Lowering the Bar

Charges Dropped in "Weekend at Bernie's" Case

New York prosecutors dropped charges today against two men who had been charged with a number of offenses resulting from an attempt to cash a Social Security check in January.  The problem, as you may recall, was the body they brought along with them.

As the New York Times reported on January 9, James O'Hare and David Dalaia showed up at a check-cashing business with a check that belonged to Virgilio Cintron.  Apparently recognizing they might have some explaining to do, they took Mr. Cintron along with them, although to do so they had to put him in an office chair and wheel him down the street, since Mr. Cintron had recently died.  But the clerk, who knew Cintron from the neighborhood, asked where he was.  "He's outside," O'Hare said, pointing.

Which, of course, he was, along with a small crowd that had gathered after seeing the odd procession.  A detective who happened to be eating lunch nearby noticed the crowd, which led to the arrest.  Ultimately, O'Hare and Daloia were charged with forgery, criminal possession of a forged instrument, attempted petit larceny, and improper disposal of a body.  Of those, I think only larceny makes any sense, unless a body can be a "forged instrument."

At the time, the medical examiner found no signs of foul play in Mr. Cintron's death, and that conclusion was restated today by prosecutors, who also said the examiner could establish only that Cintron had died of natural causes sometime during the 24 hours prior to the check-cashing attempt.  Therefore, they could not disprove the defendants' story, which, if I am reading this report correctly, was that Cintron was alive when they left home and must have died as he was being wheeled down the street.

Link: AP via FindLaw.com

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

Court of Appeal Upholds Right to Private Drunkenness

In a recent case, the California Court of Appeal definitively resolved a legal question that has long puzzled scholars:

If a man is drunk inside a woodshed, and leaves the woodshed only at the request of police, can he be guilty of being found drunk in a public place?

Answer: no.

A 17-year-old in Plumas County, California, a county with three stoplights and an unknown number of woodsheds, was charged with "disorderly conduct" after a deputy found him inside a woodshed near a house where a party had been reported.  By the time the deputy arrived, the house was dark but "noises" could allegedly be heard from within a nearby woodshed.  (The nature of the "noises" were not specified further.)

The deputy's flashlight revealed a minor who, as he admitted, was drunk.  "Deputy Beatley asked the minor to come out of the shed," and then out to the street, and, fatefully, "the minor complied."  Deputy Beatley then cited the minor for disorderly conduct.

At a hearing, the trial court ruled that the minor could be charged under the statute, which prohibits being "found in any public place under the influence of intoxicating liquor," if the intoxicatee is "unable to exercise care for his own safety . . . ."  Cal. Penal Code sec. 647(f).  After some discussion of whether the minor had been found in a public place, the court found that he had because he "apparently came out willingly.  There was no evidence that he had to be dragged out of the shed."  Appeal followed.

I.  The Woodshed Was Not a "Public Place"

Based on existing precedent:

• Public places: barber shops, the hallways of an apartment building, and front yards that anyone can just walk into.
• A not-public place: a front yard that was fenced in, gated, and into which the defendant "released three dogs."
• Possible gray areas: front yards containing fewer than three dogs; woodsheds.

The court found insufficient evidence that the woodshed in question was a public place.  In a sweeping decision, it held that "a woodshed needs no barrier to establish that it is not open to common or general use," thus affirming the common-law doctrine that a man's home's woodshed is his castle's outbuilding.

II.  The Minor's Compliance With the Request to Come Out of the Woodshed Changes Nothing

Second, the court rejected the People's argument that, even if the woodshed was private, the minor had voluntarily followed the deputy out to the public street.  The court could have dispensed with this, it seems to me, by just following the statutory language.  Here, the deputy "found" the minor in what the court had just ruled was not a public place, so unless he blacked out while the kid was walking to the street, he could not have "found" him again.  Hey, it says "found," not "observed."

But the court went further, apparently wanting to clarify that, under the law, it is irrelevant whether a defendant comes into the public place of his own volition or not.  To draw such a distinction, the court pointed out, would only encourage intoxicated persons to defy authority, something the court seems to believe is otherwise uncommon.  Judgment reversed.

