Recent Broward Law Blog Features

Saturday, October 31, 2009

Understanding Florida’s Hate Crime Law

By Norm Kent

A few weeks ago, I had the opportunity to introduce Sheriff Al Lamberti at a rally commemorating the life of Craig Cohen, beaten senselessly last April outside the Peter Pan Diner in Oakland Park, Florida.

Not too long after Craig, 47, was attacked, so too was another young man, David Villanova. There was no rhyme or reason to either assault or beating; just another one of those shocking things we come home to at nite and turn our television on to see.

This assault frustrated the Sheriff and law enforcement. Because both men were gay, there was reasonable speculation that a youth gang was targeting gay men. If that could be established, the attack would be a ‘hate crime.’ But what exactly is a hate crime and how is it different from any other crime? Surprisingly, lots of people still do not know.

Hate crimes, or bias-motivated crimes, are defined as offenses motivated by hatred against a victim based on his or her race, religion, sexual orientation, handicap, ethnicity, or national origin. Not surprisingly, in Florida, for a long time, African Americans have been primary targets. Since 9-11, nationally, Muslims have been increasingly victimized. But for the gay community, when it comes to hate crimes, we have always been the ‘chosen people.’

The most important thing to understand about a crime based on hate is that, if proven, it enhances or increases the penalties for the assailant. That is no small thing, because it can take a simple assault, which is a misdemeanor, and raise it to the level of a third degree felony.

Craig Cohen suffered many months in the hospital after his attack, but now he has died from the injuries. The suspects could be charged with premeditated murder, and may face the death penalty. There is no greater penalty, so that the offense might be a hate crime is inconsequential to those so charged. They already face the maximum penalty.

Since both David and Craig were attacked suddenly from behind, and could not offer detectives any evidence of what the assailants said prior to striking them, there was insufficient evidence to prove up a hate crime by their words.

The next best thing for detectives is to interview the attackers and see if they confess to their intentions. If it was proven that a group of attackers were sitting around in a room and had conspired to go out “and get them some fags,” law enforcement would have the necessary predicate to raise the offense from an aggravated battery where the guys would be facing up to 15 years to a first degree felony where they would be facing life.

Before interviewing the assailants, detectives may have suspected it was a hate based attack on both victims. But preliminary information released to the lawyers of the accused has now suggested that the sexual preference of the victims didn’t factor in when their attackers were planning or committing the crimes. They were just vicious human beings looking to rob someone they found defenseless. To charge the defendants with a hate crime then would subject the count to a motion to dismiss by a seasoned and skilled defense attorney.

The third way of prosecuting the case as a hate crime would be if independent witnesses heard something during the event that proved up the intent and bias of the assailants. A fourth way is if one of the accused turned on the others and said, “yeah, we planned it for the Peter Pan Diner because we knew we would get an easy gay target.” Neither of those circumstances has panned out in this case thus far.

Consequently, even if BSO had the best of intentions, the information they turned over to the State Attorney’s office is insufficient as a matter of law to charge a hate crime penalty enhancement. As to Craig Cohen, it will not matter anymore. Murder is murder and you face the harshest penalty. Where it would matter is if one of the other assailants, who simply watched or witnessed the attack, and did nothing, were charged. Under that circumstance, then a hate crime would boost their potential sentence.

Accordingly, if you are ever unfortunate enough to be exposed to such a tragic circumstance, do your best to keep your wits about you, consciously recording those words or deeds an attacker accosted you with, so that your claim you were the victim of a hate crime will be sustained as a matter of law. Sadly, both as to David and Craig, the swift and sudden assaults, and the grave injuries to each party, prevent the State of Florida from establishing a hate crime so far. That may stink, but that's the law.

Thus, we need not blame the sheriff or the state attorney. Instead, let us blame the culprits for their inexcusable hate. Let us light a candle and remind ourselves that though Craig may not have been targeted because he was gay, many of your brothers and sisters are still, from South Florida’s shores to California’s coasts.

We can pass laws that give us equal rights, but to tame the violence against gays and lesbians everywhere, we must also win the hearts and minds of all Americans to respect us as equally as the laws now provide for.

Friday, October 30, 2009

Broward Hate Crimes Lead the State

Long overdue, President Obama signed the Hate Crimes Act into law this week.

As it affects Broward, consider that Broward County’s law enforcement agencies reported the largest amount of hate crimes in Florida in 2008.

According to the Office of The Florida Attorney General Hate Crimes in Florida Annual Report, 25 hate crimes were reported in Broward County while Miami-Dade and Palm Beach Counties tied for the second most hate crimes with 18 each. 11 of Miami-Dade’s hate crimes occurred in Miami Beach.

Nine of Broward’s hate crimes were based on sexual orientation with seven classified as assaults against people and two were destruction of property. Miami-Dade County had four crimes based on sexual orientation and Palm Beach County had three.

“It’s a double-edged sword for us because no one likes to be the number one county for hate crimes, but on the other hand we have been telling people for over a year to report these crimes,” said Broward Sheriff’s Office Hate Crimes Anti-Bias Task Force Chief Richard Wierzbicki. “Our county also had the most number of agencies reporting. It says something about us doing it right in Broward and willing to accept reports from victims.”

