Lowering the Bar

DOJ Moves to Dismiss Geronimo Skull Suit

Legal Times reported on June 12 that the Justice Department had moved to dismiss claims brought by a group of Native Americans who are hoping to recover Geronimo's remains.  See "Geronimo's Descendants Sue to Get His Skull Back," Lowering the Bar (Feb. 18, 2009).  The plaintiffs named the federal government, Yale University, and the Skull and Bones society as defendants in the lawsuit, based on persistent rumors that the skull (if there is one) inside the Skull and Bones "crypt" is in fact Geronimo's noggin.

The plaintiffs include Geronimo's great-grandson -- Harlan Geronimo -- and others who claim that a group of Yale men stationed in Oklahoma during World War I broke into a burial ground and took the skull (and, possibly, bones).  The group that allegedly stole the remains of the famous Apache leader is said to have included Prescott Bush, whose grandson, George W., later became a famous Caucasian leader.

The government is apparently asserting sovereign immunity.

Link:  The BLT: The Blog of Legal Times

Meat Thieves Captured

Police in Spokane, Washington, reported last week that they had arrested the ringleader of a meat-stealing operation that has plagued stores in the area for some time.  Christopher Webber was booked last Thursday on charges of "leading organized crime."  Specifically, police allege Webber organized as many as five others into a crew of professional meat thieves who would shoplift meat from stores like Albertsons and then resell the tasty plunder in area bars for about half the retail price.

Apparently, those inside the bars found nothing at all unusual about somebody regularly stopping by to offer them some half-price meat.  One bartender insisted he thought the salesman he dealt with was legit.  "He had a little uniform on," he said, "and sounded like he really knew his meat."  (If someone in Spokane saw this on television, could you let me know if he said this with a straight face?  Because I don't think that's possible.)  The convincing uniforms and meat knowledge were good enough for the Spokane business community, which appears to have suspected nothing at any time during the three years the scheme was in operation.

How About Some Cheap Meat? Said the Mysterious Stranger

A police spokeswoman said that Webber's operatives would fill up a shopping cart with meat, and then find a concealed spot to stuff the meat down their pants or conceal it "somewhere else on their person."  (As with the "little uniforms," I think I don't really want to know the details.)  Police estimate that the gang may have moved as much as $400,000 worth of stolen goods during their three-year meat spree.

Link: Spokane Spokesman-Review (June 26, 2009)

Weapons Conviction Thrown Out Due to Counsel's Napping, Magazine Reading

On June 15, a New York judge set aside a conviction on the grounds that the defendant's attorney had provided ineffective assistance of counsel.

For future reference, your lawyer may be providing ineffective assistance if he or she is sleeping or reading health-and-fitness magazines during trial.

Edward Trujillo, Julio Irizarry, and Jonathan Castillo were on trial for weapons charges after an incident in which one of them was (for some reason) shooting a nine-millimeter pistol into the air.  (I suppose the problem with this is that the bullets have to land somewhere.)  Officers found other weapons in the defendants' SUV, and defendants were all indicted on weapons charges.

Irizarry was granted a mistrial based on an evidentiary issue.  Trujillo wasn't so lucky, but he did have another argument.  Under Strickland v. Washington, a criminal defendant's Sixth Amendment rights may be violated if the quality of representation was "below an objective standard of reasonableness."  Trujillo argued this had happened because, among other things, his counsel fell asleep at least three times during trial, read magazines while witnesses were testifying, and "gave a bizarre opening statement that caused the jurors to laugh."  With regret, the judge agreed.

The judge wrote that he had in fact seen Trujillo's counsel "apparently sleeping at the counsel table" at least once.  Saying he was aware that counsel had a "pre-existing medical condition" (he did not identify the condition, or the attorney), the judge noted he had called all counsel up for a sidebar to see if counsel was feeling well and to give him "every opportunity to revive himself, if necessary."  Presumably, counsel said he would try to stay awake, but failed.

