Lowering the Bar

Judge Finds Alleged Indian Tribe to Be "Complete Sham"

On May 6, a federal judge in Utah ruled that a group calling itself the "Wampanoag Nation" was not a branch of the recognized Native American tribe of that name, but instead was a sham organization set up to further a variety of extortion and fraud schemes.

The court noted that the Wampanoag Tribe is a federally recognized tribe that has been present in what is now southeastern New England since before the Pilgrims came to America.

Historical Range of the Wampanoag Tribe

It should therefore be distinguished, the judge said, from the Wampanoag Nation, which was founded in an Arby's restaurant in Provo in 2003.

Historical Range of the Wampanoag Nation

According to Judge Stephen Friot, the three members of the Wampanoag Nation, along with another man, who for some reason (probably late getting to Arby's) was not initiated into the tribe, used the sham tribe as a vehicle to file phony and harassing judgments against various local officials.  One of the men went too far when he sued numerous officials in 2004 claiming that his truck should not have been impounded after a traffic stop because it was an "Indian-licensed vehicle."  Oh no it isn't, said county attorneys, who filed a counter-suit alleging civil RICO violations.  Judge Friot ruled in favor of the county after a two-day trial.  He awarded $63,000 in damages, and ordered the bogus judgments set aside.

The defendants blamed the judge's decision on a failure to appreciate the intricacies of tribal politics.  According to Martin Campbell -- or "Spirit Walker," to use his Arby's name --  he and James Burbank had been unfairly linked with Dale Stevens, who Campbell said was actually a member of a tribal splinter group.  (That is, there had apparently been a falling-out among the three members of the tribe.)  "There's two individual groups here," said Campbell, who claimed that he and Burbank had "dismissed" Stevens from the Wampanoag Nation in 2005, and that Stevens was to blame for everything.  "We have nothing to do with Dale Stevens," Campbell insisted, "yet he keeps dragging us into this mess."  Nor, Campbell said, is either group affiliated with the outsider, Thomas Smith, who was described as head of an organization called the Western Arbitration Council and also as "presiding patriarch of the Order of the White Light."

The four defendants, who I will now refer to as the "Rico Tribe," could also face federal criminal charges.  If convicted, this proud people could be driven from their ancestral hunting ground, its roast beef and curly fries forever lost to them.

Link: Deseret News (Salt Lake)

Client 9's Playmate Sues Over "Girls Gone Wild" Video

Ashley Alexandra Dupre, well into her 14th minute of fame due to her affiliation with Eliot Spitzer, has sued "Girls Gone Wild" founder Joe Francis for allegedly taking advantage of her youth and vulnerability by once filming her sans T-shirt.

Why does it seem like these two may be perfect for each other?

In the complaint, filed on April 28 in the Southern District of Florida, Dupre alleges that she encountered "agents and representatives" of Defendant and his production company in 2003, when she was 17 and just trying to stay out of trouble while on spring break:

10.  On said date, Plaintiff was socializing with friends at the Chesterfield Hotel when she was approached by [said agents and representatives].  They offered Plaintiff alcoholic drinks.  After Plaintiff became drunk, they induced her into [sic] exposing her breasts while being filmed.  While drunk, Plaintiff was told to sign a "release." . . .

11.  At the time of these events, Plaintiff did not understand the magnitude of her actions nor that her image and likeness would be displayed in videos and DVDs produced and distributed by Defendants.

12.  Likewise, at the time Plaintiff signed the "release," Plaintiff did not and could not foresee that she would later have sex with a famous person for money, thus herself becoming famous and therefore acquiring a valuable legal claim.

Okay, I made up Paragraph 12, but Dupre does allege that the defendants have profited by means of advertising designed to capitalize on Plaintiff's "fame and notoriety," which, if I'm not mistaken, is due to having had sex with a famous person for money.

According to the Miami Herald, Francis's version of the Paragraph 10 events is very different.  As he tells it, Ms. Dupre was completely sober while going wild, and he personally -- personally, mind you -- put her on a bus home after catching her with a beer.  As you know, drinking is strictly against "Girls Gone Wild" policy.

Dupre's complaint contains eight counts, including unjust enrichment, Lanham Act claims, state-law false advertising and unfair competition claims, unauthorized publication of Plaintiff's likeness, and, of all things, cybersquatting.  The complaint seeks damages of not less than $10,000,000.  That is likely to pose some proof problems, especially as to the Lanham Act allegation that defendants' acts "have cause[d] substantial and irreparable injury . . . to the Plaintiff's business, reputation and good will."   I doubt that the reputation of someone who [disturbing phrase deleted] with Eliot Spitzer while [matter redacted due to protective order] and also putting [sanitized for your protection], not once, but [illegible], while in Washington, D.C., has been harmed that much by an ad for "Girls Gone Wild."

Joe Francis, who has made millions from the GGW videos and who, according to this month's issue of Scientific American, is an utter sleazebag, paid someone to come up with a pretty good line.  "I think it's ironic," he told CNN, "that she charged Gov. Spitzer $2,000 for sex and she wants to charge me $10 million for taking some naked pictures of her."  Not bad, and a lot better than the line he tried out after being held in contempt in 2007, also in Florida; that, Francis announced, was a case of a "judge gone wild."  A little more effort, please.

Link: CNN.com
Link: Miami Herald
See also "'Girls Gone Wild' Founder Says Judge Has Gone Wild in Suit Filed by Girls Who Had Previously Gone Wild," Lowering the Bar (Apr. 6, 2007); and "'Girls Gone Wild' Creator, Residing in Hole, Continues to Dig," Lowering the Bar (Apr. 16, 2007).

Arguments Commence in New Zealand Spear-Assault Trial

Let's stick with New Zealand, as long as it is going to keep generating stories like these.  Last week: false claim of wombat rape.  Monday: assault with a deadly hedgehog.  Tuesday: opening arguments in the trial, on assault charges, of a man who speared the thief who had broken into his car.

New Zealand sounds interesting enough that I would consider moving there if it weren't so goddamn dangerous.

Sam Spence is on trial in the High Court at Whangarei, charged with recklessly wounding Daniel Hill last January.  The facts: Spence had driven to the coast to go fishing.  Hill, who said he had driven there to go swimming along with his friend Justin and (for reasons not explained) a five-year-old boy, broke into Spence's car and stole his wallet and other items.  (Hill told a reporter he had done this to get money to buy meth, but later denied that.)  Unfortunately for Hill, someone saw the theft and left a note for Spence with the license number and a description of the thief's car.

