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Monthly Archives: November 2006

No Wonder There Was So Much Drool in my Voting Booth

drool.jpgFor those of you who suspected that the only reason George Bush managed to pull out a victory in the 2004 election was because the majority of Americans were fucking crazy and/or retarded – well, there’s now proof to that assertion.

Indeed, in a study conducted by a master’s student in Connecticut, which surveyed 69 psychiatric outpatients, Christopher Loshe “found a correlation between the severity of a person’s psychosis and their preferences for president: The more psychotic the voter, the more likely they were to vote for Bush.”

Well, duh!

But they’re not just psycho, they’re also dumb. The study further showed that “Bush supporters had significantly less knowledge about current issues, government and politics than those who supported Kerry.”

Well, it’s no freakin’ wonder the educational system in America is going into the toilet – it’s by design. The more idiots our government can create, the more voters future presidents like Bush will have. It makes so much sense now.

The Daily Memo - 11/30/06

check.jpgCongrats to Tuesday Morning Quarterback’s brother for becoming a Chief Judge - it’s not as estimable as writing for ESPN, but it ain’t bad. (Above the Law)

check.jpgThe City Council of Macon, Georgia will be considering an ordinance banning most public panhandling, although one member suggests that this isn’t far away from a Hitler-esque plan. (The Macon Telegraph)

check.jpgA federal court has ruled that the Treasury must figure out a way for the blind to be able to distinguish between different money bills (which they can’t do now since all of our money is the same size and texture)… (FindLaw)

check.jpg…but the National Federation of the Blind basically says that this is all a bunch of prejudicial crap. (Overlawyered)

check.jpgSlate’s Dahlia Lithwick is taking the Supremes to task for selectively releasing audio recordings of oral argument. (Slate)

check.jpgThe Boston Bar Association is trying to solve the problem of “the vanishing trial.” (The Boston Globe, hat tip to The Legal Reader)

check.jpgThe Kansas Supreme Court is going to take a look at the constitutionality of the state’s 1994 law stripping sperm donors of any parental rights. (FindLaw)

check.jpgThe Patriots are suing StubHub over its resale of Pats tickets. (The Legal Reader)

“If you don’t deem this filing as timely, then it’ll just be a question of how much you want it to hurt.”

clock.jpgYou know how when we’re watching “24” they give us that nifty little clock with the “boop…beep…boop…beep” sound, to keep track of the time? Well attorneys under a filing deadline might do well to invest in a similar gadget for their offices.

The Tenth Circuit recently issued an opinion clarifying that filing deadlines are, in fact, filing deadlines, and even if you’re a mere six minutes late – tough stuff for you. The Court basically bitch-slapped a plaintiff trying to appeal a District Court decision because the plaintiffs’ notice of appeal was filed at 12:06 a.m. on January 17, 2004, when the filing deadline was January 16, telling them that “[t]hey are out of luck.”

See. That “24” clock could’ve saved the day. And if the plaintiffs’ attorneys still managed to be late with the filing? Well, maybe they could’ve actually taken Jack Bauer to the oral argument with them. I mean, the kind of things he’s able to pull off, surely he could’ve convinced the Tenth Circuit to let the plaintiffs slide on this one. He’d just yell something like “damn it, I don’t have time to explain the merits of this case right now” and then shoot one of the judges in the leg, threatening to kill the judge’s entire family unless the panel ruled in the plaintiffs’ favor. And then the defendants’ attorney would [redacted].

I apologize for the above redaction. Turns out that “24” has previously stretched the show’s believability so thin that I actually hit on a plot-line from the upcoming season with this wholly implausible and ludicrous court room scenario. So I’ve been smacked with a cease and desist letter from the show’s producers. Tune in to Fox next spring to find out how the Tenth Circuit rules!

Night of the Living Fat-Ass

livingdead.jpgI don’t know how familiar many of you are with the apocalyptic zombie genre, created and popularized by George Romero and John Russo in Night of the Living Dead and the subsequent Dead movies. Basically, in these zombie films, a couple of folks get infected, spread their zombie cooties to others, and entire cities become urban zombie communities — lands of the walking dead, if you will. For whatever reason, more times than not, screenwriters in these films always back themselves into a corner, creating entirely too many zombies for the dwindling heroes to fight off. So, at the end of most of these flicks, the National Guard is called in to lay waste to the cities and/or nuclear bombs are dropped, eradicating all trace of zombie-ness.

Well, apparently, the scriptwriters of the Iraq war (the Bush Administration) have also backed themselves into a corner — there are too many insurgents, the insurgency is growing, and our heroes are fighting a futile war. So, what’s Rush Limbaugh’s solution? The same as George Romero’s, actually: “Just blow the place up.”

All right, well, let’s just have them. Let’s just have the civil wars and let the crumbs crumble and the cookie crumble where — because I’m fed up with this … Fine, just blow the place up. Just let these natural forces take place over there instead of trying to stop them, instead of trying to use — I just — sometimes natural force is going to happen. You’re going to have to let it take place. You can spend all the time you like with diplomacy, and you can spend all the time you want massaging these things with diplomatic — you’re just — you’re just delaying the inevitable.

But maybe the best quote in Limbaugh’s radio show that day was this:

I mean, everybody comes to us: ‘You got to fix this and you got to fix that.’ So we go and try to fix it, and our own people, Democrats and the left in our country do their best to sabotage our efforts, and then we get blamed for trying to clean up the messes that these people start.

Umm … I’m sorry. You get blamed for trying to clean up a mess that “these people start?” Actually, douchebag, we started that mess. Remember the Pottery Barn rule, popularized by Colin Powell before we went into Iraq?

‘You are going to be the proud owner of 25 million people,’ he told the president. ‘You will own all their hopes, aspirations, and problems. You’ll own it all.’ Privately, Powell and Deputy Secretary of State Richard Armitage called this the Pottery Barn rule: You break it, you own it.

Well, we own it now, Lim-bat. And since Iraq/Iran/Syria aren’t actually full of zombies, maybe we ought to try to find a way to fix it before we decide to just blow it all up.

The Daily Memo - 11/29/06

check.jpgMuch like our friend over at Is That Legal, I was also pegged for having a Philly accent. (Is That Legal?)

check.jpgAnd speaking of Philly, following a three-year probe into corruption, Mayor Street’s brother has been indicted for fraud, relating to several million dollars worth of city contracts. (CNN)

check.jpgA “good on you” to a Dallas man who was hired to kill a pregnant woman and, instead of following through with the act, warned her that her dear ol’ hubby wanted her dead. (Houston Chronicle)

check.jpgHere we go again - the Ten Commandments have made their courthouse steps return, this time outside of a a Florida court. (The Gainesville Sun)

check.jpgAn art student may sue the school that allegedly expelled him for being an atheist. (Portland Mercury)

check.jpgThe Seventh Circuit Court of Appeals ruled that Illinois’ ban on the sale of sexually explicit video games to kids violates the Constitution. (InternetCases.com)

check.jpgThe latest blawg? The Legal History Blog. (Is That Legal?)

check.jpgThe American Red Cross has been hit with a $5.3 million fine by the FDA for breaking blood-safety laws and the terms of an earlier consent decree. (Yahoo! News)

check.jpgMicrowaves — not just for Hot Pockets anymore. (Junkiness)

The Daily Memo - 11/29/06

check.jpgMuch like our friend over at Is That Legal, I was also pegged for having a Philly accent. (Is That Legal?)

check.jpgAnd speaking of Philly, following a three-year probe into corruption, Mayor Street’s brother has been indicted for fraud, relating to several million dollars worth of city contracts. (CNN)

check.jpgA “good on you” to a Dallas man who was hired to kill a pregnant woman and, instead of following through with the act, warned her that her dear ol’ hubby wanted her dead. (Houston Chronicle)

check.jpgHere we go again - the Ten Commandments have made their courthouse steps return, this time outside of a a Florida court. (The Gainesville Sun)

check.jpgAn art student may sue the school that allegedly expelled him for being an atheist. (Portland Mercury)

check.jpgThe Seventh Circuit Court of Appeals ruled that Illinois’ ban on the sale of sexually explicit video games to kids violates the Constitution. (InternetCases.com)

check.jpgThe latest blawg? The Legal History Blog. (Is That Legal?)

check.jpgThe American Red Cross has been hit with a $5.3 million fine by the FDA for breaking blood-safety laws and the terms of an earlier consent decree. (Yahoo! News)

check.jpgMicrowaves — not just for Hot Pockets anymore. (Junkiness)

No immigrants and no free speech make Homer something something…

something.jpgLately I’ve been saying to myself, “self, I really miss that Newt Gingrich feller - what happened to the jolly little fat man?” Well now I can answer myself, as it turns out he’s been exercising his freedom of irony. On Monday, the white-haired former Speaker of the House gave a speech where he explained that, in his estimation, we need to take a look at this whole freedom of speech thing in light of ongoing terrorist threats. Specifically, the Newt thinks we might need a “different set of rules” to fight the Terror, particularly to hamper the bad guys’ ability to use the internets and free speech to recruit and spread the word of terror. And it’s getting urgent, as we have to do this “before we actually lose a city.” As to why this constitutes an exercise of his freedom of irony? Because, wouldn’t you know it, he was giving this speech at a First Amendment award dinner celebrating folks who stand up for the freedom of speech!

Now, Newt might want to think twice about restricting freedom of speech, even putting aside the arguments about that pesky First Amendment. For example, without such freedoms, we might lose gems from some of his fellow politicos, such as Representative Tom Tancredo. This guy, in discussing his anti-immigration stance, used Miami as an example of immigration gone out of control. To him:

[Miami] has become a Third World country. You just pick it up and take it and move it someplace. You would never know you’re in the United States of America. You would certainly say you’re in a Third World country.


Crazy Right-Wing Nutjobs Say the Cutest Things

ellison.jpgUp until about ten minutes ago, I’d never heard of Townhall.com, though I have since learned that it’s a popular conservative website, whose columnists include Michael Medved and Bill Bennett. I suspect the commentary consist of largely rabble-rousing right-wing nuttiness, advocating the banning of birth control, the reinstitution of drawing and quartering, and the systematic killing of abortion doctors, under the guise of faith.

But, as I glanced over an op-ed from a man named Dennis Prager, I thought I was reading a freakin’ “Onion” article. Honestly, this man contends that Keith Ellison, the newly elected Muslim Congressman from Minnesota, shouldn’t be allowed to swear his oath to office with a Koran because the act “undermines American civilization.”

Say what?

First, it is an act of hubris that perfectly exemplifies multiculturalist activism — my culture trumps America’s culture. What Ellison and his Muslim and leftist supporters are saying is that it is of no consequence what America holds as its holiest book; all that matters is what any individual holds to be his holiest book.

Forgive me, but America should not give a hoot what Keith Ellison’s favorite book is. Insofar as a member of Congress taking an oath to serve America and uphold its values is concerned, America is interested in only one book, the Bible. If you are incapable of taking an oath on that book, don’t serve in Congress.

Mr. Prager then goes on to write that taking the oath using the Koran is tantamount to a racist Congressman choosing “Mein Kampf” for a swear-in. And then Dennis makes the most asinine statement of all:

When all elected officials take their oaths of office with their hands on the very same book, they all affirm that some unifying value system underlies American civilization. If Keith Ellison is allowed to change that, he will be doing more damage to the unity of America and to the value system that has formed this country than the terrorists of 9-11.

You hear that, Mr. Ellison? Swearing the oath of office using the Koran is the equivalent of massacring over 3,000 Americans; causing billions of dollars in physical, financial, and emotional costs; and pushing the United States into two wars, one of which was unnecessary. You’d best watch your back, Congressman-elect — that sort of terrorist act will get you sent to Gitmo, where they will flush the Koran down the toilet. Seriously, how dare you try to institute the freedoms of the First Amendment into your Congressional office — it’s despicable. Utterly despicable.

