It has gotta be a kick in the gut to learn that the boy you raised is not your real son.

To learn that fact in a lawsuit over the boy’s death is the stuff of Greek tragedy.

This tale begins in typically sad fashion: A drunk driver killed Michael Thompson as he rode his bicycle along the Pacific Coast Highway in California.

Michael’s dad, Russel Thompson, filed a wrongful death suit against the driver, the vehicle’s owner, and the City of Dana Point. (Michael’s mother had died after she and Russel divorced.)

Michael’s half-sister, Rhonda Scott, had other ideas and thought she had a family secret that would place her in the catbird seat.

Rhonda filed her own wrongful death suit, adding a claim to rebut Russel’s status as Michael’s presumed father.

You bet Rhonda knew the family secrets. She obtained a court order for DNA testing which revealed that Russel was not Michael’s biological father.

Yes, even though Michael was born during Russel’s marriage to Michael’s mother, and even though Russel had raised Michael as his son for six or seven years until his marriage broke up, some other guy had fathered the boy.

So that fact killed Russel’s standing to bring his wrongful death suit, right?

Not so fast.

As it turns out, Rhonda is on the outside looking in.

Orange County Superior Court Judge Geoffrey Glass granted a summary judgment to Russel nixing Rhonda’s claim.

Glass declared that “even if [Russel] is not the biological father of Michael Thompson – and that’s what the DNA showed – he is presumed to be the father by virtue of what happened after the birth and therefore he is entitled to have the rights of a father.”

Wednesday, the California Court of Appeal affirmed Russel’s standing to sue for the wrongful death of Michael.

The court concluded that, under state law, it was Rhonda who lacked standing to challenge Russel’s status as Michael’s presumed father.

The court looked to §7630 of California Uniform Parentage Act (UPA) to decide the issue.

“Section 7630(a) vests standing to determine paternity under the marital presumption in a ‘child, the child’s natural mother, a man presumed to be the child’s father … , an adoption agency to whom the child has been relinquished, or a prospective adoptive parent of the child’ to challenge presumed fatherhood established under section 7611(a)’s marital presumption. …

“[Rhonda] does not fall within any of these categories,” the court said.

Apart from not fitting into one of the statutory categories for contesting paternity, the court also found that Rhonda’s challenge to Russel’s fatherhood was time-barred.

You see, state law limits a person’s right to bring such challenges to “a reasonable time after obtaining knowledge of relevant facts.” 

In Rhonda’s case, the court observed that while she “hints in her briefs that she, Michael, and his family knew during Michael’s childhood that [Russel] was not Michael’s birth father, [Rhonda] fails to explain how her present challenge falls within [the statute's] time limitation.”

Wrapping it up, the court said that “because the wrongful death statute incorporates the Probate Code’s intestacy chain of succession to determine proper plaintiffs, and the intestacy statutes in turn incorporate the UPA to determine presumed fatherhood, and [Rhonda] has no standing under the UPA to deny or rebut that [Russel] is Michael’s presumed father, her action for a declaratory judgment rejecting [Russel's] paternity fails as a matter of law.” (Scott v. Thompson)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

You figure Steve Palumbo feels bad enough. After all, the would-be handyman nearly caused his girlfriend’s house to burn down. 

But there was Allstate to slap a $63,000 judgment on top of Palumbo’s home repair misadventure.

Ouch!

Fixing the water heater

We’ve all been there, playing one role or the other.

The guy, feeling his oats, wanting to prove to his gal how capable he is by taking on a home repair job he doesn’t have the first clue about.

The gal, coldly weighing the benefit of allowing her guy an exercise in self esteem against the cost of having to hire a professional to come in and clean up the ensuing mess.

Yep, Steve Palumbo had one of those bright ideas about shaking the dust off the old tool box and helping his girlfriend, Lisa Deveau.

Deveau needed a new water heater in her home in Connecticut. Palumbo felt he could save her a few bucks by installing the water heater himself.

The predictable train wreck occurred.

On January 31, 2002, a fire broke out in Deveau’s home, which she shared with her daughter and Palumbo.

The cause of the fire was the water heater. As it turned out, Palumbo had made some, shall we say, “minor” mistakes in installing the appliance.

Allstate provided Deveau with homeowners coverage and dutifully paid her $63,000 for the fire damage.

Then someone at Allstate came up with the bright idea of bringing a subrogation claim against Palumbo. After all, it was Palumbo’s negligence that caused the fire, right?

A Connecticut judge agreed with Allstate and suddenly Palumbo had a $63,000 judgment to deal with in addition to Deveau’s sour attitude.

Bonfire of the equities

There is a rainbow at the end of this sad tale.

Earlier this month the Connecticut Supreme Court overturned the judgment against Palumbo.

Because subrogation is an equitable remedy, the court balanced the equities in Allstate’s case against Palumbo and found that they did not weigh in the insurance company’s favor.

Allstate had hung its hat on the argument that Palumbo was Deveau’s tenant and therefore not an “insured” within the meaning of her homeowners policy.

But the state supreme court decided that Palumbo’s legal status was beside the point when it came to balancing the equities on whether to allow Allstate to pursue subrogation.

The court first addressed the issue of economic waste, noting that Palumbo had no other property on which he could have taken out insurance.

“Therefore, the only property on which [Palumbo] possibly could have obtained coverage to protect himself against liability for his negligent conduct was Deveau’s home, which she already fully had insured. …

“Had [Palumbo] been able to obtain a separate policy on the subject premises, such a policy necessarily would have to some extent been duplicative of Deveau’s coverage. Therefore, these facts demonstrate some economic waste that weighs against subrogation,” the court said.

