I've prosecuted, and represented, violent criminals, drug dealers, and sex offenders. What class of clients has been the most universally reviled?

It's telemarketers. Hands down.

The Federal Trade Commission's legal team, to be blunt, is not the varsity. But in pursuing telemarketers they are merciless and relentless and constantly radiating contempt for the telemarketing defendants they sue. It doesn't matter that their legal work is substandard — particularly for federal court — because federal judges tend to give them a pass. I've never seen federal judges express such open contempt for a client, and so transparently disregard a client's procedural rights and cut slack to the other side, as I have in representing telemarketers. Moreover, even though I've represented sex offenders and gang members who have shaved their eyebrows and tattooed "FUCK YOU" over their eyes, I've never felt as despised as a lawyer as I have when I represent telemarketers.

I suspect it's probably because they're such scumbags.

Case in point: you know those robocalls you've been getting on personal lines and business lines and cell phones telling you that your vehicle warranty is about to expire, and that you need to buy an extended warranty, even if your warranty isn't expiring or you don't even own a car? Yeah, big surprise, it turns out that's a scam. In addition to robocalling everyone without any basis to think the recipients of the calls actually have a car warranty about to expire, if you bite they also mislead you about their affiliation with your car manufacturer and falsely claim that their $2000 – $3000 warranty is an extension of your existing warranty, which it is not. This week the FTC dropped the hammer on a bunch of them:

The complaint filed Thursday names Florida-based Voice Touch Inc. and two of its principals, James and Maureen Dunne. It also names Illinois-based Network Foundations LLC and a principal in that company, Damian Kohlfeld.

A second complaint names Florida-based Transcontinental Warranty Inc. and company President and Chief Executive Christopher D. Cowart. The FTC was immediately unable to provide contact information for the defendants. Representatives from Transcontinental Warranty and Network Foundations weren't immediately available for comment.

You can read the complaint against Christopher Cowart and Transcontinental Warranty over here. Cowart's already having a bad month because irritated people on whocallsme.com found his personal information, including his cell number, and have been calling him to complain.

Cowart, and the other defendants, are likely to find that federal judges will permit the FTC to freeze their assets based upon a relatively incompletely and clumsily compiled showing. The judges will appoint receivers to oversee the assets; these receivers are generally eager to please the FTC in order to get appointed again and again, and make some very nice coin over the whole process. Then, stripped of most of their assets, the defendants will be left to litigate on the cheap, finding that the judges will cut breaks to the FTC and hammer the defendants at every opportunity.

As an attorney, and someone concerned with constitutional rights and government power, I recognize intellectually that it's a bad thing when we single out any person or group and treat their procedural and substantive rights as less valuable than everyone else's. First they came for the telemarketers, and I said nothing, and so forth.

But since they're telemarketers, I'd be lying if I said I felt a lot of empathy.

Driving drunk just may have just gotten a hell of a lot easier. The Minnesota Supreme Court, like a Florida court before it, has ordered the State to turn over the source code to its breathalyzer or face having the evidence excluded. They can't, however, since the equipment manufacturer (a) is claiming that the source code is a trade secret and (b) is apparently beyond the subpoena power of the state court.

Demanding the source code has had mixed results. Courts in New York and Nebraska , for example, held that the prosecutors couldn't turn over the source code because it wasn't in their possession. Courts in Kentucky (where Intoxilyzer manufacturer CMI, Inc. was subject to direct subpoena) and Arizona have ordered the production of CMI's code. In New Jersey, Draeger Safety Diagnostics, Inc. made the mistake of intervening in the case and was directly ordered to turn over the source code for the Alcotest. A Florida court threw out breathalyzer results in over 100 cases when CMI refused to turn over the source code to the State. Minnesota is facing a similar problem with at least one case.

In (at least) Arizona, Florida and Minnesota, CMI's response to prosecutors facing the dismissal of their cases has been more or less the same: Fuck off. CMI has shown a remarkable indifference to the bind they are putting their customers in. CMI's intransigence here is stunning for so many reasons but the central one is this: if courts will not accept Intoxilyzer results as evidence, the Intoxilyzer is not an investigative tool, it is a paperweight. The long term result of keeping the code secret from prosecutors will be the demise of the business.

The difference in the approaches by Minnesota and Florida are another example of, as Ken discussed earlier this week, the difference between seeing prosecutions as a search for justice or a quest for convictions. Minnesota is suing CMI, arguing that it is a breach of contract to refuse to turn over the source code in machine readable form for production to the defendant. The Florida legislature overwhelmingly voted to change the law to make the source code immune from discovery. (NB: The difference may not be so stark. The vote in the Florida legislature was in 2006 and I can't tell if then-Governor Jeb Bush ever signed the law; the recent decisions in Florida courts compelling production suggest either he didn't or the Florida courts invalidated the law.)

