Bad Ideas

Scott Blauvelt Above the Law Nude Naked.JPGRemember Scott Blauvelt, the former Ohio prosecutor who was charged with public indecency, for allegedly walking around his office in the nude? Time for an update:

Charges of public indecency were dropped [last week] against an ex-city prosecutor because of a paperwork problem. But officials said they would re-file the case against Scott Blauvelt, who has been accused of walking through public buildings after hours in the nude.

“A technicality is causing us to re-file the paperwork,” Butler County Sheriff’s Chief Deputy Anthony Dwyer said Tuesday.

What was this “technicality”?

Blauvelt had pleaded not guilty by reason of insanity to two counts of public indecency in Municipal Court, where he worked from March 2005 until he was fired last month. A judge dismissed the charges Tuesday after authorities acknowledged they were filed under an outdated section of law.

See? When your legal research instructor read you the riot act about Shepardizing and Keyciting, it was for your own good.
Blauvelt’s lawyer challenged the charges on several grounds, including those offered by Professor Orin Kerr:

Gmoser argued the charges against Blauvelt never should have been filed, because his alleged nude strolls were unlikely to be seen by anyone in a public office building that is nearly deserted at night.

While Blauvelt’s unclothed ambulation may have been ill-advised, was it really illegal? We once heard a story about a female partner walking into the ladies’ room late on a Saturday night, where she found an associate and his girlfriend getting it on. Clearly they were guilty of poor judgment (and taste). But were they guilty of “public indecency,” considering that they were doing it in the relatively private place of the ladies’ room, late on a Saturday night?
(Actually, considering that the story supposedly took place at a big law firm in New York, one might reasonably expect people to be around on a Saturday night. But government offices in Ohio? Let’s get real.)
Charges Dropped Against Lawyer [Cincinnati Enquirer]

Janet Reno Above the Law.jpg* Several federal law all-stars have filed amicus briefs in the 4th Circuit — which means a lucky clerk now has Janet Reno’s autograph! [SCOTUSBlog]
* Gun makers challenge a finding that lawsuits are legal. [Indy Star via How Appealing]
* “A lineup of legal heavyweights unusual even by Supreme Court standards is doing battle in a case pitting Wachovia Corp. against Michigan banking regulators.” [Bloomberg via How Appealing]
* Appellate law 101: Careful what you say at oral argument, they’re kind of picky about accuracy. [CNN]
* “Marijuana-for-homework mom gets 3 months.” [MSNBC]

oj simpson mug shot Above the Law no pun intended.jpgThe most infamous case of the last century has turned into one of the biggest P.R. disasters of this one.
After nearly universal criticism, from both within and outside the company, the News Corp. has pulled its plans to publish a book by O.J. Simpson — and to air a television interview with him — in which the ex-football star describes how he “might” have killed Nicole Brown Simpson and Ronald Goldman.
Hypothetically, mind you. ‘Cause he didn’t. And he is still searching America, or at least every golf course in America, for the person who murdered his ex-wife.
(News flash: Even Rupert Murdoch will only go so far — or sink so low.)
For those of you who are well-versed in the legal issues surrounding publishing contracts, some questions from the Washington Post:

Who owns the book now? Will Simpson still be paid? And what will happen now to Regan, whom many in the industry condemn for what they consider bottom-feeding instincts while grudgingly admiring her audacity?

Some info about these issues, from the New York Times:

Standard publishing contracts call for a percentage of an author’s advance, usually up to 50 percent, to be paid when a contract is signed, and for the remainder to be paid when the finished book is accepted by the publisher. The [anonymous] executive [involved in the deal] said Mr. Simpson’s book was covered by a standard publishing contract.

In an interview last week, Judith Regan, the publisher, said ReganBooks, an imprint of HarperCollins, had signed a contract with “a manager who represents a third party” who owned the rights to Mr. Simpson’s account.

Because the News Corporation and ReganBooks decided on their own to cancel the book and the television special, that money is likely to still have to be paid.

