Lowering the Bar

"The Secret": Your Path to Happiness, Love, Litigation

Some of you may be familiar with "The Secret," an enormous bestseller that encourages people to follow the "law of attraction," which I thought was something that made people hang out near playgrounds but which turns out to be "an ancient principle that holds that the universe will make your wishes come true if only you really, truly believe in them."

I agree there is an ancient principle at work here, but it's one I refer to as "bullshit."

The Secret was discovered, or rediscovered, or whatever, by Rhonda Byrne, who has made millions from the book and DVD versions.  Byrne's website, which is not secret, does not state exactly what the Secret is, although you can "Own the Secret" on DVD for just $19.95, or in book form for just $16.95.  (Here's another secret -- you can get it on Amazon.com for $14.37.  But don't.)

Now there is at least some evidence that the Law of Attraction does not always deliver on its promise of unlimited happiness and prosperity, namely a federal lawsuit.  On April 25, James Heriot, the director of the movie version of "The Secret," sued Byrne and her production company in the Northern District of Illinois, alleging that Byrne is not sharing the profits generated by the ancient principle as she had promised to do.  He is claiming up to half of the "Secret" profits, which he estimates at about $300 million.

Heriot wants to make clear, however, that just because the main purveyors of "The Secret" are now at each other's throats does not mean that "The Secret" isn't "The Secret" to unlimited happiness as they have been saying:

To all who have been inspired by "The Secret," [Heriot said in a statement issued through his law firm,] please know that I am not suing the universal principles of "The Secret." Rather, I am suing the corporate principals behind "The Secret," who promised at the outset that profits would be shared, and who have not kept faith with "The Secret"'s tenets of gratitude and integrity."

Got it -- universal principles not being sued, integrity of Secret unquestioned.

In fact, it seems hard to say whether this does call the validity of "The Secret" into question.  On one hand, it seems unlikely that Byrne's wishes included attracting a federal lawsuit.  On the other, isn't Heriot just following her advice by hoping that his wishes for $150 million will come true if only he really, truly believes in them and prevails in a copyright lawsuit?  Does "The Secret" describe how the ancient principle applies when two people wish for the same thing with all their hearts in federal court?  I hope the universe will provide the answers to these questions, or at least will deliver more comical "Secret"-generated lawsuit stories.

Byrne told the New York Times last year that "The Secret" was never about profit; she simply wanted to give her knowledge to the world, so that others could discover what they were intended to do with their lives as she had.  "One of the big things in discovering the secret," she said, "was discovering me."  And there is more discovery of her coming in the near future.  Byrne's deposition in a second case related to Secret profits is set for May 6, in Los Angeles.

Link: New York Times

UPDATE: Transcript of Witchcraft Resolution Hearings Posted

Here's a followup to last week's post on the witch-exoneration resolution that was not passed again this year by the Connecticut legislature.  Testimony on that resolution was heard on March 20, and the transcript has just been posted.  The committee heard testimony from descendants of Mary Sanford and Lydia Gilbert, two women who were executed for alleged witchcraft.

I think the transcript tends to support my suggestion last week that the lawmakers are not taking the issue all that seriously.  For example, here's Judiciary Committee chairman Lawlor, after one of the witnesses estimated that at least eleven people, and possibly many more, were wrongly executed in Connecticut:

REP. LAWLOR:  And apparently, Connecticut was the first state to do this [wrongly execute people for witchcraft].

DEBRA AVERY:  This preceded Salem by about 30 years.  Salem was the 1690s.

REP. LAWLOR: But they really got carried away a bit in Salem, once they got started, right?

DEBRA AVERY:  Yes.

Yeah, you guys stopped at a reasonable eleven executions or so, but they totally got carried away with it in Massachusetts.  That was completely uncalled for.  The Lawlor Comedy Hour continued:

REP. LAWLOR: You know . . . this morning, I remembered this great scene from Monty Python, where they grabbed the witch. And if you Google it, if you Google "Monty Python witch trial," you get to see that scene. There's--

DEBRA AVERY: Yes, about the wood and how wood floats, and, yeah, I'm very familiar with that [suggesting she has heard this one before].

REP. LAWLOR: But as funny as it is, it gives you a sense of, you know, looking back, how outrageous it really was because, it's something.

It sure is.  Funny now, though.

A senator then weighed in with his witch-trial knowledge, which he seems to have gained entirely from watching reenactments during family excursions to Salem:

SEN. KISSEL: . . . And they have trials there . . . and for a small fee you can go in there and you see it all acted out in front of you.  And at the end of the presentation . . . you all take a vote.  Is she a witch or isn't she?

According to Sen. Kissel, the accused is almost always exonerated in these votes by today's enlightened citizens, with a couple of notable recent exceptions:

And you're exactly correct . . . that sometimes, you know, the feelings of the public change.  After having done this with my family [visited Salem, presumably] for a number of years, I will tell you, there were a couple of years, after the Trade Tower bombings in 2001, where the crowds actually found her to be a witch.  They weren't in a really good mood, I guess, around that time, and so they were not cutting anybody any slack, even reenactments of ancient history.

