May It Please The Court
Quote of the Day - "Well, now, hold onta yer horses, there, Frazier. I mean, as a psychiatrist, isn't it your job to, uh, `seek and uphold the truth'?"
Mr. Ed Rolls Over In His Grave"A horse is a horse, of course, of course,
but the Vehicle Code does not divorce
its application from, perforce,
a steed as my colleagues said.
"'It's not vague,' I'll say until I'm hoarse,
and whether a car, a truck or horse
this law applies with equal force,
and I'd reverse instead."
That is Justice J. Michael Eakin of the Pennsylvania Supreme Court, dissenting to this majority opinion, that ruled PA's DUI law doesn't apply to people on horseback.
Obviously, he didn't agree.
Three men were arrested for drunken driving, but two were on horseback. The prosecutors argued that Pennsylvania's laws applied to them, but the majority of the PA Supreme Court disagreed, found that the law was vague, and reversed their conviction for drunken "driving."
Justice Eakin made his point, but lost this round.
What about the Amish buggies all around Pennsylvania? If the driver is drunk (admittedly a stretch), does that mean that because they're driving a horse-drawn carriage that the DUI laws don't apply?
This case isn't going to ride off quietly into the sunset.
Fall, Mom & Big Tobacco, and How They Don't RelateTomorrow is the autumnal equinox. Kind of Earth's hump day. Just wanted you to be ready. You know, water cooler talk. But in the meantime, more serious stuff is at hand.
Today's feature is brought to you by Leigh Dierck, a faithful reader, who proposed I write about Big Tobacco. She was so concerned that she even sent me some links to use in this post, which I will.
Before we get there though, it must have been a red-letter day yesterday. My Mom called, and suggested today's Quote of the Day. She got it from her Ideals magazine.
That said, here we go. Apparently, the DOJ sued Big Tobacco for violations of RICO. Not everyone believes it's a good idea.
In any event, trial starts today (NPR's 4:38 minute audio link available).
Obviously, John Ashcroft wants to make a big splash. But, Big Tobacco has fought off and lost lesser lawsuits before.
The stakes are big here - nearly $280 million. Big Tobacco is fighting for its life. Kind of ironic, isn't it?
Will they lose this time? Maybe, maybe not. RICO is generally used against organized crime. Some would argue that label fits Big Tobacco.
The Government's Opening Statement is today, and Big Tobacco starts tomorrow. Appeals have already been taken, and you can expect this case and all of its appeals to last 20 years or more, if the lawyers have their way. Consequently, this lawsuit will wind its way through up to five Presidents.
You can bet Big Tobacco will get a sympathetic President that will instruct the Justice Department to settle the action, and no one will win, especially the taxpayers, who are footing the big expense of this case now. When settlement monies come, will they find their way into the hands of those who suffered lung cancer and the like?
Most likely not. It will repay the taxpayers and go into government coffers to fund programs to teach us not to smoke.
Meanwhile, where did I put my cigar?
I'm Not Getting In That TankI have been swimming with the sharks (yes, the lawyer kind, too) without a cage. I used to volunteer at the Aquarium of the Pacific in Long Beach.
Don't get too excited - it wasn't very glamorous.
Mostly I cleaned the tanks and coral displays with a toothbrush.
But, diving in the shark tank was pretty cool, I'd have to admit. When we fed the fish (the sharks had been fed first before we could even get in the tank), you had to keep your hands close by your body.
But now, the Monterrey Bay Aquarium has a Great White on display. Apparently, the only one in captivity.
While the concept of an underwater zoo is great for education and to promote the diving industry, I don't know how they're going to keep that tank clean.
I'm not donning a wetsuit to get in there with those salmon fillets the Great White ate on its first day in the aquarium. How about you? At least you can be a voyeur.
What Difference Would It Make?I know what I’m supposed to write about here, but as an attorney I just could not pass on the opportunity of discussing an article I read in the New York Times last week. Bill Burkett is the former Texas National Guard officer suspected of providing CBS News with possibly forged records on President Bush’s military record. David Van Os, Burkett’s attorney, was quoted last week as follows:
"If, hypothetically, Bill Burkett . . . had prepared or had typed on a word processor as some of the journalists are presuming, without much evidence, if someone in the year 2004 had prepared on a word processor replicas of documents that they believed had existed in 1972 or 1973 - which Bill Burkett has absolutely not done . . . what difference would it make?"
