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Not On the Lam!

Wednesday, March 25th, 2015

I was going to start the blog by saying that I am going On the Lam. Then, I searched it to realize that it basically relates to a criminal who is fleeing arrest or is a fugitive from the law. So… change of plans. Not On the Lam.

It’s one of those old English expression that has changed over time. It used to be more associated with leaving or departing. Hence…

Our Virginia licensed lawyers are going to the Greenbrier in West Virginia, for a Virginia Trial Lawyers conference. They move it to different locations each year but this is one of my favorite places.

As is our firm custom, we always get together for dinner on Thursday night and tonight we are eating at the golf course restaurant. Good food without having to get too dressed up.

I will try to come back with Monday’s blog with more wisdom and creativity. More realistic is that I will come back with a few more pounds because of the good food!

In the meantime, if you did not receive or read our March eBlast here, I am attaching for “quick click” ease. You can also subscribe to the monthly eBlast here or if you are not receiving my daily blog in your email, you can subscribe here.

Ok, that’s probably too many “heres”. I know it’s too early for it but it always feels good to say… I hope you have a great weekend!!

And for pic o’ day, this negativity makes me laugh:

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Some Friday President History

Thursday, March 19th, 2015

From Yahoo comes some history on the only President who served two terms that were not consecutively served. Do you feel like you should now hear, “I’ll take political trivia for $200 Alex.”?

I admit that I have been busy with casework and… some March Madness tournament watching. So, I thought I would post this article on……… (I was hoping that you would now hear the Jeopardy theme in your head) President Grover Cleveland.

The article is titled 10 fascinating facts about Grover Cleveland, the only double President.

1. Cleveland’s real first name was Stephen, not Grover. He used the name Grover as an adult; maybe he tired of using the name “Stephen Cleveland” in grade school?

2. Yes, he’s a distant relative of the guy they named the city after. But Grover didn’t grow up in Ohio. He was born in New Jersey and later moved to New York state.

3. Cleveland was a big guy. He wasn’t called Big Steve, as one of his political nicknames, for nothing. At 250 pounds, he was the second-heaviest President after William Howard Taft. Fitness Magazine named him as the least-healthiest President, because of his penchant for beer drinking and cigar smoking.

4. His first career was as a teacher. Cleveland was a teacher at the New York Institute for the Blind in Manhattan before deciding to pursue a law career.

5.  Cleveland ran for office in Buffalo and New York state as a reformer. He gained quite a reputation as a fresh-faced politician who fought corruption and patronage. In 1881, he came Buffalo’s mayor and in 1882 he came New York’s governor.

6. What’s the deal with the child scandal? Republicans accused him of fathering an illegitimate child in 1874. Cleveland admitted it was possible, but his law partner, Oscar Folsom, may have also been the father. Cleveland’s honesty helped to blunt the scandal’s impact.

7. Cleveland won the first presidential election by the narrowest of margins. It was a win by just 1,200 votes in his adopted home state of New York that swung the 1884 election.

8. Cleveland actually won his second election in the popular vote. Big spending by the Republicans swing the electoral vote in New York state away from Cleveland, and Benjamin Harrison took the Electoral College vote, and the presidency.

9. A third party helped Cleveland get his second term. The Populist Party took 8 percent of the popular vote, and Cleveland easily defeated Harrison in the 1892 rematch, by a 277-145 margin in the Electoral College.

10. Cleveland gets mixed grades as a President. Historians rank Cleveland as an average President at best, in the same category as Chester Alan Arthur and Benjamin Harrison. Cleveland gets credit for restoring the power of the presidency in the 1880s, but Cleveland’s misunderstandings about political systems and an economic depression in 1893 saw Cleveland’s Democrats lose power quickly and his political career end.

     See, even though I wasn’t real original in my blogging today by posting this listing from Yahoo, it fits a little within legal blogging because it’s political history and trivia. And on a Friday, trivia is a good thing!!! Of course, some of those seem a bit nonsensical.

