Lowering the Bar

Court Rules Lawyers Must Speak Out During Trial if Judge Is Snoozing

Here's an important tip: the Court of Appeal for Ontario, Canada, has ruled that lawyers who notice that their trial judge is sleeping must awaken him or her at the time and object, rather than waiting to raise the issue on appeal.

The case, Leader Media Productions v. Sentinel Hill Alliance, involved a complex financing arrangement, the details of which are neither relevant nor, obviously, very interesting.  After Sentinel Hill lost, it argued on appeal that the judge had not sufficiently explained his decision, that he had not heard oral argument, and, in an argument raised for the first time on appeal, that he "was unable to follow much of the trial evidence" because he was often sleeping.

The appellate panel said it would accept the new evidence showing that "the trial judge fell asleep frequently but for only very brief periods of time."  But it also ruled that this evidence did not help Sentinel because its counsel had done nothing at the time for tactical reasons:

Instead of confronting the trial judge, after discussions among appellants’ counsel . . . they made a deliberate decision not to raise the issue[, but rather] to "wait and see how things played out". Presumably, if the trial result was in their favour they would do nothing; if not, they would have this additional evidence to use as a basis for appeal arguing that they were denied the right to a fair trial.

The court held that this was not appropriate and that, instead, parties must wake up sleepy judges and raise an objection at the time.

The parties apparently found only two prior cases involving sleeping judges, which is a little surprising since there have been many others, as they would have known had they only been readers of Lowering the Bar.  For example, respondents could have found a 2007 decision that repeated "nodding off" did not warrant a retrial because for a judge, being "constantly attentive is not a fundamental requirement."  And appellants could have found a study reported in Sleep magazine analyzing 15 similar cases, finding that "[in] 10 cases, judicial sleepiness resulted in a retrial . . . ."  See Grunstein & Banerjee, "The Case of 'Judge Nodd' and other Sleeping Judges - Media, Society, and Judicial Sleepiness," 30 Sleep No. 5 at 625 (2007).  But they didn't.

The study is absolutely worth reading.  The title case involved Judge Ian Dodd of New South Wales, who had repeatedly fallen asleep during civil and criminal trials.  This included a drug-smuggling case in which the jurors said they had nicknamed him "Judge Nodd," and commented on his loud snoring.  Other reported cases of judicial sleepiness included:

• A Nigerian judge on the International War Crimes Tribunal who had "regular sleep episodes" during a 2001 prosecution.
• An Indiana case rejecting a defendant's appeal because the only evidence of sleeping was one exchange in the transcript: "Am I boring you today, Your Honor?"  "No, just resting my eyes."
• A prior Ontario case in which a criminal defendant got a new trial after showing that the judge had fallen asleep during his cross-examination.  His defense lawyer had boldly "dropped a 2136-page copy of the Criminal Code onto the judge's desk to get his attention," later noting that "His Honour was visibly stirred from his slumber."
• A report that Justice Ginsburg fell asleep during oral argument in a 2006 redistricting case.  Justices Souter and Alito reportedly "looked at her, but did not give her a nudge."

The study reported that sleepy judges are often treated deferentially.  For example, Justice Roderick Meagher (also of New South Wales), was said to be "known for his ability to nod off on the bench," but apparently his competence was never questioned.  In a speech in honor of the judge's retirement in 2005, the local bar association's president referred to this by saying that Justice Meagher "brought colour to the Court of Appeal, but not, if I may say so, . . . much movement."  He also claimed that the justice had once warned him, "Mr. Harrison, I'm going to sleep now, and I don't want you to be here when I wake up."

Link: Ontario Star

Leona Helmsley's Dog Forced to Survive on Mere $2 Million Trust Fund

As you may recall, when Leona Helmsley died last year she left $12 million to her dog, more than twice as much as she left to any other family member.  (Two grandchildren were completely stiffed, for "reasons that are known to them," as Helmsley mysteriously said from beyond the grave.)

Not surprisingly, the Heirs of Helmsley have been going after the dog's trust fund ever since, apparently claiming that Helmsley was "mentally unfit" when she made the will.  A trial judge has now approved a settlement between them and the state that would reduce the dog's cut to a mere $2 million.

The dog's caretaker claims that this pittance will be enough to pay for the dog's "maintenance and welfare at the highest standard of care" for the rest of its life.  Said care is to include (annually) $1,200 for food, $8,000 for grooming, and no less than $100,000 per year for "full-time security."

Is it surprising that even a millionaire pet would need that level of security?  Maybe not, when you consider that the caretaker is getting paid $60,000 per year (plus $100k for "security") to be the dog's guardian.  If I was getting paid that kind of money to take care of a dog, we'd be driving around in an armored car, I can tell you that.  And he would not be sticking his head out of the window.

