Lowering the Bar

Criminal Armed With Plant Defeated by Customer Armed With Bar Stool

In a crime that was described as both "bizarre" and "creative" (showing what a fine line that can be),  a Florida man tried to rob a store earlier this month armed with a plant.  "The man came in with the branch," said owner Goutam Sarkar.  "I have never seen anything like this."

One would think this would be more successful than using a plant as a disguise, but it seems to have turned out the other way around.

It turns out this was not just any plant, but rather the feared "Spanish bayonet," a member of the yucca family that has sharp points on its leaves.  That may still not sound fearsome, but one description I found describes the plant as being "armed with" sharp pointed leaves about 2 inches long, and says it is used as a "security plant" because "it can be planted beneath windows and other access points where its fiercely pointed leaves will prevent passage of all interlopers human and otherwise."  (It stops vampires?)  "This plant," the website continued, "can inflict painful puncture wounds even through heavy clothing."

This assumes that the weapon was yucca aloifolia, not some other member of the yucca family -- more than one of them are commonly called "Spanish bayonet" or "Spanish dagger," though the others do not appear to be as fearsome.  It is hard to identify the exact species from the surveillance video, which shows the robber "wildly waving" the frond at the store clerk.  Whether or not the plant was especially dangerous, however, it wasn't dangerous enough.  According to the report, the robber was "chased out of the store by a man armed with a bar stool."

This, of course, is a drama we see played out in history over and over again, from the scene early in 2001: A Space Odyssey in which one ape has a bone and the other does not, to modern times in which one man arms himself with a plant but another shows up with furniture, although ironically, both are descended from the winning ape.  Conclusion: evolution works, but very, very slowly.

Link: WKMG (Orlando)

City of Flint, Michigan, Joins Crusade Against Saggy Pants

Claiming that he was acting on a "significant" number of citizen complaints, the police chief for Flint, Michigan, said on June 25 that he had directed officers to start arresting people seen wearing pants and/or shorts that sag "too low."

Flint thus joins cities in Missouri, Georgia, and Louisiana, among other places, in the battle against the continuing low-pants menace.

While some states and cities have tried and occasionally succeeded in passing laws or ordinances specifically directed at this issue, Acting Police Chief David Dicks said that he would rely on the existing disorderly-person ordinance.  A violation of that law is a misdemeanor that can result in punishment of up to $500 and three months in jail.  Dicks said that treating this conduct as "disorderly" was justified because of an element of "immorality":  "This immoral self expression goes beyond free speech," he said in a statement.  "It rises to the crime of indecent exposure/disorderly persons."  The chief issued a memo telling officers they should now consider "sagging/exposing buttocks" to be probable cause for an arrest.

As in other cities addressing the issue, ACLU attorneys worry that the restrictions may violate the First Amendment, the NAACP worries that the chief's orders may equate to racial profiling, and plumbers worry that they will be swept up in the anti-cleavage furor.  "I'm not interested in looking at anyone's underwear," said Frances Gilcreast of the NAACP.  "My concern is how [the policy] will be applied equitably."  A representative of the Flint Police Officers Association said that he did not think the chief's memo would have much effect on law-enforcement practices.

In a poll on the Flint Journal's website, opinion was running 51-48% against the new initiative.  "Flint sucks, 3rd highest crime rate in the country and this idiot is worried about some butt cheek," commented one citizen.  On the other hand, said a supporter, "[w]e need to start someplace."

Link:  Flint Journal

Woman Sues Victoria's Secret For Allegedly Defective Underpants

On June 9, Macrida Patterson filed a lawsuit in Los Angeles County alleging that she was injured last year by a defective product.  According to the report, Patterson was putting on a "low-rise v-string" thong she had purchased at Victoria's Secret when a metal clip or staple popped off the garment and struck her in the eye.  Her lawyer said (on the "Today" show) that the staple had caused "severe damage" to his client's cornea, requiring a "topical steroid" but, apparently, no surgery.