I hope you have a great weekend!

And for pic o’ day…. too much:

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Categories : General Law, Political
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Keeping Up Appearances

Tuesday, March 17th, 2015

     Prior to becoming the infamous namesake of the Ponzi Scheme,  Charles Ponzi (wiki) committed a fraudulent act that would be a precursor for things to come.

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     He walked into the offices of a warehouse company and found no one there. Sitting on a desk was a checkbook. So, he wrote himself a check in the amount of $423.58, which was a tidy sum in 1907. Not surprisingly, the company soon learned of his “self-help” financial plan. 

     Soon, Ponzi pled guilty after readily admitting that he had done it. He was sentenced to three years at St. Vincent-de-Paul Federal Penitentiary.

     This bleak prison was located near Montreal, Canada. A long way from his mother in Italy. Rather than inform his mother of  conviction and imprisonment, he wrote a letter to tell her that he had found a job as a “special assistant” to a prison warden. This explained why the letter was postmarked from the Penitentiary. His way of keeping up appearances.

     His entire life became one scheme after another while taking advantage of people and their greed. Even after committing the scheme that later became the basis for all other “rob Peter to pay Paul” schemes, he had no remorse over his investors losing roughly $20 million dollars in 1920, which is the equivalent of  over $225 million today.

     In fact he was proud that he had stolen all that money by saying in his last known interview before dying, “Even if they never got anything for it, it was cheap at that price. Without malice aforethought I had given them the best show that was ever staged in their territory since the landing of the Pilgrims! It was easily worth fifteen million bucks to watch me put the thing over“.

     The Ponzi Scheme!

     And for pic o’ day, some more excuse-making!

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The Massie Trial in Hawaii

Wednesday, March 11th, 2015

This is the story of a historical trial that took place in Honolulu, Hawaii. According to Wikipedia, it was known as the Massie Trial or also the Massie Affair. It first began with a rape trial that then led to the Massie murder trial.

Thalia Fortescue, had come from a “well-to do” family and married a rising United States Navy officer named Thomas Massie. They attended a party in September 1931. There, Thalia Massey, apparently got drunk, got in a fight which resulted in her slapping an officer at the party. Then, she raced out the door and home alone.

Later that night, reportedly her officer/husband, Lieutenant Massie, found her at home where she made the claim that she had been raped by several Hawaiians. When she described the event later to police, she described her attackers simply as “locals”.

In short, several charges were brought based on some questionable evidence, including the fact that the police told her several pieces of critical evidence because she could not provide even basic identification of some of the defendants, and even a purported license plate number which she originally did not know. A fabrication of evidence was later suggested.

Eventually these defendants were brought to trial on the rape charges. This, despite her questionable testimony that did not hold well under cross examination.

The jury  included two Chinese and two Japanese jurors. Closing arguments in the trial were made on December 1, 1931.

Throughout the trial, the newspapers had been rife with rumors of Thalia having an affair with another officer before all these events. In addition, it was speculated that she originally had never in fact been raped. Instead, the claim was that it was her own husband who had come home and beaten her up and broken her jaw.

Compounding all this, her well-to-do mother arrived to support her daughter. Practically, she was really there to conduct a public relations campaign to salvage the family name.

After ninety seven hours of deliberations the jury announced that they could not reach a decision. They were deadlocked at six to six. The jury was dismissed without a conviction.

Racial tensions were high after the hung jury.  Across the island, there were fights between whites and non-whites.

Her officer/husband, Tommie Massie, was afraid that a second trial might also fail to bring a conviction. He conceived a plot  to obtain a confession.

He and three others kidnaped one of the defendants, a local well-known boxer named Joe Kahahawai. He was the darkest-skinned of all the original defendants who had been found not guilty in the original trial. These white men held him at gun point with the intent of forcing him to confess to the rape,.

