I can't say that I've tried Taco Bell's Doritos Locos Tacos, but it seems as though I'm in the minority. The menu item introduced last year has been so popular that it's helped create 15,000 new jobs for the fast food chain, Taco Bell CEO Greg Creed says. More than 1 million of the tacos are reportedly sold every day, with more than 500 million sold since the product was launched. [This Fast Company article provides an in-depth look at the origins and impact of the chain's "disruptive faux cheese-dusted taco."] Creating a taco shell out of Doritos chips was clearly an inspired concept -- and a federal prison inmate is now claiming that idea was all his.
The Dallas Observer reports (via Consumerist), that Gary Cole, an inmate at a high-security prison in Colorado, filed a federal lawsuit in Texas this week alleging that Taco Bell stole his idea for the Doritos tacos. As proof, Cole offers a copy of a 2006 letter sent to his attorney, in which Cole recorded ideas for a number of potential products, including "Tacos [sic] Shells of All Flavors (Made of Doritos)." Among the other merchandise ideas listed were some items branded "Divas and Ballers," including body oils, "health mix" and hot sauces.
Cole claims that his idea for the Doritos tacos must have been stolen through the mail. After reading newspaper articles about the launch of the Doritos Locos Tacos, Cole took action, the Dallas Observer writes. He "wrote to the FBI demanding an investigation. To the IRS he wrote 'a check was made out to a person for a large amount by Taco Bell, Frito Lay, and Pepsi Co. Inc. for an idea or invention that was submitted to them by theft and fraud,' going on to ask for 'the person, the name, address, the amount of the check, how much taxes paid on the check.' He also sent a Freedom of Information Act request to Taco Bell calling for the release of any and all documents related to the invention of the Doritos Locos Tacos."
Among the intriguing items in Cole's handwritten complaint is some correspondence about the case from the Denver, Colo., office of Arnold & Porter. Cole apparently wrote to the firm in preparation for his suit, requesting copies of the 2006 letter with the product descriptions that he sent to his attorney, partner Ed Aro. The complaint contains a cover letter for the documents, and a letter from Aro that mentions the documents and also includes this helpful advice:
"Do not 'put a knife' to the staff. That won't do you, or us, any good. I understand your frustration, but we're working on the retaliation issue and would ask that you leave it in our hands."
It's not clear whether Cole's "knife" threat is related to the Doritos Locos case. The mentions of "the staff" and "retaliation" suggest that he might be juggling some non-taco-related legal issues as well.
Posted by Laurel Newby on May 17, 2013 at 04:53 PM | Permalink
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iPhone users (and other Apple devotees), take note. A proposed class action filed in California seeks $5 million in damages against Apple over allegations that the company knew about a latent defect in the iPhone 4's power button and failed to disclose it. But here's the twist: The plaintiff alleges that Apple not only knew that the power button would fail, it knew when the button would fail -- just after the expiration of the phone's one-year warranty period.
In her complaint, filed in federal district court, Debra Hilton says her iPhone 4 "suffered a terminal power button failure" 15 months after she bought it, and three months after her warranty expired. The only option that Apple's customer service offered her, she said, was to pay $149.99, plus shipping, for repair or replacement of the phone.
The alleged defect involves a flex cable connected to the phone's power button, the "premature deterioration" of which "causes the power button to become harder and harder to depress until eventually it becomes entirely unresponsive," according to the complaint. Hilton alleges that Apple "knew that this defect existed as of the time of the phone's manufacture, and that it would be substantially certain to exhibit itself within approximately 18 months of the phone's first use."
In a post about the case on the Abnormal Use blog, Nick Farr expresses skepticism that Apple "'rigged' the button to fail." The argument that the company would do so to sell more phones, Farr says, "lacks an understanding of Apple buyers." Apple "releases new iPhone models every 6 months, making you feel that your barely used phone is outdated, " he writes. "Apple doesn't need to tamper with your phone to get you to buy a new one."
By Farr's definition, I'm not one of those typical iPhone users who "constantly upgrade their devices -- broken power button or not." As it happens, both my iPhone 3 and iPhone 4 broke within weeks of the release of a newer version of the phone. In my case, it was the home button that called it quits -- and I did pony up for the new model both times.