Even more unfortunately for Hill, Spence had been spear-fishing.

Spence apparently got to his car not long after that, saw the note, and set out to find the thief.  Exactly how they encountered each other is not clear, but they did.  A chase ensued that sounds like something out of "Mad Max" (if "Mad Max" had involved a climactic car chase between a spear-armed fisherman in a Mitsubishi and a meth addict who had gone swimming with a five-year-old boy).  At some point, the cars drew alongside each other, and, according to the prosecutor, "it was during this confrontation that the flounder spear was thrown."

Your basic flounder spear & light kit	With special trident tip

In what frankly seems like a fairly impressive feat, Spence threw the meter-long flounder spear from one moving car through the open window of another moving car and managed to "embed" it in the skull of the man who had robbed him.  ("Man Embedded Flounder Spear in Thief's Skull, Court Told," was the headline.)  In my experience, once one guy has a spear stuck in his head, fight's over.  But amazingly, this did not end the chase.  Hill seems to have kept driving at high speed until the car's engine blew.  He testified on Tuesday, in fact, that at the time he did not know he had a spear embedded in his skull.

"I didn't even really feel it," he told the jury.  "Justin just said, 'You've got an arrow sticking out of your head, bro.'"

When the car broke down, Justin and the mysterious five-year-old fled.  Hill, probably slowed down a bit by the spear, was apprehended and taken to the hospital.  He had surgery to repair a skull fracture and was in rehabilitation for over a month, which is serious but seems much less serious than you would expect.  I am guessing that while the points of the trident went in deep enough to be "embedded," they did not actually penetrate Hill's skull.  The extent of the injury was not very clear, although Hill did take the opportunity to blame it for memory loss when he was on the stand Tuesday.

Crown Prosecutor Anna Patterson said that, while she did not condone Hill's actions, "neither can we condone the actions of the accused, who took the law [and a flounder spear] into his own hands."  She described Hill's decision to steal as "very unfortunate -- not only because it was illegal, but also because of the physical consequences."  Lesson learned: never steal from a guy with a trident.

Not to be outdone in re: stupidity, Spence has already raised a defense that I very much hope to hear more about.  According to the report, "Defence lawyer Arthur Fairley said Mr. Spence admitted throwing the spear at Mr. Hill, but denied doing it with reckless disregard for the safety of others."  Is there another way to throw a spear into the passenger compartment of a moving car?  Unless he is claiming he thought Hill was a flounder, I'm not sure where that argument is going.

Link: New Zealand Herald

Japanese Bikini Model Uses Self as Exhibit

Serena Kozakura was convicted last year of property destruction, after a man accused her of kicking a hole in the door of his room so she could get inside.  Since Kozakura is a well-known pin-up and bikini model in Japan, that does not really seem like something you'd press charges over, but according to the report the man may have been with another woman at the time of the door-kicking.

But the truly remarkable part of the story was the argument made by Kozakura's counsel on appeal.  Kozakura's position was that the man had made the hole himself and blamed her for it.  That seems even odder than his a-bikini-model-kicked-a-hole-in-my-door story, but Kozakura's counsel was ready with evidence.  During oral argument, he held up a demonstrative exhibit showing the size of the hole in the door, and pointed out that Ms. Kozakura could not possibly have gotten through a hole of that size, as the man had claimed, because her breasts are far too large.

Kozakura's bust reportedly measures 44 inches (or an even more impressive 110 centimeters).

She (and her bust) prevailed.  The judges on the Tokyo High Court agreed that there was "reasonable doubt" about the man's account, a result that the report attributed to this very argument, although it is not clear if that's really true.  According to Kozakura, the judges did not visibly react when the breasts were presented as evidence.  "The judges were very good-mannered as they showed no expressions on their faces," she said.  "I guess they're well-trained."

Less-good-mannered was the Japanese media, which reported furiously on the decision, with the Asahi network "even inviting her to demonstrate how she could not fit through the opening."  Seriously -- have they no shame?  Let the poor woman have her privacy.  The next thing you know, this will be all over the Internet, for God's sake.

Actually, she didn't seem at all reluctant to have the publicity, as she gave numerous interviews after the dramatic court decision.  She told one interviewer, "I used to hate my body so much" -- and who can blame a poor bikini model for that? -- "but it was my breasts that won in court."

Once again, the law teaches us something about ourselves.

Link: Yahoo! News

Repeated Demands for Prostitute: Grounds for Termination?

I don't want to keep you in suspense: the answer is yes.

Riverside Casino and Golf Resort, located in Iowa, apparently gives its employees a special bonus to mark their first year of employment.  The bonus, at least in this case, was a gift certificate and a free night's stay at the casino's hotel.  A 62-year-old employee enjoying his bonus got into trouble after returning to his hotel room about midnight, and then calling the management (that is, his employers) to ask about hiring a prostitute.

Told that was not one of the services that the casino offered, even as part of the bonus, he called the competition, making the same request of the resort next door.  He must have identified himself in some way to them, because they called Riverside and asked what was going on.  As the report put it, hotel workers were then sent to the man's room "to ask him to stop demanding prostitutes."  According to the hotel's human resources director, the man answered the door in the nude.

It wasn't clear whether the hotel's human resources director was there at the time, but I like to think that he was.  If you are hoping to lose your job, answering the door naked when your human resources director knocks is probably one of the quicker ways to do that.  And, in fact, the employee was fired later that day.

This made the news recently because, after being fired, he filed a claim for unemployment benefits, which are typically not available if one has been fired for "misconduct."  At the hearing on the claim, the man argued that the casino had not been harmed by his actions, and that alcohol (a repeat offender) was to blame.  Double bonus points here for blaming the casino restaurant for forcing him to drink too much alcohol and then demand prostitutes.  As a result of the restaurant's actions, he noted, "I was absolutely plowed."

Also to blame: the casino itself, for its deceptive advertising.  "The advertisement is that it's just like Las Vegas, so I thought I was in Las Vegas," he argued.  Come to find out, it's illegal there, too, sir (technically), but the bigger problem with the Las Vegas Defense -- which we have seen invoked before -- is that even if what happened in Las Vegas did have to stay in Las Vegas, you were in Iowa.

No benefits were awarded.