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The Daily Memo - 11/28/06

check.jpgBlawg Review #85 comes from a land down under. (Freedom to Differ)

check.jpgWil Wheaton is thankful for the Creative Commons. (WWdN: In Exile)

check.jpgProfessor Bainbridge, now in fragmented form! (Professor Bainbridge’s Journal)

check.jpgThe Massachusetts attorney general is going to file a lawsuit over the debacle that is the Big Dig. (FindLaw)

check.jpgThe mother-F’ing MPAA wants Congress to force me to give the mother-F’ing MPAA $50 because I have an “unlicensed” home theater. (BBspot)

check.jpgThe Supremes like their smokes, tossing out a $10 billion verdict that had been slapped onto Philip Morris. (CNN)

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You know, it’s like Advil. Only with pearl necklaces.

elmo.jpgI used to work at a large retail Best Buy kinda’ place. And shortly after I left, I found out that one of our assistant managers was fired because he got busted sitting in his office and trolling the internet for porn when he should’ve been assistant managing. When I first heard that story, I laughed and shrugged my shoulders. But now, I realize it was a cry for help.

At least that’s what it was according to James Pacenza, a former IBM employee. Pacenza also liked using his work hours to surf for online porn and to type sexy-talk in the chat rooms. When his Big Blue employers found this out, they shitcanned him. But Pacenza says this was the wrong thing for them to do.

See, he suffers from post-traumatic stress, and his chat room addiction was self-medication for this stress. So this was really just like a drug addict or an alcoholic and IBM should’ve given him counseling - it was a cry for help! But since they fired him, he’ll happily take $5 million for the alleged wrongful termination instead of some stupid counseling.

If this was self-medication, I wonder if he tried to submit his internet porn charges to his HMO?

Little Boxes on a Hilltop

peace.gifYou gotta love the Orwellian control homeowners’ associations have over their minions. The latest comes from Colorado, where a subdivision has attempted to ban a woman from hanging a Christmas wreath on her door, threatening her with a $25 a day fine. The problem: The wreath bears a peace sign, which many of the subdivision’s residents feel is either an anti-Iraq war protest and/or a sign of the Devil.

“Somebody could put up signs that say drop bombs on Iraq. If you let one go up you have to let them all go up,” [Bob Kearns, president of the Loma Linda Homeowners Association in Pagosa Springs] said in a telephone interview Sunday.

Lisa Jensen said she wasn’t thinking of the war when she hung the wreath. She said, “Peace is way bigger than not being at war. This is a spiritual thing.”

Jensen, a past association president, calculates the fines will cost her about $1,000, and doubts they will be able to make her pay. But she said she’s not going to take it down until after Christmas.
“Now that it has come to this I feel I can’t get bullied,” she said. “What if they don’t like my Santa Claus.”
The association in this 200-home subdivision 270 miles southwest of Denver has sent a letter to her saying that residents were offended by the sign and the board “will not allow signs, flags etc. that can be considered divisive.”

Who knew that peace signs could be considered “divisive”? The next thing you know, some town will make it illegal to fly a foreign flag—unless an American flag is flown above it.

It’s 4:30 — Have You Finished Your Homework?

pot.jpgHow can you jail a woman for rewarding her son for doing his homework? It’s absolutely ludicrous that anyone would consider it — if your kid comes straight home from school, sits down and completes his homework, and then does well in school, a Mom has a right – natch, an obligation — to offer her son a nice little treat.

But not in the good ole’ US 0f A, where such positive reinforcement is punished, here by three months in prison.

A woman who admitted smoking marijuana daily with her 13-year-old son to reward him for completing his homework was sentenced to three months in prison.

Amanda Lynn Livelsberger, 30, was also ordered Tuesday to spend nine months on house arrest and a year on probation.

The boy told police that he was required to do his homework as soon as he got home from school, and then was allowed to smoke pot with his mother, according to court documents.

By damn, this woman ought to be rewarded herself from being such a terrific Mom – can somebody get Livelsberger an ounce, stat. And I certainly hope her son got a bag of Cheetos with his reward.

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The Daily Memo - 11/27/06

check.jpgOrrin Hatch thinks that the House and Senate may have the numbers to pass a stem cell bill and override any Bush veto. (The Salt Lake Tribune)

check.jpgThe nekkid prosecutor is free, for the moment, from public indecency charges thanks to the prosecutors’ office messing up the filing of charges. (FortWayne)

check.jpgNext February, Hollywood plans to teach Congress how things are done. (Cinematical)

check.jpgTurns out that, according to one judge, Wisconsin’s law banning sex with animals does in fact include sex with dead animals. (The Legal Reader)

check.jpgLame-duck Massachusetts Governor Mitt Romney has filed a lawsuit against the state legislature, trying to force a vote on a proposed constitutional amendment to ban same-sex marriage. (Will, Trusts & Estates Prof Blog)

check.jpgThe two guys who got harassed by Michael Richards’ racist rant are contemplating a lawsuit. (Northwest Florida Daily News)

check.jpgThe founder of LexisNexis died, unsurprisingly, while sitting in front of his computer. (TaxProf Blog)

check.jpgTwo students at Daytona Beach Community College are suing over the stupid-high price of their textbooks. (Orlando Sentinel)

A modern-day high-noon duel

duel1.jpgBack in 2004, incumbent Howard Calkins was facing a stiff mayoral race against challenger Bob Stearley. For the winner? Mayor of Edgewood, New Mexico. For the loser? Stuck just living in New Mexico. When the votes were tallied after the race, Stearley had beaten the incumbent by a single vote. But not one to take his loss lightly, Calkins filed a lawsuit, alleging that a Stearley relative had illegally voted.

Following a one-day trial, the court invalidated five votes, three for Stearley and two for Calkins. Which meant that the election was tied. Both candidates appealed the case, and it took until earlier this month to finally get an answer. That answer? The State Court of Appeals said the lower court did everything right, and there was indeed a tie.

Which meant that the candidates had to turn to a game of chance to settle the matter once and for all. So Stearley and Calkins met in the office of Municipal Judge Bill White just before high noon to draw…cards.

As a crowd gathered around in wild anticipation, a new deck was opened, the jokers were removed, and each candidate was given a chance to cut the deck (Stearley made a cut, Calkins knocked). The cards were carefully spread across a table, and Stearley went first, flipping over a seven of diamonds. As the crowd held its breath, the incumbent snarled, slowly reached to the table, and pulled a card back to him. Toying with the crowd, he paused again before flipping over the winning high card, a ten of hearts.

Calkins was obviously “tickled to death,” even though he’ll only hold office for another year and a half before having to again deal with reelection. In preparation for that election Calkins says he’s learning how to stack a deck.

The Daily Memo - 11/24/06

check.jpgSee - the gays are ruining the institution of marriage: a lesbian couple who was married in Massachusetts has now filed for divorce. (CNN)

check.jpgThe dean over at Michigan Law School lived up to his bet after Michigan got beat by Ohio State over the weekend. (WSJ Law Blog)

check.jpgMan, I gotta’ start subscribing to the “Massachusetts Lawyers Weekly!” (Slate)

check.jpgA “woman is suing her estranged husband for allegedly infecting her with a sexually transmitted disease.” (Keyetv.com)

check.jpgYet another person decided the best plan for handling a DUI charge was to show up to court drunk. (Post Gazette)

“I don’t give a shit what she go along with because, hey, this here is not legal”

I wonder if they teach stenographers about how to deal with this kind of crap in stenography school?

Yup, I sure do miss practicing law…

(Hat tip to Sui Generis)

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The Daily Memo - 11/22/06

check.jpgA Pennsylvania judge has been disbarred because he got busted groping a young girl at a 2003 Hilary Duff concert - he should’ve been disbarred just for being at a Hilary Duff concert. (The Legal Reader)

check.jpgA Florida judge says that “e-mail” includes instant messages so the the conviction of a scumbum who sexually solicited a thirteen-year-old girl can be upheld. (Slashdot)

check.jpgA federal judge has ruled that the NSA, in response to a Freedom of Information Act request, does not have to give over documents detailing its wiretap program. (SFGate)

check.jpgLos Angeles Mayor Antonio Villaraigosa vetoed the $2.7 million settlement we told you about last week, in connection with the black firefighter who was served dog food, because of new photos showing the man involved in hazing pranks. (CNN)

check.jpgWe’ve got our first federal court, the Eastern District of Virginia, taking a stab at the new federal dilution law. (43(B)log)

check.jpgNancy Grace has been sued over the suicide of a guest. (Overlawyered)

check.jpgYet another person has been arrested for trying to walk into a courthouse with marijuana. (ArgusLeader)

What the hell is going on with Wisconsin guys and dead deers?

bambi2.jpgFirst it’s was a dude scrumping a dead deer. Now, this - two 19-year-old Wisconsin men have been arrested and charged with “criminal damage to property.” This charge results from the men putting a dead deer into another man’s backyard hot tub.

Steve Moore was perplexed when he got home one Friday afternoon last summer to find a dead deer in his hot tub. “I just dropped immediately because of the flies and the stench, we keep the water at 102 degrees.” Eeegads.

For a year, there was no progress on this case. But recently, someone discovered a post that had gone up a few weeks ago on facebook.com. In the post, a 19-year old talked about a “brilliant, somewhat psychotic plan” to get revenge on some kids who egged his car. The plan, as you have no doubt figured out, was to put a dead deer in the hot tub of one of those hooligans. However, this revenge-seeker and his buddy got the wrong hot tub.

If the guys are convicted, which seems assured, they could get up to nine months in the clink.

Too bad Bryan James Hathaway didn’t know about this - hot tub sex is the best!

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Welcome to the ‘No Shit Zone’

oreilly.jpgI’ve been thinking a lot lately about trying to find a new and better term for “Douchebag.” It’s been played, you know? I’ll concede that I’ve contributed my own part to Douchebag fatigue, but we really ought to retire the word, or at least give it a breather. Put it aside for a few months and find another appropriate insult for pompous, bloated narcissistic shit heels. I’m open to suggestions, but — for now — I’m thinking: Urinal Cake.

No, that doesn’t have the same ring to it as Douchebag. How about: Septic waste? Or toilet rust? Perforated condom? Vaginal swab? Popped hemorrhoid?

Nope. Nothing really has the pure zing of Douchebag, does it? Well, in that case: Here’s the latest in Bill O’Reilly douchebaggery, from his radio show:

I don’t own an iPod. I would never wear an iPod… If this is your primary focus in life — the machines… it’s going to have a staggeringly negative effect, all of this, for America… did you ever talk to these computer geeks? I mean, can you carry on a conversation with them? …I really fear for the United States because, believe me, the jihadists? They’re not playing the video games. They’re killing real people over there.

I know what you mean, Bill O. I try to stay away from the computer geeks, myself. What with the A.I.D.S. so easily spread via the use of those trendy iPod ear buds. I understand, also, that you can catch the “gay” from reading blogs. And, seriously, “computer geeks” really should find a more valuable use of their time — and I couldn’t think of anything more appropriate than killing people. That’s really what’s wrong with computer geeks – too many video games, not enough killing. And, seriously, if we could just somehow find a way to air-drop thousands of copies of Sim City into the Muslim world, all that killing would probably stop, immediately. And fuck it — while were at it, instead of shooting Iraqi insurgents, we ought to be giving them iPods. That’ll keep ‘em quiet.


