Lowering the Bar

En Banc Rehearing Denied in Pants Case; Is Supreme Court Next?

When we last saw Roy Pearson, he had filed a petition asking the full D.C. Court of Appeals to rehear his case en banc.  As you likely recall, Pearson is the former judge who sued his dry cleaner for allegedly losing a pair of pants, ultimately claiming $65 million in damages -- $65 million more than he ultimately recovered.  On March 2, the court denied the petition for en banc rehearing.  That exhausts Pearson's opportunities for appeal and marks an end to this momentous legal struggle.

Or does it?

Earlier today (March 7), I saw, or thought I saw, a TV report that Pearson had in fact filed a petition for certiorari in the United States Supreme Court.  It is hard to think of a basis for such an appeal, even in theory, but Pearson could probably gin up some kind of a due process argument.  So far, though, I have been unable to confirm the report.  I might have dreamed it, but time will tell.

Link: WTOP.com (Washington, D.C.)

Pearson Returns; Seeks En Banc Hearing in Pants Case

Today brings the expected but still welcome news that former administrative judge Roy Pearson is still pursuing his case against the dry cleaners who allegedly lost his pants (shown, left, at a post-trial fundraiser in their honor).  This is despite the fact that a unanimous panel of the D.C. Court of Appeals ruled against Pearson last month.  He filed a petition today asking that the full court hear his case en banc.

That will be denied, I boldly predict, although I suppose there might be some delay if there is a fight among the nine judges as to who gets to deny it.  The real question, in my mind, is whether Pearson will be able to come up with some way to justify a petition to the U.S. Supreme Court.  That may be beyond even Roy Pearson, but his powers of frivolous litigation should not be underestimated.

Link: MSNBC.com

D.C. Court of Appeals Rejects Appeal in $54 Million Pants Case

With great sadness I must report that the D.C. Court of Appeals has ruled against former judge Roy Pearson, so there will be no new trial on his claim that his dry cleaners lost a pair of his pants.  Pearson had valued this claim at $54 million.

There is hope, however, because Pearson can (and based on his past history, almost certainly will) seek en banc review, and if necessary appeal to the U.S. Supreme Court, the International Court of Human Rights, and/or the High Tribunal of the Galactic Council of Races, if and when that body is created and/or discovered to exist.  (He may have even greater difficulty in that court, however, since he may first have to explain to at least some of them the whole concept of "pants.")

Link: MSNBC.com

Americans Still Struggling With Pants

I'm back from Greece, without much to report in terms of legal developments there, at least during the last 2500 years or so.  Not that they didn't come up with some interesting stuff, like ostracizing unpopular politicians for ten years at a time (something to think about), but mostly it's a bit stale at this point to be featured in a blog post.  I will mention that there is apparently a law there at the moment that requires Greek drivers to pass any other car on the road regardless of risk or necessity.  I don't know how else to explain, for example, a driver passing three cars and a truck at once while going uphill on a narrow mountain road with another truck in plain view in the oncoming lane.  I seriously doubt he really needed to get somewhere in a hurry (see "no developments during the last 2500 years," supra).

Also, other big-firm lawyers may be interested to learn, as I did, that outside the office there is a large ball of fire in the sky that is able to burn the skin of any pasty-white litigator exposed to it for more than .5 hours or so.  Can they make a BlackBerry big enough to hide under?  God, I hope so.

Anyway, having returned I was happy to find out that, for purposes of this effort, not much had changed.  Case in point: America continues to struggle with pants-related legal issues.  Just before I left, Florida police made the first arrest under one of the ever-growing number of anti-baggy-pants ordinances.  And now I return to find that a Florida judge, in that very case, has made the first ruling striking down one of those ordinances as unconstitutional (as applied).

"Somebody help me [understand]," the judge was quoted as saying.  He pointed out that this was not even a buttock-exposure case.  "No!  We're talking about someone who has on pants whose underwear are apparently visible to a police officer who then makes an arrest and the basis is he's then held overnight, no bond.  No bond!"  I'm going to blame the reporter for that middle sentence, but the important thing is the ruling, which was that the law was unconstitutional as applied to "the limited facts of this case."  That was more important to the defendant than you might think, because though ordinarily he would have faced only a fine for the pants infraction, it turned out he was already on probation.  Police said the pants charge was a violation, and sent him to jail for that.  (And no bond!)

The defendant is not completely off the hook yet, but has been released on his own recognizance for the moment.  The public defender said her office was prepared to appeal if necessary, and I sure hope it will be.

Also back in the news: perennial favorite Roy Pearson, still pursuing justice although his 54-million-dollar lost-pants claim was less than successful in the trial court.  After a trial that featured some dramatic Pearsonian testimony, complete with actual tears, a D.C. judge ruled that his dry cleaners had not violated the consumer-protection law by failing to satisfy all his demands.  Pearson appealed (a development Custom Cleaners' attorney called "unsurprising"), and oral argument has now been set for October 22.

