Lowering the Bar

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

Lowering the Bar's Official Disclaimer and Policies

Introduction to the Preamble to the Disclaimer

After over a year of doing this, I have finally gotten around to posting an Official Disclaimer and Policies.  (Yes, if you were a client, I would move a lot more quickly than that.)  These will also be available at any time by simply clicking on the appropriate link in the left-hand column, a link lovingly hand-crafted by me to ensure the best possible clicking experience for you, the reader.  But I thought it was also a good idea to post them at least once right here on the front page.

With that, here is the disclaimer.

Preamble to the Disclaimer

First of all (apart from the introduction above, which obviously had to come first), I would like to thank you for reading Lowering the Bar, and now for taking the time to read this disclaimer.  So few people actually read disclaimers these days.  Truly, you are the unsung heroes of our nation.

(This is actually not yet the disclaimer itself but rather more of an introductory note and thank-you message. The actual disclaimer will begin in just a moment.)

I suppose that the preceding sentence, while not technically the Lowering the Bar disclaimer, is something that limits the scope of that disclaimer and so could be considered sort of a disclaimer disclaimer.  So, to that extent, it was a disclaimer although not the disclaimer.  The same is true for this paragraph, so, as you can see, this kind of retarded introductory banter could go on for pages were I not every bit as fed up with it as you are, and equally eager to move on to the actual legally binding disclaimer itself.  So, the next thing you read will be that.

The Actual and Legally Binding Disclaimer
(not this heading itself but the text below)

This Site Does Not Give Legal Advice: This website and blog is intended for entertainment purposes only and should not be relied on for legal advice.  It is not impossible that you might learn something useful here and that the thing you learn might be related to the law.  But that would be pure coincidence, and free, and so not “advice” that you should rely on.

As far as accuracy goes, every story on Lowering the Bar (this is still part of the disclaimer, just a new paragraph of it) cites at least one source that I consider to be reputable.  WARNING: I consider Wikipedia to be “reputable,” depending on the circumstances. What this means, really, is that I don’t make stories up – everything here is at least based on a true story.  There are sometimes embellishments or additions for comedy purposes -- it is assumed that you can tell the difference, and if not, may I recommend the Reader’s Digest Joke-0-Matic?

Having said that, I make no representations, warranties, or any other kinds of binding legal promises that any of the facts or legal theories presented here are in fact true or valid.  In fact, many of the stories here at least involve facts or legal theories that couldn’t possibly be true or valid, and yet somebody somewhere thought they might be.  Don’t make the same mistake they did.

Also, stories posted here may involve numerous U.S. states, territories, commonwealths, districts of Columbia, and/or foreign jurisdictions in which I am not licensed to practice law and in which I do not get paid to research.  Believe it or not, I am licensed in California and Missouri and am admitted to the bar of a fair number of federal courts, and I do get paid to give a lot of legal advice.  But this isn’t that.

Policies
(the disclaimer as such has now ended)

Errors or Material Omissions: if you see any of these in a story here, please tell me.  I will fix it if I made an important mistake (it could happen), although again all the actual facts here are drawn from sources that are already public.  I won’t necessarily change or delete something that is true just because you ask me to do that. But I might.

Submissions:  please feel free to email tips, leads, links, suggestions, paternity claims, etc.  I get a lot of great tips this way and appreciate it.  If you want credit for a submission, let me know – for some reason, possibly a desire to keep their jobs, most people seem not to want credit.

Comments policy:  I haven't enabled the comments feature.  I like my job too much.  I have in the past quoted people who emailed me with really good or interesting or comical or just flat-out insane things to say about a story.  Like the professor who thought I had not been fair to the Taiwanese legislator who was so strongly opposed to a bill coming up for a vote that she ate it.  She ate the paper copy of the bill so that they could not vote on it.  He described this to me as a “simple” and “brilliant” legislative strategy.  I included that comment in a followup post out of respect for his knowledge of the politics and legislative process in Taiwan, although I did not change my personal evaluation of the bill-eating strategy.  So email me if you have something you want to add and I very well may quote you.  But no standard comments.  I may add moderated comments in the future.

Email-responding policy: I try but can’t always.  NOTE: the chances of me even reading an email are greatly reduced if it (1) has no subject line at all; (2) the subject or sender include the words “viagra,” “cialis,” “penis,” or any other French words; or (3) the sender’s name has a middle initial displayed, which seems to be a spam indicator, especially if the name is something like “Euphonius Q. Supertramp” (the name on one email I actually received).

