New York Injury Attorney Blog

Supreme Court of Ohio: City of Barberton v. Jenny

Maybe he wasn’t traveling faster than a speeding bullet, but defendant Mark Jenny was driving fast enough to catch the eye of Officer Santimarino. The question the court had to resolve: Was catching a speeder with your eyes enough to convict?

Officer Santimarino was with the Copley Police Department for 13 years. He was certified by the Ohio Peace Officer Training Academy, where he was trained to visually estimate vehicle speeds. In fact, to become certified, he had to show that he could estimate a vehicle’s speed “to within three to four miles per hour of the actual speed.”

PO Santimarino eyeballed Jenny at 70 mph in a 60.

He was also operating a radar gun at the time. He clocked Jenny at 82.

So much for estimating “within three to four miles per hour.”

He issued Jenny a citation for doing 79.

So much for modern math.

(In fairness to the cop, he testified he was doing Jenny a favor by reducing the speed on the citation so he wouldn’t have to make a personal appearance in court.)

At trial, Officer Santimarino could not produce a copy of his radar training certificate. That meant the radar results were precluded and that the only evidence in support of the speeding ticket was the visual observation of Jenny’s speed.

Jenny moved to dismiss arguing that the city failed to meet its burden of proof—or more accurately, that it had no proof of speeding at all. The lower court dismissed Jenny’s motion and found him guilty based only on the cop’s estimate of speed (which the court reduced to 70 mph on the citation since the speeding was now "clocked" at 70 mph by the only admissible evidence). That the court was aware of the radar result gave it confidence to convict, but it had no influence on its decision (wink, wink!). Punishment: a $50 fine plus costs.

Jenny appealed.

The court of appeals held that the state could not use the radar as proof of speed because there was no certification produced but that hearing about the radar reading was harmless error. There was still “sufficient” proof if a trained law man knew Jenny was speeding by seeing him do so. Conviction upheld.

Jenny appealed again.

Ohio's highest court resolved conflicting state court decisions without batting an eye:

We hold that a police officer’s unaided visual estimation of a vehicle’s speed, by itself, is sufficient to support a conviction for violation of R.C. 4511.21 (D) without independent verification of the vehicles speed if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization…and is experienced in visually estimating vehicle speed.

For Jenny, not the blind justice he was hoping for.

This gives new meaning to the phrase “I’ll see you in court.”

Keep an eye on this trend. It may put a lid on your ability to ever meaningfully challenge a speeding ticket.

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Posted In: Brave New World , Crime and Punishment , Evidence , Other State Courts

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Superior Court of New Jersey Appellate Division: J.T.’s Tire Service v. United Rentals

There are basically two forms of sexual harassment: The first is quid pro quo sexual harassment, which “occurs when an employer attempts to make an employee’s submission of sexual demands a condition of his or her employment.” The second is hostile work environment sexual harassment, which occurs "when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile.”

Simply put, the latter form of harassment generally occurs when a woman works among Neanderthal men who have not learned that it is no longer acceptable in the work place to comment about anatomy, grab or grope said anatomical parts or generally act like we still live in the stone age. It’s akin to a mob mentality on a smaller scale and it brings out the worst in men. Just ask Isiah Thomas of the Knicks and Madison Square Garden Chairman James Dolan.

Quid pro quo sexual harassment is of a different nature. It requires no mob, no assists, just a willingness to abuse power or position for sex. It’s not just the lowest form of harassment, it’s the low-life form of harassment. But can it happen when it isn’t the boss hitting on an employee? What about in the market place, when the representative of one business demands sexual favors from the representative of another to close the deal or to maintain their commercial intercourse?

United is a national equipment rental company. Its Piscataway branch manager was Harold Hinkes. Eileen Totorello is the sole shareholder of J.T. Tire Service, a company that was selling tires to United since 1998. In 2005 Hinkes “began pressuring Totorello to have a sexual relationship with him.” She refused. United Piscataway then stopped buying her tires.

