The taming of the lawyers

Two lawyers who traded mutual insults while taking the sworn statement of a witness have been judged by a federal court in Pennsylvania. Quoting The Taming of the Shrew – “Do as adversaries do in law, Strive mightily but eat and drink as friends” – the court ordered them to dine together to improve their relationship.

Their case concerned a school caretaker who sued a local education authority for alleged discrimination. The lawyers for both sides met to take statements from school authority employees. When the defendant’s counsel, James Ellison, objected to a question put to his client, the claimant’s counsel, Lewis Hannah, responded: “Shut up you are such an asshole”. Ellison’s then reassured his client: “[Mr Hannah]’s off his meds today. Pay no attention to that”.

The meeting later broke up in bitterness and the lawyers became locked in a legal battle against each other. In considering counsels’ conduct, Judge Gene Pratter noted that Hannah’s behaviour was awful. He had four times referred to defence counsel as what the judge termed “a certain unattractive end-piece of anatomy”. Hannah insisted he’d treated the opposition witness, Dr Walker, with respect but he admitted to repeatedly referring to her as “Ms Walker” in order “to get an edge” and to make her feel uneasy.

Judge Pratter ruled that the incivilities in this case were worse than those in a 1992 precedent in which counsel uttered one profanity (“cut the bullshit”) but less bad than a 2008 case in which the word “f—k” and its grammatical variants was used in a deposition 73 times. Quoting a Supreme Court Justice, Pratter reminded the lawyers that civility was “not some bumper sticker slogan ‘Have you hugged your adversary today?’” but it was the mark of an accomplished professional.

The judge ruled that this wasn’t an appropriate case in which to make Hannah pay the fees and costs of Ellison for the aborted deposition hearing; Ellison, after all, was not an innocent bystander in these events. The lawyers would, though, need to get on better so they were ordered to “join each other for an informal meal” to facilitate the “repair of their professional relationship”. Hannah was also ordered to take a course in “civility and professionalism”.

The permissible level of rudeness to a lawyer in England was addressed in a case in 1639. Mr Justice Barckley observed that it was unacceptable to say of a lawyer that “he hath no more law than a monkey” but it was okay to say “he had as much law as a monkey”. The second statement is merely an incomplete truth – lawyers do know as much law as monkeys plus a lot more. What lawyers then called Barckley and his logic, however, involved words never used in even the roughest troop of monkeys.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6858646.ece

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From felon to fish food

The case of a convicted murder who wants to give his body to art – and fish

Gene Hathorn, a convicted murderer on Death Row in Texas, is planning an unconventional way to dispose of his corpse. Instead of a standard burial – “ashes to ashes, dust to dust” – Hathorn is hoping to transform himself into fish food.

Hathorn is awaiting the outcome of his third and final appeal at the Court of Criminal Appeals. If this appeal fails, he says he wants his body to be given to the artist Marco Evaristti for use in a piece of installation art in a project on capital punishment. Hathorn wants the artist to deep-freeze his executed corpse and then turn it into fish food, which visitors at an exhibition could then feed to goldfish.

In 1985, in Trinity County in Texas, Hathorn was convicted of killing his father, stepmother and stepbrother. Mr Evaristti, a Chilean artist living in Denmark, visited him in jail for the first time earlier this year, when the fish food plan was devised.

Evaristti presents his felon-into-food idea as part of a serious moral indictment of the system of capital punishment (as opposed to a daft and artless stunt). He says that more important than the story of Hathorn is the need to highlight America’s “vulgar and primitive” system of capital punishment.

But not everyone will be convinced by Evaristti’s values and ,in particular, his claimed aversion to vulgarity. At an exhibition in Copenhagen in 2000, one of his installations was removed by police under Danish law. The exhibit featured a row of transparent electric food blenders, plugged in to sockets ready for action. Evaristti had filled each of them with water and live goldfish and visitors were invited to switch on the blenders to produce fish soup.

Historically, under English law no convict’s body has ever been specifically turned into fish food but some executed criminals did, in The Godfather phrase, end up “sleeping with the fishes”. It was the early medieval practice of various coastal towns such as Portsmouth and Sandwich Bay to execute convicts who been sentenced to death by tying them to a stake on the shore at low tide and leaving them there to drown.

Convicts in London managed to escape execution by consenting to their bodies being used for medical experiments. When John Benham was under sentence of death in the eighteenth-century, he gained a pardon from George III in exchange for agreeing to have a limb amputated. Surgeons wanted to test how good a newly-invented styptic was at stemming severe blood loss. The styptic must have been reasonably good because the records show that following the amputation Benham was later released from jail. It is always good to see law helping with the cutting edge of medical science.

Professor Gary Slapper is Director of the Centre for Law at The Open University

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article4740129.ece

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Flying fruit

A Scottish court rules that, legally, a pineapple can be the agent of harm in an assault

In the UK, the law relating to pineapples is narrow. Until recently, the rules only stipulated when a pineapple must be sold with its weight specified. Now a Scottish court decision has confirmed that, legally, the fruit can be an agent of harm in an assault.

A former policewoman who was struck on the sternum by a flying pineapple during a disturbance has just been awarded £3,000. Tracey Ormsby, the claimant, originally submitted a claim for £1.5 million, saying she had suffered serious psychological injuries including a major depressive disorder and agoraphobia after the attack by a mob at Govanhill Baths in Glasgow in 2001.

Last week, however, at the Court of Session in Edinburgh, Lord Malcolm doubted the extent of her mental injury. The judge heard evidence that since the assault she had taken several foreign holidays, joined a gym and acquired a new boyfriend after ending her previous relationship with a married officer. Her love life became relevant because the officer accused Ormsby of threatening to send his wife compromising photos unless he agreed to give perjured evidence on Ormsby’s behalf.

Ormsby, of Strathclyde police, was ordered to attend a protest in 2001. The baths were to be closed and a furious crowd had assembled to try to stop workmen from boarding up the premises. After violent disorder erupted, and missiles, including the pineapple, were thrown at the police, senior officers breached their duty of care to their staff by keeping them in a cordon after the risk of serious injury arose.

The court ruled that Ormsby was entitled to an award for her minor physical injuries but rejected her claim for psychological injury. Lord Malcolm said he could not reconcile the Ormsby he saw giving “robust, combative and feisty” testimony in the witness box with “the fearful and fragile person” described in some of the medical reports.

Flying fruit has rarely been of significance in English law though it did feature unexpectedly in one case. On December 2, 1938, the Court of Appeal ruled that a man who had hurled tomatoes at its judges had committed a gross contempt of court.

Frank Harrison, representing himself, had made an application for a new trial in a civil case that he had lost. When his argument was rejected by the appeal court, Harrision withdrew a number of tomatoes from his pocket and hurled them in a fusillade at Lord Justice Clauson and Lord Justice Goddard. Physically as well as mentally agile, the judges avoided all of the shots.

Harrison was swiftly sentenced to six weeks imprisonment. His final submission to the bench wasn’t ideally framed to improve his situation. Pulled away to the cells, he shouted, “It is a pity I was not a better shot”. But three weeks later his profuse apology was accepted and he was released for Christmas. To get plum pudding you must sometimes first eat humble pie.

Professor Gary Slapper is Director of the Centre for Law at the Open University

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article4963727.ece

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Does my bum look big in this bank queue?

A suspected bank robber in western Germany is identified by a distinctive feature

The identity of an alleged bank robber in a recent German case depends on the reliability of testimony about the size of her bottom. So a variant on the common question will soon be heard in court: “Does my bottom look big in this bank queue?”

A bank in Norf in western Germany was robbed at gunpoint and the robber had escaped with €15,000. The main clue police had to work on was that witnesses had reported the suspect was a woman with “a very large backside” and “powerful thighs”.

Some weeks later, one of those witnesses was standing in a queue in the same bank when he noticed what he thought was the same backside. He said he was sure because he would “never forget anything that big”.

The man called the police and the suspect, Sandra Meiser, 26, was arrested and found to be in possession of a ski mask and a handgun. She was suspected of being about to rob the same bank again. She was charged with firearms offences and attempted robbery.

The size of a bottom was once relevant to the outcome of an English case but the court was not very enthusiastic about the prospect of meticulously evaluating the evidence.

