Thursday, September 2, 2010

Porn Watching Trucker Receives Prison Sentence in Vehicular Homicide Tragedy

Back in May I told you about the guilty plea to vehicular homicide charges of the porn-watching trucker who killed the Batavia, New York woman.  This afternoon, Ohio.com is reporting that the trucker, Thomas Wallace of Brook Park, Ohio has received a sentence of 3 to 9 years. 

Here's the story:

"An Ohio truck driver whose laptop computer was streaming pornography when his rig hit a disabled car on the New York State Thruway has been sentenced to three-to-nine years in prison for killing the other driver. Thomas Wallace of Brook Park, Ohio, pleaded guilty in May to second-degree manslaughter.

Authorities say [Mr. Wagner] slept no more than four of the 27 hours before the Dec. 12 crash that killed Julie Stratton, a 33-year-old mother of two.

The 45-year-old trucker tearfully apologized to the victim's family at Wednesday's sentencing. He had faced five to 15 years in prison.  Stratton hit a deer and her car was disabled in the passing lane shortly before Wallace's tractor-trailer ran into it from behind in Pembroke, 20 miles east of Buffalo."
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My beloved daughter drove me to the garage to pick up her mother's car and as she drove away I watched her texting.  I went wild.  When her mother heard my report, the BSL went wild.  The electronic device she was using was shut down for a suitable length of time to deter any furhter distracted driving.  We seem to be proliferating ways to kill ourselves and others.

Pepper-Spray Verdict


The San Jose Mercury News has the story of the local man who was attacked and pepper-sprayed by security personnel at a Vallejo, California supermarket.  Readers of Bad Lawyer, know why this account interests me.  The story follows:

"A Solano County Superior Court jury has awarded more than $54,000 in damages to a Vallejo man who was beaten and pepper-sprayed by security personnel at a Vallejo supermarket in 2005.


The jury ruled that Darrell Archer, 62, should receive $50,135 in compensatory damages from Nugget Market, Inc. -- owner of the Vallejo Food 4 Less -- store managers Tomas Martinez and Dwight Woodard and then-security officer Rudolpho Granados.  In a separate action, the jury also ruled last week that Granados also was liable for $4,708 in punitive damages.

According to Sacramento attorney Herman Franck, Archer and his son, David, were shopping at the Vallejo Food 4 Less on Christmas Eve 2005 when Granados, a loss prevention officer, approached Archer's son about the alleged shoplifting of a pair of $1.69 gloves.

When Darrell Archer intervened, Granados pepper-sprayed and punched him, causing numerous injuries, according to the suit.  No gloves were found and no theft charges were filed against Archer or his son. A battery complaint was made against Darrell Archer but subsequently dropped by the Solano County District Attorney's Office.

Store employees said that a security tape of the incident had been 'eaten' by the store's videotape surveillance equipment.

Archer said the attack occurred while he and his son were exiting the store after spending $133 on groceries. He said store employees confiscated the food and never gave him a refund. They also locked him and his son in a security office for 45 minutes, Archer said. 'I feel it's absolutely outrageous that this could happen to anyone,'  Archer, a retired iron worker, said this week. 'This has probably happened to other people who never said anything about it.'

Sacramento attorney David Worthington, who represented all defendants, did not return a call for comment. Attempts to reach Granados at the Pleasanton Police Department where he is now a police officer also were unsuccessful.

Archer, who was seeking $250,000 in damages, said he may appeal the jury's decision. He said he's already accrued $85,000 in legal costs -- more than the jury awarded him."
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It would be interesting to know, what sort of impression the plaintiff made at trial.  My guess is not great in light of the relatively minimal verdict compared to his alleged damages and legal costs.  His comments to the press are consistent with the impression. This is one of those parameters, lawyers bemoan--the not very good impression made by the client.

When I was a young lawyer I lost a case that was a "slam dunk" because I lacked the wisdom to realize that my client was totally unsympathetic.  As a young snot nosed advocate, I mistakenly concluded that just because my client was "right" he would win, wrong.  On the other hand, my former partner Nancy and I successfully represented a "crack addict" woman assaulted by a security guard in a supermarket who was genuinely sympathetic. Many factors must be evaluated in making a determination of a client's jury appeal.

