Jason Baker (the pseudonym the court gave him) was 13. He was home from school working outside his house. At about 11:30 a.m. a man later identified as Christopher Jianniney approached him. Young Baker ignored him and went indoors. Later that day, at bout 6:00 p.m. when Jason was taking out the trash, he was again approached by Jianniney who this time offered him $40 to show him his penis.
Baker ran into the house and got his mom. Jianniney beat a hasty retreat and mom and son drove the neighborhood looking for him without success. They called the cops and Jianniney was later arrested after neighbors ID’ed his car and placed him on the street at 6:00 p.m. on the date in question. Jianniney pleaded innocent and demanded his day in court.
At trial, Jianniney claimed he was at work at the time of the crime and couldn’t possibly be the perpetrator. His boss, Jerry Wilson, was called to testify. Jianniney, he said, was one of his fuel delivery drivers. He had punched in for work the morning of the crime. Based on the location of the truck yard, what his time card indicated and the deliveries he made, Wilson claimed Jianniney could not have been at Baker’s house at 11:30 a.m. By Wilson's own calculations, the drive would have taken way too long.
Prosecutors then cross examined Wilson about Mapquest. Wilson admitted that he was familiar with it and used it to determine how long it takes to get from one place to another. Yet Mapquest’s ETAs from the fuel yard to the scene of the crime were half what Wilson personally estimated for Jianniney to get to Baker’s house, which, the state argued, meant he could have been there on the morning in question. At the prosecutor’s request, the trial court admitted the Mapquest time estimates as an exception to the hearsay rule.
Jianniney was convicted.
Defendant then appealed claiming Mapquest’s time estimates between locations were not reliable enough to fall within the hearsay exception.
The Delaware Supreme Court agreed with the defendant.
It found that the state failed to show that Mapquest’s driving time estimates “are relied upon by the public or professional drivers.” In fact, the Mapquest website disclaims all warranties including that the information found there is free from defects. It also warns users that “weather, construction projects, traffic conditions, or other events may cause road conditions to differ from the listed results.” Given its own disclaimer and the variables that can make its time estimates inaccurate, Mapquest cannot be admitted as an exception to the hearsay rule. Apparently, the state took a wrong turn using it to convict Jianniney.
Unfortunately for the defendant, it was just a detour.
Mapquest had been used only to show that defendant could have made it to Baker’s house in the morning when his boss said he couldn’t. Mapquest wasn’t used to challenge defendant’s presence at Baker’s home when the child was propositioned at 6:00 p.m. and Wilson did not offer testimony in defense of Jianniney’s whereabouts at that time. Moreover, even if Mapquest should not have been admitted into evidence, two neighbors saw the defendant that day and placed him at the scene.
So Mapquest travel times were hearsay, but their use in court was harmless error. Well, maybe not for Jianniney, who's life may have taken a turn for the worse. As a potential guest of the state, he now runs the risk that his new friends will ask him the same thing that got him arrested in the first place.
One wonders if he appreciates the irony.
Can a minor who supplies another minor with beer be charged with unlawful delivery of alcohol to a minor?
Does your answer change if the minor who received the alcohol dies in a one-car accident after drinking some of the contraband brew?
Illinois law provides in part that:
No person, after purchasing or otherwise obtaining alcoholic liquor, shall sell, give, or deliver such alcoholic liquor to another person under the age of 21 years, except in the performance of a religious ceremony or service.
Defendant Christopherson was a minor. She provided the late Jamie Smith, also a minor, with a 30-pack of Icehouse beer and two cases of Bud Light. After his death at the wheel, she was charged under the above section with a Class A misdemeanor (even though the same statute provides that since death resulted, she could have been charged with a Class 4 felony). She moved to dismiss claiming the statute didn’t intend to apply to minors, but to adults who could legally buy booze then illegally give it to minors. In response, the state argued that the language of the statute was unambiguous: Defendant was a person, which was all that was required by law, and as such, she could be charged under the statute.
The lower court agreed with the defendant and dismissed the charge. It also agreed that the evil the statute addressed was “adults providing alcohol to minors.” The state appealed.
The appellate court reversed, finding that “the commonly understood meaning of ‘person’ is ‘an individual human being,’ and that … ‘no person’ would encompass juveniles.” Defendant appealed.
Defendant’s main argument was that if the alcohol laws were read in context, “it’s clear that the entire section is directed only at those people who are authorized to possess liquor,” to wit, adults, and since defendant was not authorized to possess liquor because of her age, she couldn’t be charged (this logic brings to mind the defendant who shoots his parents to death, then asks the court for leniency because he’s now an orphan).
The Illinois Supreme Court wasn’t buying, and neither should have defendant. It found that the statutory language “is clear and unambiguous” and because defendant is “an individual human being” she is a “person” under the statute, regardless of her age.
The true legislative intent of the statute was to keep alcohol out of the hands of minors, no matter how it gets to them. As the court noted, “The tragic facts of this case indicate that the potential harm when alcohol reaches the hands of minors is no different when the alcohol is provided by another minor rather than by an adult.” Moreover, that the state had mercy (or a weak case) and charged defendant with a felony instead of a misdemeanor did not mean that it conceded that the statute was ambiguous or defective.