Totorello “managed to get the work back” (one wonders what was said), but Hinkes continued to make threats to withhold business if theirs remained a sex-free relationship. Apparently intent on winning, or at least commandeering sexual favors from Ms. Totorello, he used his tired old tire line to make his point, and added a little kissing and groping in case he had been too subtle. When she refused even these creative advances, Hinkes told her she made a “very poor business decision.” Tire purchases then went permanently flat when United stopped buying J.T.’s tires, which by then amounted to sales of $29,000 per month.

J.T. and Ms. Totorello sued. The lower court said there was no case (all’s fair in love and war, and apparently in business), and that this was not the type of harassment contemplated by the Jersey discrimination statute. The Appellate Division disagreed, finding that “The LAD prohibits discriminatory refusals to do business on the basis of sex, by making it unlawful: For any person to refuse to buy from…contract with…or otherwise do business with any other person on the bases of …sex.”

While defendant conceded that the statute prohibited sexual harassment, it argued that it did not prohibit sexual discrimination, and that the former was prohibited only in employment, and either way, this was not the kind of discrimination the LAD contemplated. While United get’s an “A” for chutzpah, it got nowhere with the court, which ruled:

Although the LAD does not specifically mention sexual harassment as a prohibited form of discrimination, it is well-established that ‘[s]exual harassment is a form of sex discrimination that violates both Title VII and the LAD.’

It went on to say the obvious, which unfortunately for alleged low-lifes and Neanderthals, often needs to be said, to wit, “Where, as here, the harassment consists of sexual overtures and unwelcome touching or groping, it is presumed that the conduct was committed because of the victim’s sex.” And since touching and groping made the question easier for the court to resolve, the refusal to buy tires under the above quoted LAD meant that United’s actions through Hinkes was also discriminatory due to her sex. To rule otherwise, to let such behavior continue unfettered, “would stand as a barrier to women’s ability to do business on an equal footing with men.”

It was Lord Acton who said “power corrupts and absolute power corrupts absolutely.” But it’s all relative. Even a little power, like a little knowledge, is a dangerous thing in the wrong hands.

United ended up with a blow out in court for letting Hinkes drive a hard bargain. Maybe now it will remember one of the fundamental reasons to conduct business at arm’s length—it keeps negotiators out of groping and grabbing range.

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Posted In: Brave New World , Discrimination , Employment Discrimination , Other State Courts

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New York State Appellate Division, 3rd Department: Detraglia v. Grant

Cell phones continue to make law. Last month we looked to Ohio where the court concluded it is a crime to destroy the cell phone of someone calling authorities for assistance in an emergency where life or property are at risk. So how does New York view cell phone records after there’s been property damage and injury as a result of an auto accident.

Robert Grant was driving a company car owned by Hawkeye, his employer. His vehicle collided with defendant Detraglia’s car. Stephanie Detraglia, an infant passenger, was injured and brought this action against both drivers. Demand was made that defendants Grant and Hawkeye “produce billing records for all three of Grant’s cellular telephones and the Verizon wireless air card for his company-issued laptop computer for the date of the accident between 12:00 PM and 4:00 PM” (the accident happened at 2:57 PM). Defendants refused to comply. A motion to compel discovery followed.

Although Grant testified at deposition that he wasn’t using his cell phone or lap top at the time of the accident and that the lap top was secure in a bag, the tow truck driver at the scene submitted an affidavit stating that “he saw the laptop on the vehicle’s computer desk, with the screen flipped up and turned on” indicating recent use. That raised enough of an issue for the lower court to order defendants to turn over the records. Grant and Hawkeye appealed.

The Appellate Division agreed with the lower court, finding that “conflicting evidence raised questions as to whether Grant used any technological devices while driving, rendering the records relevant to the question of his negligence.” The court narrowed the window of discovery of such records to 2:30 PM to 3:30 PM and directed that the court do an in camera review first to protect privacy interests. If it turns out Grant was on the phone or on the computer at the time of the accident, he might have to hang up his defense.