Facebook Juror Update

Hadley Jons, the Facebook Juror who disclosed her "guilty" verdict on the social network before hearing the defense in a case, apologized and been given a writing assignment in disposition of her contempt citation, here's MLive.com's follow-up:

"A Detroit-area woman who was removed from a jury for commenting about an ongoing case on Facebook has a longer writing task ahead: a five-page essay about the constitutional right to a fair trial. A judge ordered the essay Thursday for Hadley Jons, three weeks after she wrote on Facebook that it was 'gonna be fun to tell the defendant they're GUILTY.' The trial, however, wasn't over.

'I'm sorry, very sorry,' Jons, 20, of Warren told Macomb County Circuit Judge Diane Druzinski.

The post was discovered by the defense team Aug. 11 — before the defense had even started its case — and Jons was removed from the jury the next day.  [Judge] Druzinski told Jons that it didn't matter whether she used Facebook to express an opinion or simply spoke to a friend about the case.

'You violated your oath. ... You had decided she was already guilty without hearing the other side,' the judge said.

By Oct. 1, Jons must submit an essay about the 6th Amendment to the U.S. Constitution and pay a $250 fine.  Jons declined comment outside court. Her attorney, John Giancotti, said the outcome was appropriate. He declined further comment.  Jons was a juror in a criminal case against Leann Etchison, who was charged with resisting arrest. She was eventually found guilty.

The Facebook post was found by Jaxon Goodman, the 17-year-old son of Etchison's defense lawyer. 'She'll think twice about how important being on a jury is,' Goodman said."
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The one thing you might bear in mind, Facebook, Twitter and the other social networking forums have given defense attorneys a tool to look at suspected juror misconduct that did not exist previously.  Great story.  Good and appropriate outcome by Judge Druzinski.

Happy Ending for Washtenaw County Sheriff Deputy

The Adrian Daily Telegram is reporting on the disposition of the criminal case against the Washtenaw (Michigan) County Sheriff's Deputy who faced a career ending felony charge arising out of his request for a "happy ending" from an area massage therapist.  Here's the edited story:

"A Washtenaw County sheriff’s deputy entered a no contest plea to a reduced charge of being a disorderly person Monday before Branch County Circuit Judge Bill O’Grady, the Adrian Daily Telegram reported.

The case started in Lenawee County after Chad Jeremy Beaudin, 38, of Tecumseh was accused in January of asking a massage therapist for sexual favors.  The misdemeanor plea agreement ended felony charges of aggravated indecent exposure and enticement for prostitution after an incident Jan. 27 at the Defined Wellness Center in Adrian, Michigan.]  During a preliminary examination April 28, the massage therapist testified that during a 90-minute deep muscle sports therapy treatment Beaudin removed the blanket and sheet and began massaging himself. She said he asked her to continue and offered a 'tip.'

The therapist refused and left the room. She said she was 'shocked' and told her employer who wrote a letter telling Beaudin not to return. The woman and her parents then went to police three days later.

Assistant Lenawee Prosecuting Attorney Frank Riley told O’Grady he and defense attorney Michael Vincent of Ypsilanti agreed to one-year probation on the 90-day offense with $613 in fines and costs. O’Grady suspended a 30-day jail sentence and ordered Beaudin not to have contact with any massage therapist or the victim during the probation.
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The matter was complicated by the fact that the deputy was prosecuted in Lenawee County where the deputy's wife works as a deputy Sheriff as a consequence all the Lenawee Judges recused themselves from the case.

Florida Federal Jury Awards $8.1 Million for Fired Cancer Survivor of Michael's Arts and Crafts Stores

Wayne Roustan of the Sun Sentinel reports on the Broward County cancer survivor who won an enormous award from a federal jury versus Michael's Arts and Crafts retailer:

"A federal jury on Wednesday awarded a 47-year-old Delray Beach woman $8.1 million in a lawsuit in which she claimed Michaels Stores Inc. violated employment laws.

Jurors determined that Kara Jorud was unjustly fired on Oct. 16, 2008, from her manager's position at a Boca Raton store after she claimed she was forced to work while undergoing chemotherapy, was harassed and accused of stealing from the arts and crafts store.  `It's really been awful, beyond awful,' Jorud said, `They made a difficult situation almost impossible.'