As an initial observation, I must presume that Mr. Van Os was authorized to utter his hypothetical to the press. Notwithstanding his admonition that Mr. Burkett is not the one responsible for “memogate,” Mr. Van Os' denial rang hollow. It reminded me of a story about my uncle when he was a small boy. He ran up to my father and aunt, who were playing in the front yard, and said, “There’s no fire in the house.” They didn’t believe him, either, especially when they saw billowing smoke coming out of the house.
Setting aside the political agenda behind the memos in question, if any, there are several fundamental problems with Mr. Van Os’ statement. Most notably, the military records are not “replicas” of the originals – if indeed originals ever existed, which is precisely why the documents were immediately suspected of having been forged in the first place. Moreover, Mr. Van Os’ advocacy for a new “belief” standard for the authenticity of documents is somewhat troubling. What about rules of evidence? How did Mr. Van Os seemingly get around 200 plus years of jurisprudence? Imagine, if you will, the colloquy between counsel and Mr. Van Os if he were elected to the Texas Supreme Court:
Lawyer: Your Honor, it was error for the trial court to admit the memos into the record over the objections of counsel. These documents were forgeries. Further, no evidence was presented that original memos ever existed except for the testimony of Mr. X, who is accused of creating the forgeries.
J. [Justice] Van Os: But counselor, Mr. X testified under oath that he believed the originals once existed over 30 years ago, and that he was very careful in forging the memos so that everyone, including the American public, would believe they were duplicates of the originals. Clearly, the jurors were entitled to see the memos for themselves.
Lawyer: With all due respect, no, your Honor. Without the originals, the forged memos constitute nothing more than inadmissible hearsay and should have been excluded from the evidence.
J. Van Os: Well, not so fast counselor. After all, there’s the ancient document exception, and the. . .
Lawyer: Excuse me your Honor, but there is no evidence that the forgeries are over 30 years old. In fact, they were created this year. Besides that, there’s the issue of authenticity again.
J. Van Os: Even so, there’s still the public records exception, the business records exception, and don't forget the one involving. . . .
Lawyer: Pardon me again your Honor, but the hearsay exceptions you are referring to only apply when there is no dispute that the copy to be introduced into evidence is the same as the original, which certainly is not the case here. Indeed, the evidence shows that certain statements in the forgeries could not be true because . . . .
J. Van Os: Back to your argument about the originals, eh, counselor? Don’t you understand? That’s the conundrum we find ourselves in today because the originals obviously do not exist. Thankfully, however, Mr. X believes they once did exist, and he has assured us that his forgeries accurately reflect his belief. Relax, counselor. The jurors are smart people. Right? They don’t need any further safeguards before evaluating the merits of the statements within those memos. And as long as Mr. X’s believes his forgeries are accurate, what difference could it possibly make?
Well, insofar as determining whether David Van Os is elected to the Texas Supreme Court is concerned, I can only hope that it does make a difference.
How Much For That Lawyer In the Window?How much do good lawyers cost? Well, that's a loaded question, and just like everything else in the law, there's more than one answer. To begin with, we all know that lawyers generally get paid one of two ways: hourly or contingency. Unless, of course, a lawyer works pro bono, and then it's free.
Hourly rates generally run between $80 and $1,000, depending on location, education, experience, and track record, among other things.
But some lawyers' rates can be astronomical, and some cases can cost the GNP of a small country.
Take, for example, the battle between South Carolina's rural schools and its legislature. So far, over the course of ten years, lawyers have racked up over $10,000,000. The rural schools have been classified as poor. And they can afford those fees?
Compare that to the little (ok, not so little) York, PA. They can't fix their potholes, buy fire equipment, and even replace toilet paper rolls. But, they want to spend $37,000 for a lawyer for the City Council.
Then there's the Exxon Valdez case, where the 60 winning law firms earned over $1.3 billion.