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The Daily Memo - 11/21/06

check.jpgA Philly cop car has been caught, on video, participating in illegal drag races. (ABC 6 Action News)

check.jpgBoston’s mayor, Thomas Menino, intends to bill Sony for the city’s costs for crowd control during the PS3 launch. (Engadget)

check.jpgThe California Supreme Court has ruled that folks generally are not liable if they transmit content authored by someone else over the Internets. (WSJ Law Blog)

check.jpgA federal jury has decided that some gas stations should not allow consumers to get cheaper gas when they also buy their groceries at the market/station, because they were illegally price gouging. (Denver Post)

When a slow news day hits, Florida is always there to provide a good story

crispers.jpgFor all the bad things I’ll say about folks in Florida, at least they know how to party. How to obey the law while partying? Maybe not so much. Which is why Mr. Karl Denhar is now standing trial for charges that he promoted the sexual performance of a minor.

This stems from a fateful night back in 2003, when the then-52-year-old was having some food at a Crispers, a Florida food chain that serves “fresh salads and such.” While there, he met some folks, including then-21-year-old Sarah Hall and an unnamed minor (we’ll call her Go-Go Betty). After this meal, Karl, Sarah, Go-Go Betty and another guy went back to Karl’s house to have some drinks and hang out.

While hanging out and drinking, both Sarah and Go-Go Betty (who happened to also be an exotic dancer) got nekkid. The exact details here are a bit fuzzy because Sarah has been testifying for the prosecution while Go-Go Betty has been testifying for the defense. Sarah says that Go-Go Betty started stripping first, and that Sarah followed suit although she was uncomfortable about the whole thing. The other guy who was there started taking pictures, but he says he eventually left because he thought Sarah was doing drugs and this made him uncomfortable. Sarah denies doing any drugs.

Meanwhile, Go-Go Betty says they weren’t trying to be sexually provocative:

“It was very simple. Me and this other girl were there, and we were drinking and goofing off,” she said. “It wasn’t like I was posing. It wasn’t like some photo shoot or anything like that…it wasn’t intended for that type of thing. It was just hanging out.”

In any event, pictures were taken. Now Sarah says that old-man Karl developed them and gave them to her. Go-Go Betty says Sarah developed them herself (and thus, Karl wasn’t involved at all in the photos, according to her). But where the story actually gets good is in detailing how the photos got from Sarah to the cops.

Sarah went to a barbeque at the house of this guy named Michael Lyles. She took the package with the photos there, and forgot them. By the time she remembered she had left them there, they were gone. This is because Lyles and his wife were in the process of getting a divorce and the wife found the photos. Thinking they might be evidence that Michael was fooling around on her, she took the photos to her lawyer. The wife later fired that lawyer and started working with a new lawyer.

So the wife gave the naked photos to the new lawyer who, in turn, passed them along to a P.I. buddy of his, who also happened to be a former cop. The P.I. figured out who everyone in the photos was, and when he figured out that Go-Go Betty was underage, he gave the pics over to the cops.

And now that the jury has seen these photos, that concludes it - every single person in Florida has now seen photos of Go-Go Betty getting naked. Oh yeah, and also the photo of her hanging in a leather swing over old-man Karl’s bed. I’m telling you, old-man Karl knows how to throw a party!

Breaking News: Hot Chocolate is ‘Hot’!

mcnabb.jpgI probably don’t even need to bother offering the rundown of successful and unsuccessful suits filed against Starbucks and McDonald’s after customers were injured by scalding hot liquid. They’re absolutely absurd, but at least the one common thread to most of the successful cases is that someone besides the customer was at fault (for instance, the case of the ballerina who successfully swindled Starbucks out of $301,000 when of its baristas spilled hot coffee on her toesies.)

The latest suit against Starbucks, however, ups the level of absurd, as the Brennans brought suit against the company after their daughter was scalded by hot chocolate.

Brennan ordered a child’s hot chocolate with whipped cream and an adult hot chocolate without whipped cream at the drive-through. According to the lawsuit, Starbucks’ policy is to serve child drinks at lower temperature than adult drinks to avoid kids getting burned.

Brennan handed her daughter the child drink, and as she pulled away from the window, it spilled into Rachel’s lap.

The child was “screaming in pain,” and her mother pulled over, got Rachel out and removed her clothes to find the “skin on Rachel’s leg was falling off of her.” She suffered serious burns that required repeated medical attention and could require more medical attention, the lawsuit said. The parents are seeking unspecified damages.

In other news, a New Mexico woman is suing the makers of ice, claiming that their product was “too cold” and caused severe discomfort when she spilled an iced beverage down her blouse.

Elsewhere, thousands of players of ESPN’s fantasy football are bringing a class action lawsuit against the Tennessee Titans, after Eagles QB Donovan McNabb suffered a season-ending injury while running away from a Tennessee defenseman. [Dude, seriously - us Philly fans just lost McNabb yesterday! It’s too damn early for this joke. Salt on the wound, man, salt on the wound. — Seth]

An Arkansas man is also suing Home Depot, alleging that the store negligently sold him a high-powered staple gun, which he used to staple his hand to a table, just “to see if I could.”

Finally, a New Jersey man is suing Anheuser Busch because, after consuming 23 Bud Lights, he spilled his 24th on his date. He filed suit against the beer maker, claiming he was entitled to $456,000 for pain, emotional suffering, and loss of consortium, after his girlfriend decked him and slept over at her aunt’s house.

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The Daily Memo - 11/20/06

check.jpgMySpace has been sued by Universal Music, for copyright infringement, over music videos uploaded by MySpace users. (arsTechnica)

check.jpgThe MPAA is suing a company that sells iPods preloaded with movies ripped from DVDs, even though the iPods and DVDs are purportedly legally obtained. (TorrentFreak)

check.jpgThe law firm of Anderson Kill & Olick was duped by a paralegal who claimed he was a licensed attorney. (Law.com)

check.jpgPoor poor Al Davis - a California appeals court threw out the $34.2 million award he and his Oakland Raiders obtained against the Oakland Coliseum. (ESPN)

check.jpgIf you’ve seen Borat, you remember the woman who was given a trash bag full of Borat’s poo - well, she’s asked California’s Attorney General to investigate whether the filmmakers violated California’s Unfair Trade Practices Act because of the lies they told before the filming. (Yahoo! News)

check.jpgConnecticut Senator Chris Dodd has introduced the Effective Terrorists Prosecution Act, intended to reign in the controversial Military Commissions Act of 2006. (U.S. Senator Chris J. Dodd)

check.jpgUnsurprisingly, the UCLA student who had a little run-in with school security’s tasers is planning to sue for alleged brutality. (PrisonPlanet.com)

check.jpgAlberto Gonzales is sticking to his story, spending his Saturday telling folks that critics of the administration’s warrentless wiretapping program want a type of freedom which would be a “grave threat” to our security. (Yahoo! News)

What exactly are they teaching those high school boys in Tennessee?

weights.jpgSo Ambrea Phillips used to be a student at Anderson County High School, in Tennessee (she’s in college now). Ambrea was an honor student and she ran track. During at time at Anderson County High, she signed up for a weightlifting class, one would assume to help with her track conditioning. However, after signing up for this class, the school’s principal threw her out of it.

Ask me why. Go ahead.

He threw her out of the class because he was worried that the boys in the class would…wait for it…try to rape her. As he put it, “[h]aving a female with 35 or so male students in an isolated area from the school, it sets a very liable situation in my opinion.” And so, rather than trying to deal with his rape-happy male student population, he figured he’d just throw the chick out.

Although he reinstated her three days later, she contends that the whole thing made her physically ill, and so she and her pops are now suing the school for sex discrimination, seeking $1 million. The school has moved to have the case dismissed under the argument that she didn’t suffer any academic harm, since she was reinstated a few days later.

So according to these guys, no academic harm, no sexual discrimination. Tennessee parents, be proud - your tax dollars are funding a first rate high school education!

It’s “DOE a deer,” not “DO a deer…”

bambi.jpgFucking Wisconsin, man.

That’s where you’ll find twenty-year-old Bryan James Hathaway. Hathaway is currently being charged with a misdemeanor for violating state laws banning bestiality. Rather, to use the technical lingo, “sexual gratification with an animal.” The charge stems from an allegation that on October 11, he was found scrumping a deer.

Oh, and the deer was dead.

Which is where this case gets interesting. Last week, Hathaway’s attorney filed a motion to dismiss, arguing that a dead animal is simply a carcass and therefore isn’t an “animal” in the eyes of the law: “The statute does not prohibit one from having sex with a carcass.” You can read a copy of the motion courtesy of our good friends over at The Smoking Gun.

The judge in the case, who said a decision will be rendered on December 1, says that he’s “a little surprised this issue hasn’t been tackled before in another case.”

What now? The judge is surprised that this is the first case of necro-bestiality? What the hell is going on up there in Cheese Country? I know it gets cold in the winter and all that, but eegads.

By the way, last year, Hathaway pled no contest to shooting a horse with the intention of fucking it!

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The Daily Memo - 11/17/06

check.jpgDamn it! I can’t believe I missed “The Law of Beer Symposium.” (WSJ Law Blog)

check.jpgThe show can go on! A Chicago judge has ruled that some school kids can put on their show, “Fuggedaboutit - A Little Mobster Comedy,” despite the protestations of an Italian mother and son. (FindLaw)

check.jpgPatent trolls are old news, but now there are sample trolls out there, going after folks like Jay-Z. (Slate)

check.jpgAs well they should, the Goldman family plans to go after any money O.J. makes off of the upcoming book/televised plague of his despicable “hypothetical” account of the Nicole Simpson/Ron Goldman murders. (The Hollywood Reporter, Esq.)

check.jpgThe NFL can move forward with its lawsuit against its insurance company over the money it spent defending against the Maurice Clarett lawsuit. (Law.com)

check.jpgAnimal rights activists in New York are suing for a state ban against foie gras, and at least one plaintiff has a dubious claim of “harm.” (Overlawyered)

check.jpgA California State judge has rejected an attempt by San Diego County to roll-back the state’s legalization of medical marijuana. (FindLaw)

This case has everything!

believe.jpgSeriously - cyborgs, conspiracies, Bill Clinton, telepathy, Ross Perot, bloodsports, NASA, breeding farms…what the hell else could you possibly want from a case?

A big hat tip to Sui Generis, who brings the 1993 case of Tyler v. Carter to our attention. The Carter in the case’s title would be former President Jimmy Carter. Also named as defendants? Among others, former President Bill Clinton, Presidential-wannabe Ross Perot, IBM and NASA. What’s the beef with all these folks?

Well according to one Teri Smith Tyler, they were all involved in a massive global conspiracy that would put “The X-Files” to shame. Apparently, this conspiracy wanted to re-institutionalize slavery in the U.S. They also wanted to establish “bloodsports,” where teams of pimps and their women would chase down black women to force them into sexual slavery, sometimes with the paid help of the woman’s family. In support of this claim, Tyler claims that then-Secretary of Defense Dick Cheney explicitly told her that these bloodsports came about because: “we were so sick and tired of killing black girls. We just had to put some variety back into our death-hunting industry…I know of no higher pleasure than the gang-rape of exceedingly beautiful people.”

xfiles.jpgTyler also claimed that Clinton ordered the first WTC attacks so that he’d be justified in invading Iraq and that the U.S. went after Noriega because Noriega was taking issue with the U.S. turning children of Central American Indian tribes into sex slaves.

Now, you may be asking yourself how Tyler was able to be the Fox Mulder who blew this conspiracy wide-open? The answer’s quite simple really….

Because she was a cyborg, of course.

With telepathic capabilities, allowing her to receive so-called “proteus” communications.

It’s a short opinion, and to get the full flavor of things you really should just read it for yourself.