In 1983, the television critic Nina Myskow slated the performance of the actress Charlotte Cornwell in a series called “No Excuses”. The review had said, among other things, “her bum is too big”. The actress sued.

Counsel for the critic suggested that the courts were “not the place to deal with someone’s sense of grievance that another person has been rude in print about their bottom”, but the court disagreed. The case ploughed on and after a retrial Ms Cornwell eventually won £11,500 damages.

In the German case, the mistake allegedly made by Ms Meiser is that while being easily identifiable she tried to rob the same bank twice. Bank robbers, however, have made worse mistakes than that.

In 1975, a Scottish court heard that three men intent on robbery had charged into the Royal Bank of Scotland at Rothesay and got stuck in the revolving doors. They had to be helped free by the staff, after which they sheepishly left the building. Moments later they rushed back in, declared they were robbing the bank, and demanded £5,000 cash but got no reaction other than laughter from the head cashier.

One of the robbers then jumped over the counter in a rage but crashed to the floor clutching his ankle. Seeing that, the other two tried to make their getaway but, once again, were trapped in the revolving doors.

Professor Gary Slapper is Director of the Centre for Law at the Open University

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article4866320.ece

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What not to wear in court

“You should never have your best trousers on when you go out to fight for freedom and truth,” the playwright Henrik Ibsen wrote.

That principle, however, does not apply to crusading lawyers. A federal court in New York recently ruled that lawyer Todd Bank does not have a constitutional right to stand up in court dressed as if he were at a baseball game.

In 2008, Bank appeared in the civil court in Queens wearing blue jeans, an open-neck casual shirt and a baseball cap bearing the words “Operation Desert Storm”. Judge Anne Katz admonished him for his dress and the senior court clerk told him to remove his hat. Bank then sued them both, alleging he had a constitutional right to dress as he wished in court. He said it was a right of freedom of expression and of fundamental liberty.

Bank’s claim was heard by the United States District Court of Eastern New York. It ruled that the function of a courtroom is to provide a place where civil and criminal disputes can be adjudicated and that in this “staid environment” a judge must maintain proper decorum. Unless someone has a religious reason to have his head covered, it is “generally accepted etiquette to remove an everyday hat when entering a courtroom”. It is not someone’s right to express himself as he wishes in a courtroom because “a courtroom is not a public forum for the expression of ideas”.

Bank is well-known in New York legal circles as an advocate not only for his clients but also as someone who sues people personally. His back catalogue of cases includes Bank v Pentagon Financial Group (2009), Bank v US Healthcare (2001) and Bank v Brooklyn Law School (2000), where he sued an entire building of lawyers – rarely a good option.

In the recent case in Queens in which his clothes were criticised, Bank was suing personally but this did not affect the court’s right to require him to dress in a way that suited the dignity of the courtroom rather than “clothes that might have been worn to a baseball game”.

What to wear in court has always been of concern among lawyers. In ancient Rome, Quintilian recommended the precise way in which an advocate should wear his toga. “The left arm should only be raised so far as to form a right-angle at the elbow” he insisted “while the edge of the toga should fall in equal lengths on either side”.

In Britain, historically, it was once held to be a crime of fashion when a barrister appeared in court wearing a white waistcoat beneath his robe. In another case, the Attorney-General, Sir Richard Bethell, sent for a barrister and gave him a long withering lecture for having appeared in court in a waistcoat bearing golden buttons.

Mr Justice Byles, though, had some worrying impartiality issues – he once declared he listened “with little pleasure to the arguments of counsel whose legs are encased in light grey trousers”.

The book Weird Cases by Gary Slapper is published in December by Wildy, Simmonds & Hill.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6918561.ece

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A crime against fashion

Communities in America get tough on sagging trousers

When defence lawyer Carol Bickerstaff told a judge in a recent case, “Your honour, we now have the fashion police,” she was not being metaphorical.

She was referring to the situation of her client, Julius Hart, 17, who had been arrested by police and put in the cells for night for a fashion crime. He had contravened a local law in Riviera Breach, Florida which has criminalised the wearing of trousers that sag significantly below the wearer’s waist.

Police officers had arrested Hart for the “saggy pants” violation when they spotted him riding his bicycle while his low trousers revealed “4 to 5 inches of blue and black boxer shorts”.

Tired of seeing young people walking about town with their backsides hanging out, the older citizens of Riviera Beach had passed the clothing law in March. For a first offence the fine is $150 or community service; the second time someone is caught with low trousers the fine is $300.

For the moment, Hart has escaped conviction by the skin of his low-slung pants. The judge ruled that the law prohibiting the trouser fashion is unconstitutional. The case, however, is due to be heard again more fully next month.

There are several places in America where similar local laws have been passed. In Delcambre, Louisiana, “sagging”, as the revealing fashion is known, has been unlawful since last year and can attract a $500 fine and six-moth jail sentence. Historically, the sagging style emanates from prison culture where inmates are not permitted belts.

Under an ordinance in Flint, Michigan, police have been issuing droopy-drawers tickets to local people since earlier this year. Police have even been supplied with a visual guide on enforcement: visible underwear warrants a warning, trousers falling below the bottom with underwear showing constitutes disorderly conduct, and a substantially exposed unclothed butt will attract an indecent exposure charge — what legal theoreticians might refer to as the bottom line offence.

Professor Gary Slapper is Director of the Centre for Law at The Open University

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article4832847.ece

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Don’t disturb the bears

A disturbed young man is prosecuted for unlawfully entering the grizzly bear enclosure at San Francisco zoo

The punishment for someone who unlawfully enters an enclosure with a dangerous animal is usually delivered without the involvement of the legal system. But when a 21-year-old man recently entered the grizzly bear pit at San Francisco zoo, state prosecutors took a different approach.

The bear pit is protected by high walls, a barricade, an electrified fence and a 14-foot deep moat, but Kenneth Herron overcame those obstacles and leapt into the pit one afternoon in September. One of two very large bears approached him and gave him a sniff; Herron narrowly escaped being mauled to death. Zoo staff averted disaster by firing a warning shot and the bears retreated. Herron was then snatched from the pit.

It might be evident to some people, even those outside professional psychiatry, that Herron is a man with mental health issues. State prosecutors, however, took the view that it would be sensible to have him punished. As he is not afraid of jumping into bear pits, precisely what sort of deterrent sentence the prosecutors wanted Herron to get is not clear.

Herron was prosecuted for criminal trespass and “disturbing dangerous animals in a park”. But the charge of criminal trespass was thrown out by Judge Wallace Douglass. The offence, under the Californian Penal Code, was designed to catch squatters and involves entering “and occupying” someone else’s property without their consent. According to People v Wilkinson (1967), “occupying” means staying for some time and, as Herron didn’t do that, the trespass prosecution was ruled to be inappropriate.

On the charge of disturbing wild animals in a park, the jury had to agonise over whether the bears were, in fact, disturbed. In what way could two 500-pound omnivores be disturbed by a single unarmed man? And looking at who was most disturbed in the pit on that day, the bears are not an obvious choice: Herron said he was there because he had heard the voice of Tyson Beckford, the model and actor, instructing him to rescue a damsel in distress.

After the trial, one juror said that the jury was not convinced that the bears were disturbed because they didn’t bound over to Herron as soon as he entered their grotto. Ultimately, though, the jury acquitted him as there wasn’t sufficient evidence that he knew what he was doing when he entered the enclosure.

Gary Slapper, London Times

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6925065.ece

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Briefs grief

In Florida, Judge Patricia Kinsey ruled recently in the case of Albert Freed who sued a men’s briefs manufacturer claiming he was injured on holiday by their badly designed underwear. He claimed the briefs “gaped open and acted like a sandbelt on my privates”.

In a judgement she probably did not anticipate making while at law school, Judge Kinsey was required to engage in a detailed analysis of the relationship between male anatomy and male underwear. An alleged design defect supposedly exposed Freed to beach sand that had accumulated in swimming trunks he was wearing over his briefs. Judge Kinsey doubted the contention that the briefs had opened “whereupon the edges of the opening abraded his penis like “’sandpaper belts’”.

