Author Archives: nskam

CLS’s “Unrepentant Participation in or Advocacy of a Sexually Immoral Lifestyle” Discrimination Won’t Wash at Hastings

The Christian Legal Society of UC Hastings seeking to discriminate against homosexual members took their case all the way to the U.S. Supreme Court via Christian Legal Society v. Martinez (2010). And in a 5-to-4 decision handed down today, they lost.

In requiring CLS — in common with all other student organizations — to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations. . . CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy.

From the SF Chron.

Also news today: guns guaranteed everywhere!

Art Immitates Law

In Yann Martel’s novel of magical realism The Life of Pi, the protagonist finds himself lost at sea in a raft. His only companion, a Bengal tiger named Richard Parker.

“Who is Richard Parker?” you ask.

In 1884, a ship sank off the Cape of Good Hope leaving three men and a boy trapped in a life raft. By the end of the two weeks things were looking desperate. The group had no food, save a sea turtle they caught and ate, and they were in imminent peril of death. One thing led to another and the boy was killed by two of the men and eaten by all three of the men. Four days later, they were rescued by a German merchant ship. The men were returned to Britain where they put forth the famous necessity defense, which failed, and sentenced to death. However, the Queen commuted their death sentence and everyone lived happily ever after.

The name of the boy cannibalized by the men — Richard Parker.

Regina v. Dudley and Stephens, 14 Q.B.D 273 (1884).

For Sale: One Used Baby, Minor Bruising ($25)

“Alleged Parents-of-the-Year Samantha Tomasini and Patrick Fousek”

The most recent example of desperate times calling for desperate measures: meth heads and a 6-month old child.

Patrick Fousek, 38, and Samantha Tomasini, 20, were arrested Wednesday, hours after Fousek allegedly approached two women outside Walmart and asked if they’d like to purchase his child — at the bargain price of $25. The women initially thought Fousek was joking, but when he became persistent, they got suspicious and reported it to police, Salinas police spokesman Officer Lalo Villegas said.

Run of the mill child endangerment under Cal. Penal Code § 273a:

(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

Note, however, they are not guilty of human trafficking under CA Penal Code § 236.1 which requires a scienter element of either child prostitution or slavery:

Human Trafficking.

(a) Any person who deprives or violates the personal liberty of another with the intent to effect or maintain a felony violation of Section 266, 266h, 266i, 267, 311.4, or 518, or to obtain forced labor or services, is guilty of human trafficking.

In a barter economy, you always want to start with a high price point in anticipation of haggling. But, to be fair, he is rolling back prices.

In other news, Fousek was attacked by inmates while awaiting arraignment.

From NBC Bay Area.

Peeps Expert Testifies in Boulder Eviction Trial

A so-called Peeps expert was allowed to testify Wednesday in a Boulder eviction case, explaining that — unlike other foods that would rot when left exposed in an apartment hallway — the sugar-encrusted treats “become hard and kind of crunchy.”

A central question in the jury trial of Carol “Chay” Burdick is whether the Peeps and other Easter decorations she left on her doorway last spring were garbage or artistic expression. Trash wasn’t allowed under her lease with the Meadow Creek Apartments in Gunbarrel, but attorneys say the lease never addressed holiday decor.

Andrew Novick, 40, of Denver, took the stand Wednesday. Novick is a self-described Peeps lover and collector of Peeps memorabilia who hosts an annual barbecue (peepsbq.com) that features the confection.

He was called to testify on behalf of Burdick, who is in the middle of a three-day civil trial in Boulder County Court after claiming she was wrongfully evicted from her apartment over her Easter decorations.

He explained that, unlike other foods that Burdick could have nailed to her wall, Peeps simply harden over time.