Then there were the expectations of the parties. Deveau and Palumbo intended to get married, so Deveau couldn’t be expected to sue Palumbo for her losses.

Moreover, Palumbo contributed equally to household expenses, so he reasonably could expect to be covered under Deveau’s homeowners insurance.

As the court observed, the fact that Deveau and Palumbo were “mutually economically dependent also likely affected their reasonable expectations regarding liability.”

On this point, the court also explained that an action against Palumbo “necessarily would be the depletion of his resources and, in turn, the shift of part of his financial burden vis–vis the home the parties shared back to Deveau. Deveau therefore reasonably viewed [Allstate's] action against [Palumbo] as tantamount to a recovery of those funds from her and a deprivation of the intended value of her homeowner’s policy.” (Allstate v. Palumbo)

Zarella dissents

Justice Peter Zarella in a strongly worded dissent placed emphasis on Allstate’s rights under the terms of its policy.

Zarella pointed out that the fire insurance endorsement included in Deveau’s policy specifically provided that Allstate could “require from the insured an assignment of all right of recovery against any party for loss to the extent that payment therefor is made.”

So everyone should have been on notice that Allstate would enforce its subrogation rights.

Zarella said that the “majority’s decision produces a truly bizarre result because [Allstate] is now prohibited from bringing a subrogation action against [Palumbo] on equitable grounds even though Deveau could have been required to assign her right of recovery to [Allstate] under an express provision in her insurance policy.”

At bottom, the judge didn’t like the fact that the majority was effectively rewriting insurance contracts to protect cohabiting couples.

“If tortfeasors who live with and are unrelated to the insured can be protected and absolved of all responsibility for their actions merely by alleging that they ‘expected’ to be covered by policies in which they are not specifically named but for which they partially paid without the insurer’s knowledge and consent, insurers will find it increasingly difficult to determine potential risk,” the justice said.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Photographer: Janet Galore

 

Leave it to an infomercial king to test the authority of a judge to police his courtroom in the Age of the Internet.

Kevin Trudeau is a word-famous television pitchman, author and radio host. He’s best known for his book and infomercial, “Natural Cures ‘They’ Don’t Want You to Know About.” 

Trudeau is already in big trouble, having been fined $40 million and barred from infomercials for three years by U.S. District Judge Robert Gettleman in Chicago. 

In 2007, Gettleman found Trudeau in civil contempt for violating a consent order with the Federal Trade Commission by making allegedly deceptive weight-loss claims in a book and infomercials.

In attempting to get out from under that contempt order, Trudeau dug himself a deeper hole.

Trudeau allegedly exhorted his radio audience to support him by barraging Gettleman with e-mails.

And that his loyal listeners did. Gettleman received over 300 e-mails within a span of 36 hours.

Naturally, the judge was a bit peeved about being spammed by Trudeau acolytes. Because some of the e-mails were a bit darker in tone, he called in the U.S. Marshal to conduct a threat assessment.

Gettleman summoned Trudeau’s lawyer into court the next morning and made it clear he wanted the e-mails to stop. Trudeau cooperated by issuing a cease-and-desist plea to his listeners, but that didn’t appease the judge.

Gettleman summarily found Trudeau guilty of direct criminal contempt and sentenced him to 30 days in jail.

As we all know, to be guilty of direct contempt one’s misbehavior must either be in the presence of the court or have the consequence of obstructing the administration of justice.

So Trudeau’s conviction raised the question of whether the spamming of a judge can constitute criminal contempt.

Thursday, the 7th Circuit answered that question in the negative and overturned Trudeau’s conviction.

Gettleman had found that the “presence” requirement had been satisfied in Trudeau’s case because the judge could read the e-mails on the court’s computers (including the computer in the courtroom) and his Blackberry, which he carried with him to stay in constant communication the court.

But the 7th Circuit refused to read a “virtual presence” standard into the federal criminal contempt statute.

“We resist the district court’s suggestion that the term ‘presence’ should be expanded to reach beyond the judge’s actual, physical presence,” the court said.

Nor did the 7th Circuit find a real case for finding Trudeau’s actions warranted summary punishment.

“The record in this case is devoid of any suggestion that Trudeau’s summary punishment was necessary to restore the court’s ability to resume its duties,” the court said. “‘No trial was being disrupted by a failure to comply with a court order.’” (Federal Trade Commission v. Trudeau)

Mind you, this does not mean that Trudeau is off scot-free.

Rather, Judge Gettleman will have to decide whether to refer the matter to the federal prosecutor.

If that occurs and the prosecutor decides to pursue charges for criminal contempt, then Trudeau will have the chance to present a defense.

— Pat Murphy

patrick.murphy@lawyersusaonline.com

So much for the notion that the college campus is a forum for the free flow of ideas. 

Those who speak their mind are more likely to face retribution than a cogent argument poking holes in whatever proposition they happen to be advancing.

And more and more often retribution comes in the form of a lawsuit, as found out by an Arizona community college that some felt didn’t act sternly enough in responding to a professor’s politically incorrect remarks that offended its Hispanic employees.

Yesterday, the 9th Circuit with the help of retired Justice Sandra Day O’Connor brought a measure of sanity back to higher education, rightfully concluding that the First Amendment protects offensive speech – even when it occurs in the hallowed halls of academia.

