Lowering the Bar

TIP: Hard to Argue Ineffective Assistance of Counsel If You Represented Yourself

I guess it might literally be hard to argue this, if you aren't good at making arguments. But I really meant that it's hard to argue it successfully.

According to the Memphis Commercial Appeal, which is what they call their newspaper there, I don't make these names up, a defendant who was convicted last November of twelve felonies argued this week that he should get a new trial because his lawyer was ineffective. This is despite the fact that Christopher Clark had insisted on representing himself.

At first, anyway. On day two he said he wanted his court-appointed attorney to represent him instead, but then at some point "became disruptive" and was removed. After he ended up 0-12 on the felonies (three carjackings, weapons charges, assaulting an officer, and I guess seven others), he moved for a new trial—again representing himself—arguing that he had not been competent to represent himself back when he was doing that the first time. The judge has not yet ruled, and I can barely stand the suspense, but this was in the news today following the prosecution's response to the new-trial motion.

According to the report, the prosecution conceded that Clark has a "mental disease" (which wasn't identified), but argued that it did not prevent him from distinguishing right from wrong or understanding the legal proceedings against him. The brief noted that the judge had repeatedly tried to discourage Clark from representing himself, without success, and argued that he should not get "a second bite at the apple" just because he wouldn't take that good advice. He most likely will not get that bite.

Previously in unsuccessful self-representation tactics: "Inmate Sues Himself for Violating His Civil Rights" (Jan. 29, 2012); "Man Who Stabbed His First Two Lawyers With a Pencil Stabs Another Lawyer With a Pencil" (Nov. 2, 2011); and "Poorly Faked Heart Attack Fails to Result in Mistrial" (July 16, 2008).

Pencils Down! Bar License Denied for Writing After Time Was Called

Those of you taking the February bar exam this week (including those suffering through it in Missouri after two feet of snow and a power outage) might want to take note. As is usually the case, the coverup was considered worse than the actual crime, but it remains true that a woman who took the Ohio bar exam last year will have to reapply because she kept writing after time expired.

This is despite the fact that she passed the test even after being given a zero on the most important question as a penalty.

As a preview of the camaraderie that is rampant amongst members of the bar nowadays, the woman's heinous transgression was reported by another test taker, who claimed that she had continued to write for "up to 30 seconds" after time was called on one set of questions, and then for "45 to 60 seconds" on two other sets. The person sitting right next to her, though, told the examiners that he had seen her writing for "maybe a second or two" past the deadline on the first day, and a little longer on the second, "long enough to get at least two lines of writing on paper." My speed-scribbling skills have atrophied since I took the bar, but I think I could have scrawled out two lines in 10-15 seconds. So the evidence was mixed.

After hearing this testimony—yes, an evidentiary hearing on the issue of whether she wrote after time was called—the examiners concluded that she had violated the rules, but had not intended to do so. They threw out one of her four essay answers to punish her for the negligent sentence-finishing. But she still passed.

But then the Character and Fitness board got involved, and this is where the coverup, such as it was, became an issue. The board was concerned that the woman had first "adamantly denied" the excessive writing, and accused her accusers of lying. She was also hostile to the idea of an evidentiary hearing. She did show up, though, and on direct she stuck to her guns. But on cross, according to the opinion, "she began to waiver [sic]," saying that while she didn't remember doing it "I would say that I guess it is possible." The board seems to have stopped short of accusing her of lying, suggesting that precisely because she was "not the type of person to cheat" it was possible that "she cannot allow herself to remember" that she did. It recommended denying her application.

The Ohio Supreme Court agreed the woman had not met her burden to show by "clear and convincing evidence" that she was fit to practice law. It did not get into detail, but rather just listed the relevant standards and agreed with the board. It did say that she could reapply the next time around (this month, actually), and that because she had in fact passed the bar exam despite the penalty, she would not have to take it again. Hopefully she hasn't done anything else she might have done for less than a minute but can't remember later.

The evidence here seems pretty weak, and under the circumstances it may be completely understandable why she was "hostile" at first. Throwing out one of the essays seems like more than enough punishment for this. Not fit to practice law? Have you seen some of the people who are out there practicing law? Orly Taitz has a license, for God's sake. (Granted, that's California's fault.)

Having said that, when they tell you to stop writing, stop. The rest of that sentence won't make any difference.

Penalty for BlackBerry Use in Conclave Really Could Be Excommunication

Turns out that my speculation earlier about what changes Pope-Until-Friday Benedict XVI might make to the rules governing conclaves was a little behind the times, since he apparently has (very recently) already released an Apostolic Letter describing those changes.

Looking at this translation of the letter, I was literally astounded to see that two of my ten guesses were right.

I expected to get #1 right, because I had read somewhere that the Pope was going to allow the conclave to be moved up so that there might be a new Pope by Holy Week. Sometimes it seems funnier to start lists like that with something real and then escalate. But the astounding part is that I also got #7 more or less right: "Anyone caught checking a BlackBerry during the conclave will be excommunicated."