But if you must know right now, here’s how it turned out. Surprisingly, the Court chose to throw Ms. Tyler’s case out sua sponte (that is, of its own volition). It would seem that the Court found Tyler’s claims to be frivolous and that these “fantastic or delusional” claims simply did not warrant wasting judicial resources.

I gotta’ say, I’m almost with the Court on all of this. But that claim about Cheney just doesn’t ring as wholly impossible.

Put your titty up, Adele.

adele.gifYou know what, fine. A couple gets a little frisky on a plane, tries to join the mile-high club, and they get arrested for violating the Patriot Act! …maybe, just maybe, that’s not the most asinine result from something that’s happened in the friendly skies. Even if all the canoodling couple did was to make the other passenger “uncomfortable.” (News flash, Southwest Airlines: That fat man you sat next to me on my most previous trip to Vegas — who had to raise the seat arm in order to fit into his seat, thus squishing me into my own seat arm – that was “uncomfortable,” and I didn’t see Mr. Obesity get charged with a Patriot Act violation.)

So, I’ll let that little absurdity slide.

But, c’mon! You can’t boot a woman from a flight because she’s breastfeeding. For the Love of Baby Jesus. She was seated next to a window on one side, next to her freakin’ husband on the other and her breast wasn’t even exposed! Of course, so what if it was? State laws allow for breastfeeding in public, and there’s nothing in those laws that says you have to be discrete. But, no matter, says a spokesman for the airline: “She was asked to use a blanket just to provide a little more discretion, she was given a blanket, and she refused to use it, and that’s all I know.”

If a woman wants to expose her breasts so that she can provide nutrition and sustenance to her child, you let that woman expose her breasts. I’ve never in my life seen a plane go down because a woman decided to breastfeed her child.

The woman, Emily Gillette, has filed the complaint with the Vermont Human Rights Commission. And I hope she drives Delta right back into bankruptcy again.

(* For the curious, the headline quote comes from the brilliant 1993 film, Kalifornia)

Dominick Dunne – Modern Day Truman Capote?

dunne.jpgI don’t know how many of our readers remember Gary Condit — if you’re anything like me, you’re political memory tends to get fuzzy prior to the most previous elections. Anyway, he’s that California congressman who had the intern, Chandra Levy, who disappeared in 2001. He may or may not have had an affair with Levy. Her body, at any rate, reappeared in 2002, though as far as I know, her murder/abduction is unsolved.

Anyway, in December 2001, writer and investigative journalist, Dominick Dunne, suggested that Condit actually was involved in the disappearance of Levy and that Condit frequented Middle-Eastern sex parties. He also implied that Levy was abducted at the behest of Condit. Subsequently, Condit sued Dunne for libel, which Dunne settled for an undisclosed sum.

Well, now four years later, Condit is at it again. As reported in the New York Daily News, Dunne said on CNN’s Larry King Show last year that Condit “knows more about what did happen than he has ever said” and that Condit “knew that Levy was going to be killed.” Condit, in turn, has sued Dunne for libel, asking for $75,000 in compensatory damages and unspecified punitives.

If you don’t recall, it was also Dominick Dunne who, with the help of Mark Furhman, broke the Martha Moaxley/Skakel case. And, given Dunne’s pedigree, I have no doubt that Dunne is on the right in this case as well. All I know is that I’m totally looking forward to those depositions … I’m totally hoping this case will be the next In Cold Blood.

The Daily Memo - 11/16/06

check.jpgHmmm…a possible witness in a case about a corrupt Sheriff’s Office was killed the day after the indictments went public? Nothing suspicious about that. (Roanoke)

check.jpgI’m shocked! Cheney would like the lawsuit about the leaking of Valerie Plame’s identity dismissed. (Lead Counsel Corner)

check.jpgOur nation should be a little embarrassed when South Africa turns out to be less discriminatory than us, as they’ve now legalized gay marriage. (Yahoo Canada)

check.jpgCraiglist has come out on top in its battle with newspapers over its real estate listings. (May It Please the Court)

check.jpgIn Seattle, an anti-logging group has filed a lawsuit to block some logging, using the “think of the owls - oh won’t you please think of the owls” argument. (FindLaw)

check.jpgKobe’s being sued by a Memphis Grizzlies fan. (Deadspin)

check.jpgTechCrunch is claiming that it got smacked with a cease and desist letter from YouTube because it created a tool to help you get YouTube videos onto your iPod. (TechCrunch)

Fuck O.J.!!

oj.jpgSeriously, this guy is a plague. If you haven’t heard the story, here’s the skinny - the Juice has a book coming out at the end of the month called “If I Did It.” And FOX has gone back to its low-sinking norms by agreeing to air a two-hour special, timed with the book’s release, called “If I Did It, Here’s How It Happened.” O.J. is going to use this opportunity to tell “for the first time how he would have committed the murders if he were the one responsible for the crimes.”

So yeah, he’s a despicable plague.

Of course, I’m sure this FOX special will have maaaaaad ratings. The books sales, however, will probably buh-low.

Anyway, I bring it up here because the obvious question is, what’s the legal consequence? Of course, the Bill of Rights (the Fifth Amendment, to be exact) protects folks from being tried for the same crime twice. That’s the whole “double jeopardy” business you’ve surely heard of before, and which was the title and ostensible focus of Ashley Judd’s ridiculous 1999 movie. However, as explained in more depth over at Slate, there is a chance that the feds could go after the Juice with civil rights violations or that someone else could go after him for fraud. Of course, neither of these are very likely.

Now, QuizLaw does not endorse murder. Buuuuuut…if we were to endorse murder, here’s how we might do it: we might suggest that someone watch O.J.’s TV special as an instructional video. And then we might suggest to this same someone that practice makes perfect, and who better to tell them if they’re doing it right than their video instructor himself.

You know, if we did that sort of thing.

Get it? ‘Cause he’s literally doing doing it!


(Yesterday’s “Non Sequitur,” via GoComics)

I’m Bringing Sexy Back / You Mother Fuckers Watch How I Attack

timberlake.jpgWhen you’re pitting Fair Trial Rights against the First Amendment, always bet on Justin Timberlake.

It’s that exact matchup currently being put to a California court after defense attorneys for notorious murder-defendant, Jesse James Hollywood, filed suit against Universal Studiosto stop the release of Alpha Dog, a fictional recounting of Hollywood’s alleged kidnap and murder of 15-year-old Nicholas Markowitz.

Hollywood’s attorneys argue that the film — which stars Bruce Willis, Sharon Stone, and Justin Timberlake — depicts their client in an “extremely negative light.” They fear that that its release will taint the opinion of potential jurors, who will assume that Hollywood is guilty.

Chances are, however, that Hollywood-the-industry will succeed against Hollywood-the-person in the case. Judges have historically sided with studios. Injunctions were denied, for instance, when attorneys attempted to block the airing of television films about the Menendez brothers, O.J. Simpson, and Joe Hunt. Although, there is no similar precedent for the theatrical release of a film, especially one in which the names are changed and the plot is only loosely based on the alleged events.

Jesse James Hollywood was one of the youngest people to ever appear on the FBI’s 10 Most Wanted list. In 2000, Benjamin Markowitz — a frequent customer — accumulated a $1,200 debt, so Hollywood abducted his younger brother, Nicholas, after he was unable to find Benjamin. Once Hollywood learned (from his lawyer) that kidnapping carried a life sentence, Hollywood had his men take Nicholas out into the mountains and kill him.

Alpha Dog premiered at the Sundance Festival earlier this year and will be released wide in January 2007. And you may have already heard of the film’s run-in with this criminal case - the original district attorney on the case was forcibly recused after he served as an unpaid consultant on the film.

The Daily Memo - 11/15/06

check.jpgHow can you not love Dahlia Lithwick when she starts columns off with gems like this - “Chief Justice John Roberts is the Dr. McDreamy of the federal bench.” (Slate)

check.jpgA Connecticut paralegal who’s been prohibited from taking the state bar exam is suing the committee in charge, and he says that “[a] fairly well-educated chimp could practice law.” So he’s equating himself to a fairly well-educated chimp? (WSJ Law Blog)

check.jpgA California couple is in big trouble after some layover scrumping on a plane. (FindLaw)

check.jpgThe NCAA is trying to argue that it’s still just an educational entity deserving of tax-exempt status, despite the fact that everyone knows its first and foremost a money-making machine. (ESPN

check.jpgAn Illinois Supreme Court Justice has been awarded $7 million in damages, resulting from a libel suit filed against a newspaper. (Legal Profession Blog)

check.jpgBest Buy appears to be claiming copyright protection for prices - trade secret, maybe I could see, but copyright seems slim as all hell. (ars technica)

Our tax dollars at work!

supreme1.jpgSo there was an election last week, you may have heard. Kinda’ a big story. And the Democrats won back both the House and the Senate, right? Now, this certainly wasn’t a mandate for the Democrat agenda, by any stretch of the imagination, but I’d say it was a statement that the same ol’ same ol’ isn’t what folks want any more. And has that message been heard loud and clear? Turns out, not so much.

It would seem that several Senators think that the most pressing issue right now is the NFL. Now look - don’t get me wrong - I love football as much as the next guy (in fact, I probably love it considerably more than the next guy). But is it really necessary for California Senator Dianne Feinstein to be focusing her energies on considering whether or not to get a bill going that would help prevent the Niners from leaving San Francisco? Hell, has she even seen that team play since the Montana/Young years? If it were me, I’d be begging those good-for-nothings to get the hell out.

Meanwhile, not to be outdone by a lefty Dem, the-not-for-much-longer head of the Senate Judiciary Committee, Republican Arlen Spector, is getting into the football frey as well. His issue du jour? The NFL Network’s intention to start showing live games: “We’re intrigued, to put it mildly, what [sic] the NFL has in mind.” Now, I’m actually not much a fan of this whole games-on-the-NFL-Network business either: (a) the NFL Network isn’t HD yet (at least, on my cable system), meaning I’ll have to suffer those games in standard low-quality format; and (b) my parents don’t have cable, so I won’t be able to see the third Thanksgiving game which is going to be exclusively on the NFL Network. But complaints aside, is it really necessary for the frickin’ Senate Judiciary Committee to get its panties in an immediate bunch over the matter? So worked up over it, in fact, that there was a 90-minute grill session about it? Seriously?

Can we have another election with a single, simple ballot initiative? “Should our government employees stop fucking around and get to work on some shit that matters?” I’m guessing the final tally won’t be nearly as close as some of last week’s elections.

The Crimson Tide Bleeds Lawsuits

thesack.jpgMy undergraduate alma mater is the University of Arkansas, where our football team is currently sporting a nine game winning streak and riding atop the SEC West. One of our biggest rivals, of course, is the University of Alabama, a team that — let’s just be honest — ain’t doing so well this season. Over at the U of Alabama, an artist and hugetastic ‘Bama fan, Daniel Moore, has made quite a name for himself painting famous moments in the football team’s history.

Moore, in fact, has an entire art gallery devoted primarily to sports moments in University of Alabama history — he’s a graduate of the school, and has three daughters that are either attending the university or graduated from it. For two decades, in fact, Moore was given free sideline passes to U of A games.

But, the University of Alabama, nevertheless, has decided that it doesn’t want Moore selling paintings of Alabama sports history anymore. It’s not because they don’t like his work, but rather, it’s because they suddenly feel that their intellectual property rights are being violated. So, naturally, the University of Alabama has decided to sue Moore, asking a federal judge to forbid him from using the University’s “famous crimson and white color scheme.” Moore, for his part, argues that his paintings deserve First Amendment protection, analogizing his work to that of photojournalists who replicate scenes on the field.