It’s back to the lower court for Ms. Christopherson to take a plea or go to trial.
Certainly adults know the risks of supplying minors with booze, guns, drugs and other controlled substances. And those who don’t know the risks at least know they can get in serious trouble for doing so. Minors should become aware of the same potential trouble. Unfortunately, the very nature of being a minor is not to appreciate the risks to self and others, to be ignorant of the law, and too often, not to care one way or the other what might happen.
When it comes to minors buying or dying for a drink, there may be more to answer to than just parents, and way more to regret the morning after.
Both cases ended up in Federal Court. The suit by the widow Stevens alleged that the anthrax that killed her husband could be traced to the US Army Medical Research Institute for Infectious Diseases, that the Feds knew it was “ultra hazardous,” that samples had been missing since 1992 and that there was a failure to provided adequate security for handling and shipping such materials, which were somehow intercepted and ended up in an envelope addressed to American Media’s Florida offices, killing her husband when he unknowingly inhaled its contents. The suit against Batelle made similar claims about lack of security, failure to monitor employees and negligence in the handling and transport of Anthrax causing it to end up in the wrong hands.
Both defendants moved to dismiss claiming they could not be responsible if their Anthrax was stolen and that such intervening criminal acts relieved them from responsibility for the death of Robert Stevens.
The Federal District Court denied defendants’ motions after looking to Florida law to see whether Mrs. Stevens’ anthrax theory of negligence was recognized in the Sunshine State. It concluded that Florida law supported the widow’s claim under the state’s “foreseeable zone of risk” theory. The government moved for reconsideration, which was denied, but it was granted leave to have this question answered by the Eleventh Circuit Court of Appeals: What duties exist under Florida law to protect members of the public where an organization creates a significant risk by using anthrax or another ultra-hazardous material.” The Eleventh Circuit then sent that question to the Florida High Court to answer.
Obviously this sort of question affects everyone. If the Government wants to make anthrax, well, fine. If it has to get it from a lab, well, where else can it shop for the stuff. But if it’s going to have it delivered by messenger, or FedEx or UPS or its own private couriers, shouldn’t there be some awareness that it could kill unsuspecting and uninvolved people who come in contact with it, and some meaningful precautions to prevent that from happening? And shouldn’t those who make, handle and ship anthrax to wherever anthrax gets shipped, make sure that they have an inventory system that at least rivals Wal-Mart and a security system as advanced as Blockbuster’s. Or do the government and its labs get a pass because their anthrax work is so vital that the best we can hope for is that none of us end up on the wrong mailing list.
Not quite.
You’ll be happy to know that the Florida Supreme Court found that widow Stevens has a right to sue. Whether the anthrax was misplaced, pocketed, or fell off the truck (or out of the Petri dish), the court concluded that the greater the risk of harm to others, the greater the duty to avoid injury to others:
In coping with the heightened duty that comes with this risk, the government and Battelle are required to contemplate a countless variety of situations in which a reasonable laboratory in their position must anticipate and guard against the unauthorized interception and dissemination of the dangerous substance. Given the allegations of negligent security of the ultrahazardous material and the virtual impossibility of potential victims to protect themselves once this substance is at large, this is obviously one of those cases...where the risk of injury is great and the corresponding duty of the lab is heightened. In a very real sense, it is this inability to measure the extent of this risk that merits giving the claimants an opportunity to go forward.
So for Mrs. Stevens, it’s back to the Federal Court with her golden ticket in hand. Now that she has the right to proceed, it remains to be seen if she has the right evidence to prevail.
We should all applaud her persistence since what happened to Robert could have happened to any one of us. If the Government and its labs don’t know how to keep track of their toxins and plagues or properly monitor the scientists and employees who make and transport powdered death, they shouldn’t be allowed to play with it.
One hates to think that the only powder they can be trusted with is Tang.
There’s a fine, not always so-clear line, between church and state which seems too often to turn on whose ox is being gored or ignored. There’s a different line that can be crossed between individuals when religion is an issue: It’s called defamation. And it’s about as hazy a line as the church-state line. This is a perfect case in point.
Here are the facts: Bruce Rapp is Jewish. He also believes in Jesus and worked for Jews for Jesus, an outreach group which shares the Gospel of Christ with other Jews. His Jewish father Marty and step-mother Edith lived in Florida. Bruce’s father was dying and Bruce spent months sharing his faith with dad, believing that acceptance of Jesus, even for Jews, is the way to salvation. The court quoted Bruce’s account of events from the Jews for Jesus newsletter:
“I had a chance to visit with my father in Southern Florida before my Passover tour. He has been ill for sometime and I was afraid that I may not have another chance to be with him. I had been witnessing to him on the telephone for the past few months. He would listen and allow me to pray for him, but that was about all. On this visit, whenever I talked to my father, my stepmother, Edie (also Jewish), was always close by, listening quietly. Finally, one morning Edie began to ask me questions about Jesus. I explained how G-d [sic] gave us Y’Shua (Jesus) as the final sacrifice for our atonement, and showed her the parallels with the Passover Lamb. She began to cry, and when I asked her if she would like to ask G-d for forgiveness for her sins and receive Y’Shua she said yes! My stepmother repeated the sinner’s prayer with me-praise G-d! Pray for Edie’s faith to grow and be strengthened. And please pray for my father Marty’s salvation.”