If you want to go up to Plumas County to see the famous woodshed for yourself, now is a great time, according to Plumas County.  In "Plumas Buzz," the blog of the Plumas County Visitors Bureau, the authors note that conditions for outdoor tourism are wonderful, despite the fact that new statistics suggest the population density may actually be almost 9 persons per square mile, not 8 as previously believed.  Eighty percent of Plumas is national forest, of course, so solitude and the beautiful scenery is the real attraction.

Don't expect nightlife:  "March 13, 2008:  Can you believe it? Two accordions at two different events for this weekend!  Can it get any better than that?"

Link: In re R.K. (Cal. App. 3d Dist. Mar. 25, 2008).
Link: Plumas County official website

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

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

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

Official on Trial for Corruption Reads Tearful, Plagiarized Apology

The former head of a state-owned power company in China, currently on trial for corruption charges, does not seem to have helped his case by reading a four-page apology letter in court this week.  While the apology seems to have been lengthy, and tearful, it also turned out to have been plagiarized from an apology somebody else had used less than two weeks before.

I should also note here for Western readers that typically, reading a lengthy "apology" during your trial is not a defense strategy we would recommend.  In China you may not have a choice.

Someone allegedly noticed that Zhang Shaocang's apology appeared quite similar to one that had been written by Zhu Fuzhong, a former village Communist party official, and that had been previously published in an official paper.  Plagiarism?  You be the judge:

• Zhu wrote: "Before working, I never gave much thought to money and regarded achievement as the starting point and end result of my work. . . . I gradually lost my bearings and the scope of my position."
• Zhang wrote: "Before working, I never gave much thought to money and regarded achievement as the starting point and end result of my work. . . . I gradually lost my bearings and the scope of my position."

Well, that does look suspicious.

On the other hand, presumably neither man wrote his apology in English.  And this report originated in the "Procuratorial Daily," which Reuters described as "the official paper of China's top prosecutions office," not a very neutral source.  Reuters says that the Procuratorial Daily "is distributed as reading material at many 'supervision venues,' [the term for] the often secret locations where Communist Party officials are held for questioning."  So I guess the allegation is that Mr. Zhang "stole" the apology from the reading material in the waiting room at his "supervision venue."

Forgive me for saying this seems a little like criticizing a Gitmo detainee for quoting somebody he heard on FOX News while waiting for his hearing.  (What do you think they have on in the waiting room -- NPR?)  He could very well be a criminal, but accusing him of plagiarism seems like piling on.

Because of the similarities, the court dismissed Zhang's apology as "show-boating."  So he'll be executed for that, too.

Link: Reuters

UPDATED AGAIN: Lawyer Has Client Tasered; Says He "Had No Choice"

A legal team in Southern California trying to create a defense exhibit has come under fire for what some might call "thinking outside the box," but others have suggested might be "illegal human experimentation."

George Engman is on trial in West Valley Superior Court for trespassing, public intoxication and resisting arrest after an incident at the Ontario Mills mall in 2006.  Engman claims that the police used excessive force when they detained him, and specifically that they shocked him 10 to 14 times with a Taser-style stun gun.  (It's not clear to me how this helps the defense -- it's still trespassing even if you get beaten up for doing it -- but the argument may be that he could not have resisted arrest because he was preoccupied with the 50,000 volts he'd been introduced to.)  The police say he was only shocked three times.  Thus the defense effort to conduct an experiment that would demonstrate the effects of repeated shocks on their client.

And what better way to demonstrate the effect of repeated shocks on your client than by inflicting repeated shocks on your client?  Engman's lawyer hired a consultant to do the tasering (possibly realizing it might not look good for counsel to zap the client himself).  The consultant shocked Engman "several times" with a stun gun and videotaped the proceedings.  To give credit where credit is due, the lawyer did not let his client face the tasering alone.  He also had himself tasered, as well as his brother (who is also his law partner).  The videotape, which reportedly "showed Engman writhing," was shown at a hearing last Wednesday, after which a few questions were raised.  ("Can I try that" was likely not among them.)

Specifically, the district attorney raised the question of whether the testing might have violated the "Protection of Human Subjects in Medical Experimentation Act."  See Cal. Health & Safety Code sec. 24170 et seq.  That law establishes an "experimental subject's bill of rights," basically constituting the subject's right to have the experiment fully explained, and requires informed consent.  It defines "medical experiment" to include "the use of a drug or device [or] electromagnetic radiation . . . in or upon a human subject in the practice or research of medicine" if that does not "directly benefit[] the subject."  It is unclear whether the client provided his consent in writing (though it seems clear he consented), and according to reports, the consultant admitted he was not certified to use a Taser.