It appears that $4 million of the dog's money will be going to the Helmsley Foundation, and $6 million of it will be split by the two grandchildren who previously got nothing for reasons that are still, unfortunately, known only to them.

Link: CBS News
Link: Reuters

Motorized Cooler Driver Faces DWI Charges

I have already written about a number of non-automotive drunk driving charges, including incidents that involved "vehicles" such as riding lawnmowers, horses, and at least one Zamboni.  Not wanting to repeat myself, I passed on covering another recent riding-lawnmower DUI case, despite the fact that in that case the driver was wearing a tuxedo.  Luckily for this category of posts, though, there still appears to be room for creativity in terms of what people try to drive when they have been drinking.

This was demonstrated in Whitehall, New York, on Memorial Day, when police arrested a 57-year-old man who was driving a motorized beer cooler.

A patrolman said he saw Leslie "Bomber" Marr swerving while riding his cooler on the sidewalk and preparing to cross a busy street.  Marr had apparently just left a local American Legion post, but was not headed home.  Police said he appeared to be intoxicated, and it probably did not help matters that his vehicle was in fact a beer cooler that contained 14 beers.  Marr refused a breath test and was arrested for driving while intoxicated.  He was also cited for "operating an uninsured motor vehicle."

It is a motor vehicle under New York law, said the local district attorney.  That appears to be true, since Section 125 of the state Vehicle and Traffic Code defines "motor vehicle" as "every vehicle . . . which is propelled by any power other than muscular power," with certain exceptions none of which seem to apply to motorized beer coolers, unless possibly if you have a disability and are using your cooler as a "mobility-assistance device."  Otherwise, said DA Kevin Kortright, "[y]ou can't cruise around on your cooler if you're intoxicated."  Is there really any danger from doing so?  "We were told it can do up to 12 mph," said an officer.

Actually, it's 13, according to the company.  The Cruzin Cooler is made by the company of the same name, located in Houston, Texas.  (The research and development offices are in Austin, however.)  According to the company's website, the Cruzin Cooler features spring-loaded foot pegs, a chain drive, disc brakes, and a "drink access lid w/holder."  It has a 14-can capacity (so Marr's was fully stocked) although more can be added by attaching additional coolers, trailers, or wagons to the trailer hitch provided.

The more serious aspect of the cooler DWI is that Marr has prior DWI arrests and convictions (the article didn't say whether these involved cars or coolers, but probably the former), so that could actually upgrade the Cruzin Cooler charges to felony DWI for the repeat offense.  The report did not say whether the classification of the cooler as a "motor vehicle" meant that operators would now have to insure the vehicle and/or be licensed to operate it.

Marr was released on bail, but his cooler was impounded.

Link: Glens Falls (NY) Post-Star

Man Walks 25 Miles to Be Sentenced

Stephen Shoemaker was so determined to get to the courthouse in order to be sentenced for a drunk-driving conviction that, when his brother didn't show up to give him a ride, he says he just started walking.

That does show determination, since Shoemaker lives nearly 25 miles from the courthouse.

Shoemaker reportedly started walking at dawn from his home in Shippensburg, Pennsylvania, hoping to reach the Cumberland County Courthouse in Carlisle by 9:30 a.m. on June 11.  Since sunrise on June 11 was at 5:39 a.m., walking over 20 miles should take at least four hours, and the temperature hit 94 degrees that day, this was not a particularly good plan, but Shoemaker said he had no other option.

He made it to court, but was about six hours late, partly because he had to stop for a while at a local hospital to be treated for dehydration.  "I got a little bit light-headed," Shoemaker admitted.  "I about passed out."  Court personnel said Shoemaker had made it to the hospital in Carlisle by 10 a.m., which is really making pretty good time, but the fact that they admitted him for treatment put him way behind schedule.  According to the report, Shoemaker finally appeared before the judge at 3:30 p.m., "deeply tanned and looking more than a little tired."

Shoemaker said he worried that if he was arrested for missing his court date, it would ruin his chances of going full-time at a job he recently started.  When he finally arrived, he asked the judge to defer his sentencing until July, by which time he expects to already be working full-time, and can then keep his job via work-release.  The judge initially did not want to grant the deferral, only because "that means he'll have to walk back to Shippensburg."  The public defender volunteered to give him a ride, though.

While court personnel found this comical, they also admitted to some admiration for Shoemaker's trek.  "At least it shows some respect for the law," said one.  It also shows a serious desire to get a job, so hopefully the judge will cut the guy some slack.