Link: CBS News

Mug Offered as Evidence to Prove Defendant Was "World's Greatest Dad"

On January 22, defense attorneys representing Cesar Rodriguez conducted a remarkable cross-examination of a detective who had been called to testify against their client.  Rodriguez is on trial for the murder of his 7-year-old stepdaughter, Nixzmary Brown.

But, defense attorneys asked, could the "World's Greatest Dad" have done such a thing?

As evidence that Rodriguez is (or was) in fact the World's Greatest Dad, defense attorneys introduced a photograph of a mug their client may have been given by the girl.  Emblazoned with the words, "World's Greatest Dad," the mug offered indisputable proof of Rodriguez's parenting skills and virtually guaranteeing his exoneration.  Given the undisputed existence of millions of fathers and stepfathers who have not murdered a child (or anyone, for that matter), and since Rodriguez is a better father than any of them, as he is the world's greatest father, it follows that Rodriguez could not have been the killer.  Ladies and gentlemen of the jury, I have nothing further.

Defense attorneys may not have been aware, however, that other such trophies exist, which could cast at least some doubt on Rodriguez's claim.  The words "World's Greatest Dad" have reportedly been found on t-shirts, name tags, belt buckles, trophies, keychains, greeting cards, baseballs, magnets, grilling aprons, grilling hats, grilling tools, and the flag of Turkmenistan (although my Turkmen is a little rusty).  Examples of many such items, in fact, can be found at the "World's Greatest Dad Store," which bills itself as the "one stop shop for all of your 'World's Greatest Dad' needs."

It's not clear whether this came out during the testimony of Detective Joseph Bello (but it probably did).  Bello conceded that he took the picture of Rodriguez's award and thought it was "weird," but said he did not know who bought it.  Lead prosecutor Ama Dwimoh said there did not appear to be any evidence as to who bought the mug, but seemed to suggest that she didn't give a rat's ass.  "As evidence comes out," she claimed, "it becomes clear that the last thing he was was 'World's Greatest Dad.'"

Oh, really?  Let's see:

• On the one hand, there's the evidence that the defendant killed his 7-year-old stepdaughter with a blow to the head he delivered to punish her for stealing some yogurt.
• On the other hand, the mug says "World's Greatest Dad" right on it.

I think the jury will be out for a while on this one.

Link: WCBS-TV.com

Appellate Court Agrees that Written Request to "Kiss My Ass" is Contempt of Court

In an entirely unsurprising decision handed down last month, the South Carolina Court of Appeals has ruled that indeed it does constitute contempt of court for one to send a written document to a trial judge requesting that the judge kiss one's ass.

According to the report, Judith Law, a woman in St. Matthews, South Carolina, was required to sign a judge's order revoking her probation, to which she had been sentenced after pleading guilty to burglary charges in 2003.  She admitted violating her probation and so the five-year sentence was reinstated.  Presented with the order and having to sign to show she had received it, Law did sign but also added her own flourish, namely a request that her buttocks be osculated by its author, Circuit Judge Diane Goodstein.  Although typically such a document would not be returned to the judge personally, Law allegedly asked the probation officer to do so.

Goodstein declined Law's invitation, and instead found her in contempt of court.  Law challenged that ruling, saying the conduct had not occurred in court and took place outside the judge's presence.  Appeal denied.  "No matter where Law signed the revocation order," the court wrote, "her conduct was in the presence of the judge" for purposes of contempt.  The ruling affirms Judge Goodstein's penalty of an extra 90 days in jail for Law.

This is at least the second decision to find the phrase "kiss my ass" inappropriate when directed at a judge.  The 1996 decision of Washington v. Alaimo, finding sanctions appropriate in part because of Mr. Washington's filing of a "Motion to Kiss My Ass" (also denied), is already part of Lowering the Bar's Case Law Hall of Fame.

Link: CBS News

Jury Finds Pool Store Not Liable For Goose Attack

Earlier this month, a jury in Maryland found against a woman who sued a shopping mall and pool store in Rockville after being attacked by a goose while on the mall's property in 2004.

Suzanne Webster said the goose's ferocious attack had caused her to fall and break her hip.  It appears that employees knew the goose was nesting on the property, but the defendants successfully argued that -- setting aside whether they could be responsible for the goose's decision to attack in the first place -- the goose is a protected species and so they were not allowed to interfere with the goose or the nest in any way.  The plaintiff's attorney argued that the store negligently allowed employees to feed the goose, making the situation worse, but the jury did not agree.

This is at least the fourth animal-attack lawsuit I know of that has failed.  As I previously reported, in 2006 Marcy Meckler sued the Old Orchard Shopping Center in Skokie, Illinois, claiming that it should be liable for the actions of a squirrel that jumped on her leg, causing her to panic, fall and suffer injury.  Like Webster, she also argued that the mall had "encouraged the squirrel" by feeding it.  I can't find any further record of this case, which usually means a case has quietly been dismissed.

You might think that animal-attack claims can't get more tenuous than those, but they can.  In 2005, an Illinois woman sued Lowe's Hardware after a bird flew into the back of her head while she was in the outdoor lawn & garden area.  The woman said that Lowe's was responsible for the bird strike because it "allowed wild birds to enter" said area (namely, the outdoors), thus creating a dangerous condition.  I did find one report stating that this case was dismissed in January 2006.

Finally, I also happen to know that in the late 1990s, a woman sued Sears, Roebuck & Co. making allegations similar to those later made by Meckler.  That woman claimed she fell and hurt herself after panicking when a bat flew at her head.  (A fruit bat of some kind, not a bat that somebody threw at her.)  I know this because we represented Sears in that  case.  It was the only deposition I've ever desperately wanted to take.

After the Maryland verdict, the score in negligent-animal-attack cases is now: Animals 4, Women 0.

Link: WJZ-TV (Baltimore)

Court Rules Spider Bite Not a Valid Defense to Rape Charge

On Wednesday, Philip Speirs was sentenced to eight years in jail on kidnapping and rape charges, despite telling the court that he committed the crime because he had been bitten by a spider.  Speirs told the court that he had been bitten by a poisonous funnel-web spider 12 days before the crime, and had been treated for the bite, and possible viral meningitis, at a hospital.

The only problem with the spider-bite defense: the complete lack of any medical evidence suggesting that a spider bite could be responsible for rage or anger.

At least, that's what the toxicologist who testified for the prosecution claimed. 
Spiers does not appear to have put on any contrary evidence, despite the existence of lengthy film footage depicting a spider bite contributing to erratic and bizarre conduct, occasional angry or violent activity, and poor judgment calls such as appearing in vastly inferior movie sequels.