This newsletter was published on the internet. It was seen by one of Edith’s relatives (why was she looking at the Jews for Jesus website?). As any Jewish believer in Jesus knows, such news is frequently not well received by Jewish relatives and friends. Whatever Edith did or didn’t do in private, when Bruce’s account of her salvation experience hit cyberspace and became family news, Edith sued.
Edith’s complaint was that Jews for Jesus defamed her by claiming, without her permission, that she had “joined Jews for Jesus, and/or [become] a believer in the tenets, the actions, and the philosophy of Jews for Jesus.” Her complaint alleged “(1) false light invasion of privacy; (2) defamation; and (3) intentional infliction of emotional distress.”
Jews for Jesus moved to dismiss. After considerable battles over whether Edith’s suit even stated a cause of action, after she re-filed new and improved claims and after further motions, the lower court dismissed all of Edith’s claims. Edith appealed.
The Fourth District Court of Appeals affirmed the dismissal of the defamation claim concluding “the ‘common mind’ reading the newsletter would not have found Edith to be an object of ‘hatred, distrust, ridicule, contempt or disgrace.’” In doing so, it also rejected this generally accepted standard for defining defamation: “a communication is defamatory if it ‘prejudiced’ the plaintiff in the eyes of a ‘substantial and respectable minority of the community.’” As for the tort of false light, the court was uncertain such a claim existed in Florida. That question was certified to the Florida Supremes to answer and was taken up by Jews for Jesus.
Essentially, the high court found that defamation and false light claims have many of the same elements: “[F]alse light has the following six elements: (1) publicity; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity; (4) actual damages; (5) publicity must be highly offensive to a reasonable person; and (6) publicity must be about the plaintiff.” “Defamation has the following five elements: (1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory.”
After reviewing the history of false light claims in Florida and elsewhere, the high court concluded that false light is based on a subjective standard, i.e.,“publicity [which] must be highly offensive to a reasonable person” and thus creates a “moving target whose definition depends on the specific locale in which the conduct occurs or the particular sensitivities of the day.” Accordingly, it dismissed the false light claim. Score one for Jews for Jesus.
But given the sensitivities that surround Jewishness and Jesusness, perhaps more so in Florida than in many other states, the court also scored one for Edith: It found that “the Fourth District failed to embrace the standard that a communication is defamatory if it prejudices the plaintiff in the eyes of a ‘substantial and respectable minority of the community.’” So it reinstated the defamation claim and left it to the lower court to figure out if Edith was prejudiced in front of a “substantial and respectable minority of the community,” namely her Jewish friends and family.
While the District Court found that the “the ‘common mind’ reading the newsletter would not have found Edith to be an object of ‘hatred, distrust, ridicule, contempt or disgrace’" for believing in Jesus, the Supreme Court recognized that there is a potential cost to a Jewish person to profess faith in Jesus or to be spoken about as if they did. A “substantial and respectable minority” may disapprove and cause one to suffer real damages.
Since Jesus walked the earth there has always been a personal cost to Jews who profess faith in Jesus and the issue for the individual has always been the same: Is it worth the cost?
For Bruce Rapp it was. For Edith Rapp, the jury’s still out. As for whether it's defamation to say someone believes in Jesus, it depends which side of the line you're on and what you believe about crossing it.
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Solicitation Plus. It sounds like what brought down the former governor of New York. It's not quite as juicy, but without it, your New York case against a foreign corporation with a website on the net goes nowhere.
Why is this important? It depends how you use the internet.
In this case, Evan Bossy was injured when he skied into an unpadded pole on the beginner trail at Camelback, a ski resort located in Pennsylvania. Evan’s parents brought suit in New York on Evan’s behalf, suing Camelback for negligence.
Camelback moved to dismiss the case, claiming it could not be sued in New York because the court had no personal jurisdiction over this out-of-state corporation. Camelback runs a ski resort in Pennsylvania. It is not a New York corporation (any business incorporated outside of New York is a foreign corporation). It has no employees or offices in New York, was not negligent in New York and does not transact business in New York.
It does, however, have a website. Plaintiffs claim that Camelback is always “doing business” in New York “by virtue of its constant presence here through its interactive website” where skiers can book reservations and purchase lift tickets on line. Moreover, Camelback “solicits” New York customers by “placement of advertising flyers in New York retail ski shops.”
The question is whether this is enough business to be considered doing business as that is defined by New York law. According to the court, it’s not enough and it dismissed the case. An interactive website alone will not give you jurisdiction over a foreign corporation. You need more. You need “the presences of traditional indicia of doing business” or substantial and continuous solicitation...coupled with financial and commercial dealings or other activities of substance in New York,” i.e., solicitation plus.
Even if the court treated Camelback's interactive website as a constant solicitation, absent other factors such as engagement in financial or commercial dealing or other activities of substance in New York, such cyber-office-space does not meet the solicitation plus threshold which would confer jurisdiction on this foreign corporation. Under the circumstances, proper venue would either be Federal Court or Pennsylvania.