According to the report, despite their victory the defendants have since sold Custom Cleaners, citing stress and lost revenue due to the lawsuit.  Hopefully they are happier cleaners now at their new shop, Happy Cleaners.  Pearson, though, has not moved on.  He has not only appealed the pants case, but has also sued the D.C. government hoping to get his job back.  As you may recall, Pearson was an administrative judge for the District, but was not reappointed.  The commission denied that the decision had anything to do with the pants incident, but time will tell.

Link: Palm Beach Post (on the pants ruling)
Link: Toronto Star (same, but in Canada)
Link: Law.com (on the impending return of Judge Pearson)
Link: Legal Times (same)

TRO Denied; Obama Can Still Run -- For Now

The Obama campaign is probably breathing a sigh of relief now that the motion for temporary restraining order sought by Philip J. Berg, Esquire, has been denied.  Berg, who says he is a Democrat (and presumably a Clinton supporter), filed a lawsuit last Thursday in the Eastern District of Pennsylvania against Obama, the DNC and the FEC, claiming that Obama can't be president because he isn't a "natural born Citizen," as required by Article II, Section I of the Constitution.  Berg also immediately sought a TRO to "put a stop to Defendant Obama's fraudulent campaign scheme."

Berg is a Pennsylvania attorney who is acting pro se.  While the skepticism that usually attaches to pro se plaintiffs may not be justified, generally speaking -- except that it is -- Berg did not help his credibility by referring to himself under "Parties" as "Plaintiff, Plaintiff, Philip J. Berg, Esquire [hereinafter "Plaintiff"] . . . ."

First, it is usually possible to figure out who the plaintiff is in a lawsuit without that kind of bracketed help, especially when he has called himself that twice already in the same sentence.  Second, Plaintiff Plaintiff Berg, you're suing a presidential candidate on the eve of the nominating convention and you couldn't take a second to proofread the sentence with your own name in it?  Please.

Obama -- or, as Berg calls him, "Defendant Barack Hussein Obama, a/k/a Barry Soetoro, a/k/a Barry Obama, a/k/a Barack Dunham, a/k/a Barry Dunham [hereinafter 'Obama']," is running for president.  But he can't be president, according to Berg, who charges that Obama is not a "natural born citizen" because, "just to name one of the problems," he "lost his U.S. citizenship when his mother married an Indonesian citizen" and the family moved there.  Just to name two of the problems with that argument, (1) it concedes that Obama had U.S. citizenship to lose, and (2) you don't lose citizenship just because your mom marries a non-citizen, even if you move.  Berg did not cite any support for this point, though he did set it forth in bold underlining, which is almost as good.

For the most part, Berg just raises "questions" about Obama's birthplace (Berg claims it was Kenya) and citizenship, and then charges that Obama "has refused to prove" he is qualified to run.  The complaint concedes that Obama has posted a birth certificate on his website, but, Berg says, "as posted all over the internet," that is a forgery.  And as we should all know by now, anything posted all over the internet must be true.

The complaint includes three counts: (1) violation of Article II, Section I of the Constitution; (2) "dual citizenship," and (3) fraud.  Berg concludes, "For the above aforementioned reasons, Obama needs to immediately step down and withdrawal his candidacy for Presidency."

What is especially amusing about all this is that, as Berg may or may not know, the other guy in the race has the same problem, if it is a problem.  John McCain was not born in the U.S. -- he was born in the Canal Zone.  There is no question that he is a U.S. citizen.  But Article II doesn't say "citizen" -- it says "natural born Citizen."  And, it seems, nobody really knows for sure what that means.  Barry Goldwater had the same problem (he was born in the Arizona Territory), as did Mitt Romney's dad, George, who was born in Mexico.  They weren't disqualified from running, despite the legal uncertainty about the term.  George Romney's opponent apparently did insist on calling him "Jorge," but that's the worst that has happened so far.

Obama's "campaign scheme" can go forward, at least for now, because the motion was denied after a hearing on Friday.  Sadly, a transcript of that hearing does not yet seem to be available, but the pleadings (downloaded from the court via PACER) are posted below.

Link: iReport.com (Flash required)
Link: Complaint in Berg v. Obama (PDF)
Link: Motion for TRO in Berg v. Obama (PDF)
Link: Order Denying TRO in Berg v. Obama (PDF)

Poorly Faked Heart Attack Fails to Result in Mistrial

This story shows the importance of proper training before appearing in a courtroom, even (well, especially) if one has decided to represent oneself.  And depending on the strategy, acting lessons may be a good idea.