Only 72 law enforcement agencies, out of the 415 statewide, reported 182 total hate crimes in 2008, and 12 of those agencies were in Broward County. Statewide data showed that 35 of the hate crimes were based on sexual orientation, about 20 percent of the total hate crimes.

The number of overall hate crimes reported in 2008 was also low. This is the 17th year the hate crimes report was commissioned, and the second lowest total of statewide hate crimes reported during that time period. Data tables also show a more than 30 percent drop from two years ago.

“We are highly encouraged that the number of hate crimes have decreased and think it is an excellent sign for the future,” said Office of the Florida Attorney General Information Specialist Shannon Knowles.Since 1990, Florida’s agencies have reported 5,084 hate crimes.

The Attorney General’s Office of Civil Rights, which compiles the report, also conducts hate crimes training for law enforcement throughout Florida and has developed programs for elementary, middle and high school students to teach them how to recognize hate crimes, how the law protects victims of hate crimes, and how such crimes affect Florida communities.

The goal of training and enlightenment is prejudice reduction. The goal of prejudice reduction is to tame the tides of violence against persons because of who and what they are. The truth be told, all crime is hate crime. It is an act of social violence against an otherwise innocent fellow citizen. But hate crimes reveal an invidious discriminatory bent that needs a strong cross-check. So task forces in these regards, such as those set up by BSO, or contemplated by the AG, should be applauded. They are steps in the right direction.

Commander Wierzbicki had it right when he stated "breaking the cycle of hate among the youth in communities is the way to prevent hate crimes from happening."

Thursday, October 29, 2009

Ben Kuehne Wins Appellate Claim on Money Laundering Counts

I suspect one issue every criminal defense attorney will blog on this week is the decision on Ben Kuehne.

Here it is in full:

The federal appeals panel sided with Kuehne, who was accused of a crime for giving advice to attorneys for an accused Medellin cocaine cartel kingpin.

The Atlanta-based panel's ruling was a blow to the U.S. Justice Department, as the case tests whether federal prosecutors could charge a defense lawyer with money laundering under anti-drug laws that target profits from trafficking.

The ruling found that a lower court judge was "eminently correct" to dismiss the unprecedented indictment against Kuehne and two others on money laundering charges under the federal statute. It concluded that Kuehne was protected by an exemption in federal money-laundering statutes carved out by Congress for defense attorneys in 1988.

"This is a huge win not just for Ben Kuehne but for criminal defense lawyers," said David O. Markus, a Miami attorney who helped write a friend of the court brief on Kuehne's behalf for the National Association of Criminal Defense Lawyers. David publishes his own blog which you can link to.

"It sends the message to the government that criminal defendants are entitled to representation and criminal defense lawyers are entitled to represent clients without having this dark cloud hanging over their heads."

Meanwhile, no word on what prosecutors will do with the remaining counts against Kuehne, but he has a broad cross section of support from the best attorneys in South Florida and around the country. Many practitioners are of the belief, this legal blogger included, that the US government went off the deep end on this one.

Masturbatory Gesture to Adversary Gets Texas Lawyer 90 Days for Contempt

Adam Reposa simulated masturbation in court

A young and up front Texas lawyer, who made a masturbatory gesture to a male prosecutor in front of a female judge after disregarding the jurist’s instruction to conduct himself more professionally was found guilty of direct criminal contempt and sentenced to 90 days in jail. Yesterday, an appellate court issued a detailed opinion upholding the sentence. It is available in the link below.

When Kayo Morgan was suspended for 91 days for bringing his monkey to court or telling a judge to go make love to one, I thought the penalties were ludicrous and harsh.

When Sean Conway stood up to Judge Aleman’s intransigent posture of setting cases too swiftly I thought his sanction for publishing words on the Internet was ludicrous. Essentially, I do believe that zealous advocacy requires the litigant to stand up to the court, though I think where you draw the fundamental distinction disciplinarily is whether the attacks are personal or professional.

The advocate has to make his point as a lawyer and not as a crybaby. It’s a simple standard. Are you attempting to advance the cause of your client or just making an ass out of yourself in a courtroom? Are you repeating and restating the same thing time after time after a court has entered its final ruling?

Once you make your record, there is always an appeal. But make your record, point out who the players and witnesses are, what the court is doing that is intolerable, and lay the appropriate legal foundation for a justifiable recusal. Muttering under your breath after the fact is not only not going to help an appellate court; it is more likely to get you held in contempt by the trial court.

In this Texas case, according to the Tex Parte Blog, which opined about the ruling, Reposa unsuccessfully tried to argue that since the gesture was aimed at the county attorney and not the judge- he should escape discipline of the court. So I guess Al Milian, you just can’t give the finger to your adversary, let alone punch him out in a hallway.

The appellate court ruled that Adam Reposa’s gesture was “a purposeful act of disrespect and an affront to the dignity of the court,” even if it wasn’t directed at the judge. As such, it was deemed contumacious conduct that rises to the level of criminal contempt.

