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Monthly Archives: February 2007

A Cautionary Tale about Steroids for the Kids

hulk34.jpgThe story goes like this: Michael Beaulieu, 37, who had only been released from jail for assaulting his girlfriend two days prior, decided, I guess, that a man who just finished serving time needs breakfast in bed. And when the same girlfriend he’d assaulted previously didn’t get it for him, Beaulieu got upset. How upset? Well, first he tried to suffocate his girlfriend with a pillow. Nope - that didn’t work. Next, he attempted to stab her in the neck with a telephone antennae. Damn … that didn’t work either. So, what’d he do next?

He threatened to shove a bag of explosives in her mouth and light it if she didn’t stop screaming. I guess it worked, too, because he later allowed his girlfriend to leave, to go get him some breakfast. I suppose one can work up a hearty appetite trying to kill a loved one.

At any rate, Beaulieu was arrested and “charged with possession of an explosive device, first-degree unlawful restraint, possession of a controlled substance and threatening.” When police arrested him, they found in his suitcase a large assortment of steroids. No shit? I’d have never expected that steroids were involved. I suspect the whole argument started when Beaulieu’s girlfriend noted how small his penis had gotten since last she saw him.

The Used Car King Says: Bring Your Baby

usedcars.buyselltrade.350.jpgOut in Colorado, three folks were arrested for swapping their baby for a down payment on a car and an unspecified amount of cash. Nichole Uribe is accused of trading her 5-month old to a couple, and all three were charged with felony trafficking in children and held on $50,000 bail. The child is being held in foster care.

But here’s what really bugs me: She traded it in for a used Dodge Intrepid. I mean, c’mon! If you’re going to trade your baby for a car, at least get a foreign car. The bluebook value on a 2004 used Intrepid (the latest for which stats are available) is only $8,300 (and it only has mediocre crash-test results). And she only got a down payment.

A five-month-old child is certainly worth more than a down payment on a shitty domestic car. Uribe should’ve held out for better. This country has really got to get its priorities straight.

It does remind me, however, of the best used-car commercial ever created:

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Man’s Best Friend Takes on an Entirely New Meaning

In Michigan, it is a crime to have sex with a dog. No surprise there, right? Well, Michigan law does not specifically outlaw sex with a dead dog, which is the defense that Ronald Kuch attempted to mount against charges that he had, in fact, sodomized a deceased canine. Kuch’s attorney argued that a dead dog is not an animal and therefore could not be violated against its will.

A Michigan judge, however, rebuffed Kuch’s defense, deciding that charges of sodomy and indecent exposure would go ahead against the dead-dog fucker. He is scheduled, also, to have a hearing on May 30 to determine if he is a “sexually delinquent person,” which seems like a no-brainer.

Indeed, Kuch is accused of having sex with his girlfriend’s dog about a week after it got hit by a car. A teacher at the local school was leading an Animal Control officer to the carcass, so that he could dispose of it, when they ran upon Kuch, taking care of his business. Kuch allegedly scuffled with the officer (whether that was before or after removing the carcass from himself is not specified) before running off into the woods.

But you know what the craziest thing about this whole ordeal is? It’s not the first time our nation’s court system has had to grapple with this issue. In fact, only a few months ago, Seth wrote up a similar case, in which a man argued that a Wisconsin statute did not outlaw sex with an animal carcass. In that case it was a deer, and I can’t decide if that’s better or worse.

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The Daily Memo - 2/28/07

check.jpgIt never ends - an appellate court will now take a stab at the case about where Anna Nicole Smith will be buried. (CNN)

check.jpgDisney is suing the city of Anaheim because the city wants to add low-cost housing near Disneyland, but Disney says they only object because it’s a tourist area that residents wouldn’t feel comfortable living in…riiiiiiiiiiiight. (FindLaw)

check.jpgBaltimore is the latest city to ban smoking in its bars and restaurants. (Baltimore Sun)

check.jpgDirector Steven Soderbergh got rejected as a NYC juror earlier this week. (NY Post)

check.jpgWant to know more about why the Libby jury is continuing to deliberate even though a juror was dismissed, and what happens if another juror has to be benched? (Dorf on Law)

Supreme Court Decision Update - Whorton v. Bockting

lanaTurner-witness.jpgToday’s only Supreme decision, Whorton v. Bockting (PDF of the opinion) is a narrow case which clarifies whether an earlier Supreme decision about the Confrontation Clause, which in turn overturned an older Supreme case, applies retroactively. And since the Ninth Circuit said it does, it should come as no surprise that the Supremes said, “nuh-uh” (and since all of the Supremes love a good Ninth Circuit reversal, it should also come as no surprise that this decision was unanimous).

QuizLaw Analysis: The Supremes take another opportunity to bitch slap the Ninth Circuit with yet another reversal. This time, the Supremes say that the Crawford ruling does not apply retroactively. In Crawford, the Court held that the Confrontation Clause only allows the use of hearsay testimony when the speaker is both unavailable to appear at trial and where the criminal defendant had some opportunity to cross-examine the speaker. But that ruling can’t help the criminal defendant in this case, because his trial and direct appeal happened before this rule. And nobody’s crying about it, really, since the scumbum was convicted of sexually assaulting his 6-year-old stepdaughter.

Ok, so what’s all this Crawford and Roberts business? Well that’s a good place to start. In 1980, the Supremes decided Ohio v. Roberts. In that case, they were looking at when you can introduce hearsay testimony (testimonial statements made by a witness outside of the courtroom). The Supremes essentially said that such out-of-court testimony was permissible as long as the person was unavailable and there was some “indicia of reliability” - that is, some indication or basis of inferring that the statement was reliable.

Then in 2004, the Supremes overturned the Roberts decision in Crawford v. Washington. There, they looked at the Constitution’s Confrontation Clause, which comes from the Sixth Amendment and says:

In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.

The Crawford Court said that the Roberts Court got it wrong, and that the requirements of the Confrontation Clause are not met simply if the witness is unavailable and there’s an “indicia of reliability.” Since the Confrontation Clause specifically says the accused has a right to confront the witness, reliability of a statement can only be assessed when there is some opportunity for cross-examination. Thus, there are two requirements to allow such out-of-court testimonial statements: (i) as the Roberts Court also held, the witness must be unavailable to testify at trial; and (ii) in contradiction of the Roberts holding, the criminal defendant must have had some opportunity to cross-examine the witness. Only where these two conditions are met can the testimony be used in a criminal proceeding.

So what happened in this case? Well Marvin Bockting was a peach of a guy, on trial for the sexual assault of his six-year-old stepdaughter. During the trial, the trial court held a separate hearing and decided that the girl did not need to testify because she was so distressed already, and instead allowed Bockting’s wife and a detective to provide testimony about what the girl had said about the sexual assault (this is admissible hearsay under Nevada law). Bockting was convicted and appealed. His direct appeal went up to the Nevada Supreme Court and, as this was before 2004, the Nevada Supremes relied on the Roberts rule in allowing the testimony because the girl was unavailable, as declared by the trial court, and because there was an “indicia of reliability:” (i) because of the girl’s “natural spontaneity” in confessing Bockting’s acts to her mother; (ii) because she gave the same story to the detective a few days later; (iii) because she used anatomically correct dolls to show what had happened; and (iv) because she was talking about sexual things which a normal 6-year-old girl probably doesn’t know about.

So Bockting then filed a federal habeas petition, which was denied by the District Court. He appealed to the Ninth Circuit, and before the Ninth gave a ruling, the Crawford decision came down. Bockting then argued that under the Crawford rule, the girl’s statements should have been inadmissible. Bockting made two arguments. First, he argued that the Crawford rule is actually an “old rule” which was in existence at the time of his conviction. Second, he argued that even if it was a new rule, it was a “watershed rule” which should be applied retroactively to cases on collateral review. The Ninth Circuit said it was a new rule, not an old rule, but agreed that it was a “watershed rule,” and it therefore overturned the District Court’s denial of the habeas petition.

Old rule, new rule, watershed ruling and collateral what-now? In 1989, the Supremes had a plurality decision in Teague v. Lane. In that case and its progeny, the Court has explained when a Supreme decision get to apply retroactively to criminal cases which have finished their direct review and are on collateral review (e.g., here, Bockting’s direct review became final when the Nevada Supreme Court bounced him, and his federal habeas petition was a collateral review, related to, but separate from the direct line of his criminal case).

Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review. [citation] A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a “‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”

So the question here is two-fold. First, is the Crawford rule a new rule? And if not, does it meet one of the two requirements which allow an old rule to apply retroactively to collateral appeals?

And is Crawford an old rule? In a unanimous opinion penned by Justice Alito, the Supremes say no. Alito explains that:

A new rule is defined as “a rule that…was not ‘dictated by precedent existing at the time the defendant’s conviction became final” (emphasis is from the original quote, not from me or Alito).

Under this definition, Alito says it’s obvious that the Crawford rule is a new one, because it wasn’t dictated by any prior precedent. After all, it actually overturned prior precedent by overruling Roberts.

So does the Crawford rule meet those other requirements to apply retroactively anyway? No sir, it does not. First, Alito says it’s obvious that the rule is procedural rather than substantive, because it’s specifically about the procedural matter of hearsay admissibility. Thus, Bockting’s only saving grace is if the rule is a “watershed” rule. Alito notes that it’s very rare to find a watershed rule, particularly since, “in the years since Teague, we have rejected every claim that a new rule satisfied the requirements for watershed status.”

And what are the requirements for watershed status? Well, there are two:

First, the rule must be necessary to prevent “an ’ “impermissibly large risk” ’ ” of an inaccurate conviction. [citation] Second, the rule must “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.”

So why isn’t the Crawford rule necessary to prevent an impermissible large risk of an inaccurate conviction? Alito says that the rule is certainly intended to help ensure that a trial is accurate, by trying to keep inaccurate out-of-court statements out of the trial. The Court then turns to the helpful 1963 case of Gideon v. Wainwright. In Gideon, the Supremes ruled that all indigent defendants charged with a felony are entitled to appointed counsel, and that denying such a defendant legal counsel would created an “intolerably high” risk of an unreliable conviction. This is the only rule which the Supremes have ever said meets this “impermissible risk” requirement, and Alito says:

The Crawford rule is in no way comparable to the Gideon rule. The Crawford rule is much more limited in scope, and the relationship of that rule to the accuracy of the factfinding process is far less direct and profound.

Well then it doesn’t even matter of the Crawford rule altered our understanding of the bedrock procedural elements essential to the fairness of a proceeding, does it? No, but Alito tells us that it fails to meet this factor as well. A new rule meets this requirement if the rule “itself constitute[s] a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.” Such a rule is exemplified, once again, by Gideon. But the Crawford rule, while important, just isn’t the same - it didn’t alter our understanding of any bedrock procedural element, and so it just doesn’t qualify as a watershed rule. End of story.

Well this is just silly

nfl.gifAs you probably know, the NFL has a trademark stranglehold on its “Super Bowl” mark. But as Deadspin notes, the NFL now wants to lock up “the big game” as well. It currently has a trademark application pending for “the big game” applied to a host of goods and services (including football magazines and newsletters, stickers and bumper stickers, posters and calendars, non-fiction books related to football, and toys and sporting goods).

Deadspin asks:

Do we have to call it “that game they play on Sunday’s that’s kinda’ like rugy, except they were pads and run plays and stuff”?

Rolls off the tongue, don’t it?

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Is there so little to do in Vermont that the cops have resorted to this?

vermont.jpgPolice in Vermont unsuccesfully tried to bust a local attorney in a bizarre sting. Eileen Hongisto is an area defense attorney, and she had a criminal case where she was defending someone against domestic violence charges.

A local police detective went to court and got a warrant to execute this sting. After getting the warrant, the detective called Hongisto, pretending to be a witness in the case:

Saying he wanted to help Hongisto’s client, he asked whether he should try to avoid police efforts to serve him a subpoena to come and testify in court or whether, if served with a subpoena, he should fail to show up in court.
Court papers say police thought Hongisto might commit the crime of obstruction of justice by advising the phony witness to take these steps. The sting failed when Hongisto told the caller she wasn’t his lawyer and that if he got a subpoena he would need to go to court.

This is pretty ridiculous, especially when you look more closely at why the cops tried to catch Hongisto. Apparently, they recorded phone calls between the defendant and both his mother and girlfriend. And during these calls, the defendant suggested that Hongisto said that the charges would be dropped if witnesses didn’t show up to court. As Hongisto’s lawyer says, however, that’s simply a factual statement explaining the process to her client. “If you can’t tell your client about the state’s burden of proof, your ability to do your job is not just chilled, it’s frozen.”

What really confuses me the most about this, however, is that a judge actually signed off on the warrant. Doesn’t make much sense to me.

(Hat tip to The Legal Reader)

A nifty new website for the political wonks out there

capital2.jpgOpenCongress is a pretty cool new site. Its goal is to bring “together official government data with news and blog coverage to give you the real story behind each bill.” In meeting this goal, the website gives you access to all types of Congressional information, including bills, votes and campaign contribution information. Where it can be especially useful is in tracking what your own Congressmen are up to:

I went to one of my Member of Congress’ site and viewed his votes, an analysis of his votes showed where the majority of his campaign contributions came from (real estate, insurance and finance) and the latest coverage on him from news and blogs. Best of all, there are live feeds to which you can subscribe and get yourself whenever your Member of Congress does anything new. There’s even a button to contact your representative so when they do something naughty or nice, you can always be sure to stay in touch.

The site itself doesn’t seem to be running so smoothly right now (and it does note in its banner that it’s still in the beta stage), but once they get the kinks worked out, this could be a real cool little tool. Unfortunately, I don’t think it’ll do anything to change the general political apathy of most folks.

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It’s Funny ‘til Someone Gets Hurt …

itshilarious.gifA 42-year-old San Francisco man, Herbert Watt, was driving his car last month without a license plate. He was pulled over and when the police performed their search, they found a baggie of crack cocaine in his pocket. Officers had placed the baggie of crack on the hood of the car, but before they could handcuff Watt, he grabbed the bag and swallowed it.

Now, that’s funny!

Until someone got hurt, in this case Watt — who went limp as he was taken to the hospital, where he died.

(It’s still a little funny.)

It is a Small World

clouds.jpgA crazy woman out in San Mateo, California is being threatened with fines or jail time, mostly because she’s crazy. She’s painted the roof of her home with slogans she claims are from God, which allege vast government conspiracies and, sadly, violate the city’s regulations on the size of signs (suggesting that if God delivered her smaller messages, maybe she wouldn’t be up shit creek).

The woman, Estrella Benavides, is asserting that the city is violating her freedom of speech rights (isn’t that what the crazies always allege), though the city hasn’t stopped her from broadcasting messages from God through a loudspeaker on her car.

Benavides further claims that the messages from God come to her through a statue at her church, which had me curious? I wonder if the geese that delivered the messages from God that told Carol Lynn Papas to stab her granddaughter to death flew over and unleashed their holy geese droppings on the very statue that speaks to Benavides. Then, it really would be a small world.


spank.jpgHere’s an indictment of a school system that’s a little too concerned for the well-being of its children. Two middle school kids out in Oregon are in juvey this week, facing sex abuse charges with a maximum sentence of 10 years in prison. The two boys, ages 12 and 13, were accused of inappropriately touching classmates and arrested for five counts of sexual abuse.

And what was so awful that these kids are facing an extended stay in juvenile hall and, possibly, 10 years in prison? The two students were a among a larger group of students who spank each others’ backsides as a part of their handshake.

“We have this handshake we do and some of the people at [the school] took it too seriously and they thought that it was meant in a sexual way. It’s not. We’re all friends,” said one student. The school saw it differently, deeming it “inappropriate dancing.”

Of course, the superintendent of schools suggests that there was more to it, though she has yet to specify what. I’m guessing, however, that there was some sort of slam dancing involved, which she school mistook for mid-air love making.

This isn’t the first such incident at Patton Middle School. Last year, a 9-year-old boy was brought up on 10 counts of sexual abuse after he spanked his best friend on his 10th birthday. Fortunately, the school decided not to prosecute for the “one to grow on.”

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The Daily Memo - 2/27/07

check.jpgA Blawg Review a day keeps the doctor away. (Health Care Law Blog)

check.jpgClifton, NJ’s city council plans to introduce a new ordinance to put the kibosh on dogs that bark for too long (more than 30 minutes for two days in a row). (WCBS)

check.jpgA Vermont mayor wants the state to legalize pot and impose the death penalty for crack and heroin dealers. (Rutland Herald)

check.jpgA deceased woman’s family is challenging the fact that she adopted her lesbian partner fifteen years ago. (LawInfo)

check.jpgA Florida judge has ruled that a sex offender accused of kidnapping, raping and killing a 9-year-old girl can continue to color his coloring books during the trial. (FindLaw)

check.jpgA man’s been sued by a local car dealership for putting a magnet on his truck advertising that the dealership sucks. (Philly.com)

check.jpgIn a flip-around of the usual sexual harassment case, a male former employee of a state agency is suing his female boss for calling him a “nice boy-toy” and trying to get him to do naughty things to her. (Chicago Sun-Time)

Well maybe if the damn lawyers would stop waving their shiny pens back and forth, back and forth, back and….

lion2.jpgThis month’s Utah Bar Journal published an anonymous letter which says that local judges are falling asleep, at the bench (!), during hearings:

“I’ve seen the problem in more than one county, but since my practice is pretty geographically limited, I’d rather not be identified,” stated the letter. “I would like suggestions on how to wake the snoozing judge. I’d like to think I’m not the only boring attorney in Utah.”

Utah’s Judicial Conduct Commission, meanwhile, says that it’s only received a single complaint about a sleeping judge over the last five years. The problem here is of course that:

Attorneys appearing in court may be hesitant to point out that a judge has drifted off, so the responsibility is on judges to stay alert.

It’s the old “who’s watching the watcher” problem.

Meanwhile, an appellate judge offers this plum wisdom to sleepy judges - get more sleep and drink more caffeine.

Wisdom like that - that’s why he’s a judge, and we’re just lowly blog-writers and blog-readers.


knock.gifDemocrats: Knock-knock.

Bush: Who’s there?

Democrats: Some type of legislation limiting the Iraq war. Maybe something like a revocation of the 2002 vote authorizing the use of force.

Bush: Dubya isn’t here.

Democrats: Sir, you’re speaking right now.

Bush: …I’m only a dolphin.

Democrats: Seriously sir, no surge.

Bush: Condi, it’s for you.

Condi: You don’t have the votes.

Democrats: Well, we could.

Condi and Bush: Well then, fuck off.

Drunk People are So Nice

dui.jpgOut in Florida (where else), a man pulled over for suspicion of drunken driving was a little more cooperative and forthcoming than most police officers might expect. In fact, Craig Shelton — who was pulled over early Saturday morning after he was seen driving erratically — agreed to perform field sobriety tests, but inexplicably gave up after the first test, saying “Just call it a DUI, man. You got me.”

I like a guy that makes it easy on a police officer. Of course, it only got easier after the officer checked Shelton’s trunk and found two beers, some Bacardi, and a green leafy substance. Shelton, then handcuffed and sitting in the back of the police cruiser, asked “Did you find my weed?”

It’s nice that Shelton didn’t bother wasting the officer’s time. I understand, also, that once he arrived at the station and underwent the requisite strip search, he said: “Man, that heroin in my ass is killing me – will somebody please pull it out,” before later offering: “When do you think they’ll let me out of the clink? I’ve got a hooker back at my apartment who is still on the clock. $100 an hour ain’t cheap, fellas.”

The Insanity Plea is Alive and Kicking

aflac.jpgOut on Colorado, a 53-year-old woman was found not guilty, by reason of insanity, for stabbing her 21-month-old granddaughter to death.

And why did she do it?

Because she received spiritual messages from geese, of course. Carol Lynn Papas and her son apparently received the summons to kill from geese flying over their house at the time. She had called 911 and stated, “I flipped … the baby was crying and I couldn’t handle it.” When police arrived, Pappas was still holding the phone, as well as an 8-inch knife.

Geese, huh? I’m not so sure about spiritual messages, but I could sort of see it if she had been watching hours and hours of AFLAC commercials, which of course is enough to drive anyone to murder.

She has been sentences to a mental facility, where she may just remain for the rest of her days.

