Lowering the Bar

Appellate Court Rules Judicial Snoozing Did Not Make Criminal Trial Unfair

Two men who were each convicted and sentenced to more than ten years in prison will not be getting a new trial just because the judge repeatedly fell asleep during the first one, an Australian court ruled this week.  The majority in the 2-1 decision said that the judge's tendency to doze during trial proceedings was "regrettable," but had not been shown to have resulted in a miscarriage of justice.

Judge Michael Grove, who wrote the majority opinion, conceded that the trial judge had not been "bright-eyed," in fact had repeatedly "nodded off," and "on other occasions, notably when he was heard to snore, was asleep in a real and practical sense."  Nicely done.  How about, "periodically displayed a level of consciousness that perhaps was not all it could have been"?  Having covered the range of sleepiness standards, however, Judge Grove then ruled that it didn't matter on these facts, finding that for a judge to be "constantly attentive is not a fundamental requirement."

Dissenting judge John Basten believed, however, that the men should be given a new trial.  Noting evidence that the jury was distracted by the judge's snoring while one of the defendants was presenting his evidence, he found it a reasonable possibility that the judge's conduct -- or lack of conduct -- could have influenced the jury.  Unless the sleepytime periods in question were "insignificant," he wrote, he believed it was better as a general matter to require a trial judge to be "present and conscious" during the entire criminal trial.

The trial judge in question retired in 2005, a year after the trial, and was later diagnosed with sleep apnea.  His case was one of 15 cases of "judicial sleepiness" examined in a paper published in May in Sleep, the professional journal of the American Academy of Sleep Medicine.  (Other cases allegedly involved the War Crimes Tribunal at The Hague, and the U.S. Supreme Court.)  According to a summary on the University of Sydney's website, the paper "asserts that occupational sleepiness in white-collar monotonous workplaces, such as courtrooms," is not uncommon.  When it strikes behind the bench, said a professor quoted in the summary, it may be a serious problem.

"Clearly judicial sleepiness threatens the integrity of the judicial system," he said, "and there would seem to be a need to develop preventative or monitoring strategies in judicial systems to prevent it occurring."

Link: Yahoo! News
Link: University of Sydney

Official on Trial for Corruption Reads Tearful, Plagiarized Apology

The former head of a state-owned power company in China, currently on trial for corruption charges, does not seem to have helped his case by reading a four-page apology letter in court this week.  While the apology seems to have been lengthy, and tearful, it also turned out to have been plagiarized from an apology somebody else had used less than two weeks before.

I should also note here for Western readers that typically, reading a lengthy "apology" during your trial is not a defense strategy we would recommend.  In China you may not have a choice.

Someone allegedly noticed that Zhang Shaocang's apology appeared quite similar to one that had been written by Zhu Fuzhong, a former village Communist party official, and that had been previously published in an official paper.  Plagiarism?  You be the judge:

• Zhu wrote: "Before working, I never gave much thought to money and regarded achievement as the starting point and end result of my work. . . . I gradually lost my bearings and the scope of my position."
• Zhang wrote: "Before working, I never gave much thought to money and regarded achievement as the starting point and end result of my work. . . . I gradually lost my bearings and the scope of my position."

Well, that does look suspicious.

On the other hand, presumably neither man wrote his apology in English.  And this report originated in the "Procuratorial Daily," which Reuters described as "the official paper of China's top prosecutions office," not a very neutral source.  Reuters says that the Procuratorial Daily "is distributed as reading material at many 'supervision venues,' [the term for] the often secret locations where Communist Party officials are held for questioning."  So I guess the allegation is that Mr. Zhang "stole" the apology from the reading material in the waiting room at his "supervision venue."

Forgive me for saying this seems a little like criticizing a Gitmo detainee for quoting somebody he heard on FOX News while waiting for his hearing.  (What do you think they have on in the waiting room -- NPR?)  He could very well be a criminal, but accusing him of plagiarism seems like piling on.

Because of the similarities, the court dismissed Zhang's apology as "show-boating."  So he'll be executed for that, too.

Link: Reuters

Former Sideshow Performer Says He Hopes to Become "Freak Lawyer"

Eduardo Arrocha began classes yesterday at Thomas M. Cooley Law School in Lansing, Michigan, saying he had found a new calling.  Arrocha, who has spent the last 15 years eating nails as part of a Coney Island sideshow, said it was time to move on.