So back in New York, case dismissed. Such is the result of applying Flintstone rules to Jetson-age problems. One suspects the state legislature and the higher courts will eventually have to sort through all the nuances of cyber commerce, but until then these matters will be resolved on a website by website basis.
What does that mean for web browsers and shoppers in the Empire State? The home page may get the home court advantage if there’s a problem on line. And it means buyer beware when you add to your cart.
There all kinds of new ways to commit crime: There’s identify theft, credit card fraud, computer hacking and stealing cable or satellite signals. There are also new ways to commit old crimes. Thanks to advances in color copying, anyone can turn counterfeiter with low or no overhead and just a little bit of ingenuity and determination. But as always, good art is in the eye of the beholder.
The question presented almost sounds existential: If you’re a terrible counterfeiter and no one will actually believe that your funny money is real, have you really committed a crime?
According to the court, a bad job is still a bad act and a C minus C note will still land you in stir.
Chrystal Porter was only too willing to participate in an ill-conceived plan to make some easy money and help her friends out of a jam. Joey Barret lived with Erica Horton. Barret owed Carlos drug money. When Barret couldn’t pay, Carlos began threatening the couple and their children. As a compromise born of necessity, Barret and Erica agreed to let Carlos use Erica’s color copier to make fake money to pay off the drug debt.
This was not top-shelf work. Color copies of each side of a hundred dollar bill were duplicated onto manila paper. The two sides were cut out and glued together, then crumpled to give them that genuine used look. Erica completed the masterpiece by drawing lines on the fakes to look like the magnetic strips on the real deals. Carlos needed a place to pass the bad bucks and Erica said she knew a cashier at Wal-Mart. Enter Chrystal Porter.
When Porter showed up at the house, Erica presented their art project and asked if Porter would accept the fakes at her register at Wal-Mart. After studying the bills, Porter concluded, “Yeah, this will work.” When Porter was on the clock, Erica showed up and bought $300 worth of gift certificates with the bogus bucks and Joey bought another $200. Needless to say, Wal-Mart discovered the scam almost immediately and within 2 days the cops were at Porter’s home where she spilled her guts and dropped a dime on Joey and Erica.
Porter was indicted, tried and convicted for conspiracy to manufacture and utter counterfeit US obligations.
Porter’s defense at trial was that this was such a terrible forgery it couldn’t be taken seriously and therefore the fakes couldn’t be considered counterfeit. As she put it, “the instrument that she specifically agreed to assist in passing did not sufficiently resemble genuine currency to be counterfeit” so it was impossible for her to be guilty of conspiracy. She went so far as to say her copies were no better than monopoly money and couldn’t fool anyone.
At trial, the case turned on the details of the jury charge. Defendant argued that the jury should have been told the following: “A bill is counterfeit only if it possesses similitude: it bears such a likeness or resemblance to genuine currency as is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care when dealing with a person supposed to be upright and honest.” The lower court thought otherwise and instead charged that “To be counterfeit, a Federal Reserve note must have a likeness or resemblance to genuine currency.” The “likeness” was good enough for the jury and Porter was convicted.
Porter raised this argument again on appeal, making this fine distinction: “even though she conspired to pass fake $100 bills, she did not conspire to pass counterfeit $100 bills. In essence, she argues that, by refusing to instruct the jury using her definition of counterfeit, the trial court denied her the opportunity to present her main defense to the jury.” Put another way, Porter claimed she was such a bad criminal she didn’t commit a crime.
Not persuaded by the weight of her argument, the Court of Appeals found that the jury charge Porter wanted was appropriate only if she had been charged with violations of 18 USC Section 473 (requiring the perpetrator to acquire or dispose of such false obligations with “the specific intent that they be perceived ‘as true and genuine.’” Since Porter’s conspiracy charge was based only on violations of Section 471 (making counterfeit bills) and Section 472 (passing fake bills) all that was required for the bills to be considered counterfeit was “a likeness or resemblance to genuine currency.”
They may have been really bad bills, but they were good enough for the Feds, for the jury, and now, for the Appellate court.
Bad paper is bad paper. Or is it? The only thing it will buy you at Wal-Mart is time. On Wall Street, however, bad paper can still buy you a bail out.
Porter’s real mistake was not getting her MBA or heeding the Wall Street warning: DON'T TRY THIS AT HOME.
]]>In politics you have to “follow the money” to figure out why some laws pass and others don’t. In automobile accidents, you have to figure out if there’s insurance coverage to compensate the injured party. That’s especially tricky if the car is a murder weapon.
On February 12, 2008 Neil Spicehandler was struck and fatally injured by a car driven by Ronald Popadich. Popadich was on a murderous spree which included killing a neighbor, shooting a cabbie, attempting and then succeeding in running down a pedestrian, namely, the late Mr. Spicehandler. In September 2005 Popadich pleaded guilty to second degree murder.
The guilty verdict presented a tough issue for John Langan, Administrator of the Estate of Mr. Spicehandler. How can you collect in a civil suit from a driver who intends to kill the victim? Intentional criminal acts are not covered by automobile insurance. Accidents are. Since this was no accident, there was no way to collect from any policy issued for the murderous driver’s vehicle. So Langan looked to his own State Farm auto policy, which he claimed covered Spicehandler in two ways. State Farm, in turn, sued to have the case dismissed and to free it from any financial responsibility under Langan’s auto policy since this was murder, plain and simple.