If your real name actually is "Euphonius Q. Supertramp,” or anything like it, I apologize for not writing you back but suggest that you make up a normal-sounding fake name for purposes of writing me. Also that you use that name for all other purposes too for the rest of your life.

Linking policy:  I probably will.

Bestiality policy: I certainly will not.

Privacy policy: I don’t know anything about readers except what they might want to share with me.  That includes “cookies.”  I don’t want them.  If I did know something, I wouldn’t store or resell or otherwise use any you-related data except possibly to email you back.  I can sometimes tell from Sitemeter what search someone might have run that caused them to end up at Lowering the Bar, or the server it went through.  But no one can be personally identified that way, so far as I know, and if that were possible, I wouldn’t do it.

Job preservation policy: This blog and everything on or about it or affiliated with it that I have created is the sole property and responsibility of me, “me” meaning M. Kevin Underhill, California state bar number 208211, Missouri state bar number 44582.  It should not be blamed on or attributed to my employer, Shook, Hardy and Bacon LLP, or to any attorney or employee of that firm (except for me).

Thanks again.

First of all (apart from the introduction above, which obviously had to come first), I would like to thank you for reading Lowering the Bar, and now for taking the time to read this disclaimer.  So few people actually read disclaimers these days.  Truly, you are the unsung heroes of our nation.

(This is actually not yet the disclaimer itself but rather more of an introductory note and thank-you message. The actual disclaimer will begin in just a moment.)

I suppose that the preceding sentence, while not technically the Lowering the Bar disclaimer, is something that limits the scope of that disclaimer and so could be considered sort of a disclaimer disclaimer.  So, to that extent, it was a disclaimer although not the disclaimer.  The same is true for this paragraph, so, as you can see, this kind of retarded introductory banter could go on for pages were I not every bit as fed up with it as you are, and equally eager to move on to the actual legally binding disclaimer itself.  So, the next thing you read will be that.

The Actual and Legally Binding Disclaimer
(not this heading itself but the text below)

This Site Does Not Give Legal Advice: This website and blog is intended for entertainment purposes only and should not be relied on for legal advice.  It is not impossible that you might learn something useful here and that the thing you learn might be related to the law.  But that would be pure coincidence, and free, and so not “advice” that you should rely on.

As far as accuracy goes, every story on Lowering the Bar (this is still part of the disclaimer, just a new paragraph of it) cites at least one source that I consider to be reputable.  WARNING: I consider Wikipedia to be “reputable,” depending on the circumstances. What this means, really, is that I don’t make stories up – everything here is at least based on a true story.  There are sometimes embellishments or additions for comedy purposes -- it is assumed that you can tell the difference, and if not, may I recommend the Reader’s Digest Joke-0-Matic?

Having said that, I make no representations, warranties, or any other kinds of binding legal promises that any of the facts or legal theories presented here are in fact true or valid.  In fact, many of the stories here at least involve facts or legal theories that couldn’t possibly be true or valid, and yet somebody somewhere thought they might be.  Don’t make the same mistake they did.

Also, stories posted here may involve numerous U.S. states, territories, commonwealths, districts of Columbia, and/or foreign jurisdictions in which I am not licensed to practice law and in which I do not get paid to research.  Believe it or not, I am licensed in California and Missouri and am admitted to the bar of a fair number of federal courts, and I do get paid to give a lot of legal advice.  But this isn’t that.

Policies
(the disclaimer as such has now ended)

Errors or Material Omissions: if you see any of these in a story here, please tell me.  I will fix it if I made an important mistake (it could happen), although again all the actual facts here are drawn from sources that are already public.  I won’t necessarily change or delete something that is true just because you ask me to do that. But I might.

Submissions:  please feel free to email tips, leads, links, suggestions, paternity claims, etc.  I get a lot of great tips this way and appreciate it.  If you want credit for a submission, let me know – for some reason, possibly a desire to keep their jobs, most people seem not to want credit.

Comments policy:  I haven't enabled the comments feature.  I like my job too much.  I have in the past quoted people who emailed me with really good or interesting or comical or just flat-out insane things to say about a story.  Like the professor who thought I had not been fair to the Taiwanese legislator who was so strongly opposed to a bill coming up for a vote that she ate it.  She ate the paper copy of the bill so that they could not vote on it.  He described this to me as a “simple” and “brilliant” legislative strategy.  I included that comment in a followup post out of respect for his knowledge of the politics and legislative process in Taiwan, although I did not change my personal evaluation of the bill-eating strategy.  So email me if you have something you want to add and I very well may quote you.  But no standard comments.  I may add moderated comments in the future.