Your further thoughts are welcome, in the comments or via email.
Under Pressure, News Corp. Pulls Simpson Project [New York Times]
News Corp. Pulls Plug On O.J. Book, Fox Special [Washington Post]
Earlier: This Is Why the Founding Fathers Gave Us the Double Jeopardy Clause

law library Above the Law.jpgBrian T. Valery is our hero. He figured out a way to save $100K on a legal education — namely, by not getting one. From

Brian Valery is under fire for his pro hac vice appearance in a 2005 complex litigation case heard in Stamford, Conn. His motion to appear, which went unopposed, was based on his affidavit stating he was an attorney in good standing at the New York City firm of Anderson Kill & Olick. He also claimed to be a member of the New York Bar with no history of discipline.

As it turns out, Valery not only isn’t a member of the Bar, there’s no record that he ever applied or sat for the bar exam in New York or even set foot in a Fordham Law School classroom, which he told Anderson Kill partners he was doing at night to advance his career beyond that of a paralegal, Connecticut grievance officials say….

Valery, after working at Anderson Kill [as a paralegal] since 1996, told the firm in 2004 he had passed the New York Bar. Partners at the 132-lawyer firm have conceded to Connecticut grievance authorities that they regrettably took Valery at his word.

Oh Emily, if only you hadn’t sent that email, you could have tried this trick too.
Anderson Kill Discovers ‘Associate’ Is Not a Lawyer [Connecticut Law Tribune]Bryan Valery Brian Valery Brian T Valery Bryan T Valery.JPG

Emily Pataki Emily Pataki Emily Pataki Above the Law Legal Blog.JPG* Emily Pataki, the attractive and accomplished daughter of New York governor George Pataki, failed the New York bar exam — and sent around an office-wide email about it. The story was broken by the mainstream media.
* We heard from some of Emily’s law school classmates about the incident. In a reader poll, you opined that emailing her White & Case colleagues was unwise.
* The Democratic takeover of the Senate could make things tough(er) for the White House’s judicial nominees.
* Despite the sea change in Washington, President Bush resubmitted six controversial judicial picks to the lame duck Senate. Getting all of them confirmed is probably impossible, but getting two of them through might happen.
* The White House has not yet submitted nominees for the two vacant Fifth Circuit seats. (Texas’s Solicitor General, conservative legal superstar R. Ted Cruz, is said to be uninterested.)
* Borat-related litigation shows no signs of abating.
* O.J. Simpson: He’s back — and he’s still looking for his wife’s killer. Except this time, he’s looking in the mirror.
* Some bad ideas from the past week: getting frisky on an airplane; setting your ex-girlfriend’s kittens on fire; having sex with a deer (even if it’s dead); eating at Burger King or Taco Bell; and getting married without a prenup (if you’re a filthy rich Hollywood celebrity).
* Over the past few days, we’ve been spending some quality time with the Federalist Society. More reports on the proceedings — including lavish photography — will appear in the coming week.

email e-mail message microsoft outlook Above the Law.jpgWe recently quoted from this reader comment:

Repeat after me: an office wide email is never, ever a good idea.

This advice, while generally sound, is slightly overbroad. We can think of at least one occasion when an office-wide email is appropriate.
When you leave a job, it’s perfectly appropriate to send around a farewell email to the entire office, if you are so inclined. You should talk about how much you enjoyed working there, thank your colleagues for a great experience, mention your future plans, and provide your contact information (if you wish).
Try to refrain from writing things like this:

While I have a high degree of personal respect for PHJW as a law firm, and I have made wonderful friendships during my time here, I am no longer comfortable working for a group largely populated by gossips, backstabbers and Napoleonic personalities. In fact, I dare say that I would rather be dressed up like a pinata and beaten than remain with this group any longer. I wish you continued success in your goals to turn vibrant, productive, dedicated associates into an aimless, shambling group of dry, lifeless husks.

Yep, that’s a quote from an actual good-bye email, which an ex-Paul Hastings associate sent to his former colleagues. You can read the complete email here.
This email is an old one. In the future, the next time you receive a scandalous or funny email message at work, please forward it to us (tips AT abovethelaw DOT com). We love to reprint such emails in these pages. Thanks!
Paul, Hastings: “Gossips, Backstabbers and Napoleonic Personalities” [Gawker]

deer sexy deer Above the Law.jpgBestiality-oriented necrophiliacs who live in Wisconsin, we bring you some potentially good news. In the next few weeks, a court could hold that you may have your way with whatever animals you please — as long as they’re dead.
From The Smoking Gun:

Meet Bryan James Hathaway, alleged venison lover. The Wisconsin man, 20, is facing charges that he had sex last month with a dead deer. Hathaway, who previously has served time for killing a horse he intended to sexually assault, allegedly found the deer in a ditch alongside a roadway.

