Heather Specyalski, 33, was charged with second-degree manslaughter in the crash that killed businessman Neil Esposito. Prosecutors allege that she was driving Esposito's Mercedes-Benz convertible when it veered off the road and hit several trees.
Well, the jury apparently bought her defense, because after nineteen days of testimony, it took jurors less than an hour to come back with a "not guilty" verdict on all counts.
(Thanks to regular reader Taint for bringing the verdict to my attention.)
A Tompkinsville man accused of beating his 10-year-old son with a 15-inch stick of beef jerky was charged yesterday with felony assault, and could face up to seven years in prison.
* * *
According to court papers, Palafox went back upstairs to his apartment and "repeatedly" hit the boy "on the upper thighs with a dangerous weapon—to wit the beef jerky—creating discoloration, bruising and substantial pain."
* * *
The [grocery store and deli] worker identified the alleged weapon as a 50-cent, 1.12-ounce Slim Jim, advertised as "The Hulk-Sized Stick." The label on the Slim Jim features a picture of the Incredible Hulk howling in anger.
* * *
Palafox was charged yesterday in Stapleton Criminal Court with second-degree assault, a class D violent felony with a maximum sentence of seven years in prison, as well as third-degree assault, criminal possession of a weapon in the fourth degree and endangering the welfare of a child.
(Staten Island Advance link via the Obscure Store.)
Update: A Single Southern Guy in America speculates that the whole thing is a hoax.
FBI agent Thomas A. Cottone, who was at the funeral, said that [Walter K.] Carlson was at the funeral wearing a Marine Corps dress uniform with 24 medals. The uniform bore insignias indicating rank of captain.
"When I saw him wearing those medals, I knew right away what he was doing," said Cottone, who specializes in apprehending people who illegally wear military awards, particularly Congressional Medals of Honor.
* * *
Cottone was made an honorary Marine by the Commandant of the Corps for his work. Cottone is also the FBI's national case agent for investigations into illegal wearing of military awards, he said.
The law in question is 18 U.S.C. § 704. Subsection (a) makes knowingly wearing medals and their corresponding ribbons under false pretenses a misdemeanor subject to fine and up to six months imprisonment. Subsection (b) deals specifically with the Congressional Medal of Honor, increasing the potential term of imprisonment in cases involving the C.M.H. to not more than one year of incarceration.
(Daily Record story via Obscure Store.)
Kevin: My host has unlimited bandwidth.
Granted, being conferred the status of "one of the most consistently amusing legal weblogs"—on the basis of bandwidth humor no less—isn't much, but I reckon we lawyers have to take the praise we can get these days.
A man was arrested and charged with sexual assault on an elderly woman's corpse Saturday, according to police.
The act of necrophilia allegedly occurred sometime Friday night when 48-year-old Mahdi Allah slipped into the Hogan, Sullivan and Bianco funeral home at 1266 Ninth Ave.
A funeral home employee discovered Allah Saturday on top of the corpse with his pants around his ankles, passed out drunk, according to police spokesman Dewayne Tully. Allah, a former employee at the funeral home, allegedly used a key to let himself in sometime the previous night, went downstairs and removed the corpse from a storage freezer before placing it on the floor.
He is being charged with two counts of sexual assault upon a person who is unconscious or unaware and one count of burglary, according to Tully. The investigation is ongoing.
While I am horrified by such conduct and plenty willing to criminalize it, the sexual assault charges being leveled at this man are not legally sound.
If the Examiner's account is accurate, the charges sound like they are lodged under California's rape statute, Calif. Penal Code § 261. Subsection (a)(4) renders "sexual intercourse accomplished with a person not the spouse of the perpetrator" rape when "a person is at the time unconscious of the nature of the act, and this is known to the accused." Two subsequent provisions provide that a victim is "unconcious of the nature of the act" if physically "unconscious or asleep" or "not aware, knowing, perceiving, or cognizant that the act occurred." Calif. Penal Code § 261(a)(4)(A)-(B).
Although the victim in this case might be described as "unconscious" or "unaware" in some sense, she also was not capable of consciousness or awareness. Indeed, to continue to refer to this corpse as a "victim" and as a "she" really anthropomorphizes what has become a lifeless inanimate object. While necrophilia is loathsome, it is not rape.
