June 25, 2013
Use Hyperlinks, Don't 'Bitch-Slap' -- and Other Tips from a 'Cranky' Federal Judge
The legal blogosphere is taking note of an amusing new guide to legal writing, courtesy of Senior U.S. District Court Judge Richard G. Kopf and his entertaining blog, Hercules and the Umpire. (Hat tip: Lawyerist)
Kopf, who joined the short list of judge-bloggers earlier this year, made waves back in 2008 with an irreverent Top 10 style critique of the U.S. Supreme Court's sentencing decisions, published in the Ohio State Journal of Criminal Law. Kopf took on the high court again this April in a blog post titled "The frequent irrelevancy of the Supreme Court." Now he's back to the Top 10 format with some words of wisdom for attorneys submitting briefs to him and to "other all-knowing beings who ascend the federal trial bench, both literally and figuratively."
Here's a sampling of Kopf's "Top ten legal writing hints when the audience is a cranky federal trial judge" (some of which he illustrates with links to relevant Urban Dictionary definitions and YouTube videos):
- Unless you are retrograde … or the judge won't allow it, hyperlink to cases and citations to the record. Remember, 9 out of 10 times a law clerk -- not the trial judge -- is the only one closely reading your stuff. (Oh, don't pretend to be shocked!) …
- Please don't "bitch-slap" your opponent. It only makes me want to do the same to you, but in super slow motion.
And, at a time in which all eyes are on the Supreme Court, Kopf doesn't spare the justices. He calls last year's feud between Seventh Circuit Judge Richard Posner and Justice Antonin Scalia (and Scalia's co-author Bryan Garner) "a juvenile cat fight over a book about rules." And, when it comes to writing, Kopf suggests one justice to emulate.
- Justice Scalia writes smack. You can't. Justice Kennedy waxes grand eloquent. You can't. Justice Breyer writes simply. You should.
The rest of Kopf's tips are here.
June 25, 2013 | Permalink
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June 19, 2013
'Terroristic' Tattoo Spells Trouble for Minn. Man
The Pioneer Press (via ABA Journal) has the story of a Minnesota man who was sentenced to probation this week after pleading guilty to making a terroristic threat against a police officer -- a threat that took the unusual form of a tattoo of a pig.
Twenty-one-year-old Antonio Jenkins Jr., reputedly a member of the Bloods street gang, was charged after he posted a photo on Facebook of a tattoo on his bicep that depicted a person holding a gun to the mouth of a pig. The Pioneer Press reports that, according to the criminal complaint, the pig was "wearing a police hat and uniform with a patch on the right shoulder with 'Mpls. 8230' and a nameplate with the name 'J. Seidel' under the patch. Below the 'J. Seidel' were the words 'F--- the police.'"
The message was allegedly intended to threaten Minneapolis police officer Jeffrey Seidel, who works in the gang investigation team. In a caption on the photo, Jenkins wrote, "My tattoo iz a pig get'n his brains blew out." The criminal complaint noted that 18 people had "Liked" the photo on Facebook.
In November 2012, Jenkins was charged with making a terroristic threat for the benefit of a gang. At the time, he was on supervised release after serving a prison sentence for a robbery conviction.
Hennepin County Attorney Mike Freeman said at the time of Jenkins' arrest that the tattoo communicated a clear and specific threat against Seidel. "It identifies a specific police officer by name and badge number, and expresses a clear threat to him -- 'I'm going to kill you' -- and then [Jenkins] publicizes it," Freeman said. "He's a known Blood, and the officer works in the area. The whole series of things made it enough to press the charge."
Jenkins was offered a plea deal after he had parts of the tattoo inked over, the Pioneer Press writes. Jenkins' public defender, Cynthia McCollum, stated at the plea hearing Monday that Jenkins' tattoo is "basically a black spot now." McCollum had said at a hearing in January that Jenkins wanted the tattoo removed, but that state funds to pay for removal of gang-related body art were not available.
News reports and commentary on Jenkins' case discuss the interesting question of whether Jenkins could have raised a successful First Amendment defense at trial.
