caused by a delayed C-section and hypoxic ischemic encephalopathy. The trial court had ruled that Kyla could not be in court during the liability portion of her trial because her condition might elicit sympathy from the jury. The Georgia Court of Appeals affirmed.
The Georgia Supreme Court 6-1 decision reversing the lower courts decision was a landmark ruling that soundly affirmed the right of Kyla to be present when her parents and counsel thought it appropriate.
As Justice Nahmias wrote for the Supreme Court, “a party may not be excluded from her own trial simply because her physical and mental condition may evoke sympathy.” The court agreed with PCW’s argument that Kyla “had a constitutional right to be present in court.” It was wrong to discriminate against her because of her profound injuries, which occurred at the time of her birth. As the Supreme Court held:
The right of a natural party to be present in the courtroom when her case is being tried is deeply rooted in the law of this Nation and, if anything, even more embedded in the law of this State. . . .
Concern about inappropriate jury sympathy is not unusual in litigation, particularly in tort cases, where the plaintiffs often allege that the defendants caused serious injuries or death, and criminal cases, where the defendants are often alleged to have caused serious injury or death to individual victims. In our legal tradition, however, this concern is not resolved by excluding parties from the proceedings. . . .
Under the law of the land and the ambit of our Constitution, a person does not sacrifice her “right to prosecute . . . in person . . . that person’s own cause in . . . the courts of this state” just because she is unattractive, or disfigured, or handicapped – even to a much greater extent than Kyla.
Mr. Walbert’s oral argument in the Supreme Court can be seen by clicking on the video below.