Sneaking Suspicions
Archives-- November 17-23, 2002

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This page includes posts from November 17-23, 2002 in the usual reverse order. Each week's postings on the home page are perma-linked to these pages.

November 23, 2002
A parallel with our own naval history

A Reuters news report noted that two more hapless Palestinians killed themselves while trying to take out a 22-foot Israeli patrol craft on nighttime patrol off the Gaza Strip. They managed to injure four Israelis while blowing up their own boat, but the blast only caused slight damage to the Israeli naval vessel.

For some reason this attack reminded me of the Hunley incident during the Civil War. In that case, however, while the entire Confederate crew was lost, they did manage to sink the U.S.S. Housatonic.

On the other hand, the Hunley attack was also an ultimately pointless gesture in a losing cause.

November 23, 2002
If you're going to say it was in self-defense, hold off on the gasoline and matches

When arguing a case, it’s always a good idea to try to give the judges a relatively straightforward, simple basis to uphold your side of the argument, if you can.

It's the KISS principle applied to appellate advocacy.

The judges are usually swamped with cases. They just can’t devote huge amounts of time to hours of careful analysis of the arguments and the record made below. That’s why you sometimes read appellate judges carping that it’s not their job to burrow through the transcripts to find support for a particular legal proposition.

It looks like the attorneys for the State of North Carolina adhered to the KISS principle in a second degree murder case decided by the Fourth Circuit this week.

John Francis Hayes filed for federal habeas corpus relief after his conviction for murdering his wife was upheld on appeal in the state court system. He argued that certain hearsay statements were wrongly admitted into evidence after his objections in limine were overruled. The state used the statements to show that the victim feared her husband, and that it was unlikely she was the aggressor.

Hayes also argued that his trial counsel was ineffective because the defense attorney failed to object to the statements when they were introduced into evidence during the trial.

It’s pretty easy to see why Hayes wouldn’t want these statements to be heard by the jury, especially since he claimed that he killed her in self-defense:

*E.g., "[Mrs. Hayes] came in and it was apparent to me she was upset.. . . I asked her what was wrong. She said she and John had been into it again. She wanted to know if I was going to tell her how stupid and dumb she was for putting up with it and not leaving. I told her, "no," I wasn't going to tell her anything like that. She said, "don't you want to know." I asked her why. She said John told her that if she ever left him he would kill her, and he would see her dead before she ever had any of his money." (J.A. at 1737); "[Mrs. Hayes] came in and sat down, and her eyes were all swollen which looked like from crying. And I asked her what was wrong. And she said, "I almost didn't come tonight." I asked her why. She said John was in one of his rages again. And I asked her what happened. And she said he got angry with her and unzipped his pants and urinated on the kitchen floor in front of her and then pushed her down and put her head down in it and wiped the floor up with her hair." (J.A. at 1754).

The trial court ruled that these statements were admissible under North Carolina law, under a state-of-mind exception to the hearsay rules. The state appellate court upheld that determination, as did the federal district court.

The Fourth Circuit panel was also untroubled by these statements, and the main opinion devotes several pages of legal discussion to the issue.

As I see it, using the KISS principle shows up in the concurring opinion.

Senior Circuit Judge Hamilton noted that in order to win habeas corpus relief, Hayes had to show how he was prejudiced from the allegedly erroneous admission of the hearsay evidence. If the rest of the evidence was overwhelming, however, it would be impossible to show how these statements tipped the scales unfairly toward conviction.

For example, a second degree murder conviction requires a showing of malice without any premeditation. Furthermore,

The State may prove malice by the nature of the attack with a deadly weapon. [citation omitted.]

The judge then noted the following:

In this case, Hayes savagely beat his wife to death with a baseball bat causing extensive, severe damage to her skull. Hayes then poured gasoline (or a similar flammable liquid) on her body and set her on fire. It is hard to imagine a murder which more clearly demonstrates malice than the facts of this case. The exclusion of the challenged hearsay evidence would have done nothing to alter the jury's conclusion that the murder of Mrs. Hayes was committed with malice.

I'm thinking the gasoline and fire-setting did a whole lot more damage to the self-defense claim than the hearsay.

November 22, 2002
Gambling you’ll be able to welsh on a bet, and losing. Good.

Earlier this week the Fifth Circuit issued a decision that showed both a thorough understanding of the applicable law and a keen sense of what’s right.

Those two laudable goals are not always achieved in the same case.

Larry Thompson and Lawrence Bradley liked to gamble. Apparently they particularly enjoyed gambling through the Internet, one of the newer ways to separate fools from their money.

In these two cases, their money spent a fairly short time in the gamblers’ possession. They obtained the cash by tapping into their Visa or Mastercard accounts.

