Dubious Defenses

Are You Allowed to Have a Biglaw Job If You Need to Sleep All the Time?

By Elie Mystal

Sleeping Beauty: Not on the fast track to partnership.

I’m a big believer in forcing society to make reasonable accommodations for disabled people. It’s not too much to ask that disabled people be provided with handicapped accessible taxi cabs and buildings. And a special parking spot. Or whatever. If there’s a reasonable thing that society can do to make it a little bit easier to function with a disability, we should do it.

As long as we’re dealing with a real disability.

We used to live in a world where it was pretty easy to identify a disabled person. “Hello. Hello? Oh, you must be deaf.” “Hey, why are a you miserable cuss who keeps screaming ‘hoo ha’ at me? Oh, you must be blind.” “Why did you take out a hundred thousand dollar loan to go to a school that doesn’t help people get high-paying jobs? Oh, you must be retarded.” Man, those were the days.

Sadly, we now live in a world where it’s harder and harder to separate out the really disabled people from those who just can’t get their stuff together. To cope, I’ve developed my own little test: if I wouldn’t want the disability, it’s a real disability. If I’d gladly take the “disability” in exchange for a cash payout, it’s probably fake.

So let me ask you this: would you take a cash payout from your Biglaw firm if I afflict you with the dreaded “I’m really sleepy” disability? Yeah, this woman would too….

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The Naked Truth Always Comes Out in Court (But Not Like This)

By Staci Zaretsky

Last month, there was some controversy out in California about public nudity. In San Francisco, it’s totally legal to prance around naked all day long, but local nudists were upset when they found out they might soon be forced to put down a towel before sitting buck-ass-naked on public seats.

Now a similar controversy has traveled to New York — not over increased restrictions on nudity, but whether there can be public nudity at all. Holly Van Voast, a 45-year-old activist for the cause, has had her fair share to say about it. And by “say,” I of course mean “show.”

Van Voast has grinned and bared it all — in Times Square, on the Staten Island Ferry, and most recently, in the middle of Grand Central Station. One of these public displays of middle-aged nudity landed her in Midtown Community Court yesterday, where the naked truth was revealed….

WARNING: A photo of a topless Van Voast — tastefully redacted, of course — appears after the jump. If you can’t handle it, or if you’re not in a place where you can view a (tastefully redacted) photo of a topless woman, please stop reading here.

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Some Notes on Swine Flu

By Elie Mystal

Swine Flu law schools.JPGThere is little chance that the American experiment would have survived a serious outbreak of the bubonic plague. The Athenians fought a war while stricken with the plague. Granted, it didn’t go so well, but that’s not the point. But a couple of kids get a new strain of spring flu (which is at least as accurate of a name for it as “swine flu”) and people start losing it.

Of course, law students are nothing if not susceptible to mass hysteria. Take this message that students at Loyola – Los Angeles received:

Dear Students,

Please be advised that students will be permitted to wear breathing masks during an examination. If a student chooses to do so, he/she will be permitted to bring and use the mask at his/her seat in the examination room. This policy will remain in effect through the end of the 2009 Spring examination period. Thank you.

Office of the Registrar Loyola Law School

On the one hand, are people really wasting precious exam cramming time worrying about swine flu? Really?

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Department of Dubious Defenses: Calling women “hormonal messes” is just a cultural thing

By Kashmir Hill

santosh potdar.jpgA fun part of traveling is observing “cultural differences.” It’s okay to pick your nose in public in some parts of Kenya, to comment on someone’s significant weight gain in the Philippines, and to burp mid-meal in India. The practices may not be your cup of tea, but that’s the fun of exploring other cultures. But what about a culture of gender discrimination in the workplace?