Most judges are not used to dealing with contempt. They have problems dealing with it procedurally because in the midst of their anger at the actions of an irresponsible attorney, they inadvertently fail to follow the peculiarly unique guidelines for such a proceeding. There are specific rules to follow. We don't live in that day when Judge Futch could turn to a bailiff and say "just put the son of a bitch in jail.” No, there is an actual procedure, and this case thoughtfully lays it out. Worth a read. Here it is:

The case talks about the differences between civil and criminal contempt and goes into the specific behavior the court found offensive; what and which evidence was admissible; judicial recusal and more. My gut reaction was and still is that the sentence is disproportionate to the offense, but even that issue was thoughtfully addressed by the Texas Court of Appeals. Though I disagree with their conclusions, I will at least applaud their efforts to reason out an approach to a difficult issue. I think it is a decision worth putting aside and holding onto for future reference.

See also as long as it is online Judge Zloch's opinion on contempt:

Tuesday, October 27, 2009

Time for a DUI Court in Broward County

by Norm Kent
Here I go again, with one of those moderate and sensible proposals which have led to people calling me too liberal for years. I can live with it. Ideas should be debated robustly.

You see, by this column, I propose our courts initiate a one year project where we adopt a policy of an alternative to incarceration for DUI's. I suggest we mandate that anyone arrested and charged with a DUI be immediately screened for alcoholism within fourteen days of their initial incarceration.

Once released from custody, the accused defendant must be evaluated by skilled clinicians to determine if they are candidates for a DUI court that would be modeled after Felony Drug Court. Correspondingly, as an initial step, one county court judge would be assigned to the DUI court program.

Since our state mandates minimums for the DUI penalties, the proposal would call for courageous intervention by the State Attorney’s office. Instead of a standard adjudication and the minimums after six months, the DUI court should be one year in duration, with supervision and counseling monitored over that period of time. Upon completion of the program successfully, the State would agree to a plea to a reduced charge of reckless driving.

Theoretically, the option to enter the DUI court would be open to all first offenders, but the State could outline certain conditions occurring during the arrest which excluded some individuals from electing the program. A blue ribbon committee of defense attorneys, jurists, and prosecutors would work out these terms. So too would the committee iron out and reach an agreement on which second time offenders would be allowed entry into such a program. The terms can come later, but we should agree on the concept now.

Inclusive of the counseling that would be attendant with a DUI court are programs involving anger management, psychological counseling, and medical treatment, where necessary. There would be an educational component, therapy, and affirmative steps that have historically retarded recidivism. They would be alternatives to incarceration for VOPs too.

Here is what I know after being a lawyer for 30 years: alcoholism is a terrible thing which leads to self-destructiveness and violence. Unfortunately, many of those who abuse alcohol get behind the wheel of a car and become unwilling links to death and destruction. Sometimes they strike out in rage and cause families to suffer. But alcoholism leads to multiple other problems and road rage and lots of bad things. Let us do better things to help tame the problem we know exists.

Intervention for a first time offender may sometimes just not be necessary. But let's find out if it is a precursor to a deeper issue. The DUI may have been committed by some kid at a birthday party who just went off the deep end on a singular nite; some young person who could not control his liquor. The real drunk could pound down twice as many beers and drive better even while impaired. The DUI program is for the real drunk of course, but it is to prevent future drunks too.

We can put the person in jail just as easily I know. We always have. And we still have alcoholism and drunk drivers. But we are all so aware that so many people have drug and alcohol problems. Why do we not have a DUI court? Why do we simply offload and independently contract to others the responsibility? Let probation do this. Let someone else do that. What about in house supervision by the courts and the judiciary?

Historically, we know that drug courts integrate alcohol and other drug treatment services into the justice system. We know that alternatives to incarceration reduces recidivism and creates opportunities for offenders to turn around their lives, while actually saving taxpayers’ money.

Therefore, I propose this program be initiated, and the Chief Judge take those steps necessary and proper to get it underway. Won’t cost anyone a dime, and may save the system thousands.

A DUI court component to our justice system is so obvious I do not know why we do not have one already. But ask yourself this as a defense attorney or judge: when we rush through a plea for a DUI how many routinely fulfill the probationary terms with a minimal effort just to get through the six months and move on?

How many times is there legitimate judicial follow-up to reduce recidivism?

I am guessing, to be honest, since the first time pleas do not involve jail time, but straight probation, no lawyers have ever pressed for a DUI court. But maybe we serve our clients better if we give them an opportunity to be supervised longer.

Maybe we serve our society better if we do more than just get the best deal for the moment but work out the best answer to prevent our client from coming to us again, this time as a recidivist offender facing mandatory jail.

The bottom line is a DUI court would serve this community better than straight probation does. We ought to give society and our clients that option. And if it opens up the door to second offenders or reducing the final penalties for first offenders, we can all be for discussing the proposal. And I apologize if someone is already doing this and I just don't know about it.

Anonymous Blogger Sued for Defamation May Be Unmasked

As readers of this blog know, I have steadily written about the unfolding laws of bloggers’ and their rights.

People that host blogs are generally protected by a section of federal statutes which shields them from liability for what others post. It allows for the free dissemination of speech in the Blogosphere. But when those postings are defamatory, a prospective litigant is not without redress. He indeed may sue the blog to disclose the IP address of the alleged defamer. Then, after acquiring the same, the aggrieved party can determine if he wants to sue the author, once tracked down.

It is therefore not surprising to see then that a Tennessee judge has ruled that a husband and wife who operate a halfway house for recovering drug abusers may unmask an anonymous blogger who allegedly defamed them. This usually requires suing the host of the blog. So they did.