The Internet casinos helpfully provided the credit card icons for the two men to click on and follow the instructions to give themselves the necessary loans, or “chips”.

Thompson tapped his Fleet Bank Mastercard for $1510, which he used at two different online casinos. He lost all of it.

Bradley used his Visa card from Travelers Bank USA Corporation to obtain $16,445 in credits. By the time he finished, his account showed $7048 in casino purchases.

When the credit card bills came due, these two tried to welsh on paying for their online fun, by suing the banks under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. In addition, they also argued that because their gambling debts were illegal, they shouldn’t have to pay them.

RICO is an amazing tool in both civil and criminal litigation. Originally intended as an anti-Mafia measure, the federal legislation now drives fear into the hearts of large and small businesses alike, with the prospect of ruinous verdicts.

On the other hand, a successful RICO suit requires leaping several hurdles, and these two guys were way out of shape.

The plaintiffs’ racketeering claims against the credit card issuers failed for several reasons, as noted by the appeals court: 

  • [T]he district court concluded that Thompson and Bradley failed to plead facts showing a pattern of racketeering activity or the collection of unlawful debt; a RICO enterprise; or participation in the operation of management of the enterprise. We agree that the Plaintiffs’ allegations do not show a pattern of racketeering activity or the collection of unlawful debt. [T]his conclusion, alone, is dispositive….
  • Because the Defendants completed their transaction with the Plaintiffs before any gambling occurred, that transaction cannot have involved taking custody of something bet or collecting the proceeds of a gambling device.
  • The Defendants’ conduct did not involve any violation of a state or federal gambling law.

The circuit court saved the most important reason for last—there’s just no way that RICO was designed to help these two avoid paying these debts:

Finally, we reiterate the district court’s statement that “RICO, no matter how liberally construed, is not intended to provide a remedy to this class of plaintiff.” Thompson and Bradley simply are not victims under the facts of these cases.

Rather, as the district court wrote, “they are independent actors who made a knowing and  voluntary choice to engage in a course of conduct.”

In engaging in this conduct, they got exactly what they bargained for—gambling “chips” with which they could place wagers. They cannot use RICO to avoid meeting obligations they voluntarily took on.


Nice to see the courts uphold the right result, for the right reasons.

November 21, 2002
It would have been a lot cheaper just to pay the $439.50 up front 

Insurance companies handle thousands of claims every day. Most of them are not a big deal, and there’s no real dispute about who’s owed what.

Sometimes there’s a legitimate argument about coverage or the amount that should be paid out. Depending on the insurance and the state involved, these claims are handled either by arbitration or litigation.

On occasion, however, insurance adjusters will adopt a sort of Nancy Reagan-like approach to claims. They seem to think if they can just keep saying no, the folks seeking the cash will just go away, even when there’s no reasonable basis to deny the claim.

This kind of stupidity is why some folks win big verdicts against insurance companies, by successfully proving that the carrier acted in bad faith to keep from paying.

James Davis and Virginia Calame (I did not make that name up-Ed.) owned property in Oklahoma that was damaged in a hailstorm. 

It’s Oklahoma. Hail happens. 

Nonetheless, the insurance adjuster refused to pay a combined $439.50 related to the cost of removing damaged shingles and the labor cost of installing new shingles. The insurance company argued that the payment had to take into account depreciation on both charges.

Cooler heads did not prevail.

Davis and Calame filed bad faith claims in federal court. The trial judge ruled against the insurance carrier on the depreciation defense, and the bad faith claim went to the jury.

By the time they finished with it, the original $439.50 claim turned into an award for $40,000 in compensatory damages and a zesty $17  million in punitive damages.

On appeal, the Tenth Circuit certified the insurance policy interpretation questions to the Oklahoma Supreme Court. As it turned out, that court’s response settled more than just the depreciation question:

The Oklahoma Supreme Court's answers to our certified questions resolve the underlying issues for us. The cost of removing damaged shingles is not subject to depreciation. However, the labor cost of installing new shingles is subject to depreciation…. 

This interpretation became the saving grace of the insurance company. After all, the essence of a bad faith claim is to show that the company's position was against settled law. However, the insurance coverage issue in this case was

not settled at the time of Mid-Century's actions.

In fact,

...the Oklahoma Supreme Court ultimately found Mid-Century's position regarding the issues to be partially correct…. As a matter of law, Appellants' litigation of this legitimate coverage dispute cannot constitute bad faith because Appellants' position in the litigation was reasonable…. 

Accordingly we direct the district court to amend the amount of damages awarded to Appellee from $439.50 to $165.00. Furthermore, we reverse the district court's denial of Mid-Century's Motion for Judgment as a Matter of Law on Appellees' bad faith claim. Because Mid-Century did not act in bad faith as a matter of law, we also reverse the jury's award of punitive damages against Mid-Century. 

