Harold Warren Sr., 77, a Missouri funeral home director has pleaded guilty to intentionally giving three families the wrong cremated remains. This includes leaving a woman’s body in an electrical room for 10 months without embalming or refrigeration. What is interesting is that Circuit Judge Gary Oxenhandler indicated that he might not honor the plea bargain for no jail time for Warren, who is a prominent political figure in the area. There are questions of whether the prosecutors cut Warren a remarkably light deal due to his political connections and standing in the community.

Warren could face four years in prison on each of the charges, but reached a deal with prosecutors to avoid jail time. Under the deal he would get four years probation, pay back the money on the funeral services, and give the families an apology. The families have criticized the deal with prosecutors and I don’t blame them. That is pretty light for such an horrific act. Warren is accused of not only giving them the wrong body but leaving other bodies in bags in the basement.

Warren was also arrested recently for allegedly writing a bad check, here. That charge, however, was for a check of only $318 and was written on an account with insufficient funds (not normally a matter for an arrest).

Warren was Columbia’s first black City Council member and is still a prominent civic leader. He has received public support from the state and local chapters of the National Association for the Advancement of Colored People. The deal with prosecutors has been denounced by some families, who also have the option of suing him in torts. The mishandling of corpses is treated as a distinct tort under the common law and often brings punitive damages.

For the full story, click here.

Donald Giles would appear to have the trifecta of mental incompetence arguments against execution. He is a paranoid schizophrenic with an IQ of 61 and a history of suicide attempts and depression. However, Jefferson County Circuit Judge Martin McDonald has ruled that Giles, 41, may be put to death if the jury so rules in his trial for the 2003 murder and robbery of Charles Goodlett.

In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court ruled 6-3 that executing the mentally retarded violates the Eighth Amendment’s ban on cruel and unusual punishments. Notably, Atkins was deemed “mildly mentally retarded” with an IQ of 59.

Kentucky law statutes actually ban the execution of a person with an IQ of 70 or below but McDonald ruled that Giles should have been given an IQ test as a child to claim such an exception.

This is news to many in the field who argue that the only requirement is proof that the mental condition was not recently claimed or caused. Giles has a lifetime of proven mental illness.

In the meantime, McDonald has been criticizing the local media for publicizing the case and his ruling on the mental incompetence of Giles.

For the full story, click here.

There has been a ruling in the Arizona case where an officer, Officer Adam Stoddard with the Maricopa County Sheriff’s Office is clearly shown on this videotape reading and then swiping the confidential papers of defense attorney Joanne Cuccia in court. Maricopa County Superior Court Judge Gary Donahoe found against Stoddard and ordered him to either apologize or report to jail — a remarkably light sentence. However, his boss is Sheriff Joe Arpaio who has said that his officer will defy the order.

Stoddard swiped the papers while defense attorney Joanne Cuccia was addressing the court on behalf of her client, Antonio Lozano. The response of Judge Lisa Flores was remarkably understated and restrained given the horrific breach of confidentiality.

Before Donahoe, Stoddard’s explanation only magnified his misconduct. He claimed that he saw the words “going to,” “steal,” and “money” on a handwritten sheet of paper sticking out of Cuccia’s file, which led him to believe that Lozano posed a security threat. This confirms that he read the document as opposed to a cursory review of material for contraband or weapons. It is also ridiculous that such words would cause an officer to remove confidential notes — written by an attorney — in a criminal case. Most of the attorneys in that courthouse are representing people with records and have notes including such nouns and verbs.

Stoddard ordered an apology to Cuccia or jail. Many believed that Stoddard should have been fired or, in the very least, barred from work in courthouses. Arpaio, however, has declared that he will defy the order. Arpaio is the most controversial sheriff in the country and is routinely accused of abusive practices. On this occasion, he is defending his deputies pulling handwritten notes from the files of lawyers to be copied and reviewed.

For the story, click here.

This afternoon, the Plaintiffs in the World Bank/IMF protest case filed a notice with the Court of the receipt of an affidavit in the case from a police detective, who contradicts the sworn testimony of former D.C. (and current Philadelphia) Police Chief Charles Ramsey. As lead counsel in one of the two cases (with my colleague Daniel Schwartz of Bryan Cave), I am limited in what I can say on the case. However, to reduce calls to my office, I am posting the filing below.

The notice is filed with our colleagues in the Barham Mara Verheyden-Hilliard and Carl Messineo for the Partnership for Civil Justice who has posted videos of the deposition of Ramsey, here.

The notice states in part:

In opposition to that motion and in yesterday’s status hearing before this Court, Chang counsel raised the issue and discussed the relevance of Detective Hustler’s possible testimony. (See Dkt. No. 558 in Chang.) The Court ordered the deposition of Detective Hustler to go forward under the supervision of the Marshall Service or Magistrate Facciola. Following the hearing, counsel for both Chang and Barham jointly reviewed an affidavit that had been submitted by Detective Hustler that disclosed the evidence that would have been presented in the deposition. (See Hustler Affidavit, attached as Exhibit 1.) The evidence is
extremely disturbing and contradicts prior sworn representations given to the Court and plaintiffs during the past seven years of litigation of this matter as well as the investigation into the Pershing Park arrests undertaken by the District of Columbia Council. The affidavit details the actions and observations of Detective Hustler on September 27, 2002, including his observations of the orders given for the mass arrest in Pershing Park.

For the notice, click As filed

For the affidavit, click As filed Affidavit

For the story, click here and here

Here is today’s column in USA Today on the continuing trend toward shaming or creative punishments.

Shame is back in the United States with a vengeance.

Across the country, judges and prosecutors and jailers are freelancing by imposing their own brands of retributive justice: forcing people to wear humiliating clothing, parade in public and even sleep in doghouses. The punishments are wildly popular with many in the public who want to see criminals humiliated and seem to relish the entertainment of improvised justice.

Two weeks ago, citizens of Bedford, Pa., were able to gawk at Evelyn Border, 55, and her daughter, Tina Griekspoor, 35. The two had been caught stealing from a child and were told by the local prosecutor that unless they performed a publicly humiliating act, they would be hit with heavy charges. They agreed to appear in front of the courthouse holding signs reading, “I stole from a 9-year-old on her birthday! Don’t steal or this could happen to you!” Such scenes are being repeated across the country as citizens are told to choose between degrading public acts or long jail sentences.

Shaming punishments are a return to primitive practices common before the American Revolution, when people were forced into public pillories, marked with scarlet letters or forced into forms of public humiliation, including degrading signs. These shaming punishments declined after the Founding Fathers sought to modernize the criminal justice system and to require consistent punishments.

Gum, manure and doghouses

Elected state judges have found that many citizens relish the humiliation of others. Georgia Judge Rusty Carlisle does not deny that he is trying to degrade people who come before him. In one case, a defendant seemed “kind of cocky” in a minor littering case, so Carlisle ordered him to scrape the gum off the bottoms of the court benches with a butter knife while people watched. The “King of Shame” was Texas Judge Ted Poe, who insisted that “people have too good a self-esteem,” so he made them do things such as shovel manure to abase them. What Poe called “Poetic justice” has little to do with actual justice. It is a form of entertainment that sacrifices our most fundamental principles to satisfy our most base impulses. Judges give the public displays of retribution by using citizens as virtual props in their personal theater of the absurd.

In 2003, Texas Judge Buddie Hahn gave an abusive father a choice between spending 30 days in jail or 30 nights sleeping in a doghouse (He chose the doghouse to be able to keep his job). Likewise, in Ohio, municipal Judge Michael Cicconetti sentenced two teens found guilty of breaking into a church on Christmas Eve 2002 to march through town with a donkey and a sign reading, “Sorry for the Jackass Offense.” Cicconetti later ordered a woman to be taken to a remote location to sleep outside for abandoning kittens in parks.

Studies have actually shown limited value in humiliation as a punishment in terms of actual deterrence in crime. Its principle value is found in the political rather than the criminal system. Indeed, Poe used the popularity of his creative punishments to secure a seat in Congress in 2004.

Now, prosecutors and jailers are trying to cut in on the shaming action. In the Bedford case, the punishment was not ordered by a judge but by a prosecutor, Bedford District Attorney Bill Higgins, who promised to seek probation if they demeaned themselves.

“Giving the people what they want” can sometimes get them to forget what they don’t want — like the bread and circuses of Roman emperors. For example, Higgins was dogged by allegations of adultery and having sex in the very courthouse where he paraded Border and her daughter. Though he faced a criminal complaint and admitted to adultery, no one is calling for Higgins to wear a placard as an adulterer. Instead, he is being heralded for parading the two petty thieves.

Likewise, Arizona Sheriff Joe Arpaio has long faced complaints over his heavy-handed tactics against both citizens and illegal immigrants. However, most people know him only as the guy who forced male inmates to wear pink underwear to humiliate them.

Inventing justice

Some judges have faced charges over their meting out personal justice but have received little punishment. Gustavo “Gus” Garza, a justice of the peace in Texas, was given only an admonishment last year when he forced parents to spank their children in front of him in court to avoid heavy fines. In another spanking case, former Alabama judge Herman Thomas actually used shaming punishments as a criminal defense. Thomas was recently acquitted of sodomy and assault after he allegedly took inmates from their cells for spankings and sex in his chambers. Despite testimony alleging spanking and sodomy, Thomas’ lawyer insisted that the judge was merely “mentoring them” and trying to turn them into “productive citizens” in dealing with them in chambers.

All criminal sentences produce shame for most citizens. But there is a difference between shame from a punishment and shame as a punishment. These judges are inventing their own forms of retributive justice like little Caesars toying with citizens. It is a threat to the basic principles of our legal system. It is an abuse of not just the criminal code but of the criminals themselves. It is not just wrong. It is, in a word, shameful.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.

November 17, 2009

Here is today’s column from the Washington Post on the benefits of a new type of “good-faith” defense. While “religious convictions” are usually a reference to personal faith, it turns out that it has a distinct and disturbing meaning for criminal sentencing.

“Suffer little children to come to me.” So begins one of the most cited passages in the Bible. Yet, in cases involving the deaths of children in faith-healing families, the second half of Jesus’s admonition from Luke 18:16 is at the heart of legal controversy: “. . . and forbid them not.”

In the past 25 years, hundreds of children are believed to have died in the United States after faith-healing parents forbade medical attention to end their sickness or protect their lives. When minors die from a lack of parental care, it is usually a matter of criminal neglect and is often tried as murder. However, when parents say the neglect was an article of faith, courts routinely hand down lighter sentences. While faithful neglect makes for a poor criminal defense, it is surprisingly effective in achieving more lenient sentencing, in which judges appear to render less unto Caesar and more unto God.

This disparate treatment was evident last month in Wisconsin, a state with an exemption for faith-based neglect under its child abuse laws. Leilani and Dale Neumann were sentenced for allowing their 11-year-old daughter, Madeline Kara Neumann, to die in 2008 from an undiagnosed but treatable form of diabetes. The Neumanns are affiliated with a faith-healing church called Unleavened Bread Ministries and continued to pray with other members while Madeline died. They could have received 25 years in prison. Instead, the court emphasized their religious rationale and gave them each six months in jail (to be served one month a year) and 10 years’ probation.

During their sentencing, Marathon County Circuit Court Judge Vincent Howard said the Neumanns are “very good people raising their family who made a bad decision, a reckless decision.” He then gently encouraged them to remember that “God probably works through other people, some of them doctors.”

Compare the Neumanns’ legal treatment with a couple of other recent cases in which children were injured or killed by nonreligious neglect. Russell J. Wozniak Jr. and Jennifer Ann Wozniak, of Chippewa Falls, Wis., received basically the same sentence as the Neumanns for, the criminal complaint said, allowing their 2-year-old to wander around covered in vomit and wearing a full diaper.

Then there are the parents of Alex Washburn. The 22-month-old died after hitting his head at home in Cross Lanes, W.Va. His parents, Elizabeth Dawn Thornton and Christopher Steven Washburn, said the boy fell a lot and hit his head on the corner of a table and his chin on a toilet. They apologized for not seeking medical help and agreed to terminate their parental rights to their other children, handing over custody to the state. “I wish I did seek medical treatment for my son faster,” Washburn told the court. “That will definitely be with me for the rest of my life.” The court sentenced both parents to three to 15 years in prison.

So the Neumanns got one month in jail for six years and kept custody of their children, and the Washburns got up to 15 years in prison and agreed to give up their kids.

In a nation founded on the free exercise of religion, the legal system struggles with parents who act both criminally and faithfully in the deaths of their children. This paradox has perplexed courts for centuries. One of the earliest prosecutions of such a case occurred in England in the 1800s, when the crown charged followers of a sect known only as the Peculiar People, a name derived from a translation of the phrase “chosen people” from the book of Deuteronomy. They were accused of killing numerous children as a result of faith-healing practices.

Today, the Old Peculiars are largely gone (their faith-healing views thinned their numbers considerably), but many other sects such as Unleavened Bread Ministries have prospered. While the vast majority of fundamentalist and faith-healing parents avail themselves of a doctor’s care when faced with a dire medical condition, some religious parents continue to maintain that belief in God means belief in His power and discretion to heal. They take literally the fact that one of the names of God in the Old Testament, Jehovah-Rapha, means “I am the Lord your Physician,” and point to Exodus 15:26, where God says, “I am the Lord that heals you.”

In the four Gospels, Jesus heals the sick, including in Mark 5:34, where He cures a hemorrhaging girl who was unsuccessfully treated by doctors, saying: “Daughter, your faith has made you well. Go in peace! Be cured from your illness.”

Some parents go to incredible lengths to prevent doctors from doing God’s work. Colleen Hauser of Minnesota gained national attention in May when she went into hiding with her 13-year-old son to avoid a court order that he receive chemotherapy for a Hodgkin’s lymphoma tumor growing in his chest. She was eventually forced to yield; this month, her son finished his final radiation treatment and his family says his cancer is gone.

But the Hauser case is an exception. The advocacy group Children’s Health Care Is a Legal Duty estimates that roughly 300 children have died in the United States since 1975 because care was withheld. When such parents appear in court, they often insist that they love their children and their God – an argument that receives a sympathetic hearing from judges and prosecutors.

While defendants generally show contrition for their actions, the Neumanns remained unrepentant about not calling emergency personnel until after Madeline stopped breathing. Leilani Neumann said: “I do not regret trusting truly in the Lord for my daughter’s health.” Dale Neumann told the court: “I am guilty of trusting my Lord’s wisdom completely. . . . Guilty of asking for heavenly intervention. Guilty of following Jesus Christ when the whole world does not understand. Guilty of obeying my God.”

In Oregon, the Followers of Christ church has been cited for injuries and deaths associated with its faith-healing beliefs for decades. In one 10-year period, estimated Larry Lewman, an Oregon state medical examiner, the church experienced 25 child deaths related to faith-based medical neglect. A recent case involved Ava Worthington, a 15-month-old who fell ill in 2008. Rather than call doctors, her parents – Carl Brent Worthington and Raylene Worthington — allowed a simple cyst on her neck to grow to the size of a softball as they anointed her with oil and administered small amounts of wine, according to testimony at the trial. She died of a blood infection and pneumonia.

Judge Steven L. Maurer, a circuit court judge in Clackamas County, Ore., said he would “stand by my assessment that this was wrong, wrong, wrong. This was an unnecessary tragedy.” However, the prosecutor asked for six months in prison, half the maximum sentence for misdemeanor criminal mistreatment. Maurer gave Carl Brent Worthington two months in jail and five years’ probation. Despite the record of deaths and injuries at their church, the Worthingtons were allowed to keep custody of their 5-year-old daughter and a new baby that was coming in a matter of months. They needed only to promise to bring them to a doctor for scheduled checkups.

Now another trial is pending for the family: Raylene Worthington’s parents, Jeff and Marci Beagley, were charged with criminally negligent homicide in the death of their 16-year-old son, Neil Beagley. He died in 2008 from a urinary tract blockage that could have been treated with a minor surgical procedure. In cases such as this, in which courts confront repeated faith-based fatalities in a single religious community, the legal system risks becoming a facilitator, if not an accessory, to the crimes through lenient sentencing.

