Is This Bar Discipline Worthy?

One of the Casey Anthony's defense lawyers, Cheney Mason, responded to television and news photographer cameras trying to intrude on the lawyers' post-trial supper with the pictured gesture.  Another lawyer filed a Bar complaint claiming the gesture reflects poorly on Florida lawyers.  You be the judge, fair comment by Mason? 

Freedom to Post "Crap"

Staff writer,  Peter Mucha at Philly.com is reporting on the local man who filed a lawsuit over a township ordinance on vulgarity.  Essentially, the David Kliss was protesting a Township sewer assessment and ran headlong into the Township's ban on "vulgar" language.

"A homeowner has filed suit against a Central Pennsylvania town for making him remove the word crap from two protest signs he posted in mid July.

They read: '$10,000 TO TAKE A CRAP.'

David Kliss of East Hanover Township displayed them because he was upset that a mandated sewer tie-in would cost him thousands of dollars, according to the suit, filed with the U.S. District Court in Scranton.

About a week later, the township's code-enforcement agency notified Kliss, who lives at 436 Pheasant Rd., that he was violating a zoning ordinance that 'No Loud, Vulgar, Indecent or Obscene Advertising matter shall be displayed in any manner.'  He also was warned the signs were illegally attached to trees on right-of-way property, and informed that he needed a zoning permit.  Kliss complied by attaching the signs to stakes on his lawn and covering the offending word with white paint.

He resisted the urge to use a synonym, such as dump, leaving the signs to read, '$10,000 TO TAKE A.'

Clearly, he didn't do so happily.

The suit contends that the ordinance fails to define vulgar, indecent and obscene, that the signs had no graphic images, and that the township was denying Kliss his constitutional rights to freedom of speech, freedom of the press, petitioning the government and due process.  Besides, the word crap just isn't that offensive, said Kliss' Kennett Square attorney, Aaron Martin.

'In my brief, I used an episode of Seinfeld from 1993, in which the word crap was used four times in 15 seconds, to demonstrate that our society does not view that word as unspeakable,' he said.  (The episode is 'The Old Man,' and Kramer and Newman are the utterers.)

'What's happened is that the township has used the obsenity ordinance to squelch political speech,'  Martin said.  Besides lifting the vocabulary restriction, the suit asks for unspecified damages and recovery of legal fees and other costs.

East Hanover Township is in Dauphin County, about a dozen miles east of Harrisburg.  'I don't think we're going to have any comment,' said township solicitor Scott Wyland, an attorney with Hawke McKeon & Sniscak in Harrisburg. 'The matter is under review.'"
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Mr. Kliss has a winner with this lawsuit. 

East Hanover Township might want to look at the U.S. Constitution and possibly get a memorandum of law before enacting ordinances like this one on "vulgarity."  The ordinance is purely prior restraints on speech.  The township needs to move quickly and resolve this lawsuit if it wishes to cut their exposure for court costs and Mr. Kliss' attorneys' fees.

Bad Poetry--That'll Get You Jailed

Johnny Logan Spencer, Jr. is not Ezra Pound.  I thought of Ezra Pound when I first saw this story and the mugshot of Mr. Spencer.  Like Pound, Spencer finds himself incarcerated for his words, in Pound's case the crazy and paranoid genuis was spewing propaganda from Italy during WWII for the axis powers.  In Johnny Logan Spencer, Jr.'s case his poem, the Sniper, posted on a neo-Nazi website got him arrested for threatening the President of the United States.  According to a report in the Lousiville Courier-Journal, the "poem" included the line "DIE negro DIE"--I know what you're thinking, poets so rarely use all-caps and it's refreshing to see this artist utilizing this ignored technique.  Threatening the president of the United States is a federal offense, no surprise there--it will get you 5 years in prison and a quarter-million dollar fine.

Now, maybe I'm guessing you're wondering how this "poem" constitutes anything other than wildly obnoxous, and odious free speech?  Yeah, me either.  I'd be surprised if this turns into a full-fledged prosecution. 

The story comes on the heels of reports that certain right wing ministers including Wiley Drake, pastor of First Southern Baptist Church in Buena Park, Calif., and former running mate of American Independent Party presidential candidate Alan Keyes, who told Fox News Radio that he's calling for "imprecatory prayers" asking God to kill the President! 

Wow!  We live in a violent culture, folks, and Louisville may have its poet laureate. 

Flying the Flag Upside Down, That's a Prosecution!