Officials with Michaels could not be reached for comment despite multiple calls to their lawyers and to their headquarters in Irving, Texas.

After a five-day trial, jurors deliberated for about five hours over two days before awarding Jorud $4 million for pain and suffering, $4 million for punitive damages and $100,000 for lost wages. The judge reserved the right to increase the award for lost wages up to $1 million, said Jorud's attorney, Brian McPherson.

Jorud was diagnosed with breast cancer on July 30, 2008, and later had a double mastectomy. She claimed in the lawsuit that she was pressured to return to work early during a six-week medical leave because she was expected to fix the high-volume store's failing operations.

`They accused her of theft,'  McPherson said. `And district manager Skip Sand harassed her because she missed so much work. He claimed he saw her theft on video and claimed she violated company policies that didn't even exist.'  He said Jorud hurriedly married her fiancĂ© to get on his health insurance plan after losing her insurance with her job.  Her daughter, Courtney, split high school classes with a full-time job to help pay the bills.  `I would be surprised if they just rolled over, but it just happened so we don't know if they'll appeal,' McPherson said."
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Employment laws are supposed to advantage employees, in reality this sort of outcome is very rare.  Great injustices happen all the time.  This case is remarkable from the standpoint of an angry Federal Court jury doing justice.  Wow.

Blackout Drinking! Uh, Where Did I Leave That Masterpiece?


MSNBC is reporting the story of the man who lost a valuable artwork while "blackout" drinking, here's their story:

"Call it the lost art of drinking responsibly: A man entrusted with helping to sell a $1.3 million painting said it disappeared while he was in a drunken haze, according to a lawsuit filed by a co-owner of the canvas.  James Carl Haggerty took the painting — noted French artist Jean-Baptiste-Camille Corot's circa 1857 'Portrait of a Girl'— to a Manhattan hotel on July 28 for a potential buyer to examine, Kristyn Trudgeon's lawsuit said. Then Haggerty hung out at the hotel bar and was seen on security cameras leaving the building with the painting after midnight, according to the lawsuit.

But there was no sign of the portrait on the cameras at his Manhattan apartment building when he got home nearly two hours later, the lawsuit said.  And the next morning, Haggerty told painting co-owner Thomas A. Doyle III he 'could not recall its whereabouts, citing that he had had too much to drink the previous evening,' according to the lawsuit filed Monday in a Manhattan state court.

[Ms.] Trudgeon is seeking what she says is the roughly $1.3 million value of the painting, which spent years in the collection of the Hammer Museum in Los Angeles, according to museum spokeswoman Sarah Stifler.

News service Bloomberg reported that Haggerty would have made $25,000 if the painting, which shows a young woman with a steady gaze, wide forehead and white lace collar, was sold.  A London dealer, Offer Waterman, had been interested in buying the picture, Bloomberg cited the complaint as saying.

Haggerty didn't immediately return phone messages left Tuesday at two possible home numbers for him and at his office at a company that leases out private jets.  Doyle isn't involved in the lawsuit and didn't return a message left for him at his office at the same jet company. He is a friend of Haggerty's and involved him in the effort to sell the painting, according to Trudgeon's lawyer, Max Di Fabio.

Corot, who lived from 1796 to 1875, was an important figure among the proto-Impressionist group known as the Barbizon School. Members turned their backs on Parisian urbanity to embrace a back-to-the-land emphasis on painting scenes of rural French life, often doing their artwork outdoors.

Trudgeon, who also was acquainted with Haggerty, owns a small portion of the painting, Di Fabio said. He said he had no information on whether it was insured.  Trudgeon 'was terribly hurt and dismayed and disappointed,' Di Fabio said. 'She just would like some answers.'"
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The answer is "blackout drinking."  The man entrusted with this painting , is a drunk.  He had so anesthetized himself he genuinely has no idea what he did with your painting.  In the years when I actively drank like this, "pig drinking" I would awaken and wonder how I got home, where my car was, did I hurt anyone, what I had done, how I would pull myself together to do what laid ahead that day, and so on.

