Lowering the Bar

Judge Won't Continue Trial So Attorney Can Enter Hemingway Look-Alike Contest

You'd think a judge who likes Ernest Hemingway would be sympathetic to a request by a lawyer who looks like Ernest Hemingway. And maybe he was, but he still refused to grant the motion.

Hemingway

Florida attorney Frank Louderback, who will be representing a criminal defendant in a case set to begin on July 9, asked U.S. District Judge Steven Merryday to suspend trial briefly on July 20. The reason: Louderback had plans to compete in the annual Ernest Hemingway look-alike contest at Sloppy Joe's in Key West. (I couldn't find any pictures of Louderback online, but he presumably looks something like this.) The winner is declared on July 21. Louderback pointed out that he had also been required to pay non-refundable deposits on hotel rooms, and so would be prejudiced by a denial of his request for that reason as well.

Judge Merryday seemed to believe that a murder trial should take precedence.

Louderback is representing a man accused of involvement in a murder-for-hire scheme. His client is accused of hiring someone to kill a man in 2007 so that he could marry the victim's widow. The briefly happy couple and the hitman are all scheduled to stand trial on July 9.

In denying the request, the judge invoked Hemingway himself: "Between a murder-for-hire trial and an annual look-alike contest, surely Hemingway, a perfervid admirer of 'grace under pressure,' would choose the trial.… Perhaps a lawyer who evokes Hemingway can resist relaxing frolic in favor of solemn duty." I don't think Hemingway would have used a word like "perfervid," but otherwise I have no objection to this. Above the Law has the order itself.

Hemingway, of course, has appeared in these pages before. Or at least his cats have. See "Legal Battle Rages Over Future of Hemingway's Mutant Cats," Lowering the Bar (July 19, 2007) and "Battle Over Cat Jurisdiction Enters Fifth Year," Lowering the Bar (Nov. 20, 2007).

Belly Dancers Fail to Sway Fifth Vote on Health Care

Despite the best efforts of the "West Virginia Belly Dancers for Single-Payer," who reportedly gyrated before the Supreme Court for approximately three hours this morning, a majority of justices voted to uphold the Affordable Care Act/Obamacare (whatever you want to call it).

The belly dancers, whose trip to D.C. presumably left West Virginia dangerously short of such trained professionals, are in favor of universal coverage but oppose the mandate because they'd rather have a single-payer system. Their strategy did not succeed, of course, and may even have driven Justice Roberts into the opposing camp.

I have not actually read the opinion yet, but then neither have you, possibly because the slip opinion is 193 pages long. Luckily, there is a syllabus, from which we can learn that the Court held (1) the individual mandate is not within Congress's power under the Commerce Clause or the Necessary and Proper Clause; but (2) a statute should not be held unconstitutional unless there is no reasonable construction that would be constitutional; and (3) it is not unreasonable to construe the mandate provisions as a "tax" on people who don't buy insurance, and viewed that way the mandate is within Congress's power to tax. So, mandate upheld.

To learn all that, though, you would have to read all of the syllabus, or at least both pages describing the mandate holding. If you stopped at the first page, you would only have seen part (1) above and so would not know the mandate had been upheld on an alternative ground. Learning that would have required an actual turning of the page, something that both CNN and Fox News were in too big of a hurry to do (right) before rushing to declare the result.

Opponents of the mandate also rushed to Twitter without turning that second page:

I guess you could say the story was "still developing" at that time, it just developed in a way directly opposite to the way he thought it had already developed.

Forty Years Later, John Dean Still Can't Escape Watergate

Although this time, it was because he got stuck in the stairwell.

This month is the 40th anniversary of the break-in at the Watergate Office Complex that ultimately led to the resignation of Richard Nixon. On June 11, the Washington Post sponsored an event that brought together a number of people who were involved in the events of that time, ranging from former White House Counsel John Dean and co-felon Egil Krogh to Bob Woodward, Carl Bernstein, and Ben Bradlee, former editor of the Washington Post. The event was held at the Watergate itself.

It was a little surreal to see John Dean on a panel with one of the special prosecutors, among others, but he seemed to be having a grand time. It is true that many years have passed, and Dean has done a pretty good job rehabilitating himself, but still. 

Picture: John Dean

Anyway, Dean, who writes a column for Justia.com, wrote a few days later about the event and his feelings on visiting the Watergate, which it turns out he had never visited before. When he had some time to kill, he went down to the sixth-floor stairwell, which was where the burglars had entered. He was curious, he said, why they had turned off their walkie-talkies and other devices and so did not know police had been called. Walking down the "cavernous stairs," he said, he realized that any sound in the stairwell echoes all over the place, so that he understood why the burglars had turned off the devices.

