« March 2007 | Main | May 2007 »
Monthly Archives: April 2007
Supreme Court Decision Update - Microsoft Corp. v. AT&T Corp.
Today’s second patent decision from the Supremes comes in Microsoft Corp. v. AT&T Corp. (PDF of the opinion) and is about the shipment of software overseas. AT&T sued Microsoft over copies of Windows it ships oversees for installation on foreign computers, because the Windows code includes bits that are patented by AT&T. In a 7-1 decision, the Supremes fall back on “the general rule under United States patent law that no infringement occurs when a patented product is made and sold in another country.”
The focus here was on an exception to this rule when someone sells a component necessary to make the patented invention. AT&T tried to argue that the Windows software, along with AT&T’s patented bits, was a “component” of the foreign computers being sold with Windows pre-installed, thereby pulling Microsoft within this exception. So there are two questions in this case - when does software qualify as a “component,” and whether the “components” in this case were supplied by Microsoft from the US.
As to the first question, Justice Ginsburg’s majority opinion held that software is considered a component when it’s made into something more than intangible information - when it’s made physical in a way that computers can read it, such as when it’s put onto a CD. But Microsoft sends out master copies of Windows, either on a master disk or electronically, which are in machine-readable object code and akin to information in a blueprint - it’s a roadmap, rather than an actual component. Only when there’s the “extra strep” of making copies of the software which machines can interact with is there a component, says Ginsburg.
And that, she adds, answers the second question - Microsoft isn’t making the “components” in this case. It’s the foreign companies that make the components when they make copies from Microsoft’s master. So Microsoft supplies from the United States, but it’s not actually supplying a component. Which means AT&T is S.O.L. in this situation (not to mention, says Ginsburg, there’s a “presumption against extraterritoriality” which weighs against AT&T if there was any doubt here).
Now the majority opinion was only joined in full by the Scalia and Justices Kennedy and Souter. Justice Alito wrote a concurring opinion, joined by Justices Thomas and Breyer - while Alito agrees that there were no “components” supplied by Microsoft from the US, he gets there in a different way. In his mind, “no physical object originating in the United States was combined with these [foreign] computers,” since no physical part of the software disk sent out by Microsoft becomes a physical part of the final foreign computer. So that is why he says Microsoft is okay here.
As an aside, Alito concurs with all but one footnote of Ginsburg’s opinion. In footnote 14, she said: “Microsoft suggests that even a disk shipped from the United States, and used to install Windows directly on a foreign computer, would not give rise to liability…if the disk were removed after installation…. We need not and do not reach that issue here.” But Alito doesn’t concur with this one point because “the physical incarnation of code on the Windows CD-ROM supplied from the United States is not a “component,” [which means] it logically follows that a copy of such a CD-ROM also is not a component.”
Finally, there is a lone dissent filed by Justice Stevens (yes, Chief Justice Johnny is missing - he wasn’t involved in this case). He thinks that finding Microsoft liable is more in check with what Congress intended when it created the “component” exception: “if a disk with software inscribed on it is a ‘component,’ I find it difficult to understand why the most important ingredient of that component is not also a component.”
Supreme Court Decision Update - KSR International Co. v. Teleflex Inc.
The first of today’s two patent cases is KSR International Co. v. Teleflex Inc. (PDF of the opinion), and it’s about the obviousness requirement. As Dennis Crouch succinctly explains, the unanimous opinion authored by Justice Kennedy “appears to simply refine the particulars of how prior-art can be combined and when a ‘combination patent’ will be seen as obvious.” This, Crouch says, means that “patents will be more difficult to enforce and easier to invalidate.”
The facts behind this case are quite involved, delving into several patents relating to adjustable car pedals. The important thing to know to understand this case is that Teleflex got a patent for one such adjustable accelerator pedal which arguably did little more than combine technologies and aspects covered by earlier patents (so-called “prior art”). Teleflex then sued KSR for infringement of this patent, which is how this got in front of the courts.
Now the patent laws say that you can’t get a patent when the covered technology would be obvious to one skilled in the art, and KSR argued that Teleflex’s patent was obvious, meaning it should be invalidated. Both the District Court and the Court of Appeals for the Federal Circuit disagreed, ruling that Teleflex’s patent wasn’t obvious and was therefore valid.
When the Federal Circuit looks at the question of a patent’s obviousness, it applies “the teaching, suggestion or motivation’ test (TSM test), under which a patent claim is only proved obvious if ‘some motivation or suggestion to combine the prior art teachings’ can be found in the prior art, the nature of the problem, or the knowledge of a person having ordinary skill in the art.” KSR says this test is no good, and the Supremes basically agree.
In a unanimous opinion, Kennedy says that the Federal Circuit’s test is too narrow. He points out several flaws in the way the Federal Circuit analyses patent obviousness, and wraps things up with this little bit about how we need to basically balance the need for restrictive patents with the need for allowing room for growth and invention of new things:
We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U.S. Const., Art. I, § 8, cl. 8. These premises led to the bar on patents claiming obvious subject matter established in Hotchkiss and codified in § 103 [of the Patent Act]. Application of the bar must not be confined within a test or formulation too constrained to serve its purpose.
Supreme Court Decision Update - Scott v. Harris
This may be the best Supreme Court decision ever because on the Supreme website, you don’t just find the written opinion, but a downloadable video (Real Player format) of a high-speed car chase. Who doesn’t love high-speed car chases? Nobody, that’s who.
So back in 2001, a local deputy busted a car for speeding. He tried to pull the driver over, and this turned into a high-speed chase, which Deputy Timothy Scott joined. The chase ended when Scott used his car to push the fleeing car off the road. The car crashed and the fleeing driver wound up a quadriplegic. He then filed a civil rights lawsuit, claiming that Scott had used excessive force resulting in an unreasonable seizure under the Fourth Amendment. Scott tried to have the case thrown out on the basis of “qualified immunity,” but the District Court and Eleventh Circuit said that Scott’s actions might be considered “deadly force,” and that the use of deadly force in this particularly situation may have been a constitutional violation.
In an 8-1 decision, the Supremes reversed, finding that the driver initiated the chase and, as such, he had caused a serious risk to others which authorized Scott to use possibly deadly force to get the car chase off the road. This 8-1 majority opinion was written by the Scalia, and joined by everyone but Justice Stevens. Stevens filed a dissenting opinion, and there were also two concurring opinions from Justices Ginsburg and Justice Breyer.
As I mentioned, there is a video of the car chase. The Scalia says that this video quite clearly shows events which contradict the plaintiff’s version of how things went down (the plaintiff claims that there was no risk to others, that he didn’t run any cars off the road, etc.), and that no reasonable jury could believe his story. As such, the lower courts were wrong to adopt his version of facts in considering Scott’s summary judgment motion (as you may know, when a party moves for summary judgment, the court will generally accept the other side’s alleged facts as true for the purpose of resolving that motion). And in light of the facts as shown on the video, says the Scalia, it’s clear that there was no Constitutional violation. This is because the question is, regardless of whether or not Scott’s actions were “deadly force,” were they reasonable.
And the Scalia says this was a reasonable seizure in light of the high likelihood of injury to others (which justified the intrusion made by Scott ending the chase). And Scalia is not willing to make a rule requiring cops to stop their chases, as that rewards drivers who drive so recklessly that they create these dangerous high-speed situations:
A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.
Justice Ginsburg filed a one-page concurrence, just to say that she doesn’t think the majority opinion articulates “a mechanical, per se rule.” So there may be a situation where an attempt to end a high-speed chase results in a Constitutional violation, she doesn’t think this was such a case. Justice Breyer, meanwhile, filed a concurring opinion for a couple of reasons. He agrees with Ginsburg’s point, and says so. He also suggests “that the interested reader take advantage” of the Court’s publication of the chase video “and watch it.” Right on, Breyer! Finally, Breyer notes that while some precedent was overturned by the majority, he thinks that “stare decisis concerns are at their weakest here” because there has been “little reliance” on those earlier cases.
Lastly, Justice Stevens filed a dissent because he thinks there not only should not be a hard-line “per se rule” (like Ginsburg and Breyer said), but he thinks that there is room for different interpretations of the video in this instance. He says the majority actually makes an “unprecedented departure from our well-settled standard of review of factual determinations made by a district court and affirmed by a court of appeals,” and he’s having none of it.
American Idiot
That “American Idol” television program is a crazy PR machine. Three days before season two near-finalist, Olivia Mojica, is set to release the first ever “AI”-related sex tape, “Hardcore Idol” (which is “very explicit” and has over 40 minutes of “hot sex,” and is in stores Thursday!), an actual finalist from the 2005 season is focusing even more attention to the show, because being number one and number two in the Nielson ratings every single week just isn’t enough.