Viewed one way, the insurance company *saved* a total of $274.50 on this claim. 

It probably cost them at least 250 times that amount to prove the point.

The adjuster might have acted in complete good faith, but one has to wonder if a little more “adjusting” at the front end couldn’t have gone a long way toward reducing the risk of a $17  million punitive damage award at the back end.

November 21, 2002
An off-sides call from 1,000 feet away? I don't think so.

The Seventh Circuit Court of Appeals issued a First Amendment opinion on peddling books near the United Center in downtown Chicago.

Not just any books, mind you. This one had a special angle tied directly to that particular sports arena.

Mark Weinberg wrote and self-published a self-described "screed" about Bill Wirtz, the owner of the Chicago Blackhawks. Career Misconduct priced out at $13, and Weinberg figured the best place to sell his book was just outside the home ice of Wirtz's hockey team.

After a couple months, the Chicago authorities felt otherwise. The police told Weinberg his marketing efforts ran afoul of the city's peddling ordinance, which specifically prohibited selling merchandise within 1,000 feet of United Center.

Weinberg then sued to block the enforcement of the ordinance. After losing in the lower court, he appealed.

The Circuit Court pointed out several problems with the Chicago ordinance, and reversed:

  • Although the ordinance is not content-based, it was not narrowly tailored to achieve the government's claimed interest in preventing congestion around the Center.

  • A videotape shot at the request of the district court of Weinberg selling his book "shows no interference with any pedestrian traffic nor any congestion along the sidewalk."

  • The City utterly failed to prove that Weinberg created any congestion problems.

  • More importantly, the 1,000 foot restriction "overcompensates" for what congestion might occur: "The City's one-size-fits-all approach to restricting peddling cannot be reconciled with our First Amendment rights."

Personally, I wonder if the real reason for the 1,000 foot peddling restriction had more to do with who did the selling than with the selling itself. The same ordinance could certainly help those trying to sell "official" programs or souvenirs, for example.

Maybe one of the Chicago-area bloggers can confirm my suspicions.

November 20, 2002
What a difference one little "o" can make

"You want nano, I got nano."
Glenn H. Reynolds

"Nanoo, Nanoo."
Robin Williams' famous catchphrase, as Mork

November 19, 2002
A Tip About Testifying

Trial witnesses often have trouble remembering that they’re not really participating in a normal conversation while they’re answering questions under oath.

Others will take advantage of that fact when they can.

It’s standard legal advice to urge one’s clients and/or witnesses to curb their natural enthusiasm to put their own spin on what’s been asked. They should simply answer the question instead. 

Glen Jackson learned that lesson the hard way recently.

Jackson faced charges in the Eastern District of Arkansas for aiding and abetting the violation of another person’s rights, which are federal offenses under 18 U.S.C. Sections 2 and 242.

After his conviction and sentencing, he appealed to the Eighth Circuit, complaining about the way he was cross-examined about a prior conviction for attempted capital murder.

During his direct examination, Jackson admitted to the prior conviction. Unfortunately, he didn’t stop there:

Jackson asserted that the jury had sentenced him to the statutory minimum because "[t]here's no self-defense law in Arkansas."

During cross-examination, the prosecutor seized upon Jackson’s inability to answer his attorney’s question with a simple yes or no:

Over Jackson's objection, the district court allowed the prosecutor to cross-examine him about evidence presented at the attempted murder trial that was inconsistent with the implication that Jackson had acted in self-defense: after an argument with the victim, Jackson had followed him in his car, stopped him, shot him, and continued to shoot him after he fell to the ground.

The appellate court had little difficulty upholding the trial judge’s decision about the cross-examination:

We find no abuse of discretion. See United States v. Valencia, 61 F.3d 616, 618 (8th Cir. 1995) (when the defendant minimizes his guilt in discussing a prior conviction on direct examination, the district court does not abuse its discretion in allowing a more extensive cross-examination into the facts underlying the conviction to impeach the defendant's credibility).

If Jackson had a keener sense of local history, he might have kept his answers short and sweet.

The Honorable Susan Webber Wright presided over Jackson’s trial.

She’s had some prior experience dealing with at least one other witness who also couldn't bring himself to answer a question the right way. Jackson should have kept that somewhat notorious case in mind before he took the stand.

November 18, 2002
A modest Masters proposal to the New York Times

The NYT this morning editorialized about the Masters Tournament, Tiger Woods, and the dearth of women members of Augusta National, a private country club. 