Even if it could cause rage or anger, there is a long list of  things that a spider bite is highly unlikely to explain, like stalking someone, drugging them, assaulting them, locking them in the trunk, making detailed plans to avoid capture, and (except for very rare African species) using another person's ATM card to take money out of their bank account.  Accordingly, the judge concluded that Speirs had not committed the crime because he was bitten by a spider, but rather because he wanted to have sex.

Speirs had pleaded guilty to the crime, but the judge refused to reduce his sentence because of the bite claim.  He got a minimum of six years in jail without parole.

Link: Reuters
Link: Sydney Morning Herald

UPDATED: Patriots and Belichick Sued for "Violating Integrity of the Game"

A Jets season-ticket holder has filed a $184-million class-action suit against the New England Patriots and their coach, Bill Belichick, based on the penalties assessed against them for videotaping their opponents' signals in the season opener, in violation of league rules.  (The Patriots beat the Jets in that game 38-14.)

Carl Mayer, represented by Bruce Afran (Mayer is also an attorney), claims that the defendants "deceived customers" by their actions -- essentially arguing that the games were "fraudulent" because fans were led to believe they would be played according to the rules.  "They were deceiving customers," said Mayer.  "You can't deceive customers."  Afran agreed that it was a "type of misrepresentation," and one that "violated the integrity of the game."  In the language of the complaint, the actions violated the "expectations and rights" of Jets ticket holders to "observe an honest match played in compliance with all laws and regulations."  Yes, every football fan has the right to expect all league rules to be followed without exception in each match.  Why those men are out there negligently dropping flags all over the field, I have no idea.  We'll deal with them next.

The $184-million demand is apparently based on the total ticket value that fans paid to watch the eight "fraudulent" games that the Patriots have played against the Jets in Giants Stadium since Belichick became the Patriots' head coach in 2000.  Plaintiff calculates that amount at $61.6 million, which he wants tripled under RICO and the New Jersey Consumer Fraud Act.  That seems a bit much -- surely Jets fans got some value out of these games, and since the Jets have compiled a sparkling 59-56 record since 2000, plaintiff may be overestimating the value to Jets season-ticket holders in the first place.  Frankly, if this lawsuit goes anywhere, I may sue the Jets and their quarterback, Chad Pennington, for a series of crappy performances that have violated the integrity of my fantasy-football team and disappointed the valid expectations I had when I drafted them.  That has "RICO violation" written all over it.

According to the Associated Press, Mayer and Afran are "public interest lawyers" who are well-known in the state "but generally have had little success in their causes."  Both have not been elected to public office, and Mayer also helped the Nader campaign not succeed.  They did not successfully get a special election to replace former Governor James McGreevey in 2004, were not able to block Governor Corzine's appointment of someone else to fill his Senate seat, and did not persuade a federal prosecutor to launch a probe into gifts Corzine made to a former girlfriend.  It appears that the Patriots are next.

After I first reported on the Patriots' legal woes, I learned that star pro se litigant Jonathan Lee Riches had also gotten involved.  Riches, the inmate who has heroically sued defendants including Michael Vick, the CIA, Barry Bonds, the Mossad, and so forth, has filed his own suit against Belichick and the Patriots organization based on the videotaping scandal.  Among the new allegations, Riches claims that the Patriots organization also videotaped patrons in the men's bathroom and had a monthly contract to sell the footage to Idaho Senator Larry Craig.

That's pretty good stuff, actually.  It's a shame Riches is wasting his talent on felonies.

Link: Boston.com (Boston Globe)
Link: The Smoking Gun

Surprising Court Loss for Woman Who Challenged State's Authority to Require Driver's License

Laura West was arrested in Kansas in June after a state trooper stopped her, apparently for speeding, and found she did not have a license or valid registration.  She also refused to cooperate with the trooper, who said that it took him 45 minutes to get her to even step out of her van. West took the case to trial, where she defended by saying that the state in fact had no authority to require her to have a driver's license.  West and her partner are apparently part of a group called the "Freedom Flag Fellowship," members of which believe (among many other things) that the federal government has no valid authority but is instead a foreign corporation that has invaded America.

According to the FFF, each person born in any of the 50 states is "sovereign" and neither the federal or state authorities have any power over them, at least if one properly declares sovereignty according to the appropriate procedures, which as far as I could tell were derived vaguely from international and/or maritime law:

[L]ook at the courtroom in this context, as a vessel. The courthouse is in fact a foreign port, and the courtrooms are, by the “doctrine of the four cornering” dry docked Vessels of the United States where, if you board the master’s ship (cross the bar/rail) without correcting for the name, declaring your sovereignty, and your country of origin by your flag you are captured by his crew and you are under his command by “tacit admission”.  [Emphasis in original.]

So just don't "board the master's ship" without announcing yourself as a sovereign, and you are free to go at will, oppressed no more.  (The quote above is from the FFF website, which seems to be written by West's partner, who according to the newspaper article is Mr. "J.M. Sovereign Godsent.")

This particular master, Judge Robert Fairchild, refused to recognize West's flag.  West stuck with the nautical theme in her defense (she represented herself), saying that she was not so much driving a car on the highway as she was navigating her "private vessel" on a religious mission.  Judge Fairchild ordered her to get a driver's license if she wanted to pilot through Kansas, and gave her a year of probation and a $220 fine.

West says she will appeal to a higher (but still fictional) court.

Link: Lawrence Journal-World
Link: Freedom Flag Fellowship

Lawsuit Seeks $1 Million for Those Who Bought Full-Price iPhone

Dongmei Li, one of the many consumers who bought the original iPhone for $599 only to see the price go down to $399 two months later, has now sued Apple on behalf of herself and other "early adopters," alleging "price discrimination."

Facing a consumer backlash, Apple refunded the $200 difference for those who had bought the more expensive iPhone less than two weeks before the price cut, and offered a $100 credit to those who bought it earlier.  Still unhappy, Li has sued in federal court, saying that Apple (and AT&T) have engaged in unfair business practices.

In the lawsuit, Li apparently claims that the price reduction injured early adopters like herself because they now cannot resell their iPhones for the same profit as those who bought the phones after the price cut.  In other words -- if I understand this correctly -- those who bought an iPhone before the price cut paid more those who bought one after the price cut; and so if later buyers want to resell their phone today, they will be better off in doing so than those who, certainly through no fault of their own, were cruelly forced to buy an iPhone at the earlier, higher price; and this is unlawful price discrimination.