Día de la Raza

As an alternative to Columbus Day, some Hispanics celebrate Día de la Raza, which translates as “Day of the Race.”

In the interest of multiculturalism, the Maricopa County Community College District in Arizona gives some deference to the anti-Columbus Day.

This apparently didn’t sit well with Professor Walter Kehowski, a math teacher for the district. The professor sent three racially-charged emails over a distribution list maintained by the school. Every district employee with an email address received a copy.

Under the heading “Dia de la raza,” Kehowski’s first email asked, “Why is the district endorsing an explicitly racist event?”

A week later, Kehowski sent an email proclaiming, “YES! Today’s Columbus Day! It’s time to acknowledge and celebrate the superiority of Western Civilization.”

Kehowski evidently received some unkind responses to that email because he salvoed back with a third message two days later that began, “Ad hominem attacks are the easiest to launch and the most difficult to defend against.”

After reviewing some history the upshot of which was to bolster his belief in the superiority of Western Civilization, Kehowski concluded:

[I]f we don’t pull ourselves out of the multicultural stupor, another culture with some pretty unsavory characteristics (here, here, and here) will dominate (here, here, and here) [and not without a little help from the treasonous scum Bill Clinton].

Knocking Bill Clinton apparently was the final straw. A group of the district’s Hispanic employees wanted Kehowski’s head on a platter and they complained to the district’s chancellor and president.

Now, school administrators had roundly condemned Kehowski’s emails and dutifully reaffirmed their commitment to diversity.

But the Hispanic employees wanted Kehowski disciplined and, when he wasn’t, sued the chancellor and president for creating a hostile work environment in violation of Title VII and the Equal Protection Clause. 

According to the employees, the school administrators failed to take appropriate steps to prevent Kehowski from sending them harassing emails and from disseminating harassing speech via his district-hosted website.

Freedom of speech prevails 

The employees Title VII claim didn’t go far because a U.S. District Court promptly agreed with the school chancellor and president that they could not be liable as agents of the plaintiffs’ employer.

The 9th Circuit yesterday decided that the school administrators were entitled to qualified immunity with respect to the equal protection claim.

And the panel that decided this case was no ordinary panel, no siree Bob.

Former Justice Sandra Day O’Connor sat by designation and the opinion was authored by 9th Circuit Chief Judge Alex Kozinski.

And Judge Kozinski came right to the nub of the matter: the employees were asking government officials to restrict Professor’s Kehowski’s First Amendment rights.

“Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal,” Kozinski wrote. “But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive.”

The judge said that the First Amendment “demands substantial deference to the college’s decision not to take action against Kehowski. The academy’s freedom to make such decisions without excessive judicial oversight is an ‘essential’ part of academic liberty and a ‘special concern of the First Amendment.’”

And as a shot across the bow to future would-be plaintiffs, Kozinski said he doubted “that a college professor’s expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention that plaintiffs seek.”

Concluding with a flourish, Kozinski wrote that it’s “easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. ….

“Those offended by Kehowski’s ideas should engage him in debate or hit the ‘delete’ button when they receive his emails. They may not invoke the power of the government to shut him up.” (Rodriguez v. Maricopa County Community College District)

Good stuff, that is.

We can only hope that the educators and students in the country’s universities will take that cue to heart and grow a thicker skin when it comes to the real or perceived insensitivity of others.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Last year, the U.S. Supreme Court muddied the waters for motor vehicle searches.

In Arizona v. Gant, the Court announced that the search-incident-to-arrest exception no longer applies to cases where the arrested party has been secured by the police – unless it is reasonable to believe that evidence of the offense upon which the arrest is based might be found in the vehicle.

That was quite an about-face.

Since the Court’s 1981 decision in New York v. Belton, police could generally search a passenger compartment incident to the contemporaneous arrest of an occupant of the vehicle.

Numerous state courts had taken the cue from Belton and formulated bright-line standards to the effect that authority to search a vehicle’s passenger compartment incident to arrest is automatic.

Colorado was no exception.

But that all changed with Gant. And earlier this month the Colorado Supreme Court issued four decisions exploring the contours of motor vehicle searches in the post-Gant world.

In those decisions we have wins for both sides.

For criminal defense lawyers, the Colorado court confirms what is suggested by the Gant decision itself:  Vehicle searches in violation of the new standard can’t be salvaged by the good faith exception.

For prosecutors, the court tosses the bone of inventory searches as perhaps a viable alternative to a struck-down search incident to arrest.

Unlawful search

In the first case before the Colorado Supreme Court, Grand Junction police stopped Jaime Perez for driving with a broken headlight in 2006.

A quick criminal database search revealed to officers that Perez had a suspended license and an outstanding warrant for his arrest.

So Perez ended up handcuffed in the back seat of a squad car.

In the Belton tradition, officers searched the passenger compartment of the vehicle, discovering a pouch containing 22 baggies of methamphetamine.

According to police, this discovery prompted Perez to confess to possessing and planning to sell the drugs.

On April 21, 2009 – ten weeks after a state appeals court affirmed Perez’s convictions – the U.S. Supreme Court handed down Gant and that changed everything.

The Colorado Supreme Court read Gant as leaving only two scenarios in which police officers may search a vehicle’s passenger compartment after arresting an occupant.

First, police may search a vehicle if the arrested occupant is unsecured and can access the interior of the vehicle.

Second, officers may conduct a search if it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.

