Lowering the Bar

UPDATE: Joe Francis No Longer Permitted to Represent Himself

As I mentioned yesterday, Joe Francis of "Girls Gone Wild" infamy has been representing himself in a federal civil lawsuit in Florida, a case brought by four women who were underage (one was 13) at the time he interacted with them. It's been a glorious few days for those who observe and comment on stupidity, but it has now come to an end.

Francis at least managed to make it to court on time Tuesday, but still had been threatened with contempt by the end of that day because of his courtroom conduct. It appears he was late again on Wednesday, which did not make Judge Richard Smoak any happier. But our hero was allowed to proceed.

And that was unfortunate for him. According to Wednesday's report, Francis has only been able to cross-examine the plaintiffs because he didn't submit his own witness and evidence lists when he was supposed to. Despite the fact that he was repeatedly told by the judge that his abusive style of cross-examination was likely alienating the jury - which, I'm happy to report, has eight women on it - he kept it up.

"Francis seemed unfamiliar with courtroom procedures," the report says, unnecessarily. "Most of his objections were overruled, and dozens of his comments had to be stricken from the record by the judge," who actually seems to have been relatively patient, considering. But the judge was clearly signaling that his patience was running out. "You have truly been behaving like a four-year-old," Judge Smoak told Francis. And although that's probably an improvement for him, he got no credit for it. "It's going to stop," Smoak said. "This is the final warning." Smoak also said he had never seen anyone act like Francis in 40 years on the bench, and, in a fairly telling point, asked him if he was on any medication.

No, Francis said, instead attributing his behavior to "ADHD" and "excess amounts of coffee."

Having somehow made it through that day, Francis only made it another two hours on Thursday before being held in contempt. Court proceedings started at 8:30 a.m., according to this report, and by 9 a.m. Francis had already had six more comments stricken from the record and five more individual sidebars with Judge Smoak. Finally, the judge had had enough. He held Francis in contempt and fined him $2,500 (payable by 8:30 a.m. tomorrow, so that seems likely to end in a jailing).

Francis later informed the judge that he had decided to stop representing himself, and had retained the services of two local attorneys (something he had repeatedly told the court he was too poor to do). What they will be able to do at this point is hard to say.

The judge has also ruled that Francis is no longer required to personally be in the courtroom during proceedings, which should make everybody a lot happier, except possibly for me. But I guess all good things come to an end. 

 

Thank You, Lord, for Letting Joe Francis Represent Himself at Trial

Hallelujah.

If Joe Francis were a lawyer, he'd be at least the sixth lawyer to represent him. Since he's not a lawyer, and isn't smart enough to know he shouldn't be representing himself under any circumstances, he is doing that.

According to the Hollywood Reporter's law blog, things are going great, at least according to a Joe Francis press release. As far as the truth goes, though, it may not be going that well.

"Tuesday morning started off better than Monday," a local report noted, "as Joe Francis showed up on time for day two of his trial." His first move was to ask for a recess, but then he actually had to do some lawyer stuff when the recess was denied. While Francis claimed he had scored points while cross-examining the women who claim he harassed them, in fact it appears that the judge had to coach him through pretty much everything, and that his performance was so dismal that the judge said a repeat might lead to a default judgment.

"I am not struggling at all," said the struggling Francis. "The only way I am struggling is because the deck is stacked against me." So you are struggling. Which is it, Mr. Francis? Were you lying then or are you lying now? Or both times?

Joe Francis then said, apparently with an entirely straight face, that he was "just here to defend my honor."

More to come, almost certainly.

A Brief Research Memo Concerning a Simulated Chicken Head

Question Presented

Did the judge correctly rule that an employee was entitled to workers' compensation because the work-related events she experienced were the "predominant contributing cause of [her emotional] disability"?

The Facts

Mr. Grillo agreed to provide [medical] insurance [only] if the employee would agree to wear the "chicken head." This was part of a costume consisting of a cloth depiction of a chicken that was worn over the head like a mask. The employee . . . was not in on the "joke" that someone had the chicken head in their office and on occasion it was brought out as a prank usually for being on the losing end of a bet. The workers at this office consider themselves to be quite a fun loving group and often socialize with each other after hours. There was a meeting at headquarters that the employee attended on February 27, 2007 with her young daughter. She was shown the chicken head at that time and declined to wear it. The employee was horrified at the possibility of wearing the chicken head and refused.

* * *

In another e-mail, forwarded to the employee that day, Grillo wrote "[n]o head, no payment." The employee became depressed and stopped working.

Brief Answer

Yes.

Citation

Capello v. DTR Advertising, Inc., Board No. 026109-07 (Mass. Dep't of Indus. Accidents Mar. 23, 2011).