Shortly thereafter, he also understood why they had put tape over the door latch: the stairwell doors lock behind you.

To my surprise, the door was locked. So were the corresponding doors on the 5th floor, 7th floor, 8th floor, and 9th floor—and as I made my way back up I had an awful thought. I experienced a flash of panic, and thought to myself, “I’m locked in the stairwell of the Watergate office complex. The Watergate conspiracy nutcases who have tried to connect me to the bungled break-in forty years ago are going to have a field day if I have to use my cell phone to get out of here.” But fortunately, the door on the 11th floor, through which I’d entered, was still ajar. Thus, I returned from my excursion with my pictures, and unnoticed. My excursion had proven valuable, as I now have an even better understanding of the foolish risk the burglars had taken by breaking into the DNC from that stairwell, which amplifies even the slightest noise, something the other visitors had missed.

I can only wish that Dean had actually been forced to use his cell phone to escape, but I'd at least like to thank him for actually publishing this anecdote. Maybe one day the Watergate will no longer haunt John Dean, but so far that day has not yet come.

TSA Manages to Reach a New Low

Every time you think the TSA has hit rock-bottom, it manages to find yet another dung-filled sub-basement to wallow in. From the Orlando Sentinel:

John Gross remembers frantically trying to scoop up his grandfather's ashes and wondering why the Orlando TSA agent who spilled them was laughing.

* * *

[H]e said a female Transportation Security Administration agent wearing blue latex gloves opened his bag, twisted open the jar labeled, "Human Remains," and accidentally spilled at least a quarter of its contents.

"It thought it was routine at first and then I thought, 'What the hell was she doing this for?'" Gross said Tuesday in a telephone interview with the Orlando Sentinel. "I got upset. She was laughing right at me — not a chuckle — she was laughing."

* * *

Dropping to the floor after the spill, Gross said he reached for all the bigger pieces of remains but there was no way to collect everything without a dustpan and broom.

The TSA agent kept laughing without offering help, he said.

TSA policy expressly states that containers of cremated remains will be X-rayed but not opened under any circumstances. If the container can't be X-rayed (in this case it was just a glass jar, so that wouldn't have been an issue), then it won't be allowed through, but "under no circumstances" will they open it. Unless they do, apparently.

So, violated TSA policy, check. Unable to open glass jar without spilling contents, check. Mocked traumatized traveler instead of helping or apologizing, check. Pretty much standard procedure, then.

Carreon Complaint Amended, Still Odd

Internet darling Charles Carreon has already amended the complaint he filed just last week, and while it's not unheard of to file an amended complaint that quickly, it does tend to encourage the belief that maybe the initial filing was not thought out all that well. The amended complaint (PDF here, courtesy of Popehat) has more words in it but I'm not sure the extra words help.

The most immediately noticeable change is that Carreon has dragged the California Attorney General into the mess, naming Kamala Harris as "a person to be joined if feasible under [Fed.] R. Civ. P. 19." Basically, Rule 19 provides that in some circumstances, a case can't go forward unless everyone who may have a meaningful interest in the case is joined as a party. Here, Carreon seems to have joined the AG because, apparently now having read the statute he originally sued under, he found a section that says a California court does not have jurisdiction to modify or terminate a charitable trust unless the Attorney General is a party. (Not sure why he is describing her as "a person to be joined if feasible" when he's already joined her, but that is only one of many mysteries here.)

The causes of action are the same as before; Carreon has just added more details, mostly about the nasty things that currently unknown people have allegedly done to him in retaliation for his threat to sue The Oatmeal. As I've said before, if this is happening, it shouldn't be. Criticizing him is fine (I'm certainly doing it), but harassing him isn't. Which is not to say that there's no humor in some of it: in addition to nastier things, Carreon alleges that somebody has been ordering Domino's Pizza deliveries to his house, and that he's been signed up for Club Nintendo and the Olive Garden Newsletter, and perhaps most dastardly at all, somebody allegedly created a profile for him at Mormon.org:

92. Plaintiff has received signup emails from all of the above companies, which are a nuisance. Plaintiff has also received a followup phone call from the Mormons, offering to personally deliver him a copy of the Book of Mormon.

Have a heart, people.