These cases have thrived in a gray zone left by the Supreme Court decades ago. In 1944, in Prince v. Massachusetts, the U.S. Supreme Court ruled that “the right to practice religion freely does not include liberty to expose the community or the child to communicable disease, or the latter to ill health or death.” The court, however, did not expressly forbid the use of faith as a mitigating factor in sentencing – a matter left to the states. Not only does this “good-faith” exception place children at risk, it results in the troubling image of courts favoring religious parents over nonreligious parents in a nation committed to the separation of church and state.

The key to the use of such a defense is that it must involve belief in a divine being, not a particular lifestyle. In 2007, Jade Sanders and Lamont Thomas of Atlanta were convicted of malice murder and given life sentences for the death of their 6-week-old child. The defense attorneys cited the couple’s strict vegan lifestyle to explain why they fed their newborn son a diet of soy milk and organic apple juice, though during the trial Sanders said she had also breast-fed her son, who died in an emaciated state at 6 weeks, weighing just 3 1/2 pounds. The prosecutor and court had no qualms in treating this couple’s beliefs as a poor excuse for murder, calling a nutritionist and vegan expert as a witness to show that a vegan diet can be safe for an infant. In a stark contrast with religious cases, the prosecutor told the jury: “They’re not vegans, they’re baby-killers.”

The next test of the faith-based defense will be in Philadelphia, where prosecutors last month charged Herbert and Catherine Schaible in the January death of their son, Kent Schaible, 2, from bacterial pneumonia. His parents and other adults prayed around him, practicing faith-healing for two weeks without seeking medical assistance. Then they called a funeral home. The couple was charged with involuntary manslaughter and other related crimes.

Denying children critical care may be divinely ordained for some parents, but it should not be countenanced by the legal system. Until courts refuse to accept religion as a mitigating factor in sentencing in such cases, children will continue to die, neglected as articles of their parents’ faith.

Washington Post (Sunday: November 15, 2009

First there were the Knights Who Say Ni! (below). Now we have the problem of the lawyers who say Meep! After reading the recent publications over the decision of the principal of Danvers High School banning students from saying the word “Meep,” Entertainment lawyer Theodora Michaels decided to act and wrote a letter using the four-letter word to Principal Thomas Murray, who comes across as a high school version of Dean Vernon Wormer from Animal House. She was immediately reported to the police for investigation by the school.

Murray stumbled on a conspiracy on Facebook where he learned that kids in the Danvers High School in Massachusetts intended to say “Meep!” in school — mimicking the lab assistant to Dr. Bunsen Honeydew, Beaker, of “The Muppet Show.”

Meep is actually in the dictionary which defines it as “whatever you want it to mean.” Murray, however, did not want it in his school and banned it — sending an automated call to parents warning that any student using “Meep!” could be suspended. His minions had uncovered a plot for students to do a “mass meep” in one part of the school.

That is when Michaels decided to nail her letter to the Internet door like a Meepish Martin Luther.

Here is the entire letter:

An open letter to Principal Murray of Danvers High School (MA):

Meep.

Sincerely,
Theodora Michaels

She says that the response was fast and furious: “Yesterday I received a reply email from Assistant Principal Mark Strout, which said (in full) “Your E-mail has been forwarded to the Danvers Police Department.”

I am pretty sure that Meep is not a form of hate speech, even under the Muppet criminal code. Methinks that Murray doth protest too much.

For her account of the controversy, click here.

For the original story, click here and here.

Kenneth Herron may have picked the wrong cage but apparently the right counsel. Herron was acquitted of “disturbing dangerous animals” on a novel defense by deputy public defender James Conger. Conger argued that the bears were actually not that disturbed when Herron came into their cage after the San Francisco Zoo closed.

Herron, 21, was facing a misdemeanor charge for entering the zoo on September 26th. He went into the cage with two 500-pound grizzlies. One bear sniffed Herron’s shoe but then fled when a zoo official fired a warning shot. Conger argued that one bear sniffing a shoe does not a disturbed grizzly make.

This is a disturbed grizzly defending against a real cougar (as opposed to a conger).

Notably, this is not the first controversy involving humans versus animals at the zoo, here.

The jury agreed with Conger and found no disturbance. Moreover,
Superior Court Judge Wallace Douglass ruled the day before that a trespassing charge against Herron could not proceed because the prosecution couldn’t prove that he intended to “occupy” the cage — particularly given his mental problems.

In the end, Conger proved that a 150 pound lawyer is more dangerous than two 500-pound grizzly bears.

For future cases, here is a zoological expert on the bear necessities of life:

For the full story, click here.

This is one of the most incredible videos that I have seen. In the video above, Officer Adam Stoddard with the Maricopa County Sheriff’s Office is clearly shown reading confidential papers of defense attorney Joanne Cuccia while she is addressing the court on behalf of jail inmate Antonio Lozano (accused of fighting with another inmate). He then pulls a sheet from the file on the defense table and gives it to another deputy to be copied.

What is equally amazing is the relatively weak response from Judge Lisa Flores, who could presumably see Stoddard’s actions from the bench. It is possible that she was blocked in her view by counsel. In the video, Lozano appears to be the only person who clearly notices the removal.

When told, however, Flores reacts a bit defensively to objections from Cuccia and tells her repeatedly to calm down, even though Cuccia seems determined but professional in her statements to the court. Flores also immediately offers a justification that Stoddard is there to protect the court — apparently by copying confidential material. Eventually, she suspends the sentencing hearing.

A hearing was later held before Judge Gary Donahoe and the Maricopa County Sheriff’s office defended Stoddard, insisting that he must screen all defense documents that are passed to an inmate. He insisted that, when he walked near the defense attorney’s table, he recognized some documents that weren’t previously screened.

It is true that some courts allow deputies to thumb through papers to be certain that they do not contain contraband or weapons, but this is a cursory inspection. It is a somewhat controversial practice but it is so limited that most attorneys are not concerned because the officers do not read the papers. Most courts do not have this practice. While your papers can be inspected at jails in face-to-face meetings, courtrooms are generally not subject to such inspections. After all, most courts have metal detectors at the entrances. Weapon transfers, therefore, are not a serious threat in counsel-to-client interactions in court. That leaves contraband, which is not a justification (in my view) for such intrusion. We have seen lawyers arrested on such charges (here and here), but it is incredibly rare. It is more common to see deputies arrested for contraband rackets than attorneys.

I have never heard of an officer copying a document at a prison or a court in such an inspection. This document was found by Donahoe to be subject to attorney-client privilege. Stoddard is clearly reading the document and proceeds to take it without notifying Cuccia and making a copy. It is a simply amazing violation of constitutional and confidentiality rules. I am surprised not to have seen a strong statement and intervention from the Arizona state bar in the case, but I hope that will be coming this week.

For the full story, click here.

Halloween is the favorite holiday for all torts professors and personal injury lawyers. (Indeed, I am convinced it was invented by a personal injury lawyer). Common carrier hay rides, lighting vegetables on fire, handing out foodstuffs without a permit . . . It’s the most litigious day of the year. So, with no further ado, here is this year’s annual Spooky Torts and Crimes list of actual cases from Halloween. Happy Halloween everyone (except those avoiding the holiday due to demon-inspired soul-sucking candy or papal prohibitions).

This year, we have already seen flashlights that appear to burst into flames, politically incorrect costumes pulled from the shelves, and dead bodies mistaken for Halloween decorations. Yesterday, we also saw a tragic death of a teen who accidentally hanged herself, here.

For those taking down the cobwebs in the morning, we strongly encourage that you not use a blowtorch, here.

Dickson v. Hustonville Haunted House and Greg Walker (?) (2009)

Glenda Dickson, 51, broke four broken vertebrae in her back when she fell out of second story window left open at the Hustonville Haunted House, owned by Greg Walker.

Dickson was in a room called “The Crying Lady in the Bed” when one of the actors came up behind the group and started screaming. Everyone jumped in fright and Dickson jumped back through an open window that was covered with a sheet — a remarkably negligent act by the haunted house operator. She landed on a fire escape and then fell down some stairs.

OUTCOME: While no criminal charges are planned, this would appear a likely case for a lawsuit for negligence. Since it only happened yesterday, we may have to follow up next year to see if this got really scary.

________________________________________________________
Maryland v. Janik (2009)

Sgt. Eric Janik, 37, went to a haunted house called the House of Screams with friends and when confronted by a character dressed as Leatherface with a chainsaw (sans the chain, of course), Janik pulled out his service weapon and pointed it at the man, who immediately dropped character, dropped the chainsaw, and ran like a bat out of Halloween Hell.

Outcome: Janik is charged with assault and reckless endangerment for his actions. Charges pending.

_______________________________________________________

Patrick v. South Carolina (2009)

Quentin Patrick, 22, an ex-convict in Sumter, South Carolina shot and killed a trick-or-treater T.J. Darrisaw who came to his home on Halloween — spraying nearly 30 rounds with an assault rifle from inside his home after hearing a knock on the door. T.J.’s 9-year-old brother, Ahmadre Darrisaw, and their father, Freddie Grinnell, were injured but were released after being treated at a hospital.

Patrick left his porch light on — a general signal for kids that the house was open for trick and treating. The boy’s mother and toddler sibling were in the car.

Patrick emptied the AK-47 — shooting at least 29 times through his front door, walls and windows after hearing the knock. He said that he had been previously robbed. That may be so, but it is unclear what an ex-con was doing with a gun, let alone an AK-47.

OUTCOME: Charges pending for murder.

_______________________________________________________
Kentucky v. Watkins (2008)

As a Halloween prank, restaurant manager Joe Watkins of the Chicken Ranch in Paris, Kentucky thought it was funny to lie in a pool of blood on the floor. After seeing Watkins on the floor, the woman went screaming from the restaurant to report the murder. Watkins said that the prank was for another employee and that he tried to call the woman back on her cell phone.

OUTCOME: Under Kentucky law, a person can be charged with a false police report, even if he is not the one who filed it. The police charged Watkins for causing the woman to file the report — a highly questionable charge.

_______________________________________________________
Mays v. Gretna Athletic Boosters
95-717 (La.App. 5 Cir. 01/17/96)

Defendant operated a haunted house at Mel Ott Playground in Gretna to raise money for athletic programs. The haunted house was constructed of 2×4s and black visqueen. There were numerous cubbyholes where “scary” exhibits were displayed. One booster club member was stationed at the entrance and one at the exit. Approximately eighteen people participated in the haunted house by working the exhibits inside. Near and along the entrance of the haunted house was a bathroom building constructed of cinder blocks. Black visqueen covered this wall.

Plaintiff and her daughter’s friend, about 10 years old, entered the haunted house on October 29, 1988. It was night time and was dark inside. Plaintiff testified someone jumped out and hollered, scaring the child into running. Plaintiff was also frightened and began to run. She ran directly into the visqueen-covered cinder block wall.

There was no lighting in that part of the haunted house. Plaintiff hit the wall face first and began bleeding profusely from her nose. She testified two surgeries were required to repair her nose.

OUTCOME: In order to get the proper effect, haunted houses are dark and contain scary and/or shocking exhibits. Patrons in a Halloween haunted house are expected to be surprised, startled and scared by the exhibits but the operator does not have a duty to guard against patrons reacting in bizarre, frightened and unpredictable ways. Operators are duty bound to protect patrons only from unreasonably dangerous conditions, not from every conceivable danger.

As found by the Trial Court, defendant met this duty by constructing the haunted house with rooms of adequate size and providing adequate personnel and supervision for patrons entering the house. Defendant’s duty did not extend to protecting plaintiff from running in a dark room into a wall. Our review of the entire record herein does not reveal manifest error committed by the Trial Court or that the Trial Court’s decision was clearly wrong. Plaintiff has not shown the haunted house was unreasonably dangerous or that defendant’s actions were unreasonable. Thus, the Trial Court judgment must be affirmed.

______________________________________________________________________
Powell v. Jacor Communications
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

320 F.3d 599 (6th Cir.2003)

On October 15, 1999, Powell visited a Halloween season haunted house in Lexington, Kentucky that was owned and operated by Jacor. She was allegedly hit in the head with an unidentified object by a person she claims was dressed as a ghost. Powell was knocked unconscious and injured. She contends that she suffered a concussion and was put on bed rest and given medications by emergency-room physicians. Powell further claims that she now suffers from several neuropsychological disorders as a result of the incident.

OUTCOME: Reversed dismissal on the basis of tolling of statute of limitations.

___________________________________________________________________________________
Kansas City Light & Power Company v. Trimble
315 Mo. 32; 285 S.W. 455 (1926)

A shapely pole to which, twenty-two feet from the ground is attached a non-insulated electric wire . . Upon a shapely pole were standard steps eighteen inches apart; about seventeen feet from the ground were telephone wires, and five feet above them was a non-insulated electric light wire. On Halloween, about nine o’clock, a bright fourteen-year-old boy and two companions met close to the pole, and some girls dressed as clowns came down the street. As they came near the boy, saying, “Who dares me to walk the wire?” began climbing the pole, using the steps, and ascended to the telephone cables, and thereupon his companions warned him about the live wire and told him to come down. He crawled upon the telephone cables to a distance of about ten feet from the pole, and when he reached that point a companion again warned him of the live wire over his head, and threatened to throw a rock at him and knock him off if he did not come down. Whereupon he turned about and crawled back to the pole, and there raised himself to a standing position, and then his foot slipped, and involuntarily he threw up his arm, his hand clutched the live wire, and he was shocked to death.

OUTCOME:

Frankly, I am not sure why the pole was so “shapely” but the result was disappointing for the plaintiffs. Kansas City Light & Power Company v. Trimble: The court held that the appellate court extended the attractive nuisance doctrine beyond the court’s ruling decisions. The court held that appellate court’s opinion on the contributory negligence doctrine conflicted with the court’s ruling decisions. The court held that the administrator’s case should never have been submitted to the jury. The court quashed the appellate opinion.

“To my mind it is inconceivable that a bright, intelligent boy, doing well in school, past fourteen years of age and living in the city, would not understand and appreciate the fact that it would be dangerous to come in contact with an electric wire, and that he was undertaking a dangerous feat in climbing up the pole; but even if it may be said that men might differ on that proposition, still in this case he was warned of the wire and of the danger on account of the wire and that, too, before he had [**458] reached a situation where there was any occasion or necessity of clutching the wire to avoid a fall. Not only was he twice warned but he was repeatedly told and urged to come down.

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Purtell v. Mason
2006 U.S. Dist. LEXIS 49064 (E.D. Ill. 2006)

“The Purtells filed the present lawsuit against Defendant Village of Bloomingdale Police Officer Bruce Mason after he requested that they remove certain Halloween tombstone “decorations” from their property. Evidence presented at trial revealed that the Purtells placed the tombstones referring to their neighbors in their front yard facing the street. The tombstones specifically referred to their neighbors, who saw the language on the tombstones. For instance, the tombstone that referred to the Purtells’ neighbor James Garbarz stated:

Here Lies Jimmy,

The OlDe Towne IdioT

MeAn As sin even withouT his Gin

No LonGer Does He wear

That sTupiD Old Grin . . .

Oh no, noT where

they’ve sent Him!

The tombstone referring to the Purtells’ neighbor Betty Garbarz read:

BeTTe wAsN’T ReADy,

BuT here she Lies

Ever since that night she DieD.

12 feet Deep in this trench . . .

Still wasn’T Deep enough

For that wenches Stench!

In addition, the Purtells placed a Halloween tombstone in their yard concerning their neighbor Diane Lesner stating:

Dyean was Known for Lying

So She was fried.

Now underneath these daises

is where she goes crazy!!

Moreover, the jury heard testimony that Diane Lesner, James Garbarz, and Betty Garbarz were upset because their names appeared on the tombstones. Betty Garbarz testified that she was so upset by the language on the tombstones that she contacted the Village of Bloomingdale Police Department. She further testified that she never had any doubt that the “Bette” tombstone referred to her. After seeing the tombstones, she stated that she was ashamed and humiliated, but did not talk to Jeffrey Purtell about them because she was afraid of him.

