Q. What’s the difference between a mother-in-law and a vulture?

A. The vulture waits ’til you’re dead before it eats your heart out. — Jokes.Net

Ah yes, the mother-in-law, one of America’s more enduring targets of comedy.

And we can all breathe a sigh of relief now that the mother-in-law joke has survived its first legal challenge. Yes, a federal judge ruled Tuesday that the old battle axe can’t sue us for poking fun at her expense. 

But that doesn’t mean you would want to be in Sunda Croonquist’s shoes when the relatives gather next Thanksgiving.

She has everyone mad at her.

Croonquist is a Los Angeles comedian of African-American and Swedish descent. A large part of her act is talking about being a woman of mixed race who marries into a Jewish family.

Ruth Zafrin is her mother-in-law and is often the butt of Croonquist’s jokes.

Croonquist posts video clips from her comedy act, on her website, www.sundalive.com.

In one of those clips, entitled titled “Jewish Mother-in-Law,” Croonquist allegedly referred to Zafrin by name, accused her of being a racist and stated, “Have you ever met someone and in the first five seconds you say through your teeth ‘I hate this bitch.’”

In a MySpace posting Croonquist really went over the line, allegedly asserting that Zafrin treated her other grandchildren better than the Croonquist’s children, “probably because they’re white, they’re better in her eyes.”

Unable to leave well enough alone, Croonquist allegedly took potshots at her sister-in-law, Shelley Edelman.

In one video clip entitled “Jewish Friends,” Croonquist allegedly compared Edelman’s voice to a “cat in heat.” The comedian allegedly characterized Edelman as “someone who makes racist remarks” and impersonated her sister-in-law saying to her husband, “Oh my God, Neil, look at her; she’s got light eyes and light hair, what kind of black person is she?”

Now, if this is a fair sample of Croonquist’s material, it’s not surprising that I’ve never heard of her until now. Let’s face it, folks, we’re not talking Henny Youngman here.

And I’m not the only one who didn’t fully appreciate Croonquist’s comedic talents.

The mother-in-law and sister-in-law understandably didn’t like being characterized as racists all over the Internet, so they sued Croonquist for defamation.

In an odd twist, The Associated Press reports that Croonquist’s husband, Mark Zafrin, is a partner in the law firm that defended her.

This family feud landed right in the lap of U.S. District Judge Mary L. Cooper in New Jersey.

In a decision filed Tuesday, Cooper concluded that none of Croonquist’s statements could be considered defamatory because they were expressions of opinion.

Judge Cooper said that Croonquist’s “discussion of her ‘ill feelings towards Mrs. Zafrin,’ particularly her statement, ‘Have you ever met someone and in the first five seconds you say through your teeth “I hate this bitch,”‘ merely conveys the defendant’s opinion of her mother-in-law. This opinion is protected under the First Amendment and not defamatory.”

Regarding some of Croonquist’s other comments, the judge concluded that “calling her sister-in-law ‘Jewish broad’ and referring to her mother-in-law as ‘Ruthie’ lacks a ‘natural tendency to injure’ or subject the plaintiffs to ridicule, and the plaintiffs have not contended that either characterization is false. The ‘cat in heat’ comment is mere ‘colorful, figurative rhetoric that reasonable minds would ‘not take to be factual.’”

The judge had a little more difficulty handling Croonquist’s charges of racism, but ultimately concluded that “characterization of her in-laws as racists is a subjective assertion, not sufficiently susceptible to being proved true or false to constitute defamation.”

Judge Cooper noted that Croonquist believes Zafrin is a racist because she perceives a difference in the way she treats her grandchildren. Croonquist observations similarly led to her opinion about her sister-in-law.

“Based on these explanations,” the judge wrote. “the other challenged statements … merely constitute additional reiterations of the defendant’s opinion that the plaintiffs are racist vis-a-vis her interactions with them.” (Edelman v. Croonquist)

So the case was dismissed and Croonquist tells her fans to expect more (and hopefully better) in-law jokes in her act.

For the rest of us, we can be thankful that the mother-in-law joke survives as a time-honored means of venting family frustrations:

Q: What’s the definition of happiness?
A: Getting up in the morning and seeing your mother-in-law’s picture on a milk carton!

My mother-in-law said to me, “If you were my husband I’d put poison in your coffee” I replied, “If I were your husband, I’d drink it!!”

There was a knock at the door, I knew it was the mother-in-law because all the mice were throwing themselves on the traps. — Jokes.Net

- Pat Murphy

patrick.murphy@lawyersusaonline.com

It’s a familiar charge against the profession: Lawyers can dig up an expert to get up on the stand and support even the most crack-brained of theories. 

The public’s natural skepticism of lawyers and their experts is in full bloom when it comes to criminal defense. 

Judges are supposed to be above the biases of the public, but since many of them are former prosecutors, defense lawyers typically face an uphill battle in getting an expert before a jury to test a novel theory. 

So it is certainly noteworthy when a lawyer breaks new ground in introducing expert testimony that could help the most unsympathetic of criminal defendants – those accused of molesting children.