I'm not sure how Florida's proposed law would be legal under the Confrontation Clause, and it may not even be necessary. In New Jersey, after losing the trade secrets fight, Draeger turned over its source code to the defense, whose expert claimed that there were considerable problems with the code. The company and State experts disagreed and convinced the court that they were right, upholding the results of the Alcotest.

If I lived in Minnesota I'd be extra-careful on the roads right now. Or maybe just have an extra drink.

Your kidding me, right, Price Waterhouse Coopers and former AUSAs?

Names excised to protect embarrassed colleagues.

Now, I don't like to pile onto South Carolina. Wait, yes I do. Case in point: South Carolina legislators want to educate kids about avoiding abuse in teen relationships, but don't want to erode traditional values by having educational programs mention gays and lesbians. Hence this immortal gem:

Bill sponsor Rep. Joan Brady said excluding gay relationships is fine and declared that, "Traditional domestic violence occurs in a man-woman, boy-girl situation."

Apparently there is a tv show that dares to answer the important questions:  Questions like, "Pirate vs. Knight," and "Viking vs. Samurai."  Who would win?

And television critics don't like it?  What the hell?

There is something fundamentally wrong with a person who doesn't wonder how a pirate would fare against a samurai., or for that matter how Freddie would do against Ash.  You can't trust critics, or the English departments they come from.

I don't vouch for this story, because it comes from an AM radio station, but considering Canada's record on speech generally, I'm inclined to go for it.

Watch what you say about mass-murdering terrorists in Toronto:

Approximately 40 people stood on the overpass, just north of Gerrard, with signs saying "Protect Canada, stop the Tamil Tigers." …

The signs were held as part of a counter-demonstration, at an event held by Tamil-Candadians.  It's worth pointing out that the Sri Lankan civil war has probably claimed 100,000 lives, many killed by the Sinhalese government but many also civilians killed by the Tamil Tigers.

The sentiment of these protesters was also seen earlier as a plane, carrying the same message, flew over the Tamil demonstrators at Queen's Park.

Police will be investigating the airplane message as a possible hate crime.

Is it insensitive to good Tamil-Canadians to say this?  Yes.  Should it be a crime to point out that, outside Canada and more importantly inside Sri Lanka, the leading edge of Tamil independence has killed more people than Al Qaeda ever murdered in its wildest dreams?

The Toronto police, I'm sure, have better things to do than investigate a few signs.  Likely no one will be charged, though again, given Canada's record I'm not sure.  The real problem is that, under Canadian law, the police have to investigate this in the first place.

Via Kathy Shaidle, who, as much as I disagree with her politically, knows a thing or two more than I ever will about Canadian speech laws, having been on the receiving end.

Perhaps the District of Columbia should apply for a kidnapping stimulus grant.  After all, jobs are at stake!

"There's no reason for them to sit around in a building waiting for a call. They had seven calls in an 18-month period," she said. "It's a waste of police officers."

The wasted police officers make up the District's hostage negotiation team.  The officers aren't actually being fired.  They're just being reassigned to other, less essential duties, like patrolling the streets during the approximately 360 days a year when hostage negotiation isn't called for.

Of course, that's a problem for the District's police union, which points out that our capital already suffers a tragic shortage of law enforcement officers trained to deal with hostage-taking.

While it's always satisfying to see a troll get his just desserts, it's especially satisfying when the troll is an agent of the United States government, goofing off on the public dime.

From the AntiPolygraph message board:

The poster LieBabyCryBaby has been banned. The decision to ban him from these forums comes after numerous violations of AntiPolygraph.org's posting policy. In his own words: "I come around every now and then to ruffle your feathers and laugh at you, and then I find other entertainment."

At this time, we feel it is appropriate to disclose LieBabyCryBaby's true identity: Special Agent Shawn Hacking of the Drug Enforcement Administration (DEA), currently assigned to DEA's Seattle Division.

The sort of behavior displayed on these forums by SA Hacking is particularly disturbing coming from a federal law enforcement officer. In view of the fact that SA Hacking at times posted from IP addresses registered to his employer, it is not clear whether his activity here is sanctioned by his superiors in the polygraph unit, Seattle Division SAC Arnold R. Moorin, or DEA senior management.

Of course I'm not in a position to say whether DEA Agent Hacking is indeed trolling anti-polygraph message boards, or creating sock puppets, but it would hardly be the first time a government employee has done something like this.  Perhaps Agent Hacking was investigating the AntiPolygraph site based on a tip from the Canadian government. Perhaps, like some government agents, he simply has a problem with those who dispute the reliability of lie detectors.