Defense counsel also presented evidence that the neighbors thought the language on the tombstones constituted threats and that they were alarmed and disturbed by their names being on the tombstones. James Garbarz testified that he interpreted the “Jimmy” tombstone as a threat and told the police that he felt threatened by the tombstone. He also testified that he had concerns about his safety and what Jeffrey Purtell might do to him.”

OUTCOME: The court denied the homeowners’ post-trial motion for judgment as a matter of law pursuant to and motion for a new trial. Viewing the evidence and all reasonable inferences in a light most favorable to Officer Mason, a rational jury could conclude that the language on the tombstones constituted threats, that the neighbors were afraid of Jeffrey Purtell, and that they feared for their safety. As such the Court will not disturb the jury’s conclusion that the tombstones constituted fighting words — “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

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Goodwin v. Walmart
2001 Ark. App. LEXIS 78

On October 12, 1993, Randall Goodwin went to a Wal-Mart store located on 6th Street in Fayetteville, Arkansas. He entered through the front door and walked toward the sporting goods department. In route, he turned down an aisle known as the seasonal aisle. At that time, it was stocked with items for Halloween. This aisle could be observed from the cash registers. Mr. Goodwin took only a few steps down the aisle when he allegedly stepped on a wig and fell, landing on his right hip. As a result of the fall, Mr. Goodwin suffered severe physical injury to his back, including a ruptured disk. Kelly Evans, an employee for appellee, was standing at the end of her check-out stand when Mr. Goodwin approached her and informed her that he had fallen on an item in the seasonal aisle. She stated that she “saw what he was talking about.”

OUTCOME: Judgment affirmed because the pleadings, depositions, and related summary judgment evidence did not show that there was any genuine issue of material fact as appellant customer did not establish plastic bag containing the Halloween wig which allegedly caused him to slip and fall was on the floor as the result of appellee’s negligence or it had been on the floor for such a period of time that appellee knew or should have known about it.

_______________________________________________

Eversole v. Wasson
80 Ill. App. 3d 94 (Ill. 1980)

The following allegations of count I, directed against defendant Wasson, were incorporated in count II against the school district: (1) plaintiff was a student at Villa Grove High School which was controlled and administered by the defendant school district, (2) defendant Wasson was employed by the school district as a teacher at the high school, (3) on November 1, 1978, at approximately 12:30 p.m., Wasson was at the high school in his regular capacity as a teacher and plaintiff was attending a regularly scheduled class, (4) Wasson sought and received permission from another teacher to take plaintiff from that teacher’s class and talk to him in the hallway, (5) once in the hallway, Wasson accused plaintiff of being one of several students he believed had smashed Wasson’s Halloween pumpkin at Wasson’s home, (6) without provocation from plaintiff, Wasson berated plaintiff, called him vile names, and threatened him with physical violence while shaking his fist in plaintiff’s face which placed plaintiff in fear of bodily injury, (7) Wasson then struck plaintiff about the head and face with both an open hand and a closed fist and shook and shoved him violently, (8) as a result, plaintiff was bruised about the head, neck, and shoulders; experienced pain and suffering in his head, body, and limbs; and became emotionally distraught causing his school performance and participation to be adversely affected . . .

OUTCOME: The court affirmed that portion of the lower court’s order that dismissed the count against the school district and reversed that portion of the lower court’s order that entered a judgment in bar of action as to this count. The court remanded the case to the lower court with directions to allow the student to replead his count against the school district.

_________________________________________________________________
Holman v. Illinois
47 Ill. Ct. Cl. 372 (1995)

The Claimant was attending a Halloween party at the Illinois State Museum with her grandson on October 26, 1990. The party had been advertised locally in the newspaper and through flier advertisements. The advertisement requested that children be accompanied by an adult, to come in costume and to bring a flashlight. The museum had set up different display rooms to hand out candy to the children and give the appearance of a “haunted house.” The Claimant entered the Discovery Room with her grandson.

Under normal conditions the room is arranged with tables and low-seated benches for children to use in the museum’s regular displays. These tables and benches had been moved into the upper-right-hand corner of the Discovery Room next to the wall. In the middle of the room, there was a “slime pot” display where the children received the Halloween treat. The overhead fluorescent lights were turned off; however, the track lights on the left side of the room were turned on and dim. The track lights on the right side of the room near the tables and benches were not lit. The room was dark enough that the children’s flashlights could be clearly seen. There were approximately 40-50 people in the room at the time of the accident.

The Claimant entered the room with her grandson. They proceeded in the direction of the pot in the middle of the room to see what was going in the pot. Her grandson then ran around the pot to the right corner toward the wall. As the Claimant followed, she tripped over the corner of a bench stored in that section of the room. She fell, making contact with the left corner of the bench. She experienced great pain in her upper left arm. The staff helped her to her feet. Her father was called and she went to the emergency room. Claimant has testified that she did not see the low-seating bench because it was so dimly lit in the Discovery Room. The Claimant was treated at the emergency room, where she was diagnosed with a fracture of the proximal humeral head of her left arm as a result of the fall. Claimant returned home, but was unable to work for 12 to 13 weeks.

OUTCOME: “The Claimant has met her burden of proof. She has shown by a preponderance of the evidence that the State acted negligently in placing furnishings in a dimly-lit room where visitors could not know of their location. The State did not exercise its duty of reasonable care. For the foregoing reasons, the Claimant is granted an award of $ 20,000.”

______________________________________________________________________

Ferlito v. Johnson & Johnson
771 F. Supp. 196

Plaintiffs Susan and Frank Ferlito, husband and wife, attended a Halloween party in 1984 dressed as Mary (Mrs. Ferlito) and her little lamb (Mr. Ferlito). Mrs. Ferlito had constructed a lamb costume for her husband by gluing cotton batting manufactured by defendant Johnson & Johnson Products (“JJP”) to a suit of long underwear. She had also used defendant’s product to fashion a headpiece, complete with ears. The costume covered Mr. Ferlito from his head to his ankles, except for his face and hands, which were blackened with Halloween paint. At the party Mr. Ferlito attempted to light his cigarette by using a butane lighter. The flame passed close to his left arm, and the cotton batting on his left sleeve ignited. Plaintiffs sued defendant for injuries they suffered from burns which covered approximately one-third of Mr. Ferlito’s body.

OUTCOME: Ferlito v. Johnson & Johnson: Plaintiffs repeatedly stated in their response brief that plaintiff Susan Ferlito testified that “she would never again use cotton batting to make a costume.” Plaintiffs’ Answer to Defendant JJP’s Motion for J.N.O.V., pp. 1, 3, 4, 5. However, a review of the trial transcript reveals that plaintiff Susan Ferlito never testified that she would never again use cotton batting to make a costume. More importantly, the transcript contains no statement by plaintiff Susan Ferlito that a flammability warning on defendant JJP’s product would have dissuaded her from using the cotton batting to construct the costume in the first place. At oral argument counsel for plaintiffs conceded that there was no testimony during the trial that either plaintiff Susan Ferlito or her husband, plaintiff Frank J. Ferlito, would [**9] have acted any different if there had been a flammability warning on the product’s package. The absence of such testimony is fatal to plaintiffs’ case; for without it, plaintiffs have failed to prove HN9proximate cause, one of the essential elements of their negligence claim.

In addition, both plaintiffs testified that they knew that cotton batting burns when it is exposed to flame. Susan Ferlito testified that she knew at the time she purchased the cotton batting that it would burn if exposed to an open flame. Frank Ferlito testified that he knew at the time he appeared at the Halloween party that cotton batting would burn if exposed to an open flame. His additional testimony that he would not have intentionally put a flame to the cotton batting shows that he recognized the risk of injury of which he claims JJP should have warned. Because both plaintiffs were already aware of the danger, a warning by JJP would have been superfluous. Therefore, a reasonable jury could not have found that JJP’s failure to provide a warning was a proximate cause of plaintiffs’ injuries.

The evidence in this case clearly demonstrated that neither the use to which plaintiffs put JJP’s product nor the injuries arising from that use were foreseeable.

But in Trivino v. Jamesway Corporation, the following result:

The mother purchased cosmetic puffs and pajamas from the retailer. The mother glued the puffs onto the pajamas to create a costume for her child. While wearing the costume, the child leaned over the electric stove. The costume caught on fire, injuring the child. Plaintiffs brought a personal injury action against the retailer. The retailer filed a third party complaint against the manufacturer of the puffs, and the puff manufacturer filed a fourth party complaint against the manufacturer of the fibers used in the puffs. The retailer filed a motion for partial summary judgment as to plaintiffs’ cause of action for failure to warn. The trial court granted the motion and dismissed the actions against the manufacturers. On appeal, the court modified the judgment, holding that the mother’s use of the puffs was not unforeseeable as a matter of law and was a question for the jury. The court held that because the puffs were not made of cotton, as thought by the mother, there were fact issues as to the puffs’ flammability and defendants’ duty to warn. The court held that there was no prejudice to the retailer in permitting plaintiffs to amend their bill of particulars.

OUTCOME: The court modified the trial court’s judgment to grant plaintiffs’ motion to amend their bill of particulars, deny the retailer’s motion for summary judgment, and reinstate the third party actions against the manufacturers.

Happy Halloween everyone. Remember to get those signed waivers from the children. I am personally proud to report that my oldest son Benjamin has chosen to go as a safety cone (I kid you not). It shows that risk adverse traits are dominant in the progeny of torts faculty.

In a potentially important ruling for detainees held by the United States, Illinois U.S. District Judge Michael Mihm rejected prosecution demands and sentenced Qatar native Ali al-Marri to just eight years in jail — with a possible release in less than six years. The reduction from 15 years was expressly tied to the abusive conditions and treatment of al-Marri by the United States while held as an enemy combatant in South Carolina.

Al-Marri admitted he trained in al-Qaida camps and stayed in al-Qaida safe houses in Pakistan between 1998 and 2001. He also had regular contact with Khalid Sheikh Mohammed, the mastermind behind the Sept. 11 attack, and with Mustafa Ahmad al-Hawsawi, who allegedly helped the Sept. 11 hijackers with money and Western-style clothing. He was arrested while a student at Bradley University. He was described as a “sleeper agent” without a current mission. President Bush declared him to be an enemy combatant and sent him to a Navy brig where he was abused in custody by U.S. officials.

Despite al-Marri’s claim of contrition in joining Al Qaeda, Mihm did not buy it: “I believe based on everything that I have heard that you truly do not regret what you did and that you would do it again after you go home.” That statement actually makes the decision more useful for defense lawyers. The reduction was clearly not based on contrition but on the judge’s obvious revulsion at the conduct of his own government: “My personal belief as a judge is that that was totally unacceptable. That’s not who we are.”

Al-Marri, 44, pleaded guilty to conspiring to provide material support or resources to a foreign terrorist organization. Material support is a favorite charge of the Justice Department because it was written by Congress so broadly that virtually any act can be defined as material support.

The Justice Department has suggested that it may appeal, though these decisions are laden with discretion for the trial court. Mihm is a Reagan appointee and a conservative jurist who grew up on a farm in rural Illinois. He recently announced his retirement from the bench.

With hundreds of detainees still held (and reports of similar abuse and torture by the United States), Mihm’s approach could well be duplicated by other civilian judges. It was not the approach taken with Jose Padilla, who was also held in South Carolina. He was given 17 years for conspiracy and the Justice Department moved aggressively to bar the consideration of his abuse in U.S. custody.

For the story, click here.

South Carolina appears to have finally moved beyond the Sanford affair. Deputy assistant attorney general Roland Corning, 66, has been fired after he was stopped in his SUV by police during his lunch break. The problem was that he was found with a stripper, Viagra, and sex toys in a cemetery.

When Officer Michael Wines approached, Corning sped off but was pulled over a few blocks away. The woman turned out to be an 18-year-old stripper from the Platinum Plus Gentleman’s Club.

The case, however, gets a bit more interesting. Corning was not arrested after he flashed his credentials as a Deputy Assistant Attorney General. Corning is also a former state legislator.

In the end, the use of the credentials backfired because Wines called the state Attorney General’s office. He spoke to his wife who happens to work there. She then told her supervisor, who told Attorney General Henry McMaster. McMaster appears to reject any innocent explanation (like attending a private funeral) and instead stated that “by the close of business, he was no longer working here.”

However, if the stop did not warrant a ticket, why does it warrant termination? Conversely, if it did warrant a ticket, did the officer act improperly in not making the arrest once told that the man was Deputy Attorney General?

Police often make arrests at locations known to be frequented by prostitutes. This case is likely to see future “johns” demand that same treatment.

For the full story, click here and here.

Associate Judge Robert Livas may be put on a vegan diet. The former prosecutor and former police officer is in hot water over a curious order that he placed for Jamaican-style chicken as part of a plea agreement with Darrius Logan. Logan, 24, pleaded guilty to misdemeanor battery and criminal trespass charges and was sentenced to 100 hours community service. Then things got funky . . . Jamaican-chicken funky . . .

In August, Logan told Livas that he performed his 100 unpaid hours at Uncle Joe’s Jerk Chicken (a curious approach to community service, but there you have it). Livas told Logan to return to court in two month with either proof that he completed his service hours elsewhere or enough spiced chicken to feed the courtroom. Livas took him literally and showed up on October 6th with a tray of Uncle Joe’s jerk chicken, bread and two sides of hot sauce. (The bread and sides were probably to be counted against his next crime).

Here is the exchange from August 4th:

Livas: “If you walk in with enough chicken to feed everybody, I’ll accept these community service hours. If you don’t, I’m not taking any of them. . . . Does that come with slaw?”

Logan: “No, It’s just — it’s barbecue chicken, actually.”

Livas: “That’s great stuff. If you walk around there and feed everybody, it’s going to be OK.”

Livas insisted that he was joking in August, but decided that Logan had moved from his earlier paltry to his poultry submission in good faith: “It forced me to keep my word and accept his original (community service) letter. I give him credit — he made me eat my words.”

He may be eating some serious crow. Chief Judge Gerald Kinney of the 12th Judicial Circuit is not amused and referred the matter for judicial investigation. It is improper to accept foodstuffs and personal benefits in exchange for plea bargain conditions.

Notably, there were objections from the prosecution that something was rotten in the state of Denmark. Assistant State’s Attorney Sondra Demark did not like the idea of accepting chicken from any jerk, let alone jerk chicken. She told her bosses who called the chief judge.

Notably, when Logan appeared with the chicken another jurist, Associate Judge Marzell Richardson, asked “You brought a tray of chicken? . . And that was going to satisfy your community service work?” He sent him to sent him to Livas’ courtroom where the chicken was devoured by the course of justice.

Notably, Livas stated in the transcript “I was so nervous about bringing it in here, though, because I knew everybody was going to laugh at me.” He was right but a few people are notably not laughing.

For the full story, click here.

Kudos: Jordan Silver

With Bernie Madoff and other crooks, we have become used to Ponzi schemes. However, lawyer Kevin Cohen of Roslyn, New York is accused of a rather unique variation on this criminal theme: a baby Ponzi scheme.

Cohen faces up to 15 years in the case and is described by Nassau County District Attorney Kathleen Rice as “an evil, heartless act by a man who would say or do anything to steal money from good people.”

An indictment accused Cohen of grand larceny and other charges related to his promising adoptions to couples from New York, Georgia, Ohio, Texas and Florida. He is accused of ripping off the couples of at least $300,000. That is a lot of Ponzi pampers.

For the full story, click here.

In a surprise verdict, a jury acquitted former judge Herman Thomas of sexual abuse, attempted sodomy, and assault related to allegations that he brought inmates to his chambers for sex and spankings. The judge insisted that he brought the men to his office to “mentor” them, but prosecutors put forward evidence of semen on the carpet and testimony of numerous former inmates that they had sex with him or allowed him to spank them for lenient treatment.

After being acquitted by the jury on major counts (but hanging on other counts), the trial judge directed a verdict on all counts in favor of Thomas.