Maybe not so plain or simple. First, the court agreed that Spicehandler’s Estate could not collect under the uninsured motorist endorsement of Langan’s policy. The uninsured motorist endorsement (of the injured party’s insurance policy) provides coverage for a person when the offending car has either no insurance or limited insurance; it then kicks in as if it were the coverage for the other car, or it kicks in to provide additional coverage above what the other car carried. As the court said, since Popadich couldn’t have coverage for his intentional act of murder, “it follows, then, that, because no coverage would have been provided under a standard automobile liability policy issued to Papadich, State Farm is not obligated to provide benefits under the uninsured motorist endorsement of its policy with Langan.”
So State Farm is clear? Not quite.
Langan pointed to his State Farm policy’s “mandatory personal injury protection endorsement and its death, dismemberment, and loss of sight provisions” and said this was still an accident as that’s defined in his policy and State Farm had to pay. The court agreed.
Even though Mr. Spicehandler was murdered, an intentional act from the viewpoint of the murderer, from the viewpoint of the one murdered “the event was ‘unexpected, unusual and unforeseen’ and not brought about by the insured’s own ‘misconduct, provocation or assault.’” And it was the covered individual’s perspective that governed. Without a specific exclusion for injury or death caused by an intentional act in the State Farm Policy, the insurance company was on the hook and obligated to provide benefits because murder or not, Mr.Spicehandler didn't see death coming.
The old TV show was called Murder, She Wrote. For the Insurance carrier, unless it writes an exclusion for murder, the events are seen from the victim’s eyes, and one thing everyone can agree on is that from the victim’s perspective, murder is “unexpected, unusual and unforeseen.”
One suspects that to State Farm Insurance this decision was also “unexpected, unusual and unforeseen” and that it never knew it was going to get murdered in court.
In 1994, Mark Taylor’s secret was out big time. A book published that year— Leonard Bernstein by Humphrey Burton—detailed his intimate relationship with the late composer of West Side Story fame. It was very juicy stuff for the office. As the court put it, plaintiff became the hot topic at the water cooler. Two years later he was fired as Director of External Affairs for NYUMC.
Unfortunately for Mr. Taylor, juicy gossip does not a discrimination suit make and his Civil Court award in the amount of $1.4 million (the trial court had already reduced the $2 million jury verdict) was reversed and his case dismissed.
Plaintiff claimed that one of the bosses, defendant Peter Ferrara, had an “anti-gay” animus and that he was responsible for the decision to fire him. While plaintiff showed that there was “no love lost” between the two men and that he had filed a complaint about Ferrara in 1995 for some off-color comment he made (which resulted in counseling for Ferrara), Mr. Taylor still failed to prove discrimination.
According to the court, Mr. Taylor was not fired because he was gay. Defendants showed that terminating Mr. Taylor was the end result of an ongoing budgetary and reorganization process, neither of which was a pretext for plaintiff’s discharge. Once the defendants showed the firing was a legitimate business decision, it became Mr. Taylor’s burden to prove that discrimination was their real motive and that “their business decisions would not have been made but for a discriminatory motive.”
As the court also noted, “mere personality conflicts must not be mistaken for unlawful discrimination” and being openly gay (or famously gay by being outed in print) does not insulate the employee from legitimate business decisions that result in his termination. It was not enough for Mr. Taylor to believe he was fired because he was gay; he had to have the proof. The Appellate Term said he came up short, particularly since it turned out defendant Ferrara had nothing to do with the decision to fire him. Taylor's case was dismissed.
In West Side Story, Leonard Bernstein’s Jets put it this way: “You're never alone, You're never disconnected! You're home with your own: When company's expected, You're well protected!” Like it or not, New York is an “at will” employment state. When the ax falls—as long as it falls for legitimate business reasons—you are alone and you’re completely unprotected, and neither skin color, sexual preference, age nor religion will buy you job security. Get fired for the wrong reasons, however, and Riff, the leader of the Jet’s said it best: “We challenge you to a rumble. All out, once and for all.”
You don’t have to be the same as everyone else at work, or even be liked or understood. That’s the stuff of gossip. But if you do your job, you can’t be fired because you’re different. That’s the stuff of discrimination and something worth fighting about, "all out, once and for all."
Here’s the good news: Common decency still has a recongnized place in America, notwithstanding indicators to the contrary.
Topeka Kansas-based Westboro Baptist Church cannot protest at funerals in Ohio. These are the lovely people who believe God is punishing America for the sin of homosexuality by killing Americans, including soldiers. These “church” members believe that “protesting at funerals is an effective way to convey the message of their church.” To make them even more effective messengers, their preferred venues are funerals of soldiers where, as we’ve seen on TV, they share such inspirational messages as “God Hates Fags,” “Thank God for Dead Soldiers” and “Thank God for 9/11.”
Ohio law proscribes protests at funerals. It’s been the law since 1957 with two amendments since. The original law regulated picketing at funerals and funeral processions. The amendments put time limits on protests (from one hour before to one hour after the funeral), specified a 300 foot buffer zone for permitted protests and expanded the definition of “protest” to include “other protest activities.”