A group of female hospital administrative staff have filed a lawsuit in Ohio against Summa Health Systems and Dr. Santosh Potdar alleging gender discrimination. Among their allegations against the doctor, from the complaint:

  • Potdar referred to them as a “Bunch of B*tches,” “Hormonal Messes,” and a “F*cking Lesbian.”
  • Potdar “[made] gender-based, derogatory and offensive statements and display[ed] gender animus by stating, among other things, that ‘women should not work outside the home’ and by telling one Plaintiff that ‘he feels sorry for her husband that he has to deal with you’ and ‘he feels sorry for her father that he had only daughters.”
  • Potdar “subject[ed] Plaintiffs to verbal attacks, insults, degradation and humiliation, including, among other things, calling them a ‘Bunch of Monkeys.’”

    So we assume Potdar would prefer to have the hospital populated with Gaylord Fockers.

    Our favorite part of this lawsuit is the defense put forth by the hospital, according to the plaintiffs. From the complaint:

    Summa’s Human Resources Department told Plaintiffs that they were “working on it” and, at one point, they attributed Dr. Potdar’s treatment of women to “cultural” differences.

    We’re unsure where Potdar is from — according to the press release announcing his arrival, he was previously head of a medical center in Pennsylvania — but apparently he’s been listening to too much Jay-Z. Summa has not yet filed an answer, but we do hope the hospital’s lawyers come up with a better defense than “cultural differences.”

    Complaint from Summit County Clerk of Courts

    Case Details [Summit County Clerk of Courts via Courthouse News Service]

    From the Department of Dubious Defenses: Have you seen that Seinfeld episode?

    By Elie Mystal

    Seinfeld.jpgJerry Seinfeld is stuck in a bit of a legal mess (and it’s not the first time). He and his wife have been sued by cookbook author Missy Chase Lapine, who claims that Jessica Seinfeld plagiarized her recipes for the best-selling Deceptively Delicious Cookbook. Deceptive, indeed.

    Then Jerry went on David Letterman and made jokes about Ms. Lapine, comparing her “to ‘wackos’ who had stalked Letterman. Seinfeld added that the ‘hysterical’ Lapine was a ‘three-name woman’ and ‘if you read history, many of the three-name people do become assassins.’” So then Lapine hit him with a slander lawsuit. It’s a Seinfeld episode gone horribly, horribly wrong. Kind of like the last, really unfunny episode of the series, which also took place in a courtroom.

    Now, Jerry is seeking summary judgment claiming that “his remarks were consistent with a ‘recurring theme’ of his comedy and not slanderous.” Here’s an excerpt from the motion from Smoking Gun:

    1007082seinfeld3.gif

    So his defense is along the lines of, “Have you seen that one episode of Seinfeld?” Seinfeld references usually work among friends, but will they do the trick in the Southern District of New York?

    Cosmo Kramer, Exhibit A [The Smoking Gun]

    Earlier: Rich Celebrities Trying To Stiff Their Broker: “What’s the Deal With That?”

    From the Department of Dubious Defenses: Small Is Beautiful

    By David Lat

    tiny penis small penis.jpgA growing trend in criminal defense: invoking your modest endowment as exculpatory evidence.
    Back in March, we wrote about this case, in which a Florida defendant argued that his penis was too small to inflict the injuries sustained by a rape victim. Now we hear about a more extreme version of the “size matters” defense, from the Houston Chronicle:

    Houston’s 14th Court of Appeals on Tuesday upheld the conviction of a local doctor for indecent exposure.

    The court rejected the argument by high-profile attorney Dick DeGuerin and his associate Neal Davis that the doctor could not have exposed himself to an undercover cop because that which is alleged to have been exposed is too small to have been seen.

    Too small to be seen? Some defendants would rather serve time than rely upon this defense.
    Alas, the defendant doctor got the worst of both worlds: the world now knows about his wee wee-wee, and he was convicted (with the conviction affirmed on appeal). Columnist Rick Casey sums it up:

    The bottom line: This is a case that could be described as de minimis, a legal term defined by Black’s Law Dictionary as “1. Trifling, minimal. 2. (Of a fact or thing) so insignificant that a court may overlook it in deciding an issue or case.”