Hilton's lawsuit may also be intriguing to those wondering whether venting frustrations about defective products via online message boards is just a waste of time. Hilton's complaint quotes extensively from a discussion forum on the Apple Support site dedicated to the iPhone 4 power button problem. Hilton supports her legal claims with online testimonials by iPhone customers including "CwissyBwear" (the forum's original poster), "LoveToCookSF," and "2TheMax," in whose April 4, 2012 post, the complaint says, "user sentiment was most concisely summarized."
2TheMax wrote: "Apple though I love your products I will not pay for poor quality products! No matter how innovative or revolutionary they are, your devices are worthless if they are made poorly and break in a short period of time. From all the replies it's evident that a new iPhone with proper care should not have this issue in such a short time. Address this issue Apple or lose one customer."
I don't know, 2TheMax. Let's just see how you feel when the shiny new iPhone 5s or iPhone 6 hits the market.
Posted by Laurel Newby on May 16, 2013 at 04:57 PM | Permalink
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Grabbing an ice-cold brew in Indiana may become a lot more convenient, if a trade group succeeds in its challenge to a 50-year-old state law that restricts gas stations, grocery stores and convenience stores to selling beer only at room temperature.
The Indianapolis Star reports that the Indiana Petroleum Marketers and Convenience Store Association filed suit in federal district court in Indianapolis on Tuesday, arguing that the law against the sale of cold beer creates a "discriminatory regulatory regime." Package liquor stores in the state are permitted to sell cold beer.
Scot Imus, the association's executive director, told The Associated Press that the law "says pharmacies, convenience stores and grocery stores are capable enough to sell the product warm, then it gets rather arbitrary about what temperature it can be sold at. When you change the temperature, it doesn't change the alcohol content."
Indiana is the only state that regulates beer sales based on temperature, according to the suit. And the 1963 law only applies to beer; convenience and grocery stores are free to sell chilled wine. Convenience store groups have waged a long and unsuccessful lobbying campaign to convince state legislators to change the law, according to reports.
The association seeks injunctive and declaratory relief, and its complaint alleges violations of the Equal Protection Clause of the Fourteenth Amendment and of the Equal Privileges Clause of the Indiana constitution. The plaintiffs also argue that the law interferes with "an individual's right to select what they eat and drink," included in the state constitution's guarantee of "life, liberty, and the pursuit of happiness."
Not surprisingly, the package liquor store industry is already speaking out against the lawsuit, with the Indiana Association of Beverage Retailers stating Tuesday that the suit "flies in the face" of Indiana public policy. The state attorney general said that he will defend the law, and that the debate belongs in the state legislature instead of the courts.
Law professor David Orentlicher, quoted in the Indianapolis Star article, predicted that the constitutional challenge to the law will fail, pointing out that convenience stores and other affected businesses are "not a group that is consistently disfavored in the political process."
"It's hard to say there is a fundamental right to sell cold beer," Orentlicher said.
Posted by Laurel Newby on May 15, 2013 at 04:42 PM | Permalink
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It's been an eventful week for Cody Wilson, the 25-year-old University of Texas law student, self-described crypto-anarchist and creator of a 3-D printed handgun called The Liberator. Wilson's organization, Defense Distributed, has garnered much media
attention for its Wiki Weapon Project, a "nonprofit effort to create freely available plans for 3D printable guns." Wilson's crusade has now landed him in the government's sights -- and his legal troubles may just be beginning.
After Wilson made headlines for unveiling and successfully test-firing the plastic weapon, Defense Distributed last week posted downloadable blueprints for creating the gun on a 3-D printer. Several days later, Wilson received a letter from the State Department ordering the removal of the designs from the site pending review of whether publishing them constituted distribution of "technical data" in violation of the International Traffic in Arms Regulations.
The problem? The plans had already been downloaded more than 100,000 times and published to numerous file-sharing sites. Meanwhile, Defense Distributed's endeavor is getting more notice than ever, and Wilson seems undaunted (to say the least).
The issue has caught the attention of lawmakers, including U.S. Senator Charles Schumer, D-NY, who has argued for a ban on 3-D printable guns. "A terrorist, someone who's mentally ill, a spousal abuser, a felon can essentially open a gun factory in their garage," with the 3-D printing process, Schumer said. There's also the concern that the plastic weapons would not set off metal detectors. London's Daily Mail published an article over the weekend in which two reporters documented their experience printing and assembling The Liberator, then smuggling it successfully onto a Eurostar Train.