When he would not confess to the rape, they beat him and then one of them shot him, in a fit of rage. They then wrapped his body in a sheet with the intent of dumping the body in a desolate place.

A police motorcyclist saw their car and thought that it looked suspicious. He pulled them over and discovered the body. All four were then arrested for murder.

Now, racial tensions were even worse because the killing was seen by the locals as a lynching. Conversely, the white community was in sympathy with Masssie and his friends.

A grand jury indicted all four. Famed defense lawyer, Clarence Darrow, who was seventy- five-years old and in retirement, decided to come out of retirement to defend the four.

He was promised a fee of $40,000; a very substantial amount of money in those days. He was assisted in the defense by attorney George Leisure, who arrived by ship on March 24, 1932. They were met by crowds of people, reporters and curious onlookers, at the Honolulu dock. This was a front-page case in Hawaii.

The trial began on April 4th in a packed courtroom. Throughout the trial, Thalia Massie attempted to portray herself as having no knowledge of the events or anything that her husband might have done.

However, the prosecution managed to prey on her feeling of superiority above the islanders; which led to her losing her temper, and ripping up a piece of evidence, and storming from the witness stand.  On that, the prosecution rested.

Defendant Thomas Massie was Darrow’s first witness. His defense was temporary insanity. Darrow called two psychiatrists to testify that the defendant had been temporarily insane at the time of the killing. He also called Thalia Massie who testified about the original alleged rape.

Darrow’s final argument was  carried live on local radio. He argued that the mental suffering of the rape and hung jury had driven the defendants to do what they had done. He occasionally wiped away tears while emphasizing the “black gates of prison” that they would face if convicted.

He argued all morning and into the afternoon. In his conclusion, he praised Hawaii as a “kindly and dispositioned people” and ended his closing with,  “I ask you to be kind, understanding, considerate – both to the living and the dead.”

The jury began deliberations on April 27th. After 47 hours,  their verdict for each defendant: “Guilty of manslaughter. Leniency recommended.”

Again, racial tensions were high. Martial Law was considered.

Hawaii Governor Lawrence Judd received a call from the President of the United States, Herbert Hoover, who urged that they be spared jail time. The governor agreed. He commuted their original 10-year sentence “to one hour, to be served in the custody of the sheriff.”

Wikipedia concludes with the following:

After a flurry of diplomatic maneuvering between Washington, D.C. and Honolulu, martial law was avoided. Instead, under pressure from the Navy, Territorial Governor Lawrence M. Judd commuted the 10-year sentences of the convicted killers to one hour, to be served in his office. Days later the entire group, including the Massies, the two other Navy men, Fortescue and Darrow, boarded a ship and left the island in turmoil. Thalia and Massie divorced in 1934; she committed suicide in 1963; he died in 1987.

Like an ending to a movie… In 1966, Albert O. Jones admitted that he was the one who had actually shot Joeseph Kahahawai.

Even though the blog is so long, I still include pic o’. This has its own curious bumper sticker evidence!

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The Virginia General Assembly

Tuesday, March 10th, 2015

Mark Twain said, “No man’s life, liberty, or property are safe while the legislature is in session”. That saying always makes me smile and then nod.

I start the blog out with that because I have asked Brian Sullivan to do a summary of the past Virginia General Assembly session. I’ll let you decide if you think Mark Twain was right. On to Brian’s analysis:

 

This past January and February, the Virginia General Assembly met and considered nearly 3,000 bills, resolutions and budget amendments.  Of those, the House passed 456, and the Senate passed 344; for a grand total of 800 new laws!  Well, slightly less since some are doubled; but it’s still a lot and most of these go into effect on July 1st.   So you better get to reading!

Fortunately, the vast majority of these will have little to no effect to you whatsoever.

For example: House Bill (HB) 1545 and Senate Bill (SB) 685 removes the word “inspection” from references to the United States Postal Inspection Service in several criminal procedure sections.  Exciting, right?