Now Hathaway’s lawyer has filed a court motion (a copy of which you’ll find here) arguing that since the animal was already dead, Hathaway should not face a misdemeanor rap of sexual gratification with an animal. “The statute does not prohibit one from having sex with a carcass,” lawyer Fredric Anderson wrote in the motion filed in Douglas County Circuit Court.

Anderson isn’t trying to be a wise-ass; he has a plausible argument of statutory interpretation. Here’s an account of the court hearing on the motion, from The Daily Telegram:

The Webster’s dictionary defines “animal” as “any of a kingdom of living beings,” Anderson said. If you include carcasses in that definition, he said, “you really go down a slippery slope with absurd results.”

Anderson argued: When does a turkey cease to be an animal? When it is dead? When it is wrapped in plastic packaging in the freezer? When it is served, fully cooked?

Sounds persuasive to us. So how did the prosecution respond? Well, they got a little Platonic on defendant’s ass:

“The common and ordinary meaning of a word can be found in how people actually use the word,” Boughner wrote in his response to the motion.

When a person’s pet dog dies, [Assistant District Attorney James Boughner argued], the person still refers to the dog as his or her dog, not a carcass.

“It stays a dog for some time,” Boughner said…. “It did not lose its essence as a deer, an animal, when it died,” he said.

We hope the defendant prevails. ‘Cause we’re really looking forward to Thanksgiving.
Can You Get Dear With A Dead Deer? [The Smoking Gun]
Case Presents Unprecedented Challenge [The Daily Telegram]

airplane cabin 2 Above the Law Legal Blog.jpgSome updates and corrections to our post from yesterday, And Don’t Even Think About Joining the “Mile High Club”. We quoted an AP article that begun thusly:

A couple’s ill-concealed sexual play aboard a Southwest Airlines flight from Los Angeles got them charged with violating the Patriot Act, intended for terrorist acts, and could land them in jail for 20 years.

First, a correction. The couple wasn’t charged with violating the Patriot Act, but with violating 49 U.S.C.A. § 46504. As Professor Orin Kerr explains, this provision was amended by the Patriot Act, but “the substantive offense that was charged dates back to the 1960s.”
Second, an update. The couple may have needed air sickness bags rather than a hotel room. From a later AP piece:

A man arrested for allegedly engaging in “overt sexual activity” with his girlfriend on an airliner was lying with his head on her lap because he wasn’t feeling well, his attorney said.

That gesture was misinterpreted by a flight attendant, who humiliated and harassed the couple, said attorney Deb Newton, who represents Carl Persing.

But we can’t blame the flight attendant for misinterpreting things. After all, the woman was “observed smiling.”
Chicken or beef? We’ll have what she’s having.
Lawyer: Man Felt Sick — Not Sexy — on Plane [CNN]
Earlier: And Don’t Even Think About Joining the “Mile High Club”

airplane cabin flight attendant steward Above the Law.jpgJeez, the terrorists really HAVE won. They’ve sucked all the fun out of flying:

A couple’s ill-concealed sexual play aboard a Southwest Airlines flight from Los Angeles got them charged with violating the Patriot Act, intended for terrorist acts, and could land them in jail for 20 years.

According to their indictment, Carl Persing and Dawn Sewell were allegedly snuggling and kissing inappropriately, “making other passengers uncomfortable,” when a flight attendant asked them to stop.

“Persing was observed nuzzling or kissing Sewell on the neck, and … with his face pressed against Sewell’s vaginal area. During these actions, Sewell was observed smiling,” reads the indictment filed by the Federal Bureau of Investigation.

Help us out here. How does “pressing one’s face” against the “vaginal area” of a fellow passenger violate the Patriot Act? Especially if that passenger is “observed smiling”?

On a second warning from the flight attendant, Persing snapped back threatening the flight attendant with “serious consequences” if he did not leave them alone.

The comment was enough to have the couple, both in their early 40s, arrested when the plane reached its destination in Raleigh, North Carolina, and charged with obstructing a flight attendant and with criminal association.