The anonymous blogger accused a couple, Donald and Terry Keller Swartz of Old Hickory, Tennessee of committing arson, evading taxes and being drug addicts themselves. That is some serious defamation. They subpoenaed Google to reveal the blogger, and the blogger filed a motion to quash.

Judge Thomas Brothers ruled against the blogger:

“Internet anonymous speech is not entitled to absolute protection,” Brothers wrote in his Oct. 8 opinion (PDF posted by the Citizen Media Law Project). “The free speech of the defendant must therefore be balanced with the reputation and privacy interests of the plaintiffs.”

Brothers applied a five-step standard established in a 2001 New Jersey appellate case, Dendrite International v. Doe. It requires a reasonable attempt to notify the blogger, a reasonable time to respond, identification of allegedly defamatory statements, a substantial showing of proof, and a balancing of First Amendment interests.

Brothers said his decision may be immediately reviewed. What I can tell you is that a new era of American jurisprudence is unfolding, and it is going to require caution and a steadied jurisprudential hand to find the proper blend between free speech and wrongful abuse.

Monday, October 26, 2009

Indecent Exposure Brouhaha Nothing New to Floridians

Equus he is not, but the way Eric Williamson of Virginia tells it to the Washington Post, he might have been making coffee or flipping eggs when a woman and her 7-year-old son walked by his house and saw him, through the window, naked.

He says he never saw them and never knew they'd seen him -- until the police showed up. In a case that gained international attention last week, hitting a nerve for anyone who has ever dashed from the bedroom to the laundry room in the buff, Williamson was charged with indecent exposure.

There are conflicting accounts of what happened Monday morning, but everyone agrees on this: The 29-year-old was naked and home alone, and he could face up to a year in jail.

"I looked straight at the cops and said, 'You're telling me that none of you guys have ever walked across your kitchen or run to the laundry room to get some pants?' " said Williamson, who was handcuffed and taken before a magistrate. "I was treated like an animal. If there was something offensive, would not a knock on the door and heads-up suffice?"

This is nothing new to Floridians. Years ago, in Southwest Florida, a couple making love in a first floor condo next to the community swimming pool was similarly prosecuted. The legal standard is that you have a right to be naked in your own home but that nakedness is compromised by the fact that your shades better be closed because if you are looking out your living room bay windows stark naked and your neighbors can see you its off to the hoosegow.

The legal dispute in the Fairfax case will probably be whether the nude dude intended to be seen. Now I have a roommate who occasionally gets up in the middle of the nite to grab a smoke and walk the dogs, and I swear to God sometimes he forgets that he sleeps naked.

The element of intent is critical in Virginia. It defines indecent exposure as the intentionally obscene display of private parts in a public place or "any place where others are present."

Come on, how many times have you seen your neighbor walk outside on a Sunday morning in a bathrobe and bend down to pick up his newspaper while revealing more than the newsprint? The amazing aspect of this is that the guy is now caught up in this media whirlwind which will play out on blogs and tv newscasts across the globe.

Having blogged last week that California is disallowing nudity on some of its public beaches, this new piece fits right in to that tired American puritanism which still captures our need for lust and lewdness. Nudity is news, whether it is in a public park for a community photograph, or on bicycles for the Nude Bicyclists of America, who I blogged about a few months ago.

Years ago, at a place called the Seminole Health Club, I served as a judge in their annual nudist contest, courtesy of an invitation from long time South Florida icon Pat Mascola, the publisher of Around Town Magazine. Once, in a lifetime far away, after a ten mile swim, I remember coming back into my Coral Springs apartment, looking at myself in a mirror, and saying, "I like my body." That was 35 years ago though. Now I think if somebody saw my body, it would be a crime that shocked the conscience. I am thinking maybe I should have to do community service or pay for their therapy.

I feel kind of sorry for this guy. First of all, this is not the way you want to become famous. Half the community will forever think he is a pervert. He has to hire a lawyer whose best defense is going to be that the evidence would not stand up in court, and he can't even go on Larry King and show everyone what exactly happened.

Friday, October 23, 2009

Matthew Shepard Law Goes Federal

In a move welcomed by gays and lesbians, the US Senate has passed groundbreaking legislation making an assault on an individual because of his or her sexual orientation or gender identity a federal crime.

The measure expanding federal hate crimes law was added to a $680 billion defence authorization bill. It now goes to the desk of President Barack Obama who has pledged to sign the measure. President George W. Bush had threatened to veto a similar measure.

The bill is named for Matthew Shepard, a gay Wyoming teenager who died after being kidnapped and severely beaten in October 1998, and James Byrd Jr., an African-American man dragged to death in Texas the same year.

Several religious groups have expressed concern that a hate-crime law could be used to criminalise conservative speech relating to subjects such as abortion or homosexuality. Attorney General Eric Holder has asserted that any federal hate-crimes law would be used only to prosecute violent acts based on bias, as opposed to the prosecution of speech based on controversial racial or religious beliefs.

Holder called Thursday’s 68-29 Senate vote to approve the defence spending bill that included the hate crimes measure “a milestone in helping protect Americans from the most heinous bias-motivated violence.”

This month Obama told the Human Rights Campaign, the country’s largest gay rights group, that the nation still needs to make significant changes to ensure equal rights for gays and lesbians.