Discussion will no doubt continue over what Wilson's crusade -- and the government's response -- might mean for the gun-control debate and the regulation of the sale of firearms. And in a post on Jonathan Turley's blog, guest blogger Gene Howington writes that the most interesting legal question is whether Wilson and his organization might be found to be providing "material support" to terrorist organizations under the Patriot Act.
Howington examines the issue in light of the 2010 U.S. Supreme Court ruling in Holder v. Humanitarian Law Project. In that decision -- which has been criticized by some as hostile to free speech rights and humanitarian efforts -- the justices found that a Patriot Act provision that prohibits providing "material support" to designated foreign terrorist organizations could be applied to conflict-resolution advice and legal services provided by human rights organizations to groups such as Turkey's Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam.
The Supreme Court’s conclusion was based in part on the category of “expert advice or assistance," in the law's definition of "material support." Might this definition be found to apply to Defense Distributed's efforts to disseminate plans for, as Howington describes it, "a weapon whose fairly described design advantage is covert action and assassination"? Howington calls it a "real possibility."
It's certainly an interesting question, especially in light of Defense Distributed's stated purpose, as outlined on its site, which includes the goal of "facilitating global access to, and the collaborative production of, information and knowledge related to the 3D printing of arms."
Posted by Laurel Newby on May 14, 2013 at 04:51 PM | Permalink
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The buzz continues to build about Google Glass, generating explanatory reviews
, opinion pieces
, etiquette guides
-- even a Saturday Night Live sketch
. As early users and tech writers offer first-person accounts
, reviews and analysis -- some ecstatic
, some skeptical
-- much of the debate is centering on privacy concerns over the potentially game-changing wearable computer product.
A New York Times article this week discusses the legal issues awaiting the release and potential widespread use of the device. "Glass is arriving just as the courts, politicians, privacy advocates, regulators, law enforcement and tech companies are once again arguing over the boundaries of technology in every walk of life," David Streitfeld writes. The article quotes social media expert Bradley Shear, who says that Glass "will test the right to privacy versus the First Amendment."
The Times piece describes the backlash already building against Google Glass well in advance of its release. A Seattle bar made headlines by pre-emptively banning Glass, while legislators in West Virginia are trying to add the device to a state ban on texting while driving. Of course, establishments (such as casinos) that already ban recording devices are also unlikely to be Glass-friendly. Computerworld has reported that a spokesperson for Caesars Palace said that wearers of Google Glass won't be allowed to gamble in the casino.
In a CNN opinion piece, former Secretary of Homeland Security Michael Chertoff paints an ominous picture of wearable technology like Google Glass, imagining a near future in which "millions of Americans walk around each day wearing the equivalent of a drone on their head: a device capable of capturing video and audio recordings of everything that happens around them." The distinction between these devices and older technology such as smartphones with video capabilities, Chertoff writes, is that their "default mode is for all data to be automatically uploaded to cloud servers, where aggregation and back-end analytic capacity resides." Chertoff asks, "What is to prevent a corporation from targeting a particular individual, using face recognition technology to assemble all uploaded videos in which he appears, and effectively constructing a surveillance record that can be used to analyze his life?"
An activist group called Stop the Cyborgs has been advancing similar concerns, with the stated purpose of stopping "a future in which privacy is impossible and central control total." Stop the Cyborgs says that it isn't calling for a total ban on Glass and any similar technology, but is advocating that lawmakers and makers of the device guarantee that it won't be used in conjunction with a facial recognition system; that a do-not-track system is put into place; and that the data will be encrypted "so that it is impossible for it to be data-mined, made available to security services or used for commercial purposes." There's also a White House petition in place that calls for a ban on Glass "until clear limitations are placed to prevent indecent public surveillance."
Meanwhile, some early users are reporting that, as a surveillance device, Glass in its current form just isn't that threatening. Future Tense's Will Oremus writes that it "makes a terrible spy tool," in part because, "from the instant you slip Google Glass over your ears, you become the most conspicuous person in any room." That's not so great for taking covert photos and video footage, he says, especially since actually getting the device to record involves "barking commands at your own face," and/or jerking your head upward (See SNL's interpretation of that behavior here).