All of this, of course, is part of a growing trend, whereby colleges and universities are attempting to hold on to exclusive control of their intellectual property rights. But, it’s also kind of absurd to bring a lawsuit like this against someone like Mr. Moore, whose work — I can only imagine — actually increases the perceived value of the University of Alabama, particularly considering the number of Alabamans who own Moore’s work in their homes.

In either respect, I’m just curious: Does Mr. Moore have loving renditions of the University of Arkansas Razorbacks’ defeat of the University of Alabama in overtime earlier this year, thanks to the Bama kicker’s three missed field goals and his missed extra point in overtime? Or what about their stunning double-overtime loss to the Hogs in 2003? Just wondering.

The Daily Memo - 11/14/06

check.jpgAn Indiana teen has been ordered to spend his Thanksgiving washing dishes at the local jail after getting busted for pulling a dine-and-ditch. (9news)

check.jpgWhat’s the impact of our new Congress on judicial nominations? (Above the Law)

check.jpgConsidering I’m a lawyer and into following Congressional what-not, and that I’m a fantasy football diehard, you’d think I’d be behind Fantasy Congress, but I’m actually a bit scared by those who would play this. (Tampa Bay’s 10)

check.jpgThe highest ranking lawyer in Pennsylvania’s prison system has been charged, not just with a DUI, but with a DUI hit-and-run! (CentreDaily)

check.jpgA Vermont judge says that sentencing a sex offender to just two months in jail, which was less than popular with many people, was “the highlight of his career.” (FindLaw)

check.jpgSome vet widows are suing the government because they want to be able to put Wiccan pentacles on their husbands’ military tombstones. (Yahoo, hat tip to Likelihood of Confusion)

check.jpgThe Justice Department has filed its brief defending the Military Commissions Act of 2006 in the first lawsuit challenging the statute. (SCOTUSblog)

Supreme Court Decision Update - Ayers v. Belmontes

supreme1.jpgYou know you love a new Supreme Court opinion, don’t you? Well, we got one yesterday - Ayers v. Belmontes (PDF of the opinion here) - and since it involves the death penalty, it shouldn’t surprise you to find the conservatives on one side and the liberals on the other. But where’s the all important Kennedy? Let’s find out!

QuizLaw Analysis: Just like with the first case of this term, Purcell v. Gonzalez, the Supremes are again taking it to their favorite whipping dog, the Ninth Circuit. This time, they say the Ninth Circuit botched its reading of a California provision about what evidence a jury can consider when deciding whether to issue the death penalty. This is the third time the Supremes have touched this issue, and they again find the California provision constitutional, saying that its wording is not limited and that it doesn’t prevent juries from considering any mitigating and exculpatory evidence. So as with Purcell, the Supremes are once again telling the Ninth Circuit to respect their authoritah!

What’s this case about? Back in 1982, Fernando Belmontes was convicted of first degree murder. Following his conviction, there was a penalty phase of the trial, where the jury had to decide whether to give him a life sentence or the death penalty. Belmontes entered evidence that he hoped would mitigate him down to a life sentence by showing that he could lead a constructive life in prison. This evidence included testimony from himself, prison chaplains and Christian sponsors suggesting that he had led such a constructive life the last time he was incarcerated. The trial judge then gave the jury several instructions, including one referred to as “factor (k)” - we’ll come back to that in a second. The jury then proceeded to sentence Belmontes to death. He appealed this sentence, and while the District Court upheld it, the Ninth Circuit reversed it.

What’s this “factor (k)” business? Under California law as it stood in 1982, there was a provision which stated that a jury could consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Belmontes argued on appeal that, by giving this instruction to the jury, the trial judge was essentially barring the jury from considering Belmontes potentially mitigating evidence. This, he argued, was a violation of the Eight Amendment, which provides a defendant the right to present all mitigating evidence during a capital sentencing proceeding.

Have the Supremes looked at factor (k) before? Yup. Back in 1990, in Boyde v. California, the Supremes found that factor (k) did not prevent a jury from considering mitigating evidence about the defendant’s background or character before the crime in question. This is because, as the Boyde Court explained, a defendant could “argue that his background and character ‘extenuated’ or ‘excused’ the seriousness of the crime…[so there is] no reason to believe that reasonable jurors would resist the view, ‘long held by society,’ that in an appropriate case such evidence would counsel imposition of a sentence less than death.” The Supremes also looked at factor (k) last year, in Brown v. Payton. This time, the issue was on evidence of a defendant’s rehabilitation after committing the crime in question. The Supremes similarly ruled that factor (k) did not preclude such evidence, and therefore provided no conflict with the Eighth Amendment.

Ok, so now what? Well the Supremes explain that, as directed by the Court in Boyde, the proper inquiry is to ask “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” If it does not appear likely that the jury was prevented from considering all relevent evidence, as was the case in Boyde and Payton, then everything’s ok and we can carry on with our lives.

So is everything ok? Can we carry on with our lives? Well according to the majority opinion, penned by Justice Kennedy, yes, we can carry on with our lives (well, except for Mr. Belmontes, as this ruling means he gets his death sentence back). As usual, according to Kennedy and his fellow Supremes (he was joined by Chief Justice Johnny and Justices ScaThomAlito), the Ninth Circuit just botched it all up. First, the Ninth Circuit made an irrelevant distinction between this case and Payton based on when the federal habeas proceedings were initiated in each case (you remember habeas, right - it’s that thing our country used to have before Bush and his recently ousted Congress hijacked it). In any event, Kennedy’s real problem is with the Ninth Circuit’s conclusion that there was a “reasonable probability” that the jury didn’t consider Belmontes’ evidence. He says the Ninth was too narrow and unrealistic in interpreting factor (k) because the factor actually lets a jury consider any extenuating circumstances, and the likelihood of good future conduct could excuse issuing the death sentence. Now this doesn’t make much sense to me, since the factor (k) instruction talks about evidence extenuating the gravity of the crime, not the sentence. But I suppose the same could be said for the consideration of postcrime rehab, and that’s what Payton was about and, since that can be applied under factor (k), I guess future good conduct can too.

In any event, Kennedy goes on to say that he simply can’t imagine that the jury didn’t consider the evidence after the defense spent so much time presenting it and both parties mentioned it in closing. In fact, the prosecutor specifically attacked it, clearly signaling to the jury that it should be considered. Of course, this totally ignores the question of whether the jury understood that they were allowed to consider the evidence.

On that point, Kennedy again smacks down the Ninth Circuit, for misinterpreting a discussion between the trial judge and some members of the jury during deliberations. I’ll spare you the particulars, but here’s what’s funny to me - the only way Kennedy’s argument makes sense is to read that discussion transcript fairly narrowly, yet he says that factor (k) should be read very broadly. So, according to Kennedy, the Ninth Circuit got things backwards because it gave factor (k) a narrow reading and the jury transcript a broader reading. To narrow the reading of the jurors’ actual words seems a bit wishy-washy to me, but I’m not a Supreme. Yet.

Anyway, the point of it all is this - according to Kennedy, the California instruction is very broad and lets lots of mitigating evidence in, and the Ninth Circuit F’ed up by saying otherwise.

But is that the real lesson here? No. The real lesson here, to my mind, is that jury instructions and statements by the judge to jurors should really be made as clear as possible.

I see Scalia concurred - what’s he gotta’ say for himself? Scalia did indeed write a quick one paragraph concurrence, joined by his Thomas lapdog. He just wanted to say that even if a jury’s discretion were limited so that the jury wasn’t permitted to consider all mitigating evidence, this still wouldn’t be an Eighth Amendment violation. This is an old argument of Scalia’s that he’s just bringing up again because he, apparently, really likes the death sentence.

Ok, what about the liberal pig dogs? What are they bitching about this time? Well this is a death penalty case, so you know that Stevens (who wrote the dissent, joined by Souter, Ginsburg and Breyer) is not happy with the result. Here, the crutch of his argument is that back in 1982, it wasn’t clear that factor (k) allowed the jury to consider all evidence - in fact, he says that “[t]he California death penalty statute in effect in 1982 quite plainly rested on the assumption that California could preclude the consideration of such evidence.” So Stevens thinks that things were very muddled back in 1982, and it was all made worse, in his mind, but the actual details of this case. He reads the evidence from the sentencing proceeding as making it clear that there’s no way the jury would’ve or could’ve considered the mitigating evidence. There’s too much to get into here (this is all rather long enough as it is), but to my mind, Stevens has a rather compelling point. He also addresses the concern I raised, albeit more eloquently than I made it: “[i]nstead of accepting that lay jurors would almost certainly give the words ‘circumstances which extenuates the gravity of the crime’ their ordinary meaning, the Court insists that they would have disregarded their instructions and considered evidence that had nothing whatsoever to do with the crime.” And Stevens just don’t buy this.

You Gotta Nip it in the Bud. Nip It.

fife.jpgI’m not sure what Barney Fife would’ve thought of this lawsuit, but I’m guessing he would’ve turned to Andy and said, “Oh, you’re just full of fun today, aren’t you? Why don’t we go up to the old people’s home and wax the steps?” That’s because the real Andy Griffith is all sorts of sour grapes after a man in Wisconsin legally changed his name to Andrew Jackson Griffith for the sole purpose of capitalizing upon that name in his effort to win a local sheriff’s election. Griffith is alleging that the man, who formerly went by the name William Fenrick, violated Griffiths’ alleged trademark and copyright in his name, as well as his privacy rights. Griffith has also asked the court to force Fenrick to go back to his old name.

Fenrick does not deny changing his name to gain publicity, but claims that he did not benefit from the name change. Indeed, the election results actually bear that out: Fenrick came in third in the race, gaining only 1,248 votes out of the approximate 17,000 cast votes.

Of course, I don’t remember ever seeing a black person in Mayberry, but if there had been one, I doubt they would’ve treated him as badly as a couple of firefighting captains treated fellow firefighter, Tennie Pierce. Indeed, Pierce — a black firefighter — just won a $2.7 million settlement from the city of Los Angeles, after he claimed that he was racially discriminated against when his co-workers served him spaghetti laced with dog food. Pierce alleged that, after reporting the incident, he was harassed with verbal slurs and other derogatory remarks. Other firefighters allegedly barked like dogs and asked him how the food tasted.

It’s funny, though; Paris Hilton never sued Nicole Ritchie after Nicole fed her dog food. But, maybe that’s why they didn’t speak for over a year.

The Daily Memo - 11/13/06

check.jpgTiVo alert for the Supreme Court junkies out there - Chief Justice Johnny will be on “Nightline” tonight. (SCOTUSblog)

check.jpgWhat happens in Vegas may stay in Vegas, but it better not touch you! (Yahoo)

check.jpgYou’re still gonna’ get a DUI for driving drunk late at night, even if it’s a golf cart you’re tooling around in. (Forbes)

check.jpgA federal judge in North Dakota has issued a preliminary injunction temporarily protecting the University of North Dakota’s use of the nickname “Fighting Sioux,” following the NCAA’s attempt to ban the school from hosting a postseason game because of its nickname. (SI)

check.jpgA family has been awarded $530,000 after a funeral home showed the wrong body during a wake. (Will, Trusts and Estates Prof Blog)

check.jpgFour Oklahoma men have died in an apparent murder-suicide rising from a dispute over a fence. (NewsOK)


burrito.jpgOne wonders what our earlier-discussed buddy, Judge Hauversburk, will learn in his mentor sessions. For example, if he were to be mentored by a certain Massachusetts judge, he would learn that a burrito ain’t a sandwich.

Big deal, you say? Everybody knows that?