Since Perez was handcuffed and secured in the back of a police cruiser at the time his search was conducted, only the second Gant scenario was at issue.

And here the Colorado Supreme Court shed some light on that issue by holding that, “a reasonable belief to conduct such a search exists when there is a ‘degree of articulable suspicion commensurate with that sufficient for limited intrusions like investigatory stops.’”

In Perez’s case, the state couldn’t satisfy that burden.

“The record before us gives no reason to believe that there was any ‘articulable suspicion’ that evidence of a crime relevant to the previously-issued arrest warrant would be found in Perez’s vehicle at the time of arrest,” the court said. (Perez v. Colorado)

So the search of Perez’s car was unlawful under Gant. 

The court had one more step to take to complete the gutting of the state’s case against Perez. 

In addition to suppressing the drug evidence found in the vehicle, the Colorado high court pulled the old fruit-of-the-poisonous-tree card to strike Perez’s incriminating statements to police.

No good faith exception 

So what of all those vehicle searches conducted in accordance with the old Belton standard?

Surely they could be upheld because police acted in good faith reliance on established law?

Of course, the big problem with that argument is that the U.S. Supreme Court hasn’t recognized a good-faith exception to the exclusionary rule for reliance on prior holdings of its own from which it subsequently changed course. 

The majority in Gant certainly did not suggest that the good-faith exception would apply when police relied on pre-Gant case law.

As a matter of fact, Justice Samuel Alito in his dissent predicted that the Court’s decision would “cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law.”

And that’s exactly what the Colorado Supreme Court did in its second case on vehicle searches, Colorado v. McCarty. 

The state court said that “we are reluctant to expand the good-faith exception to the Supreme Court’s exclusionary rule beyond the limits set by that Court itself.”

In McCarty, police pulled John McCarty over for a minor traffic infraction in 2008, just after he had purchased a drug pipe at an import store.

McCarty faced arrest for failing to produce insurance and after the drug pipe was discovered on his person.

While one officer detained McCarty outside the vehicle, another searched the passenger compartment and discovered a mint tin in the center console containing methamphetamine.

The Colorado Supreme Court applied Gant to suppress the drug evidence found in McCarty’s automobile.

What might raise some eyebrows is the court’s conclusion that the discovery of a drug pipe on McCarty’s didn’t provide reasonable suspicion for a search of the passenger compartment under Gant.

“We conclude that being stopped for a traffic infraction immediately after leaving a suspect import store and being in possession of a recently purchased and still unwrapped and unused ‘pot pipe,’ although sufficient to justify an arrest for possession of drug paraphernalia, is nevertheless insufficient to provide reasonable, articulable suspicion that additional evidence of that offense might be found in the arrestee’s vehicle,” the court said.

Inventory search

Of the Colorado Supreme Court’s four Gant decisions, only one provides much solace for prosecutors.

In Pineda v. Colorado, Aurora police stopped Jose Pineda for a minor traffic violation. For several weeks police had had him under surveillance in a drug trafficking investigation.

Officers arrested Pineda for driving without a license and secured him in a police car.

Police subsequently discovered several bags of heroin hidden in a fake can of deodorant stashed beneath a seat in Pineda’s car.

The Colorado Supreme Court avoided the issue of whether the search of Pineda’s car was valid under Gant by concluding that the heroin had been discovered as the result of a valid inventory search.

“It appears that the officers had few other options under the circumstances. Pineda parked his car in the right-hand lane of a busy avenue. No one was present to take possession of the vehicle, and the officers could not leave it blocking traffic. ….

“Therefore, they took custody of the vehicle and towed it. Not only does this appear reasonable under the circumstances, but departmental policies and procedures also required the officers to take custody of the vehicle and to conduct an inventory search as part of that process,” the court said.

False reporting

Demonstrating the uphill battles facing prosecutors in the wake of Gant, the Colorado Supreme Court in a fourth case found police had violated the Fourth Amendment when they searched the interior of Stephanie Chamberlain’s car in 2008.

Police stopped Chamberlain for failing to adequately signal before turning.

The stop turned into an arrest when officers determined that Chamberlain had falsely reported her address during a traffic stop two weeks earlier.

With Chamberlain handcuffed in the rear of a patrol car, officers searched the passenger compartment of her vehicle and came up with a baggie containing less than a gram of methamphetamine.

The Colorado Supreme Court agreed that the evidence was properly suppressed under Gant, concluding that there was nothing about the nature of Chamberlain’s false reporting offense that would have justified police searching her vehicle.

“In this case, the district court found that the defendant was arrested for the crime of false reporting as the result of her concession that she no longer lived at the address appearing on the driver’s license she had presented without qualification during an earlier stop. …

“Although it may have been possible to find further evidence in the vehicle, without more it was no more reasonable to believe the defendant’s vehicle might contain additional documentary evidence corroborating her admission than it was reasonable to believe Gant’s vehicle might contain official notice of his suspension,” the court said. (Colorado v. Chamberlain)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

The deed is done. Contrary to Orville Richardson’s express wishes, his next of kin had him embalmed and buried.

Orville had wanted his head lopped off and frozen when he died, hoping that he might be brought back at some later time.

In fact, he had contracted for just that service with a cryonic preservation company.

And now that company wants Orville dug up so it can fulfill its contract.

The resulting legal tussle is a groundbreaker, one that is instructive for probate lawyers who might have to deal with the complication of an anatomical gift.

Cryonic suspension

Orville was born in 1927 and had a long career as a pharmacist in Burlington, Iowa. Orville married, but had no children, and his wife predeceased him.