For those of you who are not drunks, let me explain the irrationality of alcoholic drinking.  It is not the tenth drink that destroys you, it is the first.  You take a drink and you can not predict where your drinking will take you.  There is an apt Chinese saying: first the man takes the drink, then the drink takes the drink, finally the drink takes the man.  In other words, it is not the caboose of the train that kills you, it's the engine.  And when you are alcoholic, the drinking and the thinking combine in a whiplash to destroy lives and the sanity of the drunk and those in the lives of the drunk.

Wednesday, September 1, 2010

Andrew Thomas Concedes


Maricopa County's own, Andrew Thomas, (Sheriff Joe Arpaio's former legal gunslinger) has conceded the primary contest to his Republican primary opponent, Tom Horne.  Thomas who may well lose his law license labeled Mr. Horne a scam artist based on a history of financial shenanigans and a bankruptcy not disclosed on required state filings.  We'll see how this all plays out; suffice it to say the Arizona Supreme Court appears to be losing its patience for the games being played by Thomas et al.  

Boys With Toys: 64-Year Old Injured Man Being Treated by EMTs Tasered by Marin County Sheriff's Deputies in His Own House, Nice!


Big hat tip to KC Crime Blog for this illustrative story of Boys with Toys.  KGO-TV Channel 7, San Francisco reports:

"A Marin County man has filed suit against the Marin County Sheriff's Department for an incident in which he says law enforcement officers went too far. Peter McFarland was Tased inside his own home as his wife watched, begging officers to stop.  On June 29, 2009 McFarland and his wife Pearl were returning home from a charity fundraiser just before midnight. McFarland injured himself as he stumbled and fell down the long steps to his front door.

'Mainly it was to my knee and the front of my leg, my shin,'McFarland said.

His wife called paramedics, who helped him into the house and treated him. As the paramedics were leaving, two sheriff's deputies arrived.   'All of a sudden, they just showed up, they came in here like there was a fire going on, like a gunfight was going on,' McFarland said.   What happened in the following minutes was captured on a camera mounted on the deputy's Taser.

The deputy tells McFarland he is going to take him to the hospital because he may be suicidal.

'We want to take you to the hospital for an evaluation, you said if you had a gun, you'd shoot yourself in the head,' the deputy can be heard saying.

McFarland says it was just hyperbole. He was tired and in pain.

The deputy orders him numerous times to get up or else.   'Stand up, put your hands behind your back or you're going to be Tased,' the deputy says.   McFarland keeps refusing.  The exchange goes on for about five minutes; his wife keeps pleading with the deputies not to Tase him, saying he has a heart condition.   Then, McFarland tells the deputies in no uncertain terms to leave.  As he gets up to go to bed, McFarland is Tased. Not once, but three times.

'There's got to be a problem in terms of training and on supervising deputy sheriffs in the county; it's hard to imagine something so shocking could happen,' McFarland's attorney John Scott said.   McFarland says he never had any suicidal thoughts. In fact, he considers himself lucky to be alive.  'I'm a survivor of pancreatic cancer; one of 4 percent in this country,' McFarland said.

Scott says his client was arrested, jailed and charged with resisting arrest. A judge later dismissed the charge. Scott says the deputies had no search warrant or legal reason to enter McFarland's home and even if they thought he was drunk and suicidal, Scott says the Tasing was excessive force.   ABC7's calls to the Marin County Sheriff's Department were not returned"
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At the link you can watch the video of the incident.

Longwood, Florida Lawyer Suspended


You remember Albert Ford, II, he's the Florida lawyer caught on video trashing his former client's house.  He was quite the sensation on Bad Lawyer back in July , at the link you can link to the story with the video.  The Supreme Court of Florida has issued an emergency suspension, this is reporter Jeff Weiner's update for the Orlando Sentinel:

"A Longwood lawyer arrested in July on charges of burglarizing the home of a former client has been suspended by the Florida Supreme Court, The Florida Bar announced Tuesday.  Albert E. Ford II was arrested after police said he burglarized the home of Kasee Singh, a former client. Documents show Ford and Singh were locked in a dispute over fees.