Jessica Sierra, who papers are reporting is best remembered for her remake of “Total Eclipse of the Heart” (completely untrue — she’s not remembered at all), was arrested early Sunday morning out in Tampa, Florida. She was booked on a charge of “assault with a deadly weapon” after slamming a drinking glass over a man’s head, inflicting a cut over his eye. She was also charged with possession of cocaine after officers found some of the good stuff on her while performing a search of her person. During the arrest, police had to threaten to shackle her legs because she attempted to kick out the window of the police cruiser.
While posing for her mug shot, Sierra reportedly kept holding up eight fingers, indicating which contestant viewers should vote for. Police also rebuffed Coca-Cola’s efforts to have Sierra hold up one of their products while taking the photo.
Supreme Court Decision Update - EC Term of Years Trust v. United States
The Supremes ushered out five opinions today, and we’re gonna’ talk about EC Term of Years Trust v. United States (PDF of the opinion) first, because it’s nice and short. In a unanimous opinion written by Justice Souter, the Supremes were looking at a very specific situation involving a third party challenging the IRS when it levies upon that third party’s property to collect taxes owed by another.
If that doesn’t make much sense to you, I don’t blame you. Here’s the deal. The IRS may sometimes levy upon some property to collect on taxes someone else owes. In this case, a couple had formed the EC Term of Years Trust back in 1991. This couple owed the IRS some money, and the IRS took a tax lien against the Trust, assuming the couple had illegally transferred money to it. The Trust denied any tax obligation on the couple’s behalf, but to avoid further financial issues, it put money in a bank account which the IRS then levied, eventually getting a $3 million check from the bank. A year later, the Trust sued the IRS, claiming a wrongful levy. However, the Internal Revenue Code says that you have nine months (from the date of the levy) to challenge a levy you think was wrongful. So the case was thrown out for being filed too late.
The Trust tried to claim that it was allowed to sue the IRS under the auspices of seeking a tax refund, but the Court was unpersuaded. And today, the Supremes agreed that this argument is no good. When your property is wrongfully levied by the IRS, your only remedy is to sue them under that 9-month provision of the Internal Revenue Code. And since the Trust didn’t sue within nine months, the IRS just made a cool $3 million which it might not otherwise be entitled to keep. Government at work, baby!
It should be noted that this decision was also yet another Supreme slap in the Ninth Circuit’s face, as it has previously ruled that this 9-month provision “is not the exclusive remedy for third parties challenging a levy.”
Wat a minute. Where’s your long-winded analysis, with all the questions like this one? Well, QuizLaw is changing these Supreme Court Decision Updates up a little. Quite frankly, it’s just too much for us to do the in-depth breakdowns on every case, while also holding down day jobs, trying to maintain semblances of a life, personal relationships, etc. I mean, the Supremes issued five opinions today, coming in at over 140 pages. That’s a lot, and our long-winded breakdowns take time. If some wealthy, VC-type QuizLaw reader wants to talk to us about underwriting the Updates, we’d be happy to listen. But as that’s rather unlikely to occur, we’re all going to have to settle for shorter, quick and dirty updates (although we’ll try our best to give more in-depth looks at really “big and important” decisions, but no promises).
S’all right?
S’all right.
Only in America The Rest of the World is Full of Dumbasses, too!
We generally stick to domestic legal stories, but I thought I’d introduce tales of a couple of international cases just to demonstrate to our seven readers that the jury system is just as screwed in other countries as it is here in the States.
Take, for instance, a Canadian man who stole over $100 worth of razor blades at a supermarket. Employees at the supermarket discovered that he’d stolen them and, during the course of their arrest, handled him a little too roughly, i.e., he lost a tooth and now he has difficulty speaking. He’s been awarded $12,000 Canadian dollars (a.k.a. funny money) in damages. And given the price of razors today (I used to lift the occasional pack during my poorer law school days; the prices are freakin’ outrageous — I grew a beard over the winter and saved enough money to put a down payment on a house), he ought to be able to buy at least a couple new packages of razor blades, though I do understand that Canadian money is only good for games of Monopoly.
Elsewhere, in Australia, a judge has found in favor of a mentally retarded apprentice hairdresser and awarded her upwards of $500,000 after the woman lost her leg in a railroad accident. The 26-year-old woman, Leigh Ann Russell (who reads at an 8th grade level) saw a group of young men painting graffiti near the train; one of the boys then jumped up onto the ladder attached to the train.
Ms. Russell told the court the boy made it look “like he was a star athlete at it”.“Because he made it look so easy I go, ‘I could do this too,’ ” she said, agreeing that she copied him because she wanted to look “cool.
But she realized she was in trouble as the train sped up.
She let go of the ladder and was dragged over rocks beside the track, injuring her right leg so badly it had to be amputated below the knee.
Now, if you really want to look “cool,” Ms. Russell, you ought to get yourself one of those Grindhouse legs.
The Daily Memo - 4/30/07
New York’s governor, Eli Spitzer, has proposed a bill legalizing gay marriage, although he expects the state legislature to reject the legislation. (Yahoo! News)
The new “Internet Radio Equality Act” looks to save internet radio by, among other things, getting rid of the new royalty rate hike - but since that hike takes effect on May 15, don’t hold your breath on this getting through in time. (Download Squad
If you are a California convict, you can hook yourself up with a posh cell for just $75 to $127 a day. (Houston Chronicle)
A man has been charged with theft for spending $80,000 that had been accidentally deposited into his bank account. (CBS News)
The Feds are trying to figure out who’s responsible for leaving over 700 pounds of cocaine on a flight from Mexico that landed at Chicago’s O’Hare on Friday. (Chicago Tribune)
Hand out over 1,000 fliers with naughty pictures of your ex-wives and you, too, can have a face-to-face meeting with the police. (Wave 3)
Tennessee’s Senate has passed a bill approving the sale of booze in the state’s zoos. (CBS46)
Yet another shining example of lawyers at their best
Cynthia D. Garris is a defense lawyer in Virginia who has now been publicly reprimanded by the state bar. Last summer, she was in court for a case and told the judge that she needed to postpone the proceedings because of a conflicting commitment in another court. The judge gave Garris her postponement, only to later learn that she had used this new free time to go shopping. He smacked her with a contempt ruling and a $250 fine, and she of course apologized for her actions, saying it was “immature, selfish and inexcusable.”
“But,” she allegedly added in a statement to the state bar, “just look at how my new shoes match my new briefcase. This kind of fabulous pairing doesn’t just happen by itself. It takes work, your honor.” But it would seem that the Virginia State Bar just doesn’t care about good fashion.
Can we just start calling him “former Senator” now?
You know, one of the pieces of legislation John McCain is best known for is one which happens to bare his name - the McCain-Feingold Act, a 2002 bill which enacted campaign finance reform. Maybe McCain needs to revisit campaign reform, and pass some sort of limits on how much a politician’s current job he or she can skip out on while campaigning for reelection or a new public job.
Of course, McCain would suffer more than most under such a regime, since he’s now been deemed the “most absent Senator in [the] 110th Congress.”. Technically, he’s actually second on that list, but Senator Tim Johnson gets a pass since his absences are due to his unfortunate brain hemorrhage last December.
Meanwhile, McCain has missed over 40 percent of the Senate’s role-call votes to date, a fact which he happily ignores while hypocritically attacking other candidates for their own voting:
While McCain did not have time to vote against the [Iraq] withdrawal plan [on Friday], he did find time to release a harsh statement attacking the Senators who did not vote to begin redeployment. “We need to send a bill to the President that he can sign, and we need to do it as soon as possible,” he said.
He added: “…well, as soon as possible, so long as it doesn’t interfere with kissing babies. I mean, priorities people! Why try to help our soldiers and run our country and all these things when there are palms to be pressed?”
…and the public perception of lawyers falls another dozen notches
Roy Pearson, a Washington DC lawyer, took his pants to the dry cleaners, and now he’s trying to take the dry cleaners to the dry cleaners (that bad joke’s free, but the next one is gonna’ cost you!). A couple of years ago, Custom Cleaners lost some pants Pearson had brought in for a $10.50 alteration. So he did what lawyers do best, and he filed a lawsuit.
The case is set for a June trial, and it should be interesting to see this scumbag in action.
“But Seth,” you say, “he filed a lawsuit because they lost his pants - why does that make him a scumbag?” Well reader, I say, he’s not a scumbag because he’s suing them, per se. He’s a scumbag because he wants … $65 million!