But the defense argues that the test did (or was intended to) directly benefit the subject because it is part of a legal defense; maybe so, although a better argument might be that they were not "practicing medicine." And I would also argue that a prosecution for doing this might be barred by California's "litigation privilege" as well as by various constitutional provisions that protect the right of an accused to present a defense.  (I should make clear to my own clients that I'm not planning on experimenting on them any time soon, just thinking out loud.)  Engman's attorney said that the test was necessary to gather evidence because neither the DA nor the stun-gun manufacturer would provide studies explaining the kinds of wounds or marks that can be made by the device.  "We had no other choice," he said.  "We did it because our backs were up against the wall.  It was for the greater good."

The district attorney's office said last week that it was still to early to decide whether the shocker and/or any of the shockees would be prosecuted, but it seems unlikely.  A legal expert contacted by ABC News said the claim that the team was engaged in "research" sounded "laughable," although ABC did not report whether he himself actually laughed.

The TASER company's website provides a lot of research studies, and links to others, though I did not see any studies of the kind the defense was referring to.  But there is a lot of fairly comprehensive information on the site that could prove useful to everyone from scientists ("Effect of Varying Dart Separation along the Cardiac Axis on Ventricular Arrhythmia Induction during TASER Application") to the recently unthawed ("To many people, electricity sounds dangerous. Indeed, it can be").

Link: Orange County Register
Link: ABA Journal
Link: ABC News
Link: Research Studies Made Available on TASER.com

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

Biter Says Bites Were to Teach Bitee Not to Bite

Hector Pulido explained to police that, by biting his nephew repeatedly, he was only trying to teach his nephew that biting people is wrong.  Sure, in retrospect, he may have said, it's possible that actually biting a 3-year-old multiple times, occasionally in places where a 3-year-old should not be bitten by anyone, let alone by a 40-year-old man, was not the best way to go about this, but hindsight is 20/20.

This is not a very good explanation, but given that there were Hector-Pulido-sized bite marks all over the boy's body, I guess his options were fairly limited.  The usual stuff ("it was an accident," "mistakes were made," "I don't recall," you know the drill) doesn't really seem to fit.

I can recall my parents trying to teach me things by saying something like "How would you like it if someone did that to you?" -- actually, I can recall someone saying it during my last evaluation -- but none of these people ever bit me, no matter how tasty I got.  Still, it probably would get the point across.  Certainly Hector, as promised, has taught his nephew (as well as everyone on the Internet), that biting is wrong, if not exactly in the way he planned.

Link: AP via CBS News

IBS Added to List of Outstanding Criminal Defenses

IBS, of course, as criminal defense attorneys out there may or may not know, stands for Irritable Bowel Syndrome.  Helen Gallo asserted this defense last week in Clearwater, Florida, after she was arrested for shoplifting from a grocery store.  Gallo reportedly told authorities that she was unable to wait in line at the store because she has IBS. 

IBS may well cause one who suffers from it to leave someplace very quickly, but I haven't been able to find any medical evidence yet that it forces you to take other people's belongings with you when you go.

According to the Associated Press, Gallo, who is free on bail, did not return calls asking for comment on the story, and "it was not known if she had an attorney."  When and if she gets one, I sure hope he sticks with the IBS Defense.

Link: CourtTVnews.com

Florida Governor Is "Seriously Thinking" Of Pardoning Jim Morrison

According to the International Herald Tribune, Florida Governor Charlie Crist said today that he is "seriously thinking" of granting a posthumous pardon to Doors singer Jim Morrison.  (This is a major step forward since my report on this last week.)  Morrison was convicted in 1970 of indecent exposure and profanity stemming from a concert in Miami in 1969.  Morrison's appeal was still pending when he died, at the age of 27.