While it may seem ridiculous to certify an expert witness on the subject of Peeps, the FRE permits expert witness testimony on any topic that would be “helpful” to the jury. Requirements for admissibility of an expert witness opinion (under FRE):

  1. Opinion must be helpful to the jury (expert uses specialized knowledge to reach conclusion the average juror could not figure out herself),
  2. Witness must be qualified (area of expertise must match area of opinion),
  3. Witness must believe in opinion to reasonable degree of certainty,
  4. Opinion must be supported by a proper factual basis (admitted evidence, personal knowledge, or inadmissible evidence reasonably relied upon), and
  5. Opinion must be based on reliable principles that were reliably applied (Daubert/Kumho standard):

Note: Judge David Archuleta refused to hear additional expert witness testimony from a former art teacher who would have expounded on the use of Peeps as a legitimate art medium and the third-place runner up of an annual Peeps diorama contest.

From the Boulder Daily Camera.

The K in Contract

While it would be nice to be able to go back to English common law to dig up this one, the Internet seems to think the reason “contract” is abbreviated in law with a “K” is because the word contract begins with a hard “C” which is more akin to a “K” visually.

  • C = “see”
  • K = “kay”

Other seemingly nonsensical uses for the letter “K” in abbreviation:

  • K = From baseball, meaning strikeout (because S was already taken for sacrifice)
  • EKG = Electrocardiogram (from the German elektrokardiogramm)
  • K = potassium (from the Latin kalium)
  • k = spring constant

From the Internet hivemind.

The Lawyers Patron Saint(s)

Saint Thomas More (beheaded 1535 AD)

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Saint Genesius of Rome (beheaded circa 303 AD)

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Saint Catherine of Alexandria (beheaded circa 305 AD)

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Saint Ivo of Kermartin (natural causes 1303 AD)

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Saint Mark/John Mark/Mark the Evangelist (dragged to death 68 AD)

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Saint Raymond of Peñafort (natural causes 1275)

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The Old Devil

He was deeply distressed and redoubled his plaints,
When he thought that, among the whole number of saints,
His profession had none upon whom to rely,
When assistance was needed or danger was nigh.
‘Twas a very hard case,
Yea a downright disgrace,
That the lawyer should have no attorney in heaven.
(read more)

From Saints Star Quest Production Network and The Green Bag.

The Psychology of Firing Squads

Firing Squads. There has to be something said for a method that takes into account the psychological effects on unintended parties. Traditionally in a firing squad, one gun was loaded with a blank round. This bullet is known as the “conscience round” and promotes diffusion of responsibility among the executioners. A heavy conscience is supposed to take solace in the fact that he may have had no part in a murder. A wax dummy round is sometimes used because has more recoil than a blank, making it harder to tell which rifle had no part in the execution. As reported by the BBC, in the execution of Ronnie Lee Gardner a wax dummy round was employed:

None of the firing squad will ever know for sure if he fired a lethal shot. One gun was loaded with a dummy – probably wax – bullet, which is said to deliver the same recoil as a live round.

From the BBC.

Department of the Army 1947 Pamphlet Procedure for Military Executions:

The officer charged with the execution will command the escort and make the necessary arrangements for the conduct of the execution. [The execution squad will consist of 8 men]. He will — (g) Cause eight rifles to be loaded in his presence. Not more than three nor less than one will be loaded with blank ammunition. He will place the rifles at random in the rack provided for that purpose.

Note: The above image is a blank, not a wax dummy round.

Using April Fools’ Day as a Legal Argument (Murder, Rape, and Contract Formation, Oh My!)

When it comes to April Fools’ Day and contract formation, consider the basics. A contract is a legally enforceable agreement. In order to have an enforceable contract, there must be offer and acceptance. An offer is a manifestation of intent of an agreement judged using the test of whether a reasonable person would believe that an offer had been made.  Therefore, if on April Fools’ Day an offer was made which a reasonable person would believe was a legitimate offer and that offer is accepted, a binding contract is created even if the offeror was merely joking. However, if both the offeror and the offeree knew the agreement was a joke, no contract would be formed because there was no mutual assent to the agreement. From Lucy v. Zehmer, 84 SE 2d 516 (1954):

We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention.