Why had Freed spent two weeks on holiday aggravating the problem without reporting it to his wife? He said he was so excited about this holiday to Hawaii – which he had won – that he did not want to complain about his debilitating pain until they got home. Asked in cross-examination why he had not inspected the problem early to assess the possible dangers, he replied that he was a “belly man” and could not see his penis.

The manufacturer called a scientist to show the briefs were safe but Freed, who represented himself, called no expert witnesses. The court, though, wanted some independent evidence about normal penile sensitivity and what was standard practice for men when adjusting themselves anatomically after donning briefs.

Extraordinarily, the sole man among many female spectators in the public gallery was asked by the court for his opinion and he obliged. More extraordinarily, the law report notes that the man was “a prominent male criminal defence lawyer” who was just passing time in the gallery. The judgment thanks the lawyer for being a “good sport” in giving evidence and for his “surprisingly candid testimony” when answering intimate questions.

Judge Kinsey dismissed the claim, noting that Freed had failed to prove the link between his alleged injury and the briefs’ design. “The uncontroverted expert testimony” she ruled “was that once a man’s genitalia are adjusted in his briefs, ‘vertical tension’ is far greater than ‘horizontal tension’ and there is no tendency for the fly to ‘gap’”. She also said that Freed’s peculiar method of dressing (he puts his briefs into his trousers and then pulls them both on together) might have aggravated his personal discomfort.

According to official data on accidents, underwear injures many Britons every year. In 2002, for example, 369 people were caused serious injury by underpants or knickers. Getting dressed or undressed in the dark or while impaired might explain those injuries. Less clear though is how 472 people were hospitalised by an item in the class “Hat, scarf, shawl, hankie”.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6906203.ece

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‘Please, send me back to jail’

“A man’s home is where his wife lives,” the chief justice declared in an English case in 1863. But a Sicilian magistrate recently heard a plea from a man who was trying to be sent to jail to avoid living with his wife.

Holy Gambino, a 30-year old builder, had been convicted and sentenced to prison for dumping hazardous waste after being caught by police unloading dangerous materials from a lorry on to public ground. After serving some of his sentence, he was then released back into the community to live at home under house arrest in Villabate, near Palermo.

After suffering what he described as relentless nagging by his wife about his defects as a husband and father, Gambino went back to the police station in Ficarazzi to hand himself in and request a return to prison.

It is the first time in Sicily that someone challenging his sentence has argued for a return to prison rather than release from it.

After hearing his plea, however, the magistrate simply cited him for the summary offence of breaking a condition of his house arrest (in travelling to the police station) and sent him directly back home with an order to try to get along with his wife.

Previously, the Italian courts have heard other unusual marital cases related to nagging. In 2003, a court in Rome heard the case of a 23-year-old woman who had been chronically nagged by her mother-in-law about improving her make-up and her figure. The court ruled that “excessive and unreasonable interference” by the mother-in-law was sufficient grounds for a divorce.

In England, nagging was once recognised as a proper basis for divorce in a case in 1947 where a wife had evidently driven her husband into a significant state of mental ill-health by persistently badgering him for many years often until 3 or 4am. “One knows” the judge said “that dropping water wears the stone”.

But where wives have been accused by husbands of ‘nagging’, the female exhortations are often completely reasonable and wouldn’t be condemned if the relationship were between co-workers or flatmates. In 1975, a court heard how Maureen O’Neill had prevailed on her husband for some time to improve his DIY work. But she wasn’t concerned about a shelf that fell down. For years the husband had all the floorboards up everywhere, regularly mixed concrete in the living room, took 30 tons of rubble from under the house and put it in the garden, rarely washed and refused to put a door on the toilet for eight months. The court wasn’t sympathetic to the husband’s ‘stop nagging me’ attitude and granted the wife a divorce.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6896726.ece

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The Pilates prostitute and the blind lawyer

What is the difference between sex and Pilates? When a blind lawyer and a young actress fought each other in a recent lawsuit in Pennsylvania it was evident that not everyone can easily differentiate the two types of conduct.

John Peoples, a property and negligence lawyer who is legally blind, started using the services of Ginger Dayle in 2007. He paid with his credit card in her apartment by allowing her to enter her fees on credit card payment forms and then signing them under her guidance.

Peoples later said that although he was told he was being charged at the rate of $275 an hour, the sum Dayle had actually written on the forms for two-hour sessions was often $1,100. Altogether, he said, he’d been defrauded of $8,650 over 11 sessions. He sued his credit card company for failing to remove the disputed sums from his bill or to charge Dayle for them. He asked for over $1m in damages including compensation for emotional injury.

Dayle, who advertises herself as an actor, fitness instructor, professional dancer, and “adjunct professor”, contended that the sessions with Peoples were Pilates lessons. Taken from the teaching of Joseph Pilates in the early twentieth-century, Pilates is defined by the Oxford English Dictionary as “a system of exercises designed to improve physical strength, flexibility, and posture”. Peoples, though, was adamant that what he had received wasn’t a series of muscular exercises. “I paid her” he testified “and she had sex with me”. He stated that as he had arthritis and chronic fatigue syndrome, systematic exercises for all his postural muscles was not one of his pastimes.

Asked whether, as a lawyer, he saw any problem with using the services of a prostitute, Peoples replied that he was not worried because it did not affect the type of law he practised, and in any event prostitution was only a misdemeanour and would not trouble his professional disciplinary board. District Judge Edmund Ludwig dismissed Peoples’ claim ruling that he could not recover the disputed charges because prostitution is illegal in Pennsylvania so the dealings were a “prohibited transaction” under the credit card company’s contract with him.

Even in countries where it is lawful, prostitution presents challenges to the legal system. In New Zealand, Logan Campbell, a taekwondo champion, has been running a brothel in order to help fund his bid to participate in the 2012 Olympics. The New Zealand Olympic Committee (NZOC) has sent him a “letter before action” threatening litigation unless he stops linking the Olympic Games to his sex business. The NZOC says that prostitution is inconsistent with the Olympic values of “excellence, friendship, and respect”. It’s a moot point whether Campbell can be sued for doing something lawful. In any case, the ethics of the Games are usually derived from ancient Greece, and that was a society in which prostitution embraced hetairai, distinguished women held in high respect; higher perhaps than Olympic officials.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6887295.ece

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Hijacking a legal career

Being a back-stabber is not necessarily a bar to becoming a lawyer. It is occasionally said to be an advantage in some law firms. Shooting people in the back, however, is a different matter – even cynics agree that is incompatible with being a good lawyer.

The Law Society of Upper Canada has just heard the case of a man who argued that the fact that he shot someone in the back while high jacking a plane should not prevent him from being a lawyer. He is applying for a licence to practise law.

In 1984, Parminder Singh Saini shot at several people on board an Air India flight carrying 264 people. Twenty minutes into the flight, he put a gun to the head of a flight attendant and fired. The attendant survived but there was a predictable reaction among passengers. Risking the plane’s destruction, and the consequential carnage, Saini then fired several more shots. One of his shots hit a crew member in the back. Other passengers were stabbed by members of Saini’s terrorist squad.

He seized control of the aircraft and forced it to land in Pakistan where everyone was told to say their final prayers as the plane was going to be blown up. Saini was eventually arrested and sentenced to death. His sentenced was then commuted to life imprisonment in Pakistan but he was released after 10 years on condition that he left the country. He did so and gained entry to Canada by lying. Then he qualified as a lawyer.

During his recent ‘fitness to practise’ hearing, Saini engaged his capacity for legal analysis. Referring to his act of terrorism he conceded: “I had no legitimate right to do that”. He went on to explain that he also understood the underlying reason why shooting people on a plane in mid-flight should be avoided: “It’s not legal”. (Clearly, he had done his reading in law school.)

Referring to the mid-air terrorism and shooting people as “a very serious mistake”, Saini’s lawyer told the Law Society tribunal he should be given the right to practise law in Canada. A ruling is expected in the next few months.