Big Brother

John Tim Jenkins is caught in a nightmare. Whether it is a nightmare of his own making we do not know, but there are serious doubts.

In 2001, life was good for Jenkins. He had a job as the engineering manager at the Osram Sylvania plant in Versailles, Kentucky.

Life at home was classic American. Jenkins was married with a son about to go off to college and two teenage daughters.

With three kids ready to fly the coop and more time on his hands, Jenkins became a volunteer with the Central Kentucky Big Brothers program. This seemed a natural choice because he had been a Big Brother and his wife a Big Sister years earlier, before the couple had children.

Jenkins completed the extensive Big Brothers application and screening process, and was matched with a “little brother,” J.S., in September 2001.

At the time, J.S. was six years old and his parents were divorced. J.S. lived with his mother.

Jenkins’ relationship with J.S. seemed to be the ideal Big Brother relationship. They would go to ballgames and the movies, ride bikes and swim. Pretty typical stuff.

On occasion, J.S. would even eat dinner at the Jenkins’ home with Jenkins and his wife and family.

As part of Big Brothers’ standard procedure, periodic reviews were conducted with J.S. and his mother. Both child and mom seemed happy with Jenkins. Neither ever expressed any concerns.

In the reviews, the mother reported that J.S. talked about Jenkins a lot and looked forward to their activities together. The mom said the boy would be happy and excited after returning from his activities with Jenkins. For two years Jenkins was J.S.’s Big Brother with no concerns.

It all came crashing down on Oct. 3, 2008. That evening Jenkins took  J. S. – by now eight years old – and his six-year-old friend, B.F., to a swimming outing at the Falling Springs Arts and Recreation Center.

At the pool, two lifeguards became suspicious of the way Jenkins was playing with the boys. They saw Jenkins swim up under them and lifting them up out of the water. One of the lifeguards said at times it looked like “nibbling on their thighs.”

They reported their concerns to the head lifeguard, Roger Maybrier, who concluded that the three were playing a game of “shark” or “alligator,” where one person pretends to be a predator, and the others try to swim across the pool without getting “eaten.”

Greg Shanks, the life guards’ supervisor, also didn’t see anything amiss, but just to be sure he followed Jenkins and the two boys when they went to the locker room.

There, Shanks became concerned when he saw Jenkins and J.S. using the same shower stall. His concerns heightened when he questioned J.S. after he left the shower and learned that Jenkins was not his father.

Mind you, neither Shanks nor Maybrier, whom he called into the locker room to observe, saw any physical contact between Jenkins and either boy.

Shanks and Maybrier nonetheless concluded that something “fishy” was going on, so they called the police.

Suggestive interviews?

Officers from the Versailles Police Department arrived at the pool at approximately 8 p.m., and immediately separated Jenkins from the boys. B.F. was driven home, but J.S. was taken to the police station where he met Detective Rick Qualls.

Qualls decided that he needed a quieter venue, so once more J.S. was placed in a police car and this time taken to the Woodford County police station.

Understandably, by this time J.S. was upset and wanted his mother. Mom arrived at the station and Qualls informed her he was concerned that the boy may have been sexually abused.

By the time Qualls interviewed J.S., it was around midnight. He did so without the boy’s mother being present.

Much of the interview was taped and that record showed that for the first half-hour, J.S. denied that Jenkins had done anything sexually inappropriate. But Qualls was unrelenting and wouldn’t accept the boy’s denials.

Tired and distraught, the boy finally agreed with Qualls’ suggestion that he had been touched once.

In an interview with a social worker the next morning, J.S. indicated that Jenkins had touched him a second time.

The initial investigation resulted in a four-count indictment against Jenkins which included two counts of first-degree sexual abuse of J. S., and two counts of indecent exposure for showering in the nude in the presence of J.S. and B.F.

Months later, J.S. was interviewed by a forensic specialist at a children’s advocacy center. As a result of that interview, Jenkins was also charged with two counts of sodomy.

Expert testimony admissible

At trial, Jenkins wanted to introduce the testimony of Dr. Terence Campbell, a forensic psychologist. Campbell was to testify concerning improper interviewing techniques which can result in unreliable reporting by child witnesses.

According to Dr. Campbell, it is “absolutely” accepted by psychologists that young children are highly susceptible to suggestion, and that improper interviewing methods create a serious risk of false allegations of sexual abuse.

Dr. Campbell cited as improper interviewing techniques leading or suggestive questions, coercive or “forced-choice” questions, repeated questions, and repeated interviews.

The trial judge wouldn’t allow this testimony or the doctor’s conclusions that J.S. had been subjected to improper questioning that seriously undermined his claims of sexual abuse.

The judge ultimately concluded that the doctor’s opinions infringed on the jury’s prerogative to decide the credibility of witnesses.

Without the expert testimony, Jenkins was convicted of one count of sexual abuse and indecent exposure, and sentenced to five years in prison.

But last month the Kentucky Supreme Court reversed his conviction and ordered a new trial, concluding that Dr. Campbell’s testimony should have been admitted.