Facebook: Bad News for Bigamists

Richard Leon Barton Jr., who I knew right away was in trouble because the report used all three of his names, was charged with polygamy recently after his first wife learned he had another one and reported him to the police. She had become suspicious after he "de-friended" her on Facebook - de-friending a significant other is rarely going to turn out well - and a few months later a Facebook search turned up pictures of him getting married to somebody else. At that point, she said, "I put two and two together."

Barton, at least, had not posted these pictures himself, which makes him one IQ point smarter than the Australian guy who personally sent his second-wedding photos to his local newspaper, despite the fact that his current wife lived in the same town. See "Wedding Photo Tips for Bigamists," Lowering the Bar (May 4, 2010). Barton's problem was that he had no way to keep other people from posting his second-wedding photos (other than not having a second wedding in the first place), given that he probably didn't want to tell them he was committing a felony; and Facebook then made it easy for Wife No. 1 to find those photos even though she lived somewhere else. As the prior story shows, old media can cause problems for bigamists, too, but new media can spill the beans much more quickly. 

Barton and his first wife had discussed getting a divorce (partly because he had been in prison for years), but he never got around to taking care of that. Police speculated at first that Barton couldn't afford a divorce, but that seems to be one of the few excuses he hasn't made. "I let love get in the way," he said last week, in what I assume was both a bid for sympathy and something he had just heard on his car radio. ("I needed more wind beneath my wings," he might have said had he been tuned to a different station.)

Barton was charged with "polygamy" although he seems to have had just the two wives, which in most states would be called "bigamy." Michigan's anti-multiple-spouse law makes it "polygamy" to have two or more spouses, which is grammatically wrong but avoids the need to have separate statutes for bigamy and polygamy, I suppose. Mich. Comp. Laws § 750.439. I considered whether Michigan might be taking the view that as soon as someone marries a second spouse, there are three "spouses" in the mix and so "poly" is accurate, but that doesn't work. What you've got there, normally, is two monogamists with a bigamist in the middle, not three polygamists. Michigan can call the offense whatever it wants, I guess, but why not make it accurate?

They need to amend this thing anyway, frankly. The law provides that a person is not guilty of polygamy if they had "good reason" to believe the prior spouse to be dead, and also makes an exception for "any person whose husband or wife shall have voluntarily remained beyond the sea, or shall have voluntarily withdrawn from the other and remained absent for the space of five years" if the person doesn't know whether the spouse is still living. This is one of those situations where commas matter, because as written I think you could get remarried anytime your spouse doesn't come back immediately from a trip overseas - the five-year rule doesn't apply.

I am not advising you to test that interpretation, just noting that's what it says.

Teeth Are Not "Dangerous Weapons," Says Oregon Court

Oregon has joined those jurisdictions holding that teeth are not "dangerous weapons" for purposes of a statute that enhances punishment for crimes in which they are employed. The defendant had employed said teeth Mike-Tyson-style to detach part of his neighbor's earlobe during a 2008 fight. (In a surprise twist, alcohol was involved.) The Oregon Court of Appeals upheld his conviction for second-degree assault, but held the use of teeth did not make this a first-degree assault. Oregon v. Kuperus, No. A139824 (Or. App. Mar. 23, 2011).

Under state law, a "dangerous weapon" is "[a]ny weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury." Or. Rev. Stat. § 161.015. You could argue that teeth are "instruments," maybe, but as the court held, the better interpretation is that the list is meant to refer to items that are "external to the human body." Without that restriction, there would be no reason to have multiple degrees of assault because almost anything could be considered a "dangerous weapon." See also People v. Owusu, 712 N.E.2d 1228 (N.Y. 1999) (holding under a similar statute that teeth were not "dangerous implements," noting that "Mr. Owusu's teeth came with him").

For similar reasons, the Oregon court noted, it had held in 1975 that bare hands were not "dangerous weapons." State v. Weir, 540 P.2d 394 (1975). Pretty much every assault involves the use of a hand in one way or another, the court held then, so there would not have been much point in creating (for example) third-degree assault because that law would never be used. The only thing really remarkable about this is that the state insisted on arguing that bare hands are "weapons." Unless the defendant is Chuck Norris, this is a pretty ridiculous argument.

And since it's ridiculous, California also tried it. See "Ninth Circuit Grapples With Whether Bare Hands Are Weapons," Lowering the Bar (Mar. 23, 2010). I found it remarkable that it took that court nine pages to find that assaulting someone with no weapon couldn't be considered assault with a dangerous weapon, but I guess what's more remarkable is that he was convicted of that in the first place. As in the Oregon case, though, the Ninth Circuit held that there has to be some distinction between simple assault and assault with a dangerous weapon. "We find it difficult to see how someone could be accused of assault without [having used] a body part in some way," the court noted, and it does seem hard to argue with that.