Barristers have been convicted of various acts of aggression ranging from biting a policeman to attacking a barber with a fencing sabre. Acts of violence, though, don’t necessarily ruin a legal career. In 1900, an English barrister from Liverpool was on a tram when a man boarded it and jostled a female passenger. The barrister went over and punched the man in the face so hard he sent him flying on to the kerb where he cracked his head and was killed instantly. The barrister fled the scene and left England on a vessel sailing to the Mediterranean. He lived in Malta for a while then, being caught in bed with another man’s wife, smashed a chamber-pot over the husband’s head and fled the scene again. He was never charged for the killing or the assault but went on to have a distinguished career at the Bar as F E Smith and later became Lord Chancellor.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6878152.ece

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Suing yourself

Lawyers at a council which is facing the prospect of suing itself are in for some late masochistic nights.

Carmarthenshire council in Wales has just rejected planning permission for a playing field at a local school. The trouble is that the planning permission was being sought retrospectively because the playing field has, in fact, already been built without permission. The new field stands 1.4 metres above the surrounding ground and is built on the rubble of a demolished school building. There were 19 formal objectors – the field now overlooks their houses – but their opinions were never taken into account as the law requires.

In this type of situation the council should take legal action against whoever built something unlawfully. But as the council owns the school and built the field, and then applied for “permission” afterwards, the council is now obliged to take legal proceedings against itself. In-house council lawyers are now working in a house divided. They should, though, buy some champagne for the end of the dispute because whichever way the case goes, some of the council lawyers will win.

Suing yourself isn’t unprecedented. In 2005, the head of the Lebanese General Security Directorate issued proceedings against himself in order to try to clear himself of negligence in relation to the murder of a former Prime Minister. Judges have even convicted themselves. William Ettrick, presiding in Sunderland, England, in the early 1800s once fined a farmer for taking a cart to market without his name on it. When the farmer protested that the judge’s own dung cart was outside the court without a name on it, the judge made a monosyllabic response (perhaps a sotto voce reference to the contents of his cart) and then imposed the same fine on himself.

Getting planning permission for something already built is among awkward cases where an impending decision has to look consistent with a past event. In a 19th century case from a remote town in the American west, a jury was out for 33 hours in a murder trial before returning a verdict of “not guilty”. The defendant, though, wasn’t in court to hear the verdict. The judge was unhappy and sent the jurors away again to reconsider their verdict. He urged them to come to a decision “more consistent with the facts”. The jury retired again and after a while came back with a “guilty” verdict. This time the judge said he was satisfied with the decision and then noted for the record that the defendant had already been hanged.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6867939.ece

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The cat that ate the evidence

In law courts across the world no financial case had turned on the contents of a cat’s litter tray until a recent decision at the administrative court in Frankfurt, Germany.

The story begins with Peter Neumann’s cat and its expensive food tastes. The cat, Neumann argued, ate a €500 banknote. Holding some fragments of the note which he said had gone through the cat and been discovered in the litter tray, Neumann then went to the German Bundesbank to ask for a replacement note.

Under German law, a note can be replaced by the bank if there is positive proof that the note existed (usually at least half the note) and proof that the rest of the note had been destroyed. The bank declined to replace the note in this case. It expressed suspicions about the small fragments of note it had been given, saying they appeared to be from different notes. If that were true it would mean that either the cat had been enjoying an unusually rich diet at Neumann’s expense – or that someone had been tearing off bits from different notes and the replacement request was a ruse.

Neumann has maintained his innocence but regretted that there is no realistic prospect of getting more evidence. While not as challenging as Hercules’ task of cleaning out the Augean stables, the job before him is decidedly difficult. “It’s not that I don’t want to go looking through pet excrement to get what’s rightfully mine,” he said, “it just that the evidence really isn’t around any longer.”

Previously, the most curious cat to have challenged the courts was Blackie the Talking Cat who entertained people on the streets of Augusta, Georgia in America. In 1981, a legal dispute arose because the city wanted to tax the couple who owned Blackie as they earned money from citizens who paid to hear him speak. Were Blackie’s owners engaged in an “occupation” and thus open to be taxed? The court ruled they should be taxed. It rejected their various arguments including one that the legislation was unconstitutional because it did not specifically mention talking cats.

Of particular interest in the nine-page law report is the very long first footnote in which the judge explains that on one occasion he met Blackie on the street laying across his owner’s shoulder and, in exchange for money, the cat spoke to him. In the judgment, the judge states that he did not let this incident affect his reasoning in the case but he also noted that he enjoyed the encounter saying “I felt my dollar was well spent” and recording that the cat had said to him “I love you”. On the disappointing tax judgment for his owners, Blackie made a discreet no comment.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6839950.ece

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Tax deductible sex

The US Tax Court has recently ruled that money spent on prostitutes and pornography is a not tax deductible expense, even for a New York lawyer.

William G Halby, an established Brooklyn tax lawyer, submitted to the Internal Revenue Services a range of expenses he wanted deducted from his tax liability as “medical expenses”. Under section 213 of the Internal Revenue Code, expenses for medical care can be deducted from a tax liability if the care was for the “diagnosis, cure, mitigation, treatment, or prevention of disease” or for the purpose of “affecting any structure or function of the body”.

Halby argued that his sex expenditure was made both to treat disease and to improve some aspects of his anatomical functionality. He did not skimp when buying his medicine. In 2002, for example, he sought to deduct $111,364 from his tax liability for money spent on “therapeutic sex” in order to “relieve osteoarthritis and enhance erectile function through frequent orgasm”.

In 2005, his claim for tax deductions included $5,005 for sex books, magazines and videos, and $42,152 for prostitutes. For tax purposes, Halby kept a record in his personal journal of all visits to his “service providers” and of all the literature and equipment he bought including a claim for condoms and – unprecedented in American tax law cases – a claim for “nipple clamps”.

When almost all of his claims were refused, Halby brought a case against the Commissioner for Internal Revenue in the Tax Court. Judge Goeke noted that none of the alleged sex therapy had been prescribed by a doctor. In any event, he ruled, patronising a prostitute is illegal in New York and you cannot claim tax deductions for illegal medical treatments. Similarly, the pornography was for Halby’s “general welfare” not on prescription for any specific ailment.

While lawyers cannot claim expenses when they hire prostitutes, prostitutes can claim expenses when they hire lawyers. In 1964, the Court of Exchequer in Canada had to decide which of the expenses of running a call girl business in Vancouver were tax deductible. A claim for $1,925 for the business paying its lawyers was allowed by the court. Law courts are good places in which to plead the universal necessity of lawyers.

However, the court did gently reject a separate claim from the call girl business to reduce its tax liability by another $16,500 – the money it had paid to police as “protection fees”.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6847607.ece

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Deal or no deal?

A law student entering the profession can attract attention for various reasons but publicly proving a prominent lawyer wrong and then suing him for a million dollars is unusual.

During an interview on national television, Cheney Mason, a leading defence lawyer in Florida, was protesting that the multiple murder case against his convicted client was flawed. He said his client, who had been sentenced to death, could not, as the prosecution alleged, have killed three people in Florida at 17.20 one day and still have appeared on CCTV in a hotel in Atlanta at 10.00pm that day. Mason also declared it was impossible for anyone to disembark from an aircraft in Atlanta airport and get to the hotel five miles away in less than 28 minutes. He then said “I challenge anybody to show me, I’ll pay them a million dollars if they can do it.”

Watching that interview was Dustin Kolodziej, a law student from Texas who later rose to the challenge. Filming himself, he retraced the route used by the murderer. He flew from Atlanta to Orlando (where the killings took place) and back again, and he completed the final airport to hotel leg within 28 minutes. He claimed the $1 million from Mason on the basis that he had completed a “unilateral contract”.

In most contracts the parties agree on terms but in a unilateral contract one party makes an offer, like a reward for the return of lost property, and the other party, a stranger, can complete the contract by simply doing what is asked. Mason refused to pay the $1m. Kolodziej, who recently graduated, has now sued Mason in the federal court in Texas.

To win, Kolodziej will have to prove that a reasonable person in his position would have assumed Mason’s $1m offer was serious. The courts have previously rejected some extravagant unilateral contract claims. In 1996, a Pepsi television advert depicted, along with sun glasses and a leather jacket, a real Harriet fighter jet (cost: $23m) as among the goods claimable with tokens from purchasing drinks. John Leonard sued PepsiCo for the jet when the company wouldn’t redeem seven million ‘Pepsi points’ he’d acquired for $700,000. The court ruled the fighter jet offer was just in jest. But claimants have sometimes succeeded. In 1967, the Jesse James museum curator asserted that the desperado was not killed in 1882 but lived with him in Missouri until the 1950s. On national television he said he’d pay $10,000 to anyone who proved him wrong. A relative of James did so and she won her claim to the money.