Much to my surprise, there is even California caselaw that precludes a rape prosecution under these circumstances. See, e.g., People v. Rowland, 14 Cal. Rptr. 2d 377, 397 (Cal. 1992) ("Of course, in rape the act of sexual intercourse must involve a live victim . . . ."); People v. Subia, No. G029849, 2002 WL 31682001, at *1 (Cal. Ct. App. Nov. 27, 2002) (unpublished opinion) (noting "the rule that the crime of rape requires a live victim; a dead person cannot be raped"); People v. Sellers, 250 Cal. Rptr. 345, 350 (Cal. Ct. App. 1988) ("We conclude, as a matter of law, that the crime of rape as defined in Penal Code section 261 requires a live victim."). The Sellers decision is premised on the notion that a corpse is not a person. Id. The idea that such conduct may not constitute rape no matter the acts or intent of the perpetrator is what the criminal law denominates "legal impossibility." See People v. Tolbert, 56 Cal. Rptr. 2d 604, 611 (Cal. Ct. App. 1996) (characterizing both rape and kidnapping of a corpse as such).
Update: Necrophilia is not rape, but as Milbarge points out in the comments, some (but not all) defendants could be properly charged with attempted rape for having sex with a corpse. See, e.g., People v. Kelley, 3 Cal. Rptr. 2d 677, 691-92 (Cal. 1992); People v. Thompson, 15 Cal. Rptr. 2d 333, 336 (Cal. Ct. App. 1993). However, it is important to recognize that not all defendants could be so charged. The scenario that Milbrage has in mind is the typical sexual assault felony murder situation (i.e., a victim killed in the course of an attempted rape). See Sellers, 250 Cal. Rptr. at 352 (noting that "if the victim dies during an attempted rape which is only consummated after death, the felony-murder rule is fully applicable").
However, not all necrophilia is subject to attempted rape charges. The defendant in the Examiner story could only be properly charged with attempted rape if he intended to rape a live person (i.e., was under the mistaken impression that the corpse was alive when he violated it). The Thompson court offers a lucid explanation:
It is undisputed that the crime of rape requires a live victim, because it requires non-consensual sexual intercourse. It is also clear that in order to be guilty of attempted rape, a defendant must intend to rape a live victim. If a defendant intends at all times to have sexual intercourse with a dead body, the defendant can be guilty of neither rape nor attempted rape. The question remains as to whether a defendant may be guilty of attempted rape when the defendant intends to have non-consensual sexual intercourse with a live victim but unbeknownst to the defendant, the victim is dead.
. . . . We conclude, based on analogous authorities and under the circumstances of this case, that impossibility is not a defense to the attempted rape. The courts of this state have not concerned themselves with the niceties of distinction between physical and legal impossibility, but have focused their attention on the question of the specific intent to commit the substantive offense. The hypothesis of the rule established in this state is that the defendant must have the specific intent to commit the substantive offense, and that under the circumstances, as he reasonably sees them, he does the acts necessary to consummate the substantive offense; but because of circumstances unknown to him, essential elements of the substantive crime are lacking. It is only when the results intended by the actor, if they happened as envisaged by him, would still not be a crime, then and only then, can he not be guilty of an attempt.
* * *
The discussion of impossibility in the context of attempted rape can be seen in the following examples. If an individual attempts to rape a victim, reasonably believing the victim is alive, the act as intended and envisaged by the actor constitutes the substantive crime of rape. Accordingly, if unbeknownst to the individual the victim in fact is not alive, the individual is nevertheless guilty of attempted rape. On the other hand, if an individual intends to have sexual intercourse with a dead body, the acts as envisaged do not constitute the substantive crime of rape and the individual cannot be guilty of attempted rape.
15 Cal. Rptr. 2d at 336-37 (emphasis added and citations and quote marks omitted).
Given the circumstances of this case—the defendant, a former employee of the funeral home in question, entered the business and removed the body from a storage freezer—it is highly unlikely that the defendant intended to rape a live victim. Indeed, "highly unlikely" really does not fully capture the miniscule odds of such being the case.