Woman Sues Adidas After Fall She Blames on Sticky Shoes

Please be advised that certain new shoes may pose a tripping hazard, according to a lawsuit filed Tuesday against Adidas. The Chicago Sun-Times reports (via the ABA Journal) that a woman is alleging she was injured in 2010 because her new Adidas Midiru shoes were designed and made of materials "that had a tendency to stick together when they came into contact with each other."

According to Adidas, the Midiru has a "full grain leather upper" and a "grippy rubber outsole." I'm no shoe expert, but I think many shoes are made of these two substances, and yet involuntary pavement diving of the kind alleged here seems to be rare. An unscientific study that I just did in my own mind suggests that such falls correlate more closely with alcohol consumption than shoe composition, but my sample is pretty limited. I found no online reviews of this product that mentioned any stickiness problems. They were, however, described inter alia as being "super cute" and as having little sparkles in the stripes, so they may be dangerously distracting. But this plaintiff appears to be alleging a manufacturing and/or design defect, not some sort of attractive nuisance.

If you have experienced any stickiness issues with the Midiru or similar products, please let me know so that I can inform my readers. If you have witnessed anyone else experiencing a stickiness issue with the Midiru or similar products, please send me the video so that I can entertain my readers. Finally, until the potential risks can be fully ascertained, you may wish to walk in such a way that your feet do not come into contact with each other during the walking process.

Good luck out there.

Please, Lord, Let Joe Francis Represent Himself at Trial

If I remember correctly, Joe Francis, the "brains" behind "Girls Gone Wild" and sleazemaster extraordinaire, has been mentioned here before. <Google search>

• "Girls Gone Wild" Founder Says Judge Has Gone Wild in Suit Filed by Girls Who Had Previously Gone Wild (Apr. 2007)
• "Girls Gone Wild" Creator, Residing in Hole, Continues to Dig (Apr. 2007)
• Possible Joe Francis Defense Arguments: Knows Celebrities, Is Just Like Hefner (Aug. 2009)
• Defendant Gone Wild (Aug. 2009)
• Joe Francis Pleads Guilty, Avoids Jail in Tax Case (Sept. 2009)
• Joe Francis, Sentenced to Time Served, Now Free to Sleaze Again (Nov. 2009)

Only six times? Seems like it was more than that. <another search>

• Client 9's Playmate [Ashley Dupre] Sues Over "Girls Gone Wild" Video (Apr. 2008)
• New Video Questions Dupre's Claim (Apr. 2008)
• Assorted Stupidity #2 (June 2010) (noting blog post describing Francis as "verminous")

Okay, I guess he's been mentioned here kind of a lot.

But let's make it an even 10 times, because On Point News reports that the lawsuit filed back in 2007 (see first entry above) by four women who were minors at the time our hero got them on film is about to go to trial. If, that is, Francis doesn't lose by default.

According to the report, Francis has had trouble getting lawyers to represent him, or at least to continue representing him given his various stupid antics (see, e.g., "Defendant Gone Wild," supra) and alleged tendency to not pay legal bills. On March 16, the judge entered a default against Francis's corporate entities because he had not retained counsel for them. An individual default is apparently looming unless Francis can explain why he didn't personally show up for the pretrial conference the day before.

True to form, Francis has told the court it was somebody else's fault.

He claims, first, that he didn't know his former counsel had withdrawn from the case until mid-February, a month after the court granted the motion to withdraw. (This is extremely unlikely.) Since learning this, he says, "I have been earnestly searching for and attempting to retain new counsel." (Have you tried calling the guys who advertise on late-night TV? They might lower their standards to take you.) He also blames his former counsel for not turning over the case file (which I don't think he has to do if Francis hasn't paid his bill [update: other states require this but not Florida, where this is pending]. As plaintiffs' counsel has noted, none of this explains why he personally didn't show up for pretrial, which is what he was supposed to be explaining.

But I'm still going to suggest - okay, beg - that a default not be granted against Francis, because of Paragraph 7 in his declaration:

I fully expect to secure new counsel prior to the jury trial in this action, currently scheduled for March 28, 2011. However, in the event I cannot retain new counsel ... I am fully prepared to proceed pro se.

If he actually does represent himself at trial, I might have to take a sabbatical to cover it because it could be a Sheen-rivaling spectacle.

Follow-Up on the Great "Photocopy" Dispute

As you may recall, last week you were treated to this deposition excerpt in which the parties were wrangling (for pages and pages) over the definition of "photocopy." Over the weekend I got some more details from the lawyer asking the question, and now it seems like he should have gotten an answer.