This is a major victory for defense attorney Robert Clark who insisted that the judge was “trying to get them to do right, to be productive citizens.” Prosecutors put forward evidence that placed a different meaning on what Thomas thought was “getting them to do right” or be “productive.” However, some of their witnesses had to be dropped and one said that he was pressured to implicate the judge by his defense lawyer, here.

Thomas is now going to seek the reinstatement of his law license.

For the full story, click here

There is an incredible story out of Chicago and my alma mater Northwestern University. The Cook County District Attorney has issued a sweeping subpoena to the Innocence Project at the acclaimed Medill School of Journalism — demanding such things as the grades and emails of students who worked on an investigation of the case of Anthony McKinney. The students found compelling evidence of innocence and the prosecutors are now pounding them with demands for personal information and communications. I just completed doing NPR’s Talk of the Nation on the case with Professor Barry Scheck.

The students took three years to compile evidence of McKinney’s possible innocence. He has been in jail for 31 years for a murder that he may not have committed. McKinney was convicted of the murder of Donald Lundahl, a security guard on Sept. 15, 1978.

Professor David Protess of the university’s Medill School of Journalism was hit by the subpoena demanding grades and grading criteria, evaluations of student performance, expenses incurred during the inquiry, the syllabus, e-mails, unpublished student memos, and interviews .

It is a transparently hostile effort directed at the students who have previously helped uncover at least 11 false convictions in Illinois. The Chicago prosecutors have been repeatedly embarrassed by these cases of innocence and seem to be much more interested in finding ways to disparage the students than confirming the innocence of this man.

Usually these fights over journalistic privilege begin with an effort to obtain evidence of guilt of a suspect. Here prosecutors are seeking evidence of the motivation of the students — a marginally relevant inquiry at best. The project had already made available its taped interviews with witnesses who have recanted prior or contradicted prior testimony.

Prosecutors are arguing that these are not actual journalists covered under the Reporters Privilege under Illinois law. University student journalists are routinely given the same protection as other journalists. However, the state may argue that they do not fit the definition below:

§ 8-902. Definitions. As used in this Act:
(a) “reporter” means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis; and includes any person who was a reporter at the time the information sought was procured or obtained.
(b) “news medium” means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.
(c) “source” means the person or means from or through which the news or information was obtained.

It would have been wiser to place this project under the law school where the students would have been protected by attorney-client privilege.

The Supreme Court has long given little protection to journalists, particularly student journalists. In Zurcher v. Stanford Daily , 436 U.S. 547 (1978), the Supreme Court rejected first amendment and fourth amendment challenges to a police search of a press office — an effort to obtain photographs of a demonstration that took place at the campus’ medical center in April 1971. The Court rejected claims of any special protection for journalists — prompting the push for “shield laws” like the one in Illinois.

The subpoena here is abusive and excessive. It is shows not only hostility toward the Innocence Project but a contempt for journalistic work by Anita Alvarez, the State’s Attorney for Cook County.

For the full story, click here.

Patricia Sylvester may have learned the ultimate lesson of “never ask a question in trial that you do not know the answer to.” Sylvester, 49, was overjoyed when a jury came back with a “not guilty” to vehicular assault in Island County Superior Court in Washington. While she cried with joy, Judge Alan Hancock polled the jury only to have one woman say that she didn’t agree with the “not guilty” verdict. He sent the jury back to voted again. By the time they had returned, they had convicted Sylvester.

I have serious reservations about this process since this “second bite at the apple” could have been influenced by the reaction in the courtroom and the defendant’s reaction. Sylvester was charged after an accident in 2008 that left a man with a collapsed lung and three fractured ribs. She was driving a 1996 Acura when she braked to avoid a car and lost control of her car. He hit a Subaru driven by Michael Nichols.

The jury still found her not guilty of the offense of committing vehicular assault while intoxicated.

There are some reports indicating that the holdout juror was consistent in her voting and that the jury misunderstood a jury instruction regarding the necessity of a unanimous decision. I am not sure how “unanimous” is ambiguous but they believed that every vote was not needed for a not guilty verdict.

In their defense, they had sent questions about the unanimous verdict requirement, but obviously remained confused.

Jurors said that, when the judge sent them back, they looked more seriously at the evidence and found guilty.

It is hardly comforting that they took the time to look more seriously at the evidence after the verdict was announced. The defendant’s reaction and that of the courtroom could have influenced their response. It is true that a judge will often tell a divided jury to continue their deliberations. However, this is a materially different matter when the jury has been called to publicly identify their votes in open court. It seems to me that the earlier divided vote was an accurate tally and, if the court was not going to accept the not guilty verdict (which is understandable), a mistrial would be in order.

This case shows why lawyers need to ask for a polling of the jury if a court does not do so automatically — when you are on the losing side. However, in this case, Sylvester’s attorney reportedly asked for the polling. I am not sure why you would want to poll a not guilty jury. The attorney may have suspected a division and wanted to put the matter to rest for appeal. Yet, it was a gamble for the same reason that cost the client dearly.

It is not malpractice to do so. Such matters are treated as matters of discretionary tactics.

For the full story, click here.

In an attack both on free speech and the free press, Saudia Arabia has ordered a female journalist to be flogged 60 times for airing an interview with a man who bragged about his sex life. Rosanna Al-Yami was also given a two-year travel ban for her role in the episode of “A Thick Red Line,” a popular show on social taboos.

On the episode, Mazen Abdul Jawad bragged about sex. He was given a sentence of five years in prison and 1,000 lashes.

The world has become accustomed to outrageous sentencings under Sharia law courts. However, this pushes even prior Saudi cases to an unprecedented degree with a direct attack on journalists. This case comes in the aftermath of the Obama Administration supporting a United Nations resolution that recognized the need to balance free speech and free press rights with a respect for religion. It also called on reporters to show more restraint and responsibility. For a prior column, click here.

For the full story, click here.

The woman at the center of one of the most shocking rape cases of the last decade has recanted her story. Megan Williams has now admitted that she made up the story of being raped and abused in a trailer in West Virginia in 2007 that sent six people to prison. However, various leaders who protested the case at the time are now calling her a liar in her recantation.

Attorney Byron Potts, her lawyer, insists that Williams “is recanting her entire story. She says it did not happen. She fabricated it . . She wanted to get back at her boyfriend. She was mad at him.”

Police found Williams with cuts and bruises. She claimed that she had been stabbed, beaten, forced to eat feces and subjected to a racial slur by her white captors. She is African American.

Her testimony sent away a mother and son, a separate mother and daughter, and two men. It also brought out Rev. Al Sharpton who rallied those angered over the case and may now be able to claim two racial rape hoaxes to his credit, here (Three, if you include the Duke Lacrosse rape case). While saying that innocent people should not be in jail, Sharpton suggested some skepticism over the victim’s recanting: “If there are other circumstances around the recanting, we should know what they are.” Other leaders who spoke out on the case have insisted that she must be lying now, here.

Some of the defendants were given up to 40 years in prison.
Potts insists that Williams is feeling “total remorse; that’s why she’s coming forward. She is remorseful for having these people spend time in jail.”

Notably, the defendants confessed in the case, though innocent defendants have been previously found to have confessed to crimes to avoid longer sentences.

The prosecutor who secured those convictions, Brian Abraham, insists that the denial of the victim really should not matter much because of those confessions: “The case wasn’t based on her statements. . . All six of them have been in jail without filing appeals. If they file something afterwards, the evidence was pretty overwhelming for the charges on which they were convicted.”

For the full story, click here.

Former New York City Police Commissioner Bernard Kerik has been sent to jail to await his corruption trial next week. I am not sure which is worse, the jailing or the view of Judge Stephen Robinson of the defendant, who he described as “a toxic combination of self-minded focus and arrogance.” That is not a particularly promising start to a criminal trial.

Robinson revoked Kerik’s $500,000 bail after Kerik disclosed sealed case information to the trustee of his legal defense fund, which was then shared with the Washington Times. The court rejected Kerik’s claim that the trustee was also a lawyer who was part of his legal team — and thus entitled to the information.

Fearing that Kerik will try to “influence witnesses or prospective jurors,” Robinson ordered him locked up: “My fear is that he has a toxic combination of self-minded focus and arrogance, and I fear that combination leads him to believe that his ends justify his means.”

Next week is only his first trial. A second trial on tax charges and a third trial on lying to the White House are being scheduled.

For the full story, click here.

Of course, Robinson’s description of Kerik was a bit better than the accidental description by Bill Ridder of Kerik as the “top cock” below:

In defense of Ritter, it was clearly an unintentional mistake. Indeed, “top cop” has proven the undoing of many a seasoned reporter:

An unnamed Albertsons cashier has won an appeal in a disability case (and $200,000) where her store manager refused to allow her to take a bathroom break — leading to an embarrassing accident at the checkout counter. Once again, I wonder at the legal judgment in taking this case to adjudication and appeal.

The clerk had gone through cancer treatment in 2004 — leaving her with dry mouth and the need to drink a great deal of water. In 2005, a new manager broke with a prior practice of allowing her to take liberal bathroom breaks and refused three requests for her to take a break on one night. After having the accident, the woman fell apart emotionally and had to be committed to a psychiatric hospital for several days before returning to work.

The store insisted on litigating the case and a jury ruled against it — awarding the woman $12,000 for lost wages, $40,000 for medical expenses and $148,000 for emotional distress. The store then appealed the verdict, insisting that a year of liberal bathroom breaks was enough.

It has now lost that appeal. Yet, you guessed it, the store is thinking of appealing to the Supreme Court. Putting aside the cost of the case, it would seem that this is not the type of case that the store would want to continue to publicize to the world. Denying cancer victims bathroom breaks is not exactly a positive image — let alone forcing them to have accidents at checkout lines. I understand that the store believes the woman should have explained her condition more clearly to the new manager or just taken the bathroom break without his permission. However, there are some cases where a settlement is the better part of valor.

For the full story, click here.

In light of our recent posting on the man arrested for making coffee in the nude in his own home, this case out of Grand Forks is interesting. Nicole Altendorf, 37, is accused of watching pornography in her own home but allowing the images and noises to be seen and heard from Lake Agassiz Elementary School.

Altendorf appears a stronger case for prosecution where the police allege that she intentionally broadcasted porn to the kids — an amazingly twisted idea.

When police Cpl. Dylan Schauer arrived at the home, he found pornography on the television and the police report stated “We made contact with the suspect, who was not compliant in any way. She refused to come out and physically resisted. She was finally extracted by force from her entryway.” She is accused of biting Schauer and kicking him. She then allegedly spat in his face. What a perfect person to live near an elementary school: an allegedly violent, psychotic porn addict with a exhibitionist fetish.

And to think that I was always worried about the mean looking old lady with the cat when I was growing up.

The broadcasted porn was so loud that school employees could easily identify it and the source. They could also see porn from the street.

Her attorney, Ted Sandberg, however, assured that court that “this is an isolated incident.” I appreciate a good lawyer doing his best, but the Hindenburg was an isolated incident as well.

For her part, Altendorf told the court at the bail hearing, “I have a cold” and denied touching anyone.

She is charged with simple assault of an officer, contact by bodily fluids and preventing arrest. She is also charged with possession of drug paraphernalia in the form of a pipe for smoking marijuana.

Notably, the display of the pornography is a misdemeanor count of disorderly conduct. Her main problems, it turns out, are related to the arrest and not her traumatizing elementary students.

For the full story, click here

Former Mobile County Circuit Judge Herman is offering a defense in his criminal case that may strike some as more appropriate for the Marquis de Sade than an Alabama jurist. Accused of having inmates brought to his chamber for sex and spanking, Herman insists that he was trying to rehabilitate and educate the men.

There are 11 alleged victims — down from 15 with 50 counts (also a reduction from the original indictment).

His defense attorney Robert Clark insists that Thomas, 48, was just “mentoring them. He was trying to get them to do right, to be productive citizens.”

One of the former inmates has testified that he is not sure why his semen was found on the judge’s carpet, but admitted that he was spanked with a belt by the judge on several occasions.

The prosecutors insist that these inmates were given preferential treatment by the court. Conversely, when some refused, the judge allegedly gave them excessive sentences.

If the judge ultimately admits to the paddling, it will be awfully hard to convince that the forensic and testimonial evidence does not show a less than educational approach to justice.

For the full story, click here.

Israel’s Prime Minister Benjamin Netanyahu seems to be morphing into George W. Bush. Faced with findings of a respected former war crimes prosecutor that Israel may have committed war crimes in its Gaza offensive, the prime minister instructed his government to seek changes to the international laws of war to retroactively justify any actions taken in Gaza.

The prime minister’s office announced that “the prime minister instructed the relevant government bodies to examine a worldwide campaign to amend the international laws of war to adapt them to the spread of global terrorism.”

Netanyahu justified the post hoc move in truly Bushian terms: “We are struggling to delegitimise the ongoing attempts to delegitimise Israel.”

Israel’s position in resisting the war crimes investigation is undermining the very foundation of international law and the law of war. Israel has a right to defend itself, but the report is challenging the specific means used in the offensive. I am amazed at how transparent and counterproductive this campaign is for Israel. To seek a retroactive change in the law of war puts the country on the wrong side of history.

For the full story, click here.

Now, this is some pretty vicious litigation. Miss California USA officials want Carrie Prejean to give back the $5,200 that they say she borrowed to have her breasts augmented last year. Prejean is suing the pageant in a lawsuit that includes a privacy violation related to the disclosure of the augmentation.

The lawyers for the pageant insist that the truth over Prejean’s procedure “ceased being private during the swimsuit competition of the nationally televised Miss USA pageant, in which Ms. Prejean walked the stage in a bikini.”

They are seeking money from any profits from Prejean’s book due out next month, which they claim was written in violation of her pageant contract. They promise to donate the proceeds to charity — presumably to pay for augmentation for the impoverished.

Also notable in the filing is the incorporation of Biblical authority: “[Prejean] attempts to cast herself as a virtuous young woman and the victim in a supposed conspiracy against her. Had she heeded the guidance of the Gospel of John, who admonished only those who are without sin to cast stones in judgment, she might have avoided this legal battle — which will ultimately reveal the hypocrisy of Carrie Prejean.”

For the full story, click here.

Former Contra Costa County sex crimes prosecutor Michael Gressett has been accused of a sex crime in the raping of a colleague. The California lawyer is free on bail after being indicted on the charges, which he denies through counsel. While Deputy District Attorney, Gressett has run three times for district attorney.

Gressett, 52, is accused by a prosecutor in another county. The 30-year-old woman says that she agreed to sleep with Gresset but objected to his demands which, among other things, included a gun put to her head and handcuffs in May 2008.

Gressett was fired after the allegations in July, but insists that these were playful devices and that his political opponents are using the case against him. His lawyers are also attacking the alleged victim as having a troubled history.

What is interesting in the case is that the defense has won a major victory in getting the court to rule that the woman could be questioned in open court in a preliminary hearing. The prosecutors then circumvented the preliminary hearing by going to a grand jury instead — a move denounced by the defense as trying to protect the witness from being confronted on her own history.

What is also interesting is the protection of the woman’s name. There has long been a controversy over why a defendant’s name is made public but not his accuser in a rape case. Some have argued that either both names or neither name should be withheld. Here the alleged victim is a prosecutor who is being protected from being publicly named while the former prosecutor has been named.

If convicted, Gressett may regret one of his chief campaign positions:

Plea-bargaining in this area must be curtailed as these types of crimes present the greatest danger to the safety and well being of our citizens.
I plan to initiate a “real” No Plea-Bargaining Policy, including maximum prosecution of murder, rape, armed robbery and other violent felonies. In order to monitor and ensure the execution of this Policy, I plan to implement my “Justice System Accountability Program” (JSAP) whereby the decisions being made within Contra Costa County’s Prosecutorial and Judicial systems will be publicly accessible via the Internet.

For the full story, click here.

Prosecutors in Minneapolis have a fascinating case involving assisted suicide and free speech. Nurse William Melchert-Dinkel, 47, is accused of using Internet chat rooms to convince people to commit suicide, giving them step-by-step instructions on how to kill themselves — preferably so he could watch. At least two people are believed to have fed Melchert-Dinkel’s fetish with their deaths: Nadia Kajouji, 18, and Mark Drybrough, 32 (shown here).