Necrophilic sex acts are not rape. Moreover, necrophilic sex acts (i.e., sexual activity with corpses qua corpses) are not attempted rape. The only instances in which necrophilic sex acts might properly be subject to attempted rape charges are when the necrophilic nature of the acts is inadvertent. That is, it is only attempted rape if one intended to have sex with a live human being rather than a corpse.
Followers of Rastafarianism venerate Haile Selassie as a god.
Id. at 255 n.1.
the clerk who was a failure in everything except marriage and war
Boy, is this searcher ever a "the glass is half-empty" kind of guy!
A middle-aged woman who says Viagra wrecked her marriage has been granted a divorce in what is thought to be the first case of its kind in Britain.
She claimed her husband became unreasonably sexually aggressive after turning to the anti-impotence drug.
* * *
The divorce, handled by Oxford-based solicitors Boodle Hatfield, is the only known British case in which Viagra has been cited.
But lawyers in the US have reported a glut of similar cases.
A 70-year-old New York man began cheating on his 61-year-old wife just two days after starting his prescription, according to USA Today newspaper.
In another American case, a wife brought a law suit against her husband after he spiked her drink with Viagra in a bid to boost their lovemaking.
The USA Today article referenced in the BBC dates from March 21, 2001. It reported that:
Nobody claims Viagra causes affairs or divorce. But increasingly, it is a factor in both, says Dominic Barbara, who heads a Manhattan law firm with 15 attorneys. In about one of every 15 or 20 new divorce cases, somebody mentions Viagra, he says.
Initially, the Viagra divorce cases were the result of "men straying from marriage," popping a pill seen as the fountain of youth, he says. Then came "cases of men taking Viagra, but their wives were no longer interested in sex. And now, a lot of middle-aged women are having affairs with older men who were impotent before there was Viagra."
He recalls a woman who brought him a bottle of pills to identify. The husband had tried to hide his Viagra in his vitamins. "These blue pills are very distinctive. I recognized them right away," Barbara says. The firm hired a private investigator who quickly confirmed an affair.
Manhattan divorce attorney Raoul Felder recalls a husband enthusiastic about Viagra who "tried to give it to his wife" in a beverage without her knowing. She came to Felder to discuss a lawsuit.
Affairs made possible by Viagra are inevitable, Felder says. "It enables men who have enough money (pills cost about $9 a tablet) and time on their hands to enjoy the time on their hands."
Dallas divorce attorney Kenneth Raggio recalls an affair uncovered when a man took eight Viagra pills, which his wife had counted, out of town and came back with one. "She confronted her husband, and he admitted an affair. He also claimed he gave her some but never told her about it."
* * *
Many couples are simply ignorant about how the pill works and are never told by a doctor about the need for good communication, sex therapists say. . . .
None of these cases appear to be making it into the reported decisions. I have, however, been able to locate a some related caselaw. For example, in Gray v. Gray, No. HQ-167-4, 2003 WL 1873097, at *1-2 (Va. Cir. Ct. Apr. 8, 2003) (unpublished opinion), the court rejected Viagra consumption as evidence of an alleged affair outside of a marital relationship that was devoid of intimacy. The result in Gray is in keeping with a prior Virginia appellate decision, Lee v. Lee, No. 2195-01-2, 2002 WL 1902629, at *4-7 (Va. Ct. App. Aug. 20, 2002) (unpublished opinion), in which the court determined that the evidence, which included a Viagra prescription under similar circumstances, did not suffice to prove adultery. The sole reported decision addressed a similar evidentiary claim in a divorce action, but the court found it unnecessary to reach the issue. Jinks v. Jinks, 120 S.W.3d 301, 307 n.3 (Mo. Ct. App. 2003).
I am more interested in the USA Today article's claim that nobody is blaming Viagra for this phenomenon. Pfizer, the maker of Viagra, has previously faced products liability suits on other bases. See, e.g., Brumley v. Pfizer, Inc., 149 F. Supp. 2d 305, 309-15 (S.D. Tex. 2001) (granting summary judgment for defendant in products liability suit alleging that Viagra caused heart attack of deceased); Moran v. Pfizer, Inc., 160 F.Supp.2d 508, 510-12 