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The Daily Memo - 2/26/07

check.jpgA former chapter president for the ACLU has been busted for (allegedly) subscribing to kiddie porn sites. (ABC News)

check.jpgA Philly food critic’s been sued for libel over a three-sentence review. (Philly.com)

check.jpgThe editor and vice-president of The Enquirer has offered a public apology for publishing the names of the twelve jurors who convicted a man of murdering his foster child, because “[i]t was a mistake that could cause harm to those citizens.” (The Enquirer)

check.jpgA Florida middle-school principal has been arrested and charged with buying crack from an undercover cop in the principal’s office. TBO.com)

check.jpgA judge has ruled that former baller Latrell Sprewell can’t see his kids in person because of allegations that he beat on his girlfriend in front of the kids. (SI)

check.jpgA New York state appellate court ruled that NYC’s old prohibition-era law banning “social dancing” everywhere but in specially zoned venues is legal because “[r]ecriational dancing is not a form of expression protected by the federal or state constitution.” (FindLaw)

“Have I got a deal for you!”

compScreen.jpgLarry Manzanares is a city attorney in Denver, Colorado. At the moment, however, he’s on paid leave while a little debacle is investigated. You see, last Friday, a stolen computer was found in his home. And to make matters worse, the computer happens to have been stolen from a Denver court (cops tracked it down to his house via internet traffic).

Manzanares says that he purchased the computer last month - get this - from a dude in a parking lot, a block away from the courthouse.

“It was rather foolish of me to even think about buying a computer from a fellow in a parking lot,” Manzanares said. “But being kind of naive, I bought it. I didn’t have any idea that it was stolen.”

Even if he didn’t know it was stolen, he should be fired and disbarred just for buying a computer from a dude on the street in the first place. I mean, come on!

If it’s anything like my experience, it’ll be a wildly entertaining flick

barstats.jpgThe WSJ Law Blog reports that a documentary entitled A Lawyer Walks Into a Bar will be debuting at the South by Southwest Festival next month in Austin. The documentary follows six lawyer-hopefuls as they study for last July’s California bar exam (California has the distinction of being the only consecutive three-day bar exam in the U.S., and is considered one of the toughest, along with New York, Texas and Virginia).

One of the test takers in the documentary is Donal Baumeister, an ex-Marine, who had failed the California bar 41 times and is shown in the movie gearing up for attempt #42. Semper Fi, indeed.

I’m not exactly sure how interesting a documentary about six people studying will be, particularly if these folks are actually doing the study and preparation they should be doing. However, if they’re preparing for the California bar exam the way I did many a summer ago, the film could awesome. That movie would include a house full of recent law school grads all studying for different bar exams with varying degrees of seriousness, a lot of drinking, naked Texas co-eds, a lot of drinking, drunken bicycle lessons at 3 a.m., a lot of drinking, a rapidly gorwing ledge full of empty cigarette packs smoked by the housemates in just the two months of study time, a lot of drinking, the appearance of several holes in the walls, a lot of drinking, some of the angriest intra-relationship fighting you’ll ever see (which may or may not have something to do with some of the wall-holes), a lot of drinking, and last but certainly not least, a lot of drinking.

Oh, and teriyaki.

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aliG.jpgSacha Baron Cohen has become quite familiar with the whole legal process lately, thanks to the onslaught of Borat lawsuits. Well, now he’s got another one to add to the “pending litigation” file. Only this time he’s being sued over his Ali G character, and the details of this are rather odd for several reasons.

Ali G is, like Borat, one of the fictional characters Cohen uses to have some fun at others’ expense. Ali G purports to be a British gangster who happens to conduct interviews and has some of the worst grammar you’ve ever heard. Anyway, in August 2004, HBO aired an episode of “Da Ali G Show” where Ali G was interviewing Gore Vidal. In talking about the Constitution, Ali G said the following:

Aint it better sometimes, to get rid of the whole thing rather than amend it (the constitution) cos like me used to go out with this bitch called Heddi Cundle and she used to always trying amend herself. Y’know, ger her hair done in highlights, get like tattoo done on her batty crease, y’know have the whole thing shaved - very nice but it didn’t make any more difference. She was still a minger and so, y’know me had enough and once me got her pregnant me said alright, laters, that is it. Ain’t it the same with the constitution?

Wanna’ guess who’s suing Cohen? Yup, Heddi Cundle. While she lives out in Cali now, she grew up in the UK. And in the summer of 1987 she took a youth group to Israel, and she claims that Cohen was also on the trip. While they spoke, she says “Plaintiff and Baron Cohen never engaged in any sexual activity.” After the trip, Cundle claims that their friendship went their separate ways, and while she watched him becoming increasingly popular on TV, there was never any further contact between them.

Then, after the August ‘04 episode aired, Cundle claims to have received calls from friends, telling her that she was name-checked on the show. She became upset because she says none of these statements are true, particularly the whole getting-knocked-up part. She had her lawyers contact HBO to pull the show, but they did not. So now she’s suing Cohen, HBO and Da Ali G Show productions for a whole gaggle of causes of action: libel, slander, invasion of privacy, fraud, negligent misrepresentation and negligent infliction of emotional distress.

As I mentioned at the top, there are a couple of really bizarre elements to this.

First, she filed the lawsuit as a “Jane Doe.” You’ll recall last week I mentioned Fuzzy Zoeller having filed a lawsuit as “John Doe” to protect his identity, which was then quickly figured out anyway. Well this is even more ridiculous because at least he keep his name out of the complaint. But here, “Jane Doe” included the alleged libelous statement in her complaint, and that statement includes her name! So we know that “Jane Doe” i Heddi Cundle, so what could possibly be the point of filing as a “Jane Doe?”

Another bizarre thing here is her allegations against HBO. So in November of 2004, she and HBO actually entered into a settlement agreement, and HBO agreed to make her name inaudible. However, she claims that the show aired unedited in December 2005. So she and HBO entered into a second settlement agreement last November, where HBO again agreed to make sure the name was made inaudible on a global scale. But she claims that last month she discovered an audible copy on YouTube and alleges that HBO must have made it available to someone since signing the November ‘06 agreement. Which is just plain weird, especially considering that the show has been on DVD for a while now, so, you know, there are presumably a ton of folks who have a “clear” copy of the show, any one of whom could’ve posted it on YouTube.

But the most bizarre part of this case (to me, at least) is that she’s particularly upset by the statement that she was knocked up because it allegedly exposed her “to hatred, contempt, ridicule and obloquy because it outright imputes unchastity to her, and it describes a sexual relationship with Plaintiff and an assertion of Plaintiff’s pregnancy by Baron Cohen as a result of that sexual relationship.” But she ignores the fact that Cohen didn’t say that he slept with her. Rather, the fictional character Ali G said he went with a person named Heddi Cundle. It was a fictional character speaking. Plus, no other identifying details were given which could connect the named female, Heddi Cundle, with the actual Heddi Cundle (unless she actually does have “her batty crease” shaved). So this whole thing just seems kind of ludicrous, and another attempt at a money-grab.


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What a douche

watches.jpgMichael Melnitzky is a 69-year-old who has “become something of a fixture” in the Lower Manhattan federal courthouse. Back in 1994, the former art expert become involved in a fun little suit when his wife filed for divorce. And now, 13 years later, he’s been involved as a pro se litigant in a whole rash of cases, both related and unrelated to the divorce (although most were related to the divorce and are tied to a collection of 750 watches, valued at $500,000, which his wife went after in the divorce).

He has sued virtually everyone involved [in the divorce]: one of his former lawyers, his wife’s lawyer, three banks, five judges and a psychiatrist appointed by the court to evaluate his mental health. In unrelated cases, he has sued a neighbor, a thrift shop, the city and his former employer. And he has almost always lost.

Five judges? What the Christ?

Melnitzy is basically like a warped version of Dr. Sam Beckett from “Quantum Leap,” saying that he’s simply trying to right the wrongs that these folks have done to him.

The question is: Is Mr. Melnitzky’s record of litigation a test of a flawed system [he claims that the system is “intolerant of pro se litigants”], or obsessive abuse of the courts. “I used to be an art restorer,” he says. “Now I’m a litigator. If you’re going to attack me or assault me on a legal front, and I don’t hit back, I would feel dishonerable with myself.”

I don’t doubt that the system is harder for pro se litigants (the one time I was involved in a case against a pro se litigant, the poor bastard hit hurdles and screwed things up every step of the way), but in this instance, I’m going to say it’s obsessive abuse. I mean, he sued five judges!

(Hat tip to Overlawyered)

The Daily Memo - 2/23/07

check.jpgCisco and Apple have settled their little trademark dispute over the “iPhone” mark, agreeing to share the name. (FindLaw)

check.jpgAn attorney arguing before the Supremes probably doesn’t want to hear a justice tell him “I don’t see how to decide for you.” (WSJ Law Blog)

check.jpgAn Arizona man has been arrested for getting some of the road-rage and ramming a pickup truck across the road all because the truck’s driver was on a cell phone. (AZ Central)

check.jpgTerrence McGee, a cornerback for the Buffalo Bills, is suing an ex-financial advisor who allegedly stole $1 million from him. (SI

check.jpgOoofta - Microfot has been hit with a fine of $1.5 billion in a patent lawsuit. (Download Squad)

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The doughboy must be rolling in his grave

doughboy.jpgPillsbury Winthrop Shaw Pitman is going after some former partners, having asked at least 8 partners who left the firm last year to pay some money back to the firm in the next 30 days. The partners were sent demand letters saying they’d received overpayments between $30,000 and $100,000 due to their profit distributions being allegedly larger than their actual profit share.

Reactions from ex-partners who received the letters ranged from “insulted” to “furious.” Many questioned the firm’s accounting, the fairness and enforceability of the demands, and why they are being singled out, since not all partners who left last year got a letter.

Pillsbury’s general counsel claims this situation is quite common. But “[i]ndustry insiders and law firm leaders” say that this actually is rather unusual and at least some of the partners say they’ll take the matter to court if they have to:

“It’s something that we’re going to fight and not take lying down,” said one former Pillsbury partner who spoke on the condition of anonymity.
Former partners said that if the firm sues, they’ll band together in court. Some said they are looking to hire lawyers in the matter.

When lawyers fight among themselves, the only ones who win are their lawyers. …or something like that.

At least the news is talking about him

fozzy.jpgI had no idea who the hell Fuzzy Zoeller was until today. Apparently, he’s a professional golfer who won the Master’s back in 1979. But apparenently someone knew who Zoeller was before today, because last year it seems that there were some defamatory statements posted about him on Wikipedia. Originally put up in August, they were removed and then repeatedly added back, with the most recent addition coming last December. Zoeller claims that these defamatory statements could hurt his endorsements, so he’s suing.

Now his attorney rightly counseled that he shouldn’t bother suing Wikipedia, because federal law is pretty clear that websites are protected from lawsuits based on the content of user comments. But, bizarrely, his lawyer didn’t have Zoeller sue the person who posted the comments. Instead, the lawsuit has been filed against Josef Silny & Associates, a Miami education consulting firm. The December reposting has been tracked to a computer at Silny’s office, so the lawyers decided to sue the firm. However, Josef Silny is flabbergasted by the suit, saying “I think it’s the most bizarre thing that’s ever happened in my life” (he’s led a pretty uneventful life, no?). In any event, I’m not exactly sure why he’s suing the company itself - even if he doesn’t know the identity of the commenter, Zoeller could sue them as a John Doe.

And Zoeller’s attorney clearly understands the idea of using a John Doe because, get this - the lawsuit was originally filed anonymously, listing the plaintiff as a John Doe, instead of under Zoeller’s name. Why? Because they were worried that the lawsuit could impact Zoeller’s privacy and lead to further insult. But the Maimi Herald figured things out pretty quickly, so that idea kind of went out the window. This attorney’s doing a bang-up job.

And in case you were curious (and it’s ok to admit you were), the alleged defamatory statements went thusly:

Later Zoeller went public with his alcoholism and prescription drug addiction, explaining that at the time he made those statements, he was “in the process of polishing off a fifth of Jack (Daniels) after popping a handful of vicodin pills”. He further detailed the violent nature of his disease, recalling how he’d viciously beat his wife Dianne and their four children while under the influence of drugs and/or alcohol. He also admitted feigning a ruptured spinal disc in 1985 so as to be prescribed a multitude of prescription medication.

(Oh, and the Fozzy picture has nothing to do with Zoeller, but I figured a picture of Fozzy was much more entertaining than a picture of Fuzzy.)

Oh, whatever …

britbald.jpgWell, now that Britney’s most recent shenanigans have reached family court, I suppose she’s fair game for us, even if the whole debacle makes me a little ill. I’m of two minds on the girl: 1) Get some help, sweetheart, before you find yourself and your bald head face down in a puddle of your own stubble-flecked vomit; or 2) keep this bullshit up long enough and maybe the mainstream and tabloid medias will just get tired of you and move on to something more newsworthy, like the public meltdown and self-ulgification of John “Walnuts” McCain. I’m not optimistic.

Either way, the events of the last two weeks have miraculously created a sympathetic character in Britney’s soon-to-be-ex, Kevin Federline, who is scheduled to appear in an L.A. family court today for an emergency hearing deciding the custody of the couple’s two children. Currently, the two have joint custody, but it is expected that Federline will seek sole custody, at least until Britney cleans up her shit — and given the fact that she enters rehab with her car running and the keys still in the ignition, I can’t imagine that’s going to come anytime soon.

But doesn’t it just make you want to shave your own goddamn head to see that the freakin’ Washington Post finds this newsworthy enough to run a story that quotes the motherfucking “Insider,” which is euphemistically referred to as a “TV news magazine.” Don’t kid yourself — the AP story is quoting trashy, tabloid television detritus. And suddenly, it’s the level to which we’ve all stooped.

Updated: Britney is now back in rehab, and K-Fed has called off the custody hearing for the time being, or so says the Associated Press, which sources those respectable bastions of intelligence: TMZ.com, “The Insider,” and “Extra.”

The Church/State Dilemma Gets Ridiculous

BUDDYJESUS.jpgHere’s an interesting legal story about an issue that seems all too pervasive in our school systems today: The church/state quandary. The parents of a 10-year year old kid out in Philly are suing their school district because he wasn’t allowed to wear a Jesus costume on Halloween. The suit was filed by a Christian legal group, the Alliance Defense Fund, alleging the boy’s free speech and religious rights were violated.

Personally, I think it’s a bit presumptuous for a 10-year-old to dress as the Son of God in order to collect candy (isn’t that, itself, blasphemous?), but I’m not so sure the school has a clear understanding of the establishment clause here. What about the numbers of children who dress as a little Devil, a nun, or a priest? How different is that situation? If a kid wants to dress as Jesus — unless he’s handing out Gideon Bibles — he’s not really promoting religion any more than the child dressing as King Burger is promoting the idea that Burger King’s Whoppers are delicious. We allow “In God We Trust,” to exist on our currency and we force our children to Pledge Allegiance to a nation under God, so I’m not sure how much more offensive this is. What’s more, by forcing a lawsuit here, the school is basically giving Christians a platform upon which to publicize their cause.

How bad would it have been, really, to allow the little guy to adorn a crown of thorns and traipse around the school’s hallways for a day, begging for Snickers? At most, he’s an embarrassment to himself and, perhaps, his own religion; but unless the Jewish kid in class is suddenly inspired by Mel Gibon’s The Passion of Christ and attempts to crucify him, it seems otherwise harmless, which is more than I can say for the school’s actions.

The Daily Memo - 2/22/07

check.jpgWe’re a bit late in pointing it out, but Blawg Review #96 is out and about. (South Carolina Appellate Law Blog)

check.jpgI could’ve told you this - “US copyright lobby out-of-touch.” (BBC News)

check.jpgOne of my Philly Eagles, Correll Buckhalter, is going to the Nebraska Supreme Court to fight his alleged paternity of a 7-year-old autistic boy. (SI)

check.jpgWelcome to the OC bitch - a former Orange County judge keeled over in court on Tueday when he found out he was getting 27 months in the clink because he had kiddie porn on his home computer. (The Legal Reader)

check.jpgThe feds are being sued by some California medical-marijuana fans who claim the FDA’s position on medical pot is wrong. (Yahoo! News)

check.jpgXM and Sirius may have some FCC hoops to jump through in order to pull off their planned merger. (FindLaw)

check.jpgA fourth-year associate at Orrick made a little boo-boo by accidentally disclosing a sensitive document that the firm spent five months trying to keep under wraps. (Law.com)

check.jpgThe temporary restraining order against the world of crap that is Paris Hilton Exposed has been extended by a federal judge in LA who suggests that he’s leaning towards issuing a full-blown preliminary injunction. (Hollywood Reporter, Esq.)

Well now this is going too far

bull.jpgEarlier this week, we told you about a failed attempt in Arizona to ban certain mudflaps. Seemed like a good idea to us. But you’ve got to draw the line somewhere, and a Maryland state legislator has now stepped right over the line.

Delegate LeReoy E. Myers, Jr. has filed a bill to ban folks from hanging fake bull genitals off of their pickup truck hitches. In fact, he wants to ban any “model, sign, sticker or other item” showing naked human or animal genitals from all vehicle. Oh, and no human ass or boobs either.

“We’re there to clean up the air…,” he said, referring to major bills proposed this season. “What about our minds and eyes of our young people?”

Hey man, they gotta’ learn about bull testicles somewhere. That’s what I say.

Hahahahaha….Perez Hilton sucks!

aniston.jpgDouchebag blogger Perez Hilton is in legal hot water again. There’s been a photo floating around the internets lately that was allegedly an unaired screen capture from The Break-Up showing Jennifer Aniston’s ta-ta’s. Well it’s not alleged anymore, as there’s a lawsuit over the image.

Universal City Studios Productions claims that the photo was stolen while the film was being made, and that it was then illegally reproduced. They’re now suing Perez (real name: Mario Lavandeira) and his piece of shit website for copyright infringement because he posted the stolen image on his piece of shit website. Universal is seeking an injunction to prevent Hilton from doing anything else with the image, and they’re also requesting that a U.S. Marshal seize the copyrighted image.

While they’re at it, can the marshal seize everything from Perez, and just shut his piece of shit site down? Is that too much to ask?

The AP story on FindLaw says that there “was no response to an e-mail message to Lavandeira seeking comment on the suit.” However, the Smoking got a response:

In an e-mail, Lavandeira wrote that he had not yet seen the Aniston complaint, and would “be in a better position to comment” once his lawyers reviewed the lawsuit.”

Which is obviously a lawyer’s response, spoon-fed to Perez by his attorneys. A response actually coming from Perez would read something like: “I’m so great and Universal can go SCREW itself and I’ll post pictures of Maniston if I want and there’s nothing those fags at Universal can do about because I’m so great!!! Tweee….”

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Where’s Jack Bauer When We Need Him?

bauer.jpgThanks to Fox News’ “Hannity and Colmes,” we now know the real danger to American society. And, it’s not Al Qaeda. It’s something much, much more dangerous, capable of “destroying an entire generation in America.” Al Qaeda could bring in a nuke and “kill 100,000 people,” but the teachers are capable of much, much more. Like, inflicting the word “scrotum” on our children. Or worse, foisting that pinko Judy Blume onto all of our fourth graders.

Check this transcript from a recent episode:

SEAN HANNITY: Alright, let me ask you. Because, you — when you said about the Department of Education — you want to abolish it — when you said that the teachers unions is more dangerous to this country in the long term –

NEAL BOORTZ: In the long term, yeah.

HANNITY: Than al Qaeda.

BOORTZ: Right. Look, Al Qaeda, they could bring in a nuke into this country and kill 100,000 people with a well-placed nuke somewhere. Ok. We would recover from that. It would be a terrible tragedy, but the teachers unions in this country can destroy a generation.

HANNITY: They are.

BOORTZ: Well, they are destroying a generation.

HANNITY: They are ruining our school system.

BOORTZ: They’re much more dangerous. We worry about al Qaeda and we should. But at the same time let’s not let the teachers union skate.

HANNITY: They destroyed our school system, and we don’t do anything. The parents — why there aren’t people rising up against it is unbelievable.

As a soon-to-be parent myself, I couldn’t agree more. In fact, my wife and I have already started stockpiling the munitions. We’ve got a few missile launchers in our basement. And the day that the fucking government forces our child to attend kindergarten is the day we throw caution to the wind, put on our camouflage, smear some black anti-glare makeup below our eyes, and destroy the elementary school down the street. Blow that son of a bitch sky high. Ain’t no goddamn terrorist gonna’ teach reading, writing and arithmetic to my little ones. Fucking teachers.