"That's really a kid," said the governor, "and obviously he was having some challenges."  In particular, he was having some challenges keeping his pants on, but at the age of 27, who didn't?  More importantly, Crist continued, "[t]here's some dispute about how solid the case was."  That's the point that Kerry Humpherys, who publishes Doors Collectors Magazine, and Dave Diamond, who has written for DCM, have been making for years.  As I reported last week, Diamond wrote a letter to Governor Crist last month (the most recent of several such letters), in which he pointed out the lack of evidence that Morrison had actually exposed himself, and that New York Governor George Pataki similarly pardoned Lenny Bruce (also posthumously) for an obscenity charge.

Governor Crist expressed admiration for Morrison's work.  "I can remember when I was 10 years old listening to the song, 'Come On Baby Light My Fire' [i.e., 'Light My Fire'].  Classic.  Classic.  And to have that much talent and to have it sucked out [by drugs], even if there was some self-involvement . . . that's very sad and very tragic."  He seemed sincerely sympathetic to the cause.  "Trying to clear his name and then he dies . . . . If you have a heart pounding in your chest, that has to tug at you a little bit.  It should."

"Lowering the Bar" readers, virtually all of whom do have hearts pounding in their chests -- and some of whom really should have that looked at -- also have been generally sympathetic.  Almost eighty percent of readers are currently supporting the Morrison pardon.  Morrison's father, a retired admiral, is reportedly very happy at the prospect of a pardon, and keyboardist Ray Manzarek (who, the IHT reported, "never saw Morrison expose himself") was said to be "elated."  "Wouldn't it be great," he said, "if Florida could finally say, 'Hey, native son, your name is cleared.  We recognize you as a young American poet.'"

Governor Crist said that his legal team was reviewing the case and considering procedure, but he did not say how long the review might take.

Link: International Herald Tribune

UPDATE: Convictions in "Band-Aid Bandit" Case

On April 12, a jury in Tampa convicted Rafael Angel Rondon of being the "Band-Aid Bandit," suspected in the robberies of 39 banks in nine counties between 2000 and 2006.  Rondon's brother-in-law, Emeregildo Roman, was also convicted.

The report did not say whether the two alternated in wearing the Band-Aid, or whether Rondon was el Bandito Primero and his brother-in-law just wore one of those little round Band-Aids, to signify his sidekick status.

Defense attorneys argued that authorities had the wrong men, possibly saying something like,  "Ladies and gentlemen of the jury, just because my client happens to have a coincidentally located mole, a silver revolver similar to the Bandit's, car tags that match the getaway car, $90,000 in cash in his house with the robbed bank's name on the wrappers, and a brother-in-law who also happened to have thousands in cash, disguises and a gun of his own in his home, does not make him the Band-Aid Bandit."

Well, I guess that is all circumstantial evidence.  Still, why not try out some other possible arguments:

1. Offer a substantial reward for the "real bandits";
2. Point to the total lack of DNA evidence;
3. Point to the total lack of similarity with any "Law & Order" plotline; or
4. Blame society for its cruel discrimination against those with distinctive moles.

Worth a try.

Link: AP via FindLaw.com

Definition of "Vehicle" Tested in Recent Drunk-Driving Cases

Two recent cases may be of interest to those charged with operating something or other while under the influence of something or other, or to those struck by such a person, or to the attorneys for any such party.  Or to you.

In New Jersey, Superior Court Judge Joseph Falcone ruled on Monday that an operator of a Zamboni ice-rink-grooming machine cannot be convicted of drunk driving because a Zamboni is not a "motor vehicle" under state law.  John Peragallo was charged with drunk Zamboni driving after a fellow employee at the Mennen Sports Arena apparently called police to tell them that Peragallo was "speeding" and had "nearly crashed" into the boards of the ice rink.  Personally, I think any claim that a Zamboni was "speeding" should immediately raise suspicion itself, since, as I know from prior research, a Zamboni will top out at less than five miles per hour.  But police did find that Peragallo's blood-alcohol level was .12 percent, well over the limit.  His license (to drive anything, I guess) was revoked.

But Peragallo appealed to the Superior Court, and Judge Falcone found in his favor, overturning the sentence.  The judge ruled that a Zamboni is not a "motor vehicle," as required by New Jersey Statutes section 39:4-50, because it isn't usable on highways and can't carry passengers.  Peragallo's attorney, James Porfido, called the ruling "a vindication for my client."