The judge also semi-confirmed the magazine reading:  "While the court cannot corroborate defendant Trujillo's claim that counsel was reading a health and fitness magazine during the course of the trial, the court did observe a magazine fall to the floor during the trial proceedings and observed defendant Trujillo's counsel pick up the magazine."  (This would be called "circumstantial evidence" that counsel was reading said magazine.)

Finally, it appears that the opening statement was indeed bizarre, and did indeed cause amusement:

Counsel for the defendant Trujillo did, indeed, give a bizarre opening statement. The beginning of counsel's opening statement was so off topic and irrelevant that this court was compelled to stop counsel and direct that he address what he intended to prove during the course of the trial. The jury was, in fact, laughing during counsel's opening statement and such laughter at a member of the bar created an unprofessional atmosphere. . . . [D]uring this trial, I found myself very uncomfortable whenever defendant Trujillo's counsel addressed either a witness or the jury. It was impossible to predict what he was going to say.

The judge was clearly reluctant to criticize counsel, likely because of the undefined "pre-existing condition."  That is understandable.  Although it would be more understandable if I could think of a pre-existing condition that can result in an irresistible urge to flip through a magazine while the other side's witnesses are testifying.  (I guess I should not be too critical since I may need to use this someday.)

Anyway, while this probably made the trial much more entertaining than most, the court held that Trujillo had not gotten "meaningful representation," and set aside the verdict.

Mr. Castillo, who was apparently unfortunate enough to have a competent attorney, will be sentenced shortly.

Link: People v. Irizarry, 2009 NY Slip Op. 51258(U) (Supreme Ct. Kings County, June 15, 2009)
Link: ABA Journal

Tip: Reckless Nude Driving Apparently OK in Georgia

I somehow came across a report last week discussing what sheriff's deputies and state troopers were doing in Ware County, Georgia, a rural county down near the Florida border, on the night of June 12 & 13.  Sure, they came across a meth user or two, but what caught my eye was a quote about the nude driver they stopped.  And then released.

From the report:

Detectives pulled over the nude driver in an unrelated incident [unrelated to the meth-using deer slayer they had previously arrested, that is].  He was driving on Suwanee Chapel Road and was stopped because the car was weaving in and out of its lane. Detectives released him after ordering him to put his clothes on and advising him to keep them on. "He gave no explanation ... There is no law against driving naked so we had to let him go," Royal said.

I think this is right -- my research, at least, has uncovered no law in Georgia against driving naked.  Even the public indecency statute should not apply -- that law provides that "[a] person commits the offense of public indecency when he or she performs any of the following acts in a public place . . . a lewd exposure [or a] lewd appearance in a state of partial or complete nudity . . . ."  Ga. Code sec. 16-6-8(a) (other clearly inapplicable acts omitted).  Seems to me that driving naked is neither "lewd" (though I guess it depends how you do it) nor "in a public place."  True, driving itself is typically done in "public places," but unless your car is transparent I don't think this should constitute an "exposure" or "appearance."  Argue if you like, but clearly the Ware County authorities agree with this interpretation.

"Weaving in and out of [a] lane," though, clearly is prohibited, and at least in connection with unexplained nudity it seems like it might have been worth at least a little more investigation.  Apparently, though, the level of tolerance in rural Georgia for late-night reckless nude driving is significantly higher than I would have guessed.

You may want to make your vacation plans accordingly.

Link: Jacksonville.com

San Francisco Docket (June 2009)

Here are a few cases filed in San Francisco Superior Court during the past couple of weeks.  I hasten to add that, as with all my "docket reports" of this kind, I know nothing about these particular cases other than what's in the descriptions provided, which are taken directly from the actual docket report we get every day. (I am pretty sure the report is put together by somebody with a decent sense of humor, and not inadvertently funny, but you never know).  Not making any judgments about the cases themselves, the descriptions just strike me as funny.