I still don't see any facts alleged that tie any of that stuff to Matthew Inman at The Oatmeal, and Inman too has asked for people not to do it. As for the claim against Inman and Indiegogo, I don't see that getting any more credible. For one thing, Carreon now claims at one point that Inman's "vile, despicable insinuations" aren't entitled to constitutional protection at all because they are "fighting words"—they're not—and because they are "commercial speech"—which they almost certainly aren't, and if they were they would still be entitled to First Amendment protection. So he's just flat wrong there. But the basic premise of this cause of action really appears to be that Carreon is mad that he was insulted, and he thinks this makes the alleged charitable motive legally invalid:

43. Inman's insult is much more than a profane witticism. It is a frank declaration of his wrongful, uncharitable motive. It is a non-sequitur that underscores his intent to create a toxic hybrid of malicious intent and "philanthropy." There is no such thing as a "philanthropic, kind-spirited way" to say "F*ck off." [He included the asterisk, although the original un-asterisked insult appears in big red letters a few lines above.] There is only one way to say it, and one purpose for saying it, and that purpose cannot be lawfully associated with tax-exempt charitable solicitation in the State of California.

But so far as I can tell, nothing Carreon cites supports that last statement. More importantly, even if it were true, he would not have standing to enforce such a rule just because he contributed to the campaign in an effort to give himself standing. His addition of the AG I think only highlights that.

Anyway, more to come. Possibly next week if and when a third amended complaint is filed.

Guy Impersonating Police Officer Pulls Over Guy Who Isn't

This isn't the first time this has happened by any means, but it never really gets old.

You're outta your jurisdiction, son

MSNBC reports that a 29-year-old man driving a white pickup truck made an unauthorized traffic stop earlier last week in Upper Marlboro, Maryland. He told the driver he was a military police officer from Louisiana and that he had stopped the driver for speeding. The driver responded that the alleged MP was "out of his jurisdiction" and also that having emergency lights on his truck was against the law in Maryland.

The driver knew this partly because unlike the guy who stopped him, he actually was a police officer. (He was off-duty and driving his own car, although that makes the stop only slightly less baffling.)

The report then says simply that "the suspect left the area," probably rather quickly, and that the officer called for backup and followed the suspect until Prince George's County police arrived. They charged the suspect with impersonating a police officer, and I am charging him with doing it poorly.

Previous impersonations mentioned here have included this failed attempt to impersonate an air marshal on a plane occupied by real ones, and this remarkably successful attempt to impersonate a Chicago police officer, which fooled real ones for several hours although the culprit was only 14 years old. (He was big for his age, they said.)

NSA: Can't Tell You Who We Spy On; That Would Violate Their Privacy

Dear Senator Wyden and Senator Udall:

Thank you for your 4 May 2012 letter requesting that my office and the National Security Agency Inspector General determine the feasibility of estimating "how many people inside the United States have had their communications collected or reviewed under the authorities granted by section 702 of the [FISA Amendments Act of 2008].…

The NSA IG provided a classified response on 6 June 2012. I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office.… He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.

I concur with their assessment that we should, in essence, just tell you to fuck off.

        Sincerely,

        I. Charles McCullough, III
        Inspector General of the Intelligence Community

Okay, I added that last sentence there, just so there would be at least one honest statement in the letter. Even if I did have to make it up.

The FISA Amendments Act of 2008 was supposed to limit the government's ability to eavesdrop on U.S. citizens during what are supposed to be terror investigations, but the question being raised now is whether the Section 702 exception is being abused. Basically, it allows the government to intercept a communication as long as it provides the FISA court with an "assurance" it's "targeting" someone believed to be outside the United States, even if the person the target is talking to is inside the United States. Also, the government is not required to identify the person it's targeting. So, is that a real limitation, or a loophole big enough to drive a bunch of suspiciously unmarked white vans through?

The answer depends in part on how often the exception's being used. The letter excerpted above was in response to a request that the NSA figure out whether it could estimate how many U.S. persons it has listened to while supposedly targeting someone outside the United States. Not to stop doing it, or even to provide the number, just to determine whether it'd be feasible to estimate the number. But sadly, it appears to be "beyond the capacity" of the NSA—almost certainly the biggest, most sophisticated and powerful electronic-intelligence agency in the world—to even take a shot at estimating this. So sorry. Wish we could help.