He says he deserves millions for the damages he suffered by not getting his pants back, for his litigation costs, for “mental suffering, inconvenience and discomfort,” for the value of the time he has spent on the lawsuit, for leasing a car every weekend for 10 years and for a replacement suit.
Oh yeah, and he’s not just a scumbag lawyer. This wonderful human being is also a judge!
Go read the story and be amazed at the sheer lunacy.
“How come all my food tastes like motor oil?”
Roger Bean of West Palm Beach, Florida (…where else?) has been hit with charges of running a dental office out of his garage. An illegal dentist’s office, as he is unlicensed – the 60-year-old has allegedly been making false teeth and dentures, charging $200 for what usually costs over two grand.
And not only was the work itself illegal, but there were serious health risks, as his garage has been described as “filthy.”
Personally, I love the fact that his clients “praised Bean for saving them thousands of dollars.” I mean, I understand that some elderly folks may not have the money to afford proper dentures. But can they really be all that happy about the potential disease and infestation they’re putting into their mouth each and every day? I mean, is the Plague really worth it?
Oh, that’s right. These folks are all Floridians too. They probably actively seek out the Plague. …I love Florida.
The Daily Memo - 4/27/07
A judge has ruled that the University of Wisconsin-Madison has to give the RIAA the names and contact info for 53 students. (Wisconsin State Journal)
A big anti-spam lawsuit is being filed in Virginia seeking the identity of some of the folks who help spammers harvest e-mail addresses. (Slashdot)
Turns out popular belief is wrong, as a law professor has compiled evidence suggesting that malpractice juries actually tend to side more with doctors rather than with plaintiffs. (Law.com)
A Chicago-area student was arrested after writing an essay which got his teacher and school administrators worried about a potential Virginia Tech-type situation. (Chicago Tribune)
Is there a criminal legal doctrine based on “thrusting?”
Twenty-nine-year-old Tiffany Weaver has pleaded guilty to identity theft and using someone else’s government ID. She was charged with posing as a lawyer so that she could get into a Baltimore City prison to have sex with one of the inmates. While she confesses to using the fake ID, she says there was never any prison sex, despite prison officials saying that they saw the sex.
Her attorney denied the sex charges as well, putting it thusly: “There was never any sexual intercourse. There was no thrusting whatsoever.” No. Thrusting Whatsoever.
…Are we sure this guy isn’t impersonating a lawyer as well?
Who’s got bigger balls?
On Wednesday, the House Oversight and Government Reform Committee subponead Condoleezza Rice to come give testimony about the original justifications of the Iraq invasion. The subpoena came after the Committee voted in favor of it in a 21-10 vote which fell along party lines. The subpoena “directs her to answer questions from the panel next month about the administration’s claim — later proven false — that Iraq had sought uranium from Niger for nuclear arms.”
But she and the administration are planning to fight the subpoena, more or less, as Rice has said she’ll only reply with a letter. “I’m way to important to actually come talk to y’all,” she is alleged to have said. (Allegation comes solely from QuizLaw.) So study up on executive privilege, as it sounds like the doctrine will be coming up yet again next month, as this whole mess plays out.
(And if you’re curious, Slate explains “why Congress has the power to make arrests.”)
Mmmmm…pie
From the always brilliant Indexed comes this very simple breakdown of a fundamental civics lesson:
Church vs. State: Two Case Studies
Well, the church vs. state argument is still alive and well, as demonstrated by these two cases.
First, in Connecticut, a federal judge has ordered that post offices run by churches and other religious organizations cannot promote religion within the confines of the post office.
The religious displays “put the church’s beliefs front and center, out for the public to see, endorsing the church’s form of Christianity and seeking outsiders to join the church in its mission,” U.S. District Court Judge Dominic J. Squatrito wrote in a decision handed down last week. The displays “violate the Establishment Clause of the First Amendment.”
The case was brought by a Jewish war veteran and the Connecticut ACLU, who complained that the local post office — run by Sincerely Yours Inc., which is part of the Full Gospel Interdenominational Church — violated the vet’s First Amendment rights because the post office was full of Christian messages and symbols.
But, in another case in Ohio, a man who was arrested for trying to use a stolen credit card at a drugstore was freed. When Eric Hine appeared in court, his lawyer told the judge that his bond should be set low because Hine was an avid churchgoer. The judge, skeptical of Hines’ religiosity, asked him to recite the 23rd Psalm. He did: all six verses.
The courtroom broke into applause and Hine was released on a $10,000 appearance bond (meaning he only has to pay it if he doesn’t show up).
The Case of the Overbilling Dickhead
Florida. Overtime Case. Dickheads. Here we go:
Two weeks ago, Chief Judge William Zloch denied attorney Peter Mavrick’s request for attorney fees of around $150,000, giving him instead $4,900 and barring him from receiving any further funds from his client’s settlement. In the case, Mavrick and his opposing counsel, Jeffrey Norkin, worked over three years, made 276 filings, and racked up hundreds of thousands in legal fees.
But the irony here is that the case was a simple, straightforward overtime dispute, where the employee sought only $11,000 from her employer for back wages, and the employer actually settled the case for that amount.
So, what the hell? Well, apparently, the two lawyers didn’t get along very well and the personal dispute between the two led to this unnecessarily protracted litigation of a case that the judge said should’ve taken about 19 hours, instead of the 455 billed by one attorney at $300 an hour. At various times during the course of the case, the lawyers were not on speaking terms, complaints were filed against the Florida bar, the plaintiff was called “a bitch” by opposing counsel, a door was shut on a court reporter, knocking the elderly woman out of her chair, and best of all was this:
After the overtime pay suit was filed, the relationship between Mavrick and Norkin quickly deteriorated. Norkin claimed that when Mavrick called him to schedule a deposition, Mavrick started the conversation by saying, “Dickhead, when can we do this deposition?”“I went around the office, stunned, telling everyone, this guy just called me a dickhead,” Norkin said. But Mavrick claimed that Norkin called him a dickhead, and put the accusation in court papers.
What the lawyers should’ve done, however, was to simply explain to the judge that, according to the Urban Dictionary, “dickhead” is a synonym for lawyer. So, the two were just referring to each other by their more informal titles.
Supreme Court Decision Update - Smith v. Texas
In yesterday’s Smith v. Texas (PDF of the opinion) decision, the Supremes took a second look at a case about Texas death sentence jury instructions (the same type of instructions they looked at in yesterday’s other two cases). The Supremes ruled that the Texas appeals court botched the issue, as there were procedural problems with the instructions, meaning that Smith’s constitutional rights were violated.
QuizLaw Analysis: This case came up to the Supremes in 2004. Now, the Supremes basically tell the Texas court that it got everything all wrong, and it should’ve just done things right after that 2004 opinion, i.e., “these instructions were bad and you have to rule that Smith’s death sentence gets tossed, and we’ll keep telling you this until its gets through your fat collective head.”
So this is Smith’s second time in front of the Supremes? Yessir. A while back, LaRoyce Lathair Smith was convicted of brutal first-degree murder in Texas, and a jury hit him with the death sentence. In imposing the death sentence, the jury had to look at some special issues, which is what this case is all about.
What are special issues? Ok, so we’re talking about Texas law here. Now when we look at a jury verdict form in Texas, there are several so-called special issue questions, which are intended to help the jury figure out if the death penalty should be imposed in a particular situation. At the time Smith was on trial for murder, Texas law looked at three special issues: whether the murder was deliberate, whether there was future danger, and whether the murder was an unreasonable response to any provocation by the victim. That third issue didn’t come into play in Smith’s case, so the jury just looked at the questions of deliberateness and future danger and, because they answered “yes” to both questions, they imposed the death penalty.
But what about mitigating factors? Good question, grasshopper. The Supremes actually looked at these two special instructions in another case, Penry v. Lynaugh (which we call Penry I). The Supremes ruled that the instructions weren’t broad enough to allow the jury to consider mitigating evidence, which creates a constitutional problem: “We refer to the inadequacy of the special issue instructions as “Penry error.”
So why were these special issue questions used in Smith’s case? After Penry I, for a time, the Texas courts tried to cure the Penry error with a so-called nullification charge. The judge in Smith’s case used such a charge:
In Smith’s case the trial court instructed that if a juror was convinced the correct answer to each special-issue question was “yes,” but nevertheless concluded the defendant did not deserve death in light of all the mitigating evidence, the juror must answer one special-issue question “no.” The charge was not incorporated into the verdict form. In essence the jury was instructed to misrepresent its answer to one of the two special issues when necessary to take account of the mitigating evidence.