A long, productive life apparently wasn’t enough for Orville. Nope, Orville had hopes that he might be brought back by some medical wizardry developed in the distant future.

So in 2004 he paid $53,500 to Alcor Life Extension Foundation to have his head placed in cryonic suspension upon his death.

Cryonic suspension is the procedure of placing the body or brain of a person who has been legally dead into storage at temperatures of -100°C or lower. The hope is that future medical development will allow the restoration of life and health.

Alcor is a California nonprofit, registered as a tax exempt 501(c)(3) scientific organization, which is engaged in the study and practice of cryonic suspension.

In addition to filling out all the necessary forms with Alcor, Orville executed an anatomical donation authorization form in which he expressly donated his remains to Alcor and directed that they be delivered to the company immediately upon his death.

With all the paperwork taken care of, Orville probably figured he was all set to wake up in 2525 and face a brave new world.

But then his relatives got involved. David Richardson and Darlene Broeker are Orville‘s brother and sister.  

In the fall of 2007, Orville began to suffer from dementia and David and Darlene were appointed as his co-conservators.

David and Darlene admit that at some point before he died Orville discussed the subject of donating his brain or entire head for cryonic suspension. The siblings claimed that they tried to talk Orville out of such a plan and emphatically told him they would have nothing to do with it.

According to David and Darlene, Orville responded that he understood their position and the subject was never discussed again.

Orville died intestate on February 19, 2009, and the following day David and Darlene were named co-administrators of his estate. The siblings had Orville embalmed and then buried in Burlington on February 21, 2009.

Two months later, David wrote to Alcor seeking a refund of Orville’s $53,500 fee.

The way David and Darlene saw it, Alcor’s services were no longer necessary so the company was obligated to return the money he had paid for cryonic suspension.

Understandably, Alcor didn’t want to return the money and raised a stink about the company not having been notified of Orville’s death.

Alcor then filed a motion in Iowa probate court to have Orville exhumed and his head turned over for cryonic suspension.

Now, it may seem that the horse was already out the barn door on this one.

Certainly being embalmed and sitting in a grave for two months didn’t improve Orville’s odds of being resurrected at some point in time in the future.

But Alcor had a point it needed to prove.

The company had to establish that next of kin are obligated to abide by its agreements with its customers.

Anatomical gift?

Alcor’s main argument in getting Orville exhumed was that he had made a valid anatomical gift under state law, one that his relatives could not set aside.

Iowa has adopted the Revised Uniform Anatomical Gift Act (RUAGA). The statute recognizes anatomical gifts made by a donor for “the purposes of transplantation, therapy, research, or education.”

When a donor makes a valid anatomical gift under the statute, “a person other than the donor is prohibited from making, amending, or revoking an anatomical gift of a donor‘s body or part.”

David and Darlene argued that Orville’s anatomical donation was invalid because it was not made for the purpose of “research” or any other lawful purpose.

Last week, the Iowa Court of Appeals concluded that Alcor was a “research” organization for the purpose of the statute.

Moreover, the court decided that the fact that Orville paid for Alcor’s services did not mean that he had not made an anatomical “gift” under the law.

The court concluded that “where the putative donor compensates a qualified donee for preserving all or part of the donated body does not take the transaction outside the scope of the RUAGA, even if in a strict common-law sense it may not qualify as a ‘gift.’”

In this case, the court felt compelled to reach this conclusion because the documents executed by Orville characterized his arrangement with Alcor as an “anatomical donation” made”for the purpose of furthering cryobiological and cryonic research.”

The court also observed that, while the RUAGA generally prohibits the sale or purchase of body parts, it allows reasonable payment for preservation or disposal.

“While this language is not directly on point, it suggests that paying for preservation of part or all of a body is not enough to place a transaction outside the RUAGA that otherwise would fall within its terms,” the court said.

Final Disposition Act doesn’t trump all

David and Darlene argued that, even though Orville may have made a valid anatomical gift, as next of kin they had the right to dispose of his remains as they saw fit under Iowa’s Final Disposition Act.

But the court found that the siblings were forgetting about the fact that that law gives precedence to the wishes of a donee of an anatomical gift.

“Thus, we conclude that the rights of Alcor as a donee of an anatomical gift under the RUAGA are superior to David and Darlene‘s dispositional rights conferred by the Final Disposition Act,” the court said.

But even if Alcor had enforceable rights under its agreements with Orville, what about a remedy?

With Orville dead and buried, certainly David and Darlene couldn’t be ordered to cooperate in their brother’s exhumation so that Alcor could take his head, right? That would be unthinkable.

The probate judge in the case certainly thought so and refused to order exhumation.

But the Iowa Court of Appeals concluded that Alcor could compel the siblings to seek a disinterment permit.

First, the court decided that the placement of Orville’s head in cryonic suspension would qualify as a permitted “reburial” under the state’s disinterment statute.

Second, the court concluded based on the equities in the case that Alcor was entitled to a mandatory injunction directing David and Darlene to execute the application for a disinterment permit, with Alcor bearing all the burden and expense of disinterment.

“Despite the novelty of cryogenics, and the statutory complexity involved in this case, we believe this outcome is largely dictated by two longstanding and relatively straightforward traditions: first, our historic deference to the testator‘s wishes regarding the method and location of burial; and, second, the ability of courts of equity to fashion a suitable remedy when one party has violated another‘s rights,” the court said. (Alcor Life Extension Foundation v. Richardson)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Slinging criminal accusations against a sitting judge is probably not the wisest of career moves if you’re a lawyer.