Hey, here's an idea—I'm guessing that you do know how many people you've actually targeted, or at least it seems like you should. (If you don't write that stuff down, you might be able to estimate it by counting the number of times you've gone over to the FISA court to give it one of these "assurances." Check your cab receipts, maybe.) Once you have that number, multiply it by one, the minimum number of people the target was talking to. That would result in a serious underestimate, but it'd be an estimate. Is that not within your capacity? I have a calculator on my iPhone if all your supercomputers are down at the moment.

Just to make sure the senators knew they were being told to go screw themselves, they tossed in the privacy claim at the end. You can't count the people whose privacy you're violating because that would violate their privacy. Really?

Hence my addition of the final sentence above. I'm pretty sure that was part of the first draft anyway.

(via Wired magazine)

Carreon v. The Oatmeal: Legal Ethics, or Lack Thereof?

There has understandably been enormous interest in Charles Carreon's crusade against (1) The Oatmeal, (2) some charities, and (3) reality. In fact, not since Janine Sugawara claimed she was bamboozled by a Crunch Berries box (see "Reasonable Consumer Would Know Crunch Berries Are Not Real, Judge Rules" (June 2, 2009)) has there been so much interest in a lawsuit. Or at least the kind of lawsuit that is likely to end up here.

Ken at Popehat wrote this post the other day analyzing the complaint and suggesting that Carreon's claims are at the very least dubious and hypocritical (Ken went with the legal term, "full of shit"), and as usual his post is dead-on. Since he's done that, I thought I'd discuss the related but different topic of legal ethics.

First, to some of you "legal ethics" may seem like an oxymoron, but it's not, really. The legal profession is governed by ethics rules in addition to the generally applicable legal duties that apply to everyone, other than the members of whatever administration is currently in power, of course. Every state has its own rules, although by now they almost all have some version of the ABA's Model Rules, which aren't binding but are influential. You can find the Model Rules here, or here (PDF) if you happen to need the Russian translation (I guess you never know).

These rules cover topics including (and this may also surprise some) competence, fees, conflicts of interest, and what a lawyer can and can't say in certain circumstances. These rules can be vague and some are controversial, but many are just common sense. Violating them can result in a "reprimand" (unpleasant but not career-ending), a suspension of the license to practice law, or even disbarment. Committing an actual crime is often (though not always) also a violation of the ethical rules, but it is possible to violate the rules without violating any laws.

So let's consider Carreon v. Inman. As Ken has noted, because Carreon filed in federal court, Rule 11 is looming over his case. This is not strictly an ethics rule, but it's a rule of civil procedure that requires lawyers to certify that papers presented to a court are supported by the law and facts and aren't for an improper purpose like harassment. Violating Rule 11 can lead to a fine or an order to pay the other side's fees and costs, but doesn't directly threaten a license. The court could refer the matter to the state bar, though.

Attorneys practicing in federal court are subject to the ethics rules of the state where the court is located, and also the rules of the state(s) in which they are licensed. That can get complicated, but isn't here. Carreon is licensed in California, and according to the California Bar's website (this is all based on publicly available info), he is also licensed in Oregon, but his status there is "inactive." He lives in Arizona, but doesn't appear to be licensed there. So California's rules will apply.

It is worth noting, and the California Bar already does note it, that Carreon's license was suspended in 2006 by both California and Oregon for practicing law in Canada without authorization. He was representing a U.S. company in Vancouver, but never took the bar there or applied for a "foreign lawyer" permit. More unfortunate was his decision to use some of the money from a settlement trust fund to pay a personal expense, a "money judgment obtained for a residential lease he had signed" in connection with the job. He may have legitimately thought he was entitled to do that, but the company disputed it, and if there's one thing that will almost always get you in trouble, it's messing with (even disputed) client funds. Anyway, the suspension lasted 60 days, and Carreon has been able to practice law here ever since. That's too bad for a number of reasons, partly because California's current rules are more limited than elsewhere and because it is still in the process of converting its rules to the Model Rule format, which is a pain in the ass for me here.

In this case, Carreon doesn't really have a client, since he's representing himself. So it would appear that many rules intended to protect clients, like conflict-of-interest rules and, let's say, rules about not messing with (even disputed) client funds, would not apply here. (If you're thinking that self-representation could cause problems under Rule 3-120 (Model Rule 1.8(j)) "Sexual Relations With Client," think again, smarty—the definition of "sexual relations" requires that it involve "another person." They thought of that, apparently.)