Well that doesn’t sound right. Correct - it isn’t. In Penry v. Johnson (Penry II), the Supremes ruled that a nullification charge “created an ethical and logical dilemma” preventing juries from really allowing mitigating evidence to factor into the sentencing decision. “In other words, Penry II held that the nullification charge did not cure the Penry error.”
Anything else we need to know? Yup. Before trial, Smith filed several challenges to the jury instructions in his case, arguing that the special issue questions were unconstitutional. He had several arguments for this, one of which was that they the nullification charge needed to actually be on the jury verdict form. The trial count denied all of the challenges and as to the last one, the judge gave Smith a copy of the nullification charge and told him that he should offer any suggestions if he wanted it worded differently. Smith declined to offer any such suggestions, so the charge was given to the jury as originally written (although it still wasn’t on the verdict form). The jury answered “yes” to both of the special issues, and Smith was smacked with the death sentence.
After the trial, Smith filed a whole bunch of appeals and habeas petitions. This case largely turns on what issues, exactly, Smith raised during these appeals and the petitions. The majority’s opinion spends quite a few pages looking at it all, but it basically boils down to this - the majority says that Smith was always contending, primarily, that the special issue questions suffered from a Penry error (and not, as Texas argued, that the real problem here was jury confusion caused by the nullification charge).
So who is the majority here? Same as in yesterday’s other two cases, although this one was penned by Justice Kennedy (and joined by Justices Stevens, Souter, Ginsburg and Breyer).
Wait – didn’t you say Smith was already in front of the Supremes? That’s right. The Supremes issued an opinion in 2004 where they ruled that the Texas Court of Criminal Appeals was wrong in denying Smith relief, because there was definitely a Penry error. And even though the nullification charge given in Smith’s case was different from the one considered in Penry II, those differences were “constitutionally insignificant,” meaning the nullification charge didn’t fix the Penry error and was inadequate underPenry II.
So how did we end up back with the Supremes? The case went back down to the Texas Court of Criminal Appeals, which again denied relief to Smith. This time, the court said that Smith had not preserved the right to make a Penry II challenge because at trial he wasn’t actually challenging the jury charge, but was really challenging the state statute authorizing the special issue questions. This, the court said, was a procedural error which it could only consider if there was egregious harm, not just some harm. And the court said there wasn’t any egregious harm, so relief denied.
Can we finally to get to the meat and potatoes of this decision? Kennedy being by reiterating that the special issue questions used in Smith’s trial suffered from a Penry error which was not cured by the nullification charge. That’s what Smith I was all about. Kennedy clarifies that the basis of the Court’s ruling in Smith I had to do with the error arising from the defecting special issue questions, not any error specifically caused by the nullification charge.
So the appeals court botched this on remand when it interpreted Smith I as granting relief in light of an error with the nullification charge. And, says Kennedy, if you look at all of Smith’s post-trial arguments, as well as the resulting state court judgments, it’s quite clear that Smith was always attacking the special issue questions (specifically the jury charge, not really the Texas statute), and that his argument never changed.
And so it all just boils down to this - the appeals court was all confused, misunderstanding how Penry I and Penry II work together, “and it mistook which of Smith’s claims furnished the basis for this Court’s opinion in Smith I.”
And what’s the right standard of review? The Texas court said that Smith’s claim wasn’t properly preserved, and thus Smith had to show egregious error. But Kennedy just said the objection was properly preserved, so the Texas court was wrong on this. Thus, if there’s “‘a reasonable likelihood the jury believed it was not permitted to consider’ some mitigating evidence,” the appropriate error standard is met. And the state court is “required to defer to our finding of Penry error, which is to say our finding that Smith has shown there was a reasonable likelihood of that the jury interpreted the special issues to foreclose adequate consideration of his mitigating evidence.” Which means it appears that Smith is entitled to relief.
And what of the dissent? Actually, we have a concurring opinion first.
Ok - so what of the concurrence? Well Justice Souter wrote a quick little thing, and I’ll just quote it, as it would take me longer to summarize it:
I join the Court’s opinion. In some later case, we may be required to consider whether harmless error review is ever appropriate in a case with error as described in Penry v. Lynaugh, 492 U.S. 302 (1989). We do not and need not address that question here.
That’s the extent of his concurrence.
Once again then, what of the dissent? The dissent here was written by Justice Alito, and joined by Chief Justice Johnny, Thomas and the Scalia. Alito says this is all less complicated than Kennedy suggests. Smith’s attorney never objected to the actual text of the special issue questions, says Alito, nor did he take up the judge’s offer to provide new language for the nullification charge. Alito says the Texas appeals court was right to therefore say an objection had not been properly preserved, and that the “egregious error” should apply. And thus, he says this is now a state law issue, which this court doesn’t even have jurisdiction over: “According, I would dismiss for want of jurisdiction.” He then explains this all in much more depth over a dozen-or-so pages, but I’ll leave the details for you to explore on your own.
Supreme Court Decision Update - Brewer v. Quarterman
Brewer v. Quarterman (PDF of the opinion) is a companion case to Abdul-Kabir and given that the same questions are presented, the only reason I can conclude as to why the two cases were not consolidated was because the Supreme Court hates me and wants me to have to do extra work.
QuizLaw Analysis: This is another mitigating evidence case, and well, Stevens pretty much says the same thing he did in Abdul-Kabir, only now he’s got the extra weight of Abdul-Kabir as precedent. So now, when he says “clearly established law,” he can cite from the law he just clearly established with the case he wrote right before this one. Ahoy! Fortunately, both Roberts’ and Scalia’s dissent were consolidated for both cases.
Well the facts are at least different, right? Yeah. Brewer committed murder during a robbery (as did Abdul-Kabir), but Brewer introduced different types of mitigating evidence, not justabout a terrible childhood, but also about bouts of depression, hospitalization, drug abuse, and father abuse. Unlike Abdul-Kabir, however, he didn’t introduce any expert testimony.
In this case, the exact same jury instructions were given as in Abdul-Kabir, (did he deliberately murder the victim and is he a future threat of violence?) only this time, the prosecutor not only said that the sentencing jury could only consider the facts, but specifically said “[y]ou don’t have the power to say whether [Brewer] lives or dies. You answer the questions according to the evidence, mu[ch] like you did at the guilt or innocences [sic]. That’s all.”
The jury answered in the affirmative and Brewer was sentenced to death.
But, really — what is the difference between this case and Abdul-Kabir? Honestly, the only relevant difference is that Abdul-Kabir, in addition to testimony from his family, also introduced expert testimony. Brewer did not. However, while repeating his line of reasoning in Abdul-Kabir, Stevens also adds here that “the question of whether mitigation evidence could have been considered by the jury is [not] a matter of quantity, degree, or immutability.”
In other words, Stevens is saying that it doesn’t matter how much mitigating evidence you have, the amount must be given full effect and the jury still must have a “vehicle for expressing its ‘reasoned moral response’ to” mitigating evidence. Here, as in Abdul-Kabir, the jury instructions did not allow the jury to make a decision in a “reasoned, moral way.”
The Daily Memo - 4/26/07
Sigh … another dumbass gets arrested for a DUI on the way to a DUI hearing…. (Centre Daily)
North Dakota has joined Mississippi by passing a conditional abortion law which is set to outlaw abortion in the state the moment if/when the Supremes overturn Roe v. Wade. (Above the Law)
The New Jersey Supremes have ruled that public policy doesn’t support the state not rehiring a toll collector who got in trouble for shooting off a paintball gun at a car. (Law.com)
Hahahahahahaaaaa … Perez Hilton has been sued by five more paparazzi agencies for copyright infringement because of unauthorized use of their photos. Suck it, Perez. (The Hollywood Reporter, Esq.)
A Cleveland man’s last words before being put to death for the 1994 murder of his wife was that he would be helping the Browns win the Super Bowl from the afterlife. (Deadspin)
A Department of Homeland Security officer has confessed to helping run a massage parlor which (allegedly) gave happy endings. (The Buffalo News)
Supreme Court Decision Update - Abdul-Kabir v. Quarterman
Abdul-Kabir v. Quarterman (PDF of the opinion), the first of three death penalty cases handed down by the Supremes yesterday, involves jury instructions. Specifically, it looks at whether a judge allowed constitutionally adequate consideration of mitigating evidence to be considered by a jury which wound up imposing the death penalty.