University of Minnesota Law School professor Dale Carpenter told the Pioneer Press at the time of Jenkins' arrest that he doubted the tattoo would be considered protected speech. "It's a serious threat to the health or life of another person and such statements, no matter what form they're made in -- written, verbal, put on Facebook or put on your body -- it is unprotected," Carpenter said.
"He can say, 'I hate the police' or he can say, 'that police officer is corrupt' or he can criticize him," Carpenter said, "but he does cross the line when he makes a threat."
But Chuck Samuelson, the executive director of the American Civil Liberties Union of Minnesota who was interviewed in a Star Tribune report on Jenkins' arrest, said that calling the tattoo a terroristic threat was "a big leap."
"For terroristic threats you have to brandish a gun or a gun lookalike. … Basically we have someone making fun of the police," Samuelson said. "Bad manners, you bet," he said. "Criminal? No."
In his post on the case on the Simple Justice blog, criminal defense attorney Scott Greenfield agreed, writing that the fact that Jenkins was "being prosecuted because an incredibly ugly image on his body makes the cops feel angry and hurt, not to mention disrespected, goes well over the line. There is no crime here, except against good taste."
At the plea hearing Monday, Hennepin County District Judge Lyonel Norris set as conditions of Jenkins' probation that he have no contact with Seidel and commit no new crimes. The judge also offered Jenkins some advice about more appropriate themes for any future body art: "Next time you want to get a tattoo, flowers would be nice."
June 19, 2013 | Permalink
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June 12, 2013
Tenth Circuit Gives Man License to Sue Over 'Rain God'
The U.S. Court of Appeals for the Tenth Circuit has revived a lawsuit by an Oklahoma man who objects to the image of a Native American sculpture on the state's license plates because its message conflicts with his Christian beliefs. The Associated Press reports that the court decided that Keith Cressman "can sue the state over its Indian 'rain god' license plate, ruling that the depiction of a noted sculpture on 3 million license plates could be interpreted as a state endorsement of a religion." (Turtle Talk, the blog for the Indigenous Law and Policy Center at Michigan State University College of Law, has the filings in the case.)
Oklahoma's license plate, unveiled in 2008, depicts artist Allan Houser's sculpture "Sacred Rain Arrow." According to Cressman's suit, the sculpture is based on a Native American legend and shows an Apache warrior shooting an arrow into the sky so that the "rain god" or "spirit world" would answer prayers for rain in a time of drought.
Cressman claims in his suit that the sculpture tells "the story of a Native American who believes in sacred objects, multiple deities, the divinity of nature, and the ability of humans to use sacred objects to convince gods to alter nature." Its message, the suit says, "promotes pantheism, panentheism, polytheism, and/or animism and promotes particular Native Americans' social and cultural practices that accept these ideas."
Cressman, the Tenth Circuit opinion says, "adheres to historic Christian beliefs," including the principle that "there is only one true God." He "refrains from adopting or endorsing any message he believes might imply his approval of contrary beliefs, such as that God and nature are one, that other deities exist, or that 'animals, plants, rocks, and other natural phenomena' have souls or spirits."
Unwilling to display the image of the "Sacred Rain Arrow" sculpture on his car, Cressman opted for specialty license plates, which cost more and required renewal fees. Cressman claims that, to avoid the additional fees, he considered using the standard license plate and covering the offending image, but was told by state officials that he could be fined for doing so.
Cressman filed a lawsuit in 2011 against a number of state officials, alleging violations of his First and Fourteenth Amendment rights. A federal district court dismissed the suit in May of 2012, finding that Cressman had failed to state a "compelled speech" claim under the First Amendment.
The Tenth Circuit on Tuesday reversed the order dismissing Cressman's complaint, finding that he plausibly alleges a claim of compelled speech under the U.S. Supreme Court's ruling in Wooley v. Maynard
-- a 1977 case in which a Jehovah's Witness challenged New Hampshire's use of the state motto, "Live Free or Die," on its license plates. In that case, the court found that the state could not force individuals to either "use their private property as a 'mobile billboard' for the State's ideological message" or pay a criminal penalty.