And it was a vindication, but it was also, obviously, wrong.  As I reported last year, two employees of a rink in Boise, Idaho, were fired last November after they each took a Zamboni on a late-night fast-food run to the Burger King drive-through.  And they did of course use the public streets for the 1.5-mile (20-minute) successful round trip.  Clearly, then, a Zamboni can be used on a public street or highway, even if only very very slowly.  The fact that Peragallo was not using it on a highway at the time of his offense does not change its status as a "motor vehicle."  And, as this picture demonstrates, any Zamboni is easily big enough to carry several passengers in addition to the driver.

The conclusion seems unavoidable that Peragallo's conviction should have been upheld, although I have no problem with the penalties being sharply reduced.

On the other hand, a 40-year-old woman in Alabama could well be convicted of operating a horse while under the influence, based on an incident Saturday in which she rode through the northeast Alabama town of Sylvania at midnight, interfering with traffic and refusing to respond to police commands.  Police said the woman would not get off the horse and eventually tried to charge a police car.  She was taken into custody when she did try to jump off, but caught her foot in a stirrup, and was discovered to be in possession of a small amount of marijuana and a larger amount of crystal meth.

Unlike New Jersey's law, the relevant Alabama statute makes it illegal to ride "any vehicle" while under the influence, not just "motor vehicles," which may reflect the relatively recent introduction of the motor vehicle to northeast Alabama.  It seems hard to dispute that a horse would qualify as a "vehicle," and so the midnight rider will likely be unable to use the Zamboni defense.  But given the other charges she may be facing, riding while intoxicated is probably the least of her worries.

Link: MSNBC.com
Link: Yahoo! News

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

China Says Its Courts Will Be More Cautious With Death Penalty

In a joint statement released on Sunday, the top legal bodies of the People's Republic of China have declared that the country should "gradually reduce" the number of executions it carries out, and should be a little more careful in deciding who gets whacked.

The additional caution might just make a difference, given that, according to Amnesty International, China executed at least 1,770 people in 2005 -- 80 percent of all the known executions in the world that year -- and the real number may be as high as 10,000.  While I have my calculator out, the higher number would mean one less alleged felon every 52 minutes, during which time another 692 new Chinese would be born, plus another one just over halfway out, and now it is time to put my calculator away.

This new concern for civil rights comes after a series of high-profile cases that have somewhat embarrassed the regime, which may or may not have anything to do with the upcoming Olympics.  In one famous case, a man was convicted of killing a woman in the 1980s in Hunan province after he allegedly confessed to the murder, and was executed.  She inconveniently showed up in 2005, unmurdered.

Hence, an increased concern in China today about executions -- at least to some degree.  "Our country still cannot abolish the death penalty," the statement said, although the day when it can is probably just around the corner, "but should gradually reduce its application."  For example, it continued, "where there is a possibility someone should not be executed, then without exception the person should not be killed."  That ought to have Amnesty International breaking out the noisemakers.

In two other radical changes, the authorities also suggested that, in the future, suspects should not be tortured into making confessions, and condemned prisoners should not be paraded through the streets before being executed.  That last one should come as a relief, since parades can get exhausting when you have to have one every 52 minutes.

Link: AP via FindLaw.com

Toga Party Attendance is Critical in Abu Ghraib Defense

Lt. Col. Steven Jordan is currently on trial for 12 charges relating to the torture -- sorry, "maltreatment" -- of detainees at Abu Ghraib prison.  His defense attorneys have argued that Jordan was actually not in charge of the interrogation center at the time of the alleged offenses (between September and December of 2003), and that Col. Thomas Pappas was in charge then.  Given the timing involved, It appears to have become a critical question whether Col. Pappas attended a Halloween 2003 toga party at Abu Ghraib and spoke to the troops to "lift their spirits," that being some evidence that he was the one in charge.

Off the top of my head, three thoughts:

1. It's a little surprising, but maybe shouldn't be, that the Army doesn't really know for sure who was in charge of what and when.  I thought that this was an issue of some importance in the armed forces, but I admit I am not a veteran.  Maybe they just "wing it."
2. It seems highly unlikely that people already at a toga party would need any cheering up, at least at that particular moment.  The idea of a bunch of guys moping around in togas just does not really ring true.
3. They had toga parties at Abu Ghraib.  Sadly, that does ring true.