See also Keller v. Holderman, 11 Mich. 248 (Mich. 1863).

Action by Holderman against Keller upon a check for $300, drawn by Keller upon a banker at Niles, and not honored. The cause was tried without a jury, and the Circuit Judge found as facts, that the check was given for an old silver watch, worth about $15, which Keller took and kept till the day of trial, when he offered to return it to the plaintiff, who refused to receive it. The whole transaction was a frolic and banter–the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn. The defendant when he drew the check had no money in the banker’s hands, and had intended to insert a condition in the check that would prevent his being liable upon it; but as he had failed to do so, and had retained the watch, the judge held him liable, and judgment was rendered against him for the amount of the check.

When the court below found as a fact that “the whole transaction between the parties was a frolic and a banter, the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn,” the conclusion should have been that no contract was ever made by the parties, and the finding should have been that no cause of action existed upon the check to the plaintiff.

Note the digression on the topic regarding collective bargaining in Lewis v. Lowry, 295 F. 2d 197 (4th Cir. 1961).

If negotiators in a collective bargaining session should arrive at a complete agreement on the eve of April Fool’s Day and, out of a perverted sense of humor, should reduce to writing, sign, and distribute a pretensive agreement far from the real agreement they had reached, surely either party could show that the pretensive agreement was in fact pretensive, and the right of each to require that the real agreement be reduced to writing would be preserved.

Some other recent instances:

People v. McMullen, 92 AD 2d 1059 (1983).

Defendant testified at trial that the sexual acts described by complainant were consensual; that she ran naked from the house as part of an April Fool’s Day prank; and that she was injured when he pulled her back to the house so she would not wake his neighbors.

US v. Mohammad, 53 F. 3d 1426 (7th Cir. 1995).

Defense counsel’s other remarks, such as noting to the jury that the witness had testified before the grand jury on April Fool’s Day, no doubt contributed to the atmosphere in which the court handled the matter.

Winiarz v. State, 820 P. 2d 1317 (NV Sup. Ct. 1991).

On April Fool’s Day, 1984, Consuelo and Jacob Winiarz (to whom Consuelo was ostensibly married by virtue of an invalid marriage ceremony) decided to play a trick on a friend who was visiting them at their home. Consuelo and Jacob staged an argument, whereupon Consuelo pulled a gun on Jacob and fired at him, using blanks. Jacob pretended to die, spilling ketchup over himself to suggest that he was bleeding.

On Easter Day, 1984, a different group of friends was at Consuelo and Jacob’s home. Most of the people present, including Consuelo and Jacob, had been either smoking marijuana or drinking. Consuelo and Jacob appeared to argue and Consuelo shot at Jacob four times. When she allegedly first realized that there were real bullets in the gun and that Jacob had been wounded, Consuelo called an ambulance and went for help. [Jacob subsequently died and Consuelo was charged and convicted of his murder, twice.]

When Judges Get Punny

A sampling of retired Judge John Robert Brown’s delights from the 5th Circuit Court of Appeals:

“Congress, of course, has the Cold Power to preempt. Of the three situations discussed by the Court, the first (direct conflict) is easy, for it is Crystal Clear that the state law must yield. The third, in which the ordinance may supplement the federal law and thereby extend or increase the degree of regulation, is more troublesome. For where Congress has chosen to fashion a regulatory scheme that is only the Head and Shoulders, but has not opted to regulate every aspect of the area, the states have implied power to flesh out the body. It is where Congress fails to clearly signify, with an appropriate preemption clause, its intent to fully occupy the area regulated that the problem arises. With some Joy, the Court finds there is such a clause.”

Chemical Specialties Manufacturers Ass’n, Inc. v. Clark, 482 F. 2d 325 (5th Cir. 1973).

See more of Judge Brown’s antics here and here.