QuizLaw Analysis: Like the other two death penalty cases handed down today, this one was decided 5-4 in favor of the defendant. The Court reasonably concluded that a sentencing jury ought to be given the opportunity to consider constitutionally relevant mitigating evidence. The big hullabaloo in this case, however, is about what precedents should’ve controlled. And although Justice Stephens’ opinion gained the five-vote majority, Chief Justice Johnny’s dissent won the sarcasm award, hands down.
So, what’d this dude do? Back in 1987, Jalil Abdul-Kabir (formerly Ted Cole) decided — along with his stepbrother and his stepbrother’s wife — to rob the stepbrother’s wife’s grandfather, Raymond Richardson. Two days later, they did the deed, strangling Richardson with a dog leash and coming away with $20 dollars, which they used to buy beer and food. I hope that was some tasty beer, because it led to this capital case, in which Abdul-Kabir was convicted and sentenced to death.
Okay, and what’s the deal with the jury instructions? During the sentencing phase, the jury was given only two questions, which they were required to give a yes or no answer to: (1) did Abdul-Kabir deliberately kill Richardson; and (2) Is Kabdul-Abdir a continuing threat to society? During the sentencing hearing, Abdul-Kabir introduced family members who testified that he had a difficult childhood full of violence and neglect, as well as expert witnesses who testified that his difficult childhood and some neurological damage had a bearing on Adbul-Kabir’s violent tendencies (he had also been convicted of an earlier murder, for which he served out his sentence). However, that evidence had no relationship to the yes or no questions, according to the prosecutor, who told the jury to simply answer the questions based on the facts, disregarding other views as to what might constitute appropriate punishment. The judge also denied the defendant’s request that the jury be able to consider mitigating evidence that would have authorized “no” answers to those questions. Based on the facts alone, the jury responded in the affirmative to both questions and Abdul-Kabir was sentenced to death.
Bummer. So, what’s the issue? The issue is whether the jury instructions allowed the jury to consider and give full effect to his mitigation evidence.
All right, then. What’s the majority say? Justice Stevens, writing for the majority, devotes a large section of his opinion to the judicial history of this particular issue, discussing (cherry-picking?) at length the majority, concurrence, and dissenting opinions to something like 47,342 cases, before ultimately concluding that Penry I governs the facts of this case. And basically, Penry I says that, even if you do answer yes to the above questions (did he commit the murder deliberately and is he a future threat to society), you still have to provide the jury “with a vehicle for expressing its ‘reasoned moral response’ to” mitigating evidence.
While the dissent and some precedent established that mitigating evidence should only be used where there is a nexus between that evidence and the crime (e.g., where mental retardation was a contributing factor in a defendant’s decision to murder someone), the majority concludes that a jury should also be able to factor in mitigating evidence when deciding “whether death is an appropriate punishment for that individual in light of his personal history and characteristics and the circumstances of the offense.” In this case, the two yes-or-no questions given by the judge did not offer an outlet for the jury to express its “reasoned moral response.” Therefore, Stevens (joined by Justices Kennedy, Souter, Ginsburg, and Breyer) overturned the lower courts’ rulings.
So, what’s up Chief Justice Robert’s ass? Well Roberts doesn’t seem to be nearly as upset with the actual decision than with how the majority arrived at that decision. He complains that the majority basically looked at five different cases that could’ve controlled here, picked Penry I, and “anoint[ed] that case as the one embodying ‘clearly established Federal law.’” He argues that “it should not take the Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain what the ‘clearly established law’ is.” (We agree on at least one thing, Justice Roberts! I could’ve done without those 12 pages myself.) He further suggested that the lower courts didn’t have a “clearly established law” to work from — they only had a “dog’s breakfast” of divided, conflicting, and ever-changing analysis (hey, welcome to the Supreme Court, buddy). Chief Justice Johnny then chides the majority for, in turn, chiding the lower courts for not knowing what the controlling law is, when there was no way for the lower courts to make sense of the existing mess of law at the Supreme Court level.
Roberts then draws his conclusion by picking the cases that he wants to control and rule the day.
And surely the Scalia has something to say about this. Doesn’t he always. Well, Scalia — while agreeing with Chief Justice Johnny — also goes on to say, “hey, wait a minute, buster. There was clearly established law, and it wasn’t in the majority’s favor.” He says that Johnson v. Texas should control here, because it came after the Penry I case, so today’s majority ruling basically overturns Johnson. And, for the record, Johnson stated that a sentencing jury need only “be able to consider in some manner all of the defendant’s relevant mitigating evidence and not, as Penry I, suggested, in “every conceivable manner.”
When old people attack!
Earlier this week, up in Canada, 81-year-old John Driscoll faced charges of second-degree murder. Driscoll has been living at the Bethany Care Center for the last two months and, according to the cops, he got into fight with his 77-hear-old roommate. The fight apparently escalated and got physical, and Driscoll ended up attacking the hell out of his roommate (neither the cops nor the nursing home have said how the attack occurred, and whether it was by hand, foot, knife, chair, etc.). The roommate was taken to a hospital after his injuries were discovered, but he eventually succumbed to them.
Both Driscoll and his roommate were being treated for Alzheimer’s and/or dementia, so they were obviously in rough mental shape, and it’s certainly quite possible that Driscoll has no idea/recollection of what happened.
This sounds right out of last Sunday’s episode of “The Sopranos,” where Uncle Junior, who also suffers from bad mental break downs, kicked the living crap out of a Rutgers professor in his nursing home. I wonder when we’re going to have Congressional hearings about this incident being TV’s fault.
Oh that’s right, this was in Canada, and their politicians don’t blame stupid shit on the media. My media.
I hope he washed his gavel afterwards
Out in Colorado, a local judge and a lady prosecutor who … uhm … frequently appeared in his courtroom have gotten themselves into a little trouble. Judge Grafton M. Biddle (who’s 57) and prosecutor Laurie A. Steinman (who’s almost three decades his junior, at 29) have admitted to having sexual romps in the judge’s chambers, as well as in the women’s showers at the courthouse.
This confession comes in connection with a complaint filed with the Attorney Regulation Council, and the pending investigation could lead to both of them getting disbarred. Biddle has already resigned from being a judge - he did so back in December, in fact, when these rumors first started circulating. And four days later, Steinman was fired by her district attorney.
The real question here is: Am I really going to end this post with the following terrible pun?
Well this gives a whole new meaning to “counselor, please come into chambers and show me your legal briefs.”
You bet I am! Smell ya’ later…
O Supreme Court Updates, Supreme Court Updates - QuizLaw, wherefore art thou Supreme Court Updates?
The Supremes issued three opinions today and we’re a bit backed up here at QuizLaw, so we haven’t gotten around to our usual same-day updates (it’s happened before, and it’ll surely happen again – such is life). But we’ll get to them, and they should all be up sometime tomorrow - promise.
In the meantime, if you’re just dying to know the what-what, all three cases involved the Supremes overturning death row convictions in Texas. The opinions were each 5-4, and since the majority ruled in favor of overturning the convictions, it’ll come as no surprise that the dissenters to each of the opinions where Chief Justice Johnny, the Scalia, and Justices Alito and Thomas.
If this isn’t enough to hold you over, and you simply must know more right now, SCOTUSblog has a quick little write-up on the cases.
(And that image from the Boboli Gardens in Florence has nothing to do with this post - I just think it’s a cool image and thought I’d share it with y’all, as a way of apologizing.)
The Ass Crack Award Goes to …
In the further misadventures of legislators having entirely too much goddamn time on their hands, a state senator in Florida has proposed the “Pull Up Your Britches” bill.
Under the proposed law, a student could be suspended for up to 10 days for showing his or her underwear. 10 Days! That’s two weeks. Not for fighting. Not for drug use. Not for excessive tardiness. Not even for failing grades. But for wearing low-rise jeans.
I hate to see what this law will do to those vo-tech high schools where students can specialize in a particular profession, like plumbing. There won’t be enough students to teach.
Idiot
Jazrahel King, a Bridgeport, Connecticut man, stole a Jeep Liberty last month. And after toiling away in it for four weeks or so, King decided he wanted a better, bigger car. So, King did what any self-respecting dumbass with a hard-on for prison would do. He returned to the same used car lot that he stole that Jeep from and tried to trade it in.
Unfortunately for King, the manager recognized that the keys had the dealer’s key ring on them and that the Jeep still had the dealer-provided temporary license plate.
King was arrested. I hope when they put him in jail, the put a dunce cap on his head and stick him in the corner.
Imus Ruins America
F’in hell! I knew this would happen. Don Imus makes some stupid insensitive remarks, and now the watchdog groups have been emboldened. I swear to God - they are determined to get every goddamn offensive person in American off the radio airwaves. Insensitive assholes are the new Communist, I suppose.