On the one hand, given that John Yoo was writing the torture memo right about that same time, it seems like these kind of slight overreactions are unfortunately not "ancient history."  On the other hand, the Salem tourists did not actually hang any actors in retaliation for 9/11, as far as I can tell, so maybe we have made at least some progress.

Link: Judiciary Committee Hearing of March 20, 2008

 

Witches Screwed Again in Connecticut

In other civil-rights news, Connecticut's General Assembly failed again this year to pass a resolution that would have cleared the names of those prosecuted for witchcraft there during the 17th century.

This marks the 361st year in a row that the Connecticut legislature has failed to address the issue.

The Assembly's legislative research service found that about four dozen people were accused (some more than once), convicted (usually just once) and/or executed (once each) during the Connecticut trials.  "In each of the New England colonies," the report states, probably hoping to get you thinking about Massachusetts, "witchcraft was a capital crime that involved having some type of relationship with or entertaining Satan."

First to be convicted of entertaining Satan was Alice Young, accused in 1647 and later hanged, her powers apparently useless against rope.  Others included:

• Elizabeth Goodman, acquitted in 1655 and let off with a "warning";
• Mary Sanford, convicted and hanged in 1662;
• James Wakeley, accused in 1662 and 1665 ("fled both times"); and
• Elizabeth Seager, who was tried, acquitted, tried again, acquitted again, tried again, convicted, and then pardoned by the governor (or possibly Satan in governor's form).

S.J. 26 was requested by some of the accused witches' descendants, a number of whom testified in support of the measure.  Formally titled "Resolution Concerning Certain Convictions in Colonial Connecticut" -- I found it in the legislative index under "Witchcraft," between "Wiretapping" and "Witness Fees" -- the resolution would have noted that:

such accusations were sometimes made simply because a person habitually muttered to himself or herself, or talked to unseen persons, or used vulgar language, or gave evil looks, or was a notorious liar, or was a nonconformist, or caused discord among his or her neighbors . . . .

All of which I think I did on the bus this morning, so I'm glad this doesn't happen anymore.

The resolution then would have declared that the Assembly considers the whole affair "shocking," and -- in the only operative language of the resolution -- that "no disgrace or cause for distress should attach to the descendants of these accused and convicted persons by reason of such proceedings."  There is then a much longer paragraph making absolutely clear that the resolution will have no legal effect whatsoever.

Still, the resolution didn't make it out of committee.  Comments made by Rep. Michael Lawlor, the state judiciary committee co-chairman, suggest that this was partly because time ran short, and partly because they did not really give a sh*t about witch descendants.

"Although that's an interesting bill and important in its own way," said Lawlor, "compared to some of the other things we're having to do, we were trying to prioritize it."  (Translation: eat it, witches.)  "[N]ext year," he continued, "I'm sure the legislature will take it up again and give it some more discussion."  He added, "It's been 350 years.  I don't think another year will hurt."

Lawlor was never seen again.

Link: NBC30.com (Connecticut)
Link: FOXNews.com

Nebraska State Senator Sues God to Protest Frivolous Lawsuit

Angry about frivolous lawsuits, in particular one recently filed against a Nebraska judge, State Senator Ernie Chambers has decided to cut to the chase and take legal action against the source of all his irritation, namely God.

Chambers says he is making a point -- that anybody can sue anybody -- to protest what he says is a frivolous lawsuit against Lancaster County District Judge Jeffre Cheuvront.  Cheuvront was in the news himself not long ago for granting a motion in limine to exclude the word "rape" from a rape trial.  (He decided using that word would be unduly prejudicial.)  The case ended in a mistrial, and the accuser in that case has sued Cheuvront, which is what Chambers is mad about.  He filed his lawsuit even though the judge hearing that case has already suggested there is no legal basis for it.

Chambers called his lawsuit "appropriate," at least in comparison to the accuser's lawsuit.  "People might call it frivolous," he said, "but if they read it they'll see there are very serious issues I have raised."

Okay.

In the complaint, Chambers accuses Defendant of making "terroristic threats" and of directly and proximately causing "fearsome floods, egregious earthquakes, horrendous hurricanes, terrifying tornadoes," and otherwise offering a lot of alliteration in the crackpot complaint pursuing his ponderous point.

Chambers asks the court to waive the personal-service requirement on the grounds that Defendant and His agents are present throughout Douglas County, but Plaintiff cannot determine which agent to properly serve. He says he has tried to serve Defendant by publication (apparently by shouting, "Come out, come out, wherever you are") to no avail.  The court is asked to take judicial notice of the fact that Defendant is omnipresent, and has actual notice of the action by virtue of being omniscient.

Plaintiff seeks a permanent injunction against Defendant.

It is unlikely that Chambers will succeed, partly because there is already a fair amount of precedent rejecting this kind of a claim.  For example, in 1971, a federal court in Pennsylvania dismissed Gerald Mayo's civil-rights action against Satan and various unnamed servants, on the grounds that there was no jurisdiction over the defendants.  United States ex rel. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D. Pa. 1971).

I found it comical that, in the Associated Press photo posted on CBS's site, Chambers is posed in front of a fan so that he looks like he's got a halo.