Link: Patriot-News (PA)

UPDATE: Both "Thong Bandits" in Custody

As predicted, the "disguises" employed by the Thong Bandits during their robbery of a convenience store in May did little to help them avoid arrest.  Police in Arvada, Colorado, announced last Friday that Joseph Espinoza and Joaquin Rico had turned themselves in to authorities, presumably because both had been identified and were actively being sought anyway.

According to the report, Espinoza was believed to be the wearer of the blue thong, while police believed Rico was "the man behind the green thong."

Link: Denver Post

Mistrial Declared After Jurors Found Playing Sudoku

Showing that issues with the jury system are not limited to America, on June 10 a judge in Sydney declared a mistrial in a high-profile drug-conspiracy case after it was discovered that the jurors spent much of their time in court playing Sudoku.

Apparently, everyone assumed the jurors were diligently taking notes until someone noticed they were writing vertically as well as horizontally.

The two men on trial faced life in prison for drug trafficking, and at the time trial was suspended it had already lasted 66 days and cost an estimated $1 million (Australian).  Though the stakes were high, the foreman told the judge, the case was awfully dull, and Sudoku, he said, actually helped him with his duties.

"Yes, it helps me keep my mind busy paying more attention," he claimed.  "Some of the evidence is rather drawn out and I find it difficult to maintain my attention the whole time, and that [i.e., paying attention to something else] doesn't distract me too much from proceedings."  Hey, let's make the jury box like Virgin Airlines -- the Internet at every seat!  Then you could really stay busy paying more attention.

I sympathize with the utterly bored, but the fact is that human beings have a finite amount of attention and focusing some of it on one thing reduces the amount available for other things.  The claim that people can infinitely multi-task is the kind of thing you hear from people who insist on texting while driving, at least until they hit a tree.

A while back there was a story about a guy who was so focused on the GPS navigation system in his car that he didn't see a train coming down the tracks he was parked on.  Apparently, you see, these defective GPS devices do not show trains coming.  Users of such devices while driving are urged to employ a backup system known as "paying attention" or, as those of you at Microsoft may prefer, "using the rich functionality of Window 1.0."

My point being, like these devices, Sudoku necessarily consumes attention that would otherwise be devoted to, let's say, listening to the evidence in a case where people face life in prison.  In fact, despite his claim that Sudoku didn't "distract [him] too much from proceedings," he admitted to the judge that several of the jurors "were playing puzzle games for up to half the time the trial had been going."  Result: mistrial.

"Jurors are sort of the judges of the facts [yes, sort of] and it's very disappointing they weren't giving our clients a fair trial,"  said a lawyer for one of the defendants, who probably wasn't disappointed at all.

Link: AP via FindLaw.com
Link: Sudoku on Wikipedia

Get to the Good Hotel First If Litigating Against Skadden Arps

The law firms of Skadden Arps and Quinn Emanuel are on opposite sides of the Barbie-Bratz doll lawsuit, which is being tried in Riverside, California.  As I can tell you from personal experience, by far the best place to stay in Riverside is the Mission Inn, partly because it is a historic landmark and partly because the options in Riverside are few.

According to the WSJ and Daily Journal, lawyers from both firms planned to stay at the Mission Inn and use it as trial HQ.  When Quinn lawyers tried to book rooms, though, they found out Skadden had gotten there first.

True to its reputation for ruthlessness, Skadden had not only booked first but had the hotel sign a contract precluding it from renting rooms to anyone from Quinn Emanuel.  Skadden said it was concerned that confidential material might inadvertently be delivered to the wrong room, based on an incident where a package was inadvertently sent to a Skadden lawyer.  That lawyer, of course, took the package directly to opposing counsel -- which actually is required under California ethics rules -- but apparently Skadden does not trust Quinn lawyers to do the same.

Reportedly, Quinn asked the judge to declare the contract unenforceable, but he declined.  It appears that the contract did not completely exclude Quinn from the hotel, but they had to reserve through a third party rather than directly through the inn.  Not sure how that protects confidentiality, but that was the report.

Skadden partner Tom Nolan claimed that "exclusion contracts" of this kind are common.  (To my knowledge, we've never used one.)

Quinn lawyers say they are perfectly happy at the Marriott anyway.

Link: Law Blog - WSJ.com

Use of F-Bomb Before Supreme Court Discussed

In a June 5 post, Marty Lederman of SCOTUSblog discussed the FCC v. Fox Television case, which involves "whether fleeting expletives are so inherently shocking as to justify a virtual ban on their broadcast between 6:00 a.m. and 10:00 p.m."  As you may recall even if you tend to read this blog rather than something important like SCOTUSblog, that case arises from Bono describing his Golden Globe award as "really f*cking brilliant" in 2003.  See "U.S. Supreme Court to Consider Use of Expletives," Lowering the Bar (Mar. 17, 2008).