He says the issue is this: The county recorder charges $28 for two pages (and $4 per page after that) to record and index deeds, mortgages, and so on. It backs up each day's files onto a master CD. The lawyer represents two title companies that need to get those files. For the past decade, that has cost them each $50 per CD, or a little over $1,000 a month. One day, they noticed that the bill had suddenly jumped to over $100,000 a month. This prompted a few questions.

The county had decided to take the position that the law allowed it to charge for every page of every document copied from a master CD. What the law actually says, though, is that it can charge $2 per page "[f]or photocopying a document, other than at the time of recording and indexing ...." Ohio Rev. Code § 317.32(i) (emphasis added). Therefore, the meaning of "photocopy" is an issue in the case because the county is taking the position that copying a file onto a disk is the same as "photocopying a document."

While the other side can (and likely did) object that the meaning of the term is a legal question for the court, that doesn't mean the witness can avoid answering the question of what "photocopying" means to him. Understandably, he probably didn't really want to answer the question because (1) it'd be embarrassing to be on the record saying that copying a file onto a disk is the same as "photocopying a document," and (2) he didn't want to undermine the county's ability to get $2 per page for pushing a button, which is basically a license to print money. Hence ten pages of fighting over what "photocopy" means.

The lawyer told me he never did get an answer to his question, but thinks he made his point.

"Burrito-Triggered Spree" Ends Peacefully After Three-Hour Standoff

A fifty-percent price hike is not something most people would take lying down, and when the price involved is that of an item as revered as Taco Bell's Beefy Crunch Burrito, watch out. What the San Antonio Express-News called a "burrito-triggered spree" may ensue.

Ricardo Jones was so upset when he learned that the seven burritos he ordered at the drive-through window were going to cost $3.50 (plus tax) more than he had expected that he pulled out a pistol and took a shot at the manager. "He pointed a gun at me, and he fired it," the manager said. "I leaned to the side" - what is this, The Matrix? - "and there was a pop but nothing happened." The manager said he then saw Jones park his car, get out, and put another handgun and an assault rifle on its roof. At that point, he decided there was a problem and called the police. When the manager locked the doors, Jones fled.

It turned out that all three of the weapons were "air-powered," not firearms, but nobody knew that for sure at the time. This is why snipers were deployed to deal with a burrito-pricing dispute.

Now might be a good time to run for the border

Responding quickly, San Antonio police spotted Jones's car less than two miles away and two patrol units pulled him over. He then got out of the car with the assault rifle (again, the BB-firing assault rifle) and allegedly pointed it at the officers.

At this point things get a little unclear.

According to the Express-News, police initially reported they had "exchanged fire" with Jones and that he shot out the windshield of one of the police cars. But later, they said they could not be sure whether Jones had actually fired "because his rifle was also a BB gun and they could find no spent BBs." Okay, but that left unsolved the mystery of who shot out the windshield of the police car, if it wasn't Mr. Jones. The report simply states that the windshield-shooter was "unclear," but unless there was a grassy knoll nearby (and the Express-News did print this graphic that makes it look a little like Dealey Plaza) I think we can assume the officers somehow shot out their own windshield. I'm not saying they shouldn't have drawn on somebody pointing what looked like an assault rifle at them, just that their aim was a little off.

Anyway, after the "exchange of fire," Jones got back in his car and drove off to a Rodeway Inn where he was apparently staying. Snipers were deployed, roads blocked off, areas evacuated. "No one needs to get hurt," said a negotiator through a megaphone. Jones remained stubbornly silent, possibly still fuming, certainly still hungry. After three hours, tear gas brought the standoff to an end. Jones was charged with two felony counts of aggravated assault.

The really sad thing is, it was all a big misunderstanding. "They did use to be 99 cents," the Taco Bell manager said, "but that was just a promotion."

Charlie Sheen Not Winning! So Far

The Hollywood Reporter's law blog reports this morning that Charlie Sheen, who as you likely know has filed a $100 million claim against Warner Brothers and the producer of Two and a Half Men, did not win an attempt to pursue that claim in court instead of arbitration.

Apparently, there is an arbitration clause in Sheen's contract that requires disputes to be resolved behind closed doors. The contract is with the studio only, but so far the arbitrator has ruled that the dispute with producer Chuck Lorre will be resolved in the same way unless a court says differently. Surprisingly (or not) it appears that Sheen would prefer as much as possible of the dispute to be resolved in court, where it would be very very public.

The report refers to the battle between the parties as a "fracas," which is generally a sign that it's going to be pretty entertaining.