'According to a petition for emergency suspension,' The Florida Bar said in a statement Tuesday, 'Ford appeared to be causing great public harm by engaging in threatening behavior toward a former client.'

Florida Bar spokeswoman Karen Kirksey said Ford's suspension will remain in effect 'until further order.'  Police say Ford, who specialized in environmental and land-use issues, was caught on surveillance video damaging Singh's Lake Mary house. Ford also sent Singh threatening text messages, police say."
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I confess, personally, to feeling low of spirit, so pardon me if I do not keep the pace I set in August.  I'll have some personal posts about directions and the path to wisdom not that I ever had much myself.  But I'm getting there.  Slowly.

Killing Your Toddler With Your Recreational Pain Killers

The Toledo Blade has this gut-wrenching account of the Liberty Center, Ohio mother convicted of involuntary manslaughter in the death of her toddler who somehow ingested her oxycodone.  This is Jennifer Feehan's story:

"A Liberty Center woman whose 13-month-old daughter died from a drug overdose was found guilty Friday night of involuntary manslaughter and child endangering.  The 12 jurors deliberated for three hours before determining that Jayme Schwenkmeyer, 24, should be held responsible for failing to protect her child.

Schwenkmeyer's daughter, Kamryn Gerken, died Aug. 15, 2007, after ingesting toxic amounts of multiple drugs, including the painkiller oxycodone and the anti-anxiety medication Xanax.

Standing between her attorneys, Schwenkmeyer covered her face with her hands and cried as the verdicts were read.

She faces up to 10 years in prison for involuntary manslaughter and a maximum of five years for child endangering. No sentencing date was set.  At the prosecutor's request, Henry County Common Pleas Judge Keith P. Muehlfeld immediately revoked Schwenkmeyer's bond and ordered a pre-sentence investigation. A deputy allowed her to embrace her husband before taking her to the Corrections Center of Northwest Ohio near Stryker.

Henry County Prosecutor John Hanna said afterward that he was 'very satisfied' with the verdicts.  'I felt that the jury listened to all the evidence and came to the correct conclusion,'  he said.

Mr. Hanna had told the jury at the beginning of the week-long trial that he didn't know how Kamryn received the fatal dose of drugs - whether she found them and put them in her mouth or whether she was given the drugs - but he said that didn't matter. Schwenkmeyer was not charged with murder, he said, but with failing to fulfill a parent's duty of care and protection for her daughter. He said that failure led to the child's death.

Schwenkmeyer did not take the witness stand, but jurors heard her tell a detective with the Henry County Sheriff's Office in a tape-recorded interview from November, 2007, that she regularly abused both Xanax and Oxycontin, prescription drugs she said were supplied to her by David Knepley, a man with whom she was living in Napoleon at the time of Kamryn's death.

Mr. Knepley, 50, faces trial Oct. 18 on the same charges.  During her trial, defense attorney Dave Klucas attempted to place the blame for Kamryn's death on Mr. Knepley, telling jurors in his closing arguments that Mr. Knepley had dumped 'a bunch of oxycodone in Kamryn's food'  while Schwenkmeyer was asleep.

Mr. Hanna countered that there was no evidence to support that theory.  'The drugs got into her system on the defendant's watch,'  Mr. Hanna told the jury. 'The drugs killed her, and the defendant is guilty on both counts.'  After the guilty verdicts were announced, Mr. Hanna declined to comment on how his statements about Schwenkmeyer's culpability would impact Mr. Knepley's prosecution, other than to say his trial 'would go forward as scheduled.'

Mr. Klucas had no comment on the verdict but said Schwenkmeyer would appeal.  Both Schwenkmeyer's and Mr. Knepley's trials had been delayed several times since the pair were indicted in 2008.

In January, their trials were again postponed after The Blade filed a motion with the Ohio Supreme Court seeking to overturn a gag order imposed by Judge Muehlfeld that barred the media from reporting on Schwenkmeyer's trial until a jury was seated for Mr. Knepley's trial.

While the judge claimed the gag order was the only way to ensure the court could seat a jury and ensure both defendants a fair trial, the high court sided with the newspaper, saying the order was unconstitutional and the judge must give equal weight to a defendant's right to a fair trial and the media's right to free speech and press."
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How?