The Bad Lawyer is a US Army veteran, a child of the Eisenhower era, and a politically centrist guy.  I believe in obeying even laws I disagree with, not taking what's not mine, and reporting and paying taxes.  I fly and American flag, and I am very proud to be an American.  Without a doubt I believe in the ideals of our Constitution.  So this story from the Pittsburgh Trib website about the prosecution of a local man for flying a "flag upside down,"  has me wondering what the hell is going on.  Here's the article by reporter Bobby Kerlick:

"A Butler County district judge issued an arrest warrant Tuesday for a man who failed to show up for a hearing on a charge of flying an upside-down American flag. State police in November charged David M. Rice, 50, of Muddy Creek with committing insults to a national or commonwealth flag after a passing motorist called to report the flag was inverted.  Rice was scheduled for a preliminary hearing this morning before District Judge Clifford Woessner.

The little-used criminal charge is a misdemeanor that experts said exists in a gray area of law, and sparked a federal lawsuit in Eastern Pennsylvania in 2008. Rice said the flag display wasn't intended as a political statement or meant to offend anyone. He said it was windy when he put the flag up.  According to a police affidavit, Rice was irate, yelled profanities and stepped toward a state police officer who knocked on his door about the flag. The trooper pushed him back and arrested him."
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First, you must show up for court.  Not showing up tends to piss off the Judge and will get you arrested.

Secondly, how is this criminal statue constitutional?  The last time I looked at the U.S. Constitution, rights were conferred on citizens, not objects or symbols.  The right of Free Speech is conferred on people not national flags.  Here, we have a guy who claims he was trying to exhibit his national pride by flying a flag, albeit, sloppily--what sort of appropriate criminal justice/state action  supports a shouting, shoving and summons? 

Lying About Medals "Protected Speech?"

There's an interesting article at the Missoulian, by Dan Elliot on peresons who are being prosecuted under a federal law called the Stolen Valor Act.  The law makes it a crime to claim to have received a medal from the U.S. Military.  U.S. District Courts are hearing challenges to prosecutions under the statute on Free Speech grounds. 

Let's face it, anyone who lies about having been in the military and receiving a medal is a scumbag.  And among those being prosecuted under the statute, there are some brazen scumbags.   Being an army veteran, I sympathize with the goal of the law--but criminal prosecutions?  Elliot's article fleshes out the debate, I quote:

"The federal courts are wrestling with a question of both liberty and patriotism: Does the First Amendment right to free speech protect people who lie about being war heroes?  At issue is a three-year-old federal law called the Stolen Valor Act that makes it a crime punishable by up to a year in jail to falsely claim to have received a medal from the U.S. military. It is a crime even if the liar makes no effort to profit from his stolen glory.  Attorneys in Colorado and California are challenging the law on behalf of two men charged, saying the First Amendment protects almost all speech that doesn't hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.

Jonathan Turley, a professor at George Washington University Law School who is not involved in the two cases, said the Stolen Valor Act raises serious constitutional questions because it in effect bans bragging or exaggerating about yourself.  'Half the pickup lines in bars across the country could be criminalized under that concept,' he said. [BL:  One wonders how Professor Turley knows this?]

Craig Missakian, a federal prosecutor in the California case, argued that deliberate lies are not protected. He also said the Constitution gives Congress the authority to raise and support an army, and that includes, by extension, 'protecting the worth and value of these medals.'  The Stolen Valor Act revised and toughened a law that forbids anyone to wear a military medal that was not earned. The revised measure sailed through Congress in late 2006, receiving unanimous approval in the Senate.  Dozens of people have been arrested under the law at a time when veterans coming home from wars in Afghanistan and Iraq are being embraced as heroes. Many of the cases involve men who simply got caught living a lie without profiting from it. Virtually all the impostors were ordered to perform community service.  In one case, a man posing as a Marine war hero was accused of using his hero status to receive discount airline tickets and a free place to stay near Phoenix.  Defense attorneys say the law is problematic in the way it does not require the lie to be part of a scheme for gain. Turley said someone lying about having a medal to profit financially should instead be charged with fraud.  One of the men challenging the law is Xavier Alvarez of Pomona, Calif. He had just been elected to a water district board in 2007 when he said at a public meeting that he was a retired Marine who received the Medal of Honor, the nation's highest military decoration.  His claim aroused suspicion, and he was indicted 2007. Alvarez, who apparently never served in the military, pleaded guilty on condition that he be allowed to appeal on the First Amendment question. He was sentenced to more than 400 hours of community service at a veterans hospital and fined $5,000. The case is now before a federal appeals court.