That settles it -- the free market is illegal.  Or maybe it's just price cuts that are illegal?  My head hurts.

Steve Jobs, shown here illegally failing to tell
consumers that iPhone prices may later be reduced.

The article doesn't make clear exactly what kind of price protection or guarantee Li claims "early adopters" were entitled to expect, given that gadget prices have historically dropped pretty quickly.  But it appears that, at least in this case, an award of approximately one million dollars would be enough to heal the wounded hearts, repair the shattered expectations, and pay the creative attorneys of those who trusted Apple not to lower the price of the iPhone, ever.

Link: MSNBC.com

"American National" Sues All Nine Supreme Court Justices

Brave American citizen Jerry Brumbaugh struck a blow for freedom or something on Friday when he sued the nine current members of the United States Supreme Court for making rulings that have violated his constitutional rights.  Specifically, all of them (all the rulings and all the rights).

In the lawsuit, filed in the Springfield division of the Western District of Missouri, Brumbaugh takes issue with the Court's rulings that have "violated my constitutional rights . . . in all manners, ways, and areas of law."  These include:

• "Violation of civil liberties by allowing a granted clause of the Constitution to violate my rights in many manners and ways,"
• "Failing to correct violations of the Constitution which it is the duty of the Court to do," and
• "Allowing unlawfully the loss of civil liberties by contractual means into the sphere of the 14th Amendment."

We would probably all agree that there are lots of "violations of the Constitution" that the Court has been failing to correct, although we would probably all disagree about exactly what those violations are.  Perhaps hoping to save space, Brumbaugh does not allege any facts supporting his own personal claim.  It is refreshing to see a complaint limited to three pages (especially after last week's titanic 239-page "brief" on behalf of Jeff Skilling), but this one probably needed a little more detail.  And a little more research -- I know the liberal wing of the Court is in the minority these days, but it would still be polite to spell Justice Breyer's name correctly.

On the other hand, Brumbaugh's complaint is consistent with his position that, since he is "an American national citizen," those pesky Federal Rules of Procedure do not apply to him.  The argument seems to be that the Bill of Rights amended "every preceeding [sic] clause" of the Constitution, so that the 14th Amendment's Due Process Clause applies directly to the action, authorizing Jerry D. Brumbaugh to do whatever he wants: "Plaintiff hereby asserts that the rules may not be used to interfere with this case . . . nor its continuance before the courts."

That argument didn't fly in a previous case, Brumbaugh v. Tandy, to which Brumbaugh refers in this complaint in support of his request that counsel be appointed for him.  (In both cases, he has specifically requested Gerry Spence.)  The complaint in that case elaborated a bit on Brumbaugh's arguments, and made some more creative ones, such as the argument that the Privileges & Immunities Clause grants a "right to protection by the government," and "to allow a pro se litigant to flounder is a horrid violation of the right to protection."  Maybe so, but it can also be very entertaining.  I hereby assert the right to deny Mr. Brumbaugh counsel, as to appoint one would infringe upon my pursuit of happiness.

In Brumbaugh v. Thomas, et al., of course, plaintiff has taken a more direct approach, as his certificate of service indicates: "YOU ARE HEREBY GIVEN NOTICE THAT YOU NINE JUSTICES ARE BEING SUED FOR VIOLATIONS OF THE U.S. CONSTITUTION."  Should he prevail, he requests "a ruling that the judges [sic] of the U.S. Supreme Court have violated the Constitution," and as damages "the net worth of each justice as payment for their deriliction [sic] of duty."  You nine justices should take note.

Link:  Brumbaugh v. Thomas, et al., Case No. 07-CV-3295 (W.D. Mo. filed Sept. 7, 2007) (PDF).
Link: The Supreme Court (for now) of the United States

Court Denies Motion to Preclude Reference to "President Bush" and/or "Free Speech"

A civil-rights lawsuit by 78-year-old Harold Lischner against the township of Upper Darby, Pennsylvania, has generated a couple of interesting motions in limine.

It's also now generated a blog post that may be the first document anywhere to use the adjective "interesting" to describe a motion in limine.  For non-attorney readers, this is a motion to exclude evidence -- you know, the blue thing the defense attorneys are always handing somebody on "Law & Order."

For readers under 12, or those not convinced that this is going to be interesting, here's a clip of Sesame Street's "Law & Order: Special Letters Unit," in which the squad tries to locate the letter "M," and frequently invokes the "chung chung" sound (that's what the Muppets call it).

Anyway, Lischner, a doctor and a professor at Temple University, was charged with disorderly conduct in 2003 for protesting a GOP fund-raiser attended by the President in Upper Darby, described by the Philadelphia Inquirer as a "traditionally Republican township."  Lischner, one of about 50 protesters, carried a sign with the punchy but wordy slogan, "Withdraw our troops from Iraq. Give the $87 billion to the Iraqi governing council and UN for immediate relief and repair of the destruction we caused."  The sign was described as "torso-sized," which I would think means the words would have been too small to be read by anyone not already in the group of protesters, which would seem to defeat the purpose.  I guess it depends on whose torso we're talking about.

Whatever the problem really was, police repeatedly told Lischner to put the sign away and leave.  When he didn't, he was arrested for something called "defiant trespass," but was actually charged with disorderly conduct.  He was acquitted of that charge, and later sued the township, alleging that his civil rights had been violated.  This led to the interesting motions in limine filed by the township's attorneys to exclude evidence from the trial set to begin on Monday, July 23.

First, they moved to exclude any reference at trial to the message on Lischner's sign, or the person at whom it was theoretically directed -- the President of the United States.  They argued that these facts were irrelevant, or alternatively, and more comically, that any relevance they might have would be outweighed by the danger of unfair prejudice to the defendant township -- specifically, that jurors will associate it with President Bush.  Because the President has "the worst approval rating of an American president in a generation," the township's lawyer wrote (italics his), "President Bush's identity, in and of itself, presents the danger that the jury will favor plaintiff . . . ."  Holding that these facts were relevant to the question whether there was probable cause to arrest Lischner, the court denied these motions.

Second, the township moved to exclude any argument by Lischner that his First Amendment rights had been violated, since he was only alleging a claim under the Fourth Amendment for unlawful seizure.  The judge did preclude Lischner from asking for damages for a "violation of the First Amendment," but he rejected the township's other claim -- to preclude any reference at all to "free speech" or the "First Amendment."