Email-responding policy: I try but can’t always.  NOTE: the chances of me even reading an email are greatly reduced if it (1) has no subject line at all; (2) the subject or sender include the words “viagra,” “cialis,” “penis,” or any other French words; or (3) the sender’s name has a middle initial displayed, which seems to be a spam indicator, especially if the name is something like “Euphonius Q. Supertramp” (the name on one email I actually received).

If your real name actually is "Euphonius Q. Supertramp,” or anything like it, I apologize for not writing you back but suggest that you make up a normal-sounding fake name for purposes of writing me. Also that you use that name for all other purposes too for the rest of your life.

Linking policy:  I probably will.

Bestiality policy: I certainly will not.

Privacy policy: I don’t know anything about readers except what they might want to share with me.  That includes “cookies.”  I don’t want them.  If I did know something, I wouldn’t store or resell or otherwise use any you-related data except possibly to email you back.  I can sometimes tell from Sitemeter what search someone might have run that caused them to end up at Lowering the Bar, or the server it went through.  But no one can be personally identified that way, so far as I know, and if that were possible, I wouldn’t do it.

Job preservation policy: This blog and everything on or about it or affiliated with it that I have created is the sole property and responsibility of me, “me” meaning M. Kevin Underhill, California state bar number 208211, Missouri state bar number 44582.  It should not be blamed on or attributed to my employer, Shook, Hardy and Bacon LLP, or to any attorney or employee of that firm (except for me).

Thanks again.

Bill Would Make KFC the "Official Picnic Food of Kentucky"

On January 18, Kentucky State Rep. Charles Siler introduced a bill that would designate Kentucky Fried Chicken (specifically, Original Recipe) as the state's "official picnic food."  The provision itself is just one sentence, but the preamble offers some interesting details:

WHEREAS, Harland Sanders opened his first restaurant in Corbin, Kentucky in 1930; and

WHEREAS, Kentucky Governor Ruby Laffoon made Harland Sanders an honorary Kentucky Colonel in recognition of his contributions to the state's cuisine in 1936; and

WHEREAS, Colonel Sanders's "Original Recipe" fried chicken was first cooked in Colonel Sanders's restaurant in 1940; and

WHEREAS, the first "Kentucky Fried Chicken" franchise restaurant selling the Original Recipe chicken was opened in 1952; and

WHEREAS, today, the Original Recipe chicken is sold in more than 11,000 Kentucky Fried Chicken restaurants in more than 80 countries and territories around the world, bringing recognition and fame to the Commonwealth of Kentucky;

NOW, THEREFORE,

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

SECTION 1.  A NEW SECTION OF KRS CHAPTER 2 IS CREATED TO READ AS FOLLOWS:

Original Recipe Kentucky Fried Chicken is designated the official picnic food of Kentucky.

The background facts in the "whereas" clauses are a bit of a mixed bag.  It's good to know that KFC actually did get its start in Kentucky, although it's a little disillusioning to learn that Col. Sanders didn't actually serve in the military.

Perhaps predictably, the bill is being opposed by People for the Ethical Treatment of Animals.  PETA claims that the chickens KFC serves are abused, even tortured, although it wasn't clear from the report whether PETA claims KFC is the one doing the torturing.  (In a related story, Attorney General Michael Mukasey refused to confirm or deny that chickens had been waterboarded, but said that if they were he wasn't sure if that was torture or not anyway).

"If the state legislature moves forward with this one," said PETA vice president Bruce Friedrich, "then they should change Kentucky's state bird from the cardinal to the debeaked, crippled, scalded, diseased, dead chicken."

Link: CBS News
Link: Kentucky State Legislature

Mustache-Discrimination Case Reaches Indian Supreme Court

On Monday, February 11, justices of the Supreme Court of India heard argument in the case of a man who claims he was fired from his job at Indian Airlines because of his sizeable and "elaborate" handlebar mustache.  Initial reports were that the justices appeared likely to side with the mustache.

Joynath Victor De says that he joined Indian Airlines in 1994 and was promoted to assistant manager of flight services before an anti-elaborate-mustache policy was added to the employee manual in 1998.  He claims he was reassigned to ground duties that year after he refused to trim it, and then was "compulsorily retired" in 2001.  According to the AFP report, De "sported the elaborate mustache" as part of a family tradition.  (The phrase used in the Indian press was "kept a stout moustache" -- I spent some time trying to decide which I liked better, but I've decided they are both equally great.)