The other person challenging the law is Rick Glen Strandlof, who claimed he was an ex-Marine wounded in Iraq and received the Purple Heart and Silver Star. He founded an organization in Colorado Springs that helped homeless veterans.   Military officials said they had no record that he ever served. He has pleaded not guilty, and a judge is considering whether to throw out the charge.

Attorneys challenging the law say that lying about getting a medal doesn't fit any of the categories of speech that the U.S. Supreme Court has said can be banned: lewd, obscene, profane, libelous or creating imminent danger to others, such as yelling fire in a crowded theater.  Army veteran Pete Lemon of Colorado Springs, who received the Medal of Honor for turning back an enemy assault and rescuing wounded comrades in Vietnam while injured himself, supports the law, saying that pretending to have a medal can bring undeserved rewards.  Doug Sterner, a military historian, said the law embodies the wishes of the nation's first commander in chief, George Washington. Sterner noted that Washington created the Purple Heart, the nation's first military decoration, and wrote: 'Should any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished.'"
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Like I said, some scummy people are caught up in this "speech" crime.   I do like Jonathan Turley's sugggestion that persons shown to have gained something of value be prosecuted for fraud, but the law does not easily dsitinquish itself from the First Amendment protection for free speech--even odious speech is protected.  Hell, one of shock jocks signature bits is his preposterous claim to having been a Viet Nam vet.   I don't think anyone would view Stern's claims as anything more than "attempted satirical humor." 

Bad Idea--Rap Song About Blowing Away Your Military Commanders

The Savannah Morning News has this item about a Fort Stewart, Georgia, Specialist who got his ass jailed for composing a rap tune protesting the Army's "Stop-Loss" policy which holds soldiers beyond their enlistment termination dates during the current wars in Iraq and Afganistan.  Specialist Marc A. Hall is doing a month in jail for his hip hop chops.  Specialist Hall raps about grabbing a rifle to spray bullets and "watch all the bodies hit the floor., " according to the report. 

Note:  traditional "free speech" rights under the U.S. Constitution are not applicable to soldiers in uniform. In light of the massacre at Fort Hood, we can file this item under Bad idea-Good idea.  Bad idea, threatening violence in an angry rap song;  good idea, removing Specialist Hall from the general population immediately.

Cyclists Are Targets, Facebook, That's OK!

Facebook has refused to take down a page advocating violence against cyclists accordig to SFStreets.org.

I suspect that the site may be ironic, but cycling advocates have been demanding FB take it down.  FB has refused, according to SFStreets.org.

The Bad Lawyer Blawg is written by both a Bad Lawyer and a cyclist.  In the latter category, the Bad Lawyer has twice fallen prey to malicious motorists and once to a clueless driver.  Nonetheless, I continue to ride.

I'm with FB, on this one.  As a much wiser cycling-journo-attorney told me recently, the facebook site creates an interesting resource for the police and prosecutors to look at when investigating driver-crimes against cyclists.  One of the elements that sealed the deal for the prosecution of Dr. Christopher Thompson was his prior acts.  I wonder if he'll be able to link to this site from his prison cell where he will be spending the next 5 years?

Mouthpiece Hall of Infamy: Geoffrey Fieger

Let's see, I think Geoffrey Fieger is the first living honoree in the Mouthpiece Hall of Infamy.

In some ways Michigan trial lawyer Geoffrey Fieger is a hero of mine. He is a sometimes "cause" attorney and beyond-category trial lawyer, sometimes; Fieger is also the guy who, -- among all the shit he says, sometimes says:  what needs to be said to those who need to have it said to them.  He is a verbal flame-thrower.  He is a royal pain in the ass.  In other ways I'm totally repulsed by what he says and does, and more importantly how he says it.  Fieger is most famous for representing Jack Kevorkian, and yet in legal circles he is probably best known as a spectacularly successful personal injury attorney who gets whacked by the legal authorities for outrageous courtroom conduct and language.

Fieger ran unsuccessfully as a democrat for Govenor of Michigan.  Subsequently he and a law partner were criminally prosecuted for illegally funneling money to the John Edwars campaign.  The great Gerry Spence represented Fieger and his law partner obtaining acquittals on all counts.  Recently Fieger settled civil election law charges stemming from the same allegations by agreeing to pay fines of approximately $120,000.