In his post, Lederman links to the government's brief in the case and notes that it urges the Court to decide the case on procedural grounds rather than reaching the First Amendment issues.  But he also notes that the brief "consistently uses the terms 'F-Word' and 'S-Word' throughout, rather than" the actual words, which he in fact prints fully, something that for some reason (likely job-keeping-related) I am still reluctant to do.  Lederman thinks it is fair to assume that the respondents' brief "will diverge from the government's brief in this respect," not because Sidley & Austin lawyers are foulmouths but because f*cking expletives are what the case is all about.

For example, when arguing in the court of appeals, Lederman says, Fox lawyer Carter Phillips "said 'f*ck' and 'f*cking' and 'sh*t' almost immediately in outlining the case, as if to get the words out, on the table and unabashedly part of the conversation."  (Phillips didn't use asterisks, either.)  So there is some reason to think (or hope) that the F-bomb will be dropped early and often even during oral argument in this case.

There is at least some precedent for doing that, even if the Chief Justice suggests you shouldn't.  In Cohen v. California in 1971, the famous "F*ck the Draft" case, Chief Justice Burger started the proceedings by saying "I might suggest to you that . . . the Court is thoroughly familiar with the factual setting of this case and it will not be necessary, I'm sure, to dwell on the facts."  Counsel apparently chose to interpret that as a suggestion to keep his factual summary "very brief," which he did -- but he recited the full phrase anyway.  He just didn't "dwell" on it.

These cases teach us that it is possible to use the F-bomb in legal proceedings, at least fleetingly, without being sanctioned.  What I wish I had known earlier is that it seems to be important to be sure it's relevant to the facts of the case.

Link: SCOTUSblog

Khalid Sheikh Mohammed Denounces U.S. Legal System, Courtroom Artist

Khalid Sheikh Mohammed, who has confessed to being the mastermind of the 9/11 attacks, had some statements to make at his arraignment on Thursday (June 5):

• First, he looks forward to becoming a martyr.
• Second, the U.S. legal system is a farce.
• Third, the courtroom sketch makes his nose look way too big.

The Associated Press reported that the sketch, created by courtroom sketch artist Janet Hamlin, was reviewed by the court and counsel "to make sure it didn't include classified information."  The report didn't say what that might have been -- it seems unlikely that any classified exhibits would have been on display at an arraignment.  Maybe the concern is that Mohammed is using his hairstyle to send coded messages to his compadres.

Anyway, the defense team got to look at the sketch too, and allowed their client to see it as well.  He was not at all pleased.

"He said I should compare it to the FBI photo of him," Hamlin said.  That's the flattering one taken after his arrest, in which he looks slightly disheveled, to say the least.  But at least it gets the nose right, Mohammed apparently said.

Asked if Mohammed had a point, Hamlin said, "I agree totally."  She said she intended to slim down the mass murderer's nose.

Link: AP via FindLaw.com

Parties Ordered to Conduct Deposition at State Line

Here's an order going directly to the Lowering the Bar Legal Document Archive.  Apparently, in a lawsuit pending in the Western District of Texas (at Austin), the parties were unable to agree on whether the deposition of a corporate representative should take place in San Antonio, Texas, or in Bentonville, Arkansas, location of the corporation's headquarters.  (Yes, it's a corporation you may have heard of.)

Faced with a motion for protective order, Judge James Nowlin resolved the dispute creatively, and I think fairly, despite a barely detectable Texas bias:

The Court is sympathetic with Defendant's argument [Judge Nowlin wrote].  Surely Defendant's corporate representative, a resident of Arkansas, would feel great humiliation by being forced to enter the home state of the University of Texas, where the legendary Texas Longhorns have wrought havoc on the Arkansas Razorbacks with an impressive 55-21 all-time series record.

On the other hand, the Court is sympathetic with Plaintiff's position.  Plaintiffs might enter Arkansas with a bit of trepidation as many residents of Arkansas are still seeking retribution for the "Game of the [Prior] Century" in which James Street and Darrell Royal stunned the Razorbacks by winning the 1969 National Championship.

Because the Court is sympathetic to both parties' positions, it has found a neutral site . . . .

Unless they agree otherwise, the court ordered, the deposition is to take place in Texarkana, on the steps of the Texarkana Federal Building, located on State Line Avenue.

"IT IS FURTHER ORDERED THAT each party is to remain on his or her respective side of the state line."

Link: Order of June 3, 2008 (W.D. Tex.)