The metal piece was used to secure a rhinestone heart on the undergarment, which is part of the retailers' "Sexy Little Thing" line.  Plaintiff alleges that at the time of injury the low-rise v-string product "was being used in the manner intended by the defendants," which some have suggested may not be strictly true given that Patterson is 52 years old.

As of June 19, Victoria's Secret representatives were saying that the company had not actually been served with the lawsuit, or allowed to examine the allegedly defective thong.  Appearing on the "Today" show, Patterson admitted that she had worn the underwear on at least two other occasions and had "laundered it" (hopefully on at least two other occasions).  Her attorney managed to deliver what was clearly a carefully thought-out yet still awful soundbite, saying "Victoria's Secret does have its angels, but as we say, the devil is in the details."

If I could, I would dismiss the case for that reason alone.

Patterson's attorney also stated, "In terms of money, that's not what we really want here," saying that what they really wanted was to make Ms. Patterson "fully redressed for her grievous injury."  If it took an amount of money in excess of the court's jurisdictional amount of $25,000 to do that, well, then so be it.

Link: The Smoking Gun
Link: Reuters
Link: MSNBC

Court Overturns Father's Decision to Ground 12-Year-Old Daughter

In a decision that has sent shock waves through the Canadian grade-school community, a court in Quebec has ruled that a father improperly grounded his 12-year-old daughter, preventing her from going on a school field trip.

Coming next: Motion to Not Have to Do This Stupid Homework for Math, Which Movant Will Totally Never Even Use Anyway.

According to the report, the girl's parents are divorced, but the father has custody.  He and the girl had apparently clashed when he told her she could not use the Internet any more because she had posted pictures of her (12-year-old) self on a dating site.  She seems then to have picked a fight with her stepmother, resulting in the grounding.  The father's lawyer told CBC News that the girl had then "smacked the door, left and went to live with her mother."

A few days later, the father opened his mail to find a motion by the child's attorney (apparently the equivalent of a guardian ad litem in the United States) asking the court to overturn the punishment.  It did so two days later.

The report quoted a Quebec family-law practitioner as saying that it is not uncommon there for a child in a "high-conflict situation between two parents" to have an attorney appointed for him or her, and that there is "joint parental authority" even if one parent has custody.  Disputes between the parents about discipline may therefore end up in court.

It doesn't appear, however, that a grounding has ever been reversed in this way.  The father's lawyer said it was the first such case she had heard of, but that she did not think it would lead to a flood of copycat lawsuits.  Maybe not, but I'm thinking a certain 12-year-old will be getting exactly what she wants for Christmas, or else.

Link: CBC News (Canada)

Man Sues Church After Falling Due to Receipt of Holy Spirit

       

Lakewind's logo, depicting Jesus or possibly Blackbeard

A former board member of the Lakewind Church in Tennessee has sued the church and its pastors, saying that he was injured when he fell after the spirit took him during a church service.

According to the complaint, Matthew Lincoln was participating in the evening service at the church when a visiting minister touched his forehead after Lincoln came to the altar.  "Mr. Lincoln received the spirit and fell backwards striking the carpet-covered cement floor . . ., causing him to sustain severe and permanent injuries."  Lincoln alleges that the fall aggravated a pre-existing back injury, rendering him unable to work.

He says the church is responsible  because it "has a practice and custom" of having "catchers" whose job is "to catch someone who would fall out, faint, lose control, or otherwise need assistance when the spirit caused them to fall out while being prayed for."  Lincoln said that in the past the catchers always caught him, but on this occasion, they did not.  He is suing the church for negligent catcher supervision.

Lincoln wants $2.5 million, although he is likely to have difficulty proving at least the lost-earnings part of his damages.  According to the complaint, Lincoln was already unable to work due to his previous back injury, though he had recovered sufficiently to play guitar in the church band and to "pursue his odd hobbies" (which seems to mean something like "odd jobs" as opposed to hobbies that are truly odd).  He had also formerly operated a music business of some kind, but the complaint says that too had suffered a setback.