(Hat Tip to Think Progress, who has the video)

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The Misguided Efforts of Vigilante Justice

pornfiction.jpgOh, man: Folks really need to check the volume on their televisions before they pop in their DVD copies of Oklohomo or Pump Friction, especially if neighbors are close by.

So, get this: A dude out in Wisconsin was in his own home, watching porn, and taking care of his business. Suddenly, his door busts open and a man comes in with a three-foot long sword. That’s gotta do wonders for a guy’s erection, eh?

As it turned out, Bret Stieghorst’s neighbor, James Van Iveren, mistook that porn for a woman being raped. And being the good neighbor he is, instead of calling the cops, he decided he’d take care of the situation himself. You know, ninja style.

He’s been charged with criminal damage to property and trespassing. Stieghorst, meanwhile, has been charged with failing to discharge a loaded weapon.

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The Daily Memo - 2/21/07

check.jpgIs The Scalia set to take charge of the Supreme Court “as a leader of a new conservative majority?” (LA Times)

check.jpgAnna Nicole Smith’s will actually raises some interesting T&E issues. Well, as interesting as trusts and estates can get. (Concurring Opinions)

check.jpgDo juries like attorneys with facial hair? (WSJ Law Blog)

check.jpgA federal appellate court has ruled that Gitmo prisoners can’t challenge their imprisonment in US courts. (Salon War Room)

check.jpgA Cali judge ruled that the Goldman family must be given any O.J. Simpson royalties, not just from his piece-of-shit cancelled book, but from any prior TV, movie and commercial work. (CNN)

check.jpgThe San Diego Diocese may soon be bankrupt because of over 140+ pending sex abuse lawsuits. (Time)

Supreme Court Decision Update - Wallace v. Kato

arrest.jpgToday’s second Supreme decision is Wallace v. Kato (PDF of the opinion). It’s about when you have to file a lawsuit claiming your civil rights were violated by being falsely arrested.

QuizLaw Analysis: The conservative side of the Court today rules that the clock for when you must file such a lawsuit starts ticking at the time of your arrest, not at the time you’re proven innocent, or your conviction is overturned, or any such situation. So you can’t wait until your innocence is proven or established as it may be too late. And, of course, if your innocence hasn’t been proven or established, good luck with your claim of false arrest (although, to be fair, everyone recognizes that once filed, your case should maybe be put on hold until the criminal side of things is taken care of).

So who got arrested? Back in 1994, Andrew Wallace (who was 15 at the time) was brought in for questioning by Chicago police in connection with a shooting murder. After long interrogations, Wallace agreed to confess to the murder, and signed a prepared statement. During his trial, Wallace tried to have the confession suppressed, arguing that it was the product of an unlawful arrest. That argument failed, and Wallace was ultimately convicted of first-degree murder and given 26 years in the clink.

Wallace appealed his case and the Appellate Court of Illinois ruled that Wallace was arrested without probable cause. While he may have gone voluntarily to the police station, “his presence there ‘escalated to an involuntary seizure prior to his formal arrest.’” More appeals followed, and in August 2001, a new trial was ordered. On April 10, 2002, the prosecutors ended up dropping their charges against Wallace.

A little less than one year later, on April 2, 2003, Wallace filed a lawsuit against Chicago and several Chicago cops. His lawsuit was under section 1983, a federal law which gives folks the right to seek redress for civil rights violations. Wallace claimed that the false arrest violated his Fourth Amendment rights, and he wanted some money damages.

So how did we get before the Supremes? Rather easily. The District Court dismissed the case by granting summary judgment, and the Seventh Circuit affirmed the dismissal. The basis for this was that both courts agreed that Wallace had filed his case too late. The statute of limitations (that is, when the clock started ticking for his claim) began to run at the time of his arrest, they said, not when his conviction was eventually set aside.

And what do the Supremes have to say about this? They basically agree with the lower courts (they agree that the lawsuit was filed too late, but they seem to say that the clock started a little later than when the actual arrest took place). The Scalia wrote the majority opinion, joined by Chief Justice Johnny and Justices Kennedy, Thomas and Alito (and Justices Stevens and Souter concurred in the judgment). Wallace brought his claim under § 1983, which is federal law. However, you have to look at state law to figure out what the statute of limitations is.

So here, we look to Illinois law. And Illinois law says you have two years to file a a personal-injury tort claim. Everyone agrees on that point. The issue is when that two year clock started to tick for Wallace.

The Scalia begins by making it clear that, while he’s looking to state law to figure out what the statute of limitations is, this is still a question of federal law that’s resolved without referring to state law, because we’re talking about a federal cause of action. And federal law is pretty clear that the clock starts ticking “when the plaintiff has ‘a complete and present cause of action.’”

So when did Wallace have a complete and present cause of action? Well the Scalia notes that Wallace could’ve brought a lawsuit right after the arrest occurred, so “the statute of limitations would normally commence to run from that date.” But, the Scalia says, this needs to be refined a little because the common law treats false arrest and false imprisonment a little differently, and these are the closest causes of action to this case’s claim - in fact, the Scalia is going to refer to this case’s claim as false imprisonment because that refers to “detention without legal process” and that’s really what Wallace’s claim is about, because they detained him without legal process (because they didn’t have an arrest warrant).

Now, the statute of limitations for false imprisonment runs a little differently than for other torts, “dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned.” So the statute of limitations for false imprisonment begins to run whenever the alleged false imprisonment ended. So the question here is…

When did Wallace’s false imprisonment end? Well generally, says the Scalia, false imprisonment ends when the person is being held pursuant to a legal process - “when, for example, he is bound over by a magistrate or arraigned on charges.” Because at that point, any continued unlawful detention is part of a claim of malicious prosecution, distinct from a claim of false imprisonment or false arrest. So the Scalia says that Wallace’s false imprisonment did not end when he was released from the state’s custody after the charges were dropped in 2002. Instead, it ended way back “when legal process was initiated against him, and the statute would have begun to run from that date, but for its tolling by reason of petitioner’s minority.”

So his statute of limitations began “to run when he appeared before the examining magistrate and was bound over for trial.” And that was back in the ’90s, well more than two years before he field his lawsuit. So Wallace’s claim was time barred, and this is true even if you don’t count the years he was still a minor (since he turned 18 around 1997, six years before filing this lawsuit).

So is that it? Not yet. Wallace tried to rely on a 1994 case, Heck v. Humphrey, to support his position, and the Scalia needs to deal with that.

And what was Heck v. Humphrey about? That was also a lawsuit under § 1983. Specifically, a state prisoner had raised claims which, if true, would’ve proven that his outstanding conviction was invalid. The Court said his case was similar to one of malicious prosecution. And an element of a claim of malicious prosecution is that there was a “favorable termination of criminal proceedings.” That is, a plaintiff won’t win on a claim of malicious prosecution if they did not manage to have their conviction or sentence overturned, expunged or invalidated. As such, the cause of action for malicious prosecution doesn’t accrue until that overturning, expunging of invalidating takes place.

But false imprisonment is different, because there is not necessarily an initial conviction (i.e., you can be falsely imprisoned yet never be charged or convicted of anything). So the Scalia says that Wallace is basically asking the Court to adopt a much wider principle than what Heck was about - Wallace would have the Court rule that any lawsuit “which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside” (Scalia’s emphasis, not mine). And that’s obviously impractical - in a false arrest situation, the plaintiff would have “to speculate about whether a prosecution will be brought, whether it will result in conviction, and whether the pending civil action will impugn that verdict” without even knowing what evidence the prosecution has. And what happens if they guess wrong and there is no prosecution - how would we know when to start the clock?

So Scalia says balls to all that. Besides, if Wallace had filed his lawsuit when he should have, he might have been able to then have the civil case stayed until all the state criminal proceedings were done.

But, there’s one more complication. Actions under § 1983, “unlike the tort of malicious prosecution which Heck took as its model, [citation], sometimes accrue before the setting aside of - indeed, even before the existence of - the related criminal conviction.” That is, a malicious prosecution claim can never accrue before a conviction and subsequent setting aside of the conviction, but a § 1983 claim can. So the question becomes, when there is a conviction in a § 1983, does this toll the statute of limitations (i.e., put the clock on hold), only letting it run again when the conviction is overturned (as in Heck)?

Why is that important here? Because if you stop the clock when Wallace was convicted, in 1996, and then start it again when his conviction was overturned and the charges were finally dropped, his case would fall within the statute of limitations.

And is that the case? Of course not. The Scalia says that we should look to state law to figure out when and if the statute of limitations is tolled. And Wallace hasn’t shown any Illinois law “in even remotely comparable circumstances.” And the Scalia is not “inclined to adopt a federal tolling rule to this effect.”

Ok, and what about the concurrence? Well Justice Stevens wrote a concurring opinion, joined by Justice Souter, because he agrees with Scalia’s conclusion, but he would get there “by a more direct route.” He doesn’t think you need to make analogies to common-law torts, like the Scalia did:

Instead, I would begin where all nine Justices began in Heck. That case, we unanimously agreed, required the Court to reconcile § 1983 with the federal habeas corpus statute…[and] we found that the writ of habeas corpus, and not § 1983, affords the “‘appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement.’”

But Wallace wouldn’t be able to seek a writ of habeas corpus here, which means that Heck just doesn’t apply and can’t act to postpone the accrual of his claims. Maybe, says Stevens (agreeing with Scalia), a civil trial brought at the proper time could have been stayed until the state criminal proceedings were over, but that doesn’t support a decision that the claims hadn’t accrued.

So that’s why he agrees with the judgment. He then goes on to slap the Scalia around a little, saying: “The Court regrettably lets the perfect become the enemy of the good,” because the Scalia says there may sometimes be cases where someone in Wallace’s shoes could actually bring a habeas petition. But Stevens says: “It is always possible to find aberrant examples in the law, but we should not craft rules for the needled rather than the haystack in an area like this.”

Uhm, ok. And the dissent? Well that would be Justice Breyer, joined by Justice Ginsburg. Breyer agrees that Heck wouldn’t bar the accrual of the § 1983 claim here, and he also agrees with everyone that, had Wallace filed his lawsuit in time, “the Federal District Court might have found it appropriate to stay the trial of his claims until the completion of state proceedings.” But he doesn’t like the notion of always requiring the early filing of a § 1983 lawsuit, “followed by an uncertain system of stays, dismissals, and possible refiling.” Breyer feels that you can instead say that the claim has been “equitably” tolled because of “disabling circumstances.”

In particular, equitable tolling could apply where a § 1983 plaintiff reasonably claims that the unlawful behavior of which he complains was, or will be, necessary to a criminal conviction.

This approach, says Breyer, is just much more practical than the majority’s approach of always requiring early filing. But the Scalia says this whole equitable tolling business is nonsense.

Supreme Court Decision Update - Marrama v. Citizens Bank of Massachusetts

pockets.jpgMarrama v. Citizens Bank of Massachusetts (PDF of the opinion) is the first of today’s new Supreme decisions, and it’s about the wonderful world of bankruptcy.

QuizLaw Analysis: More specifically, this case is about abuse of the bankruptcy system by scum-bum no moneys trying to skirt their debts. The Supremes rule here that you forfeit what is generally an absolute right to convert a Chapter 7 bankruptcy into a Chapter 13 bankruptcy where you act in bad faith, and the bankruptcy courts have the right to call you out on your bad faith shenanigans (as they can also dismiss an original Chapter 13 bankruptcy for bad faith shenanigans).

So who got themselves in some debt trouble? That would be Robert Marrama who, in 2003, filed for Chapter 7 bankruptcy. His biggest debtor was Citizens Bank of Massachusetts (let’s just call them the Bank). Marrama’s biggest asset was some land up in Maine and, early during the bankruptcy process, he made some misleading and inaccurate statements about the land. For example, he claimed it had zero value, and he also denied that he had transferred any property in the year before he filed for bankruptcy, except in the ordinary course of business. These were both lies: “the Maine property had substantial value, and Marrama had transferred it into [a] newly created trust for no consideration seven months prior to filing his Chapter 13 petition.”

Wait - what’s with the Chapter 13 petition? I thought he filed for Chapter 7? Well he did, originally. However, during the Chapter 7 process, the bankruptcy trustee said he was planning to go after the Maine property to make in an asset of the bankruptcy estate. Marrama then filed to have his bankruptcy converted to Chapter 13. The bankruptcy trustee and the Bank both objected, relying largely on the attempt to hide the Maine property and arguing that this conversion request was being made in bad faith and was an attempt to abuse the bankruptcy process.

Why did he want to convert the bankruptcy? He wanted to convert it because under Chapter 7 bankruptcy the trustee control all the assets. But under Chapter 13 bankruptcy, the debtor (e.g., Marrama) keep control of the assets. So he would keep control of the Maine land under Chapter 13 and could, presumably, work to keep it out of the bankruptcy estate, and out of the grubby hands of the Bank.

So was the bankruptcy converted? No. Marrama tried to claim that he meant to file for Chapter 13 but filed for Chapter 7 because of a “scrivener’s error.” But the Bankruptcy Judge said “that there is no ‘Oops’ defense to the concealment of assets and that the facts established a ‘bad faith’ case.” So Marrama appealed to the First Circuit’s Bankruptcy Appellate Panel, which also rejected his attempt to convert.

On appeal, Marrama’s main argument was to rely on some language in the Bankruptcy Code. In section 706(a), the Code says that a debtor “may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time [and]…[a]ny waiver of the right to convert a case under this subsection is unenforceable.” Marrama said this gave him an absolute right to convert his case. The panel said “nuh-uh.” Their take was that, when you read this with other Bankruptcy Code provisions and rules, there is a right to convert which “is absolute only in the absence of extreme circumstances.” And here, the panel felt that the Maine shenanigans were such extreme shenanigans.

Marrama appealed to the First Circuit which also told him to shove off. First, section 706(a) says “may,” not “shall,” so it’s not really absolute. Second, the First Circuit reminded everyone that bankruptcy courts have total authority to throw out a chapter 13 case (that is, a bankruptcy initially filed as chapter 13) when there’s bad faith. And there’s no reason that rule should be different for an initial chapter 13 petition and a motion to convert a chapter 7 to a chapter 13.

And now we’re at the Supremes? We sure are. This was a 5-4 decision, with the majority opinion penned by Justice Stevens and joined by Justices Kennedy, Souter, Ginsburg and Breyer. Stevens beings by reminding us what section 706(a) says, and also points out the language of 706(d) which says: “Notwithstanding any other provision in this section, a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter.”

This 706(d) is the key here. It’s an express limitation to the otherwise “absolute” right to convert a bankruptcy. In other words, Marrama isn’t allowed to convert his bankruptcy if he wouldn’t be allowed to be a Chapter 13 debtor. And Stevens says Marrama wouldn’t be allowed to be a Chapter 13 debtor. If he had initially filed for Chapter 13, his case would’ve been dismissed “for cause,” because of the bad-faith conduct (as bankruptcy courts “routinely treat dismissal for prepetition bad-faith conduct as implicitly authorized by the words ‘for cause’”).

So here’s the key:

In practical effect, a ruling that an individual’s Chapter 13 case should be dismissed or converted to Chapter 7 because of prepetition bad-faith conduct, including fraudulent acts committed in an earlier Chapter 7 proceeding, is tantamount to a ruling that the individual does not qualify as a debtor under Chapter 13. That individual, in other words, is not a member of the class of “‘honest but unfortunate debtor[s]’” that the bankruptcy laws were enacted to protect.

So the court retains the authority to protect creditors from “the atypical litigant who has demonstrated that he is not entitled to the relief available to the typical debtor” because he acted fraudulently. In other words, the bankruptcy court needs to ensure that there’s no “abuse of process,” which, according to Stevens is ample reason for the “immediate denial of a motion to convert filed under § 706.”

And what doesn’t the dissent like about this? Well Justice Alito filed the dissent, joined by Chief Justice Johnny, the Scalia and Justice Thomas. Alito and company agree with Marrama that the right to convert is absolute:

The Court, however, holds that a debtor’s conversion right is conditioned upon a bankruptcy judge’s finding of “good faith.” Because the imposition of this condition is inconsistent with the Bankruptcy Code, I respectfully dissent.

Alito thinks the Bankruptcy Code is unambiguous in allowing absolute conversion, with “two - and only two” restrictions. Those restrictions are that you can only convert once, and that you must meet the conditions of a debtor in the chapter you’re trying to convert to. And nothing says the court has the right to deny a conversion request when there’s “bad faith.” So the majority is simply disregarding what Congress wanted.

My that’s a mighty gavel you have there

Today’s Non Sequitur, from GoComics:


What’s fat and forced to start over?

weiss.jpgIf you said “Charlie Weis,” you’d be correct. Notre Dame’s football coach has been involved in a trial over his allegedly botched gastric bypass surgery. He had the surgery back in 2002, and as you can see, it didn’t exactly work. So he filed a medical malpractice action against two of his doctors, claiming they screwed the pooch by failing to deal with internal bleeding and infection that took place after the surgery.

Well yesterday, on the eve of the case being handed over to the jury, the judge declared a mistrial in his lawsuit. An expert was giving testimony when a juror began moaning and then collapsed. Several doctors in the courtroom came to his aid, including both of the doctors being sued. The other jurors were quickly kicked out of the courtroom, but some still saw the defendant doctors rush over to help the collapsed juror.

Weis’ attorney then asked for a mistrial because the jury might see the doctors as, I dunno, doing what doctors are supposed to do! As their attorney put it:

“They responded the way they were trained to do. They simply stood up and tried to help.”

The doctors’ lawyer also said a mistrial would be unfair because they already had to juggle their schedules so the trial could take place during the offseason. But the judge was unmoved: “The integrity of the court is more important than schedules.”

The mistrial means that Weis will have to start the trial all over again. But this shouldn’t be a big deal because something tells me he’s used to going back for seconds!

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Wacko gets Jacko’d

michael_jackson.jpgThis just proves that when you’re a famous celebrity with deep pockets, you can be sued for almost anything. And that’s what’s happening to Michael Jackson: The family of a Manuela Gomez Ruiz is suing both Jackson and the Marian Medical Center, claiming that the hospital’s VIP treatment of the pop star two years ago resulted in the death of Ruiz, a 73-year-old woman under the hospital’s care.

The complaint blames Jackson and the hospital for the “outrageous, circus-like atmosphere they orchestrated during the last hours of Manuela Ruiz’s life and its obvious emotional and mental lasting effects upon the plaintiffs.” They allege “intentional infliction of emotional distress, negligent infliction of emotional distress, elder abuse, false imprisonment and conspiracy.”

The events took place two years ago, during Jackson’s trial for child molestation charges. At one point, as you may recall, Jackson was admitted into the hospital for flu-like symptoms. According to the plaintiffs, Jackson falsely exhibited flu-like symptoms to avoid court that day and, ultimately, “hijack” the services of the hospital. As a result, Ruiz — who was admitted for a heart attack earlier in the day and was already in critical condition and on life support — was hastily removed from life support and switched into another hospital room, to accommodate Jackson’s need for a private one.

Ruiz apparently also had another heart attack later in the day, but they claim that the crowds delayed her arrival at the critical care unit. Ruiz died later that day. The attorney for the family is claiming that they waited two years to file suit because they didn’t want to jump on the “Michael-Jackson bashing boat.”

Now, c’mon: Really?! This woman was 73-years-old, suffered two heart attacks, and was on life support. Did Michael Jackson’s presence really hasten her death? The woman was on her last legs, and the plaintiffs aren’t even alleging wrongful death. They are claiming that Jackson’s presence caused them severe emotional distress. Well, you know what: Having a mother die probably caused that emotional distress. And I’m assuming that the two-year wait had less to do with not wanting to jump on the “Michael Jackson bashing-boat,” and more to do with an ambulance chasing attorney coming out of the woodworks, seeing an opportunity to cash in.

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Supreme Court Decision Update - Lawrence v. Florida

cella_large.jpgLawrence v. Florida (PDF of the Opinion) is a tedious case about the statute of limitations under the Antiterrorism and Effective Death Penalty Act. Or rather, it’s about whether the statute of limitations is tolled (put on hold) during the pendency of a petition for a writ of certiorari following the denial of a state court post-conviction. The Court’s majority concluded that the statute is not tolled, regardless of whether the petitioner had a petition for a writ of certiorari pending with the Supreme Court. In other words, the Supreme Court has essentially told Lawrence that he’s S.O.L., and death is imminent.

QuizLaw Analysis The conservative majority basically went with the strictest reading of the statute, holding that 28 USC § 2244(d)(2)’s one-year statute of limitations continues to run even if a writ of cert is pending.