The opinion discusses whether the display of the license plate constitutes "symbolic speech" that qualifies for First Amendment protection, and whether it conveys a "particularized message." Symbolic speech claims, the court said, "depend on circumstances and context."
"Perhaps few viewers of the Oklahoma license plate image would perceive the particularized message Mr. Cressman alleges. But at this stage, without any evidentiary development, we must accept his allegations otherwise as true," the opinion states.
The circuit held that Cressman has also "plausibly alleged that he is compelled to speak because the image conveys a religious/ideological message, covering up the image poses a threat of prosecution, and his only alternative to displaying the image is to pay additional fees for specialty license plates that do not contain the image."
Cressman, the panel court concluded, "has alleged sufficient facts to suggest that the 'Sacred Rain Arrow' image on the standard Oklahoma license plate conveys a particularized message that others are likely to understand and to which he objects."
June 12, 2013 | Permalink
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June 11, 2013
Law Firm's Viral TV Ad Leads to $1 Million Suit
An actress who starred in a popular advertisement for a New York personal injury law firm has filed a suit alleging that the agency that produced the spot licensed the ad and her image to law firms around the country without her knowledge and without compensating her. She's seeking close to $1 million in compensation from the agency and the other law firms that licensed the ad.
Elena Aroaz appeared in a 2009 advertisement for Trolman, Glaser & Lichtman that spoofed gold-digging personal injury plaintiffs. The ad, called "Machete," featured Aroaz sitting at a table discussing an injury in grave tones, with mournful piano music as the background score. "The pain was excruciating," she says. "It's like I had this huge, really sharp machete chopping down on me every time I tried to move."
Soon, the nature of the wound is revealed: "It was the worst paper cut I ever had. They made that paper way too sharp." Aroaz raises one index finger with a green bandage on it, saying, "Someone has to pay." Text on the screen reads, "There are some cases even we can't win." As the contact information for the law firm appears, a voiceover says: "If you've been injured, call us. But keep in mind, you really need to be injured."
The ad had a companion spot, "Power," in which a tearful man describes his "pain and suffering" at the hands of the power company when an outage interrupted the best video game of his life. The two Trolman, Glaser & Lichtman advertisements were featured in a 2010 New York Times article for their noteworthy use of (intentional) humor in promoting personal injury legal services. A post on the Lawyerist blog just a couple of months ago included the ads as examples of successful viral video legal marketing.
The New York Daily News reports that Aroaz claims in her suit, filed in Manhattan Supreme Court, that she was paid $600 to appear in the ad and was told that it would air for a year on cable TV in New York. Instead, the suit alleges, the Levinson Tractenberg Group licensed the ad to law firms in New Mexico, Washington, Louisiana, Massachusetts, Kansas, South Carolina and Colorado, earning $250,000.
According to her suit, after Aroaz found out that her face was on a billboard in Arizona, she confronted Levinson Tractenberg and was paid another $1,500 in 2012, the Daily News writes. Aroaz says she later discovered that the firm had paid $20,000 for the rights.
The New York Post reports that Aroaz's suit claims the ads are still airing and "turn a very large profit at the expense of and to the detriment of the plaintiff." She also claims she has been typecast as a result of the ads, the Post writes.
June 11, 2013 | Permalink
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June 10, 2013
Fifth Circuit Finds Breastfeeding Is 'Related' to Pregnancy
While several new health studies concerning breastfeeding are making the rounds, the topic has also been generating headlines in the employment law context, thanks to a recent Fifth Circuit ruling (as reported in Texas Lawyer's Tex Parte Blog) involving the firing of a woman because she wanted to use a breast pump at work.
According to the opinion, when Donnicia Venters spoke to her boss at Houston Funding about using a breast pump at work upon her return from maternity leave, her request was met with a long pause, then the news that her position had been filled. The Equal Employment Opportunity Commission brought a Title VII action against Houston Funding, alleging the company had discriminated against Venters based upon her sex.
U.S. District Court Judge Lynn Hughes (who has recently made news and caught bloggers' attention for allegedly racially insensitive comments) granted summary judgment in favor of Houston Funding, finding that Venters' firing did not constitute sex discrimination because "lactation is not pregnancy, childbirth, or a related medical condition." While "cramping, dizziness, and nausea" are conditions related to pregnancy, Hughes wrote, lactation does not make that list. After Venters gave birth, the opinion stated, "she was no longer pregnant and her pregnancy-related conditions ended."