The equipment he used in that business was destroyed by lightning.

Link: The Smoking Gun

New Adhesive-Toilet-Seat Case Against Home Depot

On June 11, a St. Louis man filed a lawsuit against Home Depot alleging that it had negligently failed to monitor the condition of the toilet seats in its customer restrooms, and had negligently failed to warn of a serious problem therewith.  To wit:

3.  At all times herein mentioned, an adhesive had been applied to the toilet seat in one of the bathroom stalls . . . which rendered the toilet dangerous and unreasonably safe [sic], in that persons sitting on the toilet seat were likely to come in contact with adhesive and be caused to adhere to it.

4.  On or about August 13, 2007, Plaintiff was a business invitee lawfully in and upon the store of Defendant when he came into contact with the aforesaid adhesive, and, by reason thereof, he was directly caused to sustain injuries after standing up . . . .

The plaintiff, Haywood Rosales, claims that Home Depot was negligent because, had it exercised ordinary care with regard to the seat, it would have discovered the dangerous condition "in time to have remedied the condition and thus . . . avoided injury to Plaintiff."

So far, so good.  A fairly simple negligence case, complicated only by the existence of the unknown third-party toilet saboteur.  But, in a stroke of true genius, Rosales also alleges that Home Depot had special reason to be on the lookout, because of a previous seat-gluing incident at a Home Depot in Boulder, Colorado, in 2003.  "News of this incident," the complaint says, "was broadcast via national television, radio and print media[, and even appeared on some joker's "legal humor" website] in November of 2005, after a lawsuit was filed."  Accordingly,

9.  The Home Depot knew or should have known, after the incident in Boulder, Colorado, that there would be a strong possibility that instances of copycat behavior would occur, especially since the Home Depot sells a wide variety of adhesive products, and that same could be used in a similar manner to recreate ["re-create," I assume] or to cause a similar situation.

As a result of Home Depot's negligence, Rosales says, he received injuries to his underparts, and has endured the embarrassment, pain and suffering of the initial injury and its concomitant treatment."  Said embarrassment was almost certainly not equal to that suffered by the Colorado man, Bob Dougherty, who had to be carried from the store, seat and all, so the removal could be carried out at a hospital.  But said embarrassment would not have been subsequently reduced by the filing of a complaint that, as Rosales knew or should have known due in part to the prior incident, would very quickly be made widely available to the public.  (One later report claimed that local residents had given Dougherty the nickname "Sticky Bob.")

Rosales is seeking damages in excess of $25,000.  Precedent is not on his side, since The Smoking Gun also reports that the Colorado case was finally dismissed last year, after a judge ruled that Home Depot did not know about the dangerous condition and that it was not foreseeable.  Rosales, clearly, is taking another run at the foreseeability element.

Link: The Smoking Gun

"Lawyer Who Wouldn't Stop Talking" Talks His Way to Suspension

Some of you probably think the phrase "lawyer who wouldn't stop talking" is redundant, but it isn't quite.  There is a time for talking, and a time for not talking; and one good time for not talking is just after a judge has ordered you to stop talking or be sent to jail.

Herbert Moncier's failure to follow this rule not only got him jail time, it led to a disciplinary opinion by the Eastern District of Tennessee.  How did that come out?  Well, I don't want to ruin the suspense, but here are two clues: (1) the opinion is 80 pages long, and (2) it cites cases dating back to 1812.

According to the opinion, Moncier's troubles began during a 2006 hearing in which Moncier

• "repeatedly interrupted or spoke over the presiding judge,"
• "accused the prosecution of engaging in a conspiracy to prevent him from trying cases due to his success in past trials,"
• threatened to "sit there and remain mute," apparently a threat to refuse to defend his client,
• "contradict[ed] the court's admonishment," and finally
• "disobeyed a direct order from the court that he stop interrupting and not say another word."

After that last one, Moncier was stuck chatting with the bailiff on his way to a cell.