Plaintiff, the charming Shirley Phelps-Roper, contended that she wanted to protest at Ohio funerals in the future and that the law violated her Constitutional right to free speech. She had been protesting at funerals for quite some time making a name for herself and for her church along the way.
While the District Court struck down that part of the statute that prohibited protests at “funeral processions” (since it created a “floating buffer zone” which was Constitutionally overbroad) it upheld the rest of the law. So too did the Court of Appeals. It found that the Funeral Protest Provision was content-neutral (no one could protest at funerals, not just the loving members of Westboro Baptist); it served an important governmental interest—balancing the First Amendment rights of protestors with the rights of funeral attendees to grieve, memorialize and gather in honor of the deceased, and; the funeral protest provision is narrowly tailored—300 feet away and no protests from one hour before to one hour after. As the court noted, there are other ways for these protestors to get their message out and “Phelps-Roper is not entitled to her best means of communication.”
Here’s the really sick part: Ms. Phelps-Roper “does not claim that funeral protests are [even] her most effective channels of communication” or that “mourners at a funeral are...her primary audience.” For her, a “funeral is the occasion of her speech, not its audience.”
Well isn’t that special.
Solidiers die and at the moment of heart-breaking grief and remembrance, Phelps-Roper sees her chance for 15 minutes of fame by reviling the dead with hate-filled venomous speech. Pathetic. But still protected. Partly.
Maybe Westboro Baptist would be better off knowing what God loves rather than what it claims God hates. After all, the Bible says we should “comfort all who mourn,” and that those who do so will be called “oaks of righteousness.” Those who do what Phelps-Roper and her “church” do are more like poison oak. And if they really believe what's written in the Bible, they will have to answer for spreading it in God's name.
]]>In New York State, before a witness takes the stand at trial, he either places his hand on a Bible and swears to tell the truth, or, if he objects to swearing, he affirms under penalty of perjury to tell the truth. Then he can take the stand, say whatever he wants, and be cross examined accordingly.
But what happens if that Bible ends up in the jury room when deliberations are under way? The Oliver decision is a must read for anyone interested in the relationship between the Bible and the gavel. Khristian Oliver was tried for murder in Texas: Joe Collins came home to discover Mr. Oliver burglarizing his home. Oliver then shot Mr. Collins and while he lay mortally wounded on the ground, struck him several times in the head with a rifle butt, killing him. After a trial, Oliver was convicted of capital murder and sentenced to death.
Mr. Oliver appealed. He claimed that there were at least four Bibles in the jury room and that one juror read a Bible aloud to a small group of other jurors, thereby influencing their deliberations. A number of passages were read, but this one from the book of Numbers gave rise to his appeal: “And if he smite him with an instrument of iron, so that he die, he is a murderer: the murderer shall surely be put to death.” This hit too close to home for Mr. Oliver. Given the Bible's authority among some folks, and that it is not evidence or the law of Texas, Oliver argued for a new trial. The state court entertained his complaint and held hearings, but concluded that the jury did not act improperly. Although some jurors had looked at the Bible, the court held that the jury was not affected “by any outside influence” and had rendered its verdict in accord with court’s instructions and the evidence presented.
After exhausting his state court appeals, the defendant sought a writ of habeas corpus from the US District Court. It was denied. He then took his case to the U.S. Court of Appeals.
Jury tampering occurs when a jury is influenced by any means except evidence presented in open court. Anything not presented in court is an external influence and is generally not permitted. Was the Bible, particularly the reading of the damning passage that mandates death for a person who kills someone by striking him with iron (as defendant Oliver did) an external influence on the jury? According to the Fifth Circuit Court of Appeals, it was both an external influence and Constitutional error: “[T]he jury’s use of the Bible here amounts to a type of ‘private communication, contact, or tampering’ that is outside the evidence and law...” Of course this begs a number of questions, not the least of which is: A type of private communication or contact with whom?
Putting aside that question for the moment, the court, in fact, accepted Oliver's argument. But did it matter?
Because this was a habeas petition, the Federal court had to determine if the Bible’s external influence was harmless error, which in these proceedings meant whether it had “a substantial and injurious effect or influence in determining the jury’s verdict.” Since the Texas courts already held hearings on this question and decided the jury was not influenced by the Bible or the passages read, the U.S. Appeals Court ruled that the accused “failed to rebut the state court’s factual finding that the Bible did not prejudice the jury’s decision.” Accordingly, Oliver's writ of habeas corpus was denied again.
For now, the verdict stands.
Maybe there are other avenues of appeal for Mr. Oliver, and maybe he will get the last laugh, but the Bible also says “The wicked plot against the righteous...but the Lord laughs...because he knows their day is coming.” For Mr. Oliver, this is no laughing matter. Maybe he would be best served appealing his judgment pro se by seeking his own private communication and contact before that day arrives.
Fifteen of the nineteen terrorists involved in the 911 attacks were Saudis. Why not sue the Kingdom of Saudi Arabia and various other seemingly responsible parties (including four Saudi Princes, a Saudi Banker and the Saudi High Commission) for their support role in the attacks? After all, investigations by our government and by non-governmental entities revealed that most of the terrorists were from the Kingdom of Saudi Arabia and that the defendants provided financial support to al Queda through various channels. The plaintiffs are those who incurred losses in the September 11th attacks. They alleged that Islamic charities under the control of, and funded by, the defendants played an instrumental role in the development of al Queda and the fulfillment of its objectives.
