Lowering the Bar

Deadline to Apply for Internship With Sen. Larry Craig is March 15

Remember, time is running out to apply for an internship in the office of Senator Larry Craig (R-Idaho).  The deadline is March 15, 2008, or when Senator Craig resigns, whichever comes first.

"For those interested in politics," Craig writes on his official site, the internship position represents "an incredible opportunity to get a behind-the-scenes look at how our government functions."  Even if you are not particularly interested in government or politics, you may still have ample opportunity to get a behind-the-scenes look at something or other.

Among the senator's primary mission goals:

• To deliver "high quality constituent service,"
• To protect the nation "while guarding our personal freedoms,"
• To ensure access to adequate health care and spacious, private restroom facilities, and, most importantly,
• To "defend and strengthen the traditional values of the American family."

As you fill out the essay portion of the internship application, you should remember that the senator takes an especially wide stance on many of the issues above.

Link:  Official Website of U.S. Senator Larry Craig

Italian Supreme Court Further Limits Groping Rights of Italian Men

The New York Times reports today that the long-cherished right of Italian men to grope freely, already under siege, has been further limited by an Italian Supreme Court decision.  The ruling, which appears to have been issued recently although the NYT did not provide a date (or citation), affirmed a man's 2006 conviction on public-indecency charges; specifically, for "ostentatiously touching his genitals through his clothing."

The ruling thus rejected the defense lawyer's contention that his client simply "had a problem with his overalls."

It is not clear from the disappointingly brief NYT report what actually prompted the ostentatious self-gropery, though we know it wasn't defective overalls.  It seems to have been a response to some sort of sign believed to be bad luck, like a passing hearse, because the report says that the opinion "struck against a broader practice: a tradition among some Italian men of warding off bad luck by grabbing [one's own] crotch."

This, the court stated, "has to be regarded as an act contrary to public decency, a concept including that nexus of socio-ethical behavioral rules requiring everyone to abstain from conduct potentially offensive to collectively held feelings of decorum."  (I assume that sounds a lot better in the original Italian.)  As a result, Italian men will now either have to find another way to ward off bad luck, or do their warding in private.

In 2005, the Italian high court, which clearly chooses to intervene only in the most important issues of the day, upheld the assault conviction of a 40-year-old man who pinched a woman's buttocks as she used a public phone.  (Women who have visited Italy may be familiar with this charming custom, by which Italian men communicate that they would like to become better acquainted with you, or at least your buttocks.)  The man received a 14-month prison sentence (suspended) for the assault.  Italian newspapers called the result "severe," and the defendant said he had become disillusioned.  "I don't believe in justice anymore," he said.

It is unclear whether there are further cases in the pipeline that may further restrict the groping rights of Italian men.

Link: New York Times (on the self-groping decision)
Link: New York Times (on the 2005 decision)

Repeated Demands for Prostitute: Grounds for Termination?

I don't want to keep you in suspense: the answer is yes.

Riverside Casino and Golf Resort, located in Iowa, apparently gives its employees a special bonus to mark their first year of employment.  The bonus, at least in this case, was a gift certificate and a free night's stay at the casino's hotel.  A 62-year-old employee enjoying his bonus got into trouble after returning to his hotel room about midnight, and then calling the management (that is, his employers) to ask about hiring a prostitute.

Told that was not one of the services that the casino offered, even as part of the bonus, he called the competition, making the same request of the resort next door.  He must have identified himself in some way to them, because they called Riverside and asked what was going on.  As the report put it, hotel workers were then sent to the man's room "to ask him to stop demanding prostitutes."  According to the hotel's human resources director, the man answered the door in the nude.

It wasn't clear whether the hotel's human resources director was there at the time, but I like to think that he was.  If you are hoping to lose your job, answering the door naked when your human resources director knocks is probably one of the quicker ways to do that.  And, in fact, the employee was fired later that day.

This made the news recently because, after being fired, he filed a claim for unemployment benefits, which are typically not available if one has been fired for "misconduct."  At the hearing on the claim, the man argued that the casino had not been harmed by his actions, and that alcohol (a repeat offender) was to blame.  Double bonus points here for blaming the casino restaurant for forcing him to drink too much alcohol and then demand prostitutes.  As a result of the restaurant's actions, he noted, "I was absolutely plowed."

Also to blame: the casino itself, for its deceptive advertising.  "The advertisement is that it's just like Las Vegas, so I thought I was in Las Vegas," he argued.  Come to find out, it's illegal there, too, sir (technically), but the bigger problem with the Las Vegas Defense -- which we have seen invoked before -- is that even if what happened in Las Vegas did have to stay in Las Vegas, you were in Iowa.

No benefits were awarded.

