Lowering the Bar

Accused Robber Gets New Trial After Jurors Find New Evidence in Coat

Note to self: if a coat is going to be admitted into evidence and sent to the jury room, check the pockets first.

A defendant in Hagerstown, Maryland, was granted a new trial on December 12 after jurors found new evidence in the coat when they were examining it during deliberations.  The coat had allegedly been worn during an armed robbery and was presumably offered as an exhibit for purposes of identifying the defendant.

Someone forgot an extremely important rule of evidence: If Clothing Is Sent to the Jury Room, Jurors Will Go Through the Pockets.  In this case, the jurors found a rubber glove, a bandage, and more importantly, a money roll totalling $1300.

The state's attorney insisted that he (or, more specifically, his assistant state's attorney) had in fact gone through the pockets before using the coat at trial, but he had difficulty explaining why they didn't find the money if that was true.  He speculated that it "must have been in hidden pockets or in holes in the pockets" of the defendant's parka.  Maybe, although even if the money roll was made up entirely of twenties, an unscientific experiment I conducted just now by taking a bunch of money out of my wallet here at the coffee shop and loudly saying "I wonder how big a money roll all these twenties would make,"  in what was really not so much an experiment as a sad and desperate effort to get these models to  notice me, suggested that a roll of that size would be at least a couple of inches wide and therefore sort of hard to miss even if it was in a "hidden pocket."

The jurors, at least, were unsure how the stuff could have been missed.  "You would think," said one, "that with all the law enforcement people that had been involved with the case that everything would have been gone over with a fine-toothed comb - and then that fine-toothed comb would have had another fine-toothed comb going over it." Sounds to me like somebody owns a fine-toothed-comb company and is trying to double her profits.  You could always say there should have been "just one more fine-toothed comb" combing the previous combs, but in the real world, budgets and combs are limited.

The jury convicted the man in October, but Judge Theresa Adams granted the defense's motion for a new trial this week because of the evidentiary issue.  Though getting a new trial is good for him, it may not make a lot of difference if the money and glove are admissible the next time around.  According to the report, the defense arguments centered on the inability of the police to find any cash or fingerprints.

Link: Asbury Park Press (New Jersey)

Jury Finds Pool Store Not Liable For Goose Attack

Earlier this month, a jury in Maryland found against a woman who sued a shopping mall and pool store in Rockville after being attacked by a goose while on the mall's property in 2004.

Suzanne Webster said the goose's ferocious attack had caused her to fall and break her hip.  It appears that employees knew the goose was nesting on the property, but the defendants successfully argued that -- setting aside whether they could be responsible for the goose's decision to attack in the first place -- the goose is a protected species and so they were not allowed to interfere with the goose or the nest in any way.  The plaintiff's attorney argued that the store negligently allowed employees to feed the goose, making the situation worse, but the jury did not agree.

This is at least the fourth animal-attack lawsuit I know of that has failed.  As I previously reported, in 2006 Marcy Meckler sued the Old Orchard Shopping Center in Skokie, Illinois, claiming that it should be liable for the actions of a squirrel that jumped on her leg, causing her to panic, fall and suffer injury.  Like Webster, she also argued that the mall had "encouraged the squirrel" by feeding it.  I can't find any further record of this case, which usually means a case has quietly been dismissed.

You might think that animal-attack claims can't get more tenuous than those, but they can.  In 2005, an Illinois woman sued Lowe's Hardware after a bird flew into the back of her head while she was in the outdoor lawn & garden area.  The woman said that Lowe's was responsible for the bird strike because it "allowed wild birds to enter" said area (namely, the outdoors), thus creating a dangerous condition.  I did find one report stating that this case was dismissed in January 2006.

Finally, I also happen to know that in the late 1990s, a woman sued Sears, Roebuck & Co. making allegations similar to those later made by Meckler.  That woman claimed she fell and hurt herself after panicking when a bat flew at her head.  (A fruit bat of some kind, not a bat that somebody threw at her.)  I know this because we represented Sears in that  case.  It was the only deposition I've ever desperately wanted to take.

After the Maryland verdict, the score in negligent-animal-attack cases is now: Animals 4, Women 0.

Link: WJZ-TV (Baltimore)

Man Who Told Sentencing Judge He Was "Bored" Will Spend Seven Exciting Years in Jail

Lance Majors of Poughkeepsie, New York, the new poster boy for Not Giving A Damn, will have several years to think about whether telling the judge you're bored during your sentencing hearing is a good idea.

Majors, who was being sentenced today for a felony DWI conviction, has made the most of his 38 years on this planet, compiling an impressive list of screwups:

• robbery;
• drug possession;
• drug dealing;
• driving while intoxicated;
• driving while intoxicated again;
• driving while intoxicated three more times;
• driving while intoxicated again, and in this incident he
• was clocked at 107 mph
• with his 11-year-old daughter in the car
• after his license had been revoked;
• he represented himself at trial; and
• then told the judge, "Just speed it up because you are really boring me."