Okay, that makes more sense. Press all you want into the “vaginal areas” of your fellow passengers (provided, of course, that you know them and they consent). Just don’t threaten the stewardess flight attendant when ordered to stop, and you’ll be fine.
Update: Professor Orin Kerr has some doubts about this case. See here.
Further Update, and Correction: They weren’t charged under the Patriot Act, but under 49 U.S.C.A. § 46504. See Professor Kerr’s update. Serves us right for not looking at the indictment ourselves.
Mid-flight Sexual Play Lands US Couple Afoul of Anti-Terrorism Law [Associated Press]

Borat Above the Law Legal Blog Law Gossip Borat.JPGOn Friday night, we saw Borat at our local movie theater. We found it hilarious for the first fifteen minutes, before it turned repetitive. That said, there were some impressive set pieces in the second half of the film, such as the hotel room wrestling match.
(We viewed Borat on the recommendation of one of the Elect, and we spotted another in the theater. Supreme Court clerks: They’re just like us!)
If you’d like to know more about how the film was made, including who was in on the joke and who wasn’t, check out this Guide to Borat, from Salon (via How Appealing). According to Salon, most of the people who interacted with Sacha Baron Cohen in the movie were NOT in on the joke.
Commenting on “Lexytime” — our prior post about Borat, concerning two fraternity brothers who are suing the film’s producers — Tortious Malfoy wrote:

If you had seen the movie you would know why they’re suing: they went on a racial rant about how they wish they could still own slaves, women were nothing, and alot of other hostile stuff. Don’t think they’ll be getting much love in the South anytime soon, especially considering the movie’s reach.

Actually, if Borat’s portrayal of the South is even halfway accurate, we think that the plaintiffs might be embraced by southerners (e.g., the people at the rodeo, the gun store owner, etc.).
Having seen Borat, we actually have the opposite reaction to what Tortious Malfoy predicted: We are LESS sympathetic to the fraternity brothers’ lawsuit against 20th Century Fox and One America Productions. The frat boys are recorded drinking, watching porn, and spewing racist and misogynistic statements. And now they’re upset because, among other things, they thought that the movie would only be screened in Europe? Please.
Furthermore, we agree with this commenter at the WSJ Law Blog. In vino veritas. If the frat boys come across as racist and misogynist, well, maybe there’s a reason for that.
We also note that the frat boys’ lawsuit is counterproductive, due to the Robert Steinbuch effect. By filing a lawsuit, the plaintiffs are only highlighting the actions and statements of theirs that they did not want exposed to public view.
The impoverished Romanian villagers who are now thinking about suing over Borat are far more sympathetic than the frat boys. Regardless of the legal merits of the contemplated action, Cohen and the production companies might as well throw some money in the villagers’ direction, especially in light of Borat’s financial success.
A bunch of poor, exploited Romanian villagers are sure to arouse some public sympathy. Especially this man:

Mr Tudorache, a deeply religious grandfather who lost his arm in an accident, was one of those who feels most humiliated. For one scene, a rubber sex toy in the shape of a fist was attached to the stump of his missing arm – but he had no idea what it was.

Borat was number one again at the box office this past weekend, taking in another $28.3 million. Surely Cohen and Fox can afford to do something nice for the villagers. Like buying Mr. Tudorache a fist dildo made of glass, not rubber.
* The plaintiff frat boys are represented by the very handsome Olivier Taillieu. Here’s an excerpt from his unintentionally amusing bio:

[Olivier clerked] for the Honorable A. Wallace Tashima on the U.S. Court of Appeals for the Ninth Circuit, one of the most prestigious and sought-after clerkships in the country. Following his clerkships, he entered private practice as a litigator in the Intellectual Property and Technology Department in the Los Angeles office of O’Melveny & Myers, LLP, one of the top 15 law firms in the country as ranked by revenue by The American Lawyer.

Now, we are the last people to dispute the prestige of a Ninth Circuit clerkship and a Biglaw gig. But traditionally law firm bios merely list these credentials, without the grandiose description.
(Then again, self-promotion is to be expected from a former contestant on the short-lived, ill-fated reality TV show, The Law Firm.)
Earlier: Prior Above the Law coverage of Borat (scroll down)
Collected Borat coverage [How Appealing (linkwrap)]
Guide to Borat [Salon]
Borat film ‘tricked’ poor village actors [Daily Mail]
Olivier A. Taillieu, Esq., bio [Zuber & Taillieu]

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