Given how easy it is while driving to use a cell phone to text, get or send emails, surf the web, watch videos, and even make phone calls, such technological distractions are as likely to cause an accident as glancing at a map on the passenger seat or speeding through an intersection. Obtaining the details of a driver’s phone use seems fair game when trying to figure out what caused an accident. In fact, given the ubiquitous use of cell phones and the tendency of people to leave out important facts while being questioned under oath, it would seem that discovery of such records should be a matter of routine, denials of use notwithstanding. One suspects phone record discovery in accidents is well on the way to becoming the law of the land.

The Appellate Division's use of in camera inspection to limit intrusion into the individual's phone or lap top stored data and contacts is entirely in keeping with the value we place on our right to privacy. In Ohio v. Smith, an unrelated case decided the same week, that state’s high court ruled that there is a “high expectation of privacy in a cell phone’s content” particularly because they are “capable of storing tremendous amounts of private data.” Under the circumstances, “an officer may not conduct a search of a cell phone’s contents incident to a lawful arrest without first obtaining a warrant.” In Smith’s case, looking at who he called (supposed drug dealers he was negotiating with) at the time of the crime without first obtaining a warrant, and introducing such evidence at the time of trial, violated his Fourth Amendment right to be free from unlawful search and seizure. Absent exigent circumstances which require an immediate search of phone records for the safety of law-enforcement officers, a warrant is required.

Used to be you were entitled to one phone call when charged with a crime. Nowadays, a valid warrant to search your one cell phone could be your downfall.

And in a civil action, if the evidence of phone use at the time of the accident is in there, it could turn out to be the ultimate collect call, at least for the plaintiff seeking money damages.

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Posted In: Auto Accidents , Brave New World , Crime and Punishment , Evidence , New York State Courts , Other State Courts

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Supreme Court of Ohio: State of Ohio v. Robinson

The law is a slow moving behemoth. Technology changes at a meteoric pace. Watching the law trying to keep up can be amusing and depressing. It can also leave one wondering if the common law—judicial decisions applying general principals of law to given sets of facts—has yielded to the nano state (a derivative of the nanny state) where legislative micro management of rapidly-changing technology is the norm and an ever-increasing challenge for our courts. Ohio v. Robinson is a case in point.

Raynell Robinson was upset with his nephew Antonio. Antonio and his friend Heather Hoge had attended a party at Robinson’s apartment when Robinson was not at home. When he walked in on the affair, he ordered everyone to leave. As nephew Antonio and his friend Hoge began to leave, Robinson hit Antonio in the back of the head. He then proceeded to pummel him. At some point Antonio called 911 on his cell phone. Although he was able to tell the operator that he was at The Meadows apartment complex and that his face was split open, Robinson grabbed the cell phone and smashed it before he could tell them his exact location. Antonio’s friend Heather Hoge then dialed 911 on her cell, but Robinson “told her to show him her hand and that that she had better not be calling the police.” Fearing for her own safety, Hoge got off the phone before she could say where in the complex Antonio was being beaten.

The cops eventually found the right place, the battered Antonio, and cited Robinson for Disorderly Conduct. A grand jury indicted him for the felonious assault of Antonio and for disrupting public service in violation of R.C. 2909.04(A)(3) which makes it a crime to impair the ability of law-enforcement officers and others to respond to an emergency or to protect and preserve any person or property from serious physical harm.

The assault count was never heard at trial. Antonio was apparently not confident he could be protected by the system. Instead, he moved to Arizona and refused to return to Ohio to testify, and, one suspects, obtained an unlisted cell phone number. Hoge testified, however, about the threats to her safety when she tried to call 911. Robinson was convicted and got 2 years for intimidating a victim and 15 months for impairing the cops’ ability to respond to the 911 call by smashing Antonio’s phone.