Other new laws may effect you, but almost unnoticeably; HB1440 & SB899 allow the ABC to round the final price of each container of alcoholic beverages it sells to end with a nine (9).  Under current law, the final price may be a multiple of five (5).  So if you’re planning a large Independence Day party, be sure to do your shopping a week in advance to save those 4 pennies!

News coverage for the session has mostly focused on new laws concerning the handling and reporting of sexual assaults on college campuses, ethics reform, budget amendments, and a few others.  Most of the other bills passed are technical adjustments or minor policy changes, others only effecting associations or a small subset of the population.  But there are a few that could be of interest to you.  Let’s take a look:

  • HB1342 & SB1220: These bills expand the law against following too closely to more than just cars.  This now includes non-motor vehicles like bicycles, electric assistive mobility devices, electric power-assisted bicycles, and mopeds.
  • HB1499 & SB1427: Provide that a mother may breastfeed in any place where the mother is lawfully present. Current law only allows breastfeeding on any property owned, leased, or controlled by the Commonwealth.
  • HB1307 & SB1293: Public elementary and secondary schools will no longer be permitted to require parents to provide the student’s social security number.  Instead, an identification number program is being developed.  (goes into effect August 1st.)
  • HB2090 & SB1260: Require new training standard materials and regulation for Restaurants that address food safety and food allergy awareness and safety.

And last but not least:

Of course, depending on what you do for a living or what your interests are, there are potentially many new laws that may directly effect you.  If you’d like to take a look at all the bills that were passed by the General Assembly this year, it’s as easy as clicking here.

And now for our usual blog pic o’ day…

Bear

 

 

 

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I Do…6 to 10 Years

Thursday, February 19th, 2015

Maybe it’s a perspective of happiness that’s a bit hard to understand. But, it’s a “love story” that belongs in the Friday blog. The kind of story that makes you take a second look.

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From the Associated Press and Yahoo comes the story of Israel Silva, who got married and then sentenced. And, his attorney warned him before it all took place.  ”There will be no, ‘You can kiss the bride,’ or whatever they say when people get married,” Silva’s defense attorney, Sarah Miles, said before her client’s impromptu wedding on Feb. 11 in Park County’s District Court.

Israel Silva wore his orange jail jumpsuit and shackles while his bride-to-be stood the mandatory 15 feet. The judge married the lovebirds before one became a jailbird. The ceremony lasted about a minute and then the judge directed them to sit down.

Next, Judge Cranfill sentenced Silva to six to 10 years in prison for a drunken crime spree which included crashing two trucks, firing a  stolen gun at other oncoming cars and leading the police on a car chase that was reportedly up to 110 m.p.h. The chase ended after Silva ran over an irrigation pipe and got stuck in a muddy barley field. At the time, he was already out on bond for another misdemeanor charge.

Silva pleaded guilty to aggravated burglary, property destruction and a third conviction of driving under the influence Somehow, all that was apparently attractive enough to woo his lady to get married… at the courthouse… well, you know. And he didn’t even wear a tie with his orange suit.

Despite the cold, I hope this pic o’ makes you smile into the weekend:

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Blame Alvin the Cat

Wednesday, February 18th, 2015

You’ve heard the old excuse  “I don’t have my homework because the dog ate it”. Well, how about the cat?

My previous blog (here) discussed a Roanoke lawyer who missed a statute of limitations over 2 dollars. Now, a  lawyer in the D.C./Virginia area has also failed to file a timely response to a summary judgment motion in Federal Court. His excuse is  part of his court filing that includes Alvin the Cat.

The ABA Journal and  Abovethelaw.com describes an attorney’s court filing on February 10, in an attempt to get a judge to excuse his failure to file a timely response and to grant him an extension to now file.

The lawyer’s initial problems started when he contracted both gout and pneumonia in January. He found himself bedridden, according to the filed pleading, with severe pain and coughing. He wisely went to the emergency room where they gave him painkillers.