Carreon does have a client elsewhere, though—FunnyJunk.com—and he may have violated a rule in the course of that representation. Explaining in an interview why he never filed the lawsuit he originally threatened Inman with, Carreon said he had been "told" all of Inman's comics were removed from the FunnyJunk website but that turned out not to be true. Well, presumably he was told that by his client, and if so then he was publicly disclosing confidential and privileged information (a potential admission of infringement, in fact). Unless the client consented for some reason (or Carreon and FunnyJunk are really the same entity), that would violate Rule 3-100 (MR 1.6).

Then there's Rule 3-110 (MR 1.1), which requires a lawyer to be "competent." In practice, though, a lawyer's got to be very bad, or repeatedly not very good, in order to violate this rule; if that's the case, he or she has probably violated other, more specific rules and will be disciplined for that instead.

Such as, here, Rule 3-200 (MR 3.1), which prohibits a lawyer from bringing cases or making arguments that are "frivolous" (meaning "bogus" or "unfounded," not "full of fun and frivolity"). As Ken's post suggests, there are already several reasons to think that this case is frivolous, or even that the complaint states some facts that aren't true. One questionable case or three is usually not enough to get sanctioned, as the Crunch Berries saga demonstrates, but it could be different if the BS gets especially deep here, as it very well may.

Oh, what about the possible lying? Well … California doesn't exactly have a rule against that, at least generally speaking. You can't lie in advertising (Rule 1-400) or to a court (Rule 5-200), but at the moment there are no equivalents to the more general provisions in Model Rule 4.1 (no lying to third parties) or 8.4(c) (no being dishonest in general). That doesn't make it okay to lie, though. As the committee considering the new rules has said, there are other very good (and binding) reasons not to do that, so nobody should rely on the lack of a general no-lying rule. (It has recommended adopting 8.4 anyway.)

Ultimately, dumb as the lawsuit is, so far Carreon probably has not violated any of California's current ethics rules, with the possible exception of 3-200 if the complaint turns out to be frivolous or false. This is not as crazy as it may seem, because the rules (California's, at least) are mostly aimed at protecting clients, and no clients appear to have been harmed in the making of Carreon's saga. So far. Which is not to say that there won't be repercussions, since Rule 11 and the anti-SLAPP statute could end up having real financial consequences here. But California has not yet adopted some of the broader ethical rules that could have caused Carreon more problems.

Why it has not done that, but has taken the time to debate whether the words "another person" should be added to the no-sex rule, is a topic for another day.

People Who Really Need to Stop Talking: Joe Amendola

I guess it'd be more accurate to say I just wish Gloria Allred would stop talking, unless what she's saying involves something like an unnecessary crusade against cannibalism. But Joe Amendola really needs to stop talking.

I mentioned his two previous gaffes in the Jerry Sandusky sex-abuse case just the other day. So, today, this:

Reporter:    "Is Jerry going to testify?"

Amendola:  "Stay tuned - I told you it was like a soap opera, you have to wait."

Reporter:    "Days of Our Lives?"

Amendola:  "Actually, it could be All My Children."

The International Business Times followed that with the sentence: "That comment is widely being criticized as inappropriate."

People Who Need to Stop Talking: Gloria Allred

Exhibit A: my client's face not being eaten. (Photo: Getty Images)

Some have accused celebrity defense lawyer (and/or celebrity-defense lawyer) Gloria Allred of being a publicity hound. You be the judge.

The Miami Herald reported on June 6 that Allred visited Florida to hold a press conference with her newest client, Yovonka Bryant. Bryant had been the girlfriend of now-deceased Miami face-eater Rudy Eugene, but no one to my knowledge had suggested Bryant might in any way be responsible, let alone that she would need representation. Still, Allred appeared, and each of the following sentences came out of her mouth:

She [Bryant] was not and is not a suspect in this matter.

She had no warning whatsoever that Mr. Eugene would have ever engaged in cannibalism. [See Exhibit A.]

Had she had any indication that Mr. Eugene could or would engage in an act of cannibalism she would never have allowed him around her three children.

Yovonka and I are very concerned about the issue of cannibalism and the number of cases that are being reported in other states and countries, such as Alabama, Canada, Maryland, Japan and Sweden.

It is very important that the social taboo and stigma that have long been attached to this subject continues and that society condemns cannibalism, rather than trivializing it or glamorizing it.

For the record, I am opposed to unnecessary cannibalism and do not mean to glamorize it by means of this post.

Credit to Fred Grimm of the Herald for his response to another of Allred's gems: "[C]annibalism is a serious issue and is very dangerous to the health and the well-being of the cannibal and the victim." Grimm: "Not necessarily in that order."

(via Overlawyered)