Link: CBS News

Junk-Mail Deliverer Sues After Mailbox Injury

"When I received a solicitor's letter," said Paul O'Brien of Leeds in Great Britain, "I thought someone was having a laugh."  This was because the letter explained that Mr. O'Brien was likely to be sued by a woman who had injured herself while putting junk mail through the slot in his front door.

The letter stated, "We understand that the circumstances of the accident are that our client was delivering a leaflet to your house when your letterbox snapped back on to her right index finger.  As a result of this, our client suffered from personal injury and loss."  The treacherous letterbox appears to have been what Americans would call a "mail slot" with a swinging door.  Joy Goodman claims that the tip of her right index finger was actually severed by the letterbox door, and that consequently she can no longer work as a cake decorator.

"I just cannot believe," O'Brien said, that "someone who came on to my property uninvited, to put junk mail through my door that I didn't want, can now sue me because she hurt herself."  The letter apparently did not claim that O'Brien had somehow been negligent or that the letterbox was defective in any way.

"I asked the Royal Mail if they had had any problems with it," O'Brien said.  "They said they hadn't and that in any case their staff are trained to make sure they don't get hurt while delivering."  The report did not provide details about what training Royal Mailmen might need to avoid losing a finger when poking a letter through a slot, but the Cake Decorators and Junk Mail Deliverers' Union may want to look into that.

The letter did not make a specific claim for damages, and Goodman declined to comment, saying that the matter "is in the hands of my solicitors."  Maybe that's the problem, O'Brien said.  "It seems like we're becoming more and more like America," he complained.  "Everyone wants compensation."

Link: Daily Mail, Feb. 21, 2008

"Heavy Hitter" On the Ropes

The Nevada Bar Association said earlier this month that it had received a complaint against personal-injury lawyer Glen Lerner, and that it was investigating.  Lerner is extremely well-known in Nevada, largely because of his ridiculous TV commercials, which have shown him (among other things) spinning like the Tasmanian Devil and dropping a giant phone on litigation opponents.

He was featured here some time ago after the state bar told him to stop calling himself "The Heavy Hitter," saying it implied a guarantee of success, and he threatened to sue.

The bar seems to have backed off on that one -- the Nevada Supreme Court changed the state rules last year, saying that the First Amendment precluded rules against "bad taste" -- but Lerner may have a bigger problem with this complaint, which involves his failure to show up for a client's trial date.  Lerner was scheduled to represent his pool cleaner, Mario Lino, in a trial that was supposed to start on January 22.  Lerner did not show up, saying he was out of state on "sabbatical."

Lino is charged with murder.

Lerner had told the prosecutor that he would not be returning for the trial, and said "if the judge wants to sanction me, she can sanction me."  (She does in fact want to sanction him.)  Lerner told a reporter he had tried to work out a deal with the prosecutor, or at least a continuance, but did not get either.  Solution: don't show up.  "The judge is probably fuming," he admitted.  "But what could I do?"  Well, "you get on a plane and you fly back," suggested the judge (in Lerner's absence), but could only re-assign the case to the public defender.  Lino (right), who faces life in prison for murder, plus a possible concurrent sentence for that haircut, said that no one from Lerner's office would return his phone calls.

Lerner told the reporter that he's been on "sabbatical" for several months, during which he has been writing a book and "re-examining" his life.  "I've been living the life of a rock star for so long," he said, that it was time to unwind and think about things a bit.  That's why he had not had time to prepare for the murder case.  He claimed that by not appearing for the trial, he was acting in his client's best interests.  That is probably a true statement, but not the way he meant it.

This Nevada law blog (which has a separate category devoted to Lerner), has a clip of his most recent ad, which depicted a young Glen Lerner representing the victim of a bully in a schoolyard dispute.  In the "dramatization," the young Lerner forced the bully to hand over his shirt and bike as compensation for a bloody nose.  In real life, of course, the adult Lerner did not show up for his client's murder trial.

Link: Las Vegas Review-Journal (Feb. 6 story on the bar complaint)
Link: LVRJ (Feb. 11 story on the Super Bowl ad)

Police Stop of Ax-Wielding Bike Rider Found Justified

In a classic opinion of which I have just learned, the California Court of Appeal ruled in 1998 that police were in fact justified in detaining a man they saw on a bicycle at 3:00 in the morning, primarily because they noticed he was also carrying a large ax at the time.

Not only are the facts good, but the opinion in People v. Foranyic was written by Justice William Bedsworth, who was profiled in the Daily Journal on February 21 and who is the author of the long-running humor column, A Criminal Waste of Space.  Definitely worth reading.

Unsurprisingly, the appeal arose from the denial of a motion to suppress evidence.  Mr. Foranyic was found to be carrying methamphetamine, along with the ax, but he argued that there had been no "suspicious circumstances" justifying the stop under Terry v. Ohio.  "Thus are we called upon," wrote Justice Bedsworth, "to decide whether police may detain a man with an ax riding a bicycle at 3 a.m."