That probably makes him furious.

Ironically, and very probably making him even furiouser, Chambers also looks an awful lot like Morgan Freeman, who has actually portrayed God in at least one movie (Bruce Almighty).

I assume this is just another one of the Defendant's little jokes.

Link: CBS News
Link: Chambers v. God, Case No. 1075/462 (District Court for Douglas County, Neb., complaint filed Sept. 14, 2007).

Dueling Lawsuits Filed Over Copyright Claim by Mental Spoonbender

Only the wealth of material last week prevented me from reporting on the suit and counter-suit recently filed by Uri Geller and Brian Sapient.

You may remember Geller as the purported psychic who claims the remarkable ability to bend spoons with his mind -- or maybe his remarkable ability is the ability to earn money by claiming to bend spoons with his mind.  Sapient is a Pennsylvania man who is a co-founder of the "Rational Response Squad," an anti-theist group that apparently also has a sideline in pseudo-psychic debunkery.  "Brian Sapient" is a pseudonym -- according to his complaint, his "controversial religious beliefs" have generated a "substantial amount of abusive correspondence, including threats of physical harm against him."  That's why he seeks to proceed as "John Doe a/k/a Brian Sapient" (although if you are already using a pseudonym I wouldn't think you would need "John Doe" anymore).

Geller sued after Sapient posted (on YouTube) a clip from "Secrets of the Psychics," a 1993 NOVA program that examined Geller's claims.  That program incorporated footage from (among other things) a 1973 "Tonight Show" appearance in which Geller failed to bend spoons that had been preselected by Johnny Carson, and a professional magician of the non-psychic variety (James Randi) who showed how easy it was to do what Geller did.   (Tip: it involves either "pre-bending" the spoon or bending it surreptitiously with what psychics call "hands.")  It also included a three-second clip of Geller at another public event, a clip to which Geller claims a copyright interest.  Geller's lawsuit, filed in Pennsylvania, was based on those three seconds.

Sapient's countersuit, filed in San Francisco federal court by attorneys with the Electronic Frontier Foundation, alleges that Geller used his abilities to cause YouTube to remove the video Sapient had posted.  (His litigation-threatening abilities, anyway, not the psychic ones.)  Sapient alleges that this was misrepresentation under the Digital Millennium Copyright Act because the threat is baseless.

Reached for comment, the psychic's lawyer called the other lawsuit "frivolous."

According to the often-accurate Wikipedia, Geller owns a 1976 Cadillac "adorned with thousands of pieces of bent tableware given to him by celebrities or otherwise having historical or other significance," including spoons used by John Lennon, the Spice Girls, Winston Churchill and John F. Kennedy.  Wikipedia also claims, without citation, that Geller designed the logo for the band *NSYNC, but the band's website does not mention any involvement by Geller, so that seems doubtful.  This was greatly disappointing to me, but then I learned from the BBC that (and in retrospect this is not at all surprising) the best man at Geller's 2001 wedding was Michael Jackson.  That cheered me up quite a bit.

Link: cbs5.com (KPIX)
Link: Sapient v. Geller (at EFF's website)
Link: See video of Geller allegedly cheating (at www.randi.org)

Jury Rejects Teacher's Claim of Anti-Witch Discrimination

The AP reported this week that a New York jury rejected a claim by teacher Lauren Berrios against a school district for wrongful termination.  Berrios sought $2 million in damages based on her claim that she was fired for being a witch, an allegation she denies.

Actually, the article only says that she "denied ever practicing witchcraft," which is not quite the same thing.  She could have taken all the classes and even passed the exam, but then chosen not to practice.  This happens with lawyers all the time and I don't see why witches should be any different.

Berrios sued the Hampton Bay school district in 2001, alleging that her school's principal, a born-again Christian, had fired her after deciding (for reasons the article did not disclose) that Berrios was a witch.  The district argued that Berrios was not fired due to suspected witch status, but rather because she did not get along with co-workers and had (the AP's verb choice) "conjured" up false stories.  For example, defense attorney Steven Stern told jurors, Berrios fabricated tales that her husband had been involved in a plane crash, and that her two-year-old son had "lost his fingers in a VCR accident."  The report did not explain why Berrios allegedly fabricated these tales, or how one might lose all ten fingers in even the worst VCR accident.

Link: AP via FindLaw.com

Werewolf Charged With Disorderly Conduct

Robert Marsh was arrested last week in Wisconsin and charged with several offenses stemming from an incident early Thursday morning in which he broke down a woman's door and grabbed her.  Two other men in the home stopped Marsh, who the woman said had been living with them temporarily because he had no other place to go, having been released from prison a few days before.

Luckily for them, Thursday was March 1, two days before the full moon.  Otherwise they might not have been able to subdue Marsh, who informed police that he is a werewolf.  He claimed to be able to change forms (which of course all werewolves can) and to be involved in a "witch religion."  These claims are evidently still being investigated, but police were able to confirm almost right away that Marsh had been drinking heavily (also common among werewolves while in human form).  He also had a "small amount" of marijuana with him.