What happened to Lawrence? Lawrence had been convicted of murder and sentenced to death. He appealed his conviction, alleging 13 counts of ineffective assistance of council, and eventually lost those appeals, meaning the conviction was now final. Which means he had 365 days to file a habeas petition under the Antiterrorism and Effective Death Penalty Act. 364 days later, one day before his time would be up, he filed a different appeal in state court, seeking post-conviction relief. Relief was denied, and he eventually sought cert from the Supremes, but this too was denied.

While his petition for certiorari with the Supremes was pending, he filed his federal habeas application. This was 113 days after the state Supreme Court had denied his post-conviction appeals.

And what’s the issue here? Well the problem works like this. He had 365 days to file his habeas petition. He let 364 days go by. But then he filed state appeals, and that tolled the statute of limitations, meaning that “1 day left” was put on hold.” So the question posed to the Supreme Court was: Did the statute of limitations toll while his writ for certiorari was pending?

And did it? The majority of the court concluded that it did not. This opinoin was penned by Justice Thomas, and joined by Chief Justice Johnny, The Scalia, and Justices Kennedy and Alito. Thomas says that the limitations period had tolled while he was seeking relief from the state of Florida, but — since he had only one day remaining on the year term — he should’ve applied for federal habeas relief the day after his state appeals ran out, not 113 days later (that is, he was 112 days too late).

The pertinent section of 28 USC § 2244(d)(2) notes: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” Thomas and the majority reasoned that a writ for certiorari from the Supreme Court does not count as “application for State post-conviction or other collateral review,” because it is pending before a federal court.

Thomas offers all sorts of reasons behind the Court’s ruling, but it mostly comes down to this: It’s what the statute says explicitly, so that’s what we’re going to go with, awkwardness and fairness be damned.

And what’s the dissent have to say? Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, disagreed. Ginsburg noted (I think logically) that writs for certiorari arise from “actions instituted in lower state courts.” Therefore, the dissent argued, a petition for certiorari is part of the state appeals process and the tolling period should continue until the “Court has had an opportunity to consider an application for state postconviction relief.”

Supreme Court Decision Update - Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Company, Inc.

veloco.jpgToday’s only unanimous opinion comes in the form of the long-titled Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Company, Inc. (PDF of the opinions). It’s a case about the exciting world of antitrust laws and monopolies, specifically as to what the test is for when there’s predatory bidding. And it’s also yet another bitch-slap to the Ninth Circuit.

QuizLaw Analysis: Sadly, predatory bidding has nothing to do with velocaraptors (see what I did there, with the “predatory”…that’s what this case has sunk me to). Instead, the Supremes unanimously hold that the same test that’s been applied to predatory pricing for over a decade is also the one that should be used with predatory bidding.

Predatory bidding, predatory pricing…what’re we talking about? Well, let’s get the background of the case first, before we get into the fun antitrust mumbo-jumbo, ok?

Ok, so what’s the background? In the Northwest, timber is a big industry, and red alder sawlogs are one of the types of logs processed up there. Sawmills can get these logs in three ways - by harvesting timberlands that they own, through long- or short-term agreements with the owners of timberlands, or by purchasing them on an open bidding market. Ross-Simmons is one such sawmill, which has been around since 1962. In 1980, Weyerhaeuser joined the market (and from now on, I’m calling Weyerhaeuser “Big W,” because I just can’t keep typing that name). Anyway, while Big W did well over the next 20 years, Ross-Simmons did not. The price of alder sawlogs (which are up to 75% of a sawmill’s costs) went up, while lumber prices fell. And Ross-Simmons got hit hard, eventually shutting its doors in May ‘01.

Ross-Simmons then sued Big W, claiming that Big W drove it out of business by bidding up the cost of the sawlogs to the point that Ross-Simmons couldn’t keep a profit. This was an antitrust suit under the Sherman Act, claiming monopolization and attempted monopolization based on Big W allegedly overpaying for these sawlogs to cause the prices to artificially raise.

This, Ross-Simmons argued, was illegal predatory bidding.

The trial court continually rejected Big W’s attempts to kill the predatory-bidding theory. At one time, Big W argued that Ross-Simmons had to meet the standards of a Supreme case from 1993, Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. which was not about predatory bidding, but predatory pricing. The District Court denied this motion, and also rejected jury instructions which also relied on Brooke Group. Instead, the jury was told that Big W has committed antitrust violations if the jury decides that it tried to prevent Ross-Simmons from getting logs by buying more logs than necessary or paying a higher price than necessary. The jury ruled against Big W to the tune of $26 million.

Big W appealed to the Ninth Circuit, which affirmed the verdict. It ruled that predatory bidding and predatory pricing are similar, but that there are differences, and that “the concerns that led the Brooke Group Court to establish a high standard of liability in the predatory-pricing context do not carry over to this predatory bidding context with the same force.”

I’m lost. Can we talk about this predatory pricing business? Yeah, now would be the time. So predatory pricing is where someone lowers the price of their own product with the hope that competitors can’t afford to match the low prices, thus driving those competitors out of business. Then, the “predator” can jack the price way up. The Supremes looked at this practice in Brooke Group and set a high standard for a plaintiff to win on a claim of predatory-pricing. This is because “[t]he mechanism by which a firm engages in predatory pricing - lowering prices - is the same mechanism by which a firm stimulates competition,” and the court doesn’t want to “chill the very conduct [which] the antitrust laws are designed to protect.”

So a predatory pricing plaintiff must prove two things to win. They have to be able to show that the prices in question were below cost - the idea being that price cutting benefits consumers, so it should only be punished where it hurts competition, namely, when it’s below cost (because then there’s a loss on the sale, not a profit). The plaintiff must also, according to the Brooke Group Court, prove that the “bad guy company” was likely to make back its “investment in below-cost pricing” down the road, by jacking prices up after the competition is gone. This requirement is because “without a dangerous probability of recoupment of losses…it is highly unlikely that a firm would engage in predatory pricing” in the first place.

Ok, and what, exactly, is predatory bidding? Well that’s what Ross-Simmons claims Big W was doing. So predatory bidding is where a company uses their strong market power to bid up the price of supplies so that competitors can’t afford to buy them and stay in business. This results in a monopsony (whereas a monopoly is control of the sales side of the market, monopsony is control on the buying side of the market “and is sometimes colloquially called a ‘buyer’s monopoly’”). And once the competitors are gone, the “bad guy company” can try to bid the supply prices back down, and pull in nice fat profits which make up for the losses it took while the prices were high.

Boring, but makes sense. You ain’t whistling Dixie.

So where are we going with all this? Well, in a unanimous opinion, Thomas tells us that those two Brooke Group standards apply to predatory bidding, just like they apply to predatory pricing, because the underlying claims in each type of case are similar - there is a “close theoretical connection between monopoly and monopsony.” Two sides of the same coin, if you will:

Both claims involve the deliberate use of unilateral pricing measures for anticompetitive purposes. And both claims logically require firms to incur short-term losses on the chance that they might reap supracompetitive profits in the future.

And more importantly, they are both similar with respect to what the Brooke Groupe Court thought was significant. A rational business would rarely be willing to suffer short term losses in the hopes of getting bigger profits down the road, using either predatory scheme. And similarly, the actions underlying both predatory bidding and predatory pricing “are often ‘the very essence of competition,’” that is, “sellers use output prices to compete for purchasers [and] buyers use bid prices to compete for scarce inputs.” There are plenty of legit reasons why such pricing or bidding could take place, so Thomas says we should only approve claims of predatory bidding, as with predatory pricing, where it’s clear that anticompetitive shenanigans are going on.

Plus, it turns out that predatory bidding isn’t even as much a threat to consumers as predatory pricing, because, while predatory pricing only succeeds when a higher prices is charged to consumers, “a predatory bidding scheme could succeed with little or no effect on consumer prices because a predatory bidder does not necessarily rely on raising prices in the output market to recoup its loses.” That’s because the bad guy can just bid the buying prices way down later, and still sell to the consumer for the same price, all while reaping fat profits.

All of which is a long way of saying what? That the same test applies to both - the “two-pronged Brooke Group test should apply to predatory-bidding claims.” So the plaintiff in a predatory bidding case must first show “that the alleged predatory bidding led to below-cost pricing on the predator’s outputs.” That is, that the predator was taking a loss on its sales, because it was selling at below cost. As with predatory pricing, if the predator is still selling above-cost, it’s a potentially reasonable business decision which should be beyond the court’s reach, lest the court chill legitimate competitive conduct.

And second, a predatory-bidding plaintiff must also “prove that the defendant has a dangerous probability of recouping the losses incurred in bidding up input prices through the exercise of monopsony power.” Because, without such a likelihood, there’s no economic sense to the practice of predatory bidding.

Thus, the Ninth Circuit got it wrong, and the Supremes vacate the case and remand it.

Liberal Commie Bastards Reject all the Good Laws

mudflap.jpgI don’t get it. What’s wrong with this country? Arizona state house Democrat Ed Ableser was just looking out for our children (they are the future, after all). So, he proposed a law that would ban mudflaps with racist terms or silhouettes of women. But it was rejected by the state house. What’s wrong with the proposal? We don’t need to see racist terms or naked women on our roadways, do we?

Just the other day, in fact, I was driving down the freeway and saw this mudflap and had to avert my eyes. I nearly ran off the road and killed myself. What if I’d had a child in my car? We can’t have that kind of hate-fueled content on our nation’s highways. Sexual predators with decorative mud flaps have to be stopped; we can’t have that sort of thing inflicted on today’s youth. Do you have any idea how prurient Betty Boop is?

I agree, wholeheartedly, with Democratic Rep. Theresa Ulmer:

“I personally am tired of explaining to my 11-year-old son why they (women) are depicted on mudflaps , but not all women are 36Ds. He’s very confused by that. But seriously, this is about family values — what are we going to send out as a message to our children.”

Indeed! We have to teach our children that the First Amendment is meant to be violated. That’s what it’s there for, after all. Also, that state congressmen and women should spend more time on things that matter, like this law, rather than fritter it away funding schools or repairing the roads. And no parent should ever be asked to discuss breasts with their children. Kids should be kept ignorant. So that they might grow up some day and propose excellent laws like this one. And I just can’t believe it was rejected. Ridiculous!

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Supreme Court Decision Update - Philip Morris USA v. Williams

ciggy.jpgOf the three Supreme decisions to come down today, Philip Morris USA v. Williams (PDF of the opinions), is the furthest of the bunch from a unanimous one, coming in as a 5-4 decision. The decision is about whether large punitive damage awards comport with the Constitutional requirement for due process, and the majority says “nuh-uh.”

QuizLaw Analysis: This thing boils down real simple-like. Smoking is bad for you. Cigarettes are bad for you. But excessive punitive damages are bad for Big Tobacco.

This is a case brought by smokers? Actually, it comes from a case brought by one smoker or, more accurately, one smoker’s estate. Jesse Williams was a long-time Marlboro smoker and, after his death, his widow sued Philip Morris in Oregon. At the trial:

A jury found that Williams’ death was caused by smoking; that Williams smoked in significant part because he thought it was safe to do so; and that Philip Morris knowingly and falsely led him to believe that this was so.

With connection to its finding that Philip Morris was deceitful, the jury award about $820,000 in compensatory damages, and $79.5 million in punitive damages.

Isn’t $80 million a bit excessive? Well, that’s what the trial judge thought, reducing the award to $32 million. Both sides appealed, and the case worked its way up and down the appellate ladder - the Oregon Court of Appeals rejected Philip Morris’ appeal and reinstated the $79.5 million award, the Oregon Supreme Court denied review, the Supremes remanded the case back down to the Oregon Court of Appeals, and then it went back to the Oregon Supreme Court, which heard it the second-time around.

And what happened at the Supreme Oregon level? Philip Morris made two arguments that are relevant for this decision. First, it argued that the trial court should have accepted a proposed instruction for “punitive damages” which would’ve told the jury that it can’t punish Philip Morris for injury to folks that weren’t before the court (i.e., all other smokers). Philip Morris particularly wanted this instruction in light of the defense attorney’s repeated comments about how many folks smoke and are likely injured by cigarettes. Now the judge did instruct the jury: “that ‘[p]unitive damages are awarded against a defendant to punish misconduct and to deter misconduct,’ and ‘are not intended to compensate the plaintiff or anyone else for damages caused by the defendant’s conduct.’” But Philip Morris argued that this instruction wasn’t good enough, and that some of the punitive award was probably punishment for harm to others.

Second, Philip Morris argued that the punitive award had a “roughly 100-to-1 ration” to the compensatory award. The Supremes have previously suggested that punitive damages should be “two, three or four times the size of compensatory damages,” and while they can be greater, that “’[s]ingle-digit multipliers are more likely to comport with due process.’” One hundred-to-one, said Philip Morris, flies in the face of due process.

The Oregon Supremes told Philip Morris to toss-off, and left the large punitive award.

The real Supremes then took the case, granting cert on two issues, although they only decide one of those issues today.

And who’s doing the deciding? As mentioned, this is a 5-4 decision. The majority opinion comes from Justice Breyer, and he’s joined by Chief Justice Johnny and Justices Kennedy, Souter and Alito. Justices Stevens and Thomas each filed a dissenting opinion on their own, and Justice Ginsburg also filed a dissenting opinion, though The Scalia and Thomas joined in her dissent.

So what do Breyer and company have to say? This decision boils down to a very simple holding: if a jury award for punitive damages is based in part on a desire to punish the defendant for harming folks who aren’t party to the lawsuit, that’s an unconstitutional taking of property.

As Breyer outlines it, it’s ok to use punitive damages to punish bad conduct and deter folks from repeating such bad conduct. But a state must have proper standards in place to reign in the jury’s ability to issue punitives, both so that there’s “fair notice” of how bad punitives can be, and also to keep from having purely “arbitrary punishments.” Thus, the Constitution has been understood to impose limits “both to procedures for awarding punitive damages and to amounts forbidden as ‘grossly excessive.’”

Breyer and company decide that they can skip the question of whether the punitives in this case were grossly excessive, and just handle the question of whether they complied with the Constitutional limitations regarding procedure.

So the Oregon jury’s award doesn’t comply with Constitutional procedural limitations? Well, turns out that’s not really the question. Instead, the problem is that the Oregon Supremes didn’t answer the relevant Constitutional question in the right way.

Well, what are the Constitutional procedural limitations A state can’t allow juries to use punitives to punish a defendant for injuries which may have been inflicted on folks who aren’t party to a litigation. In such a situation, the defendant can’t really defend against claims that it injured non-parties (for example, without the people there, Philip Morris couldn’t show that the person knew smoking was bad). Plus, there would be no real way to apply a standard to such a broad scope of punitives, and without a standard, the due process concerns become even worse - punitives are likely to be more arbitrary, more uncertain, and not able to provide notice to defendants of what possible punitives they can expect. And finally, Breyer says there’s no authority that he’s aware of to support the idea that punitives can be used “for punishing a defendant for harming others.” Sure, you can show evidence that there was harm to others, but only in so far as you’re using it to show how reprehensible the defendant’s actions were. To make sure everything works properly, Breyer says:

[T]he Due Process Clause requires States to provide assurance that juries are not asking the wrong question, i.e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers.

And this isn’t what the Oregon Supremes said? No sir. They talked about more than just reprehensibility in rejecting Philip Morris’ appeal. They misinterpreted prior Supreme rulings on related issues, and so Breyer and company want to make it real clear right now that “a jury may not punish for the harm caused [to] others.” States can be flexible, a little, in figuring out their own procedures, but they must insure that juries are only considering harm to others for the purposes of “reprehensibility” and are not issuing punitives which punish for harm to others. In other words, “federal constitutional law obligates [the state] to provide some form of protection in appropriate cases.”

So the Oregon Supremes need to take a look at the case again, keeping this constitutional standard in mind. And since that review may end up with a new trial in this case, or at least a change in the punitive damages award, Breyer skirts the issue of whether this particular punitive award was “grossly excessive.”

Is that it for the majority? Yes.

So what’s Stevens’ point of dissent? Stevens agrees that the Fourteenth Amendment’s Due Process clause “imposes both substantive and procedural constraints on the power of the States to impose punitive damages on tortfeasers.” But he thinks that the Oregon Supremes applied the law properly. First, while he agrees with Ginsburg (as we’ll get to in a minute) that there was no procedural error during the trial, his real concern is that Breyer and the majority have imposed “a novel limit on the State’s power to impose punishment in civil litigation.” He’s got no problem with punishing a bad guy for harming others and the “distinction between taking third-party harm into account in order to assess the reprehensibility of the defendant’s conduct - which is permitted - from doing so in order to punish the defendant ‘directly’ - which is forbidden,” is a “nuance” which eludes him.

Stevens sees this decision as an expansion of substantive due process, breaking new ground and likely to cause more trouble than good.

And Justice Thomas? While Thomas joins Ginsburg’s dissent, he wanted to take a minute to reiterate his view that “the Constitution does not constrain the size of punitive damages awards.”

And finally, what sayeth Ginsburg? She dissents, joined by The Scalia and Thomas, because she doesn’t think the Oregon courts even ruled against Breyer’s notion that a jury can consider harm to others “as a measure of reprehensibility, but not to mete out punishment for injuries in fact sustained by nonparties.” She finds it inexplicable that the Oregon Supremes’ decision has been vacated, both because she thinks they got the law right and because she doesn’t think Philip Morris actually preserved an objection to the jury instructions.

The Daily Memo - 2/20/07

check.jpgDoes that lawsuit come smooth or chunky? (CNN)

check.jpgThe frat boys who sued Borat had their lawsuit tossed out. (Defamer)

check.jpgThe FCC wants the power to regulate TV violence. (CNN)

check.jpgA municipal judge in Lafayette, Colorado has resigned from the bench in protest of increased penalties for marijuana possession. (Boulder Daily Camera)

check.jpgIBM’s being sued by a fired employee who claims he needs help for his internet porn addiction. (CNN)

check.jpgWashington state is gearing up for a heated debate over the regulation of body piercing and tattoos. (Seattle PI)

Mr. Bill? That’s Senator Bill to you!

mr.bill.jpgSpeaking of next year’s presidential election - if Hillary were to win the Presidency….hahahahaha.

Ok, seriously. If Hillary were to win next year, it seems that some Democrats would like to see New York’s Governor Spitzer appoint Slick Willy to take over her Senate seat, keeping it in the family name. A former aid says that Bill would be a “knockout” as a senator, and others agree. Of course, others others acknowledge that this would be quite a long shot.

It would not, however, be a first. John Quincy Adams was a Representative when his executive career ended. And more interestingly, Andrew Johnson had a brief stint as a Senator after his presidency - and he’s the one other Pres to also be impeached by the House and, like Bill, be acquitted by the Senate.

I gotta’ say that I love the idea of Senator Bill because, despite his many flaws, I still like and miss yhe guy. Plus, it might give us some new blowjob jokes. And this country really needs some new blowjob jokes.

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P is for “pandering”

mccain2.jpgEven though November 2008 is a long ways away, I’m sure you all know that the bloody Presidential races are already in full swing. And in furthering along his presidential hopes, Senator John McCain has ratcheted up the pandering knob to 11.

First, there’s Roe v. Wade. Back in 2000, McCain said of the pivotal abortion rights case: “…I would not support repeal of Roe v. Wade, which would then force X number of women in America to [undergo] illegal and dangerous operations.” Flash-forward seven years, and McCain’s got a new tune to sing, one more friendly to the religious right base of the Republican party:

I do not support Roe versus Wade. It should be overturned.

Well, at least his new position is clear and certain, although one wonders how much his base will love and trust the flip-floppery of it all.

Meanwhile, last fall, McCain had rather kind words to say about then-Secretary of Defense Rummy: “While Secretary Rumsfeld and I have had our differences, he deserves Americans’ respect and gratitude for his many years of public service.” Now?

I think that Donald Rumsfeld will go down in history as one of the worst secretaries of defense in history.

I can’t say I disagree with this new position in the least. But I can say that I’ve lost all respect for McCain, someone who used to proudly proclaim the fact that he would not pander just for political advancement.

This is going to be a looooooong twenty months.

Blawgers are Dirty Swingers


From Walter Olson’s blawg, Overlawyered, posted this morning:

I met a lot of blawgers, lawprofs and others whose work I’ve been reading for years. At lunch, when Northwestern lawprof Jim Lindgren (Volokh Conspiracy) kindly suggested I join his table, I found myself seated between David Lat (Above the Law) and Ann Althouse; the rest of the table consisted of NYLS professors Jethro Lieberman (The Litigious Society) and Arthur Leonard, and publisher/editor Bernard Hibbitts of Jurist. Earlier in the day, I met Paul Caron (TaxProf), Jack Balkin (Balkinization), and Larry Solum (Legal Theory Blog), as well as catching up with old friend Randy Barnett (Volokh).