Answer: yes.

We conclude that a reasonable police officer, considering the totality of the circumstances, would reasonably suspect criminal activity might be afoot upon viewing someone on a bicycle, with an ax, at 3 in the morning. Certainly we would expect a diligent officer to investigate such unusual behavior through the relatively unintrusive means of a detention. This is so even though no recent “ax crime” had been reported.

For while Foranyic insists there was nothing about him which suggested criminal activity, he is unable to suggest, and we cannot conceive of, much in the way of noncriminal activity which is accomplished with an ax in the dead of night. The officer could reasonably eliminate firefighting and lumberjacking from the list of possible pursuits Foranyic might have been engaged in.

* * *

[T]here is some activity which is so unusual, so far removed from everyday experience that it cries out for investigation. Such activity will justify a detention even when there is no specific crime to which it seems to relate.  We view this as such conduct. While it is true that there are many legitimate uses for an ax, they are generally daylight activities.

Emphasis in original.  This is quality judicial work that, especially given the fact pattern, fully justifies an addition to Lowering the Bar's Case Law Hall of Fame.

Link: People v. Foranyic, 64 Cal. App. 4th 186 (1998).

Ginormous Rock at Issue in Engagement-Ring-Retrieval Suit

Sadly, it seems to be all too common for legal disputes to arise over who gets the engagement ring if a wedding is called off.  But not many of those disputes involve a ring worth close to half a million dollars, or a former sister-in-law of the President.

On February 11, Gerald Tsai sued Sharon Bush to recover either the eleven-carat engagement ring he gave her or the $434,000 he says it is worth now.  (He bought it for a paltry $243,040, but she seems to have accepted anyway.)  Tsai gave Bush the ring in December 2006, but their plans to be married on Valentine's Day 2007 did not survive his refusal to sign a prenuptial agreement.  She kept the ring.

According to the report, New York's Civil Rights Law provides that property must be returned if the "sole consideration" for its transfer was a "contemplated marriage" that didn't occur.  A 1968 case directly on point (except that the ring cost $2,450) held in favor of the donor.

But Bush's attorney, Raoul Felder, is already on the offensive.  "We will vigorously defend this case," he said.  That statement was discounted by some, or at least by me, on the grounds that it's what you'd expect him to say.  If an attorney ever makes a public statement saying something like, "We will half-heartedly defend this case while hoping for a settlement," then I will pay attention.  Felder's argument will apparently be that Tsai gave Bush the ring as a Christmas present, not because they planned to get married two months later, and so the statute doesn't apply because the ring was not "in sole consideration" of a contemplated marriage.

Felder was also upset that hard-hearted Tsai had sued just three days before Valentine's Day.  "Valentine's Day is a day you give gifts to your sweetheart," Felder said.  "It's not the day you demand Christmas presents back."  Well, it could be a day you demand Christmas presents back.  In this case, it might also have been the day the statute of limitations would have expired, but that could be a coincidence.  And speaking of days not to do things, I guess if this argument succeeds then nobody will be able to propose at any time during the Christmas shopping season, unless he is willing to take the risk of a later "Christmas-present" defense.

Sharon Bush has been scorned at least once before, by her former husband and presidential brother Neil Bush, who, after 23 years of marriage, broke up with her by e-mail.

Link: On Point News (Matthew Heller)

Practice Tip: Probably Okay to End Deposition Early if Other Side Brings a Gun

On February 12, an attorney representing a man suing NFL running back Reggie Bush said he and his client chose to end a deposition early after noticing that the other side was armed.

"I knew they weren't going to like what they were going to hear, but I never thought they'd bring a gun," said Brian Watkins, an attorney for sports marketer Lloyd Lake.  Lake is apparently suing to recover $300,000 in payments and gifts that he gave Bush while Bush was at USC.  (The fact that these gifts were illegal may be a bit of an obstacle to recovering them.)

The report did not say who was being deposed, but it wasn't Bush, who is scheduled for February 25.  But it wasn't the deponent who had the gun anyway -- it was the bodyguard for Bush's attorney.  The attorney, David Cornwell, claimed later that he felt he needed a guard because Lake, who has a criminal background, has allegedly threatened him and Bush before.  Cornwell said the bodyguard had a permit to carry a concealed weapon, but Watkins said he didn't keep it concealed.

"He made sure we saw it," Watkins said.  Watkins' client said the bodyguard flashed the gun at him in the lobby, and that he opened his jacket later during the deposition.  When Watkins objected, Cornwell agreed to have the bodyguard sit outside the deposition room.  "So then," Watkins said, "he was sitting eight to 10 feet away from Lloyd, outside a glass door with his arms folded, staring in at my client."