One of the great things about the American justice system is access to the courts. Private citizens and their attorneys have been able to bring actions in court seeking remedies for similar wrongs (Libya was sued for the hijacking and murders aboard Pan Am Flight 73 in 1986, and for the destruction of Pan Am Flight 103 over Lockerbie Scotland which killed all 270 people on board; Swiss banks were sued for corroborating with Nazis and laundering Nazi wealth taken from Jews who died in the Holocaust). Well, what about suing those behind the World Trade Center attacks?
Great idea. Only one problem: The Foreign Sovereign Immunities Act (FSIA) “grants foreign sovereigns immunity from suit in the United States” subject to some limited exceptions, which include torts (car accidents, negligence or injury caused by their representatives) and commercial activity (when the government acts like an individual involved in trade or commerce).
The other exception is created when the US Government designates a foreign government a “state sponsor of terrorism.” When that occurs, there is a private right of action to sue the foreign government. That’s what happened here. Except the State Department did NOT designate Saudi Arabia a state sponsor of terrorism.
No designation, no day in court.
Whether all the defendants in this action are agents or servants of the Saudi Kingdom and actually did what the plaintiffs claimed, the victims of 911 have no right to sue the Saudis under the state sponsor of terrorism exception. And their fall-back positions—that the acts of flying planes into the World Trade Center fit under the tort or commercial activity exceptions—were unconvincing. This was terrorism, and that was the only exception available to the plaintiffs.
The Court summed up the limits of our individual right to sue foreign powers this way:
"Although the FSIA did open an avenue of redress for certain individual victims of state-sponsored terrorism, it did not delegate to the victims, their counsel and the courts the responsibility of the executive branch to make America’s foreign policy response to acts of terrorism committed by a foreign state, including whether federal courts may entertain a victim’s claim for damages." The case was dismissed.
Maybe this is the rare instance where we wish lawyers had more power than they already have.
September 11th may not have been brought to us by any recognized state-sponsored terrorists, but it sure looks like it was. The "state-sponsored" loophole is as big as Ground Zero and leaves one wondering why the attorneys' hands are tied while the terrorists funded by "non-state" sponsors reach all the way into NYC, DC and the skies above Pennsylvania without ever having to answer in court for their actions.
]]>As they say in Jersey, “You talkin' to me?”
That question had to be in Jason Culter’s mind every time he heard comments in the office about “those dirty Jews.” Every time he was referred to as “the Jew.” Every time he was asked by his boss “where [his] big Jew… nose was?” And the time his coworker suggested that we should “get rid of all those dirty Jews.”
And what if all those folks making the comments were armed. Do you call the police?
You don’t if you’re a cop.
And you don’t if the people making the comments were also cops and coworkers.
This was the work environment at the Haddonfield New Jersey Police Department. Not exactly Jersey’s Finest.
Culter was reluctant to make waves and thought he was thick-skinned enough to ignore it all, but a few threatening incidents and comments too many put him over the top. He brought an action under New Jersey’s Law Against Discrimination (LAD) claiming he was subjected to a hostile work environment because he was Jewish. In its defense, the police department claimed Culter was a willing participant in all the fun and that it was all just harmless police department chop busting. The judges were not amused and seemed not to get the joke.
According to the court, “The LAD’s promise of a discrimination-free workplace” extends to matters of faith. “Antagonistic, degrading, or demeaning conduct in the workplace that is directed at or about one’s religious faith, or ancestry, can be discriminatory and can amount to an unlawful hostile environment.” The Haddenfiled precinct was such a place.
The court found that Culter met the threshold for demonstrating a religion-based discriminatory work environment. It also found that the standard of proof to demonstrate a religion-based hostile environment was no different than what was required to show a sexually or racially-based hostile workplace. Hatred and job-related abuse of authority come in all shapes and sizes, but it’s all equally unacceptable.
Given the times we live in, one has to wonder what the members of the Haddonfield Police Department were thinking. Or does anti-Semitism make you both reckless and clueless. These cops would have been better off if they followed there own advice and remained silent. After all, the original “Miranda” warning comes from an old Jewish book (Proverbs 17:28) which says this: “Even a fool is thought wise if he keeps silent, and discerning if he holds his tongue.” Alas, such was not the case here, and before the New Jersey Supreme Court, the Haddonfield Police Department didn’t have a prayer.
It’s only money, except when you’re looking for Medicaid to pay for gender reassignment, or what was previously known as a sex-change operation. Without the state’s cash, Terri Casillas could not obtain the operation "she" claimed she needed. The state refused to pay. The court refused to make the state pay.
Ms. Casillas was born male but identified as a woman from age 16 and lived as one from the time she was 20. When she was about 28, she was diagnosed with Gender Identity Disorder (GID or transsexualism), a form of depression “defined by strong, persistent feelings of identification with the opposite gender and discomfort with one's own assigned sex” (hence the need for gender reassignment). For twenty-four years Ms. Casillas underwent hormone therapy courtesy of Medicaid, which caused her to develop breasts and a “more traditionally female body.” When Medicaid funding ended, the plaintiff paid her own way. When she could no longer afford it, therapy stopped and Ms. Casillas “began to exhibit male characteristics.” This was the point of no return for Ms. Casillas, so she sued the New York State Department of Health to make them pick up the tab for the ultimate remedy: gender reassignment, i.e.,“vaginoplasty (removal of the penis and creation of a vagina) with orchiectomy (removal of the testes).”