Plainly put, the question on appeal was whether smashing the cell phone was a separate crime under R.C. 2909.04(A)(3) since Antonio was trying to call the police for help at the time of the assault? The high court said it was.

The Third District Court of Appeals had held that R.C. 2909.04(A)(3) “clearly and unambiguously prohibits substantial interference with public emergency systems and utilities, not the destruction of a single private telephone or cell phone.” The Appellate court also found that the state “failed to prove the element of substantial impairment because the officers arrived at the scene of the assault within a few minutes of being dispatched.”

It’s not clear that Antonio appreciated this nuance or the extra time it took the cops to locate him in the complex or the fear he felt when his lifeline ended with the destruction of his cell phone. In fact, he seemed not to have fully recovered from this trauma, as his switch to Arizona Bell suggests, and the high court was not without sympathy. Ironically, the Ohio Supremes found with equal clarity and unambiguousness “that the damaging of a single private telephone or cellular telephone constitutes a violation of R.C.2909.04 (A) (3)” if the conduct substantially impairs the ability of law enforcement officers and others to respond to an emergency “or to protect and preserve any person or property from serious physical harm.” It also noted that the statute in question never mentioned “public emergency systems” or “utilities,” language the appellate court read into the statute when it reversed Robinson’s conviction.

As for whether there was “substantial impairment” of law enforcement’s ability to respond in this case, that was a question of fact for the jury. According to the high court, the issue isn’t one of response time, as the appellate court thought (is a 1 minute delay ok? is 3 minutes too much?); “the inquiry is directed toward [law enforcement’s] ability to respond.” Here, while the police were attempting to respond to Antonio’s call for help and find him in the complex without an exact apartment number, Robinson continued to beat the hell out of him. That was substantial impairment enough and a direct result of smashing the phone.

Accordingly, Robinson’s conviction and 15 month imprisonment for disrupting public services were reinstated.

This is not an isolated case. It is a picture of the nano-state we live in. Technology keeps changing. Elected officials try to keep up. The legislation gets too technical. Then the courts, in this case, the Third Appellate Department of Ohio, get hyper technical and ethereal, only to be corrected by a high court that agrees with a jury of lay people who got it all right from the beginning.

The diminished role of common law (and the elevated role of legislative solutions to perceived technical loopholes in the law) brings with it a concomitant loss of common sense. It would seem plain to everyone but judges that smashing the cell phone of your assault victim as he calls for help would impair law enforcement’s ability to respond and was the sort of thing envisioned by Ohio’s duly elected representatives and their nano-legislation.

Nowadays, the only thing plain to most of us is that the law is never clear and unambiguous. It's voluminous, exhaustive and more like the tax code than the Ten Commandments.

Voltaire was right. Common sense is not so common. Maybe even less so the more technology becomes part of our daily lives and the more legislators try to regulate it.

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Posted In: Brave New World , Crime and Punishment , Other State Courts

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Wisconsin Court of Appeals, District IV: State of Wisconsin v. Michael A. Sveum

Technology races ahead as most of us long ago gave up ever trying to program our VCRs. Now there are blackberries, blogs and links, text messages and twitter, GPS Navigation and GPS tracking. The latter is the subject of the case at bar.

Can the police secretly attach a GPS tracking device to a suspect's car in his own driveway without violating his Fourth Amendment right to be free from unreasonable searches and seizures? The Court concludes the cops can and that no Fourth Amendment search or seizure even occurs.

Sveum was a repeat stalker. He did time for stalking Jamie Johnson in 1996 and began stalking her anew (with his sister’s help) even before his release from prison in 2002 (this guy may need a body cavity GPS installed). Police sought and received a warrant to covertly attach a GPS tracker to defendant’s car. Based on data collected, a warrant was obtained to search his home, and Sveum was charged and convicted of aggravated (second offense) stalking. He was sentenced to 7 and a half years. He appealed and challenged the use of the GPS tracking device to gather any evidence against him.