A most curious “I’ll pay if you prove me wrong” case was decided in England in 1892. The Carbolic Smoke Ball Company promised to pay £100 to anyone who used its product but caught the flu. Elizabeth Carlill, bought the Smoke Ball, used it, got the flu, and won damages. She enjoyed a long life and died fifty years later aged 96, unfortunately, from flu.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6682148.ece

 

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And this week’s award for judicial petulance goes to . . .

A judge is censured for ordering a court observer to be seized and drug-tested

In Tennessee, a judge is legally required to be “patient, dignified and courteous” with people in court. He is also required, not unreasonably, “to respect and comply with the law”. But not all judges do.

The Supreme Court of Tennessee recently disciplined Judge Durwood Moore for unlawful judicial conduct. Presiding in court one day, the judge happened to glance at Benjamin Marchant, a friend of someone who had court business. Marchant was not a witness, just a spectator. Yet after observing him, the judge ordered court officers to seize the man, get a urine sample from him and have it tested for drugs. The sample came back negative. The judge was found guilty of acting unlawfully and undermining public confidence in the administration of justice.

Judge Moore was given public censure, the harshest form discipline short of being recommended for removal from office, so it was clearly his last chance. Remarkably, on the same day the Court of the Judiciary ruled against him in another case: he had wrongly and irascibly refused a lawyer’s request to allow someone else to present a document and had then “used profanity” to the lawyer on the phone and threatened him with a contempt finding if he did not return to court to present the document himself.

Bizarre instances of unlawful judicial cussedness in British trials (later overturned on appeal) include an English judge who fined a man for accidentally walking into court in Surrey wearing his hat; and a Scottish judge who fined a man for simply shaking his head while the prosecutor was summing up.

The award for Most Unjudicial Petulance, however, goes to a judge in a 1968 criminal trial in London. During defence counsel’s final address to the jury, the judge sighed in despair and loudly exclaimed, “Oh God”. Finally, he laid his head across his arms and made groaning noises. Just as bizarrely, the appeal court upheld the conviction of the defendant in that case saying the trial judge’s conduct would not have prejudiced the jury.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/article6535546.ece

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Advocacy so bad it puts justice at risk

How bad does a lawyer’s courtroom performance have to be before a judge will order a retrial? This question was recently answered by a court in New York when Edward Trujillo appealed against a firearms conviction, arguing that his defence lawyer had spent the trial sleeping, reading a magazine and making irrelevant speeches.

In New York, citizens are legally entitled to “meaningful representation” in order not only to protect individual defendants but to ensure that the justice system itself isn’t brought into disrepute by unprofessional conduct.

After he was convicted Trujillo submitted an affidavit swearing that during the trial his counsel fell asleep three times, spent significant periods of the trial when he wasn’t asleep reading health and fitness magazines and made several eccentric speeches which did not seem to be related to the case at all, including an opening speech which caused the jury to laugh at the defence.

In hearing an appeal for a retrial, the original trial judge said he found himself “uncomfortable” whenever Trujillo’s lawyer addressed a witness or the jury as “it was impossible to predict what he was going to say”. Trujillo won his appeal for a retrial. The court held that the quality of representation he got was so insufficient that “the integrity of the judicial process was placed in jeopardy”.

That inappropriate courtroom conduct is, though, trumped by the less than effective representation of attorney Raymond Brownlow who was charged with contempt of court in the District of Columbia in 1968. He had arrived in court in the late morning and had begun to address the judge in a most erratic way in front of a bemused client. This exchange then followed:

JUDGE: Have you been drinking?

BROWNLOW: I had a cocktail at lunch

JUDGE: This morning?

BROWNLOW: Yes

The first thing to draw the suspicion of the judge, however, was the fact that Brownlow was appearing in the wrong case — the opening speech into which he’d loudly launched was for a different trial being held in another courtroom.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6629682.ece

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Who’s the Daddy?

A legal process to identify paternity generates some peculiar challenges. An entry under ‘Father’ on a recent Child Support Agency form allegedly says:

“…I don’t know the identity of the father of my daughter. He drives a BMW that now has a hole made by my stiletto in one of the door panels. Perhaps you can contact the BMW dealers in the area to see if he’s had it replaced…”

Where the issue of paternity actually goes to law courts the claims can be extraordinary. A woman in Poland is bringing a civil negligence action in which she alleges that her daughter has been impregnated by a swimming pool.

Magdalena Kwiatkowska is seeking compensation having discovered that her 13-year-old daughter, whom she asserts has not had sex, became pregnant while on holiday. The mother says conception occurred after her daughter received a “stray sperm” in an Egyptian hotel swimming pool. Suing the hotel, the mother avows that there is no way her daughter could have met any boys while on the family holiday.

Under Egyptian law, the owners of buildings owe a duty of care to people on their premises. And swimming pools feature in cases if they are alleged to be dangerously designed or maintained but there is no case in Egyptian legal history of a swimming pool being accused of fathering a child.

The courts across the world have had to deal with some startling paternity cases but one of the most extraordinary was decided in Missouri in 2007. A woman had sex, separately, with identical twin brothers on the same day although neither man knew of the other’s sexual encounter with the woman. She gave birth to a daughter but each brother claimed to be the baby’s uncle not her father. The woman identified Raymon Miller as the father but, objecting to making payments of $256 a week in child support, he argued his twin, Richard, was the father. Paternity tests using DNA samples revealed only that both brothers had over a 99.99 percent probability of being the father. The court accepted that even if the entire genome of the twins were sequenced it would not be able to identify the father.

The judge decided that since Raymon had spent the night with the woman and Richard’s sexual encounter had been much briefer; Raymon should be held as the legal father of the child. In response, he suggested the state “should eat” his child support payments. It declined and Raymon is now eating humble pie.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6716880.ece

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Legal lottery

In Ontario, Canada, the Superior Court of Justice recently decided a case in which two street drug dealers fought over a $5 million winning lottery ticket. The judge remarked that if the ticket were a child and the two parties were vying for custody, he would have found them both unfit and brought in social services. But it was a property case and someone had to win.

Here were the facts: in 2006, after a busy day “conducting illegal drugs transactions”, Daniel “Ears” Carley was driven to a shop from which he purchased 12 lottery tickets. When he got back in the car, Paul Miller, the driver and a childhood friend, scratched one of the tickets to discover it was a winner. After Ears banked the $5 million, Miller sued, arguing that he had given $10 to Ears just before the key purchase and said, “Here, buy me one too”.

The judge censured both the claimant and defendant. Denying that Miller had been manipulated out of the money by a superior intellect, the judge said, “I do not agree that Ears was the brains of this duo”. He castigated Miller as a “horrible witness” and noted that although Ears had “many credibility issues”, he ultimately seemed to have the more believable account (that he had bought all the tickets with his own money).

Judicial sympathy was reserved for only one witness: Ears’s mother. On the night of the win, “true to her British heritage” (she was born in England) she left the celebrations at 7pm to watch Coronation Street. “There was a limit” the judge dryly noted, “to the disruption that she would allow $5 million to make in her life.”

The judge ruled that Miller’s story of having given $10 for a ticket was a “brazen fabrication” and that Ears was entitled to keep all the winnings. At least, what was left of them. He had been spending it at the rate of $20,000 a week for three years.

It was not the first time a court has been challenged by a lottery. In Spain, Juan Antonio Roca was arrested for taking systematic bribes as head of urban planning in Marbella. His net salary was less than €150,000 a year, yet when he was arrested his property included two huge Andalucian estates, luxury hotels, three palaces, beachside housing developments, a private plane and artworks worth a combined $2.4 billion.

Asked by a judge to explain this wealth, Roca said he had won the lottery 80 times. The prosecution noted that the chances of that were one in 43 quadrillion. In such circumstances, even the best defence lawyer might falter a little when beginning a speech, “Improbable as it might seem . . . ”

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6821758.ece

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Silence in court

In a recent case in Ohio, Judge Stephen Belden decided that a defendant accused of theft was offending the dignity of the court by talking too much. The judge, however, chose an unorthodox way to establish decorum: he ordered the defendant’s mouth to be sealed with duct tape. That is a court exercise you won’t find on the judicial training syllabus.