Melchert-Dinkel is quoted in such Internet exchanges as “Most important is the placement of the noose on the neck … Knot behind the left ear and rope across the carotid is very important for instant unconciousness and death.” Drybrough hanged himself at his home in Coventry, England in 2005 while Nadia Kajouji, a student at Carleton University, drowned herself in Brampton, Ontario.

Melchert-Dinkel has been stripped of his nursing license but insists that, as for any criminal charges, “nothing is going to come of it. I’ve moved on with my life, and that’s it.”

Well, it’s certainly good to have a life to move on with.

He may be right, however, about the difficulty of a prosecution — though I expect criminal charges will be brought. This is not your standard assisted suicide case since it involves only speech. Police often deal with people who scream Jump! at people standing on the edge of windows or bridges. What is the difference between that act (which is generally not prosecuted) and giving the same advice on the Internet? There is no question that this is a horrible and destructive fetish. However, many people in such chat sites are simply engaging in fantasy.

In the case of Melchert-Dinkel, it seems like he was actually trolling for vulnerable people, but is that a crime? If so, where do we draw the line? There are many caring people who believe in assisted suicide to relieve the pain of the terminally ill (though neither of these victims appear to have been terminally ill). How do you draw the line between giving such advice to someone terminally ill as opposed to depressed or demented on the Internet?

What if Melchert-Dinkel merely used the words to MASH’s Suicide is Painless below in his communications?

Through early morning fog I see
Visions of the things to be
The pains that are withheld for me
I realize and I can see…

That suicide is painless
It brings on many changes
and I can take or leave it if I please.

The game of life is hard to play
I’m gonna to lose it anyway
The losing card I’ll someday lay
So this is all I have to say

That suicide is painless
It brings on many changes
and I can take or leave it if I please

The sword of time will pierce our skins
It doesn’t hurt when it begins
But as it works its way on in
The pain grows stronger…watch it grin

And Suicide is painless
It brings on many changes
and I can take or leave it if I please.

A brave man once requested me
To answer questions that are the key
Is it to be or not to be
and I replied ‘oh why ask me?

And suicide is painless
It brings on many changes
and I can take or leave it if I please.

and you can do the same thing if you please.

It is interesting that the state not the federal authorities are moving on the case. This may be a reflection of the fact that the feds do not have an assisted suicide law as opposed to the Minnesota prosecutors. It could also reflect a concern by the Justice Department that this could be challenged on constitutional grounds.

The state investigators report that Melchert-Dinkel “admitted he has asked persons to watch their suicide via webcam but has not done so.” They state that he used anonymous names such as “Li Dao,” “Cami” and “Falcon Girl.” He was later found to have what a hospital terms as a “suicide fetish.”

For the story, click here.

Today’s column on blasphemy laws may be too narrow. In San Francisco and London, activists are demanding that denigrating someone as fat should be treated as a hate crime like race, age, or faith. “Fatism” is already banned in San Franscisco in housing and workplaces.

The San Francisco law even restricts doctors pressuring patients to lose weight. Now, activists are demanding the same type of protection in London. The effort is part of the Size Acceptance Movement, which probably began with the reign of Henry VIII but was more recently formed to end discrimination against the over-sized. Discriminatory businesses and people (who I presume will be called “fatists”) would be treated the same as people who engage in racist hate speech.

As a fairly Rubenesque male, I am sympathetic but fail to see how such a law can be enforced without putting courts on a slippery slope of drawing a line over weight discrimination. I believe that there is extreme prejudice against fat people in our society. However, hate speech is already a controversial issue over limitations on free speech. To now expand it to include weight issues would threaten to destroy the First Amendment in a series of exceptions. “Fatism” cases will leave free speech itself in a anorexic condition.

For the full story, click here.

In American politics there are few more polarizing figures than Al Sharpton and Rush Limbaugh. Now, in what will be a spasmodic moment of euphoria for many, Sharpton and Limbaugh may be going to court with the former suing the latter for defamation. Putting aside the sheer joy of the moment for many, the case could present some interesting questions over whether Limbaugh defamed Sharpton in a Wall Street Journal Op-ed.

Sharpton accused Limbaugh of “erroneously” characterizing his role in a string of violent incidents in New York in the early 90’s. Limbaugh stated that Sharpton “played a leading role in the 1991 Crown Heights riot (he called neighborhood Jews ‘diamond merchants’) and 1995 Freddie’s Fashion Mart riot.”

There is no question that Sharpton was involved in the protests that followed an accident where a Hasidic Rabbi accidently struck and killed an African American boy with his car.

Sharpton is relying on a study commissioned by former New York Governor Mario Cuomo that showed Sharpton was not involved in the Crown Heights incident until after the rioting had ended. The existence of such a report can be used to satisfy the higher standard for the defamation of public figures like Sharpton. Under the New York Times v. Sullivan standard, Sharpton would have to show knowing falsehood or reckless disregard of the truth.

Ironically, Limbaugh was using the column to contest his being dumped as a possible co-owner in an NFL team due to his past inflammatory statements, particularly on race issues. Limbaugh has made such comments as “the NFL all too often looks like a game between the Bloods and the Crips without any weapons.” He resigned in 2003 from ESPN after he said that all the positive coverage of Philadelphia’s Donovan McNabb was due to the fact that media was “very desirous that a black quarterback do well.” (here).

It is equally ironic to see Sharpton cry defamation. Of course, he lost in the defamation case involving Tawana Brawley. In 1987, Sharpton made himself a national figure when he organized protests after Brawley was found inside a plastic bag behind an apartment house in Wappingers Falls, N.Y. She was covered with feces and racial epithets smeared on her body and accused various white men, including Steven A. Pagones, a former Dutchess County assistant district attorney. Sharpton attacked Pagones and the other men with Ms. Brawley’s lawyers, Alton H. Maddox Jr. and C. Vernon Mason.

A grand jury eventually found that the account was a hoax and Pagones successfully sued Sharpton, Maddox, Mason and Brawley. Sharpton has never apologized for his role and failed to pay the damages until various businessmen came forward to pay the damages for him in 2001.

Sharpton is known of publicly trashing other individuals or groups. He notably does not deny that he called Jews “diamond merchants.” His heated rhetoric is often criticized as using social problems for his own advancement, chanting such things as “Whose streets? Our streets!”. In one speech, he screamed “If the Jews want to get it on, tell them to pin their yarmulkes back and come over to my house.” In the Crown Heights matter, he was widely viewed as fueling the anger and anti-Semiticism in the area. His financial dealings have been almost as controversial as his political dealings, here.

Having a Sharpton v. Limbaugh battle is almost too much for most hearts to bear like a legal version of Mothra vs. Godzilla. The key is going to be the meaning of “role in the 1991 Crown Heights riot.” If Limbaugh had simply said, “Crown Heights protests” or “Crown Heights controversy,” he would be able to secure an easy dismissal of such a lawsuit. Limbaugh, however, may try to shift the focus from the noun “riot” to the noun “role.” He could argue that Sharpton’s over-heated rhetoric had helped create the tensions that ignited in the riots.

Below is the best simulation of the possible court fight that might ensue in New York:

For the story, click here.

Here is today’s column in USA Today on the Obama Administration’s decision to join the U.N. Human Rights Council and support Egypt in recognizing limits on free speech for those who insult or denigrate religion. While the exception was included in a resolution heralding free speech, it was viewed as a major victory for Muslim countries seeking to establish an international blasphemy law.

Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.

While attracting surprisingly little attention, the Obama administration supported the effort of largely Muslim nations in the U.N. Human Rights Council to recognize exceptions to free speech for any “negative racial and religious stereotyping.” The exception was made as part of a resolution supporting free speech that passed this month, but it is the exception, not the rule that worries civil libertarians. Though the resolution was passed unanimously, European and developing countries made it clear that they remain at odds on the issue of protecting religions from criticism. It is viewed as a transparent bid to appeal to the “Muslim street” and our Arab allies, with the administration seeking greater coexistence through the curtailment of objectionable speech. Though it has no direct enforcement (and is weaker than earlier versions), it is still viewed as a victory for those who sought to juxtapose and balance the rights of speech and religion.

A ‘misused’ freedom?
In the resolution, the administration aligned itself with Egypt, which has long been criticized for prosecuting artists, activists and journalists for insulting Islam. For example, Egypt recently banned a journal that published respected poet Helmi Salem merely because one of his poems compared God to a villager who feeds ducks and milks cows. The Egyptian ambassador to the U.N., Hisham Badr, wasted no time in heralding the new consensus with the U.S. that “freedom of expression has been sometimes misused” and showing that the “true nature of this right” must yield government limitations.

His U.S. counterpart, Douglas Griffiths, heralded “this joint project with Egypt” and supported the resolution to achieve “tolerance and the dignity of all human beings.” While not expressly endorsing blasphemy prosecutions, the administration departed from other Western allies in supporting efforts to balance free speech against the protecting of religious groups.

Thinly disguised blasphemy laws are often defended as necessary to protect the ideals of tolerance and pluralism. They ignore the fact that the laws achieve tolerance through the ultimate act of intolerance: criminalizing the ability of some individuals to denounce sacred or sensitive values. We do not need free speech to protect popular thoughts or popular people. It is designed to protect those who challenge the majority and its institutions. Criticism of religion is the very measure of the guarantee of free speech — the literal sacred institution of society.

Blasphemy prosecutions in the West appear to have increased after the riots by Muslims following the publication of cartoons disrespecting prophet Mohammed in Denmark in 2005. Rioters killed Christians, burned churches and called for the execution of the cartoonists. While Western countries publicly defended free speech, some quietly moved to deter those who’d cause further controversies through unpopular speech.

In Britain, it is a crime to “abuse” or “threaten” a religion under the Racial and Religious Hatred Act 2006. A 15-year-old boy was charged last year for holding up a sign outside a Scientology building declaring, “Scientology is not a religion, it is a dangerous cult. “In France, famed actress Brigitte Bardot was convicted for saying in 2006 that Muslims were ruining France in a letter to then-Interior Minister (and now President) Nicolas Sarkozy. This year, Ireland joined this self-destructive trend with a blasphemy law that calls for the prosecution of anyone who writes or utters views deemed “grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage.”

‘Blasphemy’ incidents
Consider just a few such Western “blasphemy” cases in the past two years:

• In Holland, Dutch prosecutors arrested cartoonist Gregorius Nekschot for insulting Christians and Muslims with cartoons, including one that caricatured a Christian fundamentalist and a Muslim fundamentalist as zombies who want to marry and attend gay rallies.

• In Canada, the Alberta human rights commission punished the Rev. Stephen Boission and the Concerned Christian Coalition for anti-gay speech, not only awarding damages but also censuring future speech that the commission deems inappropriate.

• In Italy, comedian Sabina Guzzanti was put under criminal investigation for joking at a rally that “in 20 years, the pope will be where he ought to be — in hell, tormented by great big poofter (gay) devils, and very active ones.”

• In London, an aide to British Foreign Secretary David Miliband was arrested for “inciting religious hatred” at his gym by shouting obscenities about Jews while watching news reports of Israel’s bombardment of Gaza.Also, Dutch politician Geert Wilders was barred from entering Britain as a “threat to public policy, public security or public health” because he made a movie describing the Quran as a “fascist” book and Islam as a violent religion.

• In Poland, Catholic magazine Gosc Niedzielny was fined $11,000 for inciting “contempt, hostility and malice”by comparing the abortion of a woman to the medical experiments at Auschwitz.

The “blasphemy” cases include the prosecution of writers for calling Mohammed a “pedophile” because of his marriage to 6-year-old Aisha (which was consummated when she was 9). A far-right legislator in Austria, a publisher in India and a city councilman in Finland have been prosecuted for repeating this view of the historical record.

In the flipside of the cartoon controversy, Dutch prosecutors this year have brought charges against the Arab European League for a cartoon questioning the Holocaust.

What’s next?
Private companies and institutions are following suit in what could be seen as responding to the Egyptian-U.S. call for greater “responsibility” in controlling speech. For example, in an act of unprecedented cowardice and self-censorship, Yale University Press published The Cartoons That Shook the World, a book by Jytte Klausen on the original Mohammed cartoons. Yale, however, (over Klausen’s objections) cut the actual pictures of the cartoons. It was akin to publishing a book on the Sistine Chapel while barring any images of the paintings.

The public and private curtailment on religious criticism threatens religious and secular speakers alike. However, the fear is that, when speech becomes sacrilegious, only the religious will have true free speech. It is a danger that has become all the more real after the decision of the Obama administration to join in the effort to craft a new faith-based speech standard. It is now up to Congress and the public to be heard before the world leaves free speech with little more than a hope and a prayer.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.

USA Today: October 19, 2009

Keith Bardwell, justice of the peace in Tangipahoa Parish, Louisiana has become an infamous figure overnight after he refused to marry an interracial couple out of concern for their possible children. However, he helpfully explained “I’m not a racist. I just don’t believe in mixing the races that way.”

Could have fooled me.

I take it that he is not a big fan of Othello.

Bardwell seems to be laboring under the misconception that he can administer his office along racial lines and that insisting on people marrying within their race is not racist.

He insists that “I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.”

“Piles” of minority friends who are even allowed to use his bathroom.

He insists that he is just thinking of the kinder: “There is a problem with both groups accepting a child from such a marriage,. I think those children suffer and I won’t help put them through it.”

In the past 2 1/2 years, Bardwell says that he has refused to marry at least four couples. This includes the most recent “unacceptable” couple Beth Humphrey, 30, and Terence McKay, 32.

They are in the same position as Mildred Loving (Mildred Delores Jeter) and Richard Perry Loving. The interracial couple that led to Supreme Court to strike down the Racial Integrity Act, a state law banning marriages between any white person and any non-white person. While the Lovings were prosecuted under the law, the unanimous ruling in Loving v. Virginia, 388 U.S. 1 (1967) established that it was unconstitutional to deny such licenses to interracial couples.

Obviously, Bardwell has to be stripped of his position. There is also the question as to the status of his bar license since some bars deny licenses to lawyers with known racist views. Finally, there is the potential for civil liability since he is violating the constitutional rights of these couples.

The couple has come forward to express their anger and disgust over the incident, here.

For the full story, click here and here.

President BarackN Obama, the world’s newest Nobel peace laureate, is again expanding on the policies of former President George Bush and fighting to conceal evidence of U.S. torture and abuse. As did the Bush Administration, the Obama Administration is seeking to change the law after courts rejected its absurd argument that the President can withhold photos of detainee abuse simply because they are embarrassing to the United States. Democrats in Congress are assisting in the effort to try to stop the Supreme Court from considering the issue by preempting the litigation.

This is the problem of nominating someone for the Nobel prize less than two weeks after entering office, here. Obama has thus far worked as a barrier rather than a catalyst for international law and values in the areas of torture and abuse. His position in the case of ACLU v. Department of Defense is reprehensible and exceeds the arguments made by Bush. He is claiming that he can deny the media and the public such pictures simply because he views them as controversial and likely to cause anger from Muslims. It is an exception that would swallow the rule.

As some of stated at the time, this argument is legally meritless and that is precisely what the courts have concluded. Now, however, Obama has taken another lesson from Bush. Unable to win on the merits, he has called on Congress to simply change the rules before the Supreme Court can vote. Democrats have joined the effort and are now close to passing legislation to remove the courts from the controversy. This is what Obama supportedW on the telecom litigation, where courts had rejected arguments of executive authority and Congress stepped in to extinguish dozens of public interest lawsuits.

The position of President Obama in the case is disgraceful. Solicitor General Elena Kagan has admitted that the pictures show such things as “soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees.” In another, “a soldier holds a broom as if ’sticking its end into the rectum of a restrained detainee.’” Kagan has taken the extraordinary step of asking the Court to delay considering the case to allow Congress to kill the litigation through legislation. As a result, no court would be allowed to rule on the release of the 87 photographs and authority would be transferred to the Defense Department.