Mary Fletcher v. Round Table Pizza Inc. et al., No. C09-01691 (filed 6/11/2009)	Personal injury action where a customer at defendant Round Table Pizza put the leg of their chair onto the plaintiff's toe.
Patrick Gilles v. Jeffrey Fletcher; John McDill; Thomas Rickard; Christopher Adams; Michael Taylor; Jay Siegan; Jay Siegan Presents; Wonderbread 5; No. CGC-09-48957 (filed 6/17/09)	Complaint for fraud, breach of contract and interference with economic relations. Defendant Adams kicked the plaintiff out of the successful Jackson 5 cover band he had helped start ten years earlier, saying that if he showed up to that night's gig "it could get physical." The defendants continue to use the plaintiff's likeness, voice tracks, and guitar tracks in live performances and marketing materials. $1 million.
Hui Zhen Kuang, guardian ad litem for Vincent Ye v. The Cheesecake Factory Inc.; No. CGC-09-489528 (filed 6/16/09)	Premises liability lawsuit. The defendant seated the plaintiff's mother with the infant plaintiff in a chair within inches of a swinging door used by waiters, leading to the plaintiff's injuries.
Anthony Benjamin Sr. v. Liberty Dental Plan Inc. Quality Management Committee, No. CPF-09-509605 (filed 6/17/09)	Petition for writ of mandate and complaint for declaratory relief. The dental care providers in the respondent's network provided the petitioner negligent care that caused him to lose several teeth and develop a yeast infection in his penis that has lasted for more than two years, all motivated by greed.

Man.  Now that is a bad dentist.

Allegedly.

Link: San Francisco Superior Court

Beauties Behaving Badly

As you all know, the world has been riveted in recent days by an ongoing struggle against oppression and injustice.

Also, I think there is something going on in Iran.

Here at home, tensions continued to escalate as Carrie Prejean, the former Miss California USA, remained at war with pageant officials and the organization's Supreme Leader, Donald Trump.  Reports on Friday said that Prejean's lawyer, Charles LiMandri, had issued an ultimatum to Trump and the pageant's executive director, Keith Lewis: stop what you are doing or you will be responsible for the consequences.

LiMandri said in a letter that Lewis's statements on "Larry King Live" last week, accusing Prejean of missing public appearances and other "contract violations," had caused his client severe emotional distress and tarnished her reputation.  Lewis claimed Prejean was fired (sorry, "dethroned") for the contract violations rather than for her controversial statements opposing same-sex marriage.  LiMandri called that both an "outright fraud" and a "complete and utter pretext."  He appeared to concede that she had missed at least some appearances, but suggested that those had been unreasonable requests.  Prejean expected to be sent to "Rotary conventions and avocado festivals," LiMandri said, not to be required to "accept Mr. Lewis's invitation to attend a gay documentary in Hollywood promoting same-sex marriage."  Maybe that was asking a bit much, given Prejean's beliefs, but let's not blame the documentary.  It didn't choose to be gay.

The war of words featured classic language from lawyer and public-relations guy alike.

"Please view this letter as a last opportunity for Mr. Lewis to retract the defamatory statements," LiMandri wrote.  "If he does not comply, I will have no alternative but to recommend that Ms. Prejean proceed to do so through litigation."  "Facts are facts, and we stand by them," Lewis responded.  "Mr. LiMandri obviously has never watched 'The Apprentice' if he believes that Mr. Trump could be so easily fooled."  Now that's quality work.

Also on Friday, another beauty queen lost her title, this one in Puerto Rico.  Organizers of the Miss Petite Puerto Rico pageant said that Keishla Villafane Rivera had not only violated her contract, but had engaged in a course of "intolerable conduct" that included coarse language, assaults, and even death threats allegedly directed at pageant staff by the five-foot-two Villafane.  (Competitors for the Miss PPR title must be 5' 5" or shorter.)  "We were trying to handle this conduct of hers, but it was impossible," said a spokeswoman.  "It was constant."  She did not give details, but said they would be included in a forthcoming lawsuit against the former queen.

