Thoughts on a Thursday
The other day I was sitting over at the Justice Center, waiting for a prosecutor to show up for a pretrial, when I overheard two other lawyers talking about the birthdays they'd just had. One had turned 77 the week before. The other topped him; he was 78. I went in and told the bailiff that if she saw my sorry butt in these halls ten years from now, let alone twenty, she had my full consent to beat me to death with a tire iron. She smiled sweetly and said, "Do I have to wait the ten years?" Probably not... Frankly, at this point I'd rather spend my declining years saying "Welcome to Wal-Mart" than hustling appointed crack pipe cases at $400 a pop.
But thoughts of my impending mortality gave way to glee when I read this story:
Proceedings have been delayed in a California misdemeanor case in which the defense is claiming that police brutalized their client with a stun gun during his arrest at a shopping mall last year. That's because the defense team is now being criminally investigated for allegedly violating human experimentation laws by repeatedly using a stun gun on their client themselves during an evidence-gathering effort in a law office.
As the Daily Bulletin of Ontario, Calif., recounts the story, "The revelation came after a bizarre court hearing on Wednesday in which the attorney, Peter Schlueter, played a videotape showing his police tactics expert, Roger Clark, repeatedly zapping the client inside Schlueter's San Bernardino office." Clark also reportedly tasered Schlueter and his twin brother.
Although there are any number of clients I would've liked to Taser during my career, I don't think I would've been dumb enough to tape me doing it, and then show it in court.
Thoughts of that led me, naturally, to the contest over on PrawfsBlog to name your favorite bad legal argument. One of the best was an oral argument before the 7th Circuit a couple of years back, in which the defendant's counsel was contending that the police use of a drug-sniffing dog on the defendant's car during a traffic stop was an unreasonable search. This argument might have fared better had the Supreme Court not issued the decision in Illinois v. Caballes, rejecting that very contention, just a few months earlier. The hopelessness of the attorney's cause is demonstrated by this exchange:
Judge Sykes: Any way to distinguish [Caballes]? I mean I understand that you object to the premise.
Lawyer: I hope you can find one.
Judge Bauer: Well, what you want us to do is overrule the Supreme Court.
Lawyer: I want you to help me distinguish it, Judge. I am very disturbed.
Judge Bauer: You can be disturbed on your own free time. Why are you intruding on mine?
Here's a link to the actual oral argument; right-click on oral argument, choose "Save Target As," then download it and play it on your audio player. It's only about five minutes. After listening to it, you won't be so surprised to learn that the attorney was arrested for cocaine possession about six months later.
My nominee for bad legal argument, at least of the past week, would be the 10th District's decision in State v. Tillis. In reviewing the evisceration of appellate review of sentencing wrought by State v. Foster, the court said that appellate review was still available to correct an abuse of discretion, and gave this helpful example:
For instance, if a trial court gave disparate sentence based upon race, gender or some other suspect classification, review for abuse of discretion would be appropriate.
Yeah, I suppose if you were handling an appeal where the trial judge said that she was giving a harsher sentence to a defendant because he was black, you could argue abuse of discretion. You might also want to throw in the language of 2929.11(C), which specifically prohibits a court from basing a sentence on race or gender. And then there's that pesky Equal Protection Clause in the 14th Amendment of the US Constitution...