I was only thinking of the irritation caused by people who insist on checking their messages while you're supposed to be having an important meeting about legal strategy or scheduling or electing the next Pope or whatever. And the Holy Father probably does hate that, but his motivation here was the secrecy of the conclave. This may not apply to cardinals, but those assisting with the conclave must take the following oath: 

“I ... promise and swear that, unless I should receive a special faculty given expressly by the newly-elected Pontiff or by his successors, I will observe absolute and perpetual secrecy with all who are not part of the College of Cardinal electors concerning all matters directly or indirectly related to the ballots cast and their scrutiny for the election of the Supreme Pontiff.”

“I likewise promise and swear to refrain from using any audio or video equipment capable of recording anything which takes place during the period of the election within Vatican City, and in particular anything which in any way, directly or indirectly, is related to the process of the election itself.”

“I declare that I take this oath fully aware that an infraction thereof will make me subject to the penalty of excommunication 'latae sententiae', which is reserved to the Apostolic See."

“So help me God and these Holy Gospels, which I touch with my hand.”

Emphasis added.

So at least if your BlackBerry (or iPhone, or whatever) is a model that has a camera, I'd strongly suggest checking it at the door.

What Changes Will the Pope Make to the Conclave Rules?

@reuters, 20 Feb 2013: Pope may make changes to church law on rules governing conclave that will elect successor

Here's what I'm hearing from my Vatican sources:

1. Conclave can start early because of upcoming Holy Week
2. Cardinals located overseas can now participate via Skype
3. PIzza toppings limited to those available during reign of Gregory X
4. To prevent deadlock, number of permitted toppings reduced by one per week of conclave
5. Votes must be cast in Sistine Chapel; all other meetings in Conference Room B at the Radisson
6. No Spaniards
7. Anyone caught checking a BlackBerry during the conclave will be excommunicated
8. Taller cardinals can now upgrade to seats with extra legroom
9. To maximize youth appeal, instead of white smoke, new Pope to be signaled by playing of "Harlem Shake"
10. Conclave no longer clothing-optional

No Damages for Embarrassment of Owning Three-Legged Dog

Hard cases make bad law, as the saying goes, but sometimes they are also stupid.

Brown v. Swindell, a 1967 case out of Louisiana, is one of those cases where all the parties deserve some criticism, though the real creeps are the defendant and his wife.

The record reveals that on the morning of June 15, 1965, at approximately 2:00 A.M., the defendant's wife was awakened by the barking of a dog. She opened the front door and noticed the plaintiff's small dog on her front lawn, which she endeavored to "shoo away". She then laboriously testified that the animal bared his teeth and moved in such a menacing manner so as to indicate that he might attack her. Mrs. Swindell then called her husband, who had been sleeping, and he immediately came to her assistance armed with a pistol, placed himself in front of her, and then shot the dog [twice].

The record showed that these people never left their doorway and the dog never left the front lawn, so the claim of self-defense seems to have been total bullshit (I assume "laboriously testified" is a more polite way to say the wife was full of it).

The dog—who should not have been barking at 2:00 A.M. but hardly deserved two bullets for it—survived but lost one of its hind legs. Its owner then sued the defendant for $403, "representing a veterinarian's fee and damages which he asserts were incurred as a result of the unjustified shooting ...." The vet fee was $96. The remainder of the claim was for emotional distress, which is what we are interested in here.

Traditionally, emotional-distress claims have not been allowed for pet injuries, because pets are considered property for legal purposes. Most pet owners would consider pets closer to family members than property, but courts are still split as to whether it is good policy to allow emotional-distress claims in this context. For example, last summer the New Jersey Supreme Court said no, but not long after that the California Court of Appeal said yes, but only if the defendant injured the pet intentionally.

But it turns out that Louisiana is one of the states that does allow such claims, and in fact that was the law in 1967, too. So why didn't Mr. Brown get his emotional-distress damages? It looks like he just didn't argue it the right way. Said the court:

We are convinced that the plaintiff's claim for damages caused by the embarrassment and humiliation which he insists he has experienced as the result of possessing a three legged dog is without merit. Such an element of damages is not recoverable in Louisiana.

That is, plaintiff seems to have argued not that he was heartbroken at the brutal injury to his little dog, his sole companion and the light of his life, but rather that he was embarrassed because now he had a three-legged dog following him around. Wow. Well, if that's your argument, no. In fact, let's give the other $307 to the dog.

Seems like this one is worth adding to the Case Law Hall of Fame.

Witness in Tree Corroborates Story

Sometimes the full explanation is not as good as the summary, and that may be the case here, but this one does leave you wondering:

NICEVILLE [Fla.] – A 24-year-old man told Niceville Police he was pulled from his bicycle and beaten by three males. A witness who was up in a tree corroborated part of the man’s story.

But we learn later that despite his elevated vantage point, the witness did not actually see the initial assault:

The witness told the officer he was up in a tree when he heard the alleged victim scream for help. He went out to the road and saw the man’s bike lying by mailboxes, and somebody grabbing the man. Then, three people ran away.

What we do not learn is why he was up in the tree to begin with.

I guess it's not relevant, but if so this is a good example of a fact you should either explain or leave out of your tale entirely. It's all anyone's going to care about until they get their question answered.