Damnit! Why aren’t Seth and I ever invited to the Key Parties? One night with Ann Althouse is all I ask, man. It’s all I ask. I bet you dollars to donuts that Olson pulled her key out of the hat, too. He catches all the breaks. I’m guessing Lat ended up with one of the ladies from The Feminist Law Professors, who no doubt gave him quite the spanking for those Hotties contests. Lucky bastard. Of course, I would’ve given anything to see how awkward Bainbridge felt when they ran out of female blawgers and he had to go home with Bashman. I’m guessing there wasn’t a lot of cuddling.

This is Just the Sort of Thing to get Henry Hill Whacked

liotta.jpgLast night, Ray Liotta began his pre-publicity tour for the upcoming Wild Hogs by getting himself arrested and taken into custody. Police in Los Angeles booked him on misdemeanor DUI charges after the star of Goodfellas crashed his car into two parked vehicles. And it takes a special kind of drunk to crash into two parked cars; I’m guessing the two were parked next to each other and, in Liotta’s inebriated state, he believed that there was a parking space between the two. Either way, he’s out on a $15,000 bond. Sadly, Liotta probably wasn’t three tits to the wind during production of Wild Hogs, which means the film will have absolutely nothing going for it at all.

Meanwhile, Liotta’s Copland cast mate, Sylvester Stallone, appears to be in a little legal trouble himself. Out in Australia on a promotional tour of Rocky VI: The Battle vs. Incontinence, customs officials searched both Sylvester’s private plane and his hotel room. This came three days after officials seized banned substances from his entourage, which Stallone noted was part of a “misunderstanding.” As in, Stallone and/or someone in his posse had a bag full of steroids and Stallone “misunderstood” that they were illegal in Australia.

The Daily Memo - 2/19/07

check.jpgSeveral state governments may end up getting into the Anna Nicole Smith legal fray. (Wills, Trusts & Estates Prof Blog)

check.jpgCarlos Mencia used the DMCA to have a YouTube video clip pulled, a clip accusing him of stealing people’s bits. (Techdirt)

check.jpgNew Jersey’s Attorney General says the state will recognize the rights of gay couples married in other jurisdictions, although it will only call such relationships “civil unions.” (Law.com)

check.jpgWest Virginia’s House of Delegates has approved legislation to allow casino-style table gambling at racetracks, and the bill now moves to the state Senate - and the House minority leader stupidly claims this will make West Virginia “the Las Vegas of the East.” (Gazette-Mail)

check.jpgThe Eleventh Circuit has upheld Alabama’s bans on the commercial distribution of adult toys, saying the ban doesn’t implicate any right to privacy. (Boing Boing)

check.jpgFox News’ seriously painful late-night show “Red Eye” is being sued by the Chicago Tribune because the paper has a daily feature also called “RedEye.” (TV Squad)

check.jpgOregon lottery winners are being sued by the state for excessive partying, alleged drug dealing, and other public nuisances. (CNN)

I’m actually with the Republicans on this one

briefcase.jpgDo you guys remember Representative William Jefferson? Sure you do - he’s the dude who had $90,000 stashed in his freezer, which the FBI found last year when they were investigating him for bribery charges. As you’ll recall, there was a federal bribery probe going on, amidst allegations that Jefferson took money in connection with an African telecommunications deal. As a result of this probe, Nancy Pelosi kicked Jefferson off of the Ways and Means Committee.

Well, Jefferson managed to win himself a re-election last fall, and now Pelosi has decided to put him on a Homeland Security panel. She’s purportedly doing this, because Jefferson, a Democrat from Louisiana, has been a loud critic of how homeland security handled the whole Katrina debacle. While the appointment still has to be approved by other House Democrats, some Republicans are already raging. The highest ranking Republican on the Homeland Security Committee, Peter King, asked:

“They couldn’t trust him to write tax policy, so why should he be given access to our nation’s top secrets or making policy for national defense?”

Uhm, yeah, that’s a pretty solid chain of logic to me. Jefferson’s chief of staff, meanwhile, says King’s comment is “ridiculous and just politics” because it just makes sense for Jefferson to be on the committee because of his concerns about what happened after Katrina. Of course, he conveniently sidesteps the question of whether someone accused of taking a bribe should be on a homeland security panel.

Here’s another notch on the wall in the “the Democrats are their own worst enemy” column.

The Happiest Place on Earth

tigger.jpgWanna’ buy Cinderella’s Castle? Sorry sucker, right now you can’t. Turns out the centerpiece of the Magic Kingdom currently has a construction lien filed against it. A while back, Specialty Products and Insulation did some work to the castle, adding a new stage for performances, as well as some new decorations, some tile mosaics and even a deluxe bathroom. And now Specialty Products is claiming that it’s still owed $3,984.87 for materials, and so it’s filed a lien for the money. The dispute actually appears to between Specialty Products, a subcontractor, and the general contractor that hired it, so Disney is in the process of having the lien withdrawn. Presumably, Disney execs haven’t lost any sleep over this, particularly since the company is no stranger to such silliness - there have previously been liens filed against It’s a Small World, Haunted Mansion, Spaceship Earth and Expedition Everest.

The Disney execs can also sleep easier now that Tigger is a free man tiger. Florida’s Attorney’s Office has announced that it will not by pressing criminal charges against one Michael J. Fedelem, who plays Tigger at the Disney-MGM Studios. Fedelem/Tigger was in some trouble after allegedly whacking a 14-year-old New Hampshire boy on the head. The kid’s dad has the incident on videotape and since charges aren’t being filed, one assumes the altercation must not have been as bad as daddy originally thought (he’s the one who originally went to the cops).

My guess? Tigger was just bouncing on the kid’s head the ways Tiggers do, and daddy was just unfamiliar with the fact that Tiggers like to bounce.

Well we ain’t talking about death, so it must the other thing…

d-and-t.jpgI don’t like being the bearer of bad news, but it behooves me, writing for a legal site and all, to remind you that tax season is here. Exactly two months from today you best have your tax return in the mail, lest you anger the scary beast that is the IRS.

If you’re looking for tax information, don’t forget to check our handy section on federal tax returns. You especially might want to take a look at What changes or additions have been made for the 2006 tax year? As you might guess, it highlights some of the tax law changes in effect this year.

And with that out of the way, I’ll hand things off to some crappy Liverpool band:

Ode to the Crunchwrap Supreme

crunchwrap.jpgThankfully, we can head off into President’s Day weekend by laughing at other people’s pain, in this instance, in the form of a powerful hunger for one of Taco Bell’s delicious Crunchwrap Supremes™. Mmmm. Seasoned beef, nacho cheese sauce, sour cream, lettuce, and tomatoes, all wrapped in a discus, so that you can both eat and fling it.

Where was I? Ah, yes: Taco Bell. Out in Ontario (where the Canadians are a little more ghetto fantastic than you’d believe), two women were driving their SUVs and approached a Taco Bell drive-thru at about the same time. One woman pulled ahead, and then the other, Liliana Duenas — believing she was cut off — took umbrage. So, Liliana — a wee 5’1 bit of a woman — returned to her car, pulled out a wooden baseball bat, and started wailing away on the victim. Fortunately, the woman got back into her SUV, and that gas guzzler absorbed most of the blows. However, the victim did sustain a hit to the arm and a few hundred dollars damage to her SUV.

And that, ladies and gentleman, is the awesome power of the Crunchwrap Supreme. It’s so good, you’ll beat the hell out of anyone who stands in your way of it.

It’s Official: We’re all going to Hell in a Handbasket

hellinahandbasket.gifThere are certain days here at QuizLaw when the headlines occasionally fail to scream: Idiot. Dumbass. Fucktard. Freak. And instead, lead one to wonder if we’re closing in on an apocalyptic Children of Men future, where everyone is so goddamn depraved that your stomach gets queasy. I love ladies stabbing their boyfriends kinky-style, astronauts soiling themselves for love, and men faking their own kidnappings as much as the next guy, but — at a certain point — other people’s pain stops being funny.

For a few minutes, that was today, when I read three headlines in a row that convinced me to avoid CNN for a few weeks. Take, for instance, this story about an Ohio couple who were sentenced yesterday to two years in prison for forcing some of their adopted, special needs kids to sleep in wire-and-wood cages. Naturally, the couple claims they were led by the Lord. Because, apparently, the Lord wants special-needs kids to sleep in urine-stained cages without pillows or mattresses.

Of course, I don’t know what’s worse: Sleeping in a cage, or sleeping with a senior citizen. In Oregon, an 84-year-old woman was sentenced to 36 months in prison after admitting that she slept with an 11-year-old in her foster care. God bless the foster care system in this country.

But, nothing is worse than this final news story, seemingly pulled straight out of Bret Easton Ellis’ American Psycho: In January, Mia Sagote slammed a homeless woman, Leslie May, into a wall, threw her down, and punched her over, all over a $150 debt owed by May’s boyfriend. So, Sagote dragged her behind a trash container, stripped her clothes off, and took her cash.

But, that’s not the bad part: After May reported the robbery, Sagote and another woman, Leslie Siliga, soaked May in gasoline and burned her. Alive. The two women have been charged with murder.

And as if all that wasn’t bad enough, just to top it all off, those bastards in the North Dakota House of Representatives defeated a resolution that would have honored U2 frontman, Bono, for his humanitarian efforts in third-world countries. The resolution was defeated soundly, 58-35; apparently, many of the House members thought the resolution was referring to Sonny Bono. Because they’re idiots.

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The Daily Memo - 2/16/07

check.jpgA New York teacher has been arrested for hucking a book at a 12-year-old student who wouldn’t shut up. (New York Post)

check.jpgA Connecticut court has convicted a substitute teacher of four counts of risking injury to a child, because an in-classroom computer started showing porn pop-ups. (ars technica)

check.jpgAn Illinois state senator has introduced a bill that would require libraries to ban access to social networking sites like MySpace. (Tame the Web: Libraries and Technology)

check.jpgThe leak in the BALCO case, a Colorado lawyer, made his first court appearance yesterday to plead guilty to obstruction of justice. (ESPN)

check.jpgA lawsuit against MySpace, stemming from the assault of a 13-year-old girl, was thrown out by a Texas judge. (Post I.T.)

check.jpgTwo retired NFL players have sued their players’ union. (ESPN)

check.jpgApparently yoga didn’t calm this man’s soul - a former yoga teacher was found guilty of murdering his stripper ex-girlfriend. (CNN)

check.jpgAn ex-Congressman from Pennsylvania has been accused of publicly exposing himself at a beach resort. (ABC News)

If the Senate doesn’t protect our children, who will?

capital2.jpgY’all might remember Senator Ted Stevens. He’s the guy who, last year, famously referred to the internets as a bunch of tubes. Well he’s back now, with a new bill which would require all schools and libraries that get federal internet subsidies to ban access to vaguely defined “interactive” web sites. This would include social networking sites like MySpace and, because of the vague language, could also include blogs that accept comments and even sites like Wikipedia.

Computerworld’s Preston Gralla pretty much sums up my exact thoughts on this matter:

There are so many things wrong with this bill, it’s hard to count them all. But its greatest irony would be banning Wikipedia - perhaps the most widely used reference resource in the world - from libraries and schools. I have plenty of problems with Wikipedia, including how easily it can be manipulated, and the way students rely on it far too heavily. But ban an educational resource merely because it’s interactive? If true, it’s bizarre beyond comprehension.

Senator Stevens is an idiot. But his colleague, Senator Sam Brownback, is trying to give him a run for his money by introducing the Truth in Video Game Ratings Act. A rehash of a bill which died last year, this legislation would put the Federal Trade Commission in charge of overseeing the ESRB video game rating system. Of course, it blindly ignores several steps the video game industry has taken over the past couple of years to improve their rating system, which have been met with approval by groups like the Institute on Media and the Family.

Why do these Republican Senators forget that one of the cornerstones of the Republican party is smaller government? Why do these people who constantly call out “family values” consistently refuse to acknowledge the role of parental oversight, instead taking a “we can do it better” approach? These aren’t rhetorical questions - I seriously would like to understand the skewed take on things.

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Well, you always left me satisfied and smiling…

mScott.jpgSo Julie Elgar is a Georgia labor and employment attorney. And like many attorneys out there, she keeps herself a little blog. But unlike many of the attorney blogs out there, Elgar’s is probably one of the only one to focus on a sitcom.

That’s What She Said is very simple - Elgar takes a look at each week’s episode of “The Office” and gives a quick once-over of what HR laws were violated that week and how much trouble Dunder Mifflin could be in, including an estimate of the “litigation value” of Michael’s various mishaps. For example, the episode from two weeks ago (“Ben Franklin”) is given a litigation value of $800,000-plus, thanks to the fact that Michael “sponsored a bachelor party in the warehouse, hired a stripper, offered to ‘deflower’ the bride, [took] an employee to a sex store, received a lap dance, and allowed a pervert dressed up like Benjamin Franklin to make a lewd statement to the receptionist.”

…god I love that show!

And I would, of course, be remiss in discussing a blog called “That’s What She Said,” and not including the following video, a wildly entertaining minute-and-a-half which made all the internets rounds earlier this month:

Hey Baby … what’s say you and me make dinner, have a few drinks, and stab each other?


Out in Tempe, Arizona, a 23-year-old woman celebrated Valentine’s Day in style. She and her man decided to get kinky, so the man allowed Tiffany Sutton (that cutie to your left) to tie him up during sex. Fresh!

But Tiffany had a little something else in mind. You know how Cupid is with those arrows? Well Tiffany liked to do the same, only with knives. Indeed, Tiff decided to ratchet up the kink factor when she up and started stabbing her boyfriend. And suddenly, he wasn’t so much into the kinky anymore, especially after Sutton started telling the man that she liked to drink blood. His blood. I suppose Cupid got a little bloodthirsty.

Thankfully, the man eventually freed himself from his binding and managed to flee. Of course, Tiffany (in a bout of heartache, I can only imagine) chased the man around with a pickaxe.

The man was later found, passed out, by a friend, who notified the police. Sutton initially claimed she was the victim, but changed her tune later, suggesting that the entire experience was consensual. Because what man doesn’t love to get stabbed in the chest and chased about with a pickaxe?

I understand the couple’s third-date flick was Saw.

The Daily Memo - 2/15/07

check.jpgTracy Morgan has pled guilty to DUI charges. (TV Squad)

check.jpg“The RIAA tries to give a reacharound to the legal system.” (Gizmodo)

check.jpgJustice Kennedy went before the Senate yesterday to rehash the quickly-getting-stale “federal judges are poor and broken hearted and need more money” routine. (Dorf on Law)

check.jpgA Sheboygan, Wisconsin man has been charged with a felony after shooting himself in the foot. Who doesn’t love the word “Sheboygan?” (The News & Observer)

check.jpgA girl who diddled her high school volleyball coach last year is now suing the school board for negligently allowing her to diddle the coach. (News4Jax)

At least she had fun with the money

capone.jpgAngela Buckborough Platt was a bookkeeper with a Rehobeth, Massachusetts company, and I guess she wasn’t happy with her paltry $40,000 per year salary (understandable). So over a six-year span, she started embezzling money from the company, cutting checks to herself in amounts up to almost $50,000. In total, she managed a take of a whopping $6.9 million! But things came to an ugly end last summer when another bookkeeper discovered the funds funneling, and busted her.

So on Monday, Platt pled guilty to a felony count of interstate transportation of stolen property. As part of the plea, she has agreed to return all of the stolen money, and the prosecutors will recommend a sentence of at least 4 years and seven months in the clink (assuming she gets such a sentence, that’ll be less than half of the maximum 10 year sentence she could get for the crime). The sentencing is set to take place on May 8.

But Platt’s going to have to sell off quite a few things to come up with the $6.9 million she now owes. Check out the list of some of the shit she purchased with her winnings:

  • A ranch in Vermont.
  • A four-bedroom house in Rhode Island.
  • Over 35 (!) vehicles.
  • A model of an old Model T, customized to look like a green goblin (I don’t know if this is some old car type I’ve never heard of, or if she had it customized to look like Spiderman’s enemy, but I’m really hoping it’s the latter).
  • A 20-foot tall smoke-puffing dragon.
  • Six talking trees, modeled after “Wizard of Oz” characters.
  • A private concert by Burt Bacharach.
  • And my personal favorite, a life-size statue of Al Capone.

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Scalia’s daughter is also a huge dick

scalias.jpgEarlier this week, we shared some info from “The Daily Show,” wherein we learned that The Scalia is a dick. Well now CNN shares that the apple don’t fall far from the tree.

The Scalia’s 46-year-old daughter, Ann S. Banaszewski, has been charged with DUI and child endangerment.

She was arrested on Monday night while pulling away from a fast-food restaurant in a Chicago suburb. Someone called the cops to report a suspected drunk driver, and the cops pulled Banaszewski’s van over. She apparently blew a nice hit on the breathalyzer, since she’s been charged with a DUI, although the cops won’t release her blood-alcohol level. And because three of her kids were in the van with her, she also gets that pleasant endangerment charge.

As Above the Law so succinctly put it: “Justice Scalia’s daughter joins the ranks of Paris Hilton, Nicole Richie, and state court judges.” Here’s hoping her similarities with Hilton and Richie stop here - the last thing The Scalia needs is to see his middle-aged daughter’s exposed hoo-ha on the internets. That’s the last thing I need too, quite frankly.

Mr. Franken Goes to Washington (He Hopes)

smalley.jpgIt’s been long speculated that comedian and (now) former Air America radio host Al Franken would make a run for Congress, and now he’s made it official, announcing his Senatorial intentions. He’ll be running as a Democrat in Minnesota and hopes to win the nomination, so that he can go up against Republican incumbent Norm Coleman in 2008.

He’s got a nice official-like website, and has even put out an introductory how-you-do video (scroll on down to watch it yourself). It’s quite an interesting piece, explaining what it means to him to be a “progressive,” and showing his serious intent. And it’s also a pretty smart political piece, showing that he’s clearly got some good political advisors in his wing (he hits on family values, names tons of Minnesota places he’s been recently, and name drops both Bill Clinton and Paul Wellstone). I’ve always liked Franken and would love to see him pull this off, but we’ll have to wait and see if he’s good enough, smart enough and if, doggone it, people like him.

Happy Valentine’s Day to Whipped Men Everywhere!


You know, I’ve known men who were scared of their wives before, but Jorge Alberto Mejia must be married to a helluva frightening lady. Like, a cross between Peg and Ted Bundy. Or Aileen Wuornos. Or that crazy-eyed lady up above staring at you while you read this post (seriously, it looks like she’s about to jump off the web page and gnaw my leg off to get her afternoon protein).

Cause Mr. Mejia went to an awful lot of trouble to avoid pissing his wife off. And I’m not talking about flowers and a few chocolates. I’m talking about false police reports and one motherfucking hell of an elaborate story.

(Take another gander at that lady up above. She’s getting ready to eat your babies.)

You see, Jorge was driving to a casino in his wife’s shiny new 2007 Ford Focus when he accidentally crashed the car. And, I suppose, Mrs. Mejia loved that car. Liked, loved. Jorge was so afraid of how his wife would react, that instead of coming home with his tail tucked between his ass cheeks and offering up a massive apology along with a few scratch tickets to help heal the pain, Jorge called the police and told them that he’d been kidnapped:

Jorge Alberto Mejia, 35, told police two kidnappers held him up at gunpoint at a San Rafael bar Saturday and ordered him to drive to Santa Rosa, California, where he purposely crashed the car into a wall to escape.

Mejia eventually caved to the interrogators and admitted there were no kidnappers. Police are considering charges for filing a false police report. And I’m betting that, right about now, Jorge is hoping like hell the police throw him in the clink. Cause it’s gotta be better than going home and confessing to his wife.

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Nothing Says Love Like …

chickenleg.jpgShoving a drumstick up your classmate’s ass! From the article:

A 13-year-old boy who sodomized another boy with a drumstick in their school locker room when he bent over to pull up his pants was arrested Tuesday on assault charges, police said.

“While the victim reached over to pull up his shorts, another student poked him in the rectum with a wooden drumstick,” Nassau County police spokesman Detective Sgt. Anthony Repalone said.