Well, not so true, because that’s exactly what a sandwich place out in Worcester tried to argue, in order to keep a Qdoba Mexican Grill out of its shopping center. However, the judge presiding over the case reviewed expert opinions and dictionary definitions to conclude that “[a] sandwich is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filing of meat, rice, and beans.”

I don’t know about y’all, but I’m totally having some Mexican for lunch

…you’ve gotta’ ask yourself a question. Do I feel lucky? Well do ya’, punk?

dharry.jpgYou know the drill. I hate Mondays, you hate Mondays, we all hate Mondays. But as always, Florida is there to help us plow through the doldrums. This time, however, our Florida aid comes not from a stupid criminal but from a stupid judge.

Said stupid judge would be the honorable Michael Hauversburk, a first-year county judge. See, Hauversburk was concerned about the lack of security in his courtroom with respect to a particular defendant. So he decided to bring his own gun into the courtroom, announce that he was “locked and loaded” and tell the man’s defense attorney that if the man did anything the judge didn’t like he would “fire first and ask questions later.” Needless to say, Hauversburk has since apologized and admitted that this was an overreaction, and he’s been ordered to seek mentoring.

And all future defendants appearing before Judge Hauversburk are reminded to keep track of just how many shots Hauversburk fires off in court, just in case they should find themselves in a “feel lucky” situation.

Ah, Calvin, we miss ya…


(11/10/95, via goComics)

More Friday Rules

federleezee.jpgRule number one - don’t marry K-Fed.

Rule number two - don’t marry K-Fed.

Rule number three - when you come to your senses and realize that you should’ve followed rules number one and two, and decide to divorce K-Fed, don’t be surprised when he comes after you for spousal support. He’s gotta’ find some way to afford Ho Hos.

Seriously Brit-Brit, feel free to consult QuizLaw before deciding to once again step into the legal bounds of holy matrimony. We’re here for you honey.

The Daily Memo - 11/10/06

check.jpgRachel Ray is getting sued by a radio host who claims that Ray’s “Inside Dish” stole his idea. (TV Squad)

check.jpgSenator Patrick Leahy is the new Senate Judiciary Chair. (Above the Law)

check.jpgKevin Costner was given some love from the South Dakota Supreme Court in his case disputing the ownership of a casino. (CNN)

check.jpgWhen interstate commerce and abortion collide. (Scotus Blog)

check.jpgA lawyer has been allowed to proceed with a defamation lawsuit against his neighbor, who claimed that he “lives with under-aged girls.” (Law.com)

check.jpgCongratulations to Bert Coker, who beat “Tony the Tiger” in his election campaign to become the mayor of Columbus, Georgia. (The Ledger-Enquirer)

Throw the Frat Boy Down the Well

Last weekend, when I attended Borat, I thought a few things about the film: 1) That is was freakin’ hilarious; 2) that it was kind of depressing that we live in a culture where prejudice and ignorance are so easily exposed (the Borat character may have been a joke, but certainly Borat’s victims saw the cameras); and 3) that the fraternity boys in the film – well, their life is fucked. I haven’t seen that much rampant homophobia, racism and misogyny since I left the South 15 years ago … and there it was, for all of America to see.

Those boys will never get laid again.

So I thought that if anyone was going to sue the makers of Borat, it would be those frat boys — and I’d argue they even have a decent case for the eternal loss of consortium. And sure enough, word comes today that two of the fraternity men — unnamed in the lawsuit — have filed legal action, claiming they were duped into appearing in Borat , wherein they engaged in behavior they otherwise would not have engaged in. Apparently, the producers of the film even liquored up the frat boys at a bar, before having them pick up Borat in an RV. And after drinking heavily, they were asked to sign a release form, which they thought had to do with the reliability of the RV.

But, here again: Drunk or not drunk, there were obviously cameras in the midst. And, clearly, the frat boys knew that whatever they were saying would make it out for public consumption. They may have some sort of legal incapacitation argument, having signed the release while heavily intoxicated, but there’s no excuse for what they were saying other than complete assholery.

Friday Rules

troubleAfoot.jpgRule number one - don’t go into a Circle K.

Rule number two - don’t go into a Circle K, even if you’re drunk. I’m sure you’re just looking for some drunk snacks, but that’s what Domino’s is for.

Rule number three - absolutely don’t go into a Circle K, while drunk, and strip half-nekkid.

Rule number four - don’t go into a Circle K, while drunk, strip half-nekkid and then wander out onto the street, falling over and showing your naughty bits to all of North Canton, Ohio.

As Ted Theodore Logan has been heard to say, “strange things are afoot at the Circle K.”

You know, the fat one

baldwin2.jpgWith the election over, and most lawyers too busy licking their wounds or celebrating to bother suing anyone, interesting news in the legal world is light today. All the easy-to-mock Republicans are out of office, and now even Rummy is history.

Thankfully, we’ll always have Daniel Baldwin. The bad Baldwin brother was arrested earlier this week for allegedly stealing a car. The car purportedly belonged to a friend, but Baldwin had no permission to borrow it. He was thus charged with grand theft auto and bail was set at $20,000. Apparently, the owner of the car reported the theft to Onstar, which resulted in Baldwin’s arrest.

It’s not the first run-in with the law this year for the star of Beach Party at the Threshold of Hell. In July, he crashed a rental car into two parked vehicles, and in April, he was arrested for possession of cocaine. Those charges were later dropped.

Baldwin is currently filming The Devil’s Dominoes, a film in which he plays a Sheriff. Clearly, his recent arrests can be chalked up to research — fucking method actors. They stop at nothing for their art.

The Daily Memo - 11/9/06

check.jpgA bar is being sued for hosting a Shakira shake-off, because a woman competing in said shake-off fell off a bar and tore a knee ligament. (Above the Law)

check.jpgThe Cos has settled his sexual assault civil lawsuit, presumably paying a significant amount of pennies to get his accuser to shut up and go away. (CNN)

check.jpgYesterday the Supremes heard arguments from closely watched cases concerning the legality of the Congressional ban on partial-birth abortions. (CNN)

check.jpgAnd Slate’s Dahlia Lithwick tells us what happened at those oral arguments, including some shouting by a spectator. (Slate)

check.jpgUnsurprisingly, a “Motion to Discharge Response to Plaintiff’s Response to Defendant’s Response Opposing Objection to Discharge” was ruled incomprehensible. (Sui Generis)

check.jpgSandra Day O’Connor says a 2002 Supreme opinion about judicial candidates speaking about hot-button political topics, which she was the deciding vote in, “gives her pause.” (Law.com)

check.jpgA federal judge has ruled that the White House can be subpoenaed in connection with a lawsuit over the morning-after pill. (LawInfo)

check.jpgThe city council of a Massachusetts town would like BB and pellet guns outlawed. (CBS4)

That’s not his gun…

cops.jpgCops in South Carolina really know how to have a good time. Don’t believe me? Just ask officer Lenard Paige. Or ask his fellow officers who found him hanging out in the parking lot of a local apartment complex at 11 p.m. the other night.


And naked.

Since this happened the day before Election Day, I’m guessing he was just a Republican who could read the writing on the wall, and he was commiserating the only way he knew how. Poor guy.

Well, I have a degree from the University of Arizona in modern dance and jazz, but now mostly I do lap.

larry.jpgToday, 49 percent of the 2004 electorate is ecstatic. Democrats have taken over Congress. Rumsfeld is history. South Dakota rejected a ban on abortion. And Arizona voted against a ban on same-sex marriage.

But the happiest man in the country today is a Seattle man named Larry. Larry is a fictional person I created for the purposes of this blog entry. That is not Larry pictured, but it’s how I imagine he might look. Larry works in the gift shop at the Space Needle, where he brings home $405 a week, after taxes. He has no car — he takes the bus to and from work, battling the dreary Seattle weather. He drinks Michelob in a can. He wears an unironic trucker cap on the weekends. His wife is a nag. He spends four nights a week watching scrambled porn on his television after his wife has fallen asleep.

Once a month, Larry sneaks away from his house, telling his wife that he’s playing cards with friends. The truth is, Larry has no friends. In fact, he escapes the clutches of his wife to visit Xotics, a strip joint in Seattle, where Larry wears his trucker cap and drinks Michelob in a can in the company of naked women who — for a fee — pretend that Larry matters in this world. It’s the best day of Larry’s month.

And now, thanks to voters in Seattle, lap dances at Xotics will continue! Indeed, voters rejected Referendum 1, which would have required exotic dancers and their customers to remain at least four feet away from one another. The rule also would have “banned direct tipping of dancers, forced clubs to install brighter lights and prohibited private dances some clubs offer in ‘VIP’ rooms or booths.”

Larry is a happy man, today. He doesn’t really care about Democrats or Republicans. He doesn’t know who Donald Rumsfeld is, but — from what Larry thinks — George Bush is exactly the kind of guy he’d like to grab a cold one with, pull up a chair, and share a meaningless sexual experience with a thigh-bruised skank who is willing to accept payment for lap dances on an installment plan. Good for you, Larry. And Happy Election Day — it just goes to show you that there’s something for everyone. Well, except for Republicans.

The Daily Memo - 11/8/06

check.jpgBob Dylan is the musician most cited by legal writers. (The Legal Reader)

check.jpgSome places are taking punitive measures to fight an ongoing decline in the number of folks showing up for jury duty. (Concurring Opinions)

check.jpgTwo cops are suing Burger King because they were allegedly served burgers with pot sprinkled on them. (FindLaw)

check.jpgA Cape Cod judge threw a kid in the clink for contempt of court, putting him in the same cell as an accused murderer, for showing up in the courtroom in shorts - apparently a courtroom “is not Fenway Park.” (Boston Herald)

check.jpgNote to self - don’t rob the same exact gas station two days in a row. (CBS4Boston)

Smell ya’ later Rummy!

ballot.gifNot only have the Dem’s won back the House. Not only are they one potential recount away from winning back the Senate. But now they’re greated with the news that Defense Secretary Donal Rumsfeld is ending his six year reign and is stepping down.

Can’t say we’ll miss your policy, or your decisions, or your pig-headedness, but we will miss that certain assholery you had refined to an art.


In many parts of the country, Republicans were seen doing the walk of shame this morning….

ballot.gifWell the day after Election Day usually has some interesting headlines, and as the Democrats lick their lips at the thought of gaining back some long-lost legislative power, here are some of the law-related headlines:

Over at How Appealing we learn that “[b]allot measures seen as threats to judicial independence are defeated in South Dakota and Colorado.” The South Dakota measure which failed was the much-discussed “Jail 4 Judges,” which only received backing from about 10 percent of the voters.

South Dakota voters also declined to endorse an almost universal ban on abortion (the only exception was for when the mother’s life was in absolute danger).

Meanwhile, in Missouri, it looks like state voters narrowly passed a proposal in support of stem cell research. However, it may be a while before the protections of that law are afforded to state researchers, as opposition groups say they intend to tie things up in court and pass further legislative restrictions.

Gay marriage was also on many ballots, and in seven states, voters approved to limit the definition of marriage as being between a man and woman. While Arizona voted against such a state constitutional amendment, it was approved by voters in Virginia, South Carolina, Wisconsin, Tennessee, South Dakota, Colorado and Idaho.

And here in Massachusetts, I’m sad to report that Question 1 was voted down, meaning we still can’t buy wine in our grocery stores.

Who knew that Amanda Hugankiss wasn’t the Secretary of the Treasury or that Harry Paratestes wasn’t the Treasurer of the United States?

prison1.jpgOn September 18, Monica Nicholson was thrown in the clink. The 37-year-old was facing charges of fraud stemming from, among other things, her attempts to pass forged checks. A few weeks later, Nicholson finally posted bail. With a cashier’s check.

You see where we’re going with this?