Over the course of the next few days, he was taking Percodan and Percocet as well as steroid indomethacin. The lawyer describes that the medication caused him severe gastrointestinal disturbance that required perpetual hobbling to and from the restroom, generally interfering with the level of concentration need to oppose a motion for summary judgment.

Then the lawyer went on to describe a series of events that, combined with his illness, really made it impossible for him to work. This included the next section of his brief that was titled Alvin the Cat.

With his court deadline bearing down on him, his children came home from school on January 30, and became worried because no one could find their longtime house cat, Alvin. A missing cat search began throughout the house, only to end in the finding of Alvin in the closet… dead.

With all the kids tremendously upset, the lawyer promised to bury Alvin the next day. In addition, his court pleading notes that after all the emotion of the search, he was just too exhausted to work on the pleading that night.

The next day, there was a ceremony and funeral for Alvin. There was also a discussion “at the funeral” about the nature of life and death and where Alvin had gone after his death. This took a great deal of time. Unfortunately, it got worse.

As the lawyer was digging the hole to bury Alvin, his shovel hit his foot the wrong way, triggering another painful bout of gout. This was a Saturday night too filled with pain to perform legal work. Then Sunday, he apparently rested.

He was back to work on Monday; but as he read his previously prepared work on his pleadings, they did not look as good as they did while on pain killers.  

The next roadblock was the emotional issues that his roommate was going through. The lawyer again was distracted by his work because he needed to provide legal and emotional support concerning the state of the man’s failed marriage.

The attorney concluded his extension request by summarizing his plight in stating that For reasons wholly unclear, that morning he was in need of counseling concerning the state of his marriage to the point where I was concerned for his immediate well-being. I think Alvin’s funeral and ceremony with the kids triggered something. In any event, we spoke for several hours, following which plaintiff’s counsel was exhausted and his foot was on fire.  

The attorney explained to the ABA Journal that the reason that he was so explicit in his detailed explanation was that he felt that honesty was the only way to make the Court understand what had happened. He felt that his events fell outside the typical reasons of why deadlines get missed.

The Judge probably will rule against the extension. In the meantime, the least we can do is have one final thought of Alvin.

And for pic o’ day, this is one that I didn’t get posted after Christmas. But for this blog, it just seemed apropos:

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A Dismissed Case

Monday, February 16th, 2015

This is the story of a case that ran out of time and money. It reminds me of the poem by Benjamin Franklin:

“For the want of a nail the shoe was lost,
For the want of a shoe the horse was lost,
For the want of a horse the rider was lost,
For the want of a rider the battle was lost,
For the want of a battle the kingdom was lost,
And all for the want of a horseshoe-nail.”

A  harsh result, but this really happened. The name of this Virginia case is Landini v. Bil-Jax

It was a case about a product that caused an injury. This products-liability case was filed by a school employee.  A Roanoke lawyer drafted the lawsuit to file in Powhatan County, where the injury occurred. The lawsuit filed was seeking an amount of  $2.5 million dollars.

The lawyer, or someone on her staff, called a local circuit court in the Roanoke area to confirm how much the filing fees were for a $2.5 million lawsuit. The answer was $344. On September 2, The lawyer overnighted her $344 check with the drafted lawsuit, to the Powhatan Circuit Court.

The next day, the clerk  received the mailing with the check and lawsuit which was September 3. The lawsuit had to be filed by September 9 because of the two year statute of limitations time period.

The clerk called the lawyer on September 9. and told her that the filing fee check was short. As it turned out, Powhatan County charges more than the Roanoke Court. The clerk advised that “Your filing fees are $2 short; it’s $346.” The filing fee was more because during the previous year, Powhatan County had approved an increase in their library fee that was tacked on to the court filing fee, from $2 to $4.

As soon as the clerk notified the lawyer, she agreed to send another check for the needed amount. She mailed that that check out the next day. When the check arrived,  the clerk stamped the lawsuit as filed. The date of the stamp was September 13,  now four days after the statute of limitations deadline.