The irony of a motion asking that someone be ordered to keep quiet about "free speech" does not seem to have registered with anybody.  The judge did not mention it, either, but did hold that these concepts were still relevant to Lischner's claim that there was no probable cause to arrest him, and to the damages he may have suffered.  Chung chung.

Barring some kind of settlement over the weekend, the trial will begin Monday morning.  Maybe Upper Darby should seek a continuance, given that success in Iraq is  just around the corner.

Link: Philadelphia Inquirer
Link: Lischner v. Upper Darby Township, No. 05-4546 (Mem. Order of July 11, 2007).
Link: Download the "Law & Order" sound, a.k.a. "chung chung," "doink doink," etc.

Judge Pearson Ignores Standing Eight-Count, Staggers Back Into Ring

Apparently unable to live without being mocked daily, and desperate to not be reappointed as a D.C. administrative law judge, Roy Pearson has now asked Judge Judith Bartnoff to reconsider her dismissal of his $54-million-pants lawsuit.  In his motion for reconsideration, which is comprised of no fewer than 35 pages (longer than most briefs and much too long for a virtually-always-futile motion for reconsideration), he accuses Judge Bartnoff of a "fundamental legal error":

The court effectively substituted a guarantee of satisfaction with "reasonable" limits and preconditions for the unconditional and unambiguous guarantee of satisfaction the defendant-merchant chose to advertise for seven years.  That was a fundamental legal error.

How does somebody who can't understand that the statement "Satisfaction Guaranteed" should be interpreted "reasonably" by a court even get a driver's license, let alone an appointment to a judgeship?  I guess if they unconditionally guaranteed his unreasonable satisfaction, they have to be his slaves for life, or until Roy Pearson feels satisfied, whichever comes first.  Hard to argue with that logic.  Roy, I know -- why don't you make them sew you the world's biggest pair of pants?  Wouldn't that feel satisfying?  Maybe your ego could wear them.  Yes, have your new slaves make you the world's biggest pair of pants, and then have your ego stomp around in them with your slaves peeking out of the monstrous cuffs as it lays waste to the District of Columbia, in brutal revenge for the District's failure to recognize the legal genius of its master, Roy Pearson.  Only then shall the wrong done you be truly avenged.

Roy hasn't thought of that yet, or at least it's not in his motion.  What is in the motion, apparently as a reply to the cleaners' motion last week asking that Pearson pay the $83,000 legal fees they incurred because of his lawsuit, is this astonishing claim:

Plaintiff [Pearson] therefore seeks reasonable attorneys' fees in the amount of $425,000 for excellent legal work performed under extremely trying circumstances - including holding down a more than full time job.

A statement proving that (1) as noted above, Roy Pearson doesn't know what "reasonable" means, (2) he also doesn't know what "excellent" means, and (3) being a dummy of this caliber is not something you can achieve on a part-time basis.  You have to be willing to work overtime.

Link: Washington Post (Marc Fisher)
Link: CBS News

Defendant Continually Surprised By Failure of Jury-Attacking Strategy

Defense attorneys and pro se defendants, you may want to add this to your short list of jury arguments to avoid:  "Ladies and gentlemen of the jury, I'll kill all of you."

Also the closing argument, "That goes for your family, too."

An aggressive strategy, but one that failed for Richard Glawson, who, surprisingly, was convicted in May of multiple charges by the jurors he threatened to kill.  Specifically, prosecutors (who indicted Glawson this month with jury-intimidation charges) said that Glawson told the jury "Ladies and gentlemen of the jury, I’ll kill all of you if you find me guilty of any one charge, and that goes for your family, too."  The story did not say why whether Glawson was represented by an attorney during that trial, which was based on a "weeklong crime spree" in 2001.  (If so, bad choice to let him address the jury, sir.)  Glawson was sentenced to a possible 45 years in prison based on those charges by a judge who Glawson apparently forgot to threaten to murder.

Innovative legal thinker
Richard Glawson

The jury-attack strategy is not a new one for Glawson, who was also indicted on intimidation and battery charges for actually punching out a juror in another one of his trials.  I'm sure that juror still did his civic duty to carefully and impartially consider the evidence in the case, but Glawson was still convicted.  Glawson also is charged with kicking a Superior Court officer in the leg, which I guess for him would constitute thinking outside the box, and with "using restraints to break a window in the court cell where he made mosaic art out of two bologna and cheese sandwiches."

If Glawson is convicted by the jury he threatens in his upcoming trial on the juror-punching charge, that sentence will start to run after the 45 years he got for his conviction by the jury he threatened to kill in May.

One of my favorite Onion stories of all-time is "Jury Selection Proving Difficult in Trial of 'The Jury Killer,'" but I never thought life would so closely imitate art.

Link: BostonHerald.com

Court Rules Woman Who Didn't Enter Lottery Not Entitled to Damages For Not Winning

The submitter calls this an early contender for Bad Legal Argument of the Year, and I think he's absolutely right.  On Wednesday, a court in Amsterdam rejected Helene de Gier's claim for emotional-distress damages based on the trauma she said she suffered when she didn't win the country's National Postcode Lottery.

Part of the problem with her claim was that she did not enter the country's National Postcode Lottery.

Her neighbors did, and they won.  Specifically, seven people on her street won almost 14 million euros each in the lottery, in which postal codes are chosen at random and people in that zone can win (if they enter).  De Gier eventually sued, alleging, among other things, that:

• the lottery was an invasion of privacy, because the media descended on her postal zone, which she could not escape;
• the lottery used advertisements that amount to "emotional blackmail," because they emphasize the regret one will feel if one's neighbors win but one does not because one did not enter; and
• plaintiff suffered emotional distress of that very type when her neighbors won, and proceeded to "rub in" their victory -- de Gier alleged that one winner "ostentatiously" displayed his new Porsche on the street in full view of de Gier, a not-winner.

De Gier said she became obsessed with the loss and could not escape it, partly because she was reminded of it every time she had to write her postal code on a piece of mail.  Yet the nation continued to hold its lottery, heedless of the trauma that plaintiff suffered thereby.  She told a Dutch television program that each new lottery draw felt "like a noose around my neck being tightened."

