Archive for July, 2011

For those living under rocks or in soundproof chambers, here’s a review of a few legal events of the past few weeks (trigger warning for sexual assault issues):

• Now-former IMF head Dominique Strauss-Kahn, accused of and indicted for sexual assault, has been released from house arrest, and prosecutors are considering dropping the charges, due to problems with the case related to the accuser’s credibility.
• Casey Anthony, mother of deceased 2 year-old Caylee Anthony, has been acquitted of Caylee’s murder but convicted of lying to police.
• Jamie Leigh Jones, a Texas woman who alleges she was drugged and raped by a fellow KBR employee while she worked as a contractor in Iraq and then imprisoned by her employer, lost her civil claim against KBR (also at least partly due to credibility issues).

Here we have three cases that strike incredibly sensitive nerves. One involves the murder of a child, and two involve rape. In all cases, the alleged aggressor seems to have prevailed. But the results of these legal proceedings do not mean that DSK’s accuser was not raped, that Casey Anthony is not a murderer, or that Jamie Leigh Jones was not raped and imprisoned in a shipping container. Prosecutors in New York may no longer feel that they could win a prosecution against DSK with the evidence they have, making it not worth the colossal expense of continuing the case. Florida prosecutors did not prove beyond a reasonable doubt that Casey Anthony murdered her daughter. A jury did not find a preponderance of evidence to support Jamie Leigh Jones’ case. In the last two cases, these were the conclusions of lawfully empaneled juries. We may not like the results. The results may make us sick to our stomachs. What is important, though, is that the system appears to have worked the way it is supposed to.

True, the victims did not get “justice” in these cases, but that is not the point of judicial proceedings. Alan Dershowitz wrote in response to the Anthony trial:

‘This case [is] about seeking justice for Caylee . . .” So argued the prosecutor in the Casey Anthony murder case. He was wrong, and the jury understood that.

A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That’s because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

A criminal trial is neither a whodunit nor a multiple choice test. It is not even a criminal investigation to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt.

Even if it is “likely” or “probable” that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.

If we try to go outside of the system of trial by jury, we become no better than an angry mob. A proposal of sorts has already appeared based on frustration over the Anthony verdict:

[Senate Minority Leader Mitch] McConnell drew a lesson Sunday from that case in connection with the debate in Washington over whether to try suspected terrorists in federal courts.

“These are not American citizens. We just found with the Caylee Anthony case how difficult it is to get a conviction in a U.S. court,” McConnell told “Fox News Sunday.” “I don’t think a foreigner is entitled to all the protection in the Bill of Rights. They should not be in U.S. courts and before military commissions.”

McConnell is only correct if the whole purpose of a trial is to secure a conviction. I don’t particularly want to get into the issue of terrorism trials here, but the apoplectic reactions to the combined acquittal/conviction of Ahmed Ghailani for the 1998 U.S. embassy bombings certainly show that for many, there is no point to having a trial if a conviction is not guaranteed.

In a civil case like Jamie Leigh Jones’, “justice” is more of a clear goal. Rather than proof “beyond a reasonable doubt,” a civil claimant need only show a “preponderance of the evidence,” meaning a 51% or more likelihood that their claims are true. Again, failure to convince a jury does not automatically mean the claims are false. It means that the evidence is lacking to allow for a legal remedy or punishment.

It is the responsibility of the plaintiff and the plaintiff’s attorney in a civil matter, and of the prosecutor in a criminal matter, to meet these burdens of proof. It is the responsibility of the judge to make sure the jury only hears relevant, probative evidence that does not unfairly prejudice one party or the other. The system is not perfect, but again, it is preferable to an angry mob.

There is no requirement that we like the outcomes of these cases. There is also no guarantee of justice in this world. There is, however, a system that has been in place for centuries that is imperfect, often inefficient, frequently infuriating, and the best protection we all have against even greater injustices than the occasional acquittal or dismissal. That is our system of trial by jury. To quote Voltaire, “It is better to risk sparing a guilty person than to condemn an innocent one.”

“R v. I” is just my shorthand for Rakofsky v. the Internet, in case you were wondering. As I’ve said before, others have addressed this case with much greater wisdom than I, but a few notable events have appeared on my radar.

1. “Rakofsky Effect” has made it into Urban Dictionary:

Infinite pleading amendments as the unintended consequence of suing to censor your critics.

This term is in reference to Rakofsky v. The Internet, a defamation suit filed by Joseph Rakofsky against approximately 80 defendants, including The Washington Post Company, screen names, email addresses, and various esteemed lawyers who publicly on their websites condemned Joseph Rakofsky for bringing shame upon the practice of criminal defense and the legal profession. As the story caught fire across the blogosphere, plaintiff Rakofsky continually amended the suit, adding new defendants seemingly every time a new individual on the internet spoke critically of him, which only prompted wider criticism, thus creating a self-perpetuating cycle.

This lemur has nothing to do with the case I am discussing. He's just cute.

There’s also a Twitter account I hadn’t noticed before.

2. This may be completely unrelated, it may be completed related, or it may be some strange meta-narrative on the whole strange saga of young Rakofsky. On June 30, an ad appeared on New York Craigslist looking for a lawyer to handle a large defamation case, offering $200/week plus $150 per court appearance (this has since been changed to “Compensation to be negotiated”). First, Joe DePaola tweeted about it, and Ryan at Absurd Results blogged about it. Then my fellow defendant George M. Wallace made note of it in his weekly update on the case.

The ad is a bit long to quote at length, so I have a couple of screenshots for your enjoyment.

