Nathalie Blanchard seems to have had one “friend” too many on her Facebook page. The Quebec woman is on long-term sick leave but posted pictures of herself on the beach and enjoying a show with the Chippendales. One of the viewers was the insurance company paying for her total disability due to depression from her job at IBM.

Blanchard is now fighting to get her benefits back, insisting that she told the company about her vacation. She also notes that she does not know how an insurance representative became an approved friend on the website.

The insurance company admitted that it uses Facebook for such investigations. However, the company insisted that “we would not deny or terminate a valid claim solely based on information published on websites such as Facebook.”

The intrusion into a closed site raises an issue of privacy but that does not necessarily prevent the use of this information. However, it is unclear why a person is clearly not depressed if she posted a couple pictures in better moments. Depression often has highs and lows.

For the full story, click here.

With the increased use of tasers on humans, it was perhaps inevitable that the crustacean set would demand their own stunning device. Simon Buckhaven of CrustaStun has developed a system that allows lobsters to be zapped to death in a device rather than boiled alive. It was such a breakthrough that PETA organized a lobster dinner fundraiser with lobsters dispatched with the CrustaStun device. The problem is that the machines were lost in transit and PETA had to boil hundreds of lobsters alive.

Buckhaven developed the machine to appease animal rights advocates who like lobsters but not the method of cooking.

The machines cost about $3,500 and looks like a microwave with a lid.

They also have an industrial version for $100,000 or more.

If you cannot afford that price, you can always report the lobster in your home as “unruly” and Fort Smith police will take it from there — be sure however to have butter ready by the time the cruiser arrives.

For the full story, click here.

We have a new major recall this morning. Procter & Gamble is recalling Vicks Sinex nasal spray in the United States, Britain and Germany because of the presence of bacteria. Shooting live bacteria up your nose puts a new meaning in the gamble that comes with Procter & Gamble.

The bacteria was found at a plant in Germany and could cause serious infections.

In the United States, the recalled product is Vicks Sinex Vapospray 12-hour Decongestant Ultra Fine Mist with lot number 9239028831.

In Britain, the company is recalling Vicks Sinex Micromist Aqueous Nasal Spray with lot number 9224028832.

In Germany, the recalled product is Wick Sinex Schnupfenspray Dosiersystem with lot number 9224028833.

There is more information here.

I am confused. Where’s the taser?

These are real officers who are encouraging bikers to wear helmets.

A federal judge in New Orleans has found “monumental negligence” by the U.S. Army’s Corps of Engineers in the operation and maintenance of a shipping channel called the Mississippi River Gulf Outlet. The finding allows residents to collect damages against the U.S. government after their homes were swamped by Hurricane Katrina’s floodwaters in 2005.

U.S. District Judge Stanwood Duval rejected the government’s argument that the Corps was immune from liability and had properly maintained the navigation channel. The court specifically cited the Corps’ decision to widen the channel and allow the loss of protective wetlands as contributors to the disaster.

Duval awarded damages of about $720,000 to four people and a business in the case.

The immunity issue is likely to be appealed. Usually the government has immunity in areas where it exercises discretionary judgment or authority. A government official is allowed to be wrong and even moronic. The burning of the compound in Waco Texas is an example of such broad discretion. Few experts agreed with Janet Reno’s decision to send in a tank to charge a building filled with children and religious fanatics, but the courts still recognized immunity for officials.

For the full story, click here and here.

Pat Robertson has declared that Islam is not a religion but a “violent political system.” For many, such statements are nothing new from Robertson. However, it was a bit more surprising yesterday to learn that Virginia Governor Elect Bob McDonnell has refused to disavow that view. McDonnell was opposed during the recent campaign for having extreme religious views and close ties to evangelical leaders like Robertson.

McDonnell attended law school at CBN University (now Regent University), founded by Robertson, and appeared on his show, “The 700 Club.” While at the Republican Governors Association in Austin, McDonnell refused demands from Muslims that he disavow such views. He merely stated “I think people are entitled under the First Amendment to express whatever opinions that they may have, but I can only say that as governor of Virginia, I intend to have an inclusive administration where we bring people across the political and religious system to help us govern.”

One wonders what his reaction would have been to an imam saying that Christianity is a cult or non-religion. McDonnell did say that he does not personally view Islam as a “violent political system.”

On his television show, Robertson said “Islam is a violent, I was going to say religion, but it’s not a religion. It’s a political system. It’s a violent political system bent on the overthrow of the governments of the world and world domination. That is the ultimate aim.”

Of course, Robertson’s statements seem to ignore parts of the Bible that promise such things as

“You . . . will also be slaughtered by my sword.” (Zephaniah 2:12-15)

“They shall be apportioned for foxes.” (Psalm 63: 11)

“The men of Judah attacked Jerusalem and captured it, killing all its people and setting the city on fire.” (Judges 1:1-8)

During the crusades, the Muslims did not exactly view the Christian faith as a peaceful religious movement.

For the full story, click here.

John Green 50, has attained the novel status of being banned from keeping dogs for ten years. Green’s victim was a Dalmatian named Barney, who he overfed to the point that he weighed “11 stone” — a stone is roughly the equivalent to 14 pounds. This made Barney look like he ate the other 100 Dalmatians.

Barney is now a slim 4 stone dog. It appears that Green allowed Barney to eat whatever he ate including chips and chocolate. The reference to chocolate threw me because I was always told that chocolate was toxic for dogs. It is. However, it takes, on average, about 100-150 mg/kg of the toxic element in chocolate, theobromine, to cause a toxic reaction. Milk chocolate contains 44 mg of theobromine per oz.

RSPCA inspectors raided Green’s home and took Barney. They then hit Green with the penalty for what was viewed as animal cruelty. Green confessed to animal cruelty and was also ordered to complete 200 hours of unpaid work.