Jordan, who would have been the "Otter" in the Abu Ghraib version of "Animal House," is the highest-ranking officer to be charged for what happened at Abu Ghraib.  Pappas ("Bluto" Blutarsky) was reprimanded and fined $8,000 for approving the use of dogs during an investigation, but has not been criminally charged.

Undated picture may show Pappas
supervising the 124th Military Intelligence Brigade.

Did I just compare Abu Ghraib to "Animal House"?  Good God.  Although, the AP did it first. I blame the media for its superficial treatment of this important issue.

Link: AP via FindLaw.com

New Defense Strategy: Put Your Client's Head in a Box

Representing a criminal defendant in Greensburg, Pennslyvania, Jeff Leonard was concerned that a witness to the crime might be present at the courthouse at the same time his client was supposed to show up for a preliminary hearing.  Because the witness was scheduled to look at a photo lineup that same day, Leonard did not want the witness to see his client's face beforehand.  The solution was obvious:

Note that in order to make a favorable impression on the judge, Client X also followed his attorney's advice to dress professionally, wearing a dress shirt and tie, colors carefully coordinated with the box.

Client X arrived early for a 10:45 a.m. hearing, which may not have been the best idea since he then had to sit in a public waiting room wearing a box on his head.  This did shield his identity but did not avoid calling unwanted attention to the client.  "All he's doing is standing out more," said a witness (to the box, not the crime).  "If he was trying not to be known, he shouldn't have the box.  He should be standing in the corner somewhere."  This witness also assumed that Client X had either committed a very serious crime or was in some sort of "witness protection program."

That was the smartest thing any of the onlookers were quoted as saying.  The article quoted three courthouse workers who had heard about the box and made their way downstairs to get a look, which seems to have resulted in the following exchange:

Worker #1: What?
Worker #2: Did you see that?
Worker #3: There's a guy with a box on his head [points at box].

That sounds more like something from "My Name is Earl" than an actual conversation that people would have.  Too bad the rest of the workers didn't come down:

Worker #4: The man with the box is sitting in a chair.
Worker #5: Yes.  He is.  Look at him [points].  Look at him sit.
Worker #6: Because of the box we cannot see his face.
Worker #7: We must kill him as a warning to others.

Leonard said that the box was his idea and that he thought it would "force the commonwealth to meet its burden without the defendant having to reveal his identity."  He could not resist saying that he had been "trying to think outside the box, so to speak."  That was probably hilarious to his client, but what the client might have been thinking inside the box was not reported.

The precautions turned out to be unnecessary, as the judge seems to have accepted a plea bargain under which the charges -- stealing $600 worth of wire -- would be dropped as long as Box Man, who had no prior criminal record, paid for the wire.  Arresting officer Chris Kent was not that happy about the deal, but managed to get a decent quip in as he called Leonard and his client into a meeting room to discuss what would happen next.  "You and your Happy Meal want to come back here?" he was quoted as saying, which is really pretty good.

Sadly, Happy Meal Box Man did not comment on the case before leaving the courthouse, let alone call a press conference.

Link: Pittsburgh Tribune-Review

Nebraska Supreme Court Spares Life of Dog

On Friday, the Nebraska Supreme Court vacated the death sentence that had been meted out to Murphy, an Alaskan-malamute-shepherd mix, for injuring a neighbor dog in 2001.

The state supreme court reviews such cases in Nebraska because it has little else to do, as there are only a few dozen hardy pioneer families that still huddle in that cold and barren landscape and so few cases arise there. At least, I can't think of another reason.

But it was good news for Murphy, anyway. The high court concluded that "the order for the destruction of the dog was not reasonable" and that the county court issuing the order had abused its discretion. The court noted that the injuries to the other dog were "relatively minor," that the other dog's owner had not even taken it to the vet for two days, and even then the bill was only $34.06.

None of which had prevented the lawyers involved from wielding the usual rhetoric. At the hearing last year, Assistant Attorney General Kim Klein, prosecuting the assailant, described her attacks on other dogs as "deliberate and vicious." (How the State normally proves canine intent in cases like this was not disclosed.) For his part, dog defense lawyer Mark Fahleson said that it was the authorities who were the real criminals, as they had demonstrated "a bloodthirsty vengeance once thought reserved for only the most cold-blooded of human killers."

AP via Yahoo! News