According to the report, "[b]eauty contests are taken very seriously in Puerto Rico," which has been home to no fewer than five winners of the Miss Universe pageant.  That pageant was taken seriously enough last year that one contestant claimed she had been sabotaged by someone who "dous[ed] her evening gown and bathing suit with pepper spray."  An investigation was later dropped.

Link: CNN.com (Prejean)
Link: Huffington Post (Villafane)

City Attorney Apologizes for Trash Can Incident

Sometimes after a long week of legal work, a guy just needs to unwind, and then find a quiet place to catch up on much-needed rest.

The gentleman pictured above has issued a public apology for the sleepytime incident, but as the local police chief observed, no crime was committed, and it appears no harm was done, except to reputation.  But the unfortunate fact that someone happened by with a camera will apparently result in a discussion with the town council next week.

This is why I always recommend choosing a dumpster for these sorts of impromptu snoozes - you can't readily be seen from the street.  (Make sure it is not trash-pickup day, of course.)  Anybody hoping for a picture of this attorney in drunken repose is going to have to put at least a little work into it.

Link: AP via FindLaw.com

City Workers Ordered to Wear Underwear

Thinking about a vacation?  Be sure to consider Brooksville, Florida (pop. 8,000).  In addition to everything else Brooksville has to offer -- three city parks, a nine-hole golf course, and "an excellent library" -- Brooksville can now assure visitors that each and every one of its city employees will be wearing underwear while on duty.

The city council of Brooksville, located about 45 miles north of Tampa, voted recently to overhaul its personnel policies, and as part of that it approved a new dress code.  After consulting with "a number of sources," city officials and attorneys came up with a series of guidelines that they hope will improve the government's "public image."  Some idea of the government's current public image might be gleaned from what they felt it necessary to have the new code deal with:

• underwear is now required;
• employees must use deodorant;
• no halter tops or Spandex at work;
• no skirts worn "below the waistline";
• no other clothing that may be "distracting, offensive or revealing";
• only ears may be visibly pierced; and, perhaps most disturbingly,
• all cuts or wounds must now be covered.

There's your new tourism slogan: "Come to Brooksville: We've Covered Our Wounds!"

Fighting for the great American tradition of going commando at work was the city mayor, Joe Bernardini, who was the only member of the council to vote against underwear.  He expressed concern over how the new code could be enforced, while also getting a headstart on being charged with harassment: "They said you had to wear undergarments," the mayor was quoted as saying, "but who's going to be the judge of that?  Sometimes when it comes to certain people going bra-less, it's obvious.  [Emphasis added.]  But who's staring to see if that person doesn't have underwear on?"  Well, probably everybody will be now, Mr. Mayor.  I would advise "certain people" to show up in a burqa for a while.

This is apparently the second time the Brooksville council has tried to establish a dress code.  The first time was in 1996, after sexual harassment allegations were leveled against the man who was then the city manager.  That code's sponsor, though, appeared to blame the harassee and her attire for the incident, saying: "Men have it hard enough just to do a day's work and not be enticed by a woman who is not dressed properly . . . . If you have to bend over for the bottom file . . . that would entice any man, unless he is not completely a man."  These truly progressive sentiments were expressed by council member Mary Staib, who was unable to get anyone to second her motion at the time.  Now, at last, the men of Brooksville will have some protection from sexual enticement.

Still, you might want to put those files on the top shelf.  Just to be safe.

Link: msnbc.com
Link: St. Petersburg Times
Link: City of Brooksville

City Council Members Settle Legal Dispute Over Right to Parking Space

In March, two members of the Oakland (California) City Council finally resolved an epic and high-stakes legal battle after a fight that lasted three months and spawned a legal opinion by the city attorney.  The burning question: who was entitled to the parking space closest to the front door of City Hall.