Fieger's best momenst as a "cause" advocate has been his advocacy on behalf of children;  although, I really do admire Fieger's success on behalf of Kevorkian. In all the criminal matters where Fieger represented Kevorkian, Kevorkain was acquitted. Kevorkian's conviction for manslaughter followed a trial where Kevorkian insisted on representing himself.  Self-representation as I've noted before,  is always a bad idea.

Fieger's problem, in my opinion,  is that his courtroom advocacy skills frequently crossover into outrageous, sanctionable, and reversible error--thereby costing his clients.  This is his Achilles' heel, he ends up screwing  the client.   Twice (that I know about, there may be other unreported examples) enormous verdicts:  in Ohio a $30 million dollar jury verdict was vacated due to Fieger's discourtesy; and, alleged trial misconduct in Michigan resulted in the striking of a $15 million jury verdict by appellate courts.  The focus in each case has been on Fieger's discourtesy and flagrant dissembling in court.  Fieger has this tendency according to both Ohio and Michigan of mischaracterizing testimony given on the stand to frame follow up questions that contain grossly false and insulting material. In the Michigan case Fiegere claimed that the defendant doctor was screwing the nurse when he should have been taking care of the patient who had a bad medical outcome. The problem with this "inflammatory" claim was that it was  not supported by a shred of evidence in the record--this at least according to the Michigan Supreme Court, whose opinion is attached via link at the bottom of this post.  The Ohio Supreme Court justice who would have sustained some of the verdict for Fieger's client (that is a Justice who was sympathetic to the plaintiff) suggested that a future a trial court not permit pro hac vice admission (limited admission to practice law in a state where an attorney has not obtained licensure) of Fieger.

After the Michigan Court of Appeals reversed the $15 million dollar award, Fieger who broadcasts legal commentary from his offices in Michigan, made remarks which were so over the top that in 2006 the Michigan Supreme Court publicly reprimanded him (the link to the Supremes Order is at the bottom of this post, the order itself and the personalities and narratives inherent in the order could support a treatise.)

There is very little doubt in my mind that the disciplinary authorities of most other states would have permanently disbarred Fieger based on quoted language detailed in the Michigan opinion the essence of Fiegere's remarks involved sticking objects up the rectums of the appellate court judges and doing various harm to them.  These broadcast remarks coincided with a period in which the court case while no longer pending was in a "reconsideration" period meaning it "could" have gone back to the judges Fieger disparaged.

Fieger is arrogant, rude, obnoxious, abrasive, and according to the courts that have reversed him, a liar.  On the other hand many of these same folks, the Judges who are the beneficiaries of the largesse of insurance companies, chambers of commerce, medical-industrial complex that Fieger is a sworn warrior intent upon opposing.  Fieger is a deeply flawed, but important voice in the wilderness.

It is not a uncommon experience of mine that I've sit in the elegant, marbled mansions of the lucky ones, at the firms with silver service, payroll, and accounts payable departments where the hallways are lined with expensive bri-a-brac, antique furniture, Persian rugs--frequently you will see Hogarth prints.  Which is an ironic thing to find in their offices, Hogarth's object of contempt being precisely these pompous asses. An example of Hogarth on the Justices:

Leaving aside the failure to of Fieger to his client's best interests, (and don't get me wrong, this is my criticism of Fieger), what Fieger is doing is not one whit of difference from what Hogarth did visually and what so many other flamethrowers of other generations have done is total exasperation with Judge Irishname, Judge Italianname, Justice Retardo, Judge AreThereNotPorrHouses, Judge Weirdname and so forth.  A government of and by and for the people is . . . supposed to be FOR THE PEOPLE.

I've been reading Fieger's blog, and maybe I'm projecting, but I sense regret, anxiety, and questioning.  While I disagree with a lot of his message, his manners, and his methods, I recognize Fieger to be at bottom a Bad Lawyer par excellence!

http://www.michbar.org/opinions/supreme/2006/073106/32684.pd

also, Geoffrey Fieger has a blawg:  http://fiegertime.wordpress.com/

a website:  http://www.fiegerlaw.com/about.php

FurtherProof that it is Dahlia Lithwick's World and we just live in it

Once again the final word on the Supreme Court follies, is Dahlia Lithwick's http://www.slate.com/id/2231644/pagenum/all/#p2