Some took issue with this conclusion (including the Texas Medical Association), and the Fifth Circuit has now registered its disagreement, vacating and remanding Hughes' opinion. The circuit found that the EEOC's claim that Venters was fired "because she was lactating or expressing milk" stated a cognizable sex discrimination claim under Title VII. "An adverse employment action motivated by these factors clearly imposes upon a woman a burden that male employees need not -- indeed, could not -- suffer," the opinion states.
The Fifth Circuit held that "lactation is a related medical condition of pregnancy" under the Pregnancy Discrimination Act. However, in a concurring opinion, Fifth Circuit Judge Edith Jones distinguished between Venters' case and one in which a female employee might request "special accommodations" because of lactation, which Jones said would not be guaranteed under the act.
"It follows that if Venters intended to request special facilities or down time during work to pump or 'express' breast milk, she would not have a claim under Title VII or the PDA as of the date of her lawsuit," Jones wrote. "Indeed, if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday."
On the HealthLawProf Blog, law professor Leslie Francis writes that, although the Fifth Circuit ruling "is apparently a favorable one for women and children, it also reveals ongoing mismatches between anti-discrimination law in the US and the health needs of workers and their families."
"The PDA prohibits differential treatment on the basis of sex but does not require any accommodations for pregnancy or lactation," Francis states. "Venters won not because she asked for time to express milk but because her employer disapproved of her breastfeeding." Anti-discrimination law, she writes, "all too often regard[s] breastfeeding as a 'lifestyle' rather than a health issue."
In a post about the case on the ACLU's Blog of Rights, Galen Sherwin echoes this concern about the lack of legal support for workplace accommodations, writing that, despite "overwhelming public health justifications for breastfeeding, women who want to continue nursing when they return to paid work often face obstacles that force them to choose between their jobs and what they think is best for their babies."
"At a fundamental level, workplace policies that are structured around an “ideal” worker who never gets pregnant, gives birth, or breastfeeds -- in other words, a male worker -- look an awful lot like institutionalized sexism," Galen writes.
June 10, 2013 | Permalink
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June 07, 2013
A 'Judge Smash' in Sentencing Dispute With Prosecutors
It's not unusual for judges and prosecutors to fail to see eye-to-eye on criminal sentencing issues. But it might just be a first for a federal judge to send an email comparing herself to a comic book character known for morphing into a large, green, superhuman "Hulk," and warn lawyers in the U.S. Attorney's Office, "You won't like me when I'm angry." The email has, not surprisingly, garnered some interest -- as has the resignation of the prosecutor who received it.
The Des Moines Register (via the Sentencing Law and Policy blog and ABA Journal) has the story of the clash between U.S. District Judge Stephanie Rose and prosecutors in the Southern District of Iowa U.S. Attorney's Office over sentencing in several criminal cases. Rose, who was confirmed as a federal judge last September in a U.S. Senate vote of 89-1, is the country's youngest federal judge at 40 years old. She had been a longtime federal prosecutor and served as the U.S. Attorney for the Northern District of Iowa before her appointment to the bench.
The Des Moines Register reviewed recently unsealed emails sent between Rose and federal prosecutors concerning the case of a convicted drug dealer named Bryan Holm. In that case, the Register reports, "Rose ordered prosecutors to provide evidence that could extend Holm's prison sentence on a weapons charge. When they refused, citing a plea agreement they had signed, Rose called a police officer to the stand, questioned the officer herself and imposed a sentence that was two to three years longer than what prosecutors had contemplated."
Several hours after the sentencing hearing, Rose sent an email to Shannon Olson, the appellate chief at the U.S. Attorney's Office. The message, which had the subject line "Hulk," read: "You know how Bruce Banner says 'You won't like me when I'm angry?' There's a lesson in there for all attorneys. Enjoy that transcript."