The judges added to de Gier's trauma this week by denying her claim.  (The article says that she filed suit "together with her husband," but reports consistently describe the claim as belonging to her alone.  Maybe he has suffered "loss of consortium" due to his wife's trauma.)  The judges basically pointed out that de Gier's claim would essentially render games of chance illegal because anyone who didn't enter a game of any kind could, after learning the ultimate result, then sue for the trauma of knowing that if they had only bet on that result, they would have won.  In other words, everybody would have a cause of action for hindsight.  As the judges put it, sometimes "things happen that have unpleasant consequences for someone, but that doesn't automatically mean the one causing them can be held liable."  This will come as news to many plaintiffs, especially in California, I think.

The National Postcode Lottery itself immediately began to rub it in.  Saying the ruling was "clear as a bell," it expressed the hope that de Gier would "come to appreciate the positive aspects" of the lottery.  Since the odds of her winning in the future are so tiny, I guess that translates to "maybe your neighbor will give you a ride in his new Porsche."  Thus doth the noose continue to tighten.

Link: International Herald Tribune

Racist Dog Rejects Job Applicant

According to a Belgian newspaper, a local businessman rejected a Nigerian job applicant on the grounds that his dog was racist and would probably bite the man.  The applicant was not even allowed to enter the business where he had hoped to apply.

The man was applying under a program run by the local labor office, which refers applicants to potential employers and gets feedback on the results.  Far from trying to hide the reason for his action, the businessman actually wrote on his feedback form that he could not hire the applicant because of his color, and the risk that the dog would bite him as a result.  He denied discriminating against the applicant himself, telling De Standaard newspaper, "My dog is racist.  Not me."

The labor office disagreed, and has removed the business from its list of potential employers.  The applicant, who has lived in Belgium for 32 years (since he was 21), said it was not the first time he had been denied a job because of his race, although he said other employers had been more subtle.

Link: Reuters

Law Student Claims Discrimination Against Unskilled Typists

I've been meaning to post this for a while -- it's not new, but worth having in the Hall of Pleading Shame.  Late last year, Adrian Zachariasewycz (or, as his complaint states in paragraph 1, "hereinafter Adrian Zack"), after not being hired by the law firm where he had been a summer associate, sued that firm, his law school (Michigan), and a bunch of employees of both entities, alleging that they had all conspired to deny him employment.

Not surprisingly, the conspiracy allegations are especially vague.  Plaintiff does allege that he "believe[s] there is some nexus between the actions" of everybody that is named or not named in the complaint (see para. 33), which I think means among other things that all of you reading this now, and everyone you know or don't know, are alleged to be participants in the Conspiracy Against Adrian Zack.

The heart of the complaint, however, is Zack's allegation that Michigan Law School implemented, as part of the conspiracy, a "system of course examination and grading [that] disadvantaged students that could not type at a sufficient speed to produce the volume of text required to produce competitive examination responses."  This diabolical scheme resulted, in certain exams, in "borderline failing grades by virtue of the low volume of prose Mr. Zack could type in the time allotted as compared with other students."

I make a lot of suggestions in my legal writing seminars, but "try to generate a higher volume of prose" is not one of them.

It is not clear whether Zack is claiming to have an actual disability, but he does charge the law school with failing to make an accommodation for bad typists "that would allow them to complete on a level playing field with their manually more dextrous peers with better-developed keyboarding skills."  Among the relief sought in the complaint in addition to money, is an injunction preventing defendants from (among other things) "voluntarily disclosing the existence of this action," which of course Zack had already done himself by filing the complaint (not under seal).

Ironically, Zack's complaint has been typed reasonably well, by a person or persons unknown.  Perhaps he tapped it out one painful stroke at a time, during the two-and-a-half years that he has been trying unsuccessfully to find a job.

Link: Zachariasewycz v. Morris, Nichols, Arsht & Tunnell, LLP., et al. (complaint filed Nov. 28, 2006).

Georgia Court Rules Against Mom, in Favor of Harry Potter and Satan

Earlier this week, a judge in Gwinnett County, Georgia, chose to side with the forces of darkness by dismissing a lawsuit intended to protect schoolchildren from the witchcraft-inducing Harry Potter books.  This ends, for now, a two-year quest by suburban mom Laura Mallory to have the series removed from county schools.

Mallory told the court Tuesday that she has testimony from children who have read the books and have thought about using magic and acting out spells described there.  The school board's position is that the books help encourage children to read and think creatively, which is just what you would expect the Devil to say.  Mallory was not fooled.  "They don't want the Easter Bunny's power," she said of today's children.  "[They] want Harry's power, and they're getting it."  I guess the Easter Bunny has placed its mighty colored-egg-hiding power in the service of good, and that's reassuring, but apparently kids today are more interested in being able to fly and whatnot.

The only legal argument mentioned in the article was Mallory's position that, because witchcraft is a religion to some people, the Potter books should be banned because reading them in school thus violates the constitutional separation of church and state.  Ah!  Clever, but on a collision course with Mallory's other position: "I have a dream that God will be welcomed back in our schools again [once this other religion is kicked out]."  This slight inconsistency was ferreted out by the court, causing Mallory to lose and to tell reporters that, as the article put it, "it may be time to rethink her arguments with the help of an attorney," which she did not have.  "I maybe need a whole new case from the ground up," she told reporters.  Well, it's never too late to get one, except on appeal.

For much more info than you would ever want about how Harry Potter is of the Devil, you could go to the "Harry Potter is of the Devil" webpage.  Or (and this is probably safer) you can just imagine what that page is like based on the fact that, in addition to dozens of anti-Potter articles, it also warns against Buffy the Vampire Slayer, Sabrina the Teenage Witch, Casper, the UN, Pocahontas, Peter Jennings, the Pope, the Lion King, Bill Clinton, Pokemon, South Park, and somehow even "Touched by an Angel" and Christianity Today,  all of which appear to be joined in a vast Satanic conspiracy.

I always suspected Peter Jennings of being the Antichrist, but then I found out he was just Canadian.

The same types of charges have been leveled at the Potter books around the world, including in Russia, where the Moscow City Prosecutor's office declined to press charges against the publisher of a Russian-language version in 2002.  But Harry Potter has survived worse than that in Russia, including the far more serious charge that the character of Dobby the House Elf is "insulting to the head of state" because he looks too much like Vladimir Putin:

These conspiracies go far deeper than I ever imagined.

Link: Pensacola News Journal.com
Link: American Library Association (on the Russian case)

The $100 Million Cite-Check Mistake

Those of you who think that only dorks do cite-checking are . . . well, you're right, but unfortunately for you this is a dork-heavy profession.  It's part of the job description.  Case in point: whoever forgot to double-check a federal plea agreement with Walter Anderson, leaving the wrong statute cited therein, has potentially cost the government somewhere between $100 million and $175 million in restitution of unpaid taxes.  Seems like a decent reason to proofread.