RSPCA inspector Rachel Andrews noted: “With Christmas just round the corner it might be tempting to overfeed them, but it’s important to remember that those extra pounds can have a huge impact on their comfort, health and well-being.” Well, yes, but I want to know how Andrews got Barney to drop from 11 to 4 stone and whether he is willing to place me in protective custody after Christmas on the same canine slim fast program.

By the way, England’s Animal Welfare Act mandates that overfeeding a cat or dog can result in a fine of up to £20,000 or even 12 months’ jail.

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.

Accountant Margot Jean Strawn, 58, has been sentenced to four years in prison for stealing $500,000 from a trust account. What is a little more striking is what she used the money for: to buy dolls on the Internet.

The Orange County District Attorney’s office says that Strawn wrote herself checks while managing a trust for the Pellissier family. She stole more than $500,000 between May 31, 2001, and Jan. 19, 2007 and then filed false tax returns for the fund.

Strawn is now headed from the doll house to the big house. She pleaded guilty to two felony counts of grand theft with sentencing enhancements for aggravated white collar crime over $500,000 and property damage over $150,000 and $50,000, prosecutors said.

For the full story, click here

Lehigh students Leslie Pope and John Wagner believe that they now know why tipping is mandatory at the Lehigh Pub in Bethlehem. After they received what they called horrendous service, they paid the bill with no tip. They ended up in jail for the $16.35 tip.

The students were with six friends at the pub, which charges an automatic 18 percent gratuity for parties of six or more.

They claim that they had to get their own utensils and napkins for a waitress that left to take a smoke, beg for refills on sodas, and wait an hour for salad and wings.

The restaurant took the $73 for the meals and drinks and then called the police.

Lehigh Pub thereby succeeded in pursuing $16 in exchange for publicizing to the nation what customers think of its service. So much for a rational actor theory.

For the story, click here.

Arkansas police officer Dustin Bradshaw, used a Taser on a 10-year-old girl at the mother’s request after the little girl refused to take a shower and refused to obey him.

Bradshaw went to the house on a domestic disturbance call and found the girl on the floor screaming and refusing to listen to her mother.

Bradshaw proceeded to try to arrest the little girl, who kicked and resisted. He says that one kick hit him in the groin and he tasered the 10-year-old girl.

The girl has emotional problems, according to her father.

Most people would find tasering a little girl to be inexcusable and brutal but not Fort Smith Police Chief Jim Noggle. He insisted that Bradshaw was acting properly and even protecting her by shooting her with a taser. He has stated that, if she had not been tasered, Bradshaw might have broken her arms or legs in placing her into custody, here.

So that appears the full range of responses to an “unruly child,” as Noggle put it, is a broken arm or a tasing by deputies.

The little girl was charged with disorderly conduct.

It appears that no one is too old (here, here, here, here and here) or too young (here, here, here, here and here).

For the full story, click here and here.

Conservatives have picked a curious new slogan to oppose President Barack Obama: “Let his days be few; and let another take his office.” It is a quote from Psalm 109:8, but conservatives leave off the full passage: “Let his children be fatherless, and his wife a widow.” It is a damnation or imprecatory prayer.

In this case, conservatives are citing a passage that would seem to advocate Obama’s death. While obviously not the intended meaning, it is an interesting example of how these passages are used with no consideration of their actual meaning.

It is often interesting to see religious people use passages with little understanding of their meaning or to sanitize the passage to omit the violent Biblical message. This was the case recently in the controversy over cheerleaders like Georgia’s Lakeview-Fort Oglethorpe High School who use Biblical verses as part of their cheers, here. They use such passages as Ezra 10:4: “Rise up; this matter is in your hands. We will support you, so take courage and do it.” The only problem is that this Biblical passage describes how Ezra followed the lead of God to banish foreign women and their innocent children for not being pure.

The Psalm is one of David and is an imprecatory prayer for God to destroy his enemies in the most horrible ways. We have seen the use of imprecatory prayers against Obama and others recently, here.

Here is the whole Psalm:

Help Me, O Lord My God
To the choirmaster. A Psalm of David.

109:1 Be not silent, O God of my praise!
2 For wicked and deceitful mouths are opened against me,
speaking against me with lying tongues.
3 They encircle me with words of hate,
and attack me without cause.
4 In return for my love they accuse me,
but I give myself to prayer. [1]
5 So they reward me evil for good,
and hatred for my love.

6 Appoint a wicked man against him;
let an accuser stand at his right hand.
7 When he is tried, let him come forth guilty;
let his prayer be counted as sin!
8 May his days be few;
may another take his office!
9 May his children be fatherless
and his wife a widow!
10 May his children wander about and beg,
seeking food far from the ruins they inhabit!
11 May the creditor seize all that he has;
may strangers plunder the fruits of his toil!
12 Let there be none to extend kindness to him,
nor any to pity his fatherless children!
13 May his posterity be cut off;
may his name be blotted out in the second generation!
14 May the iniquity of his fathers be remembered before the Lord,
and let not the sin of his mother be blotted out!
15 Let them be before the Lord continually,
that he may cut off the memory of them from the earth!

16 For he did not remember to show kindness,
but pursued the poor and needy
and the brokenhearted, to put them to death.
17 He loved to curse; let curses come [2] upon him!
He did not delight in blessing; may it be far [3] from him!
18 He clothed himself with cursing as his coat;
may it soak [4] into his body like water,
like oil into his bones!
19 May it be like a garment that he wraps around him,
like a belt that he puts on every day!
20 May this be the reward of my accusers from the Lord,
of those who speak evil against my life!

21 But you, O God my Lord,
deal on my behalf for your name’s sake;
because your steadfast love is good, deliver me!
22 For I am poor and needy,
and my heart is stricken within me.
23 I am gone like a shadow at evening;
I am shaken off like a locust.
24 My knees are weak through fasting;
my body has become gaunt, with no fat.
25 I am an object of scorn to my accusers;
when they see me, they wag their heads.