It's clear that the discussion over the legal and societal implications of Google Glass is just beginning. TIME Tech columnist Jared Newman suggests that Google itself should be more proactive in addressing confusion and concerns about Glass, calling upon the company to foster "meaningful discussion -- not PR spin -- of the Glass' privacy implications." While stating his own opinion that that many of the concerns about Glass are overblown, Newman writes that "Google should stop pretending that there's nothing to worry about."
Posted by Laurel Newby on May 9, 2013 at 04:45 PM | Permalink
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Major cosmetics companies have recently been hit with false advertising lawsuits alleging that they misled customers about testing on animals and marketed skincare products in a way that made them sound like drugs approved by the FDA. Now, there are reports of a new suit against cosmetics giant Lancome involving claims of a more, well, cosmetic sort.
The New York Post and ABC News report that Rorie Weisberg, an Orthodox Jewish woman in New York, is suing Lancome and its parent company, L'Oreal, over its advertising for its Teint Idole Ultra 24H foundation, which promises "24 hours of longwear, 24 hours of comfort." Weisberg "abides by Jewish law by not applying makeup from sundown on Friday until nighttime on Saturday," according to court papers. She bought the $45 product on Lancome's website, specifically looking for a long-wearing foundation that would last through the Sabbath for her son's bar mitzvah celebration.
Lancome's website advertises that the foundation is the result of "8 years of research," and touts its "new EternalSoft technology" which "defeats all challenges." But Weisberg contends that it did not live up to the challenge of overnight wear. Instead of providing "lasting perfection," Weisberg found that the foundation "faded significantly" overnight, according to the suit. She seeks unspecified damages, as well as a "corrective advertising campaign" by Lancome. The company has said that the suit has "no merit" and that it will “strenuously contest these allegations in court."
Putting aside the mystery of the "EternalSoft technology," claims such as Weisberg's -- including that the Lancome foundation left her skin "cakey" and shiny -- would seem to be more difficult to prove than ones involving animal testing or allegedly bogus scientific marketing. Might the "perfection" part of "lasting perfection" be in the eye of the beholder? Other lawsuits against cosmetic companies have touched on the advertising claims -- and images -- that promise flawless beauty in an age of Photoshop and airbrushing.
According to a New Jersey Law Journal article on lawsuits against L'Oreal over the marketing of its anti-wrinkle creams -- now consolidated in federal court in Newark, N.J. -- the plaintiffs' claims include allegations "that Lancome ads use airbrushed or 'Photoshopped' images of celebrities and models, which do not reflect the true effectiveness of its products," and the complaint includes a comparison of a Lancome ad featuring actress Kate Winslet and a photo of Winslet from People magazine. Guess which one showed the actress's crow's feet?
The National Advertising Division of the Council of Better Business Bureaus, an advertising trade group, has called for a ban on modified photos in cosmetics ads, the New Jersey Law Journal says. And in 2011, a British advertising watchdog group banned two ads for L'Oreal foundation featuring Julia Roberts and Christy Turlington, finding they were more of a showcase for the magic of Photoshop than the effectiveness of the makeup.
Though Weisberg's case is unique due to the religious aspect of her complaint (which Jennifer Lipman in The Independent posits is the real reason the case has garnered so much attention), cosmetic companies' heavy reliance on post-production photo techniques, along with their usual sweeping promises about perfect beauty through makeup, might just lead to more legal trouble.
Posted by Laurel Newby on May 6, 2013 at 04:44 PM | Permalink
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As the investigation into the Boston Marathon bombings continued this week, with charges brought against former classmates of suspect Dzhokhar Tsarnaev, there was an indication that media coverage of the event -- tied to the unique, crowd-sourced nature of the investigation of the bombing suspects -- might lead to some legal fallout as well.
Erik Wemple's blog at The Washington Post reports that the father of one of the two young men who appeared on the cover of the April 18 issue of the New York Post is considering suing the newspaper over the false implication that his son was involved in the bombing. The New York Post published a photo of 17-year-old Salah Barhoum and another man, with the headline "BAG MEN: Feds seek these two pictured at Boston Marathon." Barhoum, who had no connection to the bombings, had gone to the police the day before to clear his name after seeing photos of himself circulating online. He told ABC News at the time that his reaction to seeing the New York Post cover was "the worst feeling that I can possibly feel … I'm only 17."