Whether it was the absence of a full moon or the belated triumph of his long-repressed humanity, Marsh did not change shapes, attempt to escape, or eat anyone.  He is therefore scheduled to appear in human form at a court hearing on March 14.

Link: AP via Yahoo! News.

Coin-Toss Decision Not the Weirdest Thing abut Alaskan Election

Those of you who have been closely following the race for school-board seats in the Aleutian Islands know that the two candidates for the open seat in Adak, Alaska, were tied after the October 3 election.  (Each woman had nineteen votes.)  But you may not know how this finally came out.

Under state law, a tie vote results in an official recount, and if it is still tied after the recount, the result is settled by lot -- somebody draws straws or flips a coin or (my personal favorite) does "rock, paper, scissors" to see which candidate will serve.  In this case, Whitney Brewster, the local Director of Elections, flipped a coin, and candidate Dona Highstone called "heads."  It was "tails," so the incumbent, Katherine Dunton, won the election and another three-year term.

I forgot to mention: Dunton has been dead for almost a month.

Dunton actually died on the day of the election, but there does not seem to be an exception under Alaska voting laws for this kind of a situation.  So, rather than declare the winner to be the only remaining candidate who was actually alive, they held a ceremony resolving the election by chance and ultimately awarding Dona Highstone the dubious honor of membership in the John Ashcroft Club for Candidates Beaten by a Dead Opponent.

Said Director Brewster, "This is the first [school-board election ending in a tie and then resolved by a coin flip that a dead person won] that I have ever heard about, not only in our state but in any other."  The AP analyzed the result and concluded that, "since the winner is dead, the school board must find a replacement for the three-year term."  No kidding.  Hm.  I wonder if there is anybody else around there who might be interested in the job.

Link: Reuters via My Way News
Link: Anchorage Daily News

German Love Witch Loses Appeal

A court in Munich, Germany, confirmed today that a local woman described as a "love witch" would have to pay back the 1,000 euros that she had charged another woman for various spells designed to get her ex-boyfriend to come back. The love witch, who was not identified, was also ordered to pay several hundred euros in court costs.

The plaintiff apparently claimed that the witch's services came with a money-back guarantee, something that the witch disputed (don't they always?). In the end the guarantee issue was irrelevant because the court ruled that the service was "objectively impossible" to render in the first place.  "A love ritual is not suited to influence a person from long distance," stated the court.  I don't know about that.  I can think of lots of love rituals that can influence a person from long distance: making phone calls, sending flowers, repeatedly running over her ex-boyfriend in the parking lot outside her office window, things like that.  Regardless, the court concluded that "[a]s the promised service could not be rendered, the plaintiff is not obligated to pay."

Whether the witch would pursue yet another appeal was not clear, but ask again when the moon is full.

Link: My Way News

DA Sticks With Witness Who Says He Sees Horned Aliens

See, this is what I mean -- I already have a stack of material, and then I see a headline like the above in the Daily Journal this very morning.  The hits just keep on coming.  It's hard to do better than that headline, and this in a week that has also featured the gems "Andy Griffith Decides to Run for Sheriff" and "Spanish King Denies Shooting Drunk Bear."

Anyway, this story involves the DA's office in Santa Barbara, California, already under attack for two recent incidents in which deputy DAs were removed from cases because it was revealed that they were involved in book and movie deals related to those cases.  The case reported today is a prosecution of Greka Energy Corp. for alleged health-and-safety violations at its refining operations.  Most of the suit has been settled, but six counts remain to which (happily) the testimony of Gary Lowrey appears to be relevant.

Lowrey is the company's former public safety officer, and is expected to testify that he warned about certain dangers but was ignored.  At Lowrey's deposition, Greka's attorneys did ask about that testimony, but according to the report, "focused much of their questioning on his claims that alienlike creatures emerge from his closet and put pinholes into his chest and those of his family members."

How'd you like to defend that deposition?  (By the way, if anybody out there might have a copy of the transcript, I'd greatly appreciate getting one.)

The company's research had uncovered the fact that Lowrey is a "regular" on websites dealing with alleged alien visitations, and so its attorneys were understandably eager to find out the details.  Apparently, Lowrey objected to some extent to the term "aliens," saying: "I'm not sure that they're -- you know, [that] you'd call them aliens.  I know they're not human-looking."  He continued, "I don't remember a lot of it because, you know, you're asleep when it's happening to you."  You know.  Chief District DA Tom Snedden accused the other side of leaking the facts as a distraction and in order to smear his office.  The "bigger issue," he said, was that the company "continues to snub [sic] its nose at the safety of the community."

It is not yet clear that the horned-alien testimony will be admissible.  Greka will have to show the judge that the alien topic is relevant, but experts said the DA might have little choice but to call the former safety officer to the stand and that his nocturnal experiences could then very likely be used to undermine his credibility.  If that happens, Deputy DA Jerry Lulejian says he's ready to defend his witness.  Lulejian says he has videotaped what he called a "phenomenon" at Lowrey's house, and that he intends to play that tape in court "to prove his witness is not insane."  It may prove something, but I'm not sure that's what it'll prove.