26 Help me, O Lord my God!
Save me according to your steadfast love!
27 Let them know that this is your hand;
you, O Lord, have done it!
28 Let them curse, but you will bless!
They arise and are put to shame, but your servant will be glad!
29 May my accusers be clothed with dishonor;
may they be wrapped in their own shame as in a cloak!

30 With my mouth I will give great thanks to the Lord;
I will praise him in the midst of the throng.
31 For he stands at the right hand of the needy one,
to save him from those who condemn his soul to death.

Of course, the part about “May the creditor seize all that he has” appears to be working, at least for the Chinese government holding our debt. It is always nice to see the religious call for “his children wander about and beg, seeking food far from the ruins they inhabit!” After all, there is no vengeance and violence quite like Biblical vengeance and violence.

For the full story, click here.

Nick Balzano, president of the Service Employees International Union’s Allentown chapter, may have picked the wrong target for a threat of legal action by the union. Balzano threated the city with a grievance filing after Boy Scout Kevin Anderson, 17, says he cleared a walking path in an east Allentown, Pa. park so people could walk along the river. That should have been a job given to union employees, Balzano, claimed, and is threatening a legal filing.

The union was complaining that 39 SEIU members were recently let go by the city, which then allowed this scout to earn his scab badge. He is quoted as saying that the union would be “looking into the Cub Scout or Boy Scout who did the trails … There’s to be no volunteers.”

Anderson is a member of Boy Scouts Troop 301 of Center Valley and worked for more than 200 hours creating the 1000-foot path in Kimmets Lock Park along with fellow scouts, friends and parents. He is a junior at Southern Lehigh High School.

I think that the SEIU should insist on the garbage be put back and Anderson charged under National Labor Relations Act as a lesson to any scouts who would try something horrific like this again. Indeed, the federal government should look into how scouts have been supplanting cross-guard employees by helping elderly citizens across streets. The menace of scab scouting must be confronted before every footpath in America is cleared.

Below may (or may not) be a picture of the confrontation between the scouts and the union:

For the story, click here.

The Sharia courts of Somalia have another atrocity to their credit. The Islamic court of al-Shabab sentenced a woman to be stoned to death for adultery. The man was given 100 lashes.

The 20-year-old woman is a divorcee who admitted to having sex with another single person. She was stoned to death in front of 200 people. The man, 29, was allowed to live and given 100 lashes in the bizarre world of Sharia justice.

“Judge” Sheikh Ibrahim Abdirahman insisted that Islam requires such punishment for women who are divorced and have sex. It is treated as adultery. The man is viewed as simply having sex before marriage — punishable by flogging.

Previously, the Sharia court stoned a man to death but spared his pregnant girlfriend — who will be stoned soon after giving birth, here. Of course, these same areas have no problem with fostering piracy and murder — which appear perfectly moral.

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.

It was the Queen of Hearts in Alice in Wonderland that declared “Sentence first! Verdict afterwards.” However, President Barack Obama appears to have taken a lesson our two from her majesty. Today, President Obama assured Americans that they should not be offended by trying Khalid Sheikh Mohammed in federal court because he will be convicted and executed. I will be discussing this story tonight on MSNBC Countdown.

In an interview with NBC News, Obama said those offended by the trial will not find it “offensive at all when he’s convicted and when the death penalty is applied to him.” He then appeared to recognize the impropriety of those remarks and said that he was “not going to be in that courtroom. That’s the job of the prosecutors, the judge and the jury.”

It is highly ironic that, in defending the noble decision to grant a fair trial to these men, Obama may have crossed the line in contributing to the prejudicial atmosphere against them. It is always a bad idea for a politician to comment on cases pre-trial. However, the greater damage may have been caused by Attorney General Eric Holder in his original press conference on the decision. The only thing missing from that transcript is a case caption to make it a formal motion for venue change. Holder specifically states that he wanted KSM tried a couple blocks from ground zero and wanted to give New Yorkers the satisfaction of trying one of the villains of 9-11.

I am not certain that such a trial will occur. If there is a case to be made for a venue change, this is it. Holder only magnified the need for such a motion.

For the full story, click here.

Minneapolis and St. Paul are looking for a group of thugs whom videotaped themselves beating up pedestrians and threatening people. They should be relatively easy to locate: they included their real names and street names in formal credits on a YouTube video entitled “Watch This T.V.”

The video below shows a group of eight young men terrorizing children, old people, bicyclists and anyone else who come across. They clearly think it is enormously funny to beat up and terrorize people. The six-minute, 20-second video clearly shows the faces of the attackers with such street names as “Lil Stain,” “Shark” and “Gun Play.”

Police have received calls from local residents that effectively ask that they guarantee that there will be no sequel.

For the video and full 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

We have been following the expansion of defamation cases linked to Internet sites, here, and here. We now have an interesting Twitter case involving rock star Courtney Love, who lost her bid recently to dismiss a libel action filed by designer Dawn Simorangkir. Simorangkir claims in the lawsuit that Love “has embarked in what is nothing short of an obsessive and delusional crusade to terrorize and destroy” her.

The Tweet that makes this a particularly strong case is where Love described Simorangkir as having a “history of dealing cocaine.” Under the common law, alleging criminal conduct is a per se category of defamation. Love also accused her of being a drug addict, a prostitute, a thief, and a “horrible lying bitch.”

Simorangkir, known as the Boudoir Queen, is suing for libel, privacy violations, contractual breaches, and emotional distress. She also claims defamation on Love’s Facebook page.

We have previously seen Tweet torts for libel, here.

Here is the complaint: courtney_love_lawsuit_090331

For the full story, click here and here.

This is a bit harsh. Police has nicknamed David Holyoak, 33, as “Shrek” and publicly stated that he is “too ugly” for crime and a menace to criminal gangs.

The Manchester man was sentenced to three-and-a-half years in jail for robbery and police officers used the occasion to warn people of entering a life of crime without a more appealing appearance: “This man only needs to look at himself in the mirror to realise crime is not for him.”