“Despite the progress we’ve made, there are still laws to change and hearts to open,” he said during his address at the dinner for the Human Rights Campaign. “This fight continues now, and I’m here with the simple message:

“I’m here with you in that fight.”

Among other things, Obama has called for the repeal of the ban on gays serving openly in the military, the “don’t ask, don’t tell” policy.

He also has urged Congress to pass laws to recognize same-sex marriages and extend family benefits now available to heterosexual federal employees to gay and lesbian federal workers.

More than 77,000 hate-crime incidents were reported by the FBI between 1998 and 2007, or “nearly one hate crime for every hour of every day over the span of a decade,” Holder told the Senate Judiciary Committee in June.

The FBI, Holder added, reported 7,624 hate-crime incidents in 2007, the most current year with complete data. All crime is hateful, but some more hate-specific than others. The law is welcome and overdue.

Minnesota Court Rules Bong Water Counts as Illegal Drug

Michael Phelps- World Famous Bonger

MINNEAPOLIS — In Minnesota, bong water can count as an illegal drug.

That decision from Minnesota’s Supreme Court on Thursday raises the threat of longer sentences for drug smokers in that state who fail to dump the water out of bong, which, in case you do not know, is a type of water pipe often used to smoke herb.

The court said a person can be prosecuted for a first-degree drug crime for 25 grams or more of bong water that tests positive for a controlled substance. Lower courts had held that bong water is drug paraphernalia. Possession of that is a misdemeanor crime. This is why I went to law school. This is why you can become a judge. So you can spend your evenings deciding if the water in a bong is illegal because it is laced with THC.

The case involved a woman whose bong had about 2½ tablespoons of liquid that tested positive for methamphetamine. A narcotics officer had testified that drug users sometimes keep bong water to drink or inject later. So he charged her with surfing in illegal waters. And the courts agreed. MORE DETAILED PIECE OFF MSNBC
see also

Nude Sunbathing KO'd in California

Nude sunbathers in California have been asked to cover up. This could affect my retirement. Just as I was heading to the Bay.

Refusing to hear a case brought by a local nudist group, the state’s top court has upheld a ban on nudity at state beaches, including those that have been informally designated as “clothing-optional.”

The court Thursday unanimously denied review of a lower-court ruling upholding a May 2008 decision by State parks director, Ruth Coleman, to allow officers to cite nude sunbathers on a portion of San Onofre State Beach in Orange County where they had previously been undisturbed.

“This is a tremendous setback…” officials of The Naturist Action Committee and Friends of San Onofre Beach said Thursday. “But the battle has not ended.” I expect some stiff competition.

Coleman’s action revoked a policy announced in 1979 by then Parks Director Russell Cahill, who said officers would wait until someone complained before enforcing regulations that forbid public nudity at state parks and beaches. Even Fox news has not said a word.

Under that policy, officers who got a complaint would tell the nudist to put on a swimsuit or leave for the day. Otherwise, they took no action as unclad sunbathers and swimmers congregated in isolated sections of state beaches from San Diego to Eureka.

The latest ruling favoured state officials, who last spring decided to crack down on a more than 20-year tradition of nude sunbathing at the 1,000-foot stretch of beach known as Trail 6. Tradition! So much for Topol.

Despite the new ruling, park rangers won’t be conducting sweeps of beaches up and down the coast looking for lawbreaking nudists, Roy Stearns, spokesman for the Parks and Recreation Department, said Thursday. It also does not apply to private land where nudists congregate, such as a portion of Muir Beach in Marin County.

But park rangers could enforce the ban at traditionally clothing-optional state beaches such as Gray Whale Cove south of Pacifica and Red Rock Beach in Mount Tamalpais State Park.

California may be broke, earthquakes may threaten its citizens, but its beaches will be safe.

The Week's Best Late-Night Jokes

For those that don't know about this feature, it comes courtesy of Daniel Kurtzman at You can get a subscription to the very funny humor it generates.

"A new study shows that the phrase most often used by President Obama is, 'Let me be clear.' The phrase he uses the least often? 'Let me be specific.'" -Jay Leno

"Federal agents will no longer go after patients taking medical marijuana or their suppliers under the new guidelines by the Obama Administration. President Obama is very smart. He figures if he couldn't appease the left by withdrawing from Iraq or closing Gitmo or appealing 'Don't Ask, Don't Tell' they'll all be too stoned to care." -Jay Leno

"It was smart for them to try this balloon stunt while President Obama's in office. That wouldn't have worked with Bush Administration. Cheney would have shot that balloon down." -Jay Leno

"Did you see what happened to Rush Limbaugh? Hey wanted to buy the St. Louis Rams and they wouldn't let him. He said this was a dream he had, to some day own black people." -Bill Maher

"A new survey found that the average man cries about six times a year. That number would be a lot lower if it weren't for Glenn Beck." -Jimmy Fallon

"The White House is calling for bailed-out executives to get a 90% pay cut. They want their pay cut 90% so it's more in line with the job they're doing. Here's my question: why can't we get this for Congress?" -Jay Leno

"The Dow hit 10,000 this week, everybody! For the first time since the market collapse. And people were so excited, they took to the streets to celebrate, which is easy because so many of them live there." -Bill Maher

"Yesterday in Louisiana, a judge denied an interracial couple a marriage license because he felt, I quote, their children would later suffer in life from being interracial. Like when they become president or win the Masters or get an Oscar." -Jay Leno

"Here's the latest form the Pentagon. The generals are worried that the White House is spreading itself thin by trying to fight a war on two fronts: with Afghanistan and Fox News." -Jay Leno

"Obama is going to send $250 to all of those senior citizens. The bad news is that he's going to send them $10 at a time on their birthday." -Jimmy Fallon

Wednesday, October 21, 2009

Administration Will End Raids on Marijuana Dispensaries

In what can only be described as major departure in the so-called ‘war on drugs’, the Obama Administration has issued a new three page memo on medical dispensaries.