Oakland, you see, has no other problems or difficulties of any kind that might require the government's attention.

Councilmembers Jean Quan and Desley Brooks both coveted the "prized parking space" that, until late last year, had been clutched firmly in the steely grip of Councilmember Henry Chang.  When Chang announced his retirement, the two women good-naturedly flipped a coin to determine who would get the space.  Of course they didn't do that.  Are you new here?

Apparently, the women were able to agree that parking rights should be determined by seniority.  Unfortunately, they were not able to agree as to who was more senior.  And so at this point, they good-naturedly flipped a coin.  No, they didn't.  It seems that instead the space was claimed each day by whoever arrived first.  That at least would have the effect of getting them to work earlier, but still it was unsatisfactory.  The sensible next step: flip a coin.  The actual next step: make the city attorney research issues related to parking-space entitlement.

Forced to address the issue of which of two adult women would get dibs on a parking space in order to avoid walking a few extra feet each day, City Attorney John Russo generated a five-page legal memo, dated February 17, 2009.  The question presented: "Is seniority based on the date a Councilmember is elected or the date the Councilmember is sworn into office?"

Carefully noting that he took no position as to "whether the Council has used or should use seniority to assign parking spaces" -- these were "policy questions that the Council is free to decide" -- Russo diligently analyzed the issue.  His ultimate conclusion: it was a tie.  The two women had been elected at the same time and sworn in at the same time, and so neither one had seniority.  The Council, Russo concluded, "is free to base its parking assignments on any criteria that it chooses . . . that do not violate applicable laws."  I assume he was concerned about (1) bribery or (2) trial by combat, although I'm not sure if that last one is illegal in Oakland.

The stalemate continued for another month, until reporter Phil Matier learned about the dispute and wrote about it in the San Francisco Chronicle.  Guess what -- the matter was settled the very next day, with the tossing of the coin that should have been tossed three months before.

The truly sad thing about this story is that one of these two people actually had to win.  As it turned out, it was Brooks.

Link: KPIX-TV (Mar. 10, 2009)

British Manufacturers Offer Pointless Anti-Stab Knives

Popehat reports that a British manufacturer is planning to offer "anti-stab" knives, driven by an increase in knife-related crime over the past few years in that relatively gunless land.  The manufacturer said he had been inspired by a documentary in which doctors advocated banning traditional knives, the kind with a point on the end, in an effort to prevent stabbings.  See "British Medical Experts Say Knives Too Pointy, Call For Ban," Lowering the Bar (May 28, 2005).

You'll Find It More Difficult To Kill With These, My Friend

The new knives are rounded on the end, and are also notched as shown above.  The notch is apparently intended to make it more likely that the knife tip will "snag on clothing and skin" during an attempted stabbing.

For some reason I feel that the "skin-snagging" feature has not been adequately tested.  I also feel that it might hurt more than actually being stabbed.  I am also concerned that the manufacturer does not appear to claim that these will make stabbings impossible, just "almost impossible."  If I'm going to get stabbed, and I'm confident that I am, the last person I want stabbing me is somebody who could only get one of these things but is determined to make it work anyway.

The designer, John Cornock, said the knife will work perfectly well in the kitchen, so long as you are not trying to stab somebody there.  "It can never be a totally safe knife," he said, "but the idea is you can't inflict a fatal wound.  Nobody could just grab one out of the kitchen drawer and kill someone."  Maybe not, but if you feel it necessary to buy a set of these knives in order to kill-proof your home, maybe you should be spending that money on a divorce?

The BBC quoted a doctor at West Middlesex Hospital as saying that the knives were a promising development, and that all products should combine efficiency with the greatest possible degree of safety.

"This is especially true," he said, "of household products which are freely available to the very young and very old, and used by people who may be clumsy, short-tempered, drunk or mentally or physically unwell.  Most people fit into one or more of these categories at some time in their lives."  Hard to argue with that.

Link: Popehat
Link: Times Online (UK)