It turns out there is a 1997 Department of Health regulation which restricts Medicaid payments for gender reassignment. Ms. Casillas claimed this limitation violated her federal right to obtain such a procedure, which was guaranteed under federal statutes and the US Constitution. The court disagreed. It found that the state can limit medical services based on criteria such as “medical necessity” or “utilization control” (control over the distribution of limited resources through Medicaid). Moreover, if the state had a valid medical reason not to cover such procedures, it didn’t have to. The state identified numerous concerns about gender reassignment, including that “serious complications” could result from such surgery and that the long-term effects of the lifetime hormone therapy that would be required were unknown. Accordingly, the state’s refusal to pay was neither irrational, discriminatory nor a violation of Ms. Casilla’s statutory or Constitutional rights.
In this age of breakthrough medical technology where there are procedures from butt, breast and calf implants, to male sexual enhancement or labiaplasty (look it up!), to cryogenics, the court seemed to recognize that valid lines need to be drawn with respect to state-funded health care and that Medicaid cannot pick up the tab for every medical procedure available. You can’t always get what you want under Medicaid, but you can get what you need.
Finally, Ms. Casillas argued that what she wanted removed surgically was akin to a mastectomy, where a breast is removed because of a medical condition affecting the body part. As she saw it, GID similarly affected a body part (by causing her depression and discomfort) and the surgery should be approved. Since the state pays for one procedure, it should pay for the other and the offending part should be taken off courtesy of Medicaid.
That argument did not cut it, according to the court. And neither would Medicaid.
The case was dismissed.
In the 70's TV show Welcome Back Kotter, Juan Epstein always had a note for his teacher. And every note was “signed Epstein’s Mother.” That won’t cut it in Florida public Schools where the state Pledge Law requires public school students from K to 12 to recite the pledge at the beginning of each day. The only way to be excused from this obligation is by an authentic written request from the student’s parent. Once you submit a note, you can exercise your right to remain silent during the pledge, but the law still requires you to respectfully stand at attention.
Cameron Frazier thought he was old enough to take a stand on sitting out the pledge. The high-school junior challenged the statute claiming the Pledge Law violated his First Amendment rights. The court’s answer to his objection was basically “Sit Down!”
Mr. Fraizier claimed the statute “robbed him of his right to make an independent decision.” The court disagreed. While it overturned that part of the statute that requires students to stand if they opted out of the pledge (the constitutional right to sit during the pledge was long ago established), it determined that the Pledge Law is “largely a parental-rights statute.” Accordingly, it concluded that “the State’s interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech.” The only way out of the pledge for Cameron Frazier was a real note, signed Frazier’s mother.
Depending how you score this, it’s either one against the rights of free speech, or one for the rights of parents. Funny how age and circumstance can affect your view of what is and isn’t constitutional. Now if only the courts would rule on our children's right to opt out of cleaning their rooms or taking out the garbage...
Freeing doctors from potential lawsuits might sound good in theory, but it raises some serious questions about how safe we would be as potential patients.
The Fifth Circuit had to deal with a variation on this question: Can Peer Review Committees (hospital committees made up of doctors who evaluate less-than-optimal care by other doctors at the hospital) be sued for money damages based on their findings? Dr. Poliner was reviewed by such a committee. His medical judgment treating a number of patients had been previously questioned and criticized. His treatment of “patient 36” caused a peer review committee to temporarily restrict his hospital privileges. That decision went down like Castor oil. Doctor Poliner sued the hospital for defamation, intentional infliction of emotional distress and various contract claims.
A trial jury sided with the aggrieved doctor. It awarded him over $200 million in damages. The verdict was subsequently reduced to $33 million by the judge. The Fifth Circuit Court Appeals reversed and ruled in favor of the defendants. It held that under federal law, peer reviewers had immunity and could not be sued by the doctor. More importantly, it found “That the ad hoc committee concluded that Poliner gave substandard care in half of the cases reviewed, and considering the seriousness of the diagnostic error with Patient 36... Defendants were fully warranted in concluding that failing to impose further temporary restrictions ‘may result’ in an imminent danger.”
Back to the first point: There’s been a lot of debate about malpractice cases. Now we know that hospitals have an absolute right to review their doctors and take action. Good. They should. Like the court said, robust peer review helps root out incompetent physicians, protects patients and prevents malpractice. But what about the cases they review when there's “substandard care” and they don’t take action against a doctor? The next patient may well be at serious risk, and someone other than the patient is willing to take it.
That unknowing patient at potential risk could be any of us. If we get injured (and medical mistakes can cause very big injuries), we don’t have the right to fire the doctor or restrict his practice. What we have is the right to bring a medical malpractice action. Take that away and we’re left to what peer reviewers do or don’t do when they’re confronted with substandard care by one of their own.
Sounds like a prescription for trouble.