You can now read the memorandum, signed by Deputy Attorney General David W. Ogden, here.

I can only applaud the victory won today by marijuana activists. We can only celebrate the good and just fight anchored by NORML and its founder, Keith Stroup, who engaged this cause decades ago.

You can also share your thoughts with the White House on the administration's decision via NORML's Take Action Center here-mapping out the federal government’s new guidelines for states that have laws protecting medical cannabis patients. It is quite enough to be sick. It was sicker that our own government would further target sick patients.

Last February Attorney General Eric Holder indicated in a press conference that the Obama Administration–which favors physician-recommended access to medical cannabis–would abate from what had been an aggressive law enforcement (and propaganda) campaign against medical access to cannabis. After some delay, and some criticism, from impatient soldiers in the fight, such as me, that day has come. That victory is now won.

There is still much to do but this is one small toke for man, one giant joint for humankind.

Good article entitled 'Tokeville' in Harper's Magazine's October issue, for those so intrigued by this issue.

Chicago 7 Trial: 40 Years Later

Judge Julius the Unjust

Great piece by Martha Neil at the ABA Journal; just had to post and link to it. A talented writer reaches back. You know, they say if you can remember what happened in 1969 than you were not there. But it just is not true. The fact is that I can remember more vividly episodes of my life from 1969 than 1979 or 1989, and I think it was because it was an era and decade that had meaning and purpose; causes I still cherish today.-NK

A perfect storm of political unrest, generational conflict and a biased judge set the stage for a 1969 trial that is still memorable 40 years later for its drama and iconic import, participants in an American Bar Association panel told a standing-room-only audience Tuesday.

Although the months-long Chicago Seven conspiracy trial ignited international debate—one searing image was of a bound and gagged Bobby Seale, originally the eighth defendant in U.S. v. Dellinger, et al.—panelists offered a behind-the-scenes glimpse of little-known aspects of the high-profile trial. Brought against activists who participated in anti-Vietnam War protests at the Democratic National Convention in 1968, the federal case offered an opportunity for defendants including Tom Hayden, Abbie Hoffman and Jerry Rubin to create a media circus and they took full advantage of it.

The effort was aided by a trial judge who offered a substantial target for criticism at the best of times and for this case was "the worst possible judge," recounted partner Thomas Sullivan of Jenner & Block, who was then a young lawyer in Chicago. Baited viciously by defendants and counsel, U.S. District Judge Julius Hoffman eventually handed down hefty contempt terms that were reversed on appeal.

From the outset, however, Hoffman clearly favored the prosecution, according to Sullivan and other panelists. After Seale's intended lawyer was stricken with a gall-bladder attack three days before the trial was to begin, Hoffman scoured the pleadings to identify other attorneys who had entered an appearance in the case on Seale's behalf for peripheral purposes. Finding four, the judge sent a court marshal out to locate the lawyers and bring them in to defend Seale, briefly jailing two attorneys who didn't come in voluntarily, Sullivan said.

When the four lawyers, represented by Sullivan, told Hoffman they weren't adequately prepared to try the case, he attempted to jail all four over the weekend until another judge intervened.

As the case progressed, a parade of celebrity witnesses took the stand, noted journalist Rich Samuels, who presented a program on the trial for a local news affairs program Chicago Tonight. They included folk singer Judy Collins and Timothy Leary, a well-known fan of the drug LSD who had earlier taught psychology at Harvard University.

Following months of trial that stretched into 1970, the jury was deadlocked. But a verdict was finally reached after a court official told holdouts that the judge could keep them in the courthouse until they rendered a decision. "That terrified them," said John Schultz, who covered the entire Chicago Seven trial as a reporter for the Evergreen Review and has written a book about the case.

Jurors were originally unwilling to talk about the verdict, but Schultz persevered and his coverage helped point the way toward a successful appeal.

Although widely viewed as an incendiary factor in an out-of-control trial, Hoffman himself initially saw the Chicago Seven case as a high point in his career and was proud of having played an important role in it, said Jeffrey Cole, a federal magistrate and adjunct law professor who as a young attorney was involved in the appeal. "He thought this was a turning point in the history of the whole country."

Repeatedly invited by Hoffman to discuss the case, post-trial, in the wealthy jurist's exquisitely furnished chambers, Cole noted that the judge had framed the few newspaper articles that took a favorable view of the trial. After being criticized by the 7th U.S. Circuit Court of Appeals for his handling of the case, however, Hoffman eventually died "a very disappointed and horribly unhappy man," Cole said.

For more details, take a look at the full ABA Public Program Series broadcast, which can be downloaded next week on an ABA web page about the Chicago Seven conspiracy trial program. It was sponsored by the ABA Division for Public Education and moderated by Edward Adams, editor and publisher of the ABA Journal.
I am going to look this up and read more. Wish I had known about the conference. Would have been there. Kicking myself now.