While grudgingly admitting that Augusta President William “Hootie” Johnson is legally correct with respect to the freedom of association he and his fellow Augusta members enjoy as U.S. citizens, the NYT made a modest proposal about the tournament options available to others: 

The constitutional right to choose is real, but it is not limited to Mr. Johnson and his all-male choir. If the club that runs the Masters can brazenly discriminate against women, that means others can choose not to support Mr. Johnson's golfing fraternity. That includes more enlightened members of the club, CBS Sports, which televises the Masters, and the players, especially Tiger Woods.

How nice for the Times to suggest who should participate in a boycott (excuse the pun) of the annual spring ritual.

As long as they’re at it, I’d like to suggest a modest little addition to the NYT list.

None of the regular cadre of NYT sports reporters, or any of the other elements of the NYT, including those who sell advertising space in the paper, should have anything to do with the Masters. No AP re-writes, no agate-type statistics, nothing.

This may be a sacrifice for some readers of the NYT sports pages. Clifton Brown and other Times sportswriters often provide graceful prose about golf. I’m sure they’d like to cover the Masters as much as any other golf writer.

On the other hand, there’s a principle involved here. If the NYT so strongly opposes the legal exercise of constitutional rights, then the paper should avoid taking any steps to profit from an event held by those doing the exercising.

Find something else to make money for the newspaper than The Masters.

Take no ads.

Provide no coverage. 

This way, no ancillary, "brazenly discriminat[ory]" Masters income will sully the NYT’s coffers. 

That morally pure approach would make the NYT editors’ suggestion that others skip the tournament quite a bit more persuasive, don’t you think?

November 18, 2002
The Harry Potter/Chamber of Secrets Bonus

We took part in another movie blockbuster weekend, by managing to obtain tickets to the Sunday 5 pm showing of Harry Potter and the Chamber of Secrets. [No spoilers.-Ed.]

It was enjoyable, but there were parts that would scare a six-year-old.

I highly recommend staying through the entire credits. There's a nicely amusing little scene that is saved for the very end, and well worth the wait.

November 18, 2002
Soggy Bloggy Weekend

Note to self: try to avoid scheduling a Beach Blogger Weekend during a three-day nor'easter. Otherwise, expect only fellow Delawareans to appear.

Folks who aren't from around here might not share your enthusiasm to watch storm-driven waves crashing on shore. At least, not when the waves are less than 120 yards from where they are standing.

I enjoyed meeting Dave Cobrianchi and Bill Slawski very much. The friendly folks at Dogfish Head Brewings & Eats served great pizzas and even better beer.

Both Cobrianchi and Slawski gave me the impression that they are brewpub connoisseurs. (Sample dialogue: "Say, this one's really hoppy, don't you think?" "Yeah, but it's good." "Mm-mn. Yeah."). This jointly-shared talent may come in handy the next time we meet.

Dave made a day-trip of it, but Bill stayed over, and we met again for Sunday brunch as planned. Additional pleasant conversation ensued, with a few more surprises of the usual Delaware variety ("Oh, you know so-and-so, too, do you?").

Nor'easters are rare in late spring. I'll see about hosting another blogger confab, maybe in early May.

November 17, 2002
Two Claudes, in a runoff

An AP headline running at the WaPo website earned a couple Claudes for the way it described the upcoming second election for U.S. Senator for Louisiana:

GOP Targets Landrieu in La. Runoff

Under normal circumstances, and considering that Landrieu is the Democratic incumbent, that would be the expected Republican strategy, now wouldn't it?

As sometimes happens with Claude-worthy headlines, however, the story beneath it was nowhere near as predictable as the not-so-bold text used to draw the reader's attention to it.

AP writer Guy Coates (is that Gee with a hard G?-Ed.) pointed out the internecine skirmishing that still plagues the GOP leadership's efforts to unify behind a single candidate, even after the election results made Suzanne Haik Terrell the leading GOP candidate:

Louisiana Republicans have yet to unite behind Terrell, a 48-year-old lawyer. Rep. John Cooksey, who finished third in the primary, withheld his endorsement, saying Terrell may have been involved in a "smear campaign" tying him to support of homosexual rights. She denied the charge

GOP Gov. Mike Foster has not backed Terrell, either, saying ads that claimed Landrieu lives in a Washington mansion amounted to "class warfare." Terrell said the ads were placed by the national Republicans.

This situation is a bit unusual. I would normally expect Democratic party officials to continue the infighting if one of their three candidates won the right to be in the runoff. Republicans usually present a unified front, even if vicious private tiffs remain.

If Coates' reporting is on the money, there could have been a far more enticing headline to his story. Something like:

La. GOP threatens to grab defeat from victory's jaws in Senate runoff


Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


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© Frederick H. Schranck 2002