Assorted Stupidity #49

• According to CNN, the FBI is currently investigating what its assistant director referred to as a "rash of sexting cases" within the agency. Said the AD, "When you are given an FBI BlackBerry, it's for official use. It's not to ... send a picture of yourself in a state of undress. That is not why we provide you an FBI BlackBerry."

• In a related story, if the FBI is investigating internal sexting it would appear that the magnitude of the terrorist threat is somewhat less than we have been led to believe.

• In another related story, it apparently has not dawned on hundreds of FBI employees that the FBI might be able to eavesdrop on the messages they send on their FBI BlackBerries.

• In yet another related story, the FBI is still using BlackBerries.

• In a wholly unrelated story, a 53-year-old landlord in Waynesville, Ohio, has been charged with assault for allegedly spanking a tenant whose rent was late, telling him "if you're going to act like a child I'm going to treat you like one." The tenant, who dropped his pants so the landlord could hit him with a belt, told police he submitted because he "was scared and just wanted to get it over with." Yep, that's probably what happened.

• In a story that is related to that one but not the others, the landlord in question was named Waynesville's "Citizen of the Year" in 2006.

• Speaking of model citizens, the Westboro Baptist Church responded (via Twitter) to my post yesterday about its Constitution-free con-law brief by tweeting, "You write your briefs the way you want to, and Westboro will do the same." I responded, "So ... live and let live?" Haven't heard back.

Brief on Constitutional Issue Fails to Cite Constitution

Writing at Balkinization, Jason Mazzone notes that the Westboro Baptist Church, infamous for picketing funerals for a variety of bizarre and hateful reasons, has filed an amicus brief in United States v. Windsor. That's the case in which the U.S. Supreme Court will consider whether the Defense of Marriage Act is constitutional. Normally, when briefing the issue of whether a statute violates the Constitution it is customary to refer to that Constitution, but as Mazzone points out, Westboro may now have "the surely unprecedented distinction of authoring a brief to the Supreme Court on a constitutional question that makes not a single mention of the Constitution itself."

It is probably also the first such brief to cite as authority a letter some guy in Australia wrote to the editor of the Topeka Capital-Journal, but I haven't done the research to know for sure.

To be entirely accurate, there are two references to the First Amendment in the brief, although both references appear in quotations, not the argument itself. The argument, to the extent there is one, seems to be that the Establishment Clause doesn't mean government has to be hostile to religion. That's certainly true, but that doesn't mean it has to be friendly to hostile religious people. And that's as close as the brief gets to citing the Constitution.

We do get, though, in addition to the Australian guy's letter and "Sinners in the Hands of an Angry God," citations to various books of the Bible. Most prominent, of course, is Genesis 19, in which Sodom is destroyed because, at least as Westboro interprets it, every male human being in the entire city is a gay angel-rapist, or would like to be. But Lot, being a righteous man, and—hold on. I haven't read this in a while, to be honest, and I'm just noticing this part:

⁶ And Lot went out at the door unto [the gang of gay angel-rapists], and shut the door after him,

⁷ And said, I pray you, brethren, do not so wickedly.

⁸ Behold now, I have two daughters which have not known man; let me, I pray you, bring them out unto you, and do ye to them as is good in your eyes: only unto these men do nothing; for therefore came they under the shadow of my roof.

(Emphasis added.) Tell you what, everybody. These guys are my guests and it would be like totes embarrassing to have you rape them, but here's an idea. I have a couple of virgin daughters to spare, so what say I'll toss them out here, you do whatever you want with them and we leave it at that? Everybody wins.

Wow. 

THE END OF
THE POST IS NIGH

Anyhoo, Westboro's ultimate position is, not surprisingly, is that when the Court conducts the careful balancing analysis often required to resolve constitutional questions, it needs to do what God wants, as interpreted by Westboro. I guess that's not really "balancing," now that you mention it, but the Court's duty is allegedly to "follow the standard of God ... [n]ot invent a multitude of sociological, pseudo-scientific, historical or any other theory or reasoning that leads to ignoring and disobeying the plain standard of God."

They don't give a citation for that one, but I'm sure they could come up with something.

Patent No. 8,246,454: Say "McDonald's" to Make It Stop

There's just something very wrong with this:

I guess I'm worried that at some point it'll no longer be optional.

Via Eurogamer.net and @Glinner.

Witness: "I Bite Him. Bad Man. He Tasty."

According to officers at the West Midlands Police Station in the UK, the Crown Prosecution Service repeatedly insisted on getting a written statement from "Police Constable Peach" despite having repeatedly been told that "PC Peach" was actually PD (Police Dog) Peach, and therefore not well-suited to offer testimony in writing. Finally, the requested statement appeared:

The statement wasn't actually sent to the CPS, but was put up on the wall of the station, and CPS became aware of it after pictures appeared on Twitter and Facebook.

For some reason, probably one linked to a severe humor deficit at some level of the CPS, the matter has been referred to the Professional Standards Department for investigation. A West Midlands detective told the Huffington Post that "early enquiries suggest it is a light-hearted exchange as a result of a misunderstanding around a police dog and a police officer," which I guess at least solves the mystery of how he got promoted to detective.