Gone with the wind is whatever good will you’ve built up over the years with the local bench. And you can bet that your name gets placed right at the top of the to-do list of your local ethics committee.

Then, of course, there’s always the problem that your butt might get tossed in jail for contempt of court. That’s never a good thing.

But some of us just can’t resist tweaking the tiger’s tail.

Grand jury ruckus

Carl Smith is a practicing attorney in Missouri. In March 2008, Smith appeared before Judge R. Craig Carter.

The judge had been appointed to oversee a Douglas County grand jury that had just been convened.

Smith was there to quash a grand jury subpoena issued against one of his clients.

Apart from contending that the subpoena had been improperly executed by the Douglas County prosecuting attorney, Christopher Wade, Smith allegedly suggested that the grand jury had been called in retribution for his client’s filing of a motion to disqualify Wade in a pending criminal case.

Judge Carter overruled Smith’s motion to quash but gave him seven days to file a writ in the state court of appeals challenging the decision.

That’s when the real trouble started.

In Smith’s petition before the court of appeals, the lawyer made some eyebrow-raising allegations against both Carter and Wade.

He said that “their participating in the convening, overseeing, and handling of the proceedings of this grand jury are, in the least, an appearance of impropriety and, at most, a conspiracy by these officers of the court to threaten, instill fear and imprison innocent persons to cover-up and chill public awareness of their own apparent misconduct using the power of their positions to do so.”

Smith launched another salvo, making the accusation that the grand jury was being “being used by those in power in the judicial system as a covert tool to threaten, intimidate and silence any opposition to their personal control-not the laudable common law and statutory purposes for which the grand jury system was created.”

Judge Carter obviously wasn’t pleased and he cited Smith for contempt. A jury that heard the case in 2009 convicted Smith of criminal contempt and the lawyer was sentenced to 120 days in jail.

Lawyer’s First Amendment right?

Smith wasn’t about to go to jail without a fight, so he petitioned the Missouri Supreme Court for a writ of habeas corpus.

Tuesday, the court told Smith that he didn’t have to worry about getting fitted for an orange jump suit.

Yes, the court found more than some merit to Smith’s argument that his conviction violated the lawyer’s free speech rights under the First Amendment.

The problem was that for a conviction of criminal contempt under state law the jury, in Smith’s case only needed to find that the lawyer’s “statements degraded and made impotent the authority of [the court] and impeded and embarrassed the administration of justice.”

That’s a pretty light burden. Too light, the state supreme concluded, when weighed against a lawyer’s right to free speech.

Acknowledging that the law regarding a lawyer’s free speech rights is rather muddled, the court recognized that the First Amendment afforded Smith some protection for his statements.

But it also rejected the proposition that a lawyer’s First Amendment rights bar punishment of contemptuous speech.

The question was where to strike a balance between the lawyer’s free speech rights and the court’s inherent authority to protect its proceedings.

The Missouri Supreme Court decided that the focus should be on the lawyer’s intent.

“There can be no doubt that the First Amendment protects truthful statements made in judicial proceedings. It is essential, therefore, to prove that the lawyer’s statements were false and that he either knew the statements were false or that he acted with reckless disregard of whether these statements were true or false,” the court said.

This toppled the underpinnings of Smith’s conviction for criminal contempt because the jury was never required to address his mental state in making the supposedly contemptuous statements.

“There simply was no evidence from which the jurors could find the requisite state of Smith’s mind regarding the falsity of the statements, nor were they asked to do so,” the court said

As if that wasn’t enough, the court recognized a second element which must be proven in order to convict a lawyer of contempt for what he says.

“The First Amendment requires that the threat to the court’s authority must be real; the lawyer’s statements and attendant conduct actually must have interfered with or posed an imminent threat of interfering with the administration of justice,” the court said.

In Smith’s case, there was no such showing.

“The state stipulated that the defendant’s actions did not interfere with the grand jury and ‘that Judge Carter did not rule differently, or fail to take any action with regard to the grand jury based on actions of defendant.’ …

“If that is true, as the state agrees, was the threat to the court’s authority real? There is no evidence that Smith’s written statements interfered with or posed an imminent threat of interfering with the administration of justice,” the court said. (Smith v. Pace)

So Smith is a free man.

But now that the rules have been set, Smith would be wise to be careful of what he says.

You can bet that prosecutors will be more prepared next time round to make the required showings for contempt should a lawyer make reckless charges against a judge.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

A man strangles his wife to death. He claims that her demise was the only part of a marital suicide pact that went according to plan.

Any of you legal eagles out there care to argue with a straight face that he should avoid a murder rap?

Didn’t think so.

But the case does raise the interesting question of just how far a “Thelma and Louise” exception might benefit one who claims he is the survivor of a mutual suicide pact.

Depths of despair

It’s always interesting to hear murderers explain away their crimes.

One marvels not so much at the outlandishness of some of their stories, but at the fact that they seriously think that anyone will believe them.

Take David Lam of California. He stole $20,000 from his wife, Susan, to cover gambling losses.

Susan wound up dead and buried in the back yard. David fled the country, only to be tracked down by authorities and returned to the U.S. two years later.

David had two stories about what happened to Susan.

When police arrested David, he told officers that his shame from stealing from his wife was too much to bear, so he decided to kill her and then to kill himself.