Along with reports on the email, news broke this week of Olson's resignation from the U.S. Attorney's Office. The Des Moines Register reported Thursday that a spokesperson for the U.S. Attorney's Office confirmed that Olson no longer works for the office but declined to discuss the circumstances of her departure.
In court documents related to an appeal of Holm's sentence, Holm's attorney Dean Stowers suggests that the "Hulk" email might have been related to Olson's potential role as a witness in an age discrimination suit brought by a former assistant U.S. attorney, as well as to a clash over sentencing in several cases.
The Des Moines Register writes
that Rose has been at odds with the U.S. Attorney's Office in several
other criminal cases as well, and that she corresponded by email in
January with U.S. Attorney Nicholas Klinefeldt to express her
frustration with what she called "global issues" with prosecutors'
“I'm troubled by your office's occasional refusal to provide relevant
discovery information to the United States Probation Office," Rose wrote
to Klinefeldt. "I'm baffled by similar refusals to provide relevant
sentencing information to me." She cited several criminal cases in which
she said prosecutors refused to provide evidence that could have
increased defendants' sentences.
In the filing regarding Holm's case, Stowers writes that the "Hulk" email "has to be construed as a strong caution to Olson and her prosecutor colleagues to not do something that would make the Court 'angry' because that would cause the Court to react like the 'Hulk'. One can fairly assume the Court was not intending physical assault or destruction of property, but was alluding to the use of the Court's judicial power against those that made the Court 'angry'."
Stowers argues that the email "suggests the Court was acting out of anger in the Holm sentencing and that the anger displayed itself in the Court's actions during the sentencing. It appears Mr. Holm is a victim of crossfire between the Court and the Government."
June 7, 2013 | Permalink
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June 05, 2013
Father Seeking Visitation Rights Wears Nazi Uniform to Court
Last week we discussed an Illinois judge who, after being arrested on drug and firearms charges, ended up at a court hearing wearing cut-off jean shorts and a T-shirt bearing the slogan, "Bad is my middle name." Not the most appropriate ensemble, to be sure, but here (via Jonathan Turley) is the story of a litigant who took the concept of questionable courtroom attire to the extreme. A New Jersey man attended a family court hearing this week wearing a Nazi uniform. Yikes. On the other hand, the outfit did coordinate nicely with his Hitler-esque mustache and swastika tattoos.
Heath Campbell and his family gained notoriety in December 2008, when employees of a ShopRite supermarket refused to spell out the name of their 3-year-old son on a birthday cake. That name: Adolf Hitler Campbell. Heath Campbell said at at the time that he named his son after Adolf Hitler because "no one else in the world would have that name." Indeed. He said that those who would object to such a moniker "need to accept a name. A name's a name. The kid isn't going to grow up and do what (Hitler) did." And the Campbells stuck to the same theme in naming Adolf's siblings, JoyceLynn Aryan Nation and Honszlynn Hinler Jeannie.
The birthday cake flap (which Turley at the time called the "mein kake" controversy) prompted an investigation into the family by New Jersey's Division of Youth and Family Services. The Campbell children were taken into state custody in January 2009. A fourth child, Hons, was taken by the state just hours after his birth in November of 2011.
The Campbells have appealed unsuccessfully for the return of their children. Heath Campbell says that the couple has since separated and that the three older children have been adopted. At the hearing this week, Campbell was seeking visitation rights to the youngest son.
When the Campbell children were taken away from their parents, the parents claimed that the decision was based solely on the children's names. (Sadly, it seems the family's situation involves a number of other issues. The Hunterdon County Democrat has a full report on allegations of domestic abuse.)
However, Heath Campbell contends that he's been separated from his children simply because of his political beliefs. "Basically, what they're saying is because of my beliefs and I'm a Nazi, that us people don't have any constitutional rights to fight for our children," Campbell said.
The Jonathan Turley post posits that the case "raises a
significant free speech issue. Most of us view this Nazi obsession to be
weird and unbalanced. However, it is also a form of political
As for the Nazi uniform, Campbell said he hoped a court wouldn't be influenced by his appearance. "If they're good judges and they're good people, they'll look within, not what's on the outside," he said.
June 5, 2013 | Permalink
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