Anyway, the story here concerns a NYC radio station owned by CBS (the same broadcasting company that owned Imus’ show) and their mid-morning show, “The Dog House with JV and Elvis.” Apparently, the day after Imus made his stupid remark, JV and Elvis made a six-minute prank call to a Chinese restaurant, in which several ethnic and sexual slurs were used. In the skit, the DJs called the employees of a Chinese restaurant and berated them, telling one women he wanted to come to the restaurant to see her in the buff, specifically the part of her body referred to as “hot, Asian spicy.” The caller also repeatedly cursed at the employees and tried to order, “flied lice.”
Naturally, the show was re-aired last Saturday. And naturally, the advocacy group the Organization of Chinese Americans took umbrage and — taking a page out of the Al Sharpton book — made it their end goal to get the DJs fired. The DJs have since been suspended, but the advocacy group has promised not to let up until the hosts and their producer are fired. Said the president of the NYC chapter:
I just see plain ignorance in the CBS management — of the community, of who we are, of what we’re all about. If they don’t fire the D.J.’s, it will be a double standard.
And this, folks, is what were inevitably going to have to deal with for the next few years as advocacy groups begin extending their assault onto other media and, in all likelihood, stand-up comedians. I’m sure some goddamn Caucasian advocacy group is already preparing itself to go after Chris Rock; the gay rights groups are ramping up a campaign against Larry the Cable Guy; and everybody else is getting ready to take down Sarah Silverman.
Damnit.
Can’t we just let the goddamn markets dictate this? Do we really need social lobbyists to do our bidding for us? Imus was a racist douchebag — so, I don’t watch him. These DJs are racist douchebags, so I don’t watch them, either. But, it’s nice to have a choice in the matter. And you know what? I hate all of those redneck comedians who belittle educated people and glorify Wal-Mart and flatulence, but I’m not forming an organization to combat them. Jim Belushi offends my sense of humor. “American Idol” offends my sense of well-being. Tom Brady offends my need to have the Colts win every game they play against the Patriots. But I don’t work up to a fever-pitch and develop a bloodthirst for rolling heads every goddamn time I’m offended.
And lookit: I understand it’s not the same thing, at least not yet. But, it may be someday soon. The PC assholes are mounting their horses, ready to take aim at everyone and everything. The country’s skin is growing increasingly thin. That stupid, insensitive racist “flied lice” bit was in a huge blockbuster film not 7 years ago (Lethal Weapon IV, I believe) and, while I flinched, no one else raised a fuss. It’s not a First Amendment issue today, but pretty soon it will be. The airwaves, cable and satellite television, and even the Internet will be completely sanitized and deprived of anything that might ever offend anyone ever again. In 10 years time, USA Today will be the most subversive thing on the planet and the First Amendment will be completely useless.
Does anyone really want that? Is this a fair exchange for getting a few racist pricks off the air?
Lenny Bruce is turning over and hurling an arsenal of obscenities from his grave. (Though, soon enough, advocacy groups will probably dig him up and cremate him, just so he won’t be allowed to offend our delicate sensibilities from the great beyond).
Update: Hip hop music officially the latest casualty of Imusgate.
The Daily Memo - 4/25/07
Ladies and gentleman, Mr. Kenneth Heller, Esquire - the most obnoxious lawyer in New York! (The Legal Reader)
New York City’s city council has banned metal bats from high schools, overriding a mayoral veto in the process. (Fox Sports)
Apple has been sued for patent infringement over tabs used in its OS X Tiger operating system. (Slashdot)
A Texas state judge has put over 1,000 personal injury lawsuits over the drug Vioxx on hold until an appellate court rules on the court’s decision that Vioxx manufacturer Merck gave adequate warnings. (Law.com)
There are going to be some online debates between the presidential hopefuls on both the Republican and Democrat side, which sounds like a pretty terrible idea to me. (Download Squad)
The RIAA “disingenuous?” Get outta here! (Slashdot)
Perhaps unsurprisingly, Google is deemed the most “powerful” brand in the world. (The Trademark Blog)
Does that belt come in snakeskin?
I mean, at some point, doesn’t Florida become a parody of itself?
Benjamin Hodges, of Tampa, has been arrested and charged with killing or possessing an alligator. He faces a possible fine of up to $500, along with up to 60 days in the clink. The first line of this CBS4 story really tells you all you need to know:
A Tampa man arrested for butchering an alligator on his front lawn said he only wanted a new belt.
I mean, do I even need to add any further comment here?
… I thought not.
Our current favorite politician - Representative Dana Rohrabacher
Representative Rohrabacher is a Republican California district, and he also has the pleasure of sitting on a House Foreign Affairs subcommittee. Last week, said subcommittee was having a hearing on the Bush administration’s policy of secreting terror suspects off to Egypt and Syria to be tortured.
Rohrabacher apparently likes this policy, as he defended it throughout the hearing, going after witnesses testifying that this rendition policy actually hurts our ability to prosecute terrorists. The highlight of his attack came after audience members groaned in response to his statement that it was okay if we wind up wrongly torturing an innocent person if it means getting 50 terrorists who might kill 20,000 people. He responded to the groans by saying:
Well, I hope it’s your families, I hope it’s your families that suffer the consequences.
Think Progress has the video of this exchange, as well as the subsequent protest, and Rohrabacher comes off looking like a real champ (although my favorite part of the video is actually watching the aides sitting behind Rohrabacher, who have some of the deadest eyes I’ve ever seen). This is why he’s our current favorite politician.
A QuizLaw story update
Remember yesterday’s fantastic story about Doctor Captain America and the case of the mysterious trouser burrito? Well, I don’t really have a substantive update to the story - no new info any such. However, The Smoking Gun gives us some booking photos of the good Doctor. That fellow on the right would be the charming fellow.
Better yet, Defamer gives us this entirely awesome photo of the Captain in the police station, which I just love to pieces:
That picture is actually a screen-capture from a video of the booking, showing the poor Captain being forced to start taking off his crime-fighting uniform.
… It’s a sad time for the future of American superheroes.
Fun-Bags, No-Pants, Nic-Rage, and Cinderella
In the Tuesday afternoon police blotter, we’ve got a number of unusual stories for you.
A 40-year-old woman in Florida (can we just get an autokey for Florida, Seth?) was arrested over the weekend. The crime: She stood in front of her neighbor’s yard and flashed her goodies to a 5-year-old. Apparently, she lifted her shirt (nothing was underneath it) and jumped around. She must have been demonstrating gravity and centrifugal force.
In North Carolina, a man was arrested for going through a dry cleaners drive-thru while not wearing pants. He was charged with indecent exposure. Now, that’s just dumb. Cut the guy a freakin’ break — he was there to get his pants. You don’t arrest a guy for going into a restaurant hungry, so Kenneth Lee Wollen ought not be arrested for going to dry cleaners pantless.
In Idaho, Eric. D. Marienau was arrested for aggravated assault and driving while intoxicated after ramming his vehicle into his estranged wife’s home at a high-rate of speed. He had a good reason, though. He asked her for a cigarette, and she didn’t bring it to him. That’ll teach her.
And finally, again in Florida, John Glen Aquista had himself a Cinderella moment, only 100 miles from Disney World. Aquista allegedly rammed his van into the bathroom of a house in the city of Holiday. The residents then watched as the van’s driver fled across their front lawn — leaving a shoe behind.
The Florida Highway Patrol was investigating the crash about an hour later when 43-year-old John Glen Aquista of Holiday walked up to the scene. The Pasco County man was bloody, wearing boxer shorts and, most importantly, shoeless. His injuries looked a lot like he smashed his face into a steering wheel, investigators said. Aquista “denied any involvement in the traffic crash,” a Florida Highway Patrol report said. The van wasn’t his, but it was registered to the address where he lived, the FHP said. When a trooper asked him to slip on the wayward shoe, “it was a perfect fit,” the FHP said.
Let’s Kill em’ All
For critics of the death penalty, there are a couple of new developments that bolster the argument against the practice. First, Jerry Miller — a man who served 25 years in prison for a rape he did not commit — became the 200th person exonerated by DNA evidence this week. In fact, Miller had already been paroled when his case was tossed (woops!). It took 13 years to reach the first 100 DNA exonerations, but the last 100 has only taken the last five, all of which demonstrates that the jury system is not foolproof, and perhaps 12 people who were not smart enough to figure out how to get out of duty ought not be weighing the credibility of witnesses and deciding the fate of those facing death.
