Lowering the Bar

Yawner Held in Contempt of Court

A potential juror was fined $1000 earlier this month for yawning during voir dire. The man, whose name was not revealed, also "waved his arms" and told Los Angeles Superior Court Judge Craig Veals that he was "really bored."

Judge Veals reduced the fine to $100 a few days later. Lawyers and court officials interviewed by Reuters said that while sanctions are not uncommon for contempt of court, they had "never heard of such a punishment for yawning."

Yahoo! News Thanks to Pete Henk and John Cooke.

St. Louis Woman Sues After Bird Assault

Rhonda Nichols, of Centreville, Illinois, sued Lowe's Hardware after allegedly being "attacked and seriously injured" by a bird that flew into the back of her head while she was shopping at an area hardware store. According to the suit, the bird impact caused Nichols to suffer injuries to her "head, brain, neck, muscles, bones, nerves, discs, ligaments . . . neurological functions and cognitive skills." Nichols alleges that Lowe's is responsible because it "allowed wild birds to enter the Gardening area in which customers travel," and said birds created a dangerous condition.

The store's assistant manager said it had no record of any bird attacks at the store on April 15, 2003, the date the assault allegedly took place. She also pointed out that, as the gardening area is in an area commonly known as the "outdoors," Lowe's is unable to control the movements of birds who may travel in that area.

But Zane Cagle, an attorney for Nichols, insisted that not only was Lowe's responsible, the attack is part of a larger problem. "These wild birds are an issue in many of these types of stores," he said. He also emphasized the seriousness of his client's (alleged) injuries, caused by the size of the Lowe's-sponsored wild bird. "[T]he bird was described to us as being about the size of a robin or pigeon," he emphasized. "This was no sparrow."

A few years ago, when our firm represented Sears, we handled a case in Texas in which a woman sued Sears because a bat had allegedly flown out of the Sears store while she was walking in the mall near the store, frightening her and causing her to lose her balance and fall, breaking her hip. I unfortunately was not able to take the woman's deposition. I wanted to take an issue of National Geographic along and ask if she could pick her assailant out of a lineup.

STLtoday - News - Metro East

Update - Pirate Captain Wins As Predicted

Previously I reported on the campaign of a candidate known only as "Pirate Captain" to be student body president at N.C. State University. As I predicted, he won.

Pirate Captain, whose name is now revealed to be Will Piavis, won the runoff election with nearly 60 percent of the vote. As the results were announced, Piavis's supporters chanted his name, or one of his names, anyway. All were wearing pirate hats.

Piavis said he plans to continue using the Pirate Captain character, noting that it has been successful in getting students interested in campus politics. Turnout was high, but at least some were "disturbed" by his win. One senior said, "He doesn't really have any issues, although it's possible that he does and she is just unable to tell, because as she noted, "All his quotes in the paper were in pirate language that [to her] doesn't make any sense."

HoustonChronicle.com

"I Just Want to Let You Know, There Was A Statement In the Pants"

CNN reported today that a man in South Carolina is appealing his rape conviction on the grounds that the jurors found a previously unrevealed written confession in his pants while they were deliberating on their verdict.

Note to self: ask clients to check pockets for incriminating statements before handing pants over to jury.

Apparently, the defendant provided the confession to police but prosecutors were unable to enter it into evidence because they could not find a copy. The pants, however, did become an exhibit (it being a rape case and all), and evidently if you give your pants to a jury the first thing they will do when they get in the jury room is go through your pockets.

After the verdict, one of the jurors told prosecutor Angie Martin, "I just want to let you know, there was a statement in the pants."

The defendant's lawyer says his client deserves a new trial because the conviction was likely based on unadmitted evidence. The prosecution believes the defendant had something to do with what was in his pants (the confession, I mean), and says it will argue that the conviction should be upheld based on the doctrine of invited error.

CNN.com - -- thanks Lisa Lukaszewski

Beetle-Hunting Lawyer Held at Gunpoint by Police

I couldn't really improve on that original headline. The New York Law Journal reported today that a federal judge has upheld a verdict dismissing a lawyer's civil-rights lawsuit against the Scarsdale police department for using excessive force while arresting him during a beetle hunt.

Harry Zirlin, 51, who is not only an attorney with Debevoise & Plimpton but also a nationally-recognized beetle expert, was hunting beetles in December 2002 in the woods near his home. Zirlin says he was carrying a pocketknife, which he uses to dig into dead trees to get the beetles out. A woman who was driving by saw Zirlin and stopped to report a "man in the woods with a knife." Police were called, and they stormed the woods and arrested Zirlin at gunpoint, handcuffing him behind his back with his face to the ground, closer to his beloved beetles, perhaps, but far from the light of justice.

He can use that last part in his next appeal if he wants.

Police never identified the woman and she has never explained why she thought Zirlin was dangerous or who he was posing a danger to. Zirlin's theory, since it was "around Christmas time" and he was alone in the woods, is that she thought he might be trying to commit suicide with his pocketknife. (My theory is that there's apparently nothing 9/11 can't justify.) Zirlin says he sued mostly to force a change in police tactics, saying that responding to such a situation with guns drawn could end up costing the life of an innocent person.

But Judge Charles Brieant of the Southern District of New York ruled that a reasonable jury could have concluded that, based on what the police knew at the time, police could have reasonably believed they were entering a hostile and dangerous situation. The judge noted that Zirlin is the "paradigm of a reputable citizen," but found no reason to overturn the verdict. Zirlin says he will appeal.