The defendant, Harry Brown, was appearing in a preliminary hearing charged with theft from a Walmart store. He objected to his state-appointed defence lawyer and got into an argument with the judge about his options. They disputed legal points for about three minutes. The judge told Brown that the American constitution did require that a lawyer be provided free of charge if he could not afford one but it did not have to be a lawyer the defendant liked. He said Brown was not entitled to a lawyer with whom he had “a warm and fuzzy relationship”.

Brown continued to dispute the quality of the service he had received from his court-appointed lawyer and spoke over the judge. Although Brown was composed and did not raise his voice, the judge declared that if there were any further interruptions he was going to get some duct tape and order the bailiff to stick it over Brown’s mouth. Brown continued politely to object to the way he was being treated, prompting this unique utterance in the records of judicial proceedings:

Judge: All right, duct tape. Duct tape the defendant.

Brown was then officially gagged with tape. Why the court had a ready supply of duct tape among law reports and legal paraphernalia is yet unexplained. After a while Brown was given another chance and the tape was removed subject, the judge said, to him not reverting to his “disrespectful ways”.

“I am not being disrespectful, your honour, I think you’re being more disrespectful to me,” Brown replied as the bailiff scrunched the strip of used duct tape complete with the defendant’s epilated facial hair still stuck on it. Taking Brown’s words as a final impertinence, the judge gave an immediate ruling that there was a “probable cause” for a full trial of his theft case, and had Brown unceremoniously taken away.

While interrupting a judge can result in pain, interruptions by a judge can be equally problematic. In an Old Bailey case in 1943, two of prostitutes were accused of robbing a client. Quashing their convictions, the Court of Appeal noted the trial judge had been excessive in his interruptions, cutting in to the defendants’ testimony with his own points 495 times.

But that record was broken in a 1951 case in which counsel for both sides complained about a judge in Liverpool who had interrupted testimony 587 times. Genteelly, though, they sought a remedy from the Court of Appeal – not duct tape.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6830757.ece

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A Game of Cat and . . Keys?

“Martin County Sheriff’s detectives didn’t buy it when a 48-year-old Jensen Beach man claimed that his cat was downloading child pornography on his computer,” reports TCPalm.com, Web site of several newspapers on Florida’s Treasure Coast:

Keith R. Griffin, of the 3600 block of Northeast Jeannette Drive, was charged Wednesday with 10 counts of possession of child pornography after detectives found more than 1,000 child pornographic images on his computer, according to a news release.

Griffin told detectives he would leave his computer on and his cat would jump on the keyboard.

This is the worst excuse we’ve heard since Wade Sanders, who vouched for John Kerry’s character during the 2004 campaign and later claimed he had downloaded child pornography when his journalism research went awry. Griffin’s claim is especially implausible because he claims his cat used keyboard commands to download the stuff. Surely a real cat would use the mouse.

James Taranto, Wall Street Journal

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Full article: http://online.wsj.com/article/SB10001424052970204908604574336462379328406.html

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On a mission from God

In the film The Blues Brothers, a determined duo try to justify their repeated errant behaviour by explaining “we’re on a mission from God”. But arguing in court that a divine duty should excuse criminal conduct will rarely succeed.

Necessity can sometimes be a defence to a crime but is a religious mission a necessity? In a recent challenge to the Italian legal system three nuns caught driving at 112 mph explained to the police they were racing to the Pope, as he was injured.

Police had chased a Ford Fiesta as it shot along a road near Turin at almost double the speed limit. When they caught the car, Sister Tavoletta, 56, explained that she and her fellow nuns, aged 65 and 78, had just learnt that Pope Benedict XVI had slipped in his bathroom and fractured his wrist. They were proceeding with God’s speed, if not the law’s, to the pontiff’s holiday chalet at Les Combes to see if they could offer help or prayers. The law, though, would not absolve their offence. Sister Tavoletta was fined €375 and her driving licence was revoked for a month. Her lawyer, Anna Orecchioni, said she will appeal using the defence of necessity.

In driving cases, the defence of necessity is very rarely successful although it has been pleaded in some decidedly odd cases. In 2004, in Australia, Lee Collinson, 24, was prosecuted in Darwin on a charge of driving without a licence. When caught on the road by police, he had explained that he was on an urgent mission of necessity to deliver condoms to his cousin. Presenting his evidence in a direct style of Australian English, he explained: “My cousin was about to [have sex with] this girl and he needed his bag because it had his condoms in it.”

The magistrate acknowledged the urgency of Collinson’s undertaking for his friend in need, commending it as good “mateship”. The bench then tried to demonstrate its magisterial human understanding of the situation by quoting a Spike Milligan remark about “a woman at boiling point”. But the application of driving law isn’t a heat-sensitive system. Collinson was convicted and fined $100.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6725992.ece

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And this week’s award for judicial petulance goes to . . .

A judge is censured for ordering a court observer to be seized and drug-tested

In Tennessee, a judge is legally required to be “patient, dignified and courteous” with people in court. He is also required, not unreasonably, “to respect and comply with the law”. But not all judges do.

The Supreme Court of Tennessee recently disciplined Judge Durwood Moore for unlawful judicial conduct. Presiding in court one day, the judge happened to glance at Benjamin Marchant, a friend of someone who had court business. Marchant was not a witness, just a spectator. Yet after observing him, the judge ordered court officers to seize the man, get a urine sample from him and have it tested for drugs. The sample came back negative. The judge was found guilty of acting unlawfully and undermining public confidence in the administration of justice.

Judge Moore was given public censure, the harshest form discipline short of being recommended for removal from office, so it was clearly his last chance. Remarkably, on the same day the Court of the Judiciary ruled against him in another case: he had wrongly and irascibly refused a lawyer’s request to allow someone else to present a document and had then “used profanity” to the lawyer on the phone and threatened him with a contempt finding if he did not return to court to present the document himself.

Bizarre instances of unlawful judicial cussedness in British trials (later overturned on appeal) include an English judge who fined a man for accidentally walking into court in Surrey wearing his hat; and a Scottish judge who fined a man for simply shaking his head while the prosecutor was summing up.

The award for Most Unjudicial Petulance, however, goes to a judge in a 1968 criminal trial in London. During defence counsel’s final address to the jury, the judge sighed in despair and loudly exclaimed, “Oh God”. Finally, he laid his head across his arms and made groaning noises. Just as bizarrely, the appeal court upheld the conviction of the defendant in that case saying the trial judge’s conduct would not have prejudiced the jury.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/article6535546.ece

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The law of the salad bowl

Under English law, it is not a specific offence to put lettuce up your nose. Neither can you be punished for spitting out a chewed lettuce leaf. At least, not in most circumstances. If, however, you work in a sandwich bar and you commit those acts with lettuce that you then replace in the food tray from which customers select their lunch, then you are violating section 38 of the Public Order Act 1986, as Richard Benjamin Shannon recently discovered.

Shannon worked at the sandwich chain Subway in Brownhills in the Midlands. His foray into providing secret salad dressing was filmed by a friend on a mobile phone and posted on YouTube. Shannon was arrested by police after a later incident in which an irate woman who recognised him from the YouTube film went to the Subway where he worked and threw a chair at him.

The film of Shannon’s conduct with the lettuce was viewed by the Bench at Walsall Magistrates’ Court during his trial. Section 38 of the 1986 Act makes it an offence to contaminate or interfere with goods with the intention of “causing public alarm or anxiety”. The law is carefully drafted so as not to allow any sly defences. It is even a crime to make it appear that goods have been contaminated or interfered with, or to place goods which appear to have been contaminated “in a place where goods of that description are consumed, used, sold or otherwise supplied…”

The court, which could have sentenced Shannon to six months in prison, noted his remorse and guilty plea and ordered him to do 300 hours of unpaid community service. He will not though, we hope, be deployed to his local authority’s ‘meals on wheels’ service.

Still, at least he was not around in Henry VIII’s reign when contaminating food was something for which the culprit was also punished “in the community” but rather more severely. For poisoning the Bishop of Rochester’s soup in 1530, a man called Rose was publicly boiled to death in Smithfield in London.