If that’s not enough to convince you (and I realize, if you are pro death penalty, nothing will convince you), a medical study (via TalkLeft) was released this week that suggests that lethal injection does not kill its victims the way that we thought it did.
Our findings suggest that current lethal injection protocols may not reliably effect death through the mechanisms intended, indicating a failure of design and implementation. If thiopental and potassium chloride fail to cause anesthesia and cardiac arrest, potentially aware inmates could die through pancuronium-induced asphyxiation. Thus the conventional view of lethal injection leading to an invariably peaceful and painless death is questionable.
Asphyxiation! That’s a helluva way to go. I’m sure death penalty advocates would argue it doesn’t really matter how the guy goes out — An eye for an eye painful suffocation (to a guy who may not have done it), right? It says so right there in the Bible.
The Daily Memo - 4/24/07
XM is being sued for false advertising for claiming its stations are “commercial free” despite having “promotional and advertisement segments.” (Engadget)
Patently-O gives some preliminary notes and comments on the Patent Reform Act of 2007. (Patently-O)
SCOTUSblog rounds up some of the reviews of the new book Supreme Discomfort: The Divided Soul of Clarence Thomas. (SCOTUSblog)
The South Carolina guy charged with the dungeon rapes has received a not guilty verdict. (CNN)
Going to drycleaners + no pants = charge of indecent expose. (WRAL)
A despicable San Francisco woman (if the charges are true, of course) has been arrested for giving birth on a sidewalk and then walking away like nothing happened, leaving the baby kicking around on the sidewalk. (CBS5)
Local drivers are thumbing their noses at judges, pleading guilty to DUIs, driving with a suspended license, etc., and then leaving the courthouse, hopping in their cars, and driving off. (Chicago Sun-Times)
A second mistrial has been declared in the Georgia trial of three men accused with an August courthouse shooting of a deputy in an attempted inmate escape. (Lawinfo)
So wait, you want me to pay for my porn?
In the wee hours of Sunday morning, two men were arrested in a Boston hotel after fighting over a $600 bill for porn videos ordered to their hotel room over the course of one night! The Boston Herald refers to this as “a smut-film bender,” which sounds about right. Both men were arrested - one for “defrauding the innkeeper,” and the other for an outstanding warrant.
The police report doesn’t indicate how many movies the men actually purchased. But you figure that, on the high-end, movies can’t be more than $20 a pop (pun sort of intended), which means they got a minimum of 30 flicks over the course of one night!
I would love to hear their explanation for this because I just don’t get it.
Is that a burrito in your pocket or are you just trying to save the world?
Oh Florida, Florida, how many ways do I love thee? Today, my Florida love is directed specifically towards the city of Melbourne, as that’s where Dr. Raymond Adamcik got himself arrested, giving us this amusing story. See, the 54-year-old family physician was spending his Saturday night taking part in a pub crawl along with a bunch of other doctors. At one of the bars, a place called On Tap, Dr. Adamcik got himself into some trouble when he was harassing women with a burrito that he had sticking out of his tights.
Yes, I said burrito. And yes, I said tights.
See, this pub crawl was apparently some type of costume party, and our good doctor was dressed as Captain America. And for some reason, Dr. America had a burrito in his tights, sticking out of the top. At the On Tap bar, he was asking women if they wanted to touch it. When one lady said “no thanks,” he allegedly started to grope her. She called the cops, who showed up a short while later. That gives us my favorite part of the story, one of the officer’s notes in his written report:
There were so many cartoon characters inside the bar at the time, all Captain America’s were asked to go outside for a possible identification.
The lady then identified Dr. America, and they found the burrito stashed in his boot. He was then arrested and taken to a holding cell, where he got in further trouble for trying to flush a joint that was also stashed in his tights. He now faces charges for battery, disorderly conduct, drug possession and trying to destroy evidence. All of which are, of course, decidedly un-Captain-America-like.
I Was Going to Touch Myself for Dr. Betty Dodson!
Freakin’ Arkansan podunks. Out in Bentonville, Arkansas (that’s the home-office of Wal-Mart, where the only thing larger than SuperCenters are the Baptist churches) a man is suing the city after his two sons discovered a book in the public library: The Whole Lesbian Sex Book.
Earl Adams is seeking $20,000 in damages and wants the library director fired, claiming that the book is “patently offensive and lacks any artistic, literary, or scientific value” (that’s a funny thing to say — is Adams a lawyer, or was he coached by one?). The book is a sex guide that has been deemed suitable for all libraries by the Library Journal. According to Amazon.com, “highlights include descriptions of sex writer Tristan Taormino’s private consultation with Betty Dodson, the author of Sex for One described as ‘the mother of masturbation’: ‘I was so excited about this adventure that I nearly peed in my pants,’ recalled Taormino, ‘I was going to touch myself for Dr. Betty Dodson!’”
And you’re going to tell me that a 14-year-old and a 16-year-old boy found that offensive and that the children were “greatly disturbed” by this? Bullshit. Shenanigans. No fucking way.
Listen up, Earl — the reason why your two boys have experienced “many sleepless nights in our house” was because they’ve been up thinking about girl-on-girl, you dipshit. They’re not sleeping because they’re spending all night scanning Skinemax looking for a late showing of Bound. I mean, c’mon: The Whole Lesbian Sex Book even has an “S/M hanky code laid out once and for all.” That’s not obscenity, that’s masturbation fodder. Instead of suing for $20,000, maybe you should be thankful that your two sons haven’t resorted to online porn subscriptions.
Oh yeah — and shove it up your ass, Earl. And if you need help, don’t go looking to the public library for The Whole Homosexual Book.
“You Are a Very Premium Person”
Fiction wunderkind and author of Everything is Illuminated, Jonathan Safran Foer, has added his voice to the growing chorus of others who want stricter gun control laws following the VT massacre. Foer asserted, in yesterday’s op-ed page of the Washington Post, that the only argument against gun control laws is the Second Amendment, but that there is no real justification for that particular amendment. He writes:
Does anyone any longer believe that a well-regulated militia is necessary for a free state? Why do those who fall back on the constitutional defense so often avoid the terms “militia” and “state”? And why, after the massacre at Virginia Tech — hours after — did Sen. John McCain proclaim, “I do believe in the constitutional right that everyone has, in the Second Amendment to the Constitution, to carry a weapon”? Just what is it, precisely, that he believes in? Is it the Constitution itself? (But surely he thinks it was wise to change the Constitution to abolish slavery, give women the vote, end Prohibition and so on?) Or is it the guns themselves that he believes in? It would be refreshing to have a politician try to defend guns without any reference to the Second Amendment, but on the merits of guns. What if, hours after the killings, McCain had stood at the podium and said instead, “Guns are good because … ” But what would have followed?
Foer continues in that line of thought, arguing that neither self-defense nor the right to hunt are proper justifications for the right to bear arms, given the counterbalancing fact that:
In 2004, more preschoolers than law enforcement officers were killed by firearms, according to the Children’s Defense Fund. The number of children killed by guns in the United States each year is about three times greater than the number of servicemen and women killed annually in Iraq and Afghanistan. In fact, more children — children— have been killed by guns in the past 25 years than the total number of American fatalities in all wars of the past five decades.
But hey, some jackass in an orange vest has the right to sit up in a tree for hours on end and snuff out the life of a wild animal. So, it all evens out, right? An eye for an eye? A child for a deer? I think that’s even in the Bible.
The Daily Memo - 4/23/07
Scalito, Scalito, wherefore art thou Scalito? (Law.com)
Philadelphia Eagles running back Correll Buckhalter lost his appeal to the Nebraska Supreme Court over an order to pay over $4,000 in child support for an autistic boy. (SI)
A Community College teacher has been arrested and put on administrative leave after calling the school and leaving voicemails threatening herself. (Ledger-Enquirer)
Try to drive carefully, avoiding swerves which might get you pulled over, when you’ve got 20 pounds of pot in your car. (KATU)
Filed by prosecutors in connection with an upcoming mafia trial, a newly released 63-page court document outlines a 40-year history of mob hits in Chicago. (CNN)
Hawaii’s state legislature has tossed a proposed red light camera bill, in part because it would not have been effective until 2020. (The Newspaper)
Last Thursday a man was sentenced to 5 years in the clink for poisoning his kids’ soup as part of a plan to extort money from the Campbell Soup Company. (CBS46)
Former linebacker Dick Butkus has filed a lawsuit over the Downtown Athletic Club of Orlando’s “Butkus Award,” claiming various shenanigans stemming from his original license agreement with the club. (SI)
“I wasn’t thinking straight, sir, because all the blood had rushed from my head to, uhm, other areas.”