Repalone said the Feb. 6 attack on a 13-year-old middle school student caused the victim “substantial pain.”

Well, at least it wasn’t the other variety of drumstick: A Chicken Leg!

The Daily Memo - 2/14/07

check.jpgThe latest word in the Libby trial is that neither Cheney nor Libby will testify for the defense. (FindLaw)

check.jpgA lawyer is complaining about a Missouri judge who runs a weekly Bible study in the courthouse. (Richmond Times-Dispatch)

check.jpgThe MBTA, which run’s Boston’s absolutely wonderful public transportation system, has been sued and, surprise of surprises, the lawsuit has a Big Dig connection. (Universal Hub)

check.jpgIn an utterly shocking turn of events (shocking!, I say), Trey Anastasio, the former Phish band member, has been charged with drug possession and driving under the influence of drugs. (FindLaw)

check.jpgTry to take photos of women’s booties, and you could end up in the clink. (Courant.com)

Mmmmmm…domestic law

card666.jpgThe website Indexed is a great site, where Jessica just makes “fun of some things and sense of some others,” all with very basic, yet often brilliant, index card charts and graphs and what-not. The card to the left was posted on Monday under the title “And the lawyers salivate.”

Just felt like sharing this analysis of marital bliss on this, Valentine’s Day.

Roses are red, violets are blue, some laws rhyme, but this headline doesn’t

A new bill was introduced in Minnesota last month to allow the governor to appoint a poet laureate. And the ever-creative state legislators decided to have a little fun with the bill, putting into bad rhyme form. An example:

The Gov” shall appoint a state poet laureate,

Who shall serve for a four-year term.

Because this appointment will always be great,

There’s no need for the Senate to confirm….

The poet will be free to write rhyming lines,

With removal only for cause,

But we trust that the bard will promptly resign,

If the verse reads as badly as laws….

I discovered this via a link on Neil Gaiman’s journal, and he sums it up pretty well:

This Minnesotan law reads as if it was written by two different people. And that it should be sung by a Gilbert-and-Sullivanesque politician, with a chorus of lady lawmakers in the background.

In honor of Valentine’s Day, QuizLaw presents a tale of two loving neighbors

hatMcCoy.jpgDown in Maryland, the Cerny and Elliott families used to love each other like two neighboring families rarely do. Eight years ago, Timothy Cerny and his family decided to put a pool in their backyard, a pool which would have faced right towards the front yard of David Elliott and his family. The Elliotts apparently weren’t so keen on this plan, and the love-fest then ended. Instead of loving thy neighbors, the Elliotts and Cerneys entered into a bitter feud.

The feud came to a head last spring when Cerny and Elliott got into a fight over some bags of grass clippings that were near the Cerny yard. And so Mr. Cerny did what any loving neighbor would do, and he hocked a big ol’ loogie at his neighbor. The incident was caught on tape, which helped the court convict Cerny, on Monday, of second-degree assault. As punishment, the court hocked a two-day-in-the-clink sentence on Cerny.

And if there was any question, the fighting between these two families definitely qualifies as a full-fledged feud. Over the last eight years, there have been about 100 (!) calls to the cops because of this family feud, 12 criminal cases filed, and now a civil suit - last month the Elliott clan sued the Cerneys to get some money to cover their legal costs in these various criminal cases.

Further Lessons in Internet Porn

internet porn.jpgSo, here’s the latest on Anna Nicole Smith: She’s still dead. But, the story is definitely in flux. Events are changing as we speak. But, the paternity of Anna Nicole’s child, Danielynn, is still up in the air. At this point, it’s been narrowed down to two seven men, including Zsa Zsa Gabor’s husband, Smith’s former bodyguard, Howard K. Stern, a Bahamian immigration official, Larry Birkhead, Anna’s deceased former husband, J. Howard Marshall (don’t ask), and some random guy that walked by her hotel room during …

You know what? I don’t care. I don’t care who the father is. I don’t care what was in this woman’s refrigerator the day she died. I don’t give a shit who she was shtupping or not shtupping and I don’t care who ends up with the massive fortune that is presumably attached to that infant daughter of hers. I don’t care if the media makes a joke of her life, nor do I care if the media continues to (stupidly) compare it to that of Marilyn Monroe. Moreover, I don’t care what the cause of death was – drug overdose, TrimSpa, choking on her own vomit, or tripping over her hairdryer and landing on her noggin after she heard the doorbell ring. I have even given up my own self-righteous anger toward the mainstream media, for bilking her death for all the advertising dollars it could muster, and the gossip blogs, for taking it for an extra 20,000 page views a day.

I. Don’t. Care.

But, if Anna Nicole was featured on a pornographic website viewed by Jeffrey Brian Ziegler, in his locked work office, well, that’s when I start to care. (It seems unlikely that Ziegler was looking at nudie pics of Smith, however; he was more interested in “very, very young girls in various states of undress.”)

Updating a case we discussed last August, the 9th Circuit Court of Appeals has now affirmed a ruling denying Ziegler’s suppression motion, concluding that he did not have an expectation of privacy in his workplace, after the IT dude in his office discovered, through random monitoring of his Internet activity, that Ziegler was performing Google searches for “preteen girls” and “underage girls.”

After determining that there was a search or seizure by the government, the [9th Circuit] found that although the government had no warrant for the search of Ziegler’s office and computer, [his employer] had the authority to consent to the search without Ziegler’s permission.

The company owned the premises and could validly consent to the search of Ziegler’s office, the panel said.

So, to recap: Anna Nicole, still dead. And you can get busted and imprisoned for checking out child porn at work.

The other Hilton sister done got herself sued

nicky.jpgSo, yeah, Nicky Hilton’s being sued by a Chicago development group. Seems that Hilton entered into a contract with this group last April. She agreed to promote a redevelopment project that was set to take place in downtown Chi-town, a project that goes by the name “Nicky O’s Chicago, a Nicky Hilton Hotel.” However, the lawsuit alleges that she has failed to actually promote the project.

The development group also alleges that Hilton agreed to perform certain interior design work but, instead, contracted the work out to others and then billed the developers for it. They also claim that she lied when she said that she and her partners had experience designing hotels.

Hilton’s media consultant says, of course, that Nicky’s actually the true victim: “When the facts surrounding the matter are known to the public I think you will find out that the person who has been most impacted by this action will be Nicky Hilton.”

Now look, we here at QuizLaw don’t particularly like Nicky Hilton. But we also don’t loathe her the way we do her overexposed sister. So given the choice, we’d always prefer that when a lawsuit is filed against a Hilton sister, it be filed against Paris. Just putting that out there for future reference.

Campbell’s Soup is Mmm Mmm Good


That is, of course, unless you’re the offspring of William Allen Cunningham, who pleaded guilty on Monday of tampering with his children’s soup so that he could extract money from the Campbell’s soup company.
Cunningham was charged with child cruelty charges and communicating false claims.

Cunningham’s 3-year-old son and 18-month-old daughter were hospitalized twice in January 2006 — the first time after eating soup laced with hot peppers and lighter fluid, and the second time with the prescription drugs Prozac and Amitriptyline. According to federal prosecutors, Cunningham called the soup company and threatened to sue.

Just when you think that overdosing your tykes on Benadryl so you could go out for a nightcap was the worst thing you could do as a parent, some guy comes along and one-ups you. Well, at least Cunningham’s kids weren’t depressed, following that second bowl of soup.

The Daily Memo - 2/13/07

check.jpgAbove the Law’s latest hotties contest is searching for the hottest law librarians. (Above the Law)

check.jpgYesterday, House Democrats stepped up to the plate of meaningless action, passing around a nonbinding resolution that would say, without any power behind it: “Hey Bush, we wag our fingers at your decision to send more troops to Iraq.” (CNN)

check.jpgGreat e-mail - simple and to the point. (WSJ Law Blog)

check.jpgWho knew that strippers had their own special expert witness? (St. Petersburg Times)

check.jpgA Vermont jury says you can ride your lawnmower three sheets to the wind! (Rutland Herald)

check.jpgA New York bills seeks to punish tired drivers. (Rochester Democrat and Chronicle)

check.jpgThe Electronic Frontier Foundation has sued the Department of Defense and the Army to get more information about the Army Web Risk Assessment Cell, a military unit that monitors web sites and raises flags over any “security concerns.” (ars technica)

Are they sure that’s not just the air from Jersey?

subway.jpgIn New York, a condominium board has filed a lawsuit against a Subway franchise. Folks in the condo are pissed off over the smell that comes from the neighboring Subway whenever it’s baking bread, alleging that the building is being “inundated with strong and nauseating food odors.” The Subway odor allegedly seeps into the building’s basement, lobby and stairwell, and reaches as far up as the 46th floor.

The franchise’s owner, Tae Hyun Shin, says he’s tried to work with the condo, but they haven’t given him enough time. For example, he offered to pay for any necessary dry-cleaning, and he also offered to install a $3,500 ventilation system to redirect the baking odor. And it sounds like Shin may be right, because check this out: the odor started two weeks ago, after the Subway opened. The lawsuit was filed on Friday, and on Saturday, the installation of the Subway ventilation system was finished - and according to a weekend attendant in the building, the smell has been gone since Saturday. Plus, a city inspector from the Department of Environmental Protection has been to the Subway, but no summons was issued.

But none of this has stopped the condo board from asking for over half-a-million dollars from the Subway franchise, which boggles owner Shin’s mind. An immigrant, he said, “I heard that America is a lawsuit country, but this is really….”

Yup. Welcome to America, Mr. Shin.

(Actually, Shin immigrated over 20 years ago, so he should consider himself lucky that it took over two decades to get himself sued.)

Scalia’s a huge dick

scaliaGesture.jpgLast night, author and GW professor Jeffrey Rosen was on “The Daily Show” to promote his new book, The Supreme Court - the Personalities and Rivalries that Defined America. At one point, Rosen and Jon Stewart discussed my main man, The Scalia, and I thought the discussion was worth sharing. I’d include a clip at the end of this post, but considering Viacom’s stance on YouTube clips these days (remember the cease-and-desist letter from last week, focusing on 100,000-plus clips?), I’m guessing any available clip would be yanked right fast. So here’s an excerpted transcript for you, edited merely for readability:

Stewart: For instance you talk a lot about the Rehnquist court, that there’s the pragmatist, which would’ve been Rehnquist, and the ideologue, which would be Scalia. How do the ideologues survive in that atmosphere of nine people, it has to be collegial? Is Scalia, is he liked at all? Do they think he’s an ass?
Rosen: Yes, they do.
Stewart: Like him?
Rosen: No, “like” would not be the word. Scalia has a knack for alienating even his ideological sympathizers. He railed against Sandra Day O’Conner - he said her opinions can’t be taken seriously. Understandably, she was a little upset. In the courtroom, one study found that he was the funniest justice, but always with a nasty edge. So a lawyer was looking through his papers, and Scalia said, “when you find it, say ‘Bingo.’”
Stewart: I like that…I like that.
Rosen: And he’s also famous, he sits in his chambers, he writes his opinions, looks around and says “what’s a smart guy like me doing in a place like this?” So he’s not—
Stewart: Oh my god, Scalia’s a huge dick. Is that true?
[Much laughter]
Stewart: Here’s something else I heard. We always talk about Scalia is sort of the ideological master and Thomas kind of sidles up. But they say that Thomas’ appearance on the court really was the decisive factor, and that it’s his opinions that Scalia has somewhat glommed onto. That we have it kind of backwards.
Rosen: He did. And Thomas is definitely underrated in the public imagination. As you say, Thomas did bring Scalia around on some questions. But Thomas is more extreme than Scalia. Scalia actually told Thomas’ biographer, “the difference between me and him is he’ll overturn any opinion he thinks is wrong. I, Scalia, wouldn’t do this.”
Stewart: He refers to himself as Scalia?
Rosen: You know, he actually does. He was describing his flag-burning opinion, and he was saying “Scalia allows people to burn flags….” He said, “my wife is a very conservative person, but she said, ‘Scalia, why did you allow people to burn flags?’”
Stewart: I love the fact that he has the similar linguistic potential as, let’s say, a high school athlete who jumped to the NBA. I think that’s exciting.

It’s like that episode of “Seinfeld” when George started referring to himself in the third-person. “George is getting upset!” They even look similar, with the glasses and the balding and the fatness.


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Representative Dan Burton can suck a nut…if he bothers to show up

danBurton.jpgDan Burton is a Republican representative from Indianapolis. And he’s a son of bitch.

Last month he decided to play in a Palm Springs golf tournament and, as a result, missed 19 House votes. Nineteen. That’s over 25% of the total votes held last month, by the way. And he also missed hearings on Iran and North Korea. So, you know, at least he didn’t miss anything important.

The son of a bitch appeared on a local conservative radio station to apologize and explain himself. His excuse was that he made reservations to play in the tournament back when the Republicans still controlled the House, and he just didn’t think the Dems would schedule votes so early in January. “I probably made a mistake.”

Son of a bitch.

And the Indy Star concludes its article with this fun little state:

A review of House votes for the past decade shows the Indianapolis Republican has been absent every year votes coincided with the tournament: 2007, 2005, 2004, 2003 and 2001.

Which means Burton is a lying son of a bitch - if this wasn’t the first time he’s missed votes because of this tournament, could he really have been that surprised?

Ladies and gentlemen, your tax dollars hard at work as ever!

Up up down down left right left right B A cross-examination!

aceAttorney.jpgOk, this boggles my mind - I just found out about a new game for the Nintendo DS which came out last month (came out stateside, at least, as I gather it had already been out in Japan). And this game is a sequel, meaning the first one did well enough to warrant a follow-up. And that original game? Phoenix Wright: Ace Attorney.

It’s a heavily text-driven game where you get to play a new attorney taking on several different murder cases, trying to defend your innocent client and bring the actual murderer to justice. As summed up by the Gamespot review: “it’s Phoenix’s job to get a verdict of ‘not guilty,’ despite the lying witnesses, shady prosecutors, and a judge who sometimes forgets the letter of the law.”


So now, Phoenix Wright is back, baby! It’s Phoenix Wright: Ace Attorney Justice for All. While Gamespot loved the first one, giving it an 8.8 out of 10, the sequel only garners a 7.7 because “it’s hard not to feel as if it’s a step backward for the series.” Which is shame really, because I worry for the youth of our nation if the game companies can’t innovate some new and fresh lawyer games.

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Oh, It’s a Ladies Night – Oh What a Night!

ladiesnight.jpgLast month, Steve Horner — an anti-feminist asshole in Colorado — won a battle against a nightclub, Proof’s, when the Division of Civil Rights for the Department of Regulatory Agencies agreed that men were unfairly discriminated against with the hot spot’s Ladies’ Night special.

“Ladies Night is now illegal,’’ said Horner, a 59-year-old corporate speaker, who says he’s been on an anti-feminist crusade since his wife left him with two young children several years ago and he regularly encountered discrimination against men.

Horner vowed to catch any club owners who continue to offer women special deals.

“This is now a violation of law. I will now make it a point to visit as many ladies nights as I can every week. I’ll have my rights violated, then I’ll sue them in county court and collect my $500 (each time),’’ Horner said. “I feel it could net me $3,000 to $4,000 a week easy and I’m going to do it. It takes me five minutes to be discriminated against.”

This is not Horner’s first success, either. He has shut down Ladies Nights in three other states: Minnesota, Idaho, and Oregon. Though, in all three states, the practice re-emerged.

Last week, the good folks on Jon Stewart’s Daily Show covered the lawsuit, with the in-depth, hard-hitting report, “Sexual Stealing” (hat tip to Overlawyered):

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Somebody Takes Miss Manners a Little Too Seriously

manners.jpgBack in my college days, I had a friend who was all about good manners. He insisted upon them. In fact, one night, this friend allowed a driver to cut in front of him in a long line of traffic. The problem, however, was that the other driver didn’t proffer the requisite thank-you wave. And that’s not cool in the South. So, my friend followed that other car around for nearly an hour, from a safe two-inch distance, until the driver lost his shit and drove us by the police station.

Of course, foregoing the thank-you wave is not as bad as bumping into someone in a Target and refusing to apologize. That’s just not right, even if it is just an accident. Which is why a 10-year-old Massachusetts girl took extreme umbrage and kicked the holy living hell out of the 22-year-old who refused to apologize. She and two other girls knocked that bitch to the floor, ripped out her hair, took off her pants and kicked the woman in the head and stomach. ‘Cause 10-year-olds don’t take shit from young adults with bad manners.

Of course, the police didn’t understand that. They arrested the 10-year-old girl and charged her with assault and battery with a dangerous weapon, the dangerous weapon being the 10-year-old leg she used to kick with.

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The Daily Memo - 2/12/07

check.jpgAnna Nicole’s death just makes the legal waters surrounding her inheritance and daughter muddier. (Law.com and CNN)

check.jpgA popular alternative to regular jail in Wisconsin is “day reporting,” where folks have to show up to jail every day for five minutes. (JS Online)

check.jpgA New York woman has been charged with assault for attacking another woman with a paper shredder. (The Post Star)

check.jpgBanning folks from drinking their morning coffee while driving? That’s just madness. (CBS News)

check.jpgYou can take the man out of “Harvard Law Review,” but it would seem you can’t take the “Harvard Law Review” out of the man. (Concurring Opinions)

check.jpgA judge has ruled that James Brown’s lady friend (who may or may not be his legal fourth wife) should be allowed into Brown’s house to get her things. (CNN)

check.jpgA bodybuilder suing Pat Robertson for misappropriation of his image claims that Robertson threatened “to kill you and your family.” (Guardian Unlimited)

check.jpgAn attorney’s been sent to the clink for six months after admitting that he forged a bankruptcy judge’s signature. (The Legal Reader)

Mediate, alleviate, try not to hate, love your mate, suffocate, on your own hate…

mediate.jpgAlternative dispute resolution, commonly referred to as ADR (lawyers love abbreviations, I’ll tell you what), basically refers to mediation and arbitration - that is, alternate ways to get a legal brouhaha resolved without going through all the time and expense of full-blown litigation. And Florida attorney Robert Walker is a well known attorney who’s also a certified civil mediator. That means folks can have him help mediate their dispute, sorta’ acting like a King Solomon, trying to figure out how the parties can throw away the bathwater but not the baby (or some other terrible metaphor of your choosing).

Anyway, point being - Walker either needs a refresher course on mediation tactics, or he’s planning to start a whole new school of thought on the mediation process.

A little while back there was this thing called the Super Bowl - you may have heard. And some of Walker’s neighbors were having this thing called a Super Bowl party, which I guess was getting a little too loud for Walker. So he did what any rational and level-headed mediator would do - grabbed his gun and went marching on over to the neighbor’s house. He claims that his plan was simply to fire off a round into the ground, as a warning shot.

But as he approached the house, two guests were coming out, and he decided to point the gun at them. One of the exiting people managed to push the gun away, and then tried to wrestle it out of Walker’s hand. Which is when it fired. Luckily, nobody was hit, but that was enough to get Walker a reserved spot in the clink, and some charges of attempted murder and using a gun while drunk.

The whole time I was reading and thinking about this story, my brain kept cutting to the classic INXS video, which I now share with you to help pass this Monday Morning - enjoy:

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How many licks does it take to get to the center of stupidity?

tootsie.jpgIn the town of Abington, Massachusetts, the town clerk is a friendly sort. The kind of lady who keeps a candy jar on her desk, so that fellow employees and guests can have a little something for their sweet tooth while dealing with the often-sour world of town politics. Well, one local resident is less-than-pleased with this whole candy bowl thing.

Joanne Harding had gone into the clerk’s office to get a license for her dog. And while she was in there, she noticed that little candy jar, full at the time with Tootsie Rolls. And the candy called out to her, like a shiny red button you’re told not to push. “I took the candy, so it’s partially my fault,” Harding admits. But, of course, “I wouldn’t have taken it if it wasn’t there.” What, you ask, is she talking about?

Turns out Ms. Harding fractured her tooth on the Tootsie Roll which the clerk’s office tempted her into. And so she’s billed the town to help pay for her dentist bill (which is expected to be $4,000-$5,000). Because, remember, she wouldn’t have eaten the candy if it wasn’t there.

The town has passed the bill on to its insurance carried, and I’m sure the insurance company will just leap at the chance to cut Harding a big fat check. Because the town really should know better than to tempt fate by leaving out a bowl of candy!

…for fuck’s sake.

Yeah, but what about breathing Jersey’s “natural” air?