Had Bush done such a thing (giving the Pentagon control) Democrats would have been in the streets. However, Democratic leaders are supporting the effort, the media is largely silent, and the Democratic base is passive. The move contradicts Obama’s pledge of transparency in government. It contradicts his pledge to make a full account of abuses. It makes of mockery of his award of the Nobel for encouraging international “dialogue”. It appears that that dialogue must still occur on the terms set by the United States and specifically avoids evidence that would embarrass the United States or show clearly how it has violated international law.

For the story, click here.

Thanks to one of my torts students, we have another interesting “dram shop” case. In New Jersey, Christine Mancision has filed a lawsuit after she was hurt by the drunken brother of the bride, Mary Graeber, at a wedding. James Graeber apparently is well named. He grabbed Mancision on the dance floor and ultimately knocked her down, causing her to break her wrist and requiring the insertion of a metal plate to reconstruct the wrist. However, she is not just suing Graeber but Hyatt Hotels Corp. for another $1 million in damages under New Jersey’s “dram shop” law.

Mancision, 27, was attending the wedding with her boyfriend, Brett Henige, who was invited to the wedding by his boss, groom Chris Beley. Brett immediately fingered James, who apparently was also a standout at the bachelor party as well.

Her claim against the brother is a simple battery count. It is the hotel claim that makes this one interesting. Hotels do fall under dram shop laws and she is alleging that the brother was visibly intoxicated but continued to be served alcohol. As we have seen with dram shop cases at stadiums (here), these are difficult cases for businesses. Weddings are very chaotic and fluid events. There is wine usually at the tables and an open bar. Hotels do not want to be an overriding or broodish presence at such functions by cutting off family members. More importantly, even if the bartender cuts off the bride’s brother, he can usually obtain the booze from the tables or friends.

Mancision’s lawyer does not see it that way. Kyle Watters objects, “I think the Hyatt owes an obligation to its guests . . . to not fuel the fire of intoxication by pouring alcohol down the throat of an intoxicated patron.”

This will be an interesting one to watch.

However, this week, Rev. Sun Myung Moon once again showed how “efficiency in numbers” applies to weddings and how to hold thousands of injury free event weddings at one time, here.

For the full story, click here.

In light of today’s column on cases testing Sotomayor’s views (and possible alliance with conservatives in key areas), this story may be of some interest. Sotomayor joined Chief Justice john G. Roberts, Jr. and Justice Anthony Kennedy in raising concerns over whether courts are violating the constitutional rights of corporations in class action cases.

As noted in the column, corporate law is one area where Sotomayor may shift the court toward the right. In the denial in DTD Enterprises Inc. v. Wells, Kennedy noted “[t]o the extent that New Jersey law allows a trial court to impose the onerous costs of class notification on a defendant simply because of the relative wealth of the defendant and without any consideration of the underlying merits of the suit, a serious due process question is raised.” It is an early indications of Sotomayor’s views in the area. This docket is heavily laden with corporate cases.

Here is the statement of Kennedy attached to the denial:

DTD ENTERPRISES, INC., AKA TOGETHER, AKA TO-

GETHER-CLARK, AKA TOGETHER DATING SER-

VICE, ET AL. v. JANICE H. WELLS, ON BEHALF OF

HERSELF AND ALL OTHERS SIMILARLY SITUATED

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPERIOR

COURT OF NEW JERSEY, MIDDLESEX COUNTY

No. 08–1407. Decided October 13, 2009
The petition for a writ of certiorari is denied.
Statement of JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE SOTOMAYOR join, respecting the denial of the petition for writ of certiorari.

This case began with a contract action brought by DTD Enterprises, Inc. (hereinafter petitioner), a commercial dating-referral service, against respondent, one of petitioner’s customers. The suit alleged that respondent refused to make payments due under a contract. Respondent answered by bringing a class action against petitioner. The trial court certified the class and ordered petitioner to bear all the costs of class notification, on the sole ground (or so it appears) that petitioner could afford to pay and respondent could not.

To the extent that New Jersey law allows a trial court to impose the onerous costs of class notification on a defendant simply because of the relative wealth of the defendant and without any consideration of the underlying merits of the suit, a serious due process question is raised. Where a court has concluded that a plaintiff lacks the means to pay for class certification, the defendant has little hope of recovering its expenditures later if the suit proves meritless; therefore, the court’s order requiring the defendant to pay for the notification “finally destroy[s] a property interest.” Logan v. Zimmerman Brush Co., 455 U. S. 422, 433-34 (1982). The Due Process Clause requires a “‘hearing appropriate to the nature of the case.’” Boddie v. Connecticut, 401 U. S. 371, 378 (1971). And there is considerable force to the argument that a hearing in which the trial court does not consider the underlying merits of the class-action suit is not consistent with due process because it is not sufficient, or appropriate, to protect the property interest at stake.

I nonetheless agree with the Court’s denial of certiorari, for two reasons. First, the petition is interlocutory; the state appellate courts denied petitioner leave to appeal the trial court’s action. Second, petitioner has filed for bankruptcy, and an automatic bankruptcy stay has issued pursuant to 11 U. S. C. §362. Respondents contend that the present action comes within the scope of the automatic stay. If we were to grant the petition we would be required to construe New Jersey law without the aid of a reasoned state appellate court decision and to confront a procedural obstacle unrelated to the question presented. Under these circumstances, it is best to deny the petition. It seems advisable, however, to note that the petition for certiorari does implicate issues of constitutional significance.

U.S. Supreme Court Justice Sonia Sotomayor has joined with two conservative justices to raise constitutional concerns about forcing a dating service to pay the costs of notifying class members in a lawsuit over failed matchmaking.

The Supreme Court denied certiorari in the case, but Justice Anthony M. Kennedy wrote that the suit “does implicate issues of constitutional significance.” Chief Justice John G. Roberts Jr. and Sotomayor both joined Kennedy’s statement (PDF posted by SCOTUSblog).

The dating service, DTD Enterprises Inc. (also known as the Dating Together Service), had sued Janice Wells for failing to make all her payments under the terms of a contract, according to Dow Jones Newswires. Wells responded with a class-action lawsuit contending that DTD failed to make appropriate matches. A judge ordered DTD to pick up the costs of notifying class members because it could afford to do so, while Wells could not pay.

The bill is in for Orly Taitz, the California lawyer leading the “Birther” litigation: $20,000 for sanctionable conduct. U.S. District Court Judge Clay Land previously issued a stern warning to attorney Orly Taitz and others in the so-called “birther” campaign: do not file another such “frivolous” lawsuit or you will face sanctions. Land threw out the lawsuit filed on behalf of Capt. Connie Rhodes who is an Army surgeon challenging her deployment orders due to President Barack Obama’s alleged ineligibility to serve as President. Land (a Bush appointee) noted that “[u]nlike in ‘Alice in Wonderland,’ simply saying something is so does not make it so.” In the most recent order, Land said that Taitz’s conduct “borders on delusional.”

Rhodes previously accused Taitz of filing new papers in Rhodes v. MacDonald without her approval and after she agreed to be deployed by the military. Taitz declared in one filing: “This case is now a quasi-criminal prosecution of the undersigned attorney.” She is already facing a California bar complaint and Rhodes is promising to file a new complaint against her for “reprehensible” representation.

When Rhodes learned that Taitz had filed a motion to stay deployment after she had decided to forego further litigation, she proceeded to fire Taitz by sending a remarkable letter from Office Max on the advice of “Tim who works in the District Clerk’s office.” She stated in the fax:

September 18th, 2009

To the Honorable Judge Land:

Currently, I am shipping out to Iraq for my deployment. I became aware on last night’s local news that a Motion to Stay my deployment had been entered on my behalf. I did not authorize this motion to be filed. I thank you for hearing my case and respect the ruling given on September 16th, 2009. It is evident that the original filing for the TRO and such was full of political conjecture which was not my interest. I had no intention of refusing orders nor will I. I simply wanted to verify the lawfulness of my orders. I am honored to serve my country and thank you for doing the same.

With that I said, please withdraw the Motion to Stay that Ms. Taitz filed this past Thursday. I did not authorize it and do not wish to proceed. Ms. Taitz never requested my permission nor did I give it. I would not have been aware of this if I did not see it on the late news on Thursday night before going to board my plane to Iraq on Friday, September 18, 2009.

Furthermore, I do not wish for Ms. Taitz to file any future motion or represent me in any way in this court. It is my plan to file a complaint with the California State Bar to her reprehensible and unprofessional actions.

I am faxing this as was advised by Tim, who works in the District Clerk’s office. I will mail the original copy of this letter once I have arrived in Iraq.

Respectfully,

CPT Connie M. Rhodes, MD

In her Motion for Leave to Withdrawal as Counsel, Taitz suggested that her client is lying to the Court.
She states that she not only has a (rather obvious) conflict with her former client but may present evidence that is embarrassing to her:

The undersigned attorney comes before this Court to respectfully ask for leave to withdraw as counsel for the Plaintiff Captain Connie Rhodes. The immediate need for this withdrawal is the filing of two documents of September 18, 2009, one by the Court, Document 17, and one apparently by Plaintiff Connie Rhodes, which together have the effect of creating a serious conflict of interest between Plaintiff and her counsel. In order to defend herself, the undersigned counsel will have to contest and potentially appeal any sanctions order in her own name alone, separately from the Plaintiff, by offering and divulging what would normally constitute inadmissible and privileged attorney-client communications, and take a position contrary to her client’s most recently stated position in this litigation. The undersigned attorney will also offer evidence and call witnesses whose testimony will be adverse to her (former) client’s most recently stated position in this case. A copy of this Motion was served five days ago on the undersigned’s former client, Captain Connie Rhodes, prior to filing this with the Court and the undersigned acknowledges her client’s ability to object to this motion, despite her previously stated disaffection for the attorney-client
relationship existing between them. This Motion to Withdraw as Counsel will in no way delay the proceedings, in that the Plaintiff has separately indicated that she no longer wishes to continue to contest any issue in this case. In essence, this case is now a quasi-criminal prosecution of the undersigned attorney, for the purpose of punishment, and the Court should recognize and acknowledge the essential ethical importance of releasing this counsel from her obligations of confidentiality and loyalty under these extraordinary circumstances.

Respectfully submitted,

By:_________________________
Orly Taitz, DDS, Esq.
California Bar ID No. 223433
FOR THE PLAINTIFF
Captain Connie Rhodes, M.D. F.S.
SATURDAY, September 26, 2009

“Quasi-criminal prosecution”? The judge had ordered Taitz to “show cause” why a sanction should not be imposed in the case. He had previously told Taitz that he would consider sanctions if she filed similar claims in the future. After the denial of the Motion to Stay deployment, Land said that the latest filing was “deja vu all over again” including “her political diatribe.” He noted:

Instead of seriously addressing the substance of the Court’s order, counsel repeats her political diatribe against the President, complains that she did not have time to address dismissal of the action (although she sought expedited consideration), accuses the undersigned of treason, and maintains that “the United States District Courts in the 11th Circuit are subject to political pressure, external control, and . . . subservience to the same illegitimate chain of command which Plaintiff has previously protested.”

Then the kicker:

The Court finds Plaintiff’s Motion for Stay of Deployment (Doc. 15) to be frivolous. Therefore, it is denied. The Court notifies Plaintiff’s counsel, Orly Taitz, that it is contemplating a monetary penalty of $10,000.00 to be imposed upon her, as a sanction for her misconduct. Ms. Taitz shall file her response within fourteen days of today’s order showing why this sanction should not be imposed.

I am frankly not convinced that sanctions would be appropriate for filing for a motion to stay deployment per se. At the time of his order, Land did not presumably know that the filing was made against the wishes of the client. If Rhodes was interested in appealing Land’s decision, which is her right, a stay is a standard request. However, the fact that the filing may have been made after Taitz was terminated as counsel and after she was told that Rhodes was abandoning the case is more cause for possible sanctions. Moreover, the low quality and over-heated rhetoric of the filing can support such sanctions. Her filings appear more visceral than legal. In demanding reconsideration of the Court’s earlier order, she used language that does cross the line:

This Court has threatened the undersigned counsel with sanctions for advocating that a legally conscious, procedurally sophisticated, and constitutionally aware army officers corps is the best protection against the encroachment of anti-democratic, authoritarian, neo-Fascistic or Palaeo-Communistic dictatorship in this country, without pointing to any specific language, facts, or allegations of fact in the Complaint or TRO as frivolous. Rule 11 demands more of the Court than use of its provisions as a means of suppressing the First Amendment Right to Petition regarding questions of truly historical, in fact epic and epochal, importance in the history of this nation.

She also (as noted by Land in his later order) essentially accused Land of treason, as she has in public statements:

Plaintiff submits that to advocate a breach of constitutional oaths to uphold the Constitution against all enemies, foreign and domestic, is in fact a very practical form of “adhering” to those enemies, foreign and domestic, and thus is tantamount to treason, as Defined in Article III, Section 3, even when pronounced in Court. The People of the United States deserve better service and loyalty from the most powerful, and only life-tenured, officers of their government.

Taitz is also facing a California Bar complaint, here. Ohio lawyer (and inactive California bar member) Subodh Chandra wrote the bar, stating “I respectfully request that you investigate Ms. Taitz’s conduct and impose an appropriate sanction. She is an embarrassment to the profession.” For that complaint, click here.

A complaint by a former client would likely attract more attention by the Bar. These are now serious allegations including misrepresentation, false statements to the Court, and other claims that will have to be addressed by a Bar investigation. This could take years to resolve — perhaps just in time for Obama’s second inauguration.

The court ruled that Taitz violated Rule 11 of the Federal Rules of Civil Procedure in filing frivolous papers. Declaring the filings as made in “bad faith,” the court concluded that Taitz’s legal conduct was “willful and not merely negligent.” Sanctions were warranted, he held, because “Counsel’s frivolous and sanctionable conduct wasted the Defendants’ time and valuable judicial resources that could have been devoted to legitimate cases pending with the Court.”

“When a lawyer files complaints and motions without a reasonable basis for believing that they are supported by existing law or a modification or extension of existing law, that lawyer abuses her privilege to practice law,” Land writes. “When a lawyer uses the courts as a platform for a political agenda disconnected from any legitimate legal cause of action, that lawyer abuses her privilege to practice law. When a lawyer personally attacks opposing parties and disrespects the integrity of the judiciary, that lawyer abuses her privilege to practice law. When a lawyer recklessly accuses a judge of violating the judicial code of conduct with no supporting evidence beyond her dissatisfaction with the judge’s rulings, that lawyer abuses her privilege to practice law. When a lawyer abuses her privilege to practice law, that lawyer ceases to advance her cause or the ends of justice. . .

Regrettably, the conduct of counsel Orly Taitz has crossed these lines, and Ms. Taitz must be sanctioned for her misconduct. After a full review of the sanctionable conduct, counsel’s conduct leading up to that conduct, and counsel’s response to the Court’s show cause order, the Court finds that a monetary penalty of $20,000.00 shall be imposed upon counsel Orly Taitz as punishment for her misconduct, as a deterrent to prevent future misconduct, and to protect the integrity of the Court. Payment shall be made to the United States, through the Middle District of Georgia Clerk’s Office, within thirty days of today’s Order. If counsel fails to pay the sanction due, the U.S. Attorney will be authorized to commence collection proceedings.

I expect that Taitz will appeal the decision, given her past statements. The opinion goes into considerable detail on her conduct and interaction with the court, as shown below.

For the decision, click here.

For the story, click here

There is an important decision out of the United States Court of Appeals for the Second Circuit where the conviction of Laval Farmer was overturned due to the prosecutors’ repeated use of his nickname “murder.” After all, his nickname is not “Attempted Murder” Farmer, which is what he was tried for. My only regret is that he was not represented by Richard “Racehorse” Haynes so that the prosecutors could have told the jury not to let “a race horse clear murder.”

Reversals due to prosecutorial statements in trial are relatively rare. In this case, the court found the “gratuitous” references robbed Farmer of a fair trial.