Unfortunately, the jail folks were a little slow on the uptake, so by the time they figured out that the check was no good, Nicholson had of course flown the coop. She posted on October 2, so it’s a month-plus that she’s been on the lam now, and while they’ve tracked down two guys they believe to be her accomplices, she and another man remain at large.

The sheriff’s department says they’re treating this like a jail break. Which makes me think they need to get a fed like William Fichtner’s character on “Prison Break.” If that dude can figure out Michael Scofield’s plans, what with the complicated body tattoo, coded origami swans and the like, he should have no problem with a lady who just passes some bum checks.

Oh, and in case you were curious, “[t]he jail isn’t accepting cashier’s checks for the time being.”

If I’m going to be a legally-declared whore, I’m going to be a single legally-declared whore

britbrit.jpgBrit-Brit has filed for divorce from Mr. PopoZao himself, and is seeking legal custody of both of their kids. She’s waiving her right to any spousal support, since she’s trying to loose weight and presumably knows that the only thing he’ll be able to provide her are some Ho Hos he pockets when his graveyard shift at the local gas station is over.

…and for what it’s worth, I apologize for hitting you with two Brit-Brit stories in one day. I blame Election Day - it’s got my head all a-twitter.

Yakshemash! In US of A, democracy is very different from Kazakhstan. In America, woman can vote, but horse cannot!

borat.jpgAs my colleague has already pointed out, today is Election Day — when the fate of the entire free world rests in your hands. No pressure or anything.

Anyway, it didn’t take long for voting irregularities to crop up, suggesting that — no matter who wins — lawsuits are inevitable, both from losing candidates and disenfranchised voters. The AP reports, for instance, that programming errors and inexperience dealing with electronic voting machines frustrated poll workers in hundreds of precincts all over the country:

In Delaware County, Ind., officials planned to seek a court order to extend voting after an apparent computer error prevented voters from casting ballots in 75 precincts. Florida officials, working to avoid a repeat of the vote-counting debacle of 2000, fielded extra voting machines, paper ballots and poll workers. In the Jacksonville suburb of Orange Park, Fla., voters were forced to use paper ballots after an electronic machine broke.

Less publicized problems have also cropped up, including one district in Ohio where voters who selected Democratic candidates received small jolts of electricity when they pushed buttons. In Missouri, where one of the mostly hotly contested Senate elections is taking place today, some voters in heavily Democratic districts found fecal matter on electronic voting machines.

Democrats, however, pulled off the dirtiest trick this election day, somehow convincing President George Bush to stand in front of polling places, offering voters a much-need reminder of who not to vote for.
For those of you anticipating problems with electronic voting machines today, our pals over at Junkiness also offer a couple of helpful tips, including these:

1. Try to avoid being African-American; and

2. Rather than waiting in long lines to vote on dubious equipment, Republican supporters would be better off staying at home praying for their candidate to win.

Happy Voting!

The Daily Memo - 11/7/06

check.jpgA Delaware man convicted of exposing himself, twice, to a young girl, has been ordered to a wear a t-shirt proclaiming himself as a registered sex offender to let customers know that he is, in fact, a sex offender. (Reuters)

check.jpgThe administration is now arguing that a suspected terrorist who was held in one of those secret CIA prisons shouldn’t even be allowed to talk to a civilian lawyer. (CNN)

check.jpgA cop is suing a man, whose life he saved two years ago, claiming that ongoing emotional distress from the incident has caused him long-term and ongoing harm and suffering. (Newsday.com, hattip to Overlawyered)

check.jpgThanks to a typo that missed everyone’s attention, it’s now illegal to drive in New York with even a thimble of alcohol in your system. (Newsday)

check.jpgA Tennessee man got out of DUI and evading arrest charges because he was pulled over on the other side of the county line. (The Chattanoogan)

check.jpgA Texas prosecutor has killed himself to avoid being arrested for soliciting sex with a minor. (FindLaw)

check.jpgSyracuse University is suing a Florida basketball team that’s been calling itself the “Orangemen.” (The Central New York Business Journal)

Ooops! …She’s a slut again.

brit.jpgLast October, “US Weekly” published a story which claimed that there was a secret sex tape of Brit-Brit and the K-Fed doing the nasty (and that word has never been used so figuratively and literally at the same time). The story also claimed that the couple was worried about this tape being distributed in a devious scheme to burn out the optic nerves of the American public.

Brit-Brit wasn’t a fan of this story, so she sued “US Weekly” for $10 million, claiming that the story defamed her pure and chaste character. Well the California Superior Court judge sitting on the case has now dismissed it, essentially because Brit-Brit is a whore.

As Judge Cole explained, the question is whether it’s defamatory to say that a married couple taped themselves having the sex. Particularly in light of the fact that Brit-Brit has “publicly portrayed herself” as a tramp and has “put her modern sexuality squarely, and profitably, before the public eye.” Judge Cole decided that it was unlikely that one could consider the magazine’s article defamatory in light of the fact that Brit-Brit has whored herself so much, and thus the case, like Brit-Brit’s dignity, is now no more than a distant memory.

So it’s official - Brit-Brit is a tramp.

(Hattip to reader Tracy who practically begged for this story to be dispersed to our readership)

Diddy commands you!

vote.jpgIt’s Election Day boys and girls, and QuizLaw kindly requests that you follow the Did-man’s advice, and vote or die. After all, the system only works when it’s properly exercised (and even then, the odds are only 50/50, at best).

So take twenty minutes you would otherwise spend reading diversionary sites like this one, and go read an Election Day voters’ guide (your local paper’s website invariably has a rundown of all the stuff that’ll be on your ballot). Then make a quick stop on the way home from work and punch a ballot or push a button on a rigged machine. For example, if you live in Massachusetts, there’s a very important ballot question that will decide whether grocery stores can start selling wine. As an inebriate, I can think of no more important matter out there today, and everyone needs to have their voice heard, counted, manipulated to the whim of the people in charge, and then reported back to them in a nice little ticker running under tonight’s episode of “Dancing with the Stars.”

That’s a-spicy meatball!

spicy.jpgLast year, a 22-year veteran New York detective failed the routine random drug test given to many police (or, as they’re called on the fantastically ignored “The Wire,” po-lice). The detective, Anthony Chiofalo, failed because the test showed pot in his system, so he was immediately suspended without pay. Chiofalo claimed there was something wrong and that he had not smoked any doobies, and he demanded a hearing.

That hearing has now come-and-gone and the administrative judge actually ruled in Chiofalo’s favor, finding that he had involuntarily ingested the pot and ruling that Chiofalo should be reinstated. Apparently the police force doesn’t need to actually follow this ruling (which sort of half-defeats the purpose of it, if you ask me), and the Police Commissioner hasn’t publicly stated whether he will actually abide by the ruling or, alternatively, fire Chiofalo.

So what happened, you ask?

Quite simple really - during an investigation into the matter, his wife admitted to using a meatball recipe which called for marijuana instead of the more conventional oregano. She claims to have done this to try to force him into retirement so she wouldn’t have to worry about his safety on-the-job anymore.

Obviously, if Chiofalo is not reinstated, she would get her wish. However, my sources tell me that she’s changed her story and is now rooting for Chiofalo’s reinstatement after he told her that, should he be stuck at home all day, he intends to merely loaf on the couch bogarting the meatballs and watching old VHS copies of “Sifl and Olly:”

No. Screw You

screwdriver.jpgSometimes, the day before the biggest election in two years, we all just need some perspective. Indeed in the wake of the Mark Foley scandal, the Pastor Ted scandal, the macaca scandal, the Delay scandal, the John Sweeney scandal, the Abramoff scandal, the Don Sherwood scandal, and the Jim Gibbons scandal, it’s nice to know that — as low as many of our fine Republicans have stooped — that at least no one has been caught with a screwdriver in their ass.

The same cannot be said of 33-year-old John Sheehan, who was arrested for indecent exposure last week. Police were called to the scene near a subway station, where Sheehan was lying naked on a tree stump, masturbating. When police detained him, they asked the usual round of questions — why are you out in public spanking it, what the hell is wrong with you, and do you have anything dangerous on your person? Sheehan replied by telling authorities that he had a screwdriver in his anus.

Well, of course he did.

Thankfully, however, Sheehan interceded before police could call an ambulance to have the tool removed, saying, “Hey, don’t worry about it. I can do it.” And so he did. While police kept their weapons trained on Sheehan, mindful of the dangers of a fecal-stained screwdriver, the man pulled the metal borer from the clutches of his arse and brought it to safety, where it can once again be used for its intended purpose — the destruction of electronic voting machines in heavily favored Democratic districts.

The Daily Memo - 11/6/06

check.jpgBlawg Review #82 is up over at Votelaw. (Votelaw)

check.jpgAny excuse to link to a clip from “The Simpsons” works for me. (Sui Generis)

check.jpgOver at LawSites they’re conducting an informal poll to find out “the one law-related blog you feel you must read as regularly as possible.” (LawSites, hattip to Patent Baristas)

check.jpgA lawyer pulled one over on his client, busting the client for not giving a patent application even the most basic review. (The Volokh Conspiracy, hattip to Overlawyered)

check.jpgA federal judge in Iowa has ruled that Bill Gates and Steve Ballmer will have to testify, in person, in a class-action antitrust trial later this month. (FindLaw)

check.jpgA New Jersey man has been arrested for hate crimes after cutting a racial slur into an open field with a lawn mower. (FOXNews)

check.jpgWhile being transferred, a prisoner stole the jail’s van, presumably adding a bit more time to his sentence. (KUTV)

But can he help the local high school basketball team win the big game?

twolf.jpgOut in Kentucky, William “Billy” Sartin is facing two murder charges. The charges stem from Sartin being convinced that the now-murdered men were trying to poison him by putting things in his coffee. This isn’t the first time Sartin’s had legal troubles, and they all stem from some severe mental illness - twice he’s been found incompetent to stand trial, and he’s also been involuntarily committed before, for a three year term.

Along with the standard run-of-mill mental illness, Sartin also has a more unique problem - he’s been described as having “at times ‘mentally devolved into a wolflike state.’” For example, he’s been seen running naked through the woods, even at times when he wasn’t being chased by the cops. And after the alleged murders, his family says that he ran off to hide in the woods for two days, only returning home to take a bath.

In fact, a judge familiar with Sartin says that he’s not actually a werewolf, but that he does have great strength and stamina which makes it difficult for the cops when they have to go after him:

I’m telling you, he was the fastest thing on two, or four feet, whichever way you want to say it….You couldn’t catch him with a car, or a four-wheeler, if he was in the woods.

Not only may Ann Coulter be a man…

…she may also be a felon!

And you know what the ultimate irony is? If Coulter got thrown into the clink over this, she would actually achieve one of her goals, proving to all the lefty devil worshipers out there that there is, in fact, a god!

The Daily Memo - 11/3/06

check.jpgA Denver judge has ruled that Colorado theater companies are not exempt from the statewide ban on public smoking, as smoking in a performance “is not inherently an expressive behavior” and thus not constitutionally protected. (The Denver Post)

check.jpgYikes - a federal indictment has come down alleging that a bunch of Virginia deputies were crooked as hell, selling seized guns and drugs out the back door and laundering money. (CNN)

check.jpg“Rush Limbaugh isn’t really an obese, thrice-divorced, draft-dodging drug addict - he’s just faking!!!!” (Is That Legal?)

check.jpgMicrosoft relents, just a teensy bit, and makes a minor pro-customer change to the upcoming Windows Vista end-user license agreement. (Engadget)

check.jpgAnd the FCC also surprises folks by taking a pro-consumer stance, requiring the Massachusetts Port Authority to back off its order that airlines can’t offer free wireless internet at Boston’s Logan International Airport. (Engadget)

check.jpgA federal court in D.C. has temporarily blocked a prior ruling banning cigarette companies from using “light” and “low-tar” on their ads and packaging. (Law.com)

But the perks aren’t nearly as good

arza.jpgIt’s been a busy week for Representative Mr. Ralph Arza. Until this Wednesday, Arza was a state legislator busy running a reelection campaign. Now he’s a disgraced former-politician with two criminal felony charges pending.