The airline apparently does make exceptions to its anti-mustache regulation for Sikhs, who do not cut their hair for religious reasons.  But a family elaborate-mustache tradition apparently does not qualify.

The basis for the claim under Indian law was not very clear, but seems to involve an alleged failure by the airline to reasonably apply the policies set forth in its operations manual.  A lower-court judge agreed with De, but the Calcutta High Court reversed.

Reportedly, the Supreme Court justices, at least those on the initial panel, were sympathetic to De's claim.  "How can a person with a moustache be removed?" asked one from the bench.  "This is a democratic country."  (Probably he meant "free country," unless the mustache was so elaborate that it gets its own vote.)  News agencies in India reported that the justices had "issued notices" to the airline, which appears to mean that they have asked it to file a written response opposing De's plea for relief.

So, elaborate-mustache wearers of the world, there is hope.

Link: AFP via Yahoo! News
Link: Press Trust of India
Link: Official Site of the 2009 World Beard and Moustache Championships

FBI Rejects Waterboarding In Favor of Starbucks

Writing on the New York Times website Tuesday, Mike Nizza discussed the revelation that in contrast to the CIA's admitted use of techniques like "waterboarding" to try to get information out of Al Qaeda suspects at Guantanamo, FBI interrogators used less coercive tactics.  Namely, giving the men "food whenever they were hungry" and, on occasion, even Starbucks coffee.

Maybe there is more to this story -- like maybe once the suspects got used to Starbucks, they threatened them with having to go back to Gitmo-blend coffee unless they talked.  That might still be cruel and unusual.

As Nizza points out, the Starbucks detail is interesting for a couple of reasons.  First, there is now officially nowhere on the planet that does not have a Starbucks.  (Guantanamo also reportedly has a gift shop, which is good to know.)  Second, if the FBI has been successful this way -- and 60 Minutes reported recently that a tactic called "conversation" also worked with Saddam Hussein -- are the CIA tactics necessary or even a good idea (setting aside whether they are legal)?

According to the Washington Post, an FBI team has been working with the suspects since 2006, attempting to get incriminating information that the CIA had already obtained, but without using any controversial techniques in the hopes that the admissions would hold up in court.  Whether or not the information has already been tainted by the earlier tactics, though, remains to be seen, according to a former judge advocate general who spoke to the Post.  "Once you torture someone," he said, "it is hard to un-torture them."

On the other hand, Justice Scalia thinks we should not be such pansies about this "so-called torture," as he referred to it in a BBC interview.  "Is it really so easy to determine," he said, "that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?"  Turns out that's a rhetorical question.  "It would be absurd to say you couldn't do that," he continued, "and once you acknowledge that, we're into a different game."  Sounds like pretty clear guidance -- if you are a character on "24."

So, today's lesson is that if you have time to interrogate a suspect, you should be nice and bring him Starbucks; but if the bomb is ticking, feel free to smack him in the face.  Don't say you never learned anything from reading Lowering the Bar.

Link: The Lede (NYT)
Link: Download the podcast of Justice Scalia re: smacking terrorists in the face

Judge Bars Holocaust Float and Dancing Hitlers from Rio's Carnaval

On January 31, a judge in Rio de Janeiro issued an order telling a group not to proceed with its plans to offer a float in the city's Carnaval parade because the Holocaust-themed float depicted a heap of naked corpses and one or more dancing Adolf Hitlers.

"I think it's in terribly bad taste," was the somewhat obvious conclusion of "sociologist and Carnaval scholar" Roberto DaMatta, who explained that a group's choice of an unusual or even shocking theme might be explained by the festival's "sacrilegious origins."  He conceded, though, that this was a little outdated.  "We're not in the Middle Ages anymore," he said.  "It doesn't work in a modern society."

Besides being in bad taste, the theme also violated Brazilian laws prohibiting racism and the display of Nazi propaganda, which were the basis of the lawsuit by the Jewish Federation of Rio de Janeiro.  "It's inadmissible," said a spokesman, "that they could have a parade float depicting dead Jews and a live Hitler on top of them."  The group responsible for the float insisted that it was consistent with its overall theme, "It Gives You Goose Bumps," noting that its other floats depicted the "shock of birth," fear, and cold.  Its creative director, Paulo Barros, said he believed the float was a "very respectful" reminder of the Holocaust and was meant only as a reminder that it should not be repeated.