    Quips our tipster: “So much for the myth that everything is bigger in Texas.”
    Accused flasher loses ‘to small to see’ defense [Houston Chronicle via Legal Blog Watch]
    Earlier: From the Department of Dubious Defenses: If the Trojan Mangum Don’t Fit, You Must Acquit

    From the Department of Dubious Defenses: Let’s Go to the Videotape

    By Kashmir Hill

    Willie Gary.jpgWillie Gary is a high-profile Florida attorney who is fighting a sexual battery civil suit. Check out his inventive defense strategy, described by Legal Blog Watch:

    Prominent Florida attorney Willie Gary has released two sex tapes that he says help disprove claims made in a sexual battery suit against him…
    This week, in a bid to get the case thrown out, Gary’s lawyers filed two videos with the court allegedly showing her having consensual sex with Gary’s son Kenneth. The lawyers say the videos were made eight days after the alleged sexual assault and help disprove the woman’s claims against Gary. “She claims she was assaulted by the father yet, a week later, she’s making an amateur sex video with the son,” said West Palm Beach lawyer Michael Pike.

    As noted by both Legal Blog Watch and the WSJ Law Blog, Gary’s website bio brags about his rise from migrant worker to multimillionaire attorney, with three “posh waterfront offices” and a custom designed Boeing 737, named “Wings of Justice II.”
    Despite all the bling, the welcome video on www.williegary.com is distinctly low-budget. Don’t waste your time watching it — it’s a plea to clients to sign up for his law firm’s newsletter. So that he can invite them to parties, and because he wants them “to hear about what’s going on with the Gary family.” Hmmm…. Would that include the news of Papa Gary and Baby Gary’s apparent penchant for swapping sex partners?
    The Willie Gary Sex Tapes [Legal Blog Watch / Law.com]

    ATL International: ‘We were just role-playing a German prison, not a Nazi German prison.’

    By Kashmir Hill

    Mosley_orgy.jpgBritish barrister Max Mosley is the president of the International Automobile Federation (F.I.A.). When he’s not overseeing Formula One, he’s allegedly into sadomasochistic sex play. Unfortunately for him, a $5,000 “party” that he arranged was caught on hidden cameras by News of the World, a British tabloid. The encounter, now on YouTube, involved German prison guards and lots of spanking.

    Mosley is now seeking punitive damages from News of the World for invasion of privacy — and for giving the story a Nazi spin. Such suits are almost never a good move from a PR-standpoint, since the trial brings even more attention to the source of embarrassment. Now every one from the New York Times to ESPN is reporting on it.

    Taking the witness stand at the start of a two-week High Court hearing, Mosley said he had paid $5,000 for the “party,” but insisted no Nazi fantasies were involved. The News of the World said participants wore German-style uniforms and spoke in German as they acted out scenes involving prisoners and guards.

    Mosley said he and the women had acted out a German prison scenario, but without any military aspect.

    Next time, Mosley should probably stick to British prison scenarios, to avoid the possible Nazi confusion.

    The Nazi allegations are especially sensitive because Mosley is the son of the late Oswald Mosley, leader of Britain’s fascist movement before World War II and a friend of Adolf Hitler.

    “There was not even a hint of that,” Mosley said of the Nazi claims. He said he could “think of few things more unerotic than Nazi role-play.”

    But, apparently, having a prison guard tell him to bend over a bench does the trick. More salacious details, after the jump.

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    From the Department of Dubious Defenses: If the Trojan Mangum Don’t Fit, You Must Acquit

    By David Lat

    Trojan magnum condom Above the Law blog.jpgCheck out this rather odd appeal from Florida, arising out of a prosecution for sexual assault charges. The defendant was originally charged with three counts of sexual battery, but was convicted on lesser included charges of misdemeanor battery.
    One of the issues was whether the trial court should have granted a continuance based on the availability of a defense witness (even though the defense failed to move for a continuance at the time). From the opinion (PDF):

    Defense counsel proffered one aspect of the urologist’s testimony: because Tyrrell’s penis was “smaller than average size” it “could not have caused” the injuries that Nurse Gibson observed during the rape exam.