The GPS device in question is battery powered and was affixed to defendant’s car with a magnet and tape while it sat in his driveway. Defendant challenged the cops’ entry onto his driveway to install the device. The vehicle was then tracked for about five weeks. Sometimes the car was garaged at home, sometimes at work. The GPS unit was then physically retrieved to obtain a detailed satellite tracking history of its and its host vehicle’s whereabouts. The result was a complete itinerary of the defendant’s travels when he used his car and even where he parked it. He challenged the state's right to know where he parked in private.

What irony: The stalker stalked by satellite.

According to the court, “no Fourth Amendment violation occurred here simply because the police used a GPS device to obtain information about Sveum’s car that was visible to the general public.” Similarly, that the device was attached to the vehicle while in defendant’s driveway was not enough to render its use illegal; the driveway was not “protected ‘curtilage’” [enclosed land on the property]. And that garage locations were electronically noted hardly amounted to an improper search or violated any real expectation of privacy since old fashioned police observation could have netted the same results

The information gathered by the device gave probable cause for a search warrant of the home, and in the end, a jury found defendant guilty. So too did the Court of Appeals.

The Court did sound the warning about advances in technology, however, and acknowledge that it was

troubled the conclusion that no Fourth Amendment search or seizure occurs when police use a GPS or similar device as they have here. So far as we can tell, existing law does not limit the government’s use of tracking devices to investigations of legitimate criminal suspects. If there is no Fourth Amendment search or seizure, police are seemingly free to secretly track anyone’s public movements with a GPS device.

Good for the court. It ruled based on existing law but recommended that the legislature tackle the issue before technology runs amok by well-intentioned but overzealous law enforcement and other inquiring minds.

The rest of the details of this case are like the instructions to your VCR. Important but not relevant.

The bottom line is that there might be something on the bottom of your car and authorities may know exactly where you are at this very moment. So too may your wife or husband, your boss or your mother.

If you're worried, you would be well advised to look both under the hood and under the chassis the next time you pull out of your driveway or you could find your itinerary on YouTube, Google Earth or on a monitor at police headquarters or the Internal Revenue Service.

Welcome to the 21st Century.

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Posted In: Brave New World , Crime and Punishment , Evidence , Other State Courts

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U.S. Court of Appeals for the Eleventh Circuit: NAACP v. Evon Billups, Superintendent of Elections

The great voter-photo controversy continues. This time in Georgia.

Just how burdensome is it to individuals living in the 21st Century to produce a photo before they can vote? According to the plaintiffs who challenged Georgia law requiring such onerous measures as proving you are who you say you are with an ID (even a free one paid for by the State if you somehow managed to live your life in America without possessing some sort of photo ID), it is the equivalent of a poll tax and worse, and therefore in violation of the Twenty-Fourth Amendment, of the Equal Protection Clause, of the Fourteenth Amendment, of the Civil Rights Act of 1964, of Section 2 of the Voting Rights Act of 1965 and of the Georgia Constitution.

A photo ID?

Have we become so sensitive (senseless?) that merely requiring voters to show a confirming photo to vote could be thought so burdensome and discriminatory as to invoke monumental claims of constitutional and legislative infringements? Or are we not prepared to deal with the fact that voter fraud might be occurring right here in the good ole U.S. of A.

Well, there is still some common sense afoot in the common law and the Court of Appeals ruled that the minimal burden imposed by the voter-photo law was far outweighed by the state’s interest in “protecting ‘the integrity and reliability of the electoral process.’”

Here’s the bottom line: “The ordinary burdens of producing a photo identification to vote, which the Supreme Court described as ‘arising from life’s vagaries,’ do not ‘raise any question about the constitutionality of’ the Georgia statute.” Accordingly, voters in Georgia, as in Indiana (and 5 other states), will have to reach into their wallet for their picture before they cast their ballots. Hopefully, they will survive the trauma.

