Sunday, November 10, 2013

More Great Moments in Law

Some amusing legal incidents from the last few days plus an item from the US . . .

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Great Moment 1:

“You will have to delete that expression from your lexicon when we go to trial.”

- Barrister (who shall remain nameless) to my ethnic client in conference this week, referring to an expression the client uses. The client has poor English language skills and an interpreter has been ordered for the hearing that is coming up.



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Great Moment 2:

Myself to client: “You have shown your family dog, along with your daughter, as a financial dependent?”

Client: “Do you know how much that dog costs me with food and vet bills?”

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Great Moment 3

No 1 son had a mention in the Court of Criminal Appeal last Thursday. I went with him because I had a matter in a nearby tribunal a little later.   Whilst we were waiting in court for his matter to come up, the Registrar dealt with a matter where the other party was representing himself and appeared via audio visual link insofar as he was in custody.

Inmate: “It’s like this, Your Honour.”

Registrar: “Address me as ‘Registrar’ “

Inmate: “Okay, it’s like this, Your Registrar . . .”

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Great Moment 4

(This has been the subject of an earlier, briefer post in Bytes).

As has been seen in past Bytes, American judges are much flamboyant, eccentric, bizarre and just plain weird than those in England and Australia.

The following case continues that tradition.

People v. Arno
153 Cal. Rptr. 624, 628 n.2 (majority), 644 n.14 (dissent) (Cal. Ct. App. 1979).

In 1975 Norman Arno and Leonard Steer were convicted in the municipal court of three counts of possessing obscene films with intent to distribute. Whilst in an office suite, from where they ran their business, they had been kept under observation by police officers in the opposite building, looking into their windows with 10-power binoculars.

Arno and Steer appealed their conviction, the appeal coming before the California Court of Appeals in 1979. Sitting on the appeal were Judges Thompson, Lillie and Hanson.

The main issue was whether evidence based upon a view of business premises aided by the use of high powered binoculars was illegally obtained evidence. At that time the issue of optically aided view had not been addressed in California.

The majority, Judges Thompson and Lillie, decided as follows:

1. the use of optical aids in the nature of binoculars, telescopes and the like is not itself determinative of the admissibility in evidence of the product of the observation; 

2. the primary determinative factor is the presence or absence of a reasonable expectation of privacy of the person whose conduct, property, or documents is observed; 

3. reasonable expectation of privacy in the context here is tested by the extent to which the person has exposed his conduct, property, or documents to public view by the naked eye; 

4. if the purpose of the optically aided view is to permit clandestine police surveillance of that which could be seen from a more obvious vantage point without the optical aid, there is no unconstitutional intrusion; and 

5. if the purpose of the optical aid is to view that which could not be seen without it, there is. 

The majority also said:

“We recognize that special circumstances involving a high degree of danger to life or property may permit an optically aided view and that there may be situations in which probable cause may be established to the satisfaction of a magistrate so that the aided view may be authorized by a warrant. We do not reach those latter issues on the record here.”

Put simply, the surveillance was unlawful because the defendants’ constitutionally protected reasonable expectation of privacy was breached by the use of high power binoculars, the evidence was out and the conviction was overturned.

The majority decision did not sit well with Judge Hanson. He wrote a strident, lengthy and detailed dissenting judgment which included the following:

The majority opinion appears to me to be somewhat unclear and contains some contradictory statements. However, as I read it, it has either misapplied the irrational exclusionary rule . . . or has ignored judicial precedent . . . 
. . . the majority opinion as I construe it has the net practical result of unduly restricting law enforcement officers' utilization of binoculars while engaged in their official duties of detecting and acquiring evidence of a wide range of criminal activities involving pornography, narcotics, prostitution, pimping, bookmaking and the like, irrespective of the magnitude of the operations. This latter group of crimes has been loosely referred to as "victim-less crimes" which is a gross misnomer. There are no victim-less crimes. Society is the victim. {Page 90 Cal.App.3d 538} The majority opinion in my view unduly restricts law enforcement officers from protecting society's interest in respect to the commission of the types of crimes mentioned above. 

So Judge Hanson got it off his chest, implying that Judge Thompson, who had written the majority judgment, and Judge Lillie, who went along with it, were pro-smut.

This time it was Thompson and Lillie’s turn to be pissed off. They added a footnote to the case report:

FN2 We feel compelled by the nature of the attack in the dissenting opinion to spell out a response: 
1. Some answer is required to the dissent's charge. 
2. Certainly we do not endorse "victimless crime." 
3. How that question is involved escapes us. 
4. Moreover, the constitutional issue is significant. 
5. Ultimately it must be addressed in light of precedent. 
6. Certainly the course of precedent is clear. 
7. Knowing that, our result is compelled. (See Funk & Wagnall's The New Cassell's German Dict., p. 408, in conjunction with fn. 6 of dis. opn. of Douglas, J., in Ginsberg v. New York (1967) 390 U.S. 629, 655-656 [20 L.Ed.2d 195, 212-213, 88 S.Ct. 1274].)

As one writer has put it, look at the initial letters of the 7 points and then recall Country Joe McDonald at Woodstock shouting “What’s that spell? What’s that spell?”

The word “schmuck” is Yiddish in origin where it means “penis”. It has also come to mean someone who is stupid or foolish, or an obnoxious, contemptible or detestable person.

Judge Hanson, maintaining the dignity of the bench, let the matter rest there. Well, actually, no, he didn’t, I made that up. He added his own footnote in reply:

FN14 I have heretofore eschewed responding to footnote 2 of the majority opinion in kind since it would be beneath the dignity of this office. Although I still will not respond in kind, with the filing of a modification to footnote 2 on March 20, 1979, some comment is compelled. 
I decry the lack of propriety, collegiality and judicial temperament displayed in footnote 2. I abhor the loss of public respect for the legal profession and the judiciary footnote 2 has engendered by reason of the report in the Los Angeles Times on March 13, 1979 (circulation 1,034,329). One certainly cannot fault the Los Angeles Times for using an English dictionary (Webster's) since California published opinions for over 125 years have been written in English and our jurisdiction obviously does not extend seven thousand miles to the Rhine in Germany. 
I construe the Ginsberg reference in footnote 2 within the context of the case at bench as a personal affront to every California citizen and their duly elected representatives in the California State Legislature who have deemed it a wise public policy to enact our criminal obscenity laws and to all public servants charged with the responsibility of enforcing those laws. It is no wonder that California has the odious distinction of being the porno capital of the world.

They do things differently in America.



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Bonus Great Moment:

Speaking of brief, this must be the shortest judgment on record.  It is the entire judgment in 1970 case in the Michigan Court of Appeals:

“The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich.App. 259, 169 N.W.2d 326. He didn’t. We couldn’t. Affirmed. Costs to appellee.”

Michigan Court of Appeals Judge J. H. Gillis
Denny v. Radar Industries Inc., 28 Mich. App. 294, 184 N.W.2d 289 (1970)


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