    You don’t normally see a man proclaiming his small penis size in public proceedings. But if a teeny weenie is a “get out of jail free” card, expect the defendant to play it. Think of it as the flip side of that Japanese appeal, in which a busty babe overturned her conviction by arguing that she was too well-endowed to fit through a hole she allegedly used to enter a building.
    Our tipster described a second strange argument raised by the defense:

    [The defense also argued] that the injuries were caused by the victim’s “aggressive” use of a dildo. [The opinion] mentions that the defense lawyer wanted the victim to identify the dildo from a “dildo lineup,” and that the defense attorney “extensively explored” the dildo issue with the victim on cross.

    Seriously. The words “dildo lineup” actually appear in the opinion (and not even in scare quotes):

    Tyrrell first argues that his “right to due process and right to confront witnesses” was violated because the state did not produce the [sex toys] that were the subject of the July 23 and August 2 orders….

    Tyrrell contends that the trial court erred in failing to let him show the victim a dildo lineup.

    If that doesn’t violate the Sixth Amendment’s Confrontation Clause, which guarantees a criminal defendant the right “to be confronted with the [dildos] against him,” we don’t know what does.
    Tyrrell v. State (PDF) [Florida Fourth District Court of Appeal]

    From the Department of Dubious Defenses: Shouting Fire in a Crowded… Airport?

    By David Lat

    Star Simpson MIT student fashion Above the Law blog.jpgIn the wake of our recent post about a dubious defense, here’s another one:

    A lawyer for an MIT student held at gunpoint after she walked into Logan International Airport wearing what authorities believed was a bomb asked a judge to throw out the charges Friday, saying the device was a legitimate form of free speech….

    Thomas Dwyer Jr., a lawyer for Simpson, said his client didn’t think her shirt would scare anyone. He said she’d been wearing the shirt for several days on the Massachusetts Institute of Technology campus, and it had not alarmed anyone….

    “People make these objects part of their identity. It’s a part of their personal expression,” he said. “They are legitimate forms of First Amendment expression.”

    Writes Blogonaut:

    [A] 9mm round from an airport police handgun might be a legitimate “free speech” reply to a person with a battery-powered rectangular device on their chest with flashing lights and apparent plastic explosive in their hands.

    The marketplace of ideas. Ain’t it grand?
    P.S. Is the Tom Dwyer involved in this case the well-regarded Thomas E. Dwyer, Jr., of Dwyer & Collora (formerly Dwyer, Collora & Gernter, before Nancy Gertner was appointed to the federal bench)? If so, we’d expect a former state and federal prosecutor to offer a more compelling defense.
    P.P.S. In fairness to Dwyer, another argument he’s making — that state law does not clearly define a “hoax device” — seems stronger.
    Woman charged with wearing fake bomb says device was free speech [Worcester Telegram via Blogonaut]
    Earlier: From the Department of Dubious Defenses

    From the Department of Dubious Defenses

    By David Lat

    world's greatest dad mug Above the Law blog.jpgDefendants in deep doo-doo come up with all sorts of innovative defenses. Last week, we learned that fashion mogul Dov Charney, accused of sexually harassing a former employee, claimed in a deposition that when he appeared before the plaintiff wearing nothing but a strategically placed sock, he was merely testing a new line of underwear.
    But this is even more dubious. At a murder trial underway in New York, a father accused of killing his seven-year-old stepdaughter has introduced into evidence a “World’s Greatest Dad” mug she once bought for him.
    If the mug has writing on it, you must acquit.
    ‘World’s Greatest Dad’ Mug Seen In Nixzmary Trial [wcbstv.com]
    Implausible defense department [Overlawyered]