Keison Wilkins may have thought he could ignore these principles since he successfully defended himself once before, in 2005.  This case also involved felonious-assault charges, apparently based on the attempted murder of a man in Dayton, Ohio.  Whatever Wilkins' legal strategy was this time around, it wasn't going very well, and Wilkins increasingly resorted to "antics" designed to disrupt the proceedings and force a mistrial.  The judge did have to clear the courtroom frequently, but the trial went on.

This happened often enough that by the time Wilkins tried to fake a heart attack during closing arguments, nobody was even paying attention anymore.

In this highly entertaining courtroom video footage, deputies react to Wilkins falling over, but other than that it is clear that no one is buying the act for a second.  The judge is shown shuffling papers as Wilkins clutches his chest.  Note also the lack of any reaction whatsoever by the attorney in the front row.  The judge has Wilkins checked by a nurse, who finds nothing wrong with him, but Wilkins tenaciously sticks with his plan -- even after being put back in his chair and then showing an obvious reaction to an ammonia stick placed under his nose.  The video is worth 3 minutes and 41 seconds of your time.

There will be plenty of time to get fake medical care for that fake heart condition, since Wilkins, a repeat offender, was sentenced to 42 years in prison.

Link: Dayton Daily News

"Lawyer Who Wouldn't Stop Talking" Talks His Way to Suspension

Some of you probably think the phrase "lawyer who wouldn't stop talking" is redundant, but it isn't quite.  There is a time for talking, and a time for not talking; and one good time for not talking is just after a judge has ordered you to stop talking or be sent to jail.

Herbert Moncier's failure to follow this rule not only got him jail time, it led to a disciplinary opinion by the Eastern District of Tennessee.  How did that come out?  Well, I don't want to ruin the suspense, but here are two clues: (1) the opinion is 80 pages long, and (2) it cites cases dating back to 1812.

According to the opinion, Moncier's troubles began during a 2006 hearing in which Moncier

• "repeatedly interrupted or spoke over the presiding judge,"
• "accused the prosecution of engaging in a conspiracy to prevent him from trying cases due to his success in past trials,"
• threatened to "sit there and remain mute," apparently a threat to refuse to defend his client,
• "contradict[ed] the court's admonishment," and finally
• "disobeyed a direct order from the court that he stop interrupting and not say another word."

After that last one, Moncier was stuck chatting with the bailiff on his way to a cell.

He was later convicted of criminal contempt of court.  The recent opinion was issued in a separate disciplinary action before the court's chief judge, who ordered Moncier in January to show cause why he should not be suspended from practicing law.  Here's a tip: you should respond to orders like that, rather than filing a motion of your own.  Moncier in fact filed four, with a success rate of approximately zero percent.  His response, when he finally filed one, was described by the court as lacking "a single challenge to any of the substantive findings or recommendations . . . ."  The arguments were also described in the following ways:

• "inadequately explained, legally unsupported, and factually barren,"
• "often evasive, revisionist, and self-serving,"
• "defies credibility,"
• "shifting, post-hoc rationalizations,"
• "exasperating,"
• "incredibly disappointing,"
• "specious,"
• "completely baseless," and
• making "incredible assertion[s]."

At that point the courthouse had to be evacuated after the court's thesaurus burst into flame.

Of the sparkling array of defenses raised, the crown jewels were two expert-witness affidavits.  The first, by an ethics expert, was undermined slightly by a failure to apply the right ethics rules.  But the second one, my friends, the second was provided by a "linguistics expert."  This person read the transcript of the hearing and testified that, linguistically, she didn't see a problem:

[B]ased upon her reading of the transcript of the November 2006 hearing [said the court,] it "reflects consensual dialog, including debate and argument, between Mr. Moncier and Judge Greer" . . . . She goes on to say she finds "nothing in the transcript that supports an opinion that Mr. Moncier intended or demonstrated disrespect to Judge Greer or that Judge Greer intended or demonstrated disrespect to Mr. Moncier" (id.).

In other words, Moncier hired a linguistics expert to read the transcript and testify that, in her expert opinion, there was no contempt.  At this point, the loss of the thesaurus made itself felt, or else the court was just tired of bothering.  It wrote that this opinion was "so devoid of belief [sic] and such a departure from reality that to call it incredible is to be charitable."

Was there ever an apology?  Sort of:  "I deeply regret and apologize," Moncier wrote, "that my actions were considered by District Judge Greer to be a violation of his orders and that now my actions have been considered by [another judge] to be violations of the Rules of Professional Conduct."  Here's another time to stop talking: when you are about to deliver one of these non-apologetic apologies that are now so common, in which you apologize for the fact that somebody else got upset by what you did.