The court explained that “Dr. Campbell’s uncontroverted testimony and lengthy report clearly satisfied the Daubert standard to establish the scientific reliability of the principle that suggestive interviewing techniques can affect the reliability or accuracy of a child’s memory or recall.”

It also found the testimony to be highly relevant, “as there was significant evidence that improper interviewing practices were used in this case. … Dr. Campbell was able to review the recorded interviews, and apply the science directly to the interviews.”

Finally, the court concluded that “the testimony would assist the trier of fact, as the theories and principles are not within the knowledge of the average juror.” (Jenkins v. Kentucky)

This seems to be the right result. The evidence against Jenkins is rather thin, and doesn’t fit with the evidence of Jenkins’ relationship with the boy in their two years together in the Big Brother program.

Given the circumstances of his interview with Detective Qualls, an expert’s opinion on whether J.S.’s accusations were the product a flawed process would certainly seem helpful in determining the boy’s credibility.

Naturally, no one wants to cut accused child molesters any slack, but this is one of those cases in which a court plainly sensed an unjust result, and took a step towards preventing future injustice.     

- Pat Murphy

patrick.murphy@lawyersusaonline.com

For personal injury attorneys, one of the tougher claims to prove is one alleging that a government agency had a duty to protect the plaintiff based on the existence of “special relationship.” 

So you know the champagne corks must have been popping on March 28, 2006, when lawyers for a victim of domestic violence won a $10 million verdict against New York City. 

But that hard-fought victory is smoke and ashes now because on Thursday a state appeals court struck that verdict down, demonstrating just how fragile such cases can be.

Apartment attack

On July 20, 1996, Carmen Valdez was confronted by her ex-boyfriend, Felix Perez, as she stepped out of her apartment to take out the garbage. Perez shot Valdez twice in the face and once in the arm.

Finished with Valdez, Perez shot and killed himself.

The attack and suicide occurred in the immediate presence of Valdez’s twin five-year-old sons.

Valdez survived her wounds and sued New York City, arguing the “special relationship” exception to the general rule that a municipality cannot be held liable for injuries resulting from the failure to provide adequate police protection.

Valdez’s case was premised on the undisputed fact that the assault occurred approximately 24 hours after a police officer told her that the police would arrest Perez “immediately.”

Valdez had before the attack obtained a protection order against Perez. She called police the day before the shooting to report that Perez had called and threatened to kill her.

According to Valdez, an Officer Torres dissuaded her from taking her children and going to her grandmother’s home after assuring her that Perez would be arrested immediately.

On its face, this looked like a pretty strong case for a jury to find that a special relationship existed between Valdez and New York City’s finest, a relationship giving rise to a duty to protect.

After all, a police promise of protection had been the critical factor in Valdez deciding not to move to a place of safety, right?

A jury did indeed see it that way, awarding Valdez $8 million for pain and suffering, and $430,000 in medical expenses. In addition, the jury awarded her twin sons $750,000 each for pain and suffering.

Justifiable reliance?

Last week, the New York Supreme Court, Appellate Division, found a fatal flaw in the case brought by Valdez.

Under hornbook law, in asserting the special relationship exception to the general rule of non-liability for a failure to provide adequate police protection, the plaintiff must show that (1) the municipality assumed through promises or actions an affirmative duty to act on behalf of the plaintiff; (2) knowledge on the part of the police that inaction could lead to harm; (3) some form of direct contact between the police the plaintiff; and (4) the plaintiff’s justifiable reliance on the promise of protection.

In Valdez’s case, the court found that she simply could not show justifiable reliance.

The court explained that “there was no visible police conduct or action of any type after Torres assured [Valdez] that he was going to arrest Perez. There was no police patrol or police officer dispatched (or even promised) to [Valdez] for her protection pending the arrest. [Valdez] did not witness the police taking Perez into custody; nor was she informed by the police — either by telephone or in person — that Perez had been arrested. By process of elimination, therefore, the [Valdez] reliance was not based on anything other than belief or expectation.”

What of Torres’s promise the day before the shooting that Perez would be arrested immediately?

The court said that “any reliance at that point would not have been justified since [Valdez] understood the police needed time to locate Perez in order to arrest him.”

As a final nail in the coffin, the court concluded that Valdez couldn’t prove that she in fact relied to her detriment on a police promise of protection.

“The plaintiff failed to meet her burden of showing that the assurance ‘lulled [her] into a false sense of security, and … thereby induced [her] either to relax [her] own vigilance or to forego other available avenues of protection,’” the court said.

“On the contrary, her testimony indicated that she spent the entire 24-hour period (during a weekend) with her sons inside her apartment leaving only to take out the garbage – something she was obliged to do on a daily basis because of a problem with rats. Moreover, she did not offer any testimony or evidence that her grandmother’s house would have provided any better protection against Perez once she decided to step outside it and into a public area.” (Valdez v.  City of New York)

- Pat Murphy

patrick.murphy@lawyersusaonline.com