On the night of the murder, he arrived home drunk and despondent from his gambling losses. Susan was on the couch watching television.

Approaching her from behind, David removed his necktie, looped it around her neck, and pulled tight. After a brief struggle, Susan was never more.

At that point, David claimed that he faltered in his resolve to kill himself.

That was Story Number One.

At trial, David had a different story.

He testified that the day of Susan’s death, he returned home to find her crying.

Yes, Susan had discovered he had stolen her $20,000.

Their lives had hit rock bottom, so Susan suggested mutual suicide and he accepted her proposal. At least that’s what David said at trial.

This is where David’s trial version of the story starts to drift from the slightly plausible to the highly implausible.

According to David, he and Susan decided that they would enter eternity together by strangling each other simultaneously.

Now, it’s easy for us to perceive immediately all the practical difficulties in accomplishing such a task, so one has to wonder why any two people would agree to that method of mutual suicide.

David nonetheless insisted at trial that he placed a necktie around Susan’s neck, she put one around his, and they pulled simultaneously. David briefly passed out. When he regained consciousness, Susan was dead.

That’s Story Number Two.

Not surprisingly, Story Number Two didn’t go down well with jurors, who convicted David of second degree murder.

Aiding and abetting suicide?

David claimed on appeal that at most he is guilty of aiding and abetting suicide and that his trial counsel was ineffective for not seeking a jury instruction on that offense.

Monday, the California Court of Appeal nixed that argument.

The court explained that the aiding and abetting suicide instruction “is inapplicable because [David] actively participated in the final overt act that could have caused only Susan’s death: pulling the tie he had placed around her neck.

“‘[T]he key to distinguishing between the crimes of murder and of assisting suicide is the active or passive role of the defendant in the suicide. If the defendant merely furnishes the means, he is guilty of aiding a suicide; if he actively participates in the death of the suicide victim, he is guilty of murder.’

“Thus, a defendant who, for example, supplies a gun knowing the decedent intends to kill himself aids a suicide, but the defendant commits murder if, even at the decedent’s request, he pulls the trigger.”

‘Thelma and Louise’ exception

That explanation makes sense, but David argued that the California Supreme Court had created a “single instrumentality” exception for survivors of suicide pacts.

The state high court in a 1983 case recognized that exception in a “Thelma and Louise” case in which the driver of a car survived after he and a friend decided to end it all by careening off a cliff.

According to David, the Thelma and Louise case applied because his wife’s death arose from a suicide pact in which they faced an equal risk of death from simultaneous necktie strangulation.  

Not so, said the California Court of Appeal.

The court said that the Thelma and Louise case was distinguishable because David “and his wife did not face an equal risk of death from a single instrumentality. The neckties they placed around their necks were separate instruments under their independent control.

“[David] and Susan could to a greater or lesser degree choose to bear down on or release each other in their mutual strangulation, and that is apparently what happened.

“Thus [David] and Susan differed from the driver and passenger … whose plummet over the cliff in one car simultaneously hurled them beyond a point of no return to an equal risk of death.”  Accordingly, the “single instrumentality” exception under Joseph G. did not entitle appellant to an instruction on aiding and abetting suicide.” (California v. Lam)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

John Dillinger loved to ham it up for reporters. 

Knowing how he loved publicity and tweaking the nose of law enforcement, the guess here is that Dillinger would be having a grand old time with MySpace if he was around robbing banks today. 

In the end, though, Dillinger realized that notoriety is not a good thing if you want a long career as a criminal.

And one Dillinger wannabe must have had that sinking feeling, too, when a federal prosecutor trotted out the contents of his MySpace page to prove that he was responsible for a string of bank robberies around Atlanta, Georgia.

End of the line

Souksakhone Phaknikone had a pretty good run when it comes to robbing banks. He’s been convicted of robbing seven of them.

But the seventh time was definitely not the charm for Phaknikone, a Laotian who lived in Dacula, Georgia.

On April 6, 2007, two armed, masked men, described by eyewitnesses as Hispanic or Asian, entered the Wachovia Bank in Suwanee, Georgia. One of the robbers, Rickey Lavivong, took control of the lobby of the bank.

The other robber, later identified as Phaknikone, displayed a flair that Dillinger would have appreciated.

Phaknikone vaulted over the teller counter, ordered the tellers to lie on the floor, and demanded money from the cash drawers. As the tellers emptied the drawers, Phaknikone warned the tellers not to give him “the ink thing,” that is, a dye pack that explodes to permanently mark stolen bills.

Phaknikone took the money and ran with Lavivong out of the bank to a nearby car.

Unfortunately for the two bank robbers, police were hot on their trail. After a six-mile, high-speed pursuit, Phaknikone crashed the car and fled on foot, leaving Lavivong behind for police.

Phaknikone didn’t get far. Shedding money, a backpack and a handgun as he ran, Phaknikone tried to scale a chain link fence, but was snared by barbed wire at the top.

Police arrested Phaknikone and found a gun clip and $10,000 in his pockets. Officers found $6,000 in cash in the backpack. Left behind in the getaway car was another handgun and ski masks.

Phaknikone was going to be nailed for the Wachovia Bank robbery. The evidence was overwhelming.

His real problem was that he was charged with six other bank robberies in the Atlanta area between November 2006 and March 2007.

The six previous robberies were all conducted with a similar M.O., with one of the robbers always jumping the teller counter.   

To bolster its case, federal prosecutors introduced the profile page, subscriber report, and photographs from Phaknikone’s MySpace.com account to prove that he committed the string of bank robberies “like a gangster.”