Outrageous, Watkins called it twice.  "It's outrageous that he shows up strapped for a deposition," he said.  "That's outrageous conduct in the lawyer world.  Come on, we're lawyers.  I don't threaten people [with guns], I sue them."  Watkins suggested that the handgun was evidence that Bush has a weak case.  "They know the day of reckoning is coming," he said.  "They are panicking."

Cornwell, who has represented many other sports figures including dog lover Michael Vick, did not sound panicky.  Given Lake's background and the alleged threats, he said, "we were advised to take appropriate security precautions when in Lake's presence."  He dismissed the intimidation claims as unprofessional.  "This lawsuit stuff is for grown folks.  Obviously, this crew ain't ready."

The deposition was held at the San Diego office of grown folks Pillsbury Winthrop Shaw Pittman, though Pillsbury said none of its crew was present (it was just hosting).  In a statement, the firm also emphasized that it has a "zero-tolerance" policy for firearms at a deposition.

Link:  AP via NBC Sports
Link:  USA Today

Butt Artist's Case Against Former Employer Will Proceed

"Butt Artist Trial is Set" was the actual headline of the article at the link below, which informs us that a motion to dismiss Stephen Murmer's lawsuit against his former employer was denied on February 15.  Murmer, you may recall, is the teacher who was fired when his school district learned that, in his spare time, Murmer is an artist who paints things with his butt.

According to Murmer's complaint, the district had been aware of his technique since 2004, but the paint hit the fan in 2007 when the students learned about it.  Murmer had at some point appeared on a TV show to demonstrate his art, and a clip from that show later made its way to YouTube.  (Here's a link to the video in question.)

Murmer eventually sued the district, claiming he was wrongfully terminated because what he did with his business on his own time was his business, and constitutionally protected business at that.  (The ACLU is representing Murmer for free.)  In the complaint, which is available from the ACLU via Murmer's own website, www.buttprintart.com, Murmer concedes that uses his "posterior" to paint, but describes his art as building on established traditions within post-modernism:

17. As the artist Stan Murmur, Plaintiff developed the technique of incorporating his own body and the bodies of models as “brushes” or “stamps” in the process of painting, continuing, combining and developing the traditions of, for example, tattoo art (where the human body is used as canvas), and Anthropometry of the post-modern French Artist Yves Klein (1928-1962), who used female bodies as “living brushes" in the process of creating art.

18. Plaintiff has thus created paintings by using his posterior and other body parts as a stamp with which to imprint paint onto a canvas.

19. With this technique, which includes sitting in paint and then pressing his buttocks onto a canvas, Plaintiff has created paintings which range from depicting stylized flowers to portraiture and patterns.

20. These seemingly simple paintings thus have a surprise in store for the viewer: only gradually, if at all, comes the realization that the image has been created with monotypes of the human body, a realization intended to reverberate in the viewer, setting in motion a process of self-discovery of one’s own personality traits, oscillation between watching a flower (or portrait or pattern) and one’s preconceived bias of the human body. The artist’s hope is that the viewer thus discovers his individual personality characteristics through visual response – as well as his personal views on
the concept and the purpose of art.

Once you're finished oscillating, why not contact Mr. Murmer to commission some work?  If you've always wanted to have your portrait painted by someone using his ass, now's your chance.

Last Friday (Feb. 15), Judge Robert Payne heard a motion by the school district to dismiss the teacher/artist's case, and after about an hour of oral argument he denied the motion.  Trial is set for March 11.

Hopefully, Murmer will act as his own sketch artist during the trial.

Link: NBC12 (Virginia)
Link: Chesterfield County (VA) Public Schools

Judge Jumps the Gun on Declaring Defendant Guilty

The evidence against Joseph Nee, on trial for allegedly plotting a Columbine-style attack at his high school, seems to have been fairly strong.  Or at least you could infer that from the fact that the judge in his bench trial announced to a crowded courtroom that the State had proven its case, and was then reminded that closing arguments had not yet been made.

I have always thought that oral argument was a little bit overrated, but it is nice when the judge at least pretends to listen.

It wasn't very clear why the judge jumped the gun, but he seems to have forgotten that closing arguments had not been made yet and instead proceeded to read his decision from the bench at 10 a.m. February 14.  Those expecting to hear two hours of closing argument were surprised to hear the judge begin, "The Commonwealth has proved this case beyond a reasonable doubt."

The defendant's attorney noted at that point that closing arguments had not yet been made (the State's argument may have been the day before, but the defense at least had not spoken).  That was probably a bit awkward.  Judge Grabau recognized his mistake and directed Nee's lawyer to continue.

Two hours later, the judge convicted Nee again.

Nee and another student were accused in 2004 of planning an assault on Marshfield High School.  Nee reported the plot to police but was eventually arrested himself after others said he was actually the ringleader.  Nee will be sentenced on Tuesday, presumably only once.

Link: Boston Globe