But will the nation survive this negative assault on our electoral process? Is this a portrait of an empire in decline entering the darkroom of disenfranchisment? Or merely a snapshot that has exposed the voter to the brutal truth that the camera doesn’t lie, even if some voters do.

Show ‘em a picture already!

With so many hotly contested elections and legal challenges ending in photo finishes, maybe we should all just smile and say “cheese” before we poke a few chads or pull the lever.

That’s how I vote on this one.

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Posted In: Culture War , It's My Right! , Other State Courts , Politics , U.S. Court of Appeals , Voting Rights

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Supreme Court of Delaware: Jianniney v. Delaware

Mapquest is great for directions. For restaurants along the way. And for finding your way to historic attractions like state prisons. But is Mapquest reliable enough to be considered evidence in a criminal case?

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.

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Posted In: Crime and Punishment , Evidence , Hearsay , Minors , Other State Courts

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Supreme Court of Illinois: The People of the State of Illinois v. Jenna M. Christopherson

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.

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Posted In: Crime and Punishment , Drunk Driving , Minors , Other State Courts , Underage Drinking

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Supreme Court of Florida: US v. Maureen Stevens

Robert Stevens worked for American Media Inc., publishers of the National Enquirer. In 2001, letters containing anthrax were sent to a number of recipients, including American Media in Florida. Mr. Stevens died from inhaling the anthrax. His wife sued the United States (it was their anthrax) and Battelle Memorial Institute, a private facility that produced Bacillus Anthracis for the government.

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.

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Posted In: Anthrax , Damages , Government Negligence , Injuries , Other State Courts , Terrorism , War on Terror , Wrongful Death

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Supreme Court of Florida: Jews for Jesus v. Edith Rapp

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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Posted In: Damages , Other State Courts , Religion , The Internet

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U.S. Court of Appeals for the Fifth Circuit: Oliver v. Quarterman

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.

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Posted In: Crime and Punishment , Culture War , Habeas Corpus , Other State Courts , Religion , U.S. Court of Appeals

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New Jersey Supreme Court: Culter v. Dorn

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.

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Posted In: Employment Discrimination , Injuries , Other State Courts , Religion , Speech

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Wisconsin Supreme Court: State of Wisconsin v. Grunke et. al.

We live in strange times. Really strange times.

These are the undisputed facts: “Nicholas Grunke sought and received the consent of his twin brother, Alexander Grunke, and his friend, Dustin Radke, to help him disinter a female corpse located in a Cassville, Wisconsin cemetery so that the three of them could transfer the corpse to another location where Nicholas planned to have sexual intercourse with it. Apparently, Nicholas conceived this plan after seeing the obituary of the victim in a newspaper.” The defendants went to the cemetery “with shovels, a crowbar, a tarpaulin, and a box of condoms,” dug a hole deep and long enough to uncover the top of the victim's concrete vault but ran into technical problems gaining access. They were subsequently discovered, arrested and charged with Attempted Sexual Assault before any act could be consummated.

In Wisconsin, a person is guilty of Third Degree Sexual Assault when he “has sexual intercourse with a person without the consent of that person...” What about attempted sex with a dead person? Do you have to prove lack of consent? Or is the silence of the dead presumed to be lack of consent, as one might think—if one wasn’t a lawyer.

At the trial level, the circuit court did not permit the charge of Attempted Third Degree Sexual Assault to go forward. It concluded that the sexual assault statute did not apply to circumstances in which the victim is deceased due to no act of the accused (the implications of this reasoning are too frightening to contemplate).

Wisconsin’s Court of Appeals affirmed. It also explored the sexual assault statute and its ambiguity with respect to the issue of consent.