A jury found the evidence compelling, convicting Phaknikone of 15 bank robbery and firearm counts. He faces 2,005 months of prison.

MySpace evidence

In seeking to overturn his convictions, Phaknikone argued to the 11th Circuit that the MySpace evidence was inadmissible under Fed. R. Evid. 404(b) because it was offered to prove that he acted in conformity with his bad character.

The bank robber’s MySpace page certainly didn’t paint a pretty picture.

Phaknikone’s profile listed his name as “Trigga.” When someone visited Phaknikone’s profile page, images of $100 bills floated down the screen, accompanied by rap music.

Phaknikone’s subscriber report listed his full name as “Trigga FullyLoaded” with an email address of “gangsta_trigga@yahoo.com.”

One of his profile photographs showed Phaknikone in the driver’s seat of a car with his left arm hanging out the window and a handgun in his right hand.

Yesterday, the 11th Circuit concluded that the MySpace evidence never should have been admitted.

Federal prosecutors argued that the MySpace evidence was admissible to prove identity, that Phaknikone robbed banks “like a gangster.”

But the court found it too tenuous for the government to argue that a MySpace photograph of Phaknikone brandishing a gun in a car tended to show that he would commit seven bank robberies.

“Although the photograph may portray a ‘gangster-type personality,’ the photograph does not evidence the modus operandi of a bank robber who commits his crimes with a signature trait,” the court said.

The court concluded that the MySpace evidence introduced at Phaknikone’s trial evidence “is classic evidence of bad character, which was offered by the government to prove only ‘action in conformity therewith.’…

“The government wanted the jury to infer that, because Phaknikone is willing to publish these kinds of photographs online, under an incendiary alias, he is a gangster who is likely to rob banks. The district court abused its discretion by admitting the MySpace evidence.” (U.S. v. Phaknikone)

So Phaknikone is free to emulate Dillinger and go on a bank-robbing spree?

Of course not! There is that bane to the hopes of all appellants: harmless error.

Sure, the bank robber won his point on the MySpace evidence, but the evidence of his crimes was so overwhelming that it was a Pyrrhic victory. His convictions stand.

And that might be best for good old Phaknikone, because we all know the typical fate of bank robbers who don’t end up in prison.

Author: Wildhartlivie

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Monica Lips is not a happy plaintiff.

Lips knew there was something wrong with her artificial hip and planned on suing the manufacturer.

But now she may not have a case because the hospital where she had the device surgically removed somehow ended up losing that critical piece of evidence. 

Surgeons replaced the Lips’s left hip in 2004. The Arizonan’s prosthesis failed after 17 months and parts of it were surgically removed at a Scottsdale Healthcare Corporation (SHC) hospital.

Lips believed that the artificial hip was defective and before the procedure expressly told her surgeon to preserve the explanted parts.

Her doctor duly instructed SHC to hold onto the parts.

As happens all too often, when it came time to sue the artificial hip manufacturer, the hospital could not find the parts that had been removed from Lips’s hip.

Facing an uphill slog in her product liability suit, Lips sued SHC for negligent and intentional spoliation of evidence.

Doors have a habit of slamming shut in Lips’s face, and her lawsuit against SHC was no exception.

You see, Arizona courts have never recognized the tort of negligent spoliation against a third party like SHC.

Last year, the Arizona Court of Appeals affirmed a dismissal of Lips’s claims against SHC.

And last week, the Arizona Supreme Court had the last word on the subject, declining to recognize a claim of negligent third-party spoliation.

The court had a fundamental problem with recognizing a duty of care in this context.

While Lips’s underlying case against the artificial hip manufacturer was for personal injury, the court characterized her claim against SHC as a claim for economic loss.

The state supreme court explained that “Lips alleges that the negligent loss or destruction of the prosthesis parts compromised her ability to prove her products-liability related claims against the manufacturer. Thus, she has alleged purely pecuniary injury rather than any injury to her person or property.”

That being the case, the court rejected the tort of negligent third-party spoliation because it would impose a general duty to exercise reasonable care for the purely economic well-being of others.

On its face, this doesn’t seem to be a surprising result given that the court had previously declined to create a distinct cause of action for first-party spoliation.

But Lips seemingly had one strong argument in her favor: SHC had a special, limited duty of care with respect to the preservation of her evidence because her surgeon specifically instructed hospital staff to keep the explanted parts from her artificial hip.

The court made short-shrift of this argument.     

“[A] duty of care is not created by a mere request for help, or by unilaterally being told by another that a duty exists,” the court said.

The Arizona Supreme Court had even less of a problem in dispensing with Lips’s intentional tort claim.

The court observed that “[e]very jurisdiction that recognizes a third-party intentional spoliation tort requires specific intent by the defendant to disrupt or injure the plaintiff’s lawsuit.”

Even though Lips in her complaint alleged that SHC intentionally disposed of the prosthetic evidence, her allegations were insufficient to support an intentional spoliation claim.

“The complaint merely asserts that Lips’s surgeon informed SHC of a ‘duty’ to preserve the prosthesis,” the court said. “This is insufficient to permit an inference that the hospital knew of the lawsuit and acted to disrupt or defeat it.”

Since the alleged facts did not even support such a claim, the court wasn’t forced to decide whether to recognize the tort of intentional third-party spoliation. (Lips v. Scottsdale Healthcare Corporation)

- Pat Murphy

patrick.murphy@lawyersusaonline.com