Lowering the Bar

New Video Questions Dupre's Claim

Welcome back to the case that poses the following legal questions, among others:

1. Is it possible to have less than zero credibility, and
2. What happens if both parties to a lawsuit suffer from that handicap?

I think the answer to the first question is yes -- if a credibility level of zero means that no one believes anything you say, then negative credibility would mean that, just because you say something, people are more likely to believe the opposite is true.  In legal terms, we would call that an inference or possibly a rebuttable presumption of falsity as to any fact to which the witness might testify.

The second question is harder, but it's clearly at issue in the case filed on April 28 by Ashley Dupre (a.k.a. "Kristen") against "Girls Gone Wild" founder Joe Francis.  Dupre's allegation that she had no idea what "Girls Gone Wild" was all about did not really have the ring of truth, but then neither did Francis's comment that he was shocked, shocked, to discover there was drinking going on and that he personally put Dupre on a bus home as soon as he learned this deeply disturbing fact.

At that point, it looked like this credibility battle was already at the Rocky-II-Finale stage, in which both fighters are laying on the canvas and neither one should get up but you figure one probably will at the end if only because Burgess Meredith won't shut up otherwise.  But the next day, Francis got in another punch.  Late on Tuesday, April 29, he released a video that he said proved the falsity of Dupre's allegations that she had not consented.  Maybe -- you be the judge:

Complaint, Paragraphs 13 and 14 (emphasis added):

13.   At no time did Plaintiff consent to any use of her likeness or image in any manner or to be used for the advertisement or commercial gain of the Defendants.

14.  It is the regular business practice of Defendants . . . to induce unsuspecting young girls to perform for their cameras.

Video released today:

Q: Do you know what "Girls Gone Wild" is?

A: [laughs] Yes, I do.

Q: Can I use this on "Girls Gone Wild"?

A: Of course you can.

The video also shows Dupre displaying a fake ID.  That of course does not prove that Francis didn't know he was dealing with underage girls, or that a 17-year-old's consent would be legally valid.  But it does tend to undermine Paragraphs 13 and 14.

Really, both parties ought to stand down at this point, before they reach critical mass and form a credibility black hole from which no truthful statement would ever be able to emerge.  Though I'm concerned it may already be too late.

Link:  MSNBC.com

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

Police Stop of Ax-Wielding Bike Rider Found Justified

In a classic opinion of which I have just learned, the California Court of Appeal ruled in 1998 that police were in fact justified in detaining a man they saw on a bicycle at 3:00 in the morning, primarily because they noticed he was also carrying a large ax at the time.

Not only are the facts good, but the opinion in People v. Foranyic was written by Justice William Bedsworth, who was profiled in the Daily Journal on February 21 and who is the author of the long-running humor column, A Criminal Waste of Space.  Definitely worth reading.

Unsurprisingly, the appeal arose from the denial of a motion to suppress evidence.  Mr. Foranyic was found to be carrying methamphetamine, along with the ax, but he argued that there had been no "suspicious circumstances" justifying the stop under Terry v. Ohio.  "Thus are we called upon," wrote Justice Bedsworth, "to decide whether police may detain a man with an ax riding a bicycle at 3 a.m."

Answer: yes.

We conclude that a reasonable police officer, considering the totality of the circumstances, would reasonably suspect criminal activity might be afoot upon viewing someone on a bicycle, with an ax, at 3 in the morning. Certainly we would expect a diligent officer to investigate such unusual behavior through the relatively unintrusive means of a detention. This is so even though no recent “ax crime” had been reported.

For while Foranyic insists there was nothing about him which suggested criminal activity, he is unable to suggest, and we cannot conceive of, much in the way of noncriminal activity which is accomplished with an ax in the dead of night. The officer could reasonably eliminate firefighting and lumberjacking from the list of possible pursuits Foranyic might have been engaged in.

* * *

[T]here is some activity which is so unusual, so far removed from everyday experience that it cries out for investigation. Such activity will justify a detention even when there is no specific crime to which it seems to relate.  We view this as such conduct. While it is true that there are many legitimate uses for an ax, they are generally daylight activities.

Emphasis in original.  This is quality judicial work that, especially given the fact pattern, fully justifies an addition to Lowering the Bar's Case Law Hall of Fame.

Link: People v. Foranyic, 64 Cal. App. 4th 186 (1998).

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

Accused Robber Gets New Trial After Jurors Find New Evidence in Coat

Note to self: if a coat is going to be admitted into evidence and sent to the jury room, check the pockets first.

A defendant in Hagerstown, Maryland, was granted a new trial on December 12 after jurors found new evidence in the coat when they were examining it during deliberations.  The coat had allegedly been worn during an armed robbery and was presumably offered as an exhibit for purposes of identifying the defendant.

Someone forgot an extremely important rule of evidence: If Clothing Is Sent to the Jury Room, Jurors Will Go Through the Pockets.  In this case, the jurors found a rubber glove, a bandage, and more importantly, a money roll totalling $1300.