The police noted that “[w]ith his big ears and rotund features he stands out a mile, and the officers have no trouble spotting him. He must be a total liability when he is part of a gang. He has already been dubbed Shrek and must be one of the ugliest robbers in the country.”

Jez, officers, the man is already going to jail as a bank robber.

It is clear that English officers are looking for a more handsome criminal element. The ideal must be Cary Grant in It Takes a Thief:

Then there is always Gabriel Byrne in The Usual Suspects:

Then there is John Travolta in Pulp Fiction:

On the female felon side, there is Sharon Stone in Basic Instinct:

For the story, click here.

In the aftermath of the criminal conviction in France (here), the Church of Scientology is facing a call for a criminal investigation in Australia from Senator Nick Xenophon, who presented the case against the church before the legislature.

Xenophon, used parliamentary privilege to present the case against the Church, presumably insulating himself from civil liability and putting the accounts of alleged victims into the record of the body.

He called the church’s “crimes” as “shocking” and declared that ”Scientology is not a religious organisation; it is a criminal organisation that hides behind its so-called religious beliefs.”
He put into the record letters from former members, detailing what he says is a criminal enterprise. He specifically highlighted the case of Paul David Schofield who says that his first daughter, Lauren, died after she was allowed to wander around one of the Church of Scientology’s Sydney buildings and fell down some stairs. His second daughter, Kirsty, also died, after swallowing potassium chloride – a substance he said was used widely in the organisation’s ”purification” programs.

Scientology officials denounced the move as ”an outrageous abuse of parliamentary privilege.” The Church insisted that former members are not reliable witnesses since “[t]hey are about as reliable as former spouses are when talking about their ex-partner.”

The Church was previously accused of hampering an investigation in Australia, here.

For the full story, click here.

Conservative commentators continue their war on the Constitution this week with increasingly shrill rhetoric of how our laws and civil liberties are endangering us. Fox News commentator Bill O’Reilly, however, achieved a remarkable low by declaring “I don’t care about the Constitution” on air in a discussion of Attorney General Eric Holder’s decision to try five detainees in New York.

I am always struck by anti-American rhetoric that comes from such figures. The Constitution is the very thing that defines who we are as a nation. It is the thing that we have sacrificed lives and treasure to protect. Yet, people like O’Reilly have little reluctance in trashing it. I am less surprised by Karl Rove, who has shown little personal commitment to the rule of law and barely escaped an indictment in the Plame matter. Rove declared that giving a fair trial to terror suspects is a “long-standing plot” by “left-wing lawyers who do not love America.” America, it seems, is something other than our values and founding documents. It is, I suppose, Fox News.

I have no delusion about O’Reilly, but I am still struck by the dismissive contempt shown this common article of faith between citizens, the Constitution. While we have considerable political, religious, and cultural differences, that document is something of a covenant of faith between us as citizens. One cannot love this country without loving that document. What is less is land and “lifestyle.” O’Reilly’s statement is every bit as offensive as those of Rev. Jeremiah Wright, whom I also denounced. Yet, it was met with acclaim rather than condemnation from conservative viewers.

In North Buffalo, Pennsylvania, Randy Good has created a novel and disgusting nuisance. He has agreed to remove a pile of hundreds of dead deer from his property which has neighbors gagging from the odor.

In torts, we often debate what constitutes a nuisance. This would appear to satisfy even the most restrictive definition. Randy Good has a contract with the state to remove dead deer from the side of roads within 24 hours. That results in a daily collection of 50 to 100 dead deer which often end up on his property as a rotting heap.

Good insists that “Everyone has a job. This is part of it.” However, he has agreed to remove the pile of dead deer — a wise move.

For the full story, click here.

Anthony Carrazco, 19, has learned the perils of door-to-door sales. Carrazco, however, was not selling Hoovers or Avon. He was selling marijuana door-to-door until he knocked on the door of a Brownsville cop. He was not amused to learn that rather than “Avon calling” it was the Cali Cartel.

To make the door service even more convenient for the police department, he was carrying a 9MM handgun, a scale, and three ounces of pot. He was also close enough to a school to force the charges into a higher felony range.

After Carrazco made his pitch, the officer said that he was interested and stepped into the house to get his gun and badge.

For the full story, click 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

It appears that the recent popularity over new hybrid dog breeds (like Labradoodles) has spawned a more dangerous market for hybrid dog/wolf pups. Animal activists are warning about the potential for attacks. Moreover, the new breeds could still be illegal in some states and may expose owners to strict liability.

In torts, we often discuss the liability associated with the possession of wild animals, particularly wolves (which are popular with many pet owners). State laws not only prohibit such ownership but sometime prohibit half-breeds — animals that are half dog and half wolf.

The hybrids have become the rage in the United Kingdom, which allows ownership if the pups are three generations removed from the wild animal. They sell for £5,000 — creating a serious market for breeders (including some who may not wait for three generations to pass).

They are often cross bred with German shepherds, akitas, malamutes, huskies and other large breeds.

Beverley Cuddy, editor of Dogs Today, insists that “[t]o live in a domestic situation with a part-wolf is insane . . . Hybrids are a potential disaster area.”

These owners may find this to be an expense habit in the United States where wild animals are subject to strict liability. Even domesticated animals are held to such a standard if they have known vicious propensities. While many have heard of the “one free bite”rule, it is a bit of a misnomer. You do not get one free bite with a dog if you knew or should have known about its vicious nature or breed.

For the full story, click here

Libyan Leader Muammar al-Qaddafi (aka Muammar Abu Minyar al-Gaddafi) may have bombed at the United Nations with his rambling speech, but he is still trying to win the hearts and minds of the young. This week, Qaddafi spoke to an audience of young Italian women about the need for them to convert and come and see him in Libya for a vacation.