Salah Barhoum's father, El Houssein Barhoum, said this week that he is seeking legal counsel. "A lot of people, they tell me that's your right to sue them," he told the Eric Wemple Blog. Barhoum described the impact the incident has had on his family's life, saying that both he and his son have had trouble sleeping, and that Salah sometimes refuses to go to school.
"We were just scared to go outside" when the pictures were published, the father said. "My future is based on my kids. ... If something happens to them, it happens to me, too."
The Eric Wemple Blog had already discussed a potential lawsuit against the New York Post over the cover in an interesting analysis last week, strongly supporting the idea of the men in the photo seeking "millions or even billions of dollars in damages from the paper." Wemple spoke to attorney L. Lin Wood, who represented Richard Jewell in his libel cases against numerous news organizations -- including the New York Post -- over reports implicating him in the 1996 Atlanta Olympics bombings. "Based on what I see here, I would think this is definitely a case of defamation by implication," Lin said of the potential suit over the "Bag Men" cover.
Wemple writes that an apology or a retraction from a publication accused of defamation can sometimes reduce damages in a lawsuit. It doesn't seem as though Barhoum is going to get one from the New York Post. Although widely criticized for using the photo of the two men, the Post stood by the cover, saying it "did not identify them as suspects." The paper published a story stating that the men had been cleared, but did not apologize for the cover. "They should apologize on the newspaper," Barhoum said. "They should write something on the newspaper, not between us. If they make a bad image of your son, they should make a good image just to correct."
In contrast, the social media site Reddit, which played a starring role in much of the online crowd-sourcing of information and speculation about the bombings, issued an apology in a blog post for what it called "online witch hunts and dangerous speculation which spiraled into very negative consequences for innocent parties." The apology specifically addressed the family of Brown University student Sunil Tripathi, who was widely misidentified as a suspect on Reddit and other sites. (Tripathi was missing at the time of the bombings; his body was found on April 23 near Providence, R.I., according to his family)
If the Barhoum family does pursue a suit against the New York Post, it might not be the only legal action stemming from the media frenzy that occurred during the week of the bombings, during which many online would-be investigators -- and some major news outlets -- got so much of the story so wrong.
Posted by Laurel Newby on May 2, 2013 at 04:20 PM | Permalink
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With new marijuana laws coming into effect in some states, police officers won't be tasked as often with seizing small amounts of pot from citizens. But in an unusual case making the news this week from Washington state, police are actually being asked -- well, ordered -- to give some back.
A municipal court judge in Tacoma, Wash., has ordered police -- twice -- to return a small amount of marijuana seized during a traffic stop last year, threatening them with a contempt finding if they don't comply. And though the quantity of marijuana at issue is small, the case points to larger issues involving conflicts between state and federal laws regarding the drug.
Joseph L. Robertson had a small amount of marijuana confiscated during a traffic stop in May 2012 and was charged with misdemeanor marijuana possession. The charges were dropped in December, after Washington state voted to legalize small amounts of marijuana. Robertson then asked for his pot back, providing proof of medical authorization. The police refused, and Tacoma Municipal Court Judge Jack Emery issued an order on February 28 compelling them to return the drugs. The police did not comply, and the marijuana remains at the Pierce County Sheriff's Department.
At a hearing last week, Emery threatened the police with a contempt order if they didn't return the marijuana to Robertson within seven days. "Appeal or comply,"the judge told an assistant city attorney, according to the Tacoma News Tribune. "Or next week, show up, and I would advise you to bring counsel." A hearing is set for Thursday.
Emery called the case a "quagmire," due to conflicting state and federal laws regarding marijuana. A spokesman for the Pierce County Sheriff's office told KIRO Radio's Andrew Walsh Show that the office was concerned about violating federal law by returning the drugs to Robertson. "It's not that we don't want to give him back his drugs. We just don't want to be in trouble with the federal government," spokesman Ed Troyer said.
The sheriff's office indicated that it would, however, turn over the pot to the Tacoma city police. “It's Tacoma's case," Troyer said, according to the the News Tribune. "If they want it, they can come and get it." The police can now follow Emery's order and do just that, or appeal to a higher court -- or face a contempt order at this week's hearing.