AC.jpgA new law has passed in New Jersey which bans smoking in many parts of Atlantic City casinos. As of April 15, folks will only be able to smoke in about one quarter of any casino’s gaming floor. This was a compromise bill reached after the casinos went ape-shit over a proposed bill banning all smoking in casinos (which was intended to follow-up on Jersey’s recent ban on smoking in restaurants and bars, which explicitly exempted casinos).

Now, I can totally appreciate the folks who don’t want to inhale smoke while addictively gambling away their life earnings, or who don’t want to breathe dirty air while serving drinks to folks which help said folks addictively gamble away their life earnings. I can. But smoking is just part of the gambling environment. I mean, without a smoky cloud, dealers and cocktail waitresses might be able to see into the eyes of the poor downtrodden folks gambling away their life earnings, and they may not like the sadness and desperation they see.

…Man, I’m so due for another Vegas trip.

The Daily Memo - 2/9/07

check.jpgWhen Keiths attack. (WSJ Law Blog)

check.jpgA lawsuit has been filed against the government and the Army Corps of Engineers over the breach of New Orleans’ 17th Street Canal. (FindLaw)

check.jpgA night of casual drinking leads to a man driving his Ford Taurus naked and being chased down by the cops. (The News-Press)

check.jpgThe Borat producers are tying to get one of the cases against them dismissed by making a stretch argument under California’s anti-SLAPP statute, a law intended “to discourage lawsuits that attempt to silence legitimate speech on matters of public concern.” (WSJ Law Blog)

check.jpgA New York state senator wants to ban folks from listening to their iPods while crossing the street. (FindLaw)

Alberto Gonzales is despicable

gonzales.jpgThis is a story that I haven’t previously heard about, and it’s yet another depressing example of the Bush Administration clearly overstepping its bounds “in a secretive attempt to expand executive power for partisan purposes.”

As Joe Conason at Salon reports it, a secret little provision was slipped into the 2005 renewal of the Patriot Act which changed the way interim U.S. attorney’s are appointed. Because U.S. attorneys, among other things, have to police politicians themselves, a non-partisan system has been in place to “ensure that no U.S. attorney could be fired on a whim and replaced with a malleable hack.” Whenever a new President comes into office, there is often a pretty big changing-of-the-guard as far as U.S. attorneys go. And while the President appoints them, and typically appoints members of the same party, it’s not an entirely arbitrary process - “the U.S. attorneys are usually chosen with the advice and consent of the senators from their home states, and then confirmed by the full Senate.”

So there’s Senate oversight of the process. This is important to remember.

Now, there are of course vacancies that occur mid-term. And under the old system, when such a mid-term vacancy pops up, the law said that a replacement U.S. attorney would be appointed by federal circuit judges, instead of the President (the idea being that “[g]etting rid of irksomely honest and nonpartisan prosecutors was difficult if not impossible”).

But not any more. Under this new provision, snuck into the Patriot Act, the White House gets to pick the replacement U.S. attorneys, permanently appointing them without any confirmation or oversight by the Senate. And things have played out, since the enactment of this little sleight-of-hand, exactly as one would suspect from this administration:

The results of this backstage betrayal — now playing out in a wave of politicized dismissals and hirings — were perfectly predictable and utterly poisonous.
Carol Lam, the U.S. attorney in San Diego who successfully prosecuted the sensationally crooked Republican Rep. Randy “Duke” Cunningham, was fired for no known reason while she is still pursuing important leads in that historic case. Cunningham is supposed to be cooperating, but if Bush replaces her with a partisan stooge, he may be able to keep his secrets. Bud Cummings, the respected U.S. attorney in Little Rock, Ark., was canned to make room for a Republican opposition research operative and Karl Rove acolyte named Timothy Griffin. Could that conceivably have anything to do with Sen. Hillary Rodham Clinton’s presidential candidacy? Paul Charlton, the U.S. attorney in Arizona, was thrown out while investigating allegations of corruption against Republican Rep. Rick Renzi.
And John McKay, the U.S. attorney in Seattle whose diligence has been praised by judges and lawyers of both parties, was simply ordered to quit last December, for no obvious reason. Although McKay’s last evaluation by the Justice Department was excellent, the attorney general insists that all of these curious firings were due to “performance” issues.

I shouldn’t be surprised, because as I said at the top, this is simply the latest in a long line of such shenanigans from this administration, but when are people going to start paying attention to this crap? Sure, the Senate Judiciary Committee has now “voted to restore the old nonpartisan system for replacing U.S. attorneys and to require Senate confirmation of all new appointees,” but where’s the investigation of yet another Bush Administration attempt to flagrantly ignore the law of our land? An attempt made by Alberto Gonzales, the Attorney General, who is, you know, supposed to be one of the few folks in Washington who actually pays attention to and respects the law. As Conason says:

The Senate Democrats should continue to prove the attorney general’s little coup d’etat and all of the resulting appointments. That is the best way to discourage future usurpations - and to frustrate whatever skullduggery was afoot this time.

Am I the only one who thinks that, sadly, Conason will be holding his breath for quite some time on this one?

This defendant will think a court “recess” is something else entirely

firealarm.jpgOn May 15, there’s a trial set to start in Texas against Casey Harmeier, who faces a felony charge of attempting to set off a false fire alarm. The thing of it is, Casey Harmeier is a 10-year-old kid.

Casey is known as a good student who has never been in trouble and who has even received a “citizen-of-the-month award” from his school. But one day, he accidentally brushed up against a fire alarm, and knocked the protective cover ajar. Another kid dared him to pull the cover off, and being a kid, he did it. This then set off a local alarm. Casey didn’t know it would do this and, in fact, even his teacher and principal didn’t know that pulling off the cover would set off any alarm. A staff member then tried to get the local alarm to shut up, and accidentally set off the full-fledged fire alarm.

Casey, meanwhile, was sent to the principal’s office, where he was hit with a punishment of being sent to an “alternative school” for three weeks (and the kid who dared him was suspended). Then, the principal called the cops, who arrested Casey and charged him with a felony. Casey’s parents weren’t notified about any of this until four hours later (!).

While the prosecutor knows about all these facts, she decided not to drop the charges because “I think the evidence will show he was attempting to do it.” Which comes as no surprise, what with this being Texas and all.

I wonder if the prosecutor plans to seek the death penalty. After all, this 10-year-old clearly needs to be stopped before he strikes again!

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An Afternoon Diversion

Because I just couldn’t bring myself to discuss anything really law related this afternoon, I bring you a scene from “My Name is Earl,” which is (tenuously) law-related.

Sample line: “Darnell: There’s no way in hell I want a woman to represent me. Nobody pays attention to a woman unless she’s on their lap with two-minutes left in the damn song.”

And, here you go: Imus scolding Chris Matthews for inadvertently using a profanity on his show.

Cause you had a bad grade / taking one down / you file a lawsuit just to turn it around

badgrade.jpgAnother week, another jaded student. A 50-year-old undergraduate, Brian Marquis, is suing the University of Massachusetts this week because his teaching assistant changed his philosophy grade from an A- to a C. Marquis is upset because the new grade will ruin his chances at getting into a good law school.

According to the report, Marquis originally earned a 92 percent, but his teaching assistant redrew the grading curve to make the grade distribution more fair, which resulted in an 84 percent — a C in the class.

“Quite frankly, I find this utterly unacceptable,” Marquis, who worked as a legal assistant before returning to college, remarked. In response to his initial complaint, the teaching assistant urged Marquis, in an email, “to accept this grade and continue on with your course work as there were no grounds for an academic grievance.” But Marquis chose to decline the invitation to move on.

Marquis is charging the university with 15 counts, including Violation of First Amendment, Breach of Contract and Intentional Infliction of Emotional Distress. According to the complaint’s “Entitlement To Relief,” Marquis is seeking monetary, retroactive, and prospective relief. He is also trying to get his grade changed to an A-, along with seven other objectives.

Well, if the C was going to keep him out of a decent law school, maybe filing a lawsuit will help his cause. Of course, once he gets in, he’s going to have to get used to this sort of grading system. After all, law school is the only academic venture one can engage in where a B+ (which is what a 92 would have gained him at most law schools) is actually a mediocre grade. Take it from someone who is all too familiar with that grade.

But then, of course, law school profs have a novel approach to grading final exams.

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The Daily Memo - 2/8/07

check.jpgIs it rape if a woman initially consents to sex but then says “no” or “stop” during the act, and the man doesn’t? (Time)

check.jpgMakes sense - if somebody shoots me outside of a McDonald’s, of course I wouldn’t sue the guy who shot me, but the McDonald’s itself. (St. Petersburg Times)

check.jpgJerry Garcia’s widow has filed a lawsuit to get access to some unheard Garcia performances. (LawInfo)

check.jpgAn Illinois man has been accused of unlawfully restraining and fondling a cable TV saleswoman who stopped by his apartment. (KSDK)

check.jpgIs the National Arbitration Forum a collection of “miserable, Godless bloodsucking banks and other professional litigants?” (The Legal Reader)

check.jpgThe court martial of an Army lieutenant who refused to go to Iraq has been declared a mistrial because the soldier didn’t understand a signed admission. (FindLaw)

check.jpgAlito has no idea why the Supremes’ docket is about half as big as it was 20 years ago. (WSJ Law Blog)

Peyton Manning is a whiny bitch

peyton3.jpgLast week, a Decatur, Illinois man was getting all worked up over the impending Super Bowl. Scotte Wiese is a die-hard Bears fan, see, and he was convinced his boys were going to bring home the Lombardi Trophy. In fact, he was so behind his team that he said, should the Colts defeat da’ Bears, he would have his name legally changed to Peyton Manning.

I don’t need to tell you how things at the Super Bowl turned out.

So on Tuesday, Wiese took his official name-changing papers over to the Macon County Courts Facility and had them filed. Now he just has to wait for judicial approval and he’ll be Scotte Wiese no more.

Of course, this will all leave the soon-to-be-former-Weise in a bit of a pickle. I mean, when folks talk about what a whiny bitch Peyton is (and people will continue to say this because he is, after all, a total whiny bitch), Weise will be inclined to agree. But that means he’ll essentially be calling himself a whiny bitch. It’s like a modern day “why do you keep hitting yourself.” (But does this guy have a ‘laser, rocket arm.’ — Dustin)

Reason number 147 that lawyers shouldn’t marry each other

lawyersDoIt.jpgMary and Ted Roberts are a happily married couple, lawyers both. Now some might argue that they can’t be that happily married, since Mary had four little dalliances in late-2001/early-2002. But the state of Texas says that these weren’t dalliances so much as profit opportunities.

During a six-month period, Mary met and diddled four men (she found at least one of them online). Ted then approached each of the men, post-diddling, and said he would sue them for emotional distress if they didn’t pay him. In total, the Roberts couple managed to extract $144,000 from these men.

In 2005, the couple was indicted for theft, and then re-indicted for the same charges in 2006, and their trial is now set to start next week. The state contends that the couple used deception and coercion to steal the money from these four philanderers, as Ted told the men he’d expose their dalliances if they didn’t pay, opening them up to ridicule and scorn (not to mention a bit of trouble with their own wives). The Roberts’ lawyer says that this wasn’t any capitalism scheme at all. Instead, Ted “was incensed” every time he found out about a new affair, but instead of going and beating the shit out of the guys, he served them with a demand letter (a precursor to a lawsuit), and the guys chose to settle-up so their wives wouldn’t find out.

Believe it or not, there is actually at least a little something to this argument, since this is basically the procedure that happens before many a civil litigation. But something tells me the Roberts aren’t going to be so successful with their argument and that they’ll get to spend the next 20 years in the clink. Which should afford them plenty of time to come up with their next money making scheme.

It’s so sweet when married couples go into business together, ain’t it?

Crazy is as Crazy Does

abdul.jpgTMZ.com has learned that “American Idol” judge and drunken fucktard Paula Abdul has been sued by the production company responsible for producing a show based on her life. Apparently, Pilgrim Films and Television met with Paula in 2004 to discuss a talk show, hosted by Paula, which eventually led to a reality show, “Hey Paula.”

The project, however, fell apart when Paula asked for final editorial control; presumably, she’d wanted to edit out the drunken pratfalls, the accidental upskirts, and the lap dances with Brazilian men. PFT tried to sell the show to Oxygen, nevertheless, but Paula came around and attempted to sell all of the footage to Bravo!, which then announced the show would debut on the network later this year.

The lawsuit asks for comp and punitive damages. Paula, however, maintains that the suit is baseless, remarking “‘Hey Paula’ is based upon my life and my ideas. Last I heard, I still own my own life.” Not to take issue with that characterization, but judging by the interviews she gave last month, the muscle relaxers and the cosmopolitans have owned her life for quite some time.

Take One Down, Pass it Around …

drunkkids.jpgThe cool thing about posting stories about stupid, anonymous people whose 15 seconds of fame comes via a dumbass arrest is that (or so I like to think) these people come home after a night in the clink and Google themselves, just to see what the world is saying about them. I know it’s a silly thing to assume that most idiot criminals have laptops and wireless access, but it’s fun to imagine.

So, Jeremy Knight and Nicole Rodriquez, you have officially joined the ranks of douchebag parents. Sure, you aren’t as bad as the folks who duct taped their kids while they spent a night out on the town, or the guy who stuck a kid in the dryer for pissing his pants, but — as parents — you ain’t winning no awards, either.

What possessed the two of you to load your tykes up with Benadryl, so that you could spend the evening drinking it up at the local tavern? Is that really model parenting? It’s not enough that you left your kids alone all night, as you downed shots of Jager at Saints and Sinners, but did you really need to drug your children? With Benadryl?

At the very least, you could’ve gone the route of my own parents, who offered up a nice whiskey/sugar cocktail, which went down my eight-year-old gullet warm and smooth. I still don’t know what my folks were doing while I was drunkenly singing 99 bottles of beer, but they probably weren’t having nearly as much fun as I was.

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The Daily Memo - 2/7/07

check.jpgJustice O’Connor says she wanted to stay a Supreme but that Rehnquist essentially pushed her out. (WSJ Law Blog)

check.jpgConnecticut’s Attorney General wants proof from Coke and Nestle that their claims about a new drink (that it can burn calories just by being drunk) aren’t “voodoo nutrition.” (Chicago Sun-Times)

check.jpgEegads - a nutjob has been arrested and accused with sending a package to his ex-girlfriend…a package with a love note and the severed head of a poor little kitten. (Post-Gazette)

check.jpgTurns out states aren’t a fan of the whole national driver’s license idea. (FindLaw)

check.jpgCharges against a man who allegedly deposited pot with a bank are to be dropped because the bank teller gave the dude back his weed and he, in all likelihood, you know, smoked the evidence. (Iowa City Press-Citizen)

check.jpgOf feminism and Supreme females. (Slate)

check.jpgThe Ninth Circuit says the class-action lawsuit against Wal-Mart by female employees shall continue. (FindLaw)

check.jpgA Missouri legislator wants to force all ninth-graders to take prison tours, to scare them out of a life of crime. (Columbia Tribune)

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An alert to those lawyers who read us - you might be able to get some free cash

barbri.jpgWell I know lawyers love money, so I’m sure that headline got your attention. When you were studying for the bar exam, did you spend an arm and a leg for a Bar/Bri course? If you did, you might be entitled to get back a piece of that arm and a leg.

Specifically, if you were enrolled with them between 1997 and 2006, you’re entitled to $125. This is part of a settlement for a class-action lawsuit (Bar/Bri was being sued for allegedly monopoly violations). Instruction on how to claim your $125 are expected to show up here soon.

(Hat tip to Above the Law)

Lock up your children!

dbaldwin.jpgDaniel Baldwin, of the acting Baldwin family, is a full-fledged fugitive of justice. Yesterday morning, he was supposed to appear in a Newport Beach courtroom to be arraigned on felony charges for unlawfully taking a car and receiving stolen property (he got busted driving in a stolen Yukon last November). When Baldwin failed to show up, the court issued a $25,000 bench warrant for his arrest.

If convicted of the underlying charges, Baldwin could be thrown in the clink for up to three years. One might think this would be a serious detriment to his acting career, but a quick look at his IMDB resume shows that this isn’t really a concern. Although I guess it could be tough to make a sequel to The Beach Party at the Threshold of Hell without him. Our loss, I suppose.

Hollywood Endorsements 101, brought to you by The Learning Annex

charlize1.jpgCharlize Theron has gotten herself sued, in an “only in Hollywood” type matter, by Raymond Weil, a Swiss watchmaker. According to the lawsuit, Theron entered into an exclusive endorsement deal which said that between October ‘05 and December ‘06 she would only wear Weil’s high-end luxury watches. However, Weil alleges that Theron failed to live up to the terms of this agreement.

For example, with the legal papers Weil’s attorneys submitted a photograph from a March 2006 press conference in Texas, where Theron can be seen wearing a Christian Dior watch. Weil also claims that she appeared in a charity ad with non-Weil jewelry, in violation of their agreement. While an amount for damages has not been specified, Weil’s attorney says over $20 mil has been spent on the Theron campaign, so they’re probably going to be seeking a pretty big pile of coins.

Charlize hasn’t issued a statement on the matter yet, but you gotta’ figure one is forthcoming. Unless she decides to re-embody her Oscar-winning Monster character, Aileen Wournos, and simply murder Weil. But we’re guessing she won’t go that route.


So Crazy it might just be Genius

marriedwchildren.jpgAdvocates of same-sex marriage in the state of Washington — tired of the ‘old marriage is just for breeders’ argument — have proposed a new law, which just might be crazy enough to work:

Proponents of same-sex marriage have introduced a ballot measure that would require heterosexual couples to have a child within three years or have their marriages annulled … the measure would require couples to prove they can have children to get a marriage license. Couples who do not have children within three years could have their marriages annulled.

The Washington Defense of Marriage Alliance in Washington conceded that the bill, on its face, is “absurd,” but hopes that it might provoke discussion. And who knows, maybe the state House will play their game of brinksmanship and push it through, just to prevent gays from achieving the right to marry.

But what the Washington Defense of Marriage Alliance should’ve done was to propose a law that would’ve annulled all marriages if the couple weren’t still having sex after three years. Now, that’s the way to kill a few hundred thousand marriages.

Well, That All Depends

nowak.jpgYou’d think that one of the few places absent of psycho-crazy lovers would be NASA, but man alive, would you be wrong.

Indeed, Navy Capt. Lisa Marie Nowak, a mission specialist on board the space shuttle Discovery, was arrested for battery and attempted kidnapping charges on Monday. Turns out, Lisa Marie and an engineer, Colleen Shipman, were in love with the same Naval commander. So, Nowak drove from Houston to Miami to confront Shipman about her relationship with him; Shipman had gone the same route via a commercial airline.

Once Shipman reached her car in the Miami airport parking lot, Nowak was waiting for her. Shipman, scared for her life because a crazy woman in a trench coat was waiting for her, jumped into her automobile. When Nowak started crying, Shipman rolled down her window about two inches and Nowak pepper sprayed her.

Shipman then drove to a toll booth and notified police, who tracked Nowak down, and discovered in her possession a BB pistol, a steel mallet, a folding knife, rubber tubing, adult diapers that Nowak used to eliminate stops on her drive, a letter indicating how much she loved the Na …. Whoah! Back up, here. Diapers! This woman was in such a hurry to assault her romantic competitor that she decided to forego bathroom stops on a drive from Houston to Miami? She just shit her pants?

Oh, lord. No wonder she was wearing a trench coat – to hide the load in her drawers, I’d imagine. Nowak claims that she had no intention of harming anyone. But, still, you gotta wonder what a woman wearing adult diapers and carrying around a steel mallet had in mind. I’m guessing it wasn’t a polite game of footsie.

Update: Nowak is now facing attempted first-degree murder charges. I wonder if the plan was to perform a little fecal asphyxiation with the contents of her diaper.