I will note that it is a very simple matter for the owner of a website or forum to determine where most traffic originates, and that most US government agencies do not mask their IP addresses.  I'll simply assume that this story is true, until the government sets the record straight.

According to the Velazquez Spanish-English Dictionary, La Verga refers to "The organ of generation in male animals, penis."

According to Venezuelan strongman Hugo Chavez, Vergatorio refers to "a quality, affordable handheld telephone."  No matter what millions of ignorant people think.

As for penisland, they really do sell high quality pens.

Ever since we wrote about Thomas Mundy, the guy who makes upwards of $300k per year by filing nuisance suits alleging small business violated California disability law, I've been getting press releases from the lawyers who successfully fought in in one of his cases. Successful, at least, in an American litigation sense — as I said before, they won the battle of trial and court costs, but lost the currently unwinnable war of legal fees.

Yesterday that firm — Call, Jensen & Ferrel — sent us another press release about a victory over a similar plaintiff.

Los Angeles, – A jury deliberated just 14 minutes today before rejecting a demand for over $100,000 because a disabled man was unable to "preen" himself in a Jack in the Box restroom mirror. (Marquez v. Jack In the Box, Inc., Case No. BC384442.)

Unless the defendant described himself as preening, I would have avoided that little dig in the a press release about one of my victories. But heat of battle, hot pursuit, still angry, yada yada yada.

Plaintiff Luis Marquez, a convicted felon and paraplegic, alleged that his civil rights were violated and that he was humiliated on over 100 visits to a Los Angeles Jack In The Box in 2007 and 2008. Specifically, Mr. Marquez alleged that the restroom mirror was "outside of his reach range" and prevented him from seeing his reflection.

Jack in the Box's defense was that Marquez was actually a vampire. No, wait, it was better than that:

Marquez' claims quickly disintegrated, however, when a Jack In the Box manager testified that Mr. Marquez had never even been to the restaurant, and pointed out that the restroom mirror had been removed due to vandalism before the dates that Mr. Marquez claimed to have been humiliated.

if that is a fair summary of how the testimony played out, the judge ought to refer the case to the District Attorney's Office for a perjury investigation. That's an act of faith roughly on the level of buying a lottery ticket, but if enough judges did it, the DA might start looking at devoting resources to prosecuting perjury in civil cases.

Finally, Mr. Muarquez admitted that he had learned from his attorney, Morse Mehrban, that he could earn larger settlements in disability lawsuits if he claimed to visit the same restaurant "hundreds and hundreds of times."

Morse Mehrban, you might recall, was also serial litigant Thomas Mundy's attorney. If this recitation of facts is true, then the trial judge ought to refer the matter to the California State Bar — a move slightly less pointless than a referral to the DA's office.

After deliberating just 14 minutes, the jury rejected Mr. Marquez's claims.

That helps restore some of my faith in juries. The lightening that is a rational jury verdict might strike somewhat more often than we fear.

Jack In The Box's lawyers, Scott Ferrell and Ryan McNamara, noted that their client has asked the Court to order Marquez and his attorney, Morse Mehrban . . . . , to pay Jack In the Box's legal fees, commenting: "Make no mistake – this account will indeed be settled."

Yeah, you guys know I think you're the cat's ass, but we both know you're blustering on that one, as the law stands. Unless you file a separate malicious prosecution suit — a time-consuming, expensive, and uncertain proposition — the chances of you getting fees under existing doctrine — and the chances of fees being upheld on appeal if you do get them — are thin indeed.

What we need is some sort of loser-pays law in California. Watch for the text of a proposed law here soon.

We've blogged before many times about how Canada's Human Rights Act is used as a weapon by unfettered bureaucrats and censorious serial litigants to punish unpopular (often justly unpopular) ideas. You can see some of our relevant posts here. Now it appears that the Canadian Human Rights Commission has discovered a new and exciting way to chill, and retaliate against, unpopular speech — by broadening the scope of its power to punish discrimination against, and speech unflattering to, "social condition."

Continue Reading »

This is it. This is how it all goes down. We are tampering with forces beyond the mortal ken, and it is rife with chances to go tragically awry. The endtimes are heralded by scientists decision to turn fire ants into zombies. My friends, I cannot emphasize this enough: this is a terrible idea. Have none of these people ever read a book or seen a movie. All we need is for one of the scientists to actually say the words "what could possibly go wrong."

As an aside, the idea that the larval stage of these creatures eats the brain, and yet the ant keeps wandering for a couple of weeks is fascinating and horrifying.