NY Law Journal via law.com - thanks to Deb Smith

Airport Camel-Suit Thief Facing Dismissal

If I've said it once, I've said it a thousand times: Pack your camel costumes securely, people! The only thing worse than trying to get that thing packed in the first place is seeing a baggage handler running around wearing it on the tarmac.

This happened to David Cox of Sydney, Australia, this week. Cox was waiting to board a Qantas flight when he noticed a baggage handler wearing a camel costume. Believing that this was not normal attire for Qantas baggage handlers, and that camel costumes are relatively rare, even in Australia, Mr. Cox surmised (correctly) that the baggage handler had stolen his own camel costume out of his checked baggage and was flagrantly wearing it on the runway. "I obviously was flabbergasted . . . my jaw dropped to the ground," Cox said. "I went to the customer service desk . . . and said, 'Look, I've checked my luggage through, someone's obviously been through my luggage, taken [my camel costume] out, now is wearing [said camel costume] across the tarmac, what's going on?"

Cox actually expressed a grudging admiration for the deed, but still believed it could not be countenanced: "It's the kind of larrikin [rowdy] thing that an Australian would do, but given the current situation . . . it's obviously a poor decision." A Qantas spokesman said the incident had been recorded by security cameras and the camel-suit thief would likely be dismissed (assuming he could be identified).

I enjoyed the fact that the Australian news report gave absolutely no explanation as to why Mr. Cox was traveling with a camel costume. I guess they considered it just the kind of larrikin thing that an Australian would do. The Reuters report explained that Cox is a "marketing manager," and that he also had a crocodile costume with him, but didn't say what the costumes were for.

Meanwhile, attorneys for an Australian who has been charged with drug smuggling by Indonesian authorities said they were reviewing the incident to see if it could be used to prove that someone could have slipped the 4 kilos of marijuana into the accused woman's camel costume, I mean suitcase.

ABC News Online -- Australia
Reuters

Cookie Monster Will Now Advocate Eating in Moderation

The Associated Press reports this week that Sesame Street's Cookie Monster, long known for scarfing down any and all cookies in sight as well as a variety of other objects, will now emphasize moderation in eating, in recognition of the fat epidemic now raging in America. New segments on the show will include the song, "A Cookie is a Sometimes Food."

I'm sorry, but this contravenes everything that Cookie Monster stands for. As the reporter noted, this is like using Oscar the Grouch as a spokesmuppet for clean living.

Politicians including Senator Hillary Clinton and noted long-distance-neurologist Senator Bill Frist have filed public service announcements supporting this treason. Senator Frist's office commented, "[Cookie Monster's] sage advice opened our eyes to the simple joys of a tasty cookie and now reminds us that moderation is the key to healthy living." Huh? In another "healthy living" segment, Frist teaches Elmo to exercise by jumping up and down.

At the time of writing, public sentiment as measured by CNN's "Quickvote" poll was running 77-23 percent against Cookie Monster eating fewer cookies.

CNN.com

Messages Not to Leave for a Judge, #47

In its April issue, Harper's Magazine reprinted voice-mail messages left by attorney Bruce Tassan for the judges who had ruled against his client in a trademark appeal. Apparently, Mr. Tassan left at least one message for each of the three judges on his panel. Here is the most reprintable one, left for Judge Carlisle Walters:

Oh, Carlisle, this is Bruce Tassan. I just received the decision concerning an application number 75/269,411. I don't really expect much from government workers, but for God's sake I thought at least you'd mention the fact that you don't give a GODDAMN that the client's mark's already registered. JESUS CHRIST, YOU STUPID IDIOTS.

(Emphasis in original.) The messages left for the other two panel members each contained at least one F-bomb.

Tassan later called back and apologized, saying that he had been "taking a strong cough medicine" at the time of his calls. The judges required him to take an anger-management class.

Harper's Magazine (April 2005), p. 31.

Crooks Leave Trail to Own Front Door

Careful police work led to the swift capture of Michael Graves and Steven Sleeter in late March, after they robbed a grocery store and made off with nine cartons of cigarettes and over $700 in bills, coin rolls and loose change. Apparently, they carried off their booty in a milk crate, and apparently the crate had a coin-sized hole in it.

When the robbery was discovered the next morning, officers followed a trail of coins from the store to Sleeter's home. (Or at least in the direction of it -- the report says that after about five blocks, one of the officers realized they were heading towards Sleeter's home, and remembered that Sleeter was a suspect in an prior unsolved burglary at that same store. This sounds a little convenient to me, and it's funnier if the trail led all the way to the house, so let's pretend it did.) More coins were found outside the house, which certainly sounds like probable cause to me, and Graves and Sleeter were arrested.

Court TV via FindLaw.com

Michelangelo's David Declared Obscene in Indiana

Officials in Bartholomew County, Indiana, have told a business that sells copies of classical art that it must move certain statues out of view because they would be considered obscene under Indiana law. The statutes include copies of Michelangelo's David and the Venus de Milo.

Not many people know that these were originally carved with shorts and a tank top respectively, until liberals had them chiseled away.

Ginger Streeval, owner of the business ("White River Truck Repair and Yard Art"), objected to the ruling. "It's not fair to point out our business," she said (David's business, actually), and personally I don't find them offensive. But Frank Butler, the county zoning inspector, did not agree. He said that the statues "have nudity" (which they do) and that Indiana law prohibits the display of nudity where children might see it. At least, it does if, "considered as a whole, [the material] lacks serious literary, artistic, political or scientific value," as Michelangelo's David clearly does.

There is other good stuff at the attached link. I especially admire FOX News' use of the phrase, "turd burglar," on a website where children might see it.

FOXNews.com -- thanks to Steve Soden for reporting this