Thursday, October 15, 2009

CNN Story: Girl. 12. Wins Back Baseball

This was the story that summarized best how young Jennifer Valdivia lost her rights to the baseball she caught in the stands, and how she got the ball back.
The episode only made news when we filed a suit. Had the Phillies returned the ball over the summer, in August, or September, as their agents promised, the story probably never would have gone beyond the WSVN features. But when the season ended, on October 4, and we still did not have the ball, we went ahead and filed a suit, and the story 'hit the wires.'
Ironically,as the suit was being filed, the Phillies- finally, after numerous delays and obfuscations- were in the process of retrieving the ball from Ryan Howard's agent, who was in the process of retrieving the ball from Ryan Howard. So as the ball was returned, we laid down our batter's bats and settled quickly.
As I noted in the previous post, the most intriguing aspect of the case from a legal standpoint was the number of law review articles and scholarly legal articles have been generated concerning the proprietary rights of a baseball that lands in the stands. Law school professors in property classes are having a field day with this.
Forget the press, the slimy lawyer or greedy fan angle that has been played out on some blogs and media sites, this story really revolves around contracts with a minor and a proprietary interest that a fan may acquire in property that was not his to begin with but became his with possession. Interesting for a legal blog, no?

Monday, October 12, 2009

Who Owns the Baseball?

A great piece off the Marquette University Law Blog addresses the legal issues surrounding the case which generated so much controversy for me last week. I have not blogged personally about this yet, but it really was very simple for me when you think about it.
Historically, balls caught in the stands belong to the fans. And you don't make a deal with a 12 year old to give one up that may be historic. More on that later in the week. But now, the legal issues, well crafted on this blog by author J Gordon Hylton:
Earlier this week, the Philadelphia Phillies decided to return the baseball that Phillie Ryan Howard hit for his 200th career home run to the fan that caught the ball. This particular baseball is significant because Howard reached the 200 home run mark in fewer games than any player in baseball history. The “historic” home run was hit in Miami on July 16 in a game against the Florida Marlins, and the lucky fan was twelve-year-old Jennifer Valdivia, who was sitting in the right-field bleachers at Land Shark Park.

Valdivia and her fifteen-year-old brother attended the game without an adult companion. After catching the ball, the Miami resident was escorted by Florida Marlins employees to the Philadelphia clubhouse, where she was given cotton candy and talked into exchanging the home run ball for a different baseball autographed by Howard. Upon learning of these events, her family retained lawyer Norm Kent and formally requested that the ball be returned. The team refused to give the ball back for almost three months, but decided to do so after Kent filed suit on Monday, October 5.

Although the Phillies have so far refused to comment on their decision to return the ball, they most likely did so to avoid the bad publicity that would follow widespread reporting that the team had taken advantage of a twelve-year-old fan. What is more interesting is that the Phillies appear to have accepted that the ball did belong to Valdivia, rather than to the home team Florida Marlins or Major League Baseball. Had they believed the latter, they could simply have requested that the Marlins retrieve the ball for them, and they would not have had to barter with the young girl.

Historic home runs balls have become objects of great value in recent years, and the “ownership of balls batted into the stands” issue has been much discussed. However, the legal aspects of the matter have rarely been understood even though it is not really a complicated question. The right to such baseballs can be established through the application of basic property law principles.

The first task is to establish the owner of the ball before it is hit into the stands. Ordinarily, this is the home team, which is obligated to provide baseballs meeting major league specifications. The baseballs are given to the umpires prior to the game, but neither that action nor the use of the balls in pre-game practice or in the game itself reflects a transfer of ownership, as evidenced by the fact that any leftover baseballs are returned to the home team when the game is completed.

Logically, a fan retrieving a ball hit into the stands is legally entitled to keep the ball only if the home team’s ownership rights have been somehow transferred or relinquished. Ownership rights are transferred only by abandonment, gift, or sale. If there is no abandonment, gift, or sale, there is no change in ownership.

Although it is often stated that baseballs are abandoned once they leave the playing field, there is no legal basis for such an assertion. At football and basketball games at all levels and at amateur baseball games, fans are expected to return balls that travel into the area where spectators are seated. To lose control of an owned object is not tantamount to abandonment. If two boys are playing catch and an errant throw lands in a neighbor’s yard, they may not have the legal right to retrieve it on their own (because of trespassing laws), but that does not mean that they have abandoned their property rights to the ball.

Moreover, abandonment as a theory will not work in situations where representatives of the home team go into the stands immediately after the ball lands for the purpose of retrieving it. Obviously, the owner is not abandoning the ball if its agents are trying to get it back. Only if no effort is made to retrieve the ball, and it appears that the owner has relinquished any intention of reclaiming it, can the ball be said to be abandoned. Consequently, if the fan has a legal claim to a ball that the owner wishes to retrieve, the claim cannot be based upon a theory of abandonment.

A better argument than abandonment is the argument that the ball is a “gift” from the home team to the fan. Gifts require both donative intent (the intention to make a gift) and actual or constructive delivery. Otherwise, the change of possession represents either a bailment or theft, but in neither of those situations is there a change of legal ownership.