The Libyan government arranged for the audience by going through an agency that supplies attractive hostesses for conferences between the age of 18 to 35. Qaddafi wanted them to become Muslims and disabuse them of any misunderstanding about the treatment of women in Islam.

He also explained a few misconceptions about Christianity, including the fact that Christians are under the wrong idea that Christ was crucified. It turns out, according to Qaddafi that he wasn’t — it was just a guy who looked like Christ.

He gave them each a copy of the Koran, a copy of his Green Book, and a personal invitation to come to his country for a vacation and conversion.

For the full story, click here.

Gerry Phillips is to hand farts what Louis Armstrong is to trumpets.

What is amazing is that Guns and Roses did a version of Phillips’ masterpiece:

We recently saw a court rule that a quadriplegic has a right to hunt with a special chair where he literally blows away deer by blowing into a tube attached to the trigger. Now, Senators have adopted a provision to guarantee the right of “mentally incapacitated” veterans to buy firearms. After the shooting at Fort Hood, the provision passed with the support of Republican North Carolina Sen. Richard Burr and Democratic Virginia Senator Jim Webb is attracting criticism.

You might not be viewed as fully loaded but you are likely sane enough to own a gun under the new change.

The provision would allow such veterans currently listed as mentally incapacitated to buy weapons.
Burr explained that “[c]urrently, when the Department of Veterans’ Affairs (VA) appoints a fiduciary to assist a veteran with managing their financial affairs, VA also deems the veteran mentally incompetent and reports him or her to the FBI’s National Instant Criminal Background Check System (NICS), . . The Veterans Second Amendment Protection Act would require a judicial body to deem a veteran, surviving spouse, or child as a danger to himself or others before being listed in NICS, which would prohibit the veteran from being able to purchase certain firearms. The legislation is supported by the American Legion, Veterans of Foreign Wars, AMVETS, and the Military Order of the Purple Heart.”

The provision would alter the language of Gun Control Act of 1968 and override VA regulations that bar such purchases.

The legislation is called Veterans Second Amendment Protection Act and can be found here and here. It specifically covers any veteran “who is mentally incapacitated, deemed mentally incompetent, or experiencing an extended loss of consciousness.”

Critics charge that the provision would guarantee gun ownership for people like Major Nidal Hasan, who was considered ” “psychotic.”

The family of Matthias Mayhorn has filed a complaint against two Chicago police officers alleging that they dangled Mayhorn out of a second floor window, fired their weapons near him, and then dropped him. They also allege that the officers refused to call immediate medical attention. He died later at a hospital from his injuries. The case shows how one event can present radically different accounts.

The alleged abuse occurred on March 10, 2009 and accuses officers Henry Thomas and Patrick Kane, who allegedly entered his home without permission.

The officers have a strikingly different account: alleging that they shot Mayhorn who was armed and escaping out the window, here. Mayhorn was no angel. He had been convicted of several felonies, including aggravated domestic battery, possession of a firearm and escape from a peace officer. That record is not likely to help the lawsuit.

For a copy of the complaint, click here.

George Steven Lopez Mercado was a gay teen in Puerto Rico who was found on the side of a road partially burned, decapitated, and dismembered. The response of the police was reportedly horror . . . at his lifestyle.

According to reports, the police investigator assigned to the case, Angel Rodriguez Colon, said that “people who lead this type of lifestyle need to be aware that this will happen.”

The 19-year-old was found a few miles away from his town of Caguas.

Obviously, this detective must be removed from the case but it reveals a deeper seated problem in such cases. I have worked in Puerto Rico and was told by a gay Puerto Rican of the fear that he has from both police and vigilantes. This case would appear to reaffirm his concerns.

For the story, click here.

Necessity defenses in tort and criminal law are always somewhat controversial and rarely successful in criminal prosecutions. However, Lisa Marie Leprowse has secured a reversal of her DUI conviction from the Montana Supreme Court, which ruled that the trial court erred in not allowing her to argue that she drove drunk to avoid a fight.

Here is how the Montana Supreme Court described the underlying facts in Montana v. Leprowse:

On May 12, 2008, Leprowse was charged in District Court with assault with a weapon and DUI. The assault charge was later dismissed. The allegations in support of these charges are as follows. On April 27, 2008, dispatch advised officers in Missoula County that someone had pointed a gun at another individual at the Other Place, a bar in Turah, Montana. Dispatch further advised that the suspect left the Other Place westbound on I-90 in a white SUV heading to a trailer park near the Cross Roads Truck Stop. Dispatch advised the officers that the vehicle was being driven by Leprowse.

Deputy Tillman stopped and processed Leprowse for a DUI. According to the charging documents, Leprowse was cooperative with Deputy Tillman, told the deputy how much she had to drink, and admitted she was intoxicated. Meanwhile, Deputy Schmill went to the Other Place to speak with the victims and witnesses. An individual named Jim Meixner (Meixner) told Deputy Schmill that Leprowse and Stephanie Wahl (Wahl) had been in a physical altercation in the women’s bathroom at the Other Place. Meixner stated that he broke up the fight and separated the women. Meixner and Leprowse were subsequently talking outside the bar on the back patio when Leprowse asked Meixner for her hand gun back. Meixner had been keeping Leprowse’s hand gun at his house. Pursuant to her request, Meixner went to his house and retrieved the gun and brought it to Leprowse.

Meixner told officers that Wahl then came “out of nowhere” and knocked both of them to the ground. Leprowse and Wahl then started calling each other names. Meixner helped Leprowse to her vehicle and she drove away. Meixner told officers that Leprowse did not point the gun at anybody during this time.

Wahl told officers a different story. Wahl claimed that she came out of the bar after her altercation with Leprowse, and saw Meixner and Leprowse kissing on the back patio. When she confronted them, she claimed that Leprowse pulled out her hand gun, pointed it at her head and twice threatened to shoot her. After Leprowse left, Wahl called 911.