Anderson is a telecommunications entrepreneur who the government says also put those entrepreneurial skills to good use hiding income from the IRS.  (It's a little humbling to note that this guy was able to hide almost half a billion dollars through a complicated setup of offshore corporations, and I'm still trying to figure out Schedule A.)  Anderson was prosecuted for tax evasion, sentenced to nine years in prison and ordered to repay $23 million to the District of Columbia.

But because the Justice Department listed the wrong statute in the plea documents, District Judge Paul Friedman said he could not order similar restitution to the federal government.  "I've come to the conclusion," he said Tuesday, "very reluctantly, that I have no authority to order restitution.  I hope the government will appeal me."

It probably will, although it seems to have its hands full these days.  A spokesperson did say that the U.S. Attorney's office would bring civil charges against Anderson, using "ample civil remedies available to recoup the money which are, in some respects, more efficient and quicker," though presumably less efficient and slower in other respects.

During his sentencing hearing on Tuesday, Anderson "appeared humbled but not overly apologetic."  He "took responsibility for his actions but said he never intended to defraud the government" just because he didn't file tax returns on more than $450 million in income over five tax years.  Anderson also said in his defense that the extra millions he kept weren't funding an opulent lifestyle.  (Which strikes me as not a very good defense, but I'm not a tax attorney.)  "For every time I ate in a nice restaurant," he said, "I also grabbed a doughnut or a burger in an airport.  I could have wasted millions.  I could have taken a limo everywhere."  He even occasionally flew coach, for Christ's sake.  What more can a man do?

Judge Frieman, unimpressed by Anderson's "could have wasted millions" defense, sentenced him near the top end of the possible range.  With time served he will be out in less than six years.

Link: CNN.com

Unrepentant City Council President Says He Took Bribes "For the People"

It was all for the people of Atlantic City, said former city council president Craig Callaway.  Since he was saying this at a sentencing hearing after being convicted of taking bribes from an FBI informant, it is possible that he was exaggerating his altruistic motives a bit.

Callaway, who was elected to the council in 2002 and ascended to the presidency the next year, was described as the head of a "political crew" that sought to maintain power in part by intimidating its opponents.  More specifically, he was described as a "man who routinely showed up at opponents' political events with a bullhorn to drown them out, and who once threw a brick through an opposing candidate's windshield."  He seemed to have the same kind of attitude on Tuesday as he was arriving at the courthouse, which he did "with his middle finger raised" as his supporters were "cursing, pushing and shoving reporters."

He had put that finger away, though, by the time he got before the judge, unless he used it to get out his handkerchief.  Callaway reportedly "blinked back tears" and "choked up" as he asked the judge to go easy on him.  "I stand before you today," he told Judge Joseph Rodriguez, "extremely remorseful, with a heavy heart."  It wasn't that clear what he was extremely remorseful about, though, because he said he had only taken the $36,000 in bribes in order to help his constituents, or that's what he implied, anyway: "The reason why I had a good relationship with the informant is because Mr. Jacobs was doing the right thing for the people of Atlantic City," he said.  "He hired local people, he empowered them economically."  (And part of a good relationship is accepting money that your partner wants to give you in exchange for favors.  It's just rude not to.)  "I just wanted to help the people," he continued.  "They are the real victims."

As CNN put it, "Callaway did not explain how pocketing $36,000 in bribes helped the people he represented."  Nor did his attorney, who nonetheless was able to build on his client's statements to make what might now be the leading candidate for legal argument of the year (although it's still early).  At least, he told the judge, his client had not tried to disguise the bribes as campaign contributions, and so should get some credit for not being disingenuous.  That honesty is noble indeed, plus he is remorseful, with a heavy heart.

On the other hand, Judge Rodriguez pointed out, this story of redemption and reform is a little inconsistent with the fact that, while out on bail awaiting sentencing, Callaway had tried to blackmail another councilman after setting him up to be filmed with a prostitute.  At least he did not try to hide the camera, his attorney might have said to that.  He should get some credit for being open about the blackmail.

Unimpressed, Judge Rodriguez sentenced Callaway to 40 months in prison, fined him $1000 and, in a blow to the good government that Atlantic City has obviously been enjoying, barred Callaway from ever again holding public office.

Link: CNN.com

Professor Will Fight for Freedom of Fecal Expression

Kathleen Ensz will go on trial in May on a misdemeanor charge for "use of a noxious substance," based on an incident last year in which she wrapped some of her dog's feces in a mailer she had received from the office of Rep. Marilyn Musgrave (R-CO) and returned the package to its point of origin.

Apparently, the perpetrator was unknown at the time, because the report says that Musgrave's campaign believed, or claimed to believe, that the incident was a "political dirty trick," and demanded an apology from Musgrave's likely Democratic opponent, state representative Angela Paccione.  The trick was certainly dirty, but Paccione's campaign denied involvement.  (Paccione lost, but the effect if any of this incident is unclear.)  The report did not say how officials came to learn that Ensz was responsible.

Ensz, a Democrat, said she was tired of getting mailings from the congresswoman's office and was simply expressing that view as clearly as possible.  Along those lines, Ensz's lawyer, Patricia Bangert, is asserting a First Amendment defense.  The act was "probably crude and boorish," Bangert admitted, but was a form of political protest all the same, one that she compared to Thomas Jefferson's criticism of King George III.

Not many people know that Jefferson left a burning bag of his own dung on the King's porch as a protest against British policy in America.  His personal papers, now at the Library of Congress, contain notes describing his game plan thusly: "First, I shall draft and publish my pamphlet A Summary View of the Rights of British America, to set our case before the world.  Should this not prove efficacious, then we go with the poop bag."

Jefferson was not the only famous example cited by Bangert at Tuesday's hearing.  "South Park" cartoon character "Mr. Hankey," described (correctly) as "an animated, talking piece of human excrement," was also invoked, apparently as evidence that it is common to use feces to express disdain.  "Etiquette and propriety aside, it is commonplace in today's society to equate a distasteful or disliked person, situation or thing, to feces," Bangert said.  It's hard to argue with that, but also hard to miss the distinction between equating a person with feces and actually giving them some.

Ensz will go on trial May 15, unless that argument works.

Link: AP via FindLaw.com