The ad does not identify the person(s) seeking an attorney. It could be you-know-who, or it could be another New York litigant suing a large group of defendants for defamation. One thing is clear, though: this seems a singularly poor method of finding an attorney. Fellow defendant Scott Greenfield said it best:

As enticing as this offer might seem at first blush, it reflects a problem.  Could it be possible that the reason that the litigant who found it necessary to solicit a lawyer blind on the internet can’t find a lawyer otherwise?  Lawyers are a dime a dozen, taking on dubious causes all the time if there is even the slightest hint of making a buck somewhere down the road.  Why, then, does the person who has carefully crafted his requirements for his lawyer found it necessary to go to the virtual street and solicit for anyone, anyone at all, willing to take him on?

What if the ad-placer went from lawyer to lawyer, knowing a few who could be asked to fill the shoes he feels are so vital to his cause, and was told that despite their hunger and desperation, their willingness to take on pretty much any case that held any potential to make a buck, they would not take his?  This would seem to be as clear a message that his cause was not just, not right, a horrible loser.

Who is this mysterious seeker of legal services? We may never know for sure, but his/her case seems to parallel one that is familiar to me. I will say this: we have a lot of lawyers in America right now. Some are quite good, some are not quite so good, and all of them probably need more than $200 per week to really focus attention on a case.

A few weeks ago, Zeta and I went downtown to join in an organized dog walk put on by a local animal welfare group. About a dozen people, with over a dozen dogs, took to the trail around Lady Bird Lake in the late morning heat. Zeta loved it–I must admit I don’t get her out of the house as often as I should, but then we are having a ridiculous heat wave in Austin right now.

Zeta really doesn’t enter into this story, as she remained oblivious to the finer points of human interaction. This is more about human behavior. One man brought his two dogs with him on a split leash. The dogs were certainly rambunctious, and it seemed like they were not too accustomed to being out among other dogs. They would sometimes quickly lunge at other dogs, but I could not tell for sure if they were doing this with any aggression or if it was just an attempt to play. I know my dog, when she is leashed, can make some sudden movements out of sheer excitement. The man generally kept the dogs under control. I was concerned at times about the way he seemed to be disciplining them–there was a lot of yelling, and the occasional sudden move toward one dog or the other, as if to threaten something. I didn’t say anything, as I hadn’t seen anything specifically objectionable.

Near the end of the walk, that changed. I was on one end of the group and this man was at the other. Out of the corner of my eye I saw his leg start to move, and I heard a sound like a field goal kick, followed by a whimper. A sense of shock delayed my reaction, but others standing closer to the man were quick to inform him, firmly yet as politely as possible, that kicking his dog would only make the problems worse. The man’s reaction was somewhere between defiant and apologetic. I do not think, based on my limited observations, that these dogs are being routinely abused, but nothing excuses the kick that I saw.

I think the people who were there did the best they could with the situation. It would not do any good to attack this guy, verbally or physically, and all anyone could do is inform him that what he did was wrong. This got me wondering, though, what any of us could have done if we suspected these dogs were being routinely abused. Of course the man could be charged with animal cruelty and could face fines and jail time, but what would happen to the dogs? Specifically, can one individual step in and rescue a dog or dogs from an abusive situation?

Yes and no, as it turns out.

This is addressed in Chapter 821, Subchapter B of the Texas Health and Safety Code. According to the statute itself, a “peace officer or an officer who has responsibility for animal control in a county or municipality” who thinks an animal is being abused “may apply…for a warrant to seize the animal.” If the officer can show probable cause, the judge or magistrate may order the animal taken into custody. The animal gets impounded, and a hearing must be held within 10 days to determine whether cruel treatment has occurred.

A private citizen does not have the power to petition a court on behalf of an animal believed to be abused. Furthermore, if a judge orders a warrant for the animal, the animal gets impounded, which typically means the animal goes to a public shelter or a private shelter contracted to the city or county. It’s far from ideal, but hopefully it would be better than staying in the abusive environment.

The animal’s owner can present evidence at the hearing. If the owner has a conviction or finding of animal cruelty in a criminal case involving this animal, that is automatically admitted as evidence of abuse. The owner’s statements at this hearing cannot be used against the owner in a criminal prosecution for animal cruelty, so the owner can freely present evidence and testify without Fifth Amendment concerns. The statute does not say what the burden of proof is for the hearing, but since it is a civil matter it is probably a preponderance of the evidence standard.

If the court finds that no abuse has occurred, the animal is returned to the owner. If the court finds that abuse has occurred, it gets complicated.

If the court finds that the animal’s owner has cruelly treated the animal, the owner shall be divested of ownership of the animal, and the court shall:

(1)  order a public sale of the animal by auction;

(2)  order the animal given to a nonprofit animal shelter, pound, or society for the protection of animals; or

(3)  order the animal humanely destroyed if the court decides that the best interests of the animal or that the public health and safety would be served by doing so.

This is a tough thing to wrap one’s head around. On the one hand, these laws recognize and protect the rights of animals to be free from abuse and pain. The statute that criminalizes abuse of “nonlivestock animals” defines “cruel manner” as “a manner that causes or permits unjustified or unwarranted pain or suffering.” The statute that protects cruelly-treated animals allows for the prompt removal of an animal from an abusive situation. This is analogous to the statute allowing the state to take possession of children when there is an immediate danger to the child’s health or safety. On the other hand, these laws treat animals as personal property to be sold once the owner’s rights have been terminated by the court.

We don’t have to solve the property question right now, though. An animal has value sufficient to warrant legal intervention if abuse can be shown to have occurred. It requires the involvement of a police or animal control officer, which may or may not be easily available depending on where you live. Of course, I can only speak to the laws in Texas, but I suspect other states may have similar procedures.