Salad ingredients have played a limited but significant role in shaping some points of law. In the case of Shaun Kelly in 1992, the Court of Appeal considered an appropriate sentence for someone who had robbed building societies using a cucumber. The vegetable was concealed in a plastic bag and brandished to look as though it were a gun. Kelly’s sentence was five years imprisonment.

In 2007, in the context of what the Police Federation described as pressure to meet government targets on arrests, a man was cautioned for being “in possession of an egg with intent to throw” and a child was arrested for flinging a single slice of cucumber at another child. De minimis non curat lex – the law doesn’t concern itself with trifles – but salad is another matter.

Professor Gary Slapper is Director of the Centre for Law at The Open University

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article5944374.ece

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See also:

Lettuce nose-stuffer avoids jail

A West Midlands sandwich bar worker who was prosecuted after footage of him stuffing lettuce up his nose appeared on YouTube has avoided a jail term.

Richard Benjamin Shannon, 22, of Castle Street, Brownhills, was ordered to do 300 hours of unpaid work for last year’s offence at Subway in Brownhills.

He claimed the incident was a prank and the lettuce was discarded and not sold.

Walsall magistrates said he had avoided a jail term due to his “early guilty plea” and because he had shown remorse.

In the footage taken on a friend’s mobile phone Shannon was also seen putting lettuce leaves in his mouth and spitting them out.

Shannon, who was prosecuted under the miscellaneous provisions in the Public Order Act, could have been jailed for up to six months.

‘Serious lesson’

He was arrested after an irate woman hurled a chair at him after recognising him in the clip on the video-sharing website, Walsall Magistrates’ Court heard.

Magistrates’ chairman Elizabeth Baugh, who viewed the video footage, said his actions could have merited a custodial sentence.

She told him: “Your actions caused great distress, not only to the public who consume this food, but also to the company.

“I think you have learnt a very, very serious lesson.”

Shannon’s defence solicitor, Shelia Hicklin, said the offence was a sign of his immaturity.

“He had absolutely no idea that the person who was in the shop with him was going to put this on YouTube.

“I don’t think there has been any suggestion that any member of the public was harmed.”

She said that no-one would have eaten the lettuce because it was discarded.

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Full article: http://news.bbc.co.uk/2/hi/uk_news/england/west_midlands/7937945.stm

Video (Richard Shannon is seen putting the lettuce back. Footage courtesy of West Midlands Crown Prosecution Service): http://news.bbc.co.uk/1/hi/england/7938244.stm

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‘I’m not very good at law’

Among the things you hear lawyers saying about themselves, “I’m not very good at law” and “I’ve no assets beyond my clothes and my wedding ring” do not crop up often. Yet that is what James Gordon Banks, an Illinois lawyer, told a court recently. He had been found personally liable to pay the costs of an opposing attorney after deliberately expanding a civil action with vexatious allegations.

The lawyer on lawyer dispute arose in a case about a drivers’ union election. The losers of the election, represented by Banks, sued the winners alleging that the result was fixed through racketeering. Those allegations soon proved to be unfounded. During the case, the defendants’ lawyers had written to Banks, demanding that his unwarranted claims be withdrawn. But Banks did not withdraw the claims and did not even reply. He continued to bully the defendants.

Once the defendants had won the case, their lawyers applied to have their costs paid by Banks, arguing that they had had to do lots of unnecessary work because of his vexatious claims. The district court agreed and told Banks to pay the other side’s lawyers $80,000 as that represented reasonable attorney fees for the amount of unnecessary work they had had to do. Banks said that he could not pay that sum and invited the court to reduce the award against him, pleading that his assets were very limited: $2,000 in cash, a watch, his clothes and his wedding ring.

The seventh circuit Court of Appeals has just ruled that Banks must pay the $80,000. It reasoned that as he had committed an intentional tort when he maliciously expanded the litigation, the trial court was not bound to examine his personal assets before deciding on the level of compensation to be paid to his victim. It ruled that the sum of damages should depend “on the victim’s loss, not the wrongdoer’s resources”. The court was clear about just how wrong Banks had been in bringing the actions against the winner of the union election: “Instead of hitting [the defendant] with a fist or an insult, [Banks] hit him with a lawsuit.”

The court also noted that Banks did seem to enjoy a home, cars and savings but these were all in his wife’s name. The ruling suggests that if paying the $80,000 would be too much for Banks he should file for bankruptcy. The bankruptcy court could then examine whether he had engaged in any fraudulent conveyances of property in order to hide his assets.

Banks tried to excuse himself by saying he was not great at law and had only four years post-qualification experience. But the court was not sympathetic. It declared “If Banks really is a bad lawyer (as he depicts himself), and is poor because people are not willing to pay much, or at all, for his services, then he should turn from the practice of law to some other endeavour where he will do less harm”.

In the United States, lawyers who are aggressive to clients have periodically been condemned. In Ohio, a lawyer was reprimanded by the state Supreme Court for screaming obscenities at the clients of his adversary attorney and referring in writing to opposition witnesses in terms such as “sh*thead PhD”. The final straw came when he started sending back witness statements and letters which he had marked with obscene two-word phrases, using a rubber stamp.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article5901451.ece

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See also:

7th Circuit Affirms $80K Sanction: If Lawyer Can’t Pay, Bankruptcy Is Next Step

http://www.abajournal.com/news/7th_circuit_affirms_80k_sanction_bankruptcy_is_next_step_if_lawyer_cant_pay/

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The decision : http://caselaw.lp.findlaw.com/data2/circs/7th/073342p.pdf

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Getting chippy about the noise

What happens if your neighbours are too loud – whatever they do?

“The noise was so loud I thought he had an angle grinder up there,” Doris Fox, 68, told Thanet Magistrates’ Court, Kent, in a recent case. In the dock stood Giran Jobe, 36, and 15 stone.

Although grunting is not a specific offence under English law, Mr Jobe’s regular grunts had become unbearable to neighbours – that and the noise emitted when his bodybuilder power weights came crashing down on the carpet of his top-floor flat in Margate.

The carpenter was unusually keen on exercising with weights and his regular two-hour sessions at night could register noise as high as 100 decibels (the level of noise at a platform of an Underground station when a train arrives).

After an initial complaint from neighbours to the local authority, Mr Jobe was issued with a noise abatement order. But soon after that new complaints were filed at Thanet Council so investigators were sent to the downstairs homes to install recorders to monitor Mr Jobe’s decibel levels.

During the next six months families living below Mr Jobe recorded 47 breaches of the noise abatement order. The offending sounds were cited as “grunting” and “noise from the weights hitting the floor”. Mr Jobe was fined £70. He has pledged to focus on push-ups.

Other proceedings about more usual noise have not been successful. In a civil action in 1999, the House of Lords decided that the ordinary use of residential premises was not itself capable of being a nuisance, and that local authority landlords (Southwark and Camden Councils) had not breached their covenants to tenants for what is quaintly known in law as “quiet enjoyment” of the leased properties.

One of the tenants in the un-soundproofed blocks had testified that she could hear “all the private and most intimate moments” of her neighbours’ lives. This included “what TV station they are viewing, when they go to the toilet, when they make love”. The court said that these things should have been contemplated by the tenants when they moved into the flats. Another tenant testified that she could hear “singing, arguments, the television, snoring, coughing, bringing up of phlegm, sneezing, bedsprings, footfalls and creaking floorboards, the pull-cord light switch in the bathroom, taps running in the bathroom and kitchen, the toilet being used . . . the vacuum cleaner and . . . music played on the stereo”. A legally endorsed soundtrack of domestic Britain.

Professor Slapper is Director of the Centre for Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/article3724285.ece

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Prosecuting profanities

Does American law limit what a citizen can shout in her own home at her overflowing toilet?

Does American law limit what a citizen can shout in her own home at her overflowing toilet? The answer, provided by a judge in a case in Pennsylvania, is no.

Last year, Dawn Herb, from Scranton, was cited for disorderly conduct when she was overheard swearing at her toilet as it overflowed through her home. She had been overheard by her neighbour, an off-duty police officer. He shouted at her to be quiet. Oddly, for someone who would seek to have her prosecuted for profanities, the neighbour couched his instruction in the phrase “shut the f**k up”.