He was later convicted of criminal contempt of court.  The recent opinion was issued in a separate disciplinary action before the court's chief judge, who ordered Moncier in January to show cause why he should not be suspended from practicing law.  Here's a tip: you should respond to orders like that, rather than filing a motion of your own.  Moncier in fact filed four, with a success rate of approximately zero percent.  His response, when he finally filed one, was described by the court as lacking "a single challenge to any of the substantive findings or recommendations . . . ."  The arguments were also described in the following ways:

• "inadequately explained, legally unsupported, and factually barren,"
• "often evasive, revisionist, and self-serving,"
• "defies credibility,"
• "shifting, post-hoc rationalizations,"
• "exasperating,"
• "incredibly disappointing,"
• "specious,"
• "completely baseless," and
• making "incredible assertion[s]."

At that point the courthouse had to be evacuated after the court's thesaurus burst into flame.

Of the sparkling array of defenses raised, the crown jewels were two expert-witness affidavits.  The first, by an ethics expert, was undermined slightly by a failure to apply the right ethics rules.  But the second one, my friends, the second was provided by a "linguistics expert."  This person read the transcript of the hearing and testified that, linguistically, she didn't see a problem:

[B]ased upon her reading of the transcript of the November 2006 hearing [said the court,] it "reflects consensual dialog, including debate and argument, between Mr. Moncier and Judge Greer" . . . . She goes on to say she finds "nothing in the transcript that supports an opinion that Mr. Moncier intended or demonstrated disrespect to Judge Greer or that Judge Greer intended or demonstrated disrespect to Mr. Moncier" (id.).

In other words, Moncier hired a linguistics expert to read the transcript and testify that, in her expert opinion, there was no contempt.  At this point, the loss of the thesaurus made itself felt, or else the court was just tired of bothering.  It wrote that this opinion was "so devoid of belief [sic] and such a departure from reality that to call it incredible is to be charitable."

Was there ever an apology?  Sort of:  "I deeply regret and apologize," Moncier wrote, "that my actions were considered by District Judge Greer to be a violation of his orders and that now my actions have been considered by [another judge] to be violations of the Rules of Professional Conduct."  Here's another time to stop talking: when you are about to deliver one of these non-apologetic apologies that are now so common, in which you apologize for the fact that somebody else got upset by what you did.

The court suspended Moncier for seven years, although he can apply for early reinstatement after three.  So, mark your calendars for 2011.  That ought to go well.

Link: ABA Journal
Link: In re Moncier (E.D. Tenn.)

Claim for Reimbursement of Dating Costs is Rejected

A 30-year-old Korean man, identified only as "Park" (which, in Korea, does not narrow it down one bit), has lost his bid to be reimbursed by his ex-girlfriend for the money he spent on their dates.  Park sued the woman after she allegedly reneged on a written promise to repay the money.

First of all, according to the report, Park had her sign this a month after she dumped him.  Gentlemen, that is not the time to negotiate a contract of this kind, since you have absolutely no bargaining power except for whatever sympathy your constant, explosive weeping fits may generate.  (Unless, that is, you did the smart thing and kept some "collateral."  You know what I'm talking about.)

Second, the report doesn't offer any facts showing this was really a contract.  If it were a one-sided written promise, it wouldn't have been enforceable, at least under our system, or at least under my faded understanding of the relevant part of that system.  But maybe it was a contract of some kind, because otherwise it's hard to see why the trial court would have ruled in his favor, which it actually did.

On appeal, though, the Korean high court reversed, finding that the woman had been coerced into signing the promise, which frankly makes a lot more sense.  Another report, in the Korea Times, added the freaky detail that Park also made her promise that she would "give up her body" if she did not repay him.  That would be creepy enough if it referred to sex, but according to the Times this was "a promise that private moneylenders usually force borrowers to make, threatening [sic] to sell kidneys or other organs if the borrower fails to pay back the money."  And you thought Bank of America was unsympathetic.

Apparently, the woman did not testify about the coercion in the trial court, because she did not have an attorney and did not know coercion was a defense.  When she learned this, she appealed and managed to get the new evidence before the high court, which ruled against Park, who will not be getting his one million won back.