The Daily Memo - 2/6/07

check.jpgA Texas legislator has filed a new bill which would hit parents with a $500 fine if they miss a meeting with their kid’s teacher. (CNN)

check.jpgFox has sent out a cease-and-desist order to a guy doing a one man show called Swiss Family Guy Robinson. (TV Squad)

check.jpgMichigan lawmakers want a Tony Dungy Day. (SI)

check.jpgThe Second Circuit has ruled that New York City can’t ban the sale of spray paint and broad-tipped markers to youngins, in an attempt to decrease graffiti, because it violates the First Amendment. (WCBS TV)

check.jpgA California county clerk is protesting the fact that she can’t give out marriage licenses to gay couples by issuing Certificates of Inequality. (WFRV)

check.jpgSouthern California whores in the House of Representatives? (LAist)

check.jpg“Apple Inc. and Apple Corp. finally hug it out.” (Gizmodo)

check.jpgDog the bounty hunter’s getting sued by a woman who claims he injured her while he was going after her boyfriend. (TV Squad)

Piss off Penn law students and they’ll shoot your shit up

penn.jpgJoseph Cho, a 31-year-old Yale grad, has been arrested and is facing a stack of charges, including aggravated assault, reckless endangerment, trespassing and vandalism. Cho, a law student at Penn, went to the apartment of his neighbors, two Indian lads who are bio-engineering students at Drexel (a school right next door to Penn). He suspected that they were terrorists, and started banging on their door. When they didn’t answer, he pulled out his Glock and started shooting into the door lock (at least the gun was legally owned). He was arrested shortly thereafter.

Cho’s lawyer says that the attack “appears to have been a mental health or emotional issue.” You think?

Penn has suspended Cho, sending the matter to the school’s Committee on Student Conduct and Responsibility.

The moral of this story? While “I’m in Harvard law school” could be a sign that the speaker is an egotistical asshat, it beats “I’m in Penn Law,” which could be a sign that you’re about to get shot!


profanity.jpgThe website ParisExposed.com has been ordered by a judge to stop selling Paris Hilton’s stuff. This stems from the story we told you about last week, which I’m sure you heard 1,000 other places as well.

The important question now is, when will a court order Paris Hilton to stop. Just stop. Go away, take her over-exposed labia, and leave us all bloody well alone.

Well I say “god damn!”

profanity.jpgBack in 2002, Thomas Leonard and his wife were involved in a lawsuit with Montrose Township over allegations that the township was cheating them out of money owed under a towing contract. Leonard went to a public meeting held by the township and he got up and reiterated his cheating accusations, punctuating them by stating “that’s why you’re in a goddamn lawsuit.” A board member was a bit tweaked by this nasty use of the lord’s name, and Leonard ended up getting himself arrested. Leonard was charged with disorderly conduct and the use of obscene language, and although the charges were dropped a month later, he sued the township for $25,000, for violating his Constitutional rights.

In 2005, the District Court threw his case out, finding that the cop had probable cause to make the arrest, but the Sixth Circuit Court of Appeals has now said the District Court was wrong and that the arrest did violate Leonard’s right to free speech. Leonard’s attorney had argued that: “All our client did was get up at a public meeting and express himself vigorously, and he was arrested for it.” The Sixth Circuit agreed:

It cannot be seriously contended that any reasonable peace officer, or citizen, for that matter, would believe that mild profanity while peacefully advocating a political position could constitute a criminal act.

This ruling is a boon for someone like me, who has an absolutely terrible trucker’s mouth. I’m pleased as a pig in shit to know that “mild profanity” can be used while advocating my position. Now, if we can just get that bumped up from “mild profanity” to “all profanity,” I’ll be fucking home free.

Love Means Never Having to Say You’re Sorry

ryanoneal.jpgActor Ryan O’Neal, famous for his one episode arc on “Leave it to Beaver” brief movie-stardom in the 1970s — which included stealing Lee Majors’ wife, Farah Fawcett, and accidentally killing Francis Ford Coppola’s son in 1986 — was arrested over the weekend for threatening his own son with a gun.

The specifics of the story are sketchy, but as O’Neal recounts it, he arrived home on Saturday night after celebrating Fawcett’s 60th birthday only to discover his son, Griffin, was visiting. Allegedly, Griffin (who has a history of drug and alcohol abuse, and who wouldn’t in his circumstances?) got angry and started swinging a fireplace poker at his father, accidentally hitting his own pregnant wife in the head.

According to O’Neal, he got nervous, fled to his room and got a gun. When his son came barreling after him with the poker, O’Neal fired his gun into the banister (either that, or O’Neal was just drunk and missed). Either way, Griffin got the hell out, and now O’Neal is facing charges of assault with a deadly weapon and negligent discharge. He was released on a $50,000 bond. There is no record of what provoked Griffin to start swinging the fireplace poker, but his girlfriend was treated for minor injuries.

It is not, however, the first time that O’Neal and his son have come to blows; in 1982, O’Neal knocked out a few of Griffin’s teeth during a dispute. On this occasion, O’Neal claims he was acting in self-defense.

Still, you have to admire O’Neal’s direct approach here; instead of finding another fireplace poker and engaging in a bit of poker fencing, he got right down to business. And really, what says you love your son more than a warning shot from a pistol?

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The Daily Memo - 2/5/07

check.jpgA North Carolina bill looks to require photo processors to notify the authorities if they find kiddy porn shots. (WRAL)

check.jpgBam Margera’s uncle, Don Vito, and his lazy eye are heading to trial for his alleged groping of three little girls. (Defamer)

check.jpgViacom is ticked off at YouTube again, demanding that 100,000 clips of shows from its various networks be pulled from the site. (TV Squad)

check.jpgA House panel from the House Judiciary Committee will look into whether Bush has abused the presidential signing statements, using them to conduct “an imperial presidency.” (McClatchy Washington)

check.jpgColorado lawmakers are unhappy with new a new ethics law, and one poor lawmaker sometimes eats a bowl of cereal for dinner because he’s afraid it would be an ethical violation to eat sandwiches and hors d’oeuvres at get-togethers. (The Denver Channel)

check.jpgA woman is suing her son’s school, blaming them for the 9-year-old’s death when he choked on a corn dog during lunch. (South Bend Tribune)

check.jpgKorey Stringer’s widow has been told by a federal judge that she can proceed in her lawsuit against the NFL over her husband’s 2001 death. (ESPN)

check.jpgA court has thrown out an age and sex discrimination suit brought against the stupidly named Los Angeles Angels of Anaheim, stemming from a Mother’s Day promotion when only women were given a free gift. (Overlawered)

Chewbacca…what a wookie!

chewie.jpgThere is something seriously whack going on out there - pop culture is rising up and causing trouble in cities across the nation. First, my current home of Boston was held hostage by “Aqua Teen Hunger Force.” Now, my former home of Los Angeles had its own pop-culture uprising, this time in the form of Chewbacca.

Last week, Frederick Evan Young was arrested in Hollywood, outside of Graumann’s Chinese Theater. Young hangs out in a Chewie get-up, as one of the costumed monkeys trying to get tips for posing for tourist photos. There have been problems with these costumed nuts harassing the tourists, so L.A. recently passed new laws trying to crack down on this behavior. Anyway, a tour guide saw Chewie bugging two tourists, allegedly “harassing and touching” them, in violation of this law. So the guide told Chewie to back off. This led to an argument, which eventually caught the attention of the theater’s security. Security walked Chewie off the theater property, and that’s when Chewbacca let out his inner wookie and headbutted (!) a security guard.

So that’s when Chewie got himself arrested, and Young now faces a misdemeanor battery charge. Turns out, even if you’re a wookie, it’s still kind of illegal to headbutt folks.

The best part of this story, aside from the fact that it gives me an excuse to link to a video using the Supernova song “Chewbacca,” is this: When the tour guide originally approached Chewie and told him to chill out, his response was, “nobody tells this wookie what to do.”

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Well, I Guess We Know Who the Lord Won’t be Rooting for on Sunday

peyton2.jpgSince the Super Bowl is this Sunday (Go Colts! Seriously. Go! Or I’m done with you), why not introduce a Super Bowl related legal story: See, the term “Super Bowl” is protected by the NFL. And the NFL is so hellbent in protecting that mark that the league recently nixed plans by a Baptist congregation in Indy to host a Super Bowl party at its church.

So, the church decided to play nice, saying that it wouldn’t charge admission and that it wouldn’t use the sacred-yet-forbidden words Super Bowl. That ought to do it, right?

Nope. That wasn’t good enough for the NFL. Why? Because the NFL says it’s illegal, and against the league’s policy, to show the Super Bowl to a crowd of people on any television set or projector screen bigger than 55 inches unless it is being shown in a sports bar or other establishment where showing NFL games is a weekly custom.

So, let’s get this straight: You can go to a bar, get completely shit-faced, grab a waitresses’ ass and blaspheme God when Peyton Manning inevitably chokes and coughs up the Super Bowl to the Bears, but you can’t watch the Super Bowl at church under the protection of our Lord and Savior.

Man. This is so not alright with God. The Colts are F-U-C-K-E-D!

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A Call to Arms Breasts!

breastfeeding.jpgThe blogosphere is a funky place; you sit around in your pajamas with a bottle of Wild Turkey and a pack of smokes diddling away on your keyboard, sharing your thoughts with a few common minded people, and wouldn’t you know that some dumbass corporate cumbucket comes along and sticks a fork in your ass of good intentions.

Or, that’s what’s happened to The Lactavist, a blog run by a work-at-home mother in small-town Ohio who is trying to defend the right to breastfeed in public. Nothing wrong with that, right? Actually, it’s a pretty amusing blog that manages to be both informative and, at times, pretty goddamn funny. In fact, the Lactavist has taken to creating those omnipresent Cafe Press T-Shirts with her own snarky slogans to further promote the cause and raise money for the Mother’s Milk Bank of Ohio. The T-shirts carry slogans such as: “Milk on Tap,” “That’s My Baby’s Lunch You’re Staring At,” and “Nip/Suck.”

Well, the National Pork Board apparently wasn’t terribly fond of one of the T-shirt slogans, “The Other White Milk.” In fact, they were so displeased that they sent the Lactavist a cease-and-desist letter, demanding that she discontinue selling the questionable T-shirt because it allegedly infringed upon the Pork Board’s trademark on the phrase, “the other white meat.” The letter reads, in part:

In addition, your use of this slogan also tarnishes the good reputation of the National Pork Board’s mark in light of your apparent attempt to promote the use of breastmilk beyond merely for infant consumption, such as with the following slogans on your website in close proximity to the slogan “The Other White Milk.” “Dairy Diva,” “Nursing, Nature’s Own Breast Enhancement,” “Eat at Mom’s, fast-fresh-from the breast,” and “My Milk is the Breast.”

Yes. Apparently, the National Pork Board is under the impression that the Lactavist is attempting to “promote the use of breastmilk beyond merely for infant consumption.” Umm. Is there another class of folks who like breastmilk? Or, as the Lactavist suggests, “Do they think I’m trying to an promote an adult breastfeeding fetish??!”

Pretty ridiculous, right. Well, she has yet to decide how to approach the legal issue and she’s looking for a good pro bono lawyer. Any takers out there? Check out the full account. It’s worth your while.

The Daily Memo - 2/2/07

check.jpgThe two Boston “Aqua Teen Hunger Force” terrorists pled not guilty yesterday because, while they put up the LED mooninites, they had no intent to create a panic. (CNN)

check.jpg…and then they gave a rather interesting post-jail press conference. (WBZTV)

check.jpgA man may sue a neighboring church because it plays its music too loud, which has killed his ability to sleep in on Sundays and made his last five years “horrendous.” (MSNBC)

check.jpgSome Iowa teens want legislation requiring beer keg registration, to crack down on underage drinking. (KCRG)

check.jpgA Tennessee state representative has a “Grills Bill” to ban everyone but dentists from taking dental impressions for grills. (WTVF)

check.jpgA Louisiana judge has ruled unconstitutional a state law requiring immigrants to prove their legal presence in the US in order to be allowed to drive. (FindLaw)

check.jpgNew York’s new advertising rules have been challenged in a federal lawsuit, on the grounds that they’re vague and violative of the First Amendment. (Sui Generis)

check.jpgA New York attorney plans to continue challenging his arrest for having nunchaku in his house, in violation of state law, despite having a federal judge already deny his challenge. (The Legal Reader)

“Well I wasn’t talking about myself

headley.jpgYesterday we told you about an admirable Wisconsin Police Chief who gave himself a traffic citation for failing to stop near a school bus that was unloading some kiddies. Today’s small-town law enforcement agent? Not so admirable.

Out in Tennessee, Williamson County Sheriff Ricky Headley told the local folks that he was planning to put the big crack-down on drugs in the area. So of course he’s now been arrested on drug charges.

He and a local pharmacy owner were busted earlier this week for prescription drug fraud. Headley had taken thousands of prescription pills from the pharmacy without bothering to, you know, actually have a prescription or some such. Seems the man had a fondness for a painkiller (Lortrab) and a muscle relaxant (Soma). Facing both a felony and misdemeanor charge, the irony is, now is when Headley could probably really use something to get relaxed.


ATL.jpgQuizLaw loves when other legal blogs get themselves in trouble. So it’s been fun watching this little story develop over at the Above the Law blog.

On Wednesday, David Lat posted a long story submitted to him by a longtime reader. In this story, the reader discussed a recent flight they were on, which was shared with a Ninth Circuit judge and her family. Some minor chaos ensued pre-flight when Judge Berzon’s daughter spilled coffee on one of the seats, and the reader was recounting the story. Lat then when on to share some comments from a former clerk of Judge Berzon, who claimed that the Judge’s “chambers is a total gong show.”

Cut to yesterday, when Lat posted a lengthy letter from one of Judge Berzon’s colleagues, Justice Kozinski (who is probably one of the most well-known Circuit Judges, as much as a federal appellate judge can ever be “well known”). In this letter, Justice Kozinski basically bitch-slapped Lat for his post. He called the airplane story a “wholly gratuitous personal attack on Judge Berzon and her family…laden with pejoratives and half-witticisms.” And as for the comments from Judge Berzon’s former clerk? Judge Kozinski found the posting “[e]qually disappointing, and far more serious,” in large part because:

I can tell you that your source must have been smoking a controlled substance during working hours because nothing like what he (or should I say it?) reports bears any relation to objective reality.

And then, just to make things worse, we learn that Judge Berzon’s brother just passed away on Tuesday, making this whole incident rather unfortunate timing. Lat has offered his condolences to Judge Berzon, noting:

Take foot (or, in our case keyboard). Insert into mouth. Then push, as far as it will go.

Lat says he stands by the posting, however, and intends to provide an eventual defense of the post.

What I’m more curious about, however, is when Lat will provide an explanation for why he infuriatingly (to me, at least), insists on consistently using the first-person plural, when he’s the only writer for the blog? Is he some type of royalty that we’re just not aware of? (And I say “we” not as in “me,” but as in “the general blawg-reading public.”)

No. What’s Your Problem?

crane2.jpgThe Wall Street Journal Blog brings us an interesting legal story, concerning the hit David E. Kelley show, “Boston Legal,” which, I’d argue, is Kelley’s best show since “Picket Fences.” It concerns a lawsuit brought against the show by Carolyn Arnold, the creator of a local cable show in New York. Arnold asserted that a fictional ad campaign brought by the television show’s fictional law firm, Crane, Pool, and Schmidt, infringed her trademark of the phrase,” “What’s your problem?” The premise of Arnold’s show, apparently, is that she approaches strangers on the street and asks, “What’s your problem?”

A Manhattan federal judge tossed the lawsuit, however, writing that the term, “What’s Your Problem?” was a generic descriptive term and had not gained any secondary meaning associated with Arnold’s show. I think if Arnold had actually wanted to create secondary meaning in the phrase, she’d have to amend it as such: “What’s your problem, buddy?”

Jesus Loves to Recycle

AntonioPeckPoster.jpgI didn’t even realize that kindergartener’s gave a shit about their constitutional right to freedom of speech — hell, they haven’t even mastered speech yet. But, that didn’t stop one kindergartener and his family from suing a New York state school over a possible violation of his constitutional right to freedom of expression.

The case dates back originally to 1999 when a kindergartener, Antonio Peck, was asked by a teacher to draw a poster about how to save the environment. Peck, who loves him some Jesus, decided he’d include children holding hands, people recycling trash, and (gasp!) a drawing of Christ. The poster was initially displayed in the school cafeteria, but it was soon folded in such a way as to hide the image of God’s son, and now the school’s being sued for censoring the image of the holy son.

The irony, as the boy’s attorney has pointed out, is that this case has brought a lot more attention to the drawing than if the school had just left it alone. And while I’m all about keeping church and state separate, we’re talking about a five year old, here. The kid can’t even read yet, and we’re telling him what he can and cannot draw. Just be happy he’s not recreating scenes from Grand Theft Auto. And, besides: Jesus thinks global warming is a hoax, anyway.

Go ahead, sue us - make our day!

sueMe.jpgIf you’re ever in Orlando, you might want to avoid the Orlando Regional Medical Center. ‘Cause if you have any problems and want answers, well, they’re not so much with the answers.

Almost nine months ago, Claudia Meja went into Orlando Regional South Seminole to give birth to her son Mathew. She was kept in the hospital for complications and, twelve days later, was moved to Orlando Regional Medical Center. After being moved, she underwent a quadruple amputation. The hospital told her she had a flesh eating bacteria, streptococcus, and toxic shock. But she wanted to know more specifics about what had happened, including how, exactly, she had caught streptococcus.

When the hospital wouldn’t give her any more info, she had her attorney write them a letter under Florida’s “The Patients Right to Know About Adverse Medical Incidents Act.” Which makes sense, since becoming a quadruple amputee sure sounds like an adverse medical incident to me. And the hospital’s response?

A letter saying that “Ms. Mejia’s request may require legal resolution.” In other words, “sue us if you want to know.”

So she’s now suing the hospital to find out why she lost her limbs. I mean…is it any wonder people hate lawyers?

(Hat tip to Weird Daily)

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The Daily Memo - 2/1/07

check.jpgA California legislator wants to pass the “How Many Legislators Does it Take to Change a Lightbulb Act,” to ban incandescent lightbulbs within the next five years. (CNN Money)

check.jpgFolks in Colorado want to expand the “make my day” law, with the “make my day better” bill which would allow folks to defend themselves if they feel threatened while in their cars or places of business. (Denver Post)

check.jpgThe Supremes are making more public statements, and the result is that their choice to not talk about certain things “speaks volumes.” (Slate)

check.jpgA mistrial was declared after a 74-year old attorney couldn’t remember his closing argument because he lost his train of thought. (MSNBC)

check.jpgA New York assemblyman says that there should be weight standards for underage models. (WCBS TV)

check.jpg“Monster Garage’s” Jesse James has paid out $300K to settle with California air regulators over the fact that fifty custom bikes from his West Coast Choppers operation didn’t meet Cali’s air quality requirements. (TV Squad)

check.jpgA New York teen sued by the RIAA for being a P2P pirate is suing back, claiming defamation and anti-trust violations, among other things. (The Inquirer)

Can I see my license and registration please?

knoebel.jpgThe Police Chief of the Village of Kewaskum, a (presumably) little Wisconsin place, is a good man. Richard Knoebel was driving himself to work one day when he got a touch distracted by a truck that was doing some business on the side of the street. Because he was distracted, he didn’t see that a school bus had stopped, with its lights flashing and the little stop sign sticking out.

As you all should know, you stop driving when you see this. But because the Police Chief didn’t see it, he didn’t stop driving.

And so Knoebel issued himself a traffic citation, including a $235 fine and four points on his license.

This is absolutely mind boggling to me. As he put it:

When we get someone for not stopping for a flashing school bus we give them a citation. So I shouldn’t be any different so I did.

If we had more stories about honest and decent cops like this, maybe the general public would begin to have its faith restored in what often seems like a broken system.

This jurisdictional pissing match just makes me wanna’ burn a J

typewriter.jpgLast October, Shashon Jenkins was arrested in Santa Rosa, California for possession of 18 pounds of pot. His lawyer eventually had the charges dropped because the prosecutor accepted that Jenkins was both a medical marijuana user and caregiver. Afterwards, Jenkins got a judge to order the return of his pot but the cops aren’t playing along.

See, while California state law has legalized medical marijuana, weed is still illegal under federal law. So the cops say they would be violating federal law by returning Jenkins’ pot, and the Judge has set a March court date where the cops will have to plead their case to avoid getting hit with a contempt of court ruling.

I really hate this kind of shit. Like most of America, I turn to Hollywood for my opinions. And if I’ve learned anything, “The Wire” and Traffic have taught me that the drug war is a lost and broken cause. The Feds’ absolute immobility in situations like this shows one reason why. The people of California have absolutely approved medical marijuana, yet the Feds are unwilling to accept this. Worse yet, they actively pursue California folks who avail themselves of the state’s medical marijuana laws (and while I’m sure there are some illegitimate uses going on, you gotta’ figure the majority is on the up-and-up). Money and resources that could be better spent in a number of ways is basically pissed away for nothing.

Our federal government in action.