Judge Frank LaBuda sentenced Majors to a possible seven years in prison for the six counts related to the most recent DWI, plus another 15 days for contempt of court.

Link: Times Herald-Record

Hindu Gods Ignore Court Summons

The New York Times Magazine recently included "Suing God" in its "Year in Ideas" issue, and this story confirms that the trend is international.  And not new.

Last Friday, a judge in the Indian state of Jharkhand summoned two Hindu gods, Ram and Hanuman, asking them to testify in a property dispute involving a plot of land.  There are two temples on the 1.4 acre plot, and ownership of the land is being disputed between a temple priest, Manmohan Pathak, and local inhabitants who say the land belongs to Ram and Hanuman.  Given the latter claim, the need for testimony from the deities is obvious.

But hard to get.  The judge, Sunil Kumar Singh, has previously sent two notices for the gods to appear, but both apparently were returned after the addresses were found "incomplete."  That having failed, Judge Singh decided to try service by publication.  He placed ads in local newspapers demanding that Ram and Hanuman appear and chastising them for not showing up before now.  "You failed to appear in court despite notices sent by a peon and later through registered post," Judge Singh's ad said.  "You are hereby directed to appear before the court personally."  I admit it is sometimes hard to find dependable peons, but based on the picture above you would think Hanuman at least would not be that hard to find.

An initial court ruling awarded the land to the local population, but Mr. Pathak then challenged that verdict in what was described as a "fast-track court."

That was 20 years ago.

Link: BBC NEWS

Latest Way to Get Out of Jury Duty

Bring a sword.

Police in New York reported Monday that a 40-year-old man reporting for jury duty at Brooklyn Supreme Court was arrested after he tried to pass through security with a 30-inch sword and a 6-inch dagger.  The sword was part of one of those sword canes that is so totally cool that if you ever had to use a cane, you'd absolutely want it to have a sword in it, but is also the kind that you shouldn't take to jury duty.  It was not clear whether the dagger was part of the set, like this totally awesome dual-blade sword-and-dagger cane set that would completely rock someone's world, or was just a dagger.

The chief of courthouse security, Maj. Luz Bryan, said that his officers spotted the sword cane right away because it "had two metal bands" around it, an "indication that something is concealed."  (Note to self: if disabled, do not get cane with metal bands, sword or no sword.)  They detained the man, who pleaded ignorance.  "He kept saying that he didn't know it was illegal," Bryan said.  Turns out it is.

Link: AP via FindLaw.com

Snowball-Assault Case to Be Retried This Week After Mistrial

Colorado sources report that a mistrial was declared Friday, December 7, in the trial of Andrew Thistleton.  Thistleton, an Australian, faces criminal assault charges due to an incident last season at Copper Mountain ski resort, where he and the victim then worked.  Thistleton (and his mother) paid $6,000 to return to the U.S. and face trial, after Thistleton refused to plead guilty to a lesser charge.  He seems to think he did nothing seriously wrong by hitting Michelle Oehlert with a snowball.

According to police reports, Oehlert said she was walking to the bus stop last February 4th when Thistleton and two other people began "taunting" her.  Shortly thereafter she was hit in the back or side with a wintry object.  (The two sides dispute whether the object was a fluffy "snowball" or the feared "iceball.")  Oehlert does not claim that the ball itself was enough to hurt, but rather says it was painful because it happened to hit near her spleen, which had been lacerated the year before in a car accident.  Thistleton denied the taunting but admitted to throwing the ball, and tried to apologize.  But Oehlert is pressing charges.

In opening statements Thursday, the district attorney said that there was already bad blood between the two, who worked together at a ski-rental shop, and that this was the motive for the unprovoked "iceball" assault.  He asked the jury to reject the defendant's position that the act was all in "good fun."  (Is there a bad kind of fun?  Well, maybe there is.)  "It's not a joke to chuck an iceball at someone from behind who's not looking," he said.  "This wasn't in good fun.  This was malicious."

But this was not "chucking an iceball," said the defense attorney, it was a mere "lob of a snowball."  Far from being an assault, she said, it was simply "playful action in the snow," apparently a legal term of art that translates to "goofing around.")  She said wasting time on the case was "insane."

But the "playful action" defense was never tested.  When Oehlert took the stand Friday morning, she brought up new allegations of harassment that neither side had heard before.  The defense objected and Judge Ed Casias decided that he had to declare a mistrial.  Seemingly determined to get a conviction, the state has decided to retry the case.  Thistleton's mother was reportedly in tears at the prospect of another week in the U.S. with the assault case still unresolved.  "This has been hanging over our heads for nine months now," she said.  "I don't think we've slept a full night since this started."

Jury selection in the retrial is set for Thursday, December 13, at 8:30 a.m.

Link: Summit Daily News