Leprowse asked to present an affirmative defense that she was trying to avoid the fight when she drove 14 miles. The prosecution objected and said that she should have stayed in her car and called 911. The trial court barred the defense. However, under MCA § 45-2-212, that state recognizes an affirmative defense:

A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or serious bodily harm if he reasonably believes that death or serious bodily harm will be inflicted upon him if he does not perform such conduct.

The holding of the Court was based on that provision:

We hold that the District Court incorrectly concluded prior to trial that Leprowse could not present evidence in support of the affirmative defense of compulsion. Leprowse alleged the required elements for the compulsion defense. She claimed she was compelled to drive away from the bar due to an imminent threat of serious bodily injury, and that her belief was reasonable. Whether Leprowse was actually compelled to drive the distance of 14 miles, and ostensibly commit a DUI, is at its essence a question of fact based on the circumstances.

Leprowse should be given the opportunity to present evidence which, if accepted by a rational trier of fact, would show that her belief was reasonable and that she was compelled to take the actions that she did. After Leprowse has had an opportunity to present such evidence to the jury, whether she is entitled to receive a jury instruction on her affirmative defense may be decided by the District Court based on the record before it.

The question now is how many Montana drunks will claim bar fights as the cause for their driving.

President Barack Obama and his Administration set a new level of hypocrisy this weekend with calls on the Chinese government and military to end censorship and be more open with the public while barring disclosure of embarrassing photos of detainee abuse.

Obama appears much more fervent in his commitment to civil liberties and open government when it is someone else’s government. Recently, his Administration took an extraordinary step of demanding an investigation of a visiting defense official on allegations of torture — in Sri Lanka, here.

Obama waxed poetic in China in explaining how the government should not be afraid of allowing the free flow of information and openness.

He insisted “I’m a big supporter of non-censorship. I recognize that different countries have different traditions. I can tell you that in the United States, the fact that we have free Internet — or unrestricted Internet access is a source of strength, and I think should be encouraged.” Of course, we had a tradition of open disclosure of government documents and photos before the Bush and Obama administration argued that embarrassment alone is sufficient to bar release of such information.

For the China story, click here.

To make the hypocrisy complete, Defense Secretary Robert Gates took the occasion of this weekend when Obama was lecturing the China on openness to block the release of any more pictures of foreign detainees abused by their U.S. captors. The Obama Administration is opposing free speech and good government groups in the Supreme Court who have denounced his policy of nondisclosure as a dangerous and extreme policy of government control of information.

For the Gates story, click here.

Then there is Rear Adm. Kevin Donegan, commander of the U.S. aircraft carrier group for the Asia-Pacific, who specifically used the same period to lecture the Chinese military on transparency in its activities. There seems no concern that Donegan was making such demands while Gates was denying transparency in Washington.

For the military story, click here.

The Obama Administration continues to leverage heavily on the growing cult of personality surrounding Obama — much like the one surrounding Bush in his first term. For many, Obama’s popularity is unaffected by the fact that he is pursuing the very same hostile policies as Bush on civil liberties, privacy, and open government. More importantly, there appears no reaction to the disconnect between his rhetoric and his actions. Once again, liberals are committing the same mistake that conservatives committed with Bush. Many continue to display blind loyalty and offer little criticism of the President while core values continue to be challenged by his Administration.

There are theories on the rational criminal actor, but I doubt Susan Dinnean, 55, would qualify in Wilton, Connecticut. The teacher at Middlebrook Middle School is accused of stealing $20 from the purse of another teacher — resulting in her loss of a $95,000 a year job.

The veteran teacher of 22 years was reportedly caught on camera taking the money from the teacher’s purse in her classroom on October 21st. The hidden camera was set up after the teacher previously reported $170 missing.

Dinnean reportedly admitted to this theft and others. She has been charged with three counts of sixth-degree larceny.

For the full story, click here.

This is obviously a cultural divide. This video shows how the Chinese have devised a way to keep a fish alive during frying so that it can be eaten alive.

I find the whole video perfectly disturbing and disgusting. What is striking is how our cultures differ on such subjects. I have been to China repeatedly and I am always struck by the detachment over such issues. Of course, I enjoyed eating sushi in Japan where the live fish is only seconds previously dispatched. However, watching the taunting of the living fish is a bit much for my sensibilities.

The Japanese also eat live fish on occasion:

This video should be in every police academy training program. The female officer shown in the video from Las Vegas stands with gun drawn while a suspect is cuffed and then accidently discharges her weapon — barely missing both the suspect and the other officer.

The video is actually a couple years old, but I have not seen it before this morning. This rivals the Dallas officer who tasered himself in another roadside arrest.

Proof that dogs are too smart to pay $10,000 to sweat to death in a self-help program, here.

However, the Fandangle tribe is likely to sue this pooch for property infringement.

We previously followed the investigation into the three deaths in a sweat lodge run by “Spiritual Warrior” James Arthur Ray at the Angel Valley Retreat Center in Sedona, Arizona. Now, the Lakota Sioux Tribe is suing, demanding the prosecution of Ray under the 1869 Treaty of Fr. Laramie for appropriating a Native American ritual.

The case is the Oglala Lakota Delegation of the Black Hills Sioux Nation Treaty Council v. United States, (D AZ, filed 11/2/2009) and relies on the language of the treaty stating:

If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent, and forwarded to the Commissioner of Indian Affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.

Ray is the bad man among the whites, they argue. Many would agree with that proposition. The question is whether Ray can self-help himself out of a treaty-based prosecution.

This could make for some interesting litigation. One does not often see prosecutions of people who are defined as “bad men among the whites” in federal court. More importantly, the claim that a sweat lodge is the property of the Lakotas is meritless in my view and would raise serious constitutional questions. Yet, they insist that the Oinikaga sweat lodge ceremony is part of the Lakota’s oral tradition which, according to the United Nations Declaration of Rights of Indigenous Peoples, Art. 31, is protected.