When you win, your lawyer is worth it. But usually, one side loses in each case.
Is there a solution to this question?
Here's A Tip - You Don't Have ToHumberto A. Taveras went out for pizza to Soprano's Restaurant and Italian Grill in Great Neck, New York.
Like some of the rest us have done from time to time, he took a big group. Unfortunately, the food wasn't good, and the service wasn't much better. So, Mr. Taveras didn't leave a big tip. He left under ten percent.
Consequently, he got arrested.
For not leaving an 18 percent tip. Technically speaking, for theft of services. A misdemeanor crime, all for voting with his wallet. He left a tip, but not the kind the restaurant wanted.
Seems that Soprano's had a requirement that if you brought a large party, here more than eight, then you had to tip 18%. But, neither Taveras nor anyone in his party knew that. They didn't see it on the menu, and although Soprano's claimed that the waiters told the party, Taveras and his group said they didn't know.
This story has flown across the internet because we are all confused on the issue, and don't want to have a restaurant with bad service and bad food to tell us how to tip. That in itself is a license to steal. Even in Denmark.
It seems to me that if anyone should have been arrested, it was the restaurant personnel for not delivering what was promised. But, that too would have been wrong.
So what happened to Mr. Taveras? The New York District Attorney saw it the same way you and I do. A tip is just a tip, and it is discretionary, not mandatory.
Even if the restaurant says otherwise, you'll be glad to know.
Your Computer is RingingTalk is cheap, and getting cheaper. According to the news, it can cost pennies. I'm here to tell you that it can be almost free.
I'm no evangelist, but you can trade a little computer power for free telephone calls - unless you want to connect to a land line. In other words, if someone else is on Skype, the call is free. All you have to do is agree to let other Skype users use a bit of your computer power to connect calls.
What does this new system do to the telephone industry?
Well, it's likely going to damage the telephone system further. The breakup of the Bell System has led to a myriad of telephone companies, different calling plans and even different telephones.
What are the legal consequences? It depends on who you are. If you're a regular user, all you have to do is sign up for Skype and use it. If you're Skype from the Netherlands, you've developed a system that could be the downfall of the big telephone companies, but you're using the lines they laid. Someone has to pay for all of that infrastructure and maintenance.
Free is nice, but it doesn't repair downed telephone lines. If you're the 800-pound gorilla, you've got to figure out a way to get paid.
That's not going to be easy.
Of course, this change won't happen overnight. People like to use their telephone, and may not be so willing to switch to technology.
But for those of us who do, you can save your pennies.
Call me. I'm waiting by my computer.
Excuse Me, Are Those Jammies Bronzed?Sex sells. It's something that we've all gotten used to by now, but sometimes the sale of sex takes itself too seriously.
I mean that, well, with tongue planted firmly in my (no snide remarks here) cheek. I almost wish I had an English accent so I could say, as only James Bond could, "Oh, how marvelously cheeky." But, I'm not, so I won't.
First of all, here's the setup: our pal Hugh Hefner's pajamas just got canonized.
Where, you might ask?
Why in the Erotic Museum of Hollywood Hall of Fame, of course. What you say, you didn't know there was such a museum?
You're apparently not the only one. That's why they started a Hall of Fame. It's called publicity, and this little stunt got plenty of it. Hugh is the first inductee, with others on the way, including Mae West, and several other sex luminaries such as Dr. Sigmund Freud, Margaret Sanger and Dr. Ruth Westheimer.
Don't fret if you didn't get to see Hef inducted though, because you too can become a member of the Erotic Museum. For a mere grand, you get a special curator-led tour for you and ten of your best friends, a framed exhibition poster, an Erotic Museum t-shirt, a limited edition Erotic Museum Zippo lighter (to light your pipe with, certainly), and a bottle of champagne. Such a deal!
Selling sex is nothing new, and in fact has been on TV in our living rooms for some time. Not only is the Erotic Museum covering the history of sex, but also our favorite Miss America turns 50 this year. According to these news reports, she's trying to figure out how to become relevant again.
I thought that's what the swimsuit competition was all about.