In a Wisconsin town, the sheriff’s department was called in when a man accidentally gave $20 to a woman at a strip club, thinking she was the gal who just gave him a lap dance. In actuality, she was just some random gal who took the money and left. This dude actually called 911 over the twenty bucks and, according to the article, the authorities are actually “trying to locate the woman.”
I guess it’s nice to know that there’s no real crime going on in Clyman, Wisconsin, when this is what the sheriff’s officers busy their time with. Unless they’re just trying to track down the woman to see if she actually looks like a stripper. I mean, curiosity does get the best of all of us sometimes.
Is Alberto Gonzales actually brilliant?
After sleeping on the Attorney General’s testimony for a night, Slate’s Dahlia Lithwick changed her mind about his testimony before the Senate Judiciary Committee:
Perhaps what we watched [on Thursday] was in fact a tour de force, a home run for the president’s overarching theory of the unitary executive.
You really should check out Lithwick’s article for all the details, but the “unitary executive” is basically a theory that the President and the executive branch has very broad and far-reaching authority, and that Congress doesn’t have much right to limit that authority. Lithwick says that looking at Gonzales’ testimony in light of this theory, he basically spent hour upon hour reiterating to Congress that he was simply there as a courtesy to the Senators, trying to help them out; but that he really didn’t have to be there so he could answer however he saw fit. In other words, “suck it, Senators, and suck me while you’re at it.”
… meanwhile, Bill Clinton thinks Alberto should do Bush a good one and just resign already.
Old enough to vote, play the lottery and fight our wars, but not old enough to drink … and maybe not old enough to bum a smoke?
The Texas state Senate has approved a bill which would bump up the legal smoking age a year, to 19 years old. The bill still has to work its way through the state House to get to the governor.
One wonders if the Texas legislature hates our troops, trying to keep the 18-year-old soldiers getting ready to head over to Iraq from being able to calm their nerves with a smoke. Or is it just that they think this will allow 18-year-olds to work on their gun skills without getting smoke in their eyes?
The honorable Pope Benedict XVI presiding?
(Sunday’s Editorial Cartoon by Tony Auth, courtesy of GoComics, with a hat tip to Professor Bainbridge)
Can I get a witness?
In honor of today being 4/20, QuizLaw presents the following dramatic reenactment, which sounds a bit ridiculous while sober, but probably makes perfect sense while high.
[We are in a courtroom.]
GREGORY SHAMOUN: May it please the court, I would like to call Buddy the Donkey as a witness.
[A man leads BUDDY THE DONKEY into the courtroom. As BUDDY cannot fit into the witness stand, he is allowed to stand in front of it. And because donkeys don’t believe in God - trust me on this, as I have it on good authority that donkeys are blasphemous heathens - he is not sworn in.]
SHAMOUN: Buddy, do you understand why you are here today?
[BUDDY stamps his foot twice.]
SHAMOUN: Well, you are aware of the fact that I’m your owner, correct?
[BUDDY stamps his foot once.]
SHAMOUN: And you know that my neighbor, John Cantrell, has sued me because of you, right?
[BUDDY stamps his foot twice.]
SHAMOUN: Buddy, you know that I was trying to build a storage shed in my garden, yes?
[BUDDY stamps his foot once.]
SHAMOUN: And you know that my neighbor, plaintiff John Cantrell, was pissed about this and complained about my shed, correct?
[BUDDY stamps his foot once.]
SHAMOUN: And do you recall when, exactly, I brought you down from my ranch to let you start living in my backyard.
[BUDDY stamps his foot twice.]
SHAMOUN: Your honor, I will stipulate to the Court that, as plaintiff alleges, I brought Buddy into my backyard sometime after Mr. Cantrell’s original complains.
JUDGE: Thank you, Mr. Shamoun. Your stipulation has been noted. You may continue your questioning.
SHAMOUN: Thank you, your honor. Buddy - are you a loud and aggressive animal, as the plaintiff alleges?
[BUDDY emphatically stamps his foot twice.]
SHAMOUN: Do you bray a lot, at all times of day or night?
[BUDDY stamps his foot twice.]
SHAMOUN: And do you, uhm, to put it delicately - do you dump your manure all over the place whenever you feel like it.
[BUDDY pauses for a moment, presumably trying to figure out a way to stamp his way into saying “well, yeah, I’m a donkey for crying out loud.” Ultimately, BUDDY simply stamps his foot once.]
SHAMOUN: Ok, but you don’t defecate maliciously, do you?
[BUDDY stamps his foot twice.]
SHAMOUN: And lastly, Buddy - to your knowledge, did I bring you to stay on my backyard out of any malicious intent to get retribution against the plaintiff?
[BUDDY stamps his foot twice.]
SHAMOUN: Thank you Buddy. No further questions.
[At this time, the proceedings take a recess. Unfortunately, this is where our play ends, because Shamoun and Cantrell settle their dispute, both worried about how the jury would ultimately vote in the case - Shamoun agrees to purchase some of Cantrell’s land in exchange for Cantrell withdrawing his complaint. And so…]
The Daily Memo - 4/20/07
The Patent Reform Act of 2007 has been introduced into the Senate, including a variety of changes to the patent system. (Patently-O)
Chris Rock has asked a court to step in on the issue of his paternity of a 13-year-old boy, whose mother wants some money (and to be fair, Rock has said he will give some money if he’s proven to be the dad, although the real question is whether he’ll give the kid the big piece of chicken). (CNN)
The two sons of Philadelphia Eagles head coach Andy Reid both pled not guilty to their separate criminal charges. (ESPN)
The DNC has filed a lawsuit against the Justice Department, seeking all e-mails about the U.S. attorneys debacle. (FindLaw)
New Hampshire’s governor says that he’ll sign a civil union bill if it makes it to his desk (the bill has already been passed by the state House and is expected to get through the state Senate). (Wills, Trusts & Estates Prof Blog)
A new Texas bill would authorize the death penalty for repeat pedophiles. (Abilene Reporter News)
A New York judge has been convicted of taking bribes in divorce cases, and he now faces up to 15 years in the clink. (The Legal Reader)
“The ground came out of nowhere”
So a guy walks into a bar. Later, same guy walks out of a bar. His foot gets caught up on a toejam, and he tumbles on a ramp. And since there are no rails to help him catch himself, he ends up hurting his neck, face and chest, with at least some of the injuries being caused by the beer bottle he was carrying.
The punchline, of course, is that Matthew Shewmake is now suing said bar to the tune of $200,000. He says that the bar should’ve known that the doorway and ramp was a dangerous spot, and should therefore have put up railings, or done something else to help prevent drunks like him from injuring themselves.
Putting aside the question of whether or not Shewmake fell because the spot was dangerous or because he was tipsy, why was he leaving the bar with a beer bottle in the first place? I guess the liquor laws in Madison County, Illinois might be different than most other places, but you generally can’t leave a bar with an open container (and in most bars won’t sell you closed bottles).
Let the pandering begin
Unsurprisingly, some of the ‘08 presidential candidates were quick to comment on Wednesday’s partial-birth abortion ruling by the Supremes. John McCain said he was “very happy about the decision given my position on abortion,” although he was quick to say that he didn’t want to start talking about a possible overturn of Roe v. Wade. Of course, McCain’s abortion stance is at least, in part, pandering to the GOP’s conservative base (as are many of his recent attempts to buddy up with the religious right, folks he dissed during his last presidential bid). As the Associated Press points out:
McCain’s record is not clear-cut on abortion: He said once in 1999 that he didn’t think Roe v. Wade should be overturned, but now he advocates its repeal.
Meanwhile, while Rudy Giuliani has previously said he supports abortion rights, he was also quick to issue a statement noting his agreement with the Supreme’s decision (and to be fair to Rudy, there is a middle ground where you can support abortion rights yet be opposed to partial-birth abortions). And Mitt Romney, who has flip-flopped on his abortion stance (he’s currently against it because of, you know, pandering and all that), also says this decision was a good step for our country.
On the other side of things, John Edwards said that he strongly disagrees with the ruling, and Obama said he was worried that states would use this as the impetus for trying to place new attacks on women’s right to choose.
While it doesn’t seem that Senator Biden issued a statement, his opinion on the matter is pretty easy to guess considering he originally voted for the 2003 ban. Similarly, since Hillary voted against it, it comes as no surprise that she calls the ruling an “erosion of our constitutional rights.”
I don’t know about y’all, but November 2008 can’t get here fast enough, just so that we can put all the political pandering aside for a couple of months. Until, you know, March 2009, when folks will start ramping up for the 2012 presidential election.