Sam Longblackcat, a spokesman for the Lakota, seemed to steer away from religious challenges from the defense. He said that the sweat lodge is one of the seven sacred rites of the Lakota. “This is a way of life, not a religion.” He insisted that “[t]he sweat lodge – we call it Oinikaga or Inipi – is a purification ceremony, to make life. Our sacred way of life was desecrated by a non-native man. This is our property, and there are laws in the United States and in the United Nations that state that these customs are ours and that they are to be protected.”

The non-Native man is also collecting almost $10,000 a person for the pleasure of self-help sweating.

I would still have to bet on the “non-native man” over the Lakota on this one.

For a copy of the lawsuit, click here.

For the full story, click here.

We have another death associated with a taser. Darryl Bain, 43, was tasered twice and died in the Long Island home of his mother in Coram, New York.

His brother called police to report that Bain was high on cocaine and had barricaded himself in the house with his 78-year-old mother. She had an existing order of protection against her son.

The police say that Bain fought with three officers and died after two taser shots.

The police may have been justified in the use of force, but this death (once again) raises questions over the risks associated with this “non-lethal” weapon.

We have seen other such fatal taserings, here, here, here, here , here, here, here and here.

For the full story, click here.

Paul Clarke, 27, a veteran, thought that he was doing the right thing when he found a shotgun in his garden. He took the shotgun to the police station and was immediately arrested for possession of a firearm without permit and criminally charged — an offense that brings five years imprisonment. Prosecutor Brian Stalk insisted that this is a strict liability offense and his intent to help police does not matter — he is a menace to society as defined under the criminal code.

If there was a case for “jury nullification,” this was it. However, the jury took only 20 minutes to find Clarke guilty.

Clarke insisted “I thought it was my duty to hand it in and get it off the streets.” Well now he knows better.

His defense attorney tried to show that a leaflet distributed by the Surrey Police asked citizens to “report[] found firearms.”

He also showed jurors a leaflet printed by Surrey Police explaining to citizens what they can do at a police station, which included “reporting found firearms”. Notably, the arresting officer admitted that he was not even aware of the public leaflet.

However, Judge Christopher Critchlow said: “This is an unusual case, but in law there is no dispute that Mr Clarke has no defence to this charge. The intention of anybody possessing a firearm is irrelevant.”

Paul Clarke will be sentenced on December 11th. He will be hopefully removed from the streets, so that felons can rest assured that, when they leave loaded weapons in backyards, people will respect their proprietary interests. The only question is whether the police shouldn’t return the shotgun to where it was left. Otherwise, there is a gang banger who will continue a panicked search for his missing weapon.

In the end, the only response to the Court and the Prosecutor can be found in the English classic Oliver Twist when Mr. Bumble stated ” If the law supposes that, then the law is a ass, a idiot!”

For the full story, click here.

There is a disturbing trial being held in Zambia where the news editor of The Post, Chansa Kabwela, sent photos of a woman giving birth in a hospital car park without assistance to highlight the costs of a nursing strike and poor government policies. She was right. The officials, including Zambia’s President, Rupiah Banda, were horrified. They immediately arrested Kabwela for distributing pornography.

The baby died from suffocation and the pictures were quite graphic. No one at the trial seems quite as appalled by the lack of medical care that led to the death. It is taboo in the country to show a woman in labor.

Sharon Zulu, the arresting officer, told the court and jury “[w]e are all Zambian here. We all know this is not allowed in our culture.” Now that is a novel form of testimony — cultural lessons from a police officer. However, our community-based definition of obscenity is not much better given Former Justice Potter Stewart’s opinion that “I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it . . .” One of the most ridiculous legal standards ever uttered.

Under the Court’s decision in Miller v. California the Court uses a standard that is rife with local community bias. Chief Justice Warren Burger crafted the standard:

The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Of course, in the Zambian case, the photos may be offensive but they are hardly the most offensive thing in this case.

For the full story, click here.

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

We often discuss liability issues associated with promotional events. Now, it seems that the French are dealing with the same problem. An Internet company canceled a promotional event in which it promised to hand out thousands of dollars in cash. The result was violence as the crowd took out their disappointment on police and parked cars. The site for Mailorama still shows a bus throwing money.

A crowd of about 5,000 people turned ugly near the Eiffel Town when they learned of the cancelation of the event by Mailorama.fr

One of the leading authorities in the area of promotional liability is the Weirum v. RKO decision, holding a radio station liable for injuries caused to a third party when teenagers drove recklessly to find The Real Don Steele in his marked van. The court held that the reckless driving was a foreseeable response of teenagers to the promise of free concert tickets.

Should Mailorama be liable for the damage to third parties for the cancelation of the event? Normally intentional torts and crimes cut off proximate causation. However, as in cases like Weirum there are exceptions when such actions are foreseeable. If the event had been held, there would likely have been injuries given the size of the crowd and apparent lack of preparation. This strikes me as a uniquely reckless promotion by the company.

For the full story, click here.

The agony of defeat . . .

The fact is that if this kitten actually made this jump, there would be an immediate steroid controversy.

Parents at the Fox Hill Primary School in Sheffield England are a bit put out over a curious educational program at the school. When children showed up at the school recently, they were met by a bloody crime scene, a dead teacher on the ground, and police. They were asked to solve the crime but not told that it was all for fun.

Students were told that the teacher was killed in a violent break-in. Children as young as five were shocked to see the body and blood with police tape around the crime scene.

The school only sent an explanatory letter at the end of the week and the truth was kept from the parents to make the exercise more real.

I actually think the project was creative and well-meaning. I simply do not understand why it was so necessary to pretend that it was real. Kids would have enjoyed a faux murder mystery without the trauma. I particularly believe that parents should have been told and allowed to inform their children at their own discretion.

For the full story, click here.

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.