The court notes that the prosecutors seemed intent on using the name for prejudicial purposes:

Farmer’s nickname, which would be problematical and suggestive in any case involving violent crime, posed a heightened risk of prejudice because the crimes charged included murder and attempted murder. Farmer objected to the use of his nickname in the indictment, and he offered to concede identification to avoid its use at trial. But the government declined Farmer’s offer, and the district court admitted the name. Thereafter, the prosecution used the nickname promptly, repeatedly, and in ways calculated to intensify the prejudice.

However, the court still ruled that the evidence could compensate for such prejudice on the murder portion of the case but not the attempted murder claim:

In this case, the prosecutors, in their addresses to the jury, invited prejudice by repeatedly emphasizing Farmer’s nickname in a manner designed to suggest that he was known by his associates as a murderer and that he acted in accordance with that propensity in carrying out the actscharged in the indictment. This abuse of Farmer’s nickname entitles Farmer to a new trial for the attempted murder of Patterson and the related firearms offenses. However, we affirm Farmer’s convictions for murdering Jose White, discharging a firearm during that offense, and conspiring to assault, because the evidence so overwhelmingly established his guilt respecting those offenses as to nullify any prejudice resulting from the inappropriate argument to the jury.

The court was critical of Eastern District of New York Judge Thomas Platt, who “did nothing” to curb the abuses by the prosecutors in his trial. The result is that Farmer will be retried for the 2002 attempted murder of fellow Bloods member Jacquel Patterson in Wilkes Barre, Pa. as well as some weapons offenses. However, he will not get a new trial in the 2001 murder of 14-year-old Jose Angel White in Roosevelt, Long Island.

He is now serving life. He is a member of the Velt Gangsta Lanes (VGL) Bloods,here. White was killed for being mistaken for a member of another gang.

Let this be a lesson to all felons. Like Machine Gun Kelly, “Murder” picked an unhelpful trial nickname. While Nelson took “Baby Face,” you might try “Angel” or Gentle Guy” if you want to think ahead.

For the opinion, click here.

For the full story, click here.

Nicolas Cage has been hit by a lien for over $6,257,005 in unpaid income tax for 2007. It is not known if the IRS has started digging near Mount Rushmore.

The lien states that Cage owes more than $70,190 on his 2002 taxes, $179,738 for 2003, $110,617 for 2004 and a whopping $6,257,005 for 2007. He is only the latest celebrity facing such charges, here.

Over six million, however, is a bit off the mark for most citizens. Absent a really great historical conspiracy theory, Cage may want to reach a settlement quickly to avoid adding a “d” to his name. The problem with being a celebrity is that, now that this has attracted national attention, many will be looking closely for any evidence of lenient treatment.

For the full story, click here.

Criminal law attorney Constantine “Connie” Xinos bagged a trophy worth bragging about: nailing 11-year-old Sydney Sabbagha for trying to defend the staff of the public library of Oak Brook, Illinois. This Pediatric Perry Mason moment was a matter of some pride for Xinos, who told a reporter “I wanted that kid to lose sleep that night.”

Sabbagha crossed the line for Xinos when she had the audacity to stand in front of the village board and emotionally call for the librarians to be rehired: “I used to go to the library knowing there were people there to help me find a book. Now there is no one to help me. It will never be the same without the people you fired.”

Thank God, Xinos was there to pounce on the greedy little tyke.

Xinos held nothing back and denounced such “whining” and wanted “Those who come up here with tears in their eyes talking about the library, put your money where your mouth is. He then added some tailored mockery to his menace: “I don’t care that you guys miss the librarian, and she was nice, and she helped you find books.” He proclaimed himself unmoved by “crocodile tears” over overpaid librarians and told the board that it had to be tough (like him presumably) and “stop indulging people in their hobbies” and “their little, personal, private wants.”

Over the course of a nearly two-hour interview “in his Mercedes-Benz in the gated Oak Brook community where he lives, and boasted “This is the real world and the lesson, you folks who brought your kids here, is if you want something, pay for it.”

Bless you Mr. Xinos. Little Sydney will never forget your lesson.

By the way, Xinos does not just educate little children to put away childish thoughts of decency and literacy, he also holds forth on the dangers of old people. He unsuccessfully ran for various offices. He has also campaigned against a plan to allow subsidized housing for seniors, declaring, “I don’t want to live next to poor people. I don’t want poor people in my town.” The former Marine also educates on the dangers of Teamsters, saying “Nobody here likes those kind of people.”

The most interesting part of the interview came with his surprising revelation that he decided not to have children because he did not know if he could support them. With that statement, the reporter was able to isolate the one view of Constance Xinos that humanity could agree with.

For the full story, click here.

It turns out that the correct meaning of ‘Stalinistic” is kind, family-oriented, and greatly loved. Or, at least that is the view expressed in a Russian court by Joseph Stalin’s grandson, Yevgeny Dzhugashvili. (Stalin’s given name was Joseph Dzhugashvili). He is suing opposition newspaper Novaya Gazeta for publishing declassified death warrants from the period and offering an unvarnished account of the atrocities under Stalin.

As we recently discussed with regard to an infamous column by the Toronto Star, the common law rule is that “you cannot defame the dead,” which of course means in practical terms that you can defame the dead. I have long been a critic of that rule, here.

Dzhugashvili insists that copies of the death warrants signed by Stalin are false and part of an ongoing effort to defame and distort his memory.

Stalin has become a rallying point for people who feel that Russia has lost respect and that the general lifestyle in the nation has declined.

Of course, even if you can sue for defamation for a dead man, truth remains a defense. What is fascinating about this issue is that it deals with documents. Looking at this case from an American standpoint raises some interesting torts questions. In the United States, under the New York Times v. Sullivan standard, the family would have to prove knowing falsity or reckless disregard of the truth for a public figure. However, document cases are different. There is a separate privilege for reporting of public documents and reports. These are documents released by the Russian government itself. Of course, many of the Russian records from the Soviet period are met with some skepticism. However, these death warrants are consistent with every credible historical work showing Stalin to be a pathological and murderous tyrant.

For the full story, click here.

President Barack Obama has won the 2009 Nobel Peace Prize. It is a great honor for this country and for the President. For civil libertarians, however, the prize is a bit of a mixed message. Obama has blocked any investigation of war crimes or torture in violation of international law. He has also supported the limitation of free speech to allow the criminalization of criticism of religion. With less than a year in office, the selection may send the wrong message to Obama that personality rather than principles succeed in both domestic and international politics.

I know that it is not going to be popular to question the basis for this selection, but Obama has not proven to be exactly a ray of light on questions of human rights and international law. He is now in violation of various international agreements over torture and United Nations officials have denounced the United States for refusing to carry out its duty to prosecute those responsible for the torture program. Yet, the Nobel Committee has chosen this time to award him with the Peace Prize — undermining the importance of the Geneva Conventions.

To his considerable credit, he has re-examined our positions on a host of international agreements, including most notably global warming. However, one would expect to wait for at least a year to see if he carried through on such statements and policies. I believe if you look objectively at the record, it is hard to see why Obama warrants such an honor at this time. At least Teddy Roosevelt helped end the Russo-Japanese war and supported the creation of the Hague arbitration court. To put it simply, Obama’s selection is the triumph of hope over experience and he will have to earn this distinction in the years to come.

What do you think?

The FAA has released a disturbing tape (below) of an air traffic controller who is heard over a flight recording joking about a dead cat with a female friend as a small plane and tourist helicopter collided in midair — killing nine.

The recording of the controller at Teterboro Airport in New Jersey shows him deep in conversation and joking with a woman about her revulsion over the carcass of a cat. The Associated Press is credited in forcing the disclosure through the Freedom of Information Act. My question is why it takes a FOIA action to force the release of such an important piece of information. While the controllers association has denounced the release as blaming the controller, it was never revealed until August that the controller appeared distracted in such a frivolous conversation.

The controller cleared the single-engine Piper for takeoff at 11:48 and 30 seconds a.m. EDT, and remained on the telephone in a conversation about a dead cat removed from the airport until the crash occurred.

The tape shows the controller going back and forth between the call and the aircraft. The first call occurred 12 minutes before the Piper’s pilot, Steven Altman of Ambler, Pa., said he was ready for takeoff. The first conversation discusses the dead cat. The controller then calls the woman:

He is heard saying “We got plenty of gas in the grill? Fire up the cat.” She responds by saying “Ooh, disgusting, augh, that thing was disgusting.” They go back and forth until the controller is contacted by a Newark controller about the Piper being on a collision course. The Newark controller says, “Hey, Teterboro, Newark. Would you switch that guy, maybe put him on a two-twenty heading to get away from that other traffic please?”

The Teterboro controller responds by saying “Say again, Newark.”

The Newark controller asks “Can you switch that PA-32 (the Piper)?”

The Teterboro controller responds with “I … did keep an eye on him, though.”

The Newark controller responds “I’m not talking to him, so …” while Teterboro tries to radio the Piper. He is joined by Newark. The Telerboro controller is then heard telling the woman on the phone that the Piper pilot probably has the wrong radio frequency.

Eight seconds later, the controller is heard saying, “Damn. … Let me straighten stuff out,” and ended the call.

The tape would appear compelling evidence for a possible torts action by the families of the deceased. While it appears that the controller was trying to reach the plane, he also appears for a short time to be rather distracted. However, the controller may be able to argue that the case fails factual causation and that, even if he had not been on the phone, the Piper would not have heard his messages.

For the tape, click here.

For the story, click here.

We have been following the bizarre case of former Mobile County Circuit Judge Herman Thomas who is accused of ordering the male inmates be brought to his chambers where he would spank them and have sex with them. With the judge facing trial on various criminal charges, the case took another strange turn when a former inmate charged in a lawsuit that his former attorney coerced him into testifying against the judge. The case of Willie Pearson was dropped after he accused attorney Joe Kulakowski of threatening him. However, the prosecutor insists that the other cases will proceed as planned for trial.

Thomas now has 14 cases against him and the trial is in the jury selection stage. The trial could begin as soon as today.

While Thomas insists that he is entirely innocent, a forensic examination matched a semen stain on his carpet to one of the nine alleged victims.

Thomas, 48, has insisted that this is all due to race: “Did you ever think of the fact that this is the only black circuit judge we’ve ever had in Mobile County, and that the right-wing Republicans have gotten rid of him?” His attorney echoed the sentiment, telling CNN “[t]he South hasn’t changed all that much.”

Thomas is married with a wife and daughters. He is facing serious jail time, including a potential for effective life imprisonment for such charges as kidnapping. It is an interesting charge since he presumably kidnapped the inmates by arranging them to be brought to him by deputies.

The civil claims against the attorney presents some novel issues. First, the defense will likely want to get in such evidence, but, with that individual case dropped, the prosecutors are likely to oppose on the ground that it is not relevant. Second, the attorney could face a criminal and bar investigation. The prosecutor would be in a strange position since he believes there is a basis for the allegations as a whole. Moreover, the attorney could claim that he was merely trying to assist the prosecution while also strengthening any potential civil action against the judge.

For the full story, click here.

There is a bizarre case out of Fresno California where Enrique Gonzalez faced lifetime imprisonment for “aggravated mayhem and street terrorism” because he allowed his 7-year-old son to have a quarter-sized tattoo on his right hip. While Fresno County Superior Court Judge Hillary Chittick wisely rejected the excessive charge of mayhem by the prosecutors, he still faces years in jail for cruel and inhumane treatment of a child.

Gonzalez is allegedly a member of the notorious Fresno Bulldog gang (named after the school mascot) and the tattoo was a gang symbol of a bulldog paw. Also arrested was alleged fellow gang member Travis Gorman. There is a conflict of testimony as to whether the boy wanted the tattoo.

His mother Tequisha Oloizia said that he was held down while witnesses insisted that he wanted the tattoo. If held down against his will, I can certainly understand a higher felony charge. However, the attempt at mayhem was out of bounds — as the court ultimately ruled. There does not appear to have been intent by the father to harm or hurt the boy — albeit a reprehensible and abusive act. As for “street terrorism,” it is part of the corruption of the criminal code to expand the meaning of terrorism to encompass a wide variety of conventional crimes.

The problem with the original charge is that state law makes it a misdemeanor to give a tattoo to a child under 18. That comes with a six-month sentence. (There is also presumably charges for administering tattoos without a permit). Yet, the prosecutors appear to have elevated the punishment in part due to the content of the tattoo — a gang symbol. Obviously, there are plenty of cultures that tattoo children. Those parents are also subject to misdemeanor charges. However, if the tattoo is related to a gang symbol the prosecutors were willing to fight for a life sentence. That raises an interesting free speech question. However, the primary question is one of the meaning and integrity of the criminal code. If these prosecutors were successful, mayhem would lose any definable meaning. Other parents allow girls to have their ears pierced and other cosmetic measures that cause pain.

I have no sympathy for Gonzalez and seriously question whether he should be allowed to raise the child. Tattooing children with gang symbols strikes me as a basis to remove the child from the home. However, the tattoo itself is already covered under the state criminal code as a misdemeanor not a crime akin to murder. The issue of force is a legitimate matter for enhancing the punishment, but the prosecutors weakened the credibility of their case with the original charge of mayhem.

For the full story, click here.

Do these apples look alike? Computer giant Apple appears to believe so. It is suing Australia’s Woolworths for trademark infringement over the use of the new logo.

Even as a lifetime Mac user, I cannot see the good-faith basis for this action. I have long had difficulty with the ever-widening scope of copyright and trademark limitations placed on material. This case falls into that category.

In defense of Apple, Woolworths appears no better — seeking a broad trademark protection of its own logo for any product.

However, Woolworths has been carefully avoiding use of the noun “apple” to avoid legal problems. I fail to see why the rest of humanity has to avoid reference or use of an apple in light of a computer company’s logo.

Apple’s legal department has clearly warned everyone: “And the [corporate office] commanded the man, “You are free to eat from any [logo] tree in the garden [of commerce]; but you must not eat from the Apple tree of the knowledge of good and evil, for when you eat of it you will surely [be sued].”

My greatest concern is how it will affect other areas. For example, I have taken steps to bring the Bible into compliance with trademark rules. For future reference, here are the new translations approved by the Turley Blog in-house counsel and divinity offices:

“He kept him as the apple of his eye” (Deuteronomy xxxii. 10) will now read “He kept him as a red fruit not to be confused with a market logo of his eye.”

As for this picture, it will have to be airbrushed to show a pomegranate or watermelon or other non-corporate symbol.

For the full story, click here.

When a 17-year-old sex offender escaped from a juvenile treatment program in Baltimore County, many wondered where the counselors were at the time of the escape. Well, police say that one counselor never let him leave her sight. Tyra M. Greenfield, 26, was arrested after allegedly allowing the boy to stay at her house and having sex with the sex offender. Not quite the approach recommended by the manual on sex offender counseling. The charges, however, are interesting.

Greenfield is now charged with sexual child abuse and harboring a fugitive. What is fascinating about the case is that, while the age of consent in Maryland is 16, it is a crime for an adult to have sex with a minor who is in the adult’s custody or care. Because she was a counselor, she will face a sex offender charge where any other person would only face a harboring charge.

Greenfield works for a private contractor as part of the New Directions program. The program took 10-12 youths to a movie and the youth ran off while they were in the parking lot. Greenfield was allegedly waiting for him in a car nearby. While she later drove him to a relative’s home, he made a call using her cellphone — which ultimately led the police to her doorstep.

For the full story, click here.

Mark Alan Jarosik, 43, believes it is never too early to shop for Christmas. He was arrested in California for trying to hire a man to kill his ex-girlfriend and to videotape the murder . . . so he could watch it over the Christmas holiday.

Jarosik, a former architect, is likely going to spend most if not all of his remaining holidays in state prison. He was previously charged with two felony counts of rape and one felony count of attempted sodomy, here. When he was bailed out after those arrests in June by his mother and sister, he went back to his ex-girlfriend’s house and tried to break in. He then came back the next day and attacked her again, including banging her head against a curb — resulting in severe head trauma.

He was then arrested again for attempted murder, forcible rape, battery, burglary, sodomy and violating a restraining order. He then proceeded to try to hire a killer behind bars as well as violating the court order by writing to the woman.