In yet another twist, I have seen reports that Lowrey is represented in the case by Bela Lugosi, son of the famous actor. I haven't been able to confirm yet whether that's true, but Lugosi's son is in fact an attorney who practices in Los Angeles in the field of intellectual property and entertainment law. Lugosi has extensive experience especially in the latter field, his primary clients including (not surprisingly) Lugosi Enterprises and (more surprisingly) the estate(s) of the Three Stooges.  Lugosi's victories for the Stooges have included the favorable verdict in DeRita v. Scott (I believe that's "Curly Joe" DeRita) and another successful Stooge defense in Comedy III Prods., Inc. v. Saderup, which reached the California Supreme Court in 2001.

I can tell you that finding out that a witness who has a closet full of horned space aliens that have allegedly been filmed by a deputy district attorney is represented by Bela Lugosi, Esq., who has also represented the Three Stooges, has certainly made my Friday complete.

"DA Sticks With Witness Who Says He Sees Horned Aliens, San Francisco Daily Journal, Friday, Oct. 20, 2006, pp. 1 and 9.

German Seeks Compensation for Alien Abductees

Given that Germany has a law granting kidnap victims the right to state compensation, it was only a matter of time before a creative attorney sought to apply that law to the many Germans each year who are abducted by aliens.  Jens Lorek, a lawyer in Dresden, told Reuters News this week that he hoped to expand his client base by moving into alien-abduction-compensation law, which does not say a whole lot for his current client base.

Lorek admitted that he had not successfully litigated any such claims yet, but insisted that there are plenty of people out there who need the help, as scores of alien abductions are reported each year.  "There's quite obviously demand for legal advice here," he said.  "The trouble is, people are afraid of making fools of themselves in court."  And thank God that at least some attorneys are not.  Asked whether he was worried that he would look ridiculous himself, Lorek did not appear to understand why that might be the case.  "Nobody has laughed about it up until now," he said.

Link: Reuters via My Way News

Fortunetelling Permits Freely Available in San Francisco

In my research yesterday amongst the many ordinances of San Francisco, I did not find what I was looking for, but I did happen to come across something far more exciting.  It appears that Article 17.1 of the San Francisco Municipal Code makes fortunetelling permits pretty widely available to anybody who applies for one (and can pay the license fee).  Section 1305 of that article says that the Chief of Police "shall grant the permit" unless the applicant has been convicted of a felony relating to fraud in the past seven years, or unless other fairly narrow exceptions apply, none of which, I noted, would apply to me.

This permit enables its holder to legally practice fortunetelling within the City and County of San Francisco, said "fortunetelling" being defined very expansively to include:

the telling of fortunes [really?], forecasting of futures, or reading the past, by means of any occult, psychic power, faculty, force, clairvoyance, cartomancy, psychometry, phrenology, spirits, tea leaves, tarot cards, scrying, coins, sticks, dice, sand, coffee grounds [coffee grounds?], crystal gazing or other such reading, or through mediumship, seership, prophecy, augury, astrology, palmistry, necromancy, mindreading, telepathy or other craft, art, science, talisman, charm, potion, magnetism, magnetized article or substance, or by any such similar thing or act. [Anything "similar" to all of that.]  It shall also include effecting spells, charms, or incantations, or placing, or removing curses or advising the taking or administering of what are commonly called love powders or potions in order, for example, to get or recover property, stop bad luck, give good luck, put bad luck on a person or animal, stop or injure the business or health of a person or shorten a person's life, obtain success in business, enterprise, speculation and games of chance, win the affection of a person, make one person marry or divorce another, induce a person to make or alter a will, tell where money or other property is hidden, make a person to dispose of property in favor of another, or other such similar activity.

S.F. Muni. Code sec. 1302(a).  Even better is 1302(b):

Fortunetelling shall also include pretending to perform these actions.

So, if I go down to the San Francisco police department and fill out a form telling them that I want a permit to tell the future through necromancy (talking to the spirits of the dead), they'll give me one.  In fact, they have to give me one.  In fact, I can get a permit to pretend to be a necromancer.  "Did someone call for a Certified Necromancy Pretender?  Here's my card."  Wait, how about: "You know what, officer Bad Cop?  I do have a license to scry.  Can I have my ball back now?  Fascist."

The point, of course, is to make people register, or more likely to bust them for not registering when they catch somebody engaged in fortunetelling.  But the ordinance also states that one of the purposes of the legislation is to "foster a positive business environment for legitimate practitioners within this industry."  S.F. Muni. Code sec. 1300.  Music to the ears of legitimate phrenologists everywhere.

I also learned that (under a different part of the Code) you can apply for a permit to own a squirrel monkey, but that is much harder to get.

Link: SF Regulations for Fortunetelling

Battle of the Bigfoot Researchers

From today's Bay-Area-case-reporting service:

Marin County Superior Court

C. Thomas Biscardi v. Great American Bigfoot Research Organization Inc.; Carole Rubin aka "Ruby" Rubin; Robert Shorey; Does; CV062655 (filed 7/11/2006)

Action for breach of contract, common counts and and unlawful appropriation of name and likeness. The plaintiff, a leading researcher on the mystery of whether "Bigfoot" exists, agreed to conduct expeditions and share his Bigfoot-related research with the defendant Great American Bigfoot. However, the defendants failed to pay the full $250,000 agreed upon, and have refused to return the plaintiff's library. $185,000 [damages claim].