When I was a prosecutor, I generally practiced open-file discovery. That means that if I had a piece of evidence, unless I had a specific, articulable, and legally sufficient reason to withhold it, I dumped it in a box with everything else and shipped it to the defense as soon as I received it. Few things got held back: internal strategy and case evaluation memoranda, the home addresses and personal identity information about witnesses, the identify of confidential informants, and very rarely reports revealing confidential investigative means and methods that had not yielded evidence against the defendant. In many cases I wound up holding back nothing at all. I didn't bother with timing my disclosures to my own benefit; I generally sent things out the same day I received them myself.

Did I do this because I'm extremely ethical?

Nope. I did it mostly because I'm careless and lazy.

Continue Reading »

"Officials learned of the incident when a motorist called the town office shortly after 8 a.m. Tuesday and told assistant town clerk Shirley Bailey that “a moose just fell out of the sky.”"

THE SCENE: HEAVEN

Seraph 1: So how's it coming?

Christ: Fine. All the people have been raptured up. We're just rapturing up animals now.

Seraph 2: Coyotes?

Christ: No. They suck.

Seraph 2: Roger that. No coyotes. [Makes a check mark]

Seraph 1: You're doing it animal by animal?

Christ: Are you under the impression I'm short of time?

Seraph 2: Mooses? Moose? Meese? Whatever.

Christ: Uh … yeah, sure.

Seraph 2: Up you come, little mooseses.

Serpah 1: They're got to be a more efficient way.

Christ: Take it up with the Boss. Look, . . . wait a second. Did I say yes to moose?

Seraph 2: [Rolling eyes]: Yes. Yes you did.

Christ: Scratch that. I hate moose.

Seraph 2: But they're already halfway . . .

Christ: SCRATCH. THE DAMNED. MOOSE.

Seraph 2: FINE. [scribbles on paper]

(via Fark)

We've not written about the sad case of Jessie Logan, who killed herself last year after nude photos she'd "sexted" to another high school student got sent to other students and, well, you went to high school.  You can guess what happened next.

But last week Miss Logan's mother, Cynthia Logan, upped the ante.  Now she's filed suit for wrongful death against the recipient of the photos, the students to whom he forwarded them, Jessie Logan's high school, and the school's security officer, all of whom, allegedly, either spread the photos, or failed to prevent other students from behaving like beasts toward Miss Logan once the photos got around, and failed to charge the students who'd received the photos with a crime for … receiving the photos.  Photos that depicted an 18 year old girl, or, as the law refers to people like Jessie Logan, an "adult." Or as they referred to people like Jessie Logan when I came to be of age, a "Playmate."

A very young adult, to be sure, who did an incredibly foolish thing.  But as an adult, Miss Logan was free to do all sorts of dangerous things that adults do all the time, such as joining the Army, smoking cigarettes, driving an automobile at high speeds, or getting a credit card. And voting, though that's usually dangerous to other people, since 18 year olds don't earn enough to pay taxes.

Or for that matter posing for nude photos, and distributing them as she saw fit.

I don't blame Miss Logan's parents for their daughter's suicide, or their grief.  As Marc Randazza, discussing this case earlier, pointed out, the warning signs are generally obvious only in hindsight.  But as Scott Greenfield, also discussing the Logan case pointed out, most foolish choices have consequences, and the most foolish choice anyone made in this sad chain of events was that of Miss Logan herself.  An adult who was, as my grandparents would have put it in less progressive times, "free, white, and 21."  (A phrase rendered obsolete by the Civil Rights Act of 1964 and the 26th Amendment).  And as Marc and Scott have also mentioned, though not with as much vulgarity as I do, the elder Mrs. Logan has been working the publicity circuit as hard as she can.  She seems poised to position herself as the head of a future Mothers Against Sexting.

Of course when word gets around, we can expect Oprah, Good Morning America, Katie Couric, and the like to treat this case as one of utmost importance and to demand a ban on "sexting," camera phones, and nude photos of young adult women.  All of these outlets, it's worth noting, like my priggish, puritan co-blogger Ezra, think it's perfectly acceptable to vilify a 20 year-old as a near-whore for for making the same choice Jessie Logan made, if her political opinions are incorrect.

As an old man of 41, I'd be happy to increase the ages for drinking, smoking, and sexting.  And voting, don't forget voting.  But at some point, a child reaches adulthood, even if it's as old as 40.   As a 41 year old, I'm not comfortable with giving up digital cameras.

Nor am I comfortable with giving up some level of personal responsibility for foolish choices made by adults, at whatever age the law determines you kids to become adults, just to please Oprah and Cynthia Logan.