The court suspended Moncier for seven years, although he can apply for early reinstatement after three.  So, mark your calendars for 2011.  That ought to go well.

Link: ABA Journal
Link: In re Moncier (E.D. Tenn.)

Judge Who Lost Pants Wants Job Back

In what is certainly welcome news for amateur legal humorists everywhere, Roy Pearson has filed another lawsuit.  As you may recall (see, e.g., "Judge Drops Pants; Suit Still On," Lowering the Bar (June 6, 2007)), Pearson was formerly Judge Pearson, but ultimately lost his job after adverse publicity due to a lawsuit he filed demanding millions in compensation for a pair of lost pants.  A D.C. judge dismissed Pearson's claims after a trial in which, among other things, Pearson wept on the stand when describing how his dry cleaners had allegedly mistreated him.

In the new lawsuit, filed this time in federal court, Pearson alleges that he was actually fired for exposing corruption within the department where he worked.  He says he was a protected whistleblower and that the media circus in which the pants occupied the center ring was just the city's pretext for getting rid of him.

Pearson now wants his job back.  He is also seeking $1 million in damages, or approximately $64 million less than he sought for the loss of the treasured pants.

Link: Washington Post

Florida Attorney Sanctioned for Insulting Court with "Children's Picture Book"

On Friday, March 7, Bonnie Goldstein of Slate.com wrote about a furious battle going on between a Florida attorney on one side and the Florida Bar and Florida Supreme Court on the other.

Any bets on how this one comes out?

The attorney is Jack Thompson, who has a long history of trying to police violent and sexual content in the media.  You can reasonably take the position that at least some examples of that are a problem, but Thompson's thinking has evolved way beyond reasonable positions.

According to the Wikipedia article on Thompson, which is heavily documented (132 footnotes), Thompson has been involved in decency crusades since the 1980s, pushing for boycotts of, among others, 2 Live Crew, N.W.A., and Madonna.  Eventually, he took on video games, claiming for example that vibrating PlayStation 2 controllers are designed to encourage violence because the "pleasurable buzz [delivered] with each kill" is a form of behavior-modification conditioning.

Last April, he claimed the Virginia Tech killer had been driven to kill, and trained to do so, by playing the game "Counter-Strike."  "[T]his is not rocket science," Thompson said.  "When a kid who has never killed anyone in his life goes on a rampage . . . he's a video gamer."  That does seem pretty conclusive, although the official report on the Virginia Tech shooting found that none of the games the shooter played "were war games or had violent themes," although he did play "Sonic the Hedgehog."

There is no evidence that any rocket scientists contributed to that report, however.

Thompson has also taken on the Florida Bar, saying that ethics complaints against him are frivolous.  Some of the complaints involve attacks Thompson has made on other attorneys and judges in Florida, and that's what got Thompson in trouble recently.  In what he said was an effort to prove that an opposing attorney's website contains links to pornographic images, Thompson filed pleadings in federal court that included the same images he said he was complaining about.  The court was not amused.

In February, the Florida Supreme Court issued an order to show cause why Thompson should not be sanctioned.  That was prompted by a pleading Thompson filed that he described as a "children's picture book for adults," which he said was necessary because the court couldn't seem to understand his arguments without pictures.  The pictures included swastikas, cartoon squirrels, a judge with the head of a donkey, and an album cover used to argue that the validity of Thompson's position "should now be so clear with this filing that even could see it."

On March 20 -- after Thompson filed a response that called the order "bizarre" and "idiotic" and asking the court to "make [his] day" -- the court sanctioned him.  As a result, Thompson cannot file any more pleadings unless they are "signed by a member in good standing of The Florida Bar other than himself."  Further insulting pleadings, which are almost certainly forthcoming, may lead to contempt charges.

Link: Slate Magazine
Link: Wikipedia article on Thompson

Man Who Told Sentencing Judge He Was "Bored" Will Spend Seven Exciting Years in Jail

Lance Majors of Poughkeepsie, New York, the new poster boy for Not Giving A Damn, will have several years to think about whether telling the judge you're bored during your sentencing hearing is a good idea.

Majors, who was being sentenced today for a felony DWI conviction, has made the most of his 38 years on this planet, compiling an impressive list of screwups:

• robbery;
• drug possession;
• drug dealing;
• driving while intoxicated;
• driving while intoxicated again;
• driving while intoxicated three more times;
• driving while intoxicated again, and in this incident he
• was clocked at 107 mph
• with his 11-year-old daughter in the car
• after his license had been revoked;
• he represented himself at trial; and
• then told the judge, "Just speed it up because you are really boring me."

Judge Frank LaBuda sentenced Majors to a possible seven years in prison for the six counts related to the most recent DWI, plus another 15 days for contempt of court.

Link: Times Herald-Record