At that point, the clerk had never told the lawyer that the lawsuit had not been docketed as filed. The clerk had only told her that she needed to send an extra $2. There was no discussion of the clerk holding off on filing the suit until the small amount was received, so the lawyer didn’t know that her statute of limitations was running.

In the state of Virginia, you can wait up to a year to serve your lawsuit on the defendant. In this case, the Roanoke lawyer never served the suit, so she nonsuited it and then refilled it and then served it on the defendant.

That’s when it happened! The lawyer  received the defendants’ pleading called a special plea of the statute of limitations. I don’t even want to imagine the lawyer’s feelings as she read her mail that day and saw that her original lawsuit had been date stamped originally as being filed four days too late, after the statute of limitations September 9 original deadline.

The trial court ruled that the plaintiff had indeed filed the original suit two years and four days after the injury; meaning that it was filed after the statute of limitations had run. The Roanoke lawyer appealed.  The Virginia Supreme Court agreed with the lower court and determined that the filing fee, including the library fee, had to be paid before the lawsuit could be considered filed. A dismissal over  2 dollars.

Maybe that is why the practice of law has been described as five baskets, five snakes… and four lids.

And for our pic o’ day, it’s all about the evidence. And if you are in the snow right now… be real careful out there!

marshm

 

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A Barber’s Punishment

Wednesday, February 11th, 2015

From time to time I have posted a pic o’ day that is taken of a pet who has committed some mistake in the house. They are called pet shame pictures.

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A picture like this where their owner prints a sign next to their pet.

Now a new form of shame punishment has been introduced. The Washington Post is reporting that a barber is offering to give your child a haircut as punishment for misbehaving. The barber calls it the Benjamin Button Special with a nod toward the movie.

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The barber and owner of a shop called A-1 Kutz says that he offers this form of haircut for free, to parents who want to try a novel form of punishment. Supporters believe that it is the perfect cut for kids who need to “act grown”.

Supporters for this kind of punishment will say that these parents are creatively doing whatever it takes to teach their kids a lesson. And at least there’s no “physical hitting”.

I’m no psychologist, but a lesson that lasts until the hair grows out and subjects a child to ridicule seems more than just discipline to me. I don’t see this as hilarious lesson teaching. That’s just my 2 cents. I say someone should trim this barber’s nonsense.

And for pic o’ day, here’s an animal with no shame!

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Man Without a Country

Wednesday, February 4th, 2015

     The Man Without a Country was a short story written in 1863 by Edward Everett Hale. It was intended to be a bit of propaganda for the Union during the Civil War. 

     It is the story of an American soldier named Philip Nolan, who renounced his country during a trial for treason. In the story, he is sentenced to spend the rest of his life at sea without ever hearing any news of the United States or even to have it mentioned. That’s why he was a man without a country.

     Through the years at sea, he went from being bitter about the United States, to desperately wanting his country back. Despite never escaping his sentence, he decorated his room on the ship, with a flag and a picture of George Washington. Later in the story, after he is found dead, the shipmates learn that he had written his own epitaph that patriotically stated:

                                In memory of PHILIP NOLAN, Lieutenant in the Army of the United States. He loved his country as no other man loved her; but no man deserved less at her hands.

     I write this blog because I recently watched a Frontline/PBS show titled United States Of Secrets. It’s the story of the United States Intelligence war on terror, and what was accepted as necessary to provide a secure country.

     There were many in the intelligence community, as well as Constitutional scholars, who believed that the rights of citizens were being trampled. One former NSA employee decided to do something about it. In response, Eric Snowden has become a man without a country.

     You can see it on Netflix. It’s certainly thought-provoking. If the assertions in the show are correct, than the government knows about my blog. And, it might also surprise you to learn the lengths that some businesses will go, to understand your search and spending habits.     

     And our pic o’ is also a bit of snoring technology.

taser

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