When Herb advised him to mind his own business, the neighbour phoned a friend and colleague at the police department. Minutes later, two police cars were parked outside Herb’s home, and she was facing up to 90 days in jail and a $300 fine. Herb, a mother of four, said, “At first, I just went inside and cried”. She added: “I was thinking, ‘How will I pay this fine?’”. Her four-year old son developed anxieties that the police would take his mother away.

A judge found her not guilty of violating a state law against obscenity. He ruled that that although her language may be considered by some to be “offensive, vulgar and imprudent”, such representations are protected speech under the First Amendment to the Constitution. Herb has now settled a civil action against the city of Scranton, and the arresting officer for $19,000.

America has a good legal tradition of not allowing the law to close down the utterance of thoughts on the sole basis that they are rude or offensive. In Cohen v California, in 1971, the Supreme Court held that the state could not convict a person simply for wearing a swearword on his clothing. Referring to the Vietnam War, Paul Cohen had been arrested in a corridor of the Los Angeles Municipal Court for wearing a jacket bearing the words “F**k the Draft”. Justice Harlan ruled there was no case in such a situation for criminalising the “scurrilous epithet”.

In 1722, James Sparling of Clerkenwell, London was convicted of profanely swearing 54 oaths and 160 curses within ten days. He was fined an absolute fortune (you can only imagine what he muttered under his breath when he heard the sentence) but his conviction was overturned because those writing the charge sheet failed to record each of the alleged offending words.

Judges have not been averse sometimes to thrust and parry with those who use vulgar language in court. In one Canadian case, a judge in Manitoba gave a defendant a longer custodial sentence than he had been expecting.

Judge: I sentence you to one year in prison.

Defendant: Well I’ll be f***ed.

Judge: Not for a year you won’t.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article5053669.ece

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Playground wedding

People who declare they have had enough of their marriage and seek a divorce usually do it later in life than did a recent applicant to a court in Jerusalem. She is 14.

The girl and her 17-year-old husband had married according to traditional Jewish law which requires three criteria to be satisfied. A wedding vow must be uttered in front of at least two witnesses, the husband must give his betrothed a ring and the relationship must be consummated.

The ardent couple satisfied all the requirements, beginning with a ceremony in a school playground in front of a group of friends. But their parents, from devout religious families, were not present and only discovered the news later. Asking his daughter “how was school today?” the father of the bride must have taken more than a moment to digest her unusual answer.

The wedding vow recited by the man at the ceremony, “Behold, you are consecrated to me by means of this ring, according to the law of Moses and Israel”, does not need to be witnessed by a rabbi. The couple’s union was later consummated — a liaison legal under Israeli secular law as sexual relations with a 14-year-old are not criminal if the male partner is no more than three years older than the female.

The divorce proceeding was brought at the Rabbinical Court of Jerusalem which granted the petition last week. The Rabbinic Court Administration issued a statement saying that marriage was “a serious commitment that should not be taken lightly”.

Meanwhile, 5,700 miles away in the Supreme Court of New York, a judge was presiding in another curious case about whether a couple had undertaken a serious relationship commitment with legal obligations.

In this case, though, it was because the parties were not in a legally serious relationship at the material time that the claimant lost. Shaniqua Tomkins sued her former boyfriend Curtis Jackson an oral contract he had allegedly made during an amorous conversation in a bedroom ten years earlier. She claimed he had undertaken to take care of her for life if, as an entertainer, he ever “made it big”.

The judge dismissed the case saying that Tomkins’ action was barred for being out of date, and, said that in any event “It is incredible that two then-unemployed, penniless, 21 year-olds would make such an oral contract.” Jackson, though, did make it big. He is now the rapper known as 50 Cent but is worth over 800 million times his name.

Professor Gary Slapper is Director of the Centre for Law at the Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article5857437.ece

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Family feud

An Irish mother is accused of having an affair with her daughter’s husband in an unusual drink-driving case

Pleading guilty to a drink driving charge at Limerick District Court in Ireland recently, Fiona Porter, 24, put an unusual plea in mitigation. She explained through her lawyer that she had drunk alcohol on the evening in question in a distressed state after finding her husband in bed with her mother.

The court was told that after catching her husband Hugo, 34, and her mother Bernadette Garvey, 53, in flagrante delicto she learnt that they had been having an affair for two years.

The drink driving case was very serious, as Mrs Porter was already banned at the time of the offence, but the judge acceded to her lawyer’s request for leniency and spared her a custodial sentence. He suspended a four-month prison term and banned Mrs Porter from driving for six years.

Then, however, the drama took another twist. “The way I feel about her this minute, I would stick a f***ing knife in her,” Bernadette Garvey said of her daughter. Ms Garvey denied the affair and declared, “I hate her and I wish to God she was dead for doing this to me.”

After the court hearing, investigations revealed that on June 28, the night Hugo Porter was alleged to have been in bed with his mother-in-law, he was in fact tucked up elsewhere, embraced in a most secure alibi: the B-wing of Limerick Prison. He had been there since May 31, doing six months for a series of serious motoring offences.

But the case didn’t end with that twist. Mrs Porter has now alleged that her lawyer is a liar. She said she had actually caught her mother and husband in bed on May 22, not on the June evening when she was stopped for drink driving, and that her lawyer knew that. Her lawyer denies that he misrepresented his client and says he followed instructions precisely.

It remains to be seen whether the court will want the matter brought back for further consideration.

At the trial, neither Mrs Porter nor her husband gave testimony. Mrs Porter was exercising her right to silence and Mr Porter was exercising in the local jail. It is difficult to know the truth at the heart of the dispute but I hope that the thoughts of a witness in an old English case don’t apply. The distinguished Irish barrister Maurice Healy recounted that an English judge, Mr Justice Darling, once got very impatient with a witness from Ireland whom he suspected of not being fully frank.

“Tell me,” the judge snapped, “in your country, what happens to a witness who does not tell the truth?”

“Ah, me Lord,” the witness replied candidly, “I think his side usually wins.”

Professor Gary Slapper is Director of the Centre for Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article4480050.ece

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Lesbian litigants

View of coast looking east from Vatera Beach on the Greek island of Lesbos.

The residents of the island of Lesbos are going to court to get their name back

A recent civil claim filed in Greece identifies the harm complained about as “psychological and moral rape”. That’s an unusual type of injury that may leave many lawyers wondering whom best to ask about what it means: a general practice doctor, a psychiatrist or a philosopher.

But the claim gets even trickier, as the alleged victim is not one person but the residents of the island of Lesbos.

Dimitris Lambrou, along with another Lesbos resident and a member of a nationalist pagan association, have started a legal action to gain the exclusive right to call themselves Lesbians. Their legal action seeks to prohibit the Greek Gay and Lesbian Union (OLKE) from using the name “lesbian”. The claimants argue that the “seizure” of the term lesbian to mean more than simply “of the island of Lesbos” (in the northern part of the Grecian archipelago) has caused them mental distress.

This action asks the law to run against a long established usage. Historically, the island of Lesbos became associated with the love poems of the poetess Sappho (born in the 7th century BC) who expressed her love of other women in verses. She was first described as a sexual lover of women in post-classical times.

The word lesbianism appears in formal English as a term describing sexual orientation in 1870. Lesbianism between consenting people aged over 16 is not illegal in English law and never has been. It is sometimes said that Queen Victoria refused to assent to section 11 of the Criminal Law Amendment Act 1885, which criminalised homosexual conduct, unless all references to women were removed because she did not believe females did such things. But that story is apocryphal. In 1921, though, fretful MPs decided not to legislate against lesbianism in case publication of such a law introduced “perfectly innocent people” to such relationships.

It remains to be seen how far the litigants from Lesbos get in claiming the term lesbian. There are those who think that a relaxed attitude to names is best. My wife and three daughters, for example, are all Slappers. When, some years ago, television, radio, the papers, and their school friends started to use the word slapper to denote a female of wild and promiscuous morals, they briefly discussed whether to file an action against the English speaking world but decided against it.

Professor Slapper is Director of the Centre for Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/article3856756.ece

Photo: http://en.wikipedia.org/wiki/File:Vatera_Beach-_Lesbos,_Greece.jpg

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