Posted by Laurel Newby on April 30, 2013 at 04:06 PM | Permalink
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The New York Law Journal has a report this week about developments in a proposed class action against a Manhattan dentist who required patients to sign a confidentiality agreement in which they promised not to publish negative commentary about her and to assign her a copyright over any such commentary. A federal judge in New York has firmly rejected a motion to dismiss the case, which will now proceed against Dr. Stacy Makhnevich (who is described on her website as a "dentist, artist and opera singer").
The case made news when it was filed in late 2011 by Makhnevich's former patient Robert Lee, who was dissatisfied with the dental office's failure to submit reimbursement forms to his insurance company. A day after Lee posted negative reviews of Makhnevich on websites, including Yelp and DoctorBase, Makhnevich sent him a letter stating that he had violated the terms of the "Mutual Agreement to Maintain Privacy" that he had signed before treatment. Makhnevich threatened to sue Lee for $100,000 in damages, claiming copyright infringement, breach of contract and defamation. She later sent Lee invoices charging him $100 a day for copyright infringement.
With the backing of consumer advocacy organization Public Citizen, Lee sued Makhnevich for declaratory and injunctive relief on behalf of himself and other patients, arguing that the confidentiality agreement was unconscionable and that his online comments were protected as fair use under the Copyright Act. The case put the spotlight on such "privacy agreements" and a company called Medical Justice that marketed the agreements to doctors and dentists. Medical Justice "retired" the contract just after the suit was filed.
Though the agreement wasn't exclusive to Makhnevich, other aspects of her practice seem somewhat unique. On her website, which includes a number of glamorous headshots, Makhnevich is described as "a talented and imaginative dentist and an opera singer who is driven by an incredible passion for self-expression through art." She specializes in working with singers, artists and musicians, particularly those who experience dental problems related to playing wind instruments. "Although Stacy Makhnevich loves to express her vision through art of dentistry, she is also adept at creating opera scenes and readily communicates the vision of her clientele," the website states. The headline of a Forbes piece about Lee's suit described Makhnevich as a "Dentist to the Stars."
In the latest development in the class action, U.S. District Judge Paul Crotty issued a sharply worded order rejecting Makhnevich's argument that the case should be dismissed because there was no "actual controversy" between the parties. "Defendants created the controversy with Lee by attempting to enforce the agreement, which they extracted as a condition for getting dental treatment," Crotty wrote. "Further, under the totality of circumstances, the controversy is sufficiently 'real' and 'immediate.' Defendants cannot pretend now that their notices to Lee were 'just kidding,' or that Lee lacked any reasonable apprehension of liability."
Posted by Laurel Newby on April 18, 2013 at 04:14 PM | Permalink
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Here's a reminder that judges aren't above the rules of courtroom decorum -- or immune from embarrassing technological snafus. Michigan Judge Raymond Voet held himself in contempt on Friday and paid a $25 fine after his new smartphone made its presence known during a jury trial in his courtroom.
As the prosecutor made his closing arguments, Voet's phone started asking for voice commands. "I'm guessing I bumped it. It started talking really loud, saying 'I can't understand you. Say something like Mom,'" Voet said, according to the Ionia County, Mich., Sentinel Standard. "My face got as red as a beet."
Voet is a stickler when it comes to disturbances of this type, and has a posted policy in his courtroom warning that disruptions caused by electronic devices will result in the confiscation of the items, a contempt of court finding and a $25 fine. The Associated Press reports that Voet has enforced the rule against police officers, attorneys, witnesses, spectators and friends over the years -- and now he can add himself to the list. He paid the fine during a trial recess.
"Judges are humans," Voet said. "They're not above the rules. I broke the rule and I have to live by it."
The incident also goes to show that humans sometimes have difficulty adjusting to different forms of technology. Voet was a longtime BlackBerry user and had recently switched to a Windows-based phone -- hence his confusion over the touchscreen and voice commands. "That's an excuse, but I don't take those excuses from anyone else," he said.
We're guessing that in order to avoid becoming a repeat offender -- and making more national news -- the judge may have spent part of the weekend studying the manual for his new cellphone.
Posted by Laurel Newby on April 15, 2013 at 03:39 PM | Permalink
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