In a moment of moral conviction and clarity of purpose, the Wisconsin Supreme Court concluded that lack of consent is a matter of simple proof when the victim is a corpse, no matter who was responsible for the death. Moreover, as most of us already know, the court found that “A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person.” One would hope.

What’s truly remarkable is that it took three courts entertaining all sorts of arguments to arrive at this conclusion. Just goes to show that judges and lawyers can debate anything to death. But for the moment, it’s good to know the Wisconsin Supreme Court has drawn a line in the dirt when it comes to sex with the dead.

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Posted In: Crime and Punishment , Other State Courts , Strange but True

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Texas Supreme Court: Pleasant Glade Assembly of God v. Schubert

If you believe in Jesus, you’ve come to understand him from the New Testament. Well, the same scriptures that teach about Jesus also teach about demons and the laying on of hands by church elders. If you accept Jesus, then consistency demands that you accept the other things the Bible teaches. Or does it?

17 year old Laura Shubert attended the Pleasant Glade Assembly of God Church. In fact, her own father was an Assembly of God pastor and missionary. The Assemblies of God is a Pentecostal denomination. It “believes in the literal teachings of the Bible with respect to spirits, demons, demon possession and the ‘casting out’ of demons.” It also believes that people can be “slain in the spirit,” which, according to the church, “is a positive experience in which the holy spirit comes over a person and influences them.” The Bible refers to this as being “filled with the spirit” and believers are encouraged to be filled with the spirit again and again.

Laura Shubert had such an experience. In fact, she had it twice in a matter of days. While slain in the spirit the second time, however, Laura’s physical reaction was so significant that the senior pastor was summoned. He laid hands on Laura and prayed for her. Because of the animated way Laura was reacting, she suffered carpet burns, a scrape on her back and minor bruises.

Laura’s experience led to a meeting between her father, Pastor Shubert, and Pastor McCutchen, the one who had laid hands on Laura. A theological discussion ensued and both agreed that Christians cannot be demon possessed (there was apparently a question whether Laura was manifesting the Holy Spirit or was being tormented by an evil spirit). As a result of that meeting, the church agreed to teach more on the subject so its young members would better understand what the Bible says about being filled with the spirit and what it says about demons.

Notwithstanding the theological explanations given, Laura subsequently became depressed, dropped out of school and abandoned her plan to attend Bible College. She was finally diagnosed with post-traumatic stress disorder, and she and her parents blamed the church and sued Pleasant Glade for the injuries and emotional distress she suffered. (There apparently was not much debate about the Bible’s proscription about believers suing fellow believers.)

Laura won at trial. A jury awarded her damages of $300,000 for pain and suffering and other losses. The Court of Appeals in Texas affirmed most of the decision, but the Texas Supreme Court reversed it all.

Laura’s experience, good, bad or otherwise, was not a matter for the courts. As the Supreme Court explained, “Whether the defendants had intentionally or negligently misapplied church doctrine to Laura during these events was not a justiciable controversy...because the ‘First Amendment [gave] Pleasant Glade the right to engage in driving out demons.’”

The court also found that “The ‘laying of hands’ and the presence of demons are part of the church’s belief system and accepted as such by its adherents. These practices are not normally dangerous or unusual and apparently arise in the church with some regularity. They are thus to be expected and are accepted by those in the church. That a particular member may find the practice emotionally disturbing and non-consensual when applied to her does not transform the dispute into a secular matter.”

Laura’s case was dismissed.

The courts have always struggled to balance religious expression and individual rights. In this case, whatever happened “in the spirit” was clearly not the court’s business. But this sort of controversy is not going away. The Bible does more than explore spiritual matters, it judges certain matters of the flesh, including lust, homosexuality, pride and adultery; it is only a matter of time before the words of the Bible are challenged as so offensive they must be silenced. Another, less constrained court, may agree and choose to step into the fray.

God help us.

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Posted In: Damages , Injuries , Other State Courts , Religion , Strange but True

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