A federal court of appeals has ruled that Melanie Dawn Williams, 24, can sue after she was tackled by Jacksonville, Florida police in a hospital where she was experiencing a premature birth. Once inside the ER and she screamed, “I’m pregnant. Someone help me. I am bleeding.” It took the intervention of a nurse to get the police to release her to deal with her serious medical condition.

Williams was seven months pregnant and a doctor told her to rush to St. Vincent’s Medical Center. When she ran a red light, she was chased by Officers M.H. Sirmons and J.D. Mills who proceeded to tackle her and dragged her outside from the emergency room in handcuffs. Williams was bleeding from the labor and eventually a nurse went outside to force the officers to allow them to give her medical treatment.

Sirmons said that he was told by Williams that she was bleeding but not pregnant. He assumed that she was just trying to get out off a ticket.

By the way, this was not a high-speed chase. Williams actually stopped to speak with the officers and even handed over her identification. She then drove away to the nearby hospital at roughly 40 miles per hour. The entire “chase” took one-minute at 40 mph.

Once again, it is beyond me why this city and the Jacksonville Sheriff’s Office is litigating this case and not settling. The district court rejected their qualified immunity claim and that ruling was upheld by the Eleventh Circuit — allowing her to sue for violations under 42 U.S.C. § 1983 and the Fourth Amendment

For the video, click here.

The panel on the United States Court of Appeals for the Eleventh Circuit ruled that officers knew she was in medical distress and could be sued even if she did not mention that she was pregnant.

However, they barred her suing over excessive force, holding that reasonable force was used: “Williams was miraculously not harmed,” the court said. “Although we agree … that the deputies’ behavior was reprehensible, we disagree that the evidence supports a finding that the force was excessive.”

The panel noted:

Under Florida law, necessity or duress is an affirmative defense to the crime of fleeing or eluding a police officer, as codified under Fla. Stat. § 316.1935. See Rowley v. State, 939 So. 2d 298, 300 (Fla. Ct. App. 2006). The elements of the defense are (1) the defendant reasonably believed that a danger or emergency existed that she did not intentionally cause; (2) the danger or emergency threatened significant harm to her or a third person; (3) the threatened harm was real, imminent, and impending; (4) the defendant had no reasonable means to avoid the danger or emergency except by committing the crime; (5) the crime was committed out of duress to avoid the danger or emergency; and (6) the harm the defendant avoided outweighs the harm caused by committing the crime. Driggers v. State, 917 So.2d 329, 331 (Fla. Ct. App. 2005).

In this case, the evidence taken in the light most favorable to Williams establishes that the deputies knew from their interview with her during the traffic stop that Williams was pregnant, bleeding, in distress, and on her way to the hospital for emergency treatment. The deputies, however, detained Williams in order to write a traffic citation. . . . A reasonable officer would have known, given this particular set of circumstances, that Williams’ flight from the traffic stop was justified by the affirmative defense of necessity or duress. For this reason, the deputies lacked arguable — much less actual — probable cause to arrest, even though the circumstances established that Williams met all elements of the offense of fleeing or eluding a police officer. The deputies, therefore, are not entitled to the defense of qualified immunity as a matter of law for Williams’ claim that the arrest was unsupported by probable cause and the district court properly denied summary judgment on this ground.

This is not the first time that a pregnant woman has faced an unsympathetic officer intent on enforcing traffic laws, here.

For the story and video, click here and here.

The former Louisiana Rep. William Jefferson received a sentence of 13 years today — the longest term ever imposed on a congressman convicted of bribery. However, it was significantly below the 27 years sought by the Justice Department, which also failed in its attempt to have Jefferson immediately incarcerated. Instead, Jefferson, 62, will be allowed to remain free pending his appeals.

It was as good as sentence as Jefferson could expect. His attorneys had asked for 10 years, so he received just three years above the defense recommendation. The decision to allow him to stay outside on bond is a particularly impressive win for his lawyers.

For the full story, click here.

Attorney General Eric Holder has ordered actual trials for five 9/11 suspects rather than military tribunals. The decision places the United States squarely back on the road of the rule of law in giving due process even to our most hated defendants. The five defendants include 9/11 mastermind Khalid Sheikh Mohammed. The other four are Waleed bin Attash, Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi and Ali Abd al-Aziz Ali. However, this courageous act was diminished by an inexplicable decision of Holder to order five other defendants — including USS Cole suspect Abd al-Rahim al-Nashiri — be tried in a military tribunal. I discussed this decision on this segment of MSNBC Countdown.

Texas GOP Sen. John Cornyn condemned the move as putting “political ideology ahead of the safety of the American people just to fulfill an ill-conceived campaign promise.” I am not sure what ideology means but I assume it is a reference to the Constitution. What makes us safer is to offer the world an alternative to these men; to show that we are not the hypocrites that we appeared during the Bush Administration.

The decision to send some detainees to military tribunals, however, is a baffling contradiction. Holder has denied the Administration the high ground in the debate by trying to appease both sides and deny due process to some of these accused individuals. It is a case of snatching hypocrisy out of the jaws of principle.

For the full story, click here.

Scientists have made a breakthrough in research increasing brain activity and memory. They have created Hobbie-J, the world’s smartest rat. Hobbie-j is the result of a sinister organization known NIMH. Ok, it is less sinister when spelled out: U.S. National Institute of Mental Health.

Hobbie-J can remember things 300 percent more than an ordinary rat due to modifying a single gene.

This could either promise huge increases in human intelligence or a race of super rat overlords who will use us as slave cheese makers and cat killers. I want to go on record that the Turley blog will continue its policy of surrendering to any new animal overlords that demand slavish allegiance, here, here, here and here. I just wish someone would tell us whom to surrender to.

Hobbie-J can perform amazing analytical tasks due to the overexpression of the gene NR2B. One only has to compare this performance to the recent Larry King/Carrie Prejean interview to see the inevitable domination of rodent overlords.

For a glimpse into our future, here is a video from the Nimh labs:

For the full story, click here.