Luckily, we don't have these kinds of disputes in the U.S. because we have a statute that covers this.

Don't we?

Link: Yahoo! News
Link: Korea Times

German Court Rejects Document-Phobia Defense

A German court has rejected a woman's appeal of a decision terminating her child-support benefits, despite her disability claim.  The woman had argued that she could not respond earlier to an agency's requests for information because she has a "phobia of official correspondence."

Had I known about this idea sooner I might have tried it at the DMV this morning.  In San Francisco, they might just go for it.

But not in Germany.  According to the report, the woman was sent a letter in May 2007 asking her to send documents supporting her claim to continued payments.  (These appear to have been government payments, not support from a former spouse.)  When she did not respond, she was sent another letter in July saying that the payments would be ending but that she had a month to appeal.  That deadline also passed.  She finally replied in September, well after the deadline, saying that her unreasoning fear of the government's letters had delayed her response to them.

On second thought, maybe this would work better as a tax argument than at the DMV.  The IRS would be a tougher sell, but then their letters are a lot more terrifying.  Wesley Snipes's attorneys should have at least run this one up the flagpole -- I think it's better than the defense they did put on.

Anyway, according to the court, the woman said she "was and still is petrified of the contents of official letters," and that she had "already suffered many financial disadvantages" due to ignoring or throwing out official-looking mail.  (Do they have the Publishers' Clearinghouse Giveaway over there?  That looks pretty official.)  She said she had "long considered" seeking treatment, but had never done so (possibly imagining the letters she might get from her government insurance plan).  But the court rejected her case, saying that since she conceded this was a long-standing problem, she could and should have sought help long before.

The article did not say what evidence the woman provided, if any, that her phobia is real.  Even on the Internet, where there are loads of unofficial "phobia-list" sites, I could not find a reference to a "fear of correspondence," official or otherwise.  The DSM-IV doesn't try to list all specific phobias, but instead classifies them under a diagnostic code for "Specific Phobia," the essential feature of which is a "marked and persistent fear of clearly discernible, circumscribed objects or situations."  So, if it's real, this case would likely be coded as 300.29 (Specific Phobia, Other Type).  If not, I was surprised to find that it would still get a code: either 300.16 (Factitious Disorder), in which one makes up symptoms with no external incentive for doing so, or, if such an incentive does exist (let's say, the incentive of avoiding having one's benefits cut), it would be V65.2 (Malingering).

Yes, the DSM-IV actually has a code for "Malingering," defined as "the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, [or] obtaining financial compensation," which to me sounds a lot like . . . well, malingering.  As it happens, Malingering, says the DSM-IV, should be strongly suspected in the "medicolegal context."  So maybe that is the better diagnosis here.

It also notes that hypnosis generally will not help, which is unfortunate, but unsurprising.

Link: MSNBC.com

Practice Tip: Phrase "Oops, My Bad" Rarely Appropriate in Court

For those of you wanting to be jailed briefly for contempt, this item offers some pretty good tips that you might want to jot down:

1. You will be instructed to turn off all cell phones while in the courtroom.  Ignore this.
2. Sit as close to the bench as possible.  If you can't sit at the counsel's table, sit in the front row.
3. Set ringtone to some sort of rap song.
4. If your phone rings, go ahead and answer it and carry on a conversation.
5. When the judge becomes visibly angry and says "how dare you answer a phone in court," respond with "Oops, my bad."
6. Bonus points if you are in court to face multiple burglary charges.

This got a 17-year-old Australian sent to jail for the rest of the day after he answered his phone in a magistrate's court in Darwin.  That "is a serious contempt," shouted the irritated magistrate at the boy.  He probably still would have avoided jail at that point, but "[w]hen the teen waved it off as 'my bad,' [the magistrate] ordered he be taken away."

The boy ended up spending about three hours in a holding cell before he finally agreed to come back and apologize.

Link: News.com (Australia)