The state's attorney insisted that he (or, more specifically, his assistant state's attorney) had in fact gone through the pockets before using the coat at trial, but he had difficulty explaining why they didn't find the money if that was true.  He speculated that it "must have been in hidden pockets or in holes in the pockets" of the defendant's parka.  Maybe, although even if the money roll was made up entirely of twenties, an unscientific experiment I conducted just now by taking a bunch of money out of my wallet here at the coffee shop and loudly saying "I wonder how big a money roll all these twenties would make,"  in what was really not so much an experiment as a sad and desperate effort to get these models to  notice me, suggested that a roll of that size would be at least a couple of inches wide and therefore sort of hard to miss even if it was in a "hidden pocket."

The jurors, at least, were unsure how the stuff could have been missed.  "You would think," said one, "that with all the law enforcement people that had been involved with the case that everything would have been gone over with a fine-toothed comb - and then that fine-toothed comb would have had another fine-toothed comb going over it." Sounds to me like somebody owns a fine-toothed-comb company and is trying to double her profits.  You could always say there should have been "just one more fine-toothed comb" combing the previous combs, but in the real world, budgets and combs are limited.

The jury convicted the man in October, but Judge Theresa Adams granted the defense's motion for a new trial this week because of the evidentiary issue.  Though getting a new trial is good for him, it may not make a lot of difference if the money and glove are admissible the next time around.  According to the report, the defense arguments centered on the inability of the police to find any cash or fingerprints.

Link: Asbury Park Press (New Jersey)

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

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.

"Folksy" Language Unfortunate for Litigation Purposes

The L.A. Times runs a story today about allegations that the U-Haul corporation has lost or "spoliated" evidence in various cases over the years.  The good part of the story (from my point of view) is its description of an old document that came up in a 2001 case in which U-Haul was sued by a man who alleged he was injured by a defective transmission.

After various complaints in that case that U-Haul was "stonewalling" and/or had spoliated evidence, Judge Robert Redding eventually sanctioned the company.  He fined U-Haul $10,000 and warned it that if the case went to trial, he would allow plaintiff to present a piece of evidence that the judge described as "that tasteless piece of literature."

It apparently has also been referred to as "the 'dumb shit' memo."

In the memo, written in 1976 by U-Haul founder and former chairman L.S. Shoen, Shoen chose to give advice to U-Haul managers who might be called to testify.  Don't lie, he said, but "embrace the fleeting nature of memory" (I think that's the Times paraphrasing, not a quote from the memo).  "After 48 hours," Shoen wrote, "the memory curve drops off to approximately 10% of what we originally saw or heard," he wrote. "So the first rule is to realize that you are a 'dumb shit' and be glad that you are."  (The 2001 case settled.)

The Times did not cite any evidence that the "dumb shit memo" ever actually influenced any manager to give "10%" testimony, and U-Haul's current lawyers pointed out to the Times that this was a 40-year-old memo that had only given some sensible advice anyway.  An assistant GC for U-Haul described the memo as "simply a folksy — and sensible — reminder that if you do not know the answer to a question, then say you do not know. This is the same advice given to witnesses every day by lawyers."  We just tend to be less folksy about these kinds of things.

Link: Los Angeles Times (full story)
Link: Los Angeles Times (the part about the memo)

Defendant Learns Why Blogging About Your Own Trial is a Bad Idea

A tool or device probably can't be considered inherently bad in and of itself.  A case could be made that some, like the atomic bomb or the BlackBerry, are so dangerous or destructive that they should be banned entirely because there is just no good way to use them without unacceptable risk.  But such examples are pretty rare.  Same for blogging.  Blogging can be a great way to share information, or it can be a very bad idea; it depends how you blog, and who or what you blog about.

Here's a suggestion -- blogging about your own trial is probably not a good idea.  If you are the defendant, do not (for example) reveal the defense strategy of the case, or accuse jurors of not paying attention.  This is because blogs appear on something called the "Internet," which can be viewed by something called "the public."  And this can come back to bite something called "your ass."

This lesson was learned by Dr. Robert Lindeman last month.  Lindeman is a pediatrician who had been sued for malpractice.  He also writes, or until recently wrote, a blog called "drfleablog," in which a blogger named "Flea" writes about medical issues, including issues relating to, let's say, the ongoing trial of a malpractice suit against a pediatrician.  A week or two before that trial began, the plaintiff's attorney had learned about the blog, and apparently monitored it to see what might turn up there during trial.  "Flea" began to post some fairly embarrassing comments, which led to an unusual cross-examination question: "Are you 'Flea'?"  He was.

Plaintiff's counsel did not go into much, if any, detail about drfleablog at that point, but had gotten her point across.  Lindeman settled the next morning for what was described as a "substantial" sum.

Link: Boston Globe

Angry Parrot Leads Police to Thief

Police in southwestern England were able to track down a bird thief (apparently at the top of their to-do list these days) after the parrot he stole managed to leave them a vital clue.  Tristand Maidment stole Mickey the Macaw from a pet shop in Frome, England, last month, after a lengthy search to find a pet with a name dumber than his own.

Though Maidment said he did not remember it, Mickey bit him during the struggle, or fracas, or whatever you would call this kind of a fight, and the bite was apparently serious enough to leave a trail of blood that police were able to use to obtain a DNA match.

Mickey's owner was not surprised by the heroism of his parrot, who he described as "notoriously bad-tempered."

Link: AP via MyWay News