But the judge sided with the plaintiffs.  Saying the float was a "trivialization of barbaric events," and that Carnaval "should not be used as an instrument of hatred," she said the group would be fined if it ignored her order and proceeded with its plans.  The apparent plan to have multiple dancing Hitlers came in for special criticism.  The decision reportedly threatened fines of $113,000 if the bodies (mannequins) were displayed, plus another $28,000 "for each dancer dressed as Hitler."

The group said it had never planned to have a dancing Hitler (let alone several), but refused to comment on the reference to that effect in the official parade description of the float.

Link: AP via SFGate.com
Link: BBC News

Overaggressive Handshake Lands Attorney in Jail

"It all stems from a handshake," said Gwendolyn Tuggle, who is defending attorney Kathy Brewer-Rentas against charges that she assaulted a federal prosecutor.

"It was definitely more than a handshake," said court security officer Gilberto Pay, who witnessed the shake between Brewer-Rentas and Assistant U.S. Attorney Jennifer Keene.  That is more consistent with the U.S. Marshall's arrest report, which describes a handshake plus a little extra:

Brewer forcefully grabbed onto Keene's right hand and squeezed it, pulling Keene toward her, forcing Keene off balance.  With Keene in hand [or, Keene's hand in hand], Brewer made an upward, then a quick downward motion and pulled Keene toward the ground moving her forward, almost causing Keene to fall to the ground.

Unless Keene's balance is really bad, that does seem to be more than a handshake.  In fact it was enough, the marshall wrote, to snap Keene's head forward and then back sharply; Pay apparently told investigators that it looked like Brewer-Rentas was trying to pull Keene's arm out of its socket.

This took place after a hearing on February 7 involving Brewer-Rentas's husband, who had apparently violated the terms of his federal probation for distributing cocaine.  The judge ordered Mr. Rentas to be put under house arrest for 90 days, which doesn't seem that bad under the circumstances, but didn't make Mrs. Rentas very happy.

According to court officials, Brewer-Rentas "insisted on shaking hands" with Keene, who seems to have refused.  Brewer-Rentas continued to insist, following Keene down the hall, and apparently at some point decided to go for the unilateral megashake.

The extent of the injury to Keene was not clear from the report, although she did miss work on Friday.  Brewer-Rentas spent the night in jail and has been ordered to get an evaluation for possible anger- or handshake-management training.  This may not be based solely on the handshake -- Anthony Rentas was charged last October with domestic abuse, but that charge was dropped, possibly due in part to Brewer-Rentas's testimony that during the incident, she was "never in fear for her life," but rather "it was [her husband] who should have been in fear for his safety from her."

Maybe Anthony ought to rethink his decision to plead in order to get house arrest.

Link: South Florida Sun-Sentinel

"Puddles" Scandal Drives Mayor Out of Office

Grace Saenz-Lopez, the mayor of Alice, Texas, resigned on February 1 after admitting that she had dognapped a Shih Tzu named "Puddles" that she had been caring for.

Not since Nixon's "Checkers" speech has a stupidly named dog been so important to a politician's career.

Neighbors had given the dog to the mayor to take care of while they were on vacation last summer.  Just a day after they left, Saenz-Lopez called them and told them the dog had died.  (But enjoy your vacation!)  Three months later, however, a relative of the neighbors saw the dog at a groomer and noticed it was not dead.

The mayor refused to return the dog.  It's not clear from this report whether she denied it was the same dog (she had renamed it "Panchito") or just flatly refused to give it back, but either way, the battle was on.  The family sued her and also filed a criminal complaint.  It seems that Saenz-Lopez then told the police that Puddles/Panchito was missing, but it was then spotted at the home of her twin sister who lived in a town about 10 miles away, and who was no better a dog-concealer than her twin.

The false police report did not help matters, and the mayor was indicted in January on two felony counts of tampering with and concealing evidence, which led to her resignation.

In her resignation letter, Saenz-Lopez wrote, "I am sorry for the division that the events of these last few weeks have caused," using the passive voice to indicate that it was the events' fault and she was sorry for what they had done.  'It was never my intention," she said, "to bring any negative exposure to our city."

The mayor's attorney has said that his client believed the dog would die if it was returned to her neighbors, but did not explain why she believed that.

Link: AP via SFGate.com