You see, it turns out that Arza is a racist little son of a bitch. So when he was unhappy about a black school superintendent, he referred to him with a rather charged racial epithet. Another state legislator, Rep. Gus Barreiro, wasn’t so keen on this, so he filed a complaint against Arza. Well Arza wasn’t so keen on this. So over the course of a day, he and his cousin made 10 threatening phone calls to Barreiro, spitting out all sorts of obscenities and even referring to Barreiro by the same slur, even though Barreiro is Hispanic, not black. So our little racist is also ignorant!

And busted, because five of these calls were recorded.

That smell in the air? Why, that’s the smell of scandal.

On Wednesday, after being urged by fellow Republicans (including Governor Jeb), Arza resigned. He said it was because he didn’t want to distract from the Legislature’s work, and because he didn’t “want to be the story.” Of course, it had nothing to do with the fact that he resigned only an hour before a special panel was going to start hearings which would certainly result in his getting tossed out anyway, did it? …naaaaaah.

So now Arza and his cousin are facing felony charges of trying to retaliate against a witness and tamper with a witness, and they could get up to 10 years in the clink. Which is a way better term than he would’ve gotten if reelected to the Legislature, so this is kind of a win for him, right! “Ten more years! Ten more years!”

‘A Woman’s Right to Change Her Mind’ Denied by the Legal System

crimlaw.jpgDifferent law schools, of course, offer minor variations on the first-year experience. Some are more Socratic than others, a few don’t record grades, and yet others have professors who are more inclined to sleep with their students in exchange for an above-the-curve grade. But no matter what law school you go to, there are two things about the first-year experience that are universal: 1) it’s completely fucking miserable, and 2) the worst part of the entire academic year is the week-long discussion of rape in criminal law. In fact, it’s so awful that many professors rightfully excuse students who are sensitive to the subject.

And if you’ve been there, you know exactly what I mean: The rape discussion, though tense, usually starts off tame enough. But, invariably, once the issue of “consent” arises, things get downright nasty. Some asshole — that guy that just wants to hear his own goddamn voice, no matter how ridiculous his arguments are —inevitably offers up the lame “she was asking” for it argument. And then the militant lesbian-feminist — that girl you really liked your first semester because you’re from a small town and never knew a lesbian or a feminist but you kind of hate her by the end of the year because all she talks about is being a lesbian feminist — turns the debate into a personal one. Then, during the rest of class, the asshole and the militant feminist-lesbian square off, exchanging increasingly personal insults while the crim law professor tries to moderate the discussion, but only makes it worse when he attempts to put the “she was asking for it” argument into more relatable legal terms. Good times!

Anyway, imagine what the legal system would be like if three of those “assholes” were on a three-judge panel of the Maryland Court of Special Appeals deciding a rape case. Actually, you don’t even have to imagine it, because it’s a reality after a Maryland appeals court ruled that ‘no doesn’t mean no when it follows a yes and intercourse has begun.’ In other words, according to the court’s interpretation of Maryland’s rape law, a woman cannot withdraw consent after intercourse has begun, which presumably suggests that a woman who consents to missionary sex has waived her right to refuse the rougher varieties.

According to the Associated Press, “activists” were startled with the decision. In fact, I’m guessing that “activists” in this instance is just an AP euphemism for people with a goddamn ounce of common sense. Welcome to 1922, Maryland!

The Daily Memo - 11/2/06

check.jpgA widow has filed a $7.5 million lawsuit over her husband’s suicide - suing the restaurant that allegedly let him leave drunk (and which put him in a cab) and the cab driver who allegedly threw him out of the cab and left him on the side of the road. (Court TV)

check.jpgSerenity fans are now being sued by Universal, after previously being urged to do everything they could to support the flick. (Cinematical)

check.jpgApparently “not cool!” is not a legal argument. (WSJ Law Blog)

check.jpgThe Massachusetts state Board of Bar Overseers is recommending that two lawyers be disbarred (and that a third be suspended) after they tried to extort and intimidate the clerk of a Superior Court Judge who ruled against their client in a massive fight over family assets, so that they could discredit the judge and invalidate her judgment. (Boston.com

check.jpg“Xoxohth 1.1: The Past and the Present.” (Concurring Opinions)

check.jpgHeads up to any practicing attorneys wasting good billable hour time by reading our site - the electronic discovery requirements of the Federal Rules of Civil Procedure are getting a makeover on December 1st (CyberControls, hattip to Sui Generis)

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Desperate is as Desperate Does

homeland2.JPGWith six days to go until the mid-term elections, things are getting awfully goddamn ugly. There’s a Republican in a congressional race, for instance, running an ad here in upstate New York accusing his Democratic challenger, Michael Arcuri, of calling a phone sex line and billing the state for it. The ad has a silhouette of a woman dancing crazy erotically and saying, “Hi, sexy. You’ve reached the live, one-on-one fantasy line.” The facts, however, revealed that: 1) the call was made two years ago; 2) the bill to the taxpayers was $1.25; 3) the call was made by an Arcuri aid; 4) the call lasted only a second; and 5) it was a misdialed number, as the last seven digits of the phone sex number are the same as the Department of Criminal Justice Services. Arcuri is weighing a libel lawsuit against the National Republican Congressional Committee, which stands by the ad, insisting it’s totally true.

But, it gets uglier: Out in Charlottesville, Virginia, a protester and University of Virginia law student, Mike Stark, is pressing charges against George Allen’s campaign after he was tackled while asking Allen a question. The question, of course, wasn’t just any interrogatory: He was asking Allen why he spit on his first wife (and, come to think of it, that’s an answer I’d like as well). Apparently, Allen didn’t like the question (defensive much?), because Stark was put in a headlock and tackled to the ground.

But this is just how frantic the Republicans are leading up to the election: Another upstate New York (represent!) Congressional Rep, John Sweeney, is so desperate to win his re-election campaign that he beat his wife and blamed it on the Democrats! Indeed, according to a police report, Sweeney and his wife got into a fracas in December 2005 that got so intense, his wife had to call 911 to report that Sweeney was “knocking her around the house.” When police arrived, Sweeney’s wife said the two had a “verbal argument that turned a little physical by her being grabbed by the neck and pushed around the house.” Sweeney countered that the police report was a bit of campaign propaganda released by Democrats to smear his reputation. (Sweeney has done enough of that himself, having been arrested for a drunken driving incident and, earlier this year, showing up to a frat party openly intoxicated.) Sweeney, despite the fact that the 911 call is on record and the police didn’t deny the report, claims that it was unauthentic and false, based primarily on the fact that the report was “barely legible.”

But, this one takes the cake: What happens when the President of the United States is a whiny little bitch whose party is getting trounced in the polls and a protester (who happens to be a school bus driver) flips him off? Well, the President has her fired, of course. Douchebag.

The Daily Memo - 11/01/06

check.jpgJesse James Hollywood, who’s awaiting trial for allegedly running the kidnapping and murder of a local teen, has filed a lawsuit to keep the movie Alpha Dog, based on the story, from being released because it could poison the jury pool - and this comes on the heels of the prosecutor being removed from the case for helping the filmmakers. (The Hollywood Reporter, Esq.)

check.jpgA hearty “welcome” to The TTABlog, which is joining me up in the Boston area. (The TTABlog)

check.jpgAuthor Neil Gaiman explains why authors should prepare a will, even if “they don’t mind who gets their jeans and old guitar when they die,” and even offers a quick and dirty form for you writers out there to use. (Neil Gaiman’s Journal)

check.jpgNow that her man Brad may be filing a lawsuit, Jolie is jumping into the waters with a possible lawsuit of her own against a Cambodian aid group which may have played funny-money with her donations. (Yahoo News)

check.jpgLast week a lawyer accused a judge sitting on his trial of being impaired on the bench, so now the judge has declared a mistrial. (Legal Profession Blog)

check.jpgRapper Heavy D is suing an insurance company for $1.5 million because they allegedly owe him money for payouts he had to make in relation to a 1991 stampede at a celebrity basketball game. (New York Daily News)

check.jpgThe DOJ is investigating Sony in connection with alleged price fixing of RAM. (Slashdot)

Mortal Kombat, City Government Edition: “Mayor…police…fight!”

kombat.jpgWell things in Rochester, a suburb about a half-hour north of Detroit, seem to be a right mess. See, in Rochester (as in many other places, I suspect), there’s a ticket quota in place, meaning the each cop has to get a certain number of tickets and citations issued each month. And one of the easiest ways for cops to get some tickets out to meet their quota is with equipment violations - you know, where a car has a busted tail light, a dangling muffler, etc. So one day, a driver gets pulled over because his car’s got a broken headlight. That’s a violation. And since he apparently neglects to fix it, he ends up getting pulled over four more times for the same busted headlight. And last June, during one such traffic stop, the man is arrested because the cop realizes there’s a warrant out on the driver, stemming from an unpaid traffic ticket. All seems well and good, right?

Well as the title of this post may have suggested to you, this man turned out to be David Katulic, Mayor of Rochester, and the shit has now hit the fan.

Like most police departments, the Rochester department has access to a database which stores information about criminal records, outstanding warrants, driving records, etc. It’s only supposed to be used by prosecutors and cops who are actively investigating criminal activity, and it’s a misdemeanor to use it for personal use. Well in August, someone from the police department asked the sheriff’s office to conduct an investigation concerning this database. Specifically, there where concerns that the officer who arrested the mayor, along with three other officers, a sergeant and a dispatcher, all illegally used this database. The sheriff’s office has now conducted its criminal investigation and turned the information over to the prosecutor’s office, which is expected to make a decision this week on whether to push forward with charges.

So far there’s been no comment by anyone on how, exactly, the database was allegedly misused. Seems to me that this is part of the routine when there’s any traffic stop. Cops pull a car over. Cops check to make sure they didn’t pull over someone on the lam. Standard practice and procedure. Which of course leads one to the conclusion that this investigation may be nothing more than retaliation for the fact that it was the Mayor who was arrested. That’s clearly what the director of the Police Officers Association thinks:

The mayor had warrants out for his arrest. The officer arrested him. Why is he any different than some other criminal that’s got a warrant out for his arrest?

One officer from the department, who won’t say if he’s one of the ones under investigation (the names have not yet been released), says that police officers were specifically told to target the mayor. Which, coupled with the listing of the folks being investigated, could lead to something like this: maybe the sergeant decided to target the Mayor because he didn’t like these quotas, so he ordered the dispatcher to pull the Mayor’s driving info and send it out to these officers with instructions to repeatedly track him down. This is pure speculation on my part, but it’s the only thing that makes sense (of course, this still ignores the fact that the Mayor got pulled over five times and didn’t bother to fix a bloody headlight).

The Mayor, of course, has nothing to say on the matter aside from the fact that he holds no grudges against the cops.

Regardless of how this plays out - retaliation by the Mayor and his goons, or a targeted sting by some rogue cops - it’s all just a mess. And the shit storm between the cops and the city government has apparently been growing as a result of all this. For example, the police chief says that when this whole investigation began last month, the City Counsel considered totally dissolving the police department, and just contracting everything out to the sheriff.

Rochester is supposedly pretty affluent, so I’m sure the local citizenry must be real pleased to see that this is how their tax dollars are being spent.