"Coney Island was very good to me, but it was just time to go," said Arrocha, who has been known since 1992 as "Eak the Geek."  "Eak the Geek is the performance," he said, "but I'm also a person."  And as his resume and his new ambition suggest, he is not what you might expect when you hear the words "carnival sideshow act."  While he is heavily tattooed, eats nails and walks on glass, he is also a poet and artist who has toured with a hard-core punk band.  His solo act at Coney Island "displays his many tattoos, includes a lecture on diversity and stands three audience members on his chest as he lies sandwiched between two beds of nails." (Emphasis added.)

But Arrocha has decided to do more than just lecture about diversity.  He says that he hopes to use his law degree to speak for "alternative people" like himself.  "I hope to have a little office in New York," he said, "and work with the alternative people, all the so-called riffraff, to give them legal representation that is not judgmental."  He continued, "I know it sounds weird, but I want to be a freak lawyer."

I had been considering making that my niche, too, but I would be in serious need of some street cred if I tried to compete with this guy.

So congratulations and best of luck to Eak the Geek, now faced with new challenges as he changes professions.  "I've never had to tie a tie before," he said.  I'm pretty confident that anybody who can eat nails and walk on glass can master that skill.

Link: AP via Newsvine
Link: Eak the Geek's MySpace page
Link: Thomas M. Cooley Law School

Man's Right to Fish Recognized; Violation Held Not Grounds for Divorce

One of my ongoing projects (in addition to trying to convince our managing partner to get us a helper monkey) is to collect and make available as many legal documents as possible that are truly funny (intentionally or not).  As I come across good ones I'm uploading copies to the site and updating the summary pages that you can find over to the right.

Here's the latest addition, sent in by a reader.  Moore v. Moore was a 1960 case arising in southern Missouri and involving a husband's petition for divorce based on "general indignities."  Obviously that term describes a lot of relationships but this turns out to be Missouri's term for "irreconcilable differences."  Mr. Moore alleged a laundry list of "indignities," including (the court's headings):

• The turkey shoot
• The houseboat incident
• Another anti-fishing incident
• Late return from Shrine parade
• The pasture incident
• The cow sales incidents
• The quail hunting incident
• The telephone incident

Also, Mrs. Moore called Mr. Moore's folks "hillbillies."

The trial court granted the divorce, but the Court of Appeals in Springfield reversed.  The whole thing is worth reading, but here are a couple of excerpts:

We will agree with respondent . . . that a husband has a right to go fishing. And we will go further and say that this right extends to fishing without the constant and ever-present impediment of female presence and participation, if such be against the will of the husband. . . . [B]ut two or three or four isolated instances of insistence upon going along, or insistence upon his not going (either fishing or turkey shooting), over a period of six years do not, in and of themselves, constitute a constant and studied course of conduct amounting to indignities which render life intolerable. . . . .

* * *

In respect to plaintiff's evidence that Minnie once referred to relatives of the plaintiff as hillbillies: We suggest that to refer to a person as a 'hillbilly,' or any other name, for that matter, might or might not be an insult . . . . [H]ere in Southern Missouri, the term is often given and accepted as a complimentary expression.

An Ozark hillbilly is an individual who has learned the real luxury of doing without the entangling complications of things which the dependent and over-pressured city dweller is required to consider as necessities. The hillbilly foregoes the hard grandeur of high buildings and canyon streets in exchange for wooded hills and verdant valleys. In place of creeping traffic he accepts the rippling flow of the wandering stream. He does not hear the snarl of exhaust, the raucous braying of horns, and the sharp, strident babble of many tense voices. For him instead is the measured beat of the katydid, the lonesome, far-off complaining of the whippoorwill, perhaps even the sound of a falling acorn in the infinite peace of the quiet woods. The hillbilly is often not familiar with new models, soirees, and office politics. But he does have the time and surroundings conducive to sober reflection and honest thought, the opportunity to get closer to his God. No, in Southern Missouri the appellation 'hillbilly' is not generally an insult or an indignity; it is an expression of envy.

Now that's good legal writing.

Link: Moore v. Moore, 337 S.W.2d 781 (Mo. Ct. App. 1960) (PDF copy of opinion).
Link: Lowering the Bar's Case Law Hall of Fame Page
Link: And the Pleading Archive