One could argue that when a fan enters the seating area of the stadium, the home team “prospectively” gives him or her any ball hit into the stands that he or she might retrieve. However, there are problems with the gift analysis. Although prospective interests can be the subject of gifts — I can give away a five percent interest in the profits (ha!) from my next casebook — the law of gifts normally requires that the donor control the object of the gift at the time of delivery and that the object of the gift can be defined with specificity. There is also a fine line between gifts of prospective benefits, which are enforceable, and promises to make a gift in the future, which are not.

Of course, if the home team decides not to make an effort to retrieve a particular ball hit into the stands and instead allows the fan that recovered it to keep it, one can argue that a gift has been made at that point. However, this rationale provides no legal protection for the fan in cases where the owner or its representatives are in the stands demanding the return of the ball.

The better analysis is that the ball belongs to a fan as a matter of contract. When one purchases a ticket to a professional baseball game, the buyer is led to believe that he is purchasing a number of entitlements — among which are the right to watch the ensuing game without interference and the right to sit in the seat identified on the ticket. Because of the longstanding practice, dating back at least to the 1920’s, of allowing fans to keep balls hit into the stands at professional baseball games, the “right” to keep such balls, I would argue, has become an implicit part of the contract between the team owner and the ticket buyer.

When you purchase a ticket to a baseball game, part of what you are purchasing is the right to keep any ball, hit fair or foul, that you retrieve when it passes into the stands. Every baseball fan knows this. To demand the return of a ball at this late date would constitute a breach of contract. Even if the fan were not entitled to the return of the ball itself, if it were improperly taken away, the fan would be entitled to the cash equivalent of the ball’s value.

This analysis would not prevent a team from announcing a new policy that all balls batted into the stands must be returned if requested, but it seems highly unlikely that any team owner would adopt such a policy, which would surely anger fans and give them reasons not to purchase tickets.

So the Phillies were actually right. The ball did belong to Jennifer Valdivia. It was hers under the terms of the contract between young Jennifer and the Marlins that was created when she purchased her ticket. What the Phillies did wrong was to try to defraud a young girl whose family knew how to find a lawyer who understood the sports memorabilia market.

The Miami Herald story reporting the return of the ball and a video of an interview with lawyer Norm Kent can be found here.

Saturday, October 10, 2009

Help Me Howard

This would be funny if it were not true.

It has to do with an FPL bill at my warehouse. I have had this warehouse for over ten years. It is hidden in a commercial and industrial district in Fort Lauderdale. It stores old files, and stuff, lots of stuff on its way to the junkyard, probably. It is a necessary expense.

One thing I do is keep it virtually free of electricity. One neon bulb. An A/C unit I run so rarely that the landlord gets pissed off that I jeopardize its efficiency by not running it often enough. For this past decade, my bill has varied from $11 to 14 a month, sometimes pushing $20 in the summer if I go there to move some files around, or run the generator, or start up Dad's antique 1963 Oldsmobile . No problem. For over ten years, the bill was de minimis.

Last summer, something weird happened. I changed nothing, installed nothing, moved nothing. But the meter went into Zombieland, and the bill jumped to over $200 a month. It was almost humorous. Except for the fact that I had to deal with FPL operatives to put an end to six months of extravagant bills shooting through the roof.

I called up the FPL gurus who stepped in with meter checkers, meter alerts, fraud investigations, and anything they could find out to determine why the costs spiked. They too were intrigued after running my history of the unit. Nothing made sense to them either. The lines were not trespassed, no one was stealing electricity, the meter supposedly worked, and all their extrinsic and intrinsic investigative tools could not figure out how the bill shot through the sky. In fact, arguably, no one ever figured out, even with the new meter. And this went right to its top supervisors.

After a tortured five months, and a bill over $1200, FPL relented, agreed I could not have been wrong or responsible, and reluctantly redacted the bill. Just as I was about to lose it all.

A year has gone by since by horrible experience over the mythical FPL charges no one could figure out or compute. The last guy I dealt with at FPL was so helpful I sent him a thank you letter. Now a year has past. Alas, the story does not have a good ending. I can't find this guy's number or email address or the correspondence (maybe I left it in the warehouse?) and the nightmare is happening again.

I have not been to the warehouse since last Christmas. No one has. Been locked up. In fact, after the last experience, I had the landlord shut down the meter. Don't even think I turned it on. Put a lock on it in fact. Faithfully, the bill has been $14 a month. Until September. Got a bill for $251.89. Have no idea why. This month, another $235.00 Oh boy, here we go again. And I still have not been to the warehouse. I am afraid to run into the ghost of electricity past.

Of course, I am not paying the bill. I told FPL there is a screw up. They are telling me it is my problem this time. Not going to help. "There's a new meter. Leave us alone." So here come the warning notices. Today, the Final Notice. Tomorrow, I lose all sanity. You know what it is. It's the vision of being put on hold, of delayed, waylayed, and postponed, spindled and emotionally mutilated.

I just cannot deal with this again. An electric bill for a place where I am using no electricity. Like on top of everything else in this economic climate, I have to add this. Not to mention that the City of Fort Lauderdale just told me that my water bill tripled this past month, and I probably have a leak somewhere in my 25 year old townhouse. Great.

The time. The stress. The hassle. This is unreal.

This time, I really have to call Howard. Help me Howard, help me.
Patrick Frazier, where are you?