His counsel will have an obviously difficult time, particularly on sentencing. I would assume that most judges would be declined to have all of the charges run concurrently since they were separate incidents. That would leave the possibility of three sets of charges running consecutively, including big ticket items like rape and attempted murder. He will be lucky to see another holiday outside of the correctional setting.

For the story, click here.

Below is today’s column on the first day of the October Term for the Supreme Court. It specifically explores the first amendment cases on the docket. There are four major such cases thus far on the docket and, most importantly, two free speech cases that will be strong indicators of the views of Justice Sonia Sotomayor.

The start of the U.S. Supreme Court’s fall term is always a much-anticipated event. This year, it is likely to receive more attention than usual, with a new justice being seated and conjecture that another plans to resign.

David H. Souter is no longer on the court, and this will be the first term for his replacement, Justice Sonia Sotomayor. It may be the last term for Justice John Paul Stevens, liberal icon of the court. The growing speculation that Stevens plans to retire next year was fueled by his recent decision not to select a full complement of clerks for 2010 — a strong signal that he doesn’t intend to remain on the bench.

For the most part, however, all eyes will be on Sotomayor. Most of the court handicappers will be watching for early signs of how she might depart from the liberal voting record of her predecessor. Originally a Republican nominee to the trial court (though later put on the appellate court by President Clinton), Sotomayor was suggested as a nominee for President George W. Bush and has a more conservative voting record than Souter. If she votes the way she voted on the appellate court, liberals will lose ground with her selection.

Sotomayor will be tested in one of the areas of greatest concern to liberals — free speech — at the very start of her tenure on the court. Sotomayor was opposed by some free-speech advocates, in part because of her vote in Doninger vs. Niehoff, in which the appeals court upheld the right of school officials to punish students for out-of-school speech — in what some considered a major blow to both the 1st Amendment and student rights. Notably, the panel acknowledged that it was not bound by existing precedent from the Supreme Court in denying free-speech protections to students.

Sotomayor’s first free-speech case at the Supreme Court came even before the official beginning of the term. In a rare re-argument of a case, the justices convened court in advance of this month’s opening to hear arguments in a case involving “Hillary: The Movie.”

At issue in the case — a ruling is still pending — may be the viability of one of the major parts of campaign-finance law. The case is actually more compelling than the movie, a 90-minute diatribe against Hillary Rodham Clinton released by the conservative group Citizens United during her 2008 presidential bid. The Federal Election Commission ruled that the film was “prohibited electioneering communication.”

The court in June asked to hear additional arguments regarding an earlier court ruling that upheld the constitutionality of a provision of the McCain-Feingold campaign-finance law.

For many free-speech advocates, it is hard to declare this film to be electioneering but not other films, such as liberal Michael Moore’s anti-Bush documentary, “Fahrenheit 9/11.” Sotomayor’s vote, although unlikely to determine the outcome of the case, may offer insight into her thinking on the 1st Amendment and whether corporations enjoy free-speech rights analogous to individuals.

At the start of the fall term, Sotomayor will be tested in yet another case raising fundamental speech rights. On Oct. 6, the court will hear United States vs. Stevens, involving a federal law making it illegal to sell photographs and films of the maiming and killing of animals. Among other things, the law criminalizes so-called crush films, in which models are shown crushing small animals with stiletto heels and other objects.

Robert J. Stevens of Pittsville, Va., was convicted under the law for selling videotapes of fighting pit bulls and sentenced to 37 months in prison. However, the appellate court struck down the law as unconstitutional, holding that there is no exception to the 1st Amendment for animal cruelty as there is for obscenity. The government is seeking to get the court to create another exception to the 1st Amendment, in what free-speech advocates fear will be part of a continued erosion of this fundamental right.

The case will test Sotomayor’s commitment to principle over the prejudicial elements of the crime. The justices will clearly find Stevens and his films of dogfights repugnant. However, there has been a line drawn under the 1st Amendment in which criminal conduct can be prosecuted even as speech is protected. The government can clearly arrest people for holding dogfights or organizing or transporting dogs for such fights. The question is whether selling material with such images is protected by the 1st Amendment if an individual did not participate in the criminal activity. The concern is that Congress will continue to add exceptions for areas viewed as offensive or cruel — abandoning a bright-line rule that has protected speech while allowing the prosecution of illegal conduct.

Given her conservative approach in some cases on the appellate court, Sotomayor could change the outcome in the case, because Souter was viewed as more likely to favor the position of the appellate court and free-speech advocates.

Whatever the outcome of these cases, one thing is clear: Court-watchers will not have to wait long to hear the voice of Sotomayor in the area of free speech. It could be a voice that resonates for decades for citizens and the 1st Amendment..

Jonathan Turley is a law professor at George Washington University, where he teaches a course on the Supreme Court.

For coverage of the Stevens argument, click here.
Published October 5, 2009: Los Angeles Times

There is a disturbing and important ruling out of the United States Court of Appeals for the Eighth Circuit. In the prisoner case below, Nelson v. Correctional Medical Services, the court examined whether a prisoner guard is entitled to qualified immunity when she shackles a female prisoner during labor despite the objections of the medical staff. Arkansas corrections officer Patricia Turensky was found not to be entitled to such protection for her actions in shackling inmate Shawanna Nelson. The decision was handed down on October 2, 2009.

Here are the facts lead out by the court in its decision:

Nelson was a twenty nine year old nonviolent offender who was six months pregnant with her second child when she
arrived at the McPherson Unit of the ADC on June 3, 2003. She went into labor on September 20 and presented herself at the prison infirmary at 3:00 pm. Shortly thereafter Nelson began to cry out in pain, and by 3:25 pm her contractions were already only five to six minutes apart. The infirmary nurses determined that she must be immediately transported to a contracting civilian hospital to deliver her child. They requested a gate pass, a transport van, and an escort officer to get Nelson to the hospital.

Nelson was to be picked up in the sally port. To get there from the infirmary she had to be cleared through the central control gate and then walk down a long hallway nearly the length of a football field. Nurse Smith helped her leave the infirmary, and at the control gate the two met Officer Turensky, the assigned transportation officer. Turensky testified that after the group cleared the gate, she walked with Nelson the entire length of the hallway leading to the sally port. Nurse Smith testified that Nelson had to stop twice on the way to the sally port because she was in so much pain “she couldn’t walk” and had to lean against the wall for support. After the second or third time that Nelson’s pain forced her to stop, Nurse Smith hollered to the sally port officers, “[a]s soon as I get [to the sally port], you better have the gate pass, because I want her out of here.”

Turensky wrote in her response to Nelson’s prison grievance form that Lieutenant Williams had instructed her to “RUSH [Nelson] to the hospital [and] to NOT to [sic] take time for cuffs.” (emphasis in the original). She nevertheless put handcuffs on Nelson as soon as they reached the sally port. Nurse Smith testified that before Nelson was able to get into the transport van, she “had one [contraction] . . . because I remember standing there and helping her breathe and then putting her in the van.”

Officer Turensky and Nelson arrived at the hospital at 3:50 pm. Although Turensky later testified that Nelson neither said nor did anything to suggest she was an escape risk and that “she did not ever feel threatened by Nelson at any time,” see Nelson v. Corr. Med. Servs., 533 F.3d 958, 961 (8th Cir. 2008), Turensky shackled Nelson’s legs to a wheelchair and took her to the maternity ward. There, Nelson changed into a hospital gown and Turensky shackled both of her ankles to opposite sides of her hospital bed. According to Turensky’s own entry in her security check log, Nelson’s cervix had dilated to 7 centimeters by that
time. This meant that Nelson was well into the final stage of labor when Turensky shackled her.1 Nelson asked for an epidural anesthesia to ease her pain, but the nurses said she would have to wait for approval from the obstetrician, Dr. Hergenroeder, who was on his way.

According to Nelson’s testimony, the shackles prevented her from moving her legs, stretching, or changing positions. A nurse told Officer Turensky that “[s]he wished that they wouldn’t have to put those restraints on” Nelson, but to no avail. Each time a nurse needed to measure Nelson’s dilation, that nurse had to ask Turensky to unshackle her. Although it was clear that Nelson was in the final stages of labor and no one on the hospital staff ever requested that she be reshackled, Nelson testified that Turensky “hooked [her] right back up” to the bed rails after each cervical measurement was taken. Turensky herself noted in her
security check log that by 4:38 pm Nelson was dilated to 8 centimeters.

Dr. Hergenroeder arrived at 5:00 pm. According to his testimony he was only able to prescribe Tylenol to ease Nelson’s pain because by that time it was too close to the delivery of her baby for an epidural. Turensky noted in her log that by 5:13 pm Nelson was dilated to 9 centimeters and that two nurses were helping her push her baby along the birth canal. Turensky also noted at 5:40 pm that Nelson was feeling sick. At 6:15 pm she was taken to the delivery room where her baby boy was born at 6:23 pm. Nelson’s shackles were apparently removed at Dr. Hergenroeder’s request before she went into the delivery room. At 6:40 pm Turensky went off duty and left the hospital. . . .

What is curious is that Turensky stated in her deposition that such shackling is problematic and objectionable:

A reasonable factfinder could determine that there is substantial evidence of Turensky’s own general awareness of the risk of harm from shackling a woman in labor. During her deposition Turensky admitted that, “[i]f you’ve got a very old sickly woman who’s had three or four strokes, of course you don’t want to put shackles on that inmate. That is just common sense. I do the same thing with pregnant inmates. I would not shackle a pregnant inmate.” (emphasis supplied). When asked what it is about shackling pregnant inmates that bothered her, Turensky responded, “It’s not in policy – if it were in policy, I would have to tell them that there’s something wrong with the policy . . . .”4 (emphasis supplied). Turensky also appeared troubled by the fact that “you just cannot examine anyone with shackles on. They’re not very sanitary.” (emphasis supplied). Finally, Turensky admitted that she “imagine[d] they hurt the ankles when you’re lying in bed.” (emphasis supplied).

The appellate court found such evidence was sufficient to allow the case to got to trial — affirming the district court. The court stressed that “deliberate indifference to a prisoner’s serious illness or injury can typically be established or disproved without the necessity of balancing competing institutional concerns for the safety of prison staff,” Whitley, 475 U.S. at 320, from the record evidence in Nelson’s case there does not even appear to have been a competing penological interest in shackling her . . . [Indeed] according to Turensky’s own testimony, Nelson was not threatening or belligerent at any point.”

Yet, the court reversed the denial of summary judge as to Larry Norris, Director of the Arkansas Department of
Correction. The court noted that correctional directives clearly stated that “Pregnant inmates in the final stages of labor will not be restrained while in the delivery room giving birth, or at any time the physician in charge determines that such application would be a health risk to the unborn child or the health of the inmate.” Ark. Dep’t of Corr. Hosp. Sec. Post
Order § (III)(A)(3)(2003). In some ways, the success in establishing that Turensky acted outside of governing policies and practices helped Nelson. However, it does not address the possibility of correct written policies but abusive unwritten practices or policies. However, the court ruled that “[t]he regulations, directives, and orders in the record suggest administrative
concern for the health and safety of pregnant inmates. Without further allegation or evidence of deliberate indifference, Nelson’s Eighth Amendment claim against Norris must fail. We conclude therefore that the district court erred in denying
summary judgment to Director Norris based upon qualified immunity.”

It will be interesting to watch the extent that Turensky will now be free to blame the prison and Norris. If Nelson was kept in the case, any effort to shift from personal to institutional blame would have been likely challenged. This is still a major ruling in terms of prisoner rights and it will be an interesting trial to watch.

Here is the full opinion: 072481P

There is a fascinating case in Ontario, Canada this week. Levi Shaeffer, 30, was shot dead by Peterborough police officers when he was camping near Pickle lake. He had not committed any crimes and was simply camping on an island. However, an investigation was terminated because the officers involved in the shooting did not write down contemporary accounts of the shooting after meeting with counsel. Chief Murray Rodd, however, insists on the department website that “[w]e are truly dedicated to our core values to be the best Police Service, providing the highest standard of professionalism in partnership with our community.” They might want to start with writing down accounts of shooting campers.

Special Investigations Unit director Ian Scott said that it was impossible to proceed with any criminal investigation because the accused officers waited before they wrote up their notes — which were drafted with the assistance of counsel.

On June 24, 2009 at approximately 12:30 p.m., two OPP officers encountered Schaeffer and asked him about a stolen boat. After some sort of altercation, one of the officers shot Schaeffer. In the United States, the officer would have had to immediately prepare a shooting report. However, in this case,

“[s]hortly after the incident, the subject officer was instructed not to write up his notes in his memo book until he spoke with Ontario Provincial Police Association (OPPA) legal counsel. The association lawyer advised the officer to prepare notes which only he would review. Once the lawyer approved the notes, the officer wrote up his memo book two days later based on a combination of his confidential notes to counsel and discussions with him. The only witness to the shooting, the second officer, was also advised not to contemporaneously write up his notes in his memo book. He too wrote up a set of notes which he shared with the same legal counsel before entering them into his memo book two days later. Neither officer provided the SIU investigators with their first set of notes.

Without contemporary notes, the investigation has been dismissed — a curious incentive for officers involved in controversial shootings. The investigation was terminated despite the family’s complaint that the police gave it wildly different accounts of the shooting.

I am a strong believer in the right to counsel. However, I find it unbelievable that an officer can withhold an account of a shooting in Ontario and not be terminated or suspended on that basis. The officer clearly has a right to be protected from self-incrimination and has a right to speak with counsel. However, as an officer, you must supply contemporary accounts or face suspension. Otherwise, you are withholding evidence of a possible crime. The officer must make the choice.

For the story, click here and here.

Judge Charles J. Markey is asking for a public rehearing. The New York Law Journal and the ABA Journal ran a story detailing how Markey allegedly denied a motion or dismissed a case due to improper stapling. The story was picked up on various legal blogs, including this blog. However, Markey has written a letter to the editor insisting that the facts have been distorted and that this was no “case of first impression” of dismissal for negligent stapling. He seems to have a case.

Markey notes that he only denied a motion and did not dismiss the case. Moreover, it was a denial without prejudice and, most importantly, the stapling section was meant merely as an instruction for the future and not a basis for the holding.

Here is his letter:

October 02, 2009
I am writing you to set the record straight regarding an inaccurate and misleading item that appeared in the “News in Brief” column on page 1 of the Sept. 24 Law Journal.
Although a correction was printed on page 2 in your Sept. 25 edition, I have since been hit with rather negative comments and queries regarding the distorted description of my decision on a motion in the matter of Jones v. Fuentes. (The decision is published below.) It is hoped that this letter and the brief decision will more effectively correct the error and subsequent misunderstanding.
Contrary to the article, I did not dismiss the underlying action. I cited deficiencies in the unopposed papers submitted for a default judgment in a motor vehicle accident case allegedly resulting in injury to plaintiff. A lengthy written decision was unnecessary, and it was, therefore, brief and to the point. And, please note, the motion was denied, without prejudice with leave to renew upon submission of proper papers.
What excited everyone’s attention was the reference to the drawing of blood as the result of sloppy assembly of the papers. The commentary in the decision was meant to be instructive and cautionary. That’s all.
Charles J. Markey
The author is a Queens Supreme Court Justice.

Here is the correction published by the journal”

Correction
September 25, 2009
A News in Brief item yesterday, “Lawyer’s ‘Poor’ Stapling Provokes Motion’s Dismissal,” incorrectly implied that Queens Supreme Court Justice Charles J. Markey dismissed a complaint on the basis of poor stapling. Rather, Justice Markey denied a motion for default judgment. In addition, he cited two other grounds for rejecting the motion: the notice of motion was not signed by counsel and the papers lacked any affidavit by the plaintiff as to her injuries.

While the court did elevate stapling to the inclusion in an opinion (which why it was legitimately notable for the journal), he was listing the failings of counsel in the case and not basing the decision on stapling. Indeed, the motion appears properly dismissed based on the first two findings. However, this will mean that Markey will not be offered the “Jurist of the Year” Award by the National Fasteners Association.