Obviously, venue is proper in Marin County as that is one of the California counties "in which the Bigfeet or some of them reside at the commencement of the action" pursuant to Cal. Code Civ. Proc. sec. 395.1, "Venue of Action in Cases Relating to any Bigfoot, Sasquatch, Swamp Ape, or Similar Creature, or Research Thereon."

Link: Download complaint (fee required)

Virginia Governor Pardons Witch

Last Monday, Virginia Governor Timothy Kaine pardoned Grace Sherwood, who was described as "Virginia's only person convicted as a witch tried by water."  So I guess she may not have been the only person Virginia has tried that way, but rather the only person convicted -- by evilly floating on top of the water, with the help of Satan.

Under the clever trial-by-water system, of course, those who were declared innocent by the body of water then promptly drowned.

Since this was in Virginia, I probably need to make clear that Sherwood was convicted this way a long time ago.  Droppeth they she into the Lynnhaven River on July 10, 1706.  Why Sherwood was suspected of being the "Witch of Pungo" is not entirely clear (not that you really needed a good reason back then).  It may have been because she tended to wear men's clothes and lived separately from the townsfolk.  (Like I said, you didn't really need a good reason.)  Sherwood repeatedly appeared in court ("appeared" in the normal way, not anything spooky) to defend herself against witchcraft charges or to sue accusers for slander.  The water test finally took place when she was 46 and had been accused of causing a neighbor's miscarriage.  She floated, and while her punishment for floating was not recorded, other evidence suggests she was jailed for eight years and then released.

"With 300 years of hindsight, we all certainly can agree that trial by water is an injustice," said Governor Kaine in a letter that was read at the ceremony.  Oh, you guys needed all 300 years to agree on that?  Still, Kaine at least did the right thing in pardoning the Witch of Pungo and "officially restor[ing] the good name of Grace Sherwood."

A group that has been dedicated to obtaining the pardon then held their annual re-enactment of the Pungo dunking.  A woman in costume portraying Sherwood was put in a small boat with her thumbs tied to her toes.  "I be not a witch, I be a healer," she cried, using the same terrible grammar that witches be known to use.  "Before this day be through, ye will all get a worse ducking than I."  That last part was because in 1706, everybody supposedly got rained on by a sudden storm after the "witch" was convicted.  That didn't happen this year.

Link: AP via Findlaw.com

Lowering the Bar Cited as International Precedent

As many of you know, I have long had two primary goals for this enterprise:

1. to provide some entertainment for myself and other attorneys (and friends of attorneys) slogging away at their various billing stations, and
2. to be cited as authority in a brief filed with the Supreme Court of the Philippines.

Today I can at least be sure that one of those goals has been met.

I mentioned in the "Lowering the Bar" presentation I did two weeks ago that I had heard from Judge Florentino Floro, who I had written about twice before.  You may recall that Judge Floro was dismissed (or "separated") from the bench in Malabon City, a suburb north of Manila, after questions arose about his practices of starting court days with a reading from the Book of Revelations, conducting faith-healing sessions in chambers, and consulting three "mystic dwarves" named Luis, Armand and Angel for advice and predictions of future events.  As Judge Floro was a judge, that seemed to fall within the scope of this project and I did mention him a couple of times.

Judge Floro emailed me (and a number of others who had written about him) a couple of weeks ago, primarily to thank everyone for writing about his case.  He noted that he was appealing his case, forwarded us some pleadings, and was kind enough to answer a few questions.  Here's an (edited) summary of the answers:

LoTB: First, what is the difference between a separation and a dismissal?  Is it possible you could be reinstated?  If so, would you want to be a judge again?  Was it fun to be a judge?

JF:  Dismissal, under our laws, carries with it perpetual disqualification & DISBARMENT. . . . I believe that the laws are in my favor. But, I cannot tell you what will be their votes. . . . I would want to be a judge [again]. It is not fun, since I am honest. I had to wake up 6 am and sleep at 9pm and week ends I pen decisions; it is nightmare. But, my neighbor judges, they come to court, 10 am, deal only with juicy cases and they put in the backburner the not juicy ones; they play golf, 1 pm. This is not an exaggeration, since their staff and fixers do all the jobs.

LoTB: Second, why did the press say that Luis, Armand and Angel were “dwarves”?  Was this a mistranslation of “dwende,” the mischievious spirits believed to reside in anthills (also translated “gnomes”)?  Are they truly of small stature?  Did they help you with your opinions, and if so, do they have any legal training?

JF:  Answer: The names of my spirit guides are Luis, Armand and Angel; they are not the ordinary dwarves, gnomes, leprechauns, vulcans, . . . Luis is the King of Kings of elementals, an angel of God; if you are a Christian, you can read this in genesis,etc. and you can click angels in encyclopedia.com or wikkipedia,etc. . . In Ireland - a Catholic country - they can see dwarfs, but only the ordinary kind. LUIS IS THE KING OF ALL KINGS OF THESE. Usually, they are of small stature, but they only appear to me in the form of lights. TRUTH: I never used the word “DWARVES” in any DECISION, and I never consulted any imaginary dwarf to pen my decisions.  LUIS is highly educated.

LoTB: Third, you stated that you were the fifth-best psychic in the Philippines.  Who do you think are the top four, and do any of them practice law?

JF:  I stated in 1998 that I believe our President Ferdinand Marcos is # 1. . . I specifically have the following gifts: cross of the tongue, lightning teeth, my eyes emit spiritual fires, and my hands emit extreme heat that heals the poorest of the poor (with heat-processed coconut oil). All of us are psychics to a degree but very few can bend spoons. I was gifted with healing, bilocation, exorcism,etc. I graduated 2nd full honors and placed 12th in our 1983 Bar Exams, 87.55% (our Bar exam is the toughest, since many aspirants here who failed 3 x could easily pass your Bar in California, please do not be offended).

LoTB: Fourth, I am very interested to know what verse or verses of the Bible you selected to begin each court day.  One report stated that at least on some days these verses were from the Book of Revelations.  Is that true, and what are your favorite verses from that Book?

JF: In 1998, when I assumed office . . . I asked them to read the Book of revelations, because it is the hardest book but there it is, ALL. My favorite verses of the Bible are ECCLESIASTES, there the philosophy of life’s uselessness and injustice but God will judge everything done in secret. Also, the psalms, on curses on God’s punishment versus evil.

LoTB: Have you seen “The Omen”?  The first one, of course, not the remake.  Do you know (or can you find out) why those in Hollywood would not recognize an original idea these days if Pughe, King of the Dwendes, brought them one on a silver platter?

JF:  I am sorry, I do not see movies, since I concentrate on horse racing, this is my life since 1972, 3 times I tried to be a jockey, but I ended up to be a lawyer. I think I had seen the original one, many years ago, I cant remember. Contrary to the Decision and Reports, I am a horse athlete, ordinary poor man who just rents a house, and I have no car. I live a very simple and financially poor life . . . . I want to buy a horse and to ride, its great fun.  Sincerely, Judge Floro.

Judge Floro and I have corresponded a few times now and he seems to be a very pleasant man who is certainly convinced of the justice of his cause.  (Judge Floro, please let me know if I've misstated anything in this report.)  With his permission, I did talk about him and his case at the presentation a couple of weeks ago.  I think it is fair to say that people were quite interested in the matter, although there is probably not much we can do from halfway around the world.

Or at least that's what I thought.  In a third supplemental pleading that Judge Floro forwarded me last night, I was a little surprised, but proud, to see that he had cited me as one of a number of worldwide authorities on his case.  The pleading starts by reprinting most of an article on the case by Justice William Bedsworth, an associate justice in California's 4th District Court of Appeals, who has his own blog and who frequently publishes articles in the legal papers here as well.  Judge Floro also cites (among others) another California attorney, Lester Hardy; David Pannick, a British attorney; Ken Blanchard, a management and business writer (The One Minute Manager); a French blogger; and Che Vaughn, a tarot reader and clairvoyant who shares her home with "a couple of spirits, some shadow people, some black blobs, one homunculus and a cat."

Also, Lowering the Bar, which gets about two of the thirty pages.  The posts are accurately quoted, I'm pretty sure, and the biographical information on me (from our firm's website) looks right too -- I have to admit, though, that Judge Floro embellished a bit by describing me as a "celebrated" San Francisco lawyer.  My dog is generally excited to see me, but that's about the only celebration I generate.

Judge Floro is asking for reinstatement and about four years' worth of back wages.  As best I can tell from the pleadings, his argument is more or less that he should not have been separated from the bench just because of his beliefs, so long as he served his country and Malabon City in a fair and honorable manner.  That's a fair point -- who would you rather have as a judge: somebody who takes bribes; or an honest guy who happens to have lightning teeth and well-educated spirit friends but can pass the hardest bar exam in the world?  I know my answer.

I have to say though, Judge Floro, I don't know that citing the world's blog posts will add anything to to the heartfelt and very, very lengthy briefing you've already presented to the court.  And you should always be careful when using sarcasm in pleadings, especially somebody else's.  Also, I think a lot of practicing lawyers would suggest that there is life outside the law, and so maybe this is a good time to follow your dream of being more involved with the horses or the world of horse racing.  Having said that, I wish you luck in whatever you decide to do.

Judge Floro's Third Supplemental Brief (filed June 30, 2006) in Microsoft Word format
Justice Bedsworth's Blog -- A Criminal Waste of Space

Ghosts Ruled Not Grounds for Denying Unemployment Benefits

An Iowa judge ruled this week that a former security guard could not be denied unemployment benefits after being fired on the grounds that he saw ghosts.

Wade Gallegos was working for a security company in September when he called his supervisor to warn him that ghosts were haunting a neighborhood he was guarding.  The supervisor went to the scene and, surprisingly, did not see the ghosts.  To Wade's credit, he did not do the usual they-were-just-here-a-minute-ago copout, but rather insisted the ghosts were still there and showed the supervisor right where they were standing.  Despite his integrity, and his conscientious ghost-protection service, he was fired the same day.

When he applied for unemployment benefits, the company challenged the application saying that he was guilty of "misconduct."  This week, however, a judge ruled that while seeing "ghosts and apparitions" did render a claimant unfit to act as a security guard, apparently because it had and would result in false alarms, it was not "misconduct" in the sense that would justify a denial of benefits.

Yahoo! News

This Year's Costumed-Criminal Stories

Every year some number of wiseass criminals commit crimes in costume for Halloween. This year at least one of them robbed two banks on October 31, dressed as a witch.

The woman, who has apparently not yet been apprehended, robbed a bank in Olympia, Washington, wearing a shiny purple witch hat, a cloak and a long blonde wig. A teller gave her some money, and a dye pack, which exploded as the woman was running from the bank, causing her to drop the money and her hat. Less than an hour later, the same woman robbed a bank in nearby Lacey, Washington, obviously sans hat but, according to police, based on witness descriptions "it looks like the same lady."

Meanwhile, a vampire flagged down a motorist on a dark and lonely country road in West Virginia, asking for a ride. The motorist stopped, because why would you not stop for someone dressed as a vampire on a dark and lonely country road? It was a female vampire, which may have made the difference. But just after she got in the car, a demon allegedly jumped onto the hood. The demon was in fact 32-year-old Roy Wade Caplinger (and knowing that really takes all the eerieness out of the previous sentence), the husband of the vampire, Angela Caplinger. The two had apparently gotten into an argument at a Halloween party and the vampire was trying to get a ride home.

Anyway, seeing Roy the Demon leap out of the darkness and onto the hood frightened the driver, who sped off, flinging Roy to the ground (although I like to imagine that he hung on, just for a little while). "Imagine you're sitting on this dark roadway, you have a hysterical woman beside you, and the devil jumps on your hood," said a police spokesman. (Mister, you just described about half of my high school dates, but let's not get into that.) Police later saw Roy walking near the site of the incident and arrested him. He was treated and released, and then taken to the local jail, still in costume. Sadly, according to the local sheriff, "officers removed two demon horns from his head before taking his booking photo."

AP via MyWay.com

Breach of Lease Defended on Grounds that Presence of Ghosts Not Disclosed

Deploying what appears to be a unique defense to a lawsuit over breach of a lease, owners of a restaurant in Orlando, Florida, say the breach was justified because they were not told that the building they had leased was haunted.

Christopher and Yoko Chung, who own Amura Japanese Restaurant, had leased space at Church Street Station in Orlando, but refused to move their business into the space last year after they learned it was already occupied by ghosts. The Chungs' attorney, Lynn Franklin, wrote the building's owner last November to complain.

"There have been several documented reports from subcontractors and others of having seen ghosts or apparitions in the restaurant at night," Franklin wrote. "These reports, all independently provided, are strikingly similar in content. Apparently, these types of sightings are well-known to some of your employees but were not made known to Mr. Chung." The letter said that the Chungs asserted a religious defense as well as non-disclosure: "As a Jehovah's Witness, Mr. Chung has deeply held beliefs regarding spirits and demons. These beliefs require him to avoid encountering or having any association with spirits or demons."

Well, that seems reasonable, at least where demons are concerned -- associations with them never seem to turn out well. But what about "spirits"? The landlord's attorney zeroed in on the ambiguity in that term. "I asked them if these are good ghosts or bad ghosts, and if they were good ghosts why it was a problem," he told the Orlando Sentinel. He said the building owners had offered to bring in an exorcist, in case the ghosts were bad ghosts, but the Chungs refused that offer. Franklin claimed that the offer was not serious but another report said that the Chungs refused because the exorcist was a Roman Catholic, not a Witness.

The Orlando Sentinel was able to reach a local expert, Emilio San Martin, head of Orlando Ghost Tours and "a self-described researcher in parapsychology." San Martin opined that the stories of hauntings are nothing new and that his company in fact begins its tours in front of the building. None of the stories he related were "bad-ghost" stories -- mostly the heard-a-piano-playin-but-we-don't-got-a-piano kind of stories that would probably not keep the sushi customers away.

The owners' lawsuit arguably asks the court to decide whether ghosts do inhabit the property and if so, whether they would pose a problem. "There is no evidence," says the complaint, "that there are ghosts or apparitions in the premises or, if there are, that the ghosts or apparitions interfere with the defendants' quiet enjoyment and use of the premises."

A Westlaw search ("lease and breach and ghost and not 'Holy Ghost'") turned up no reported cases of the we-got-ghosts defense. Most mentions of ghosts in legal opinions tend to be literary references (irritating cases tend to return like "Marley's ghost" or "the ghost of Banquo"), although I did find one case finding that a property was not zoned to permit a "ghost tour" business. I also found this: "The ghost of Swift v. Tyson (16 Pet. 1, 41 U.S. 1, 10 L.Ed. 865) tunes again his lyre," a sentence by which the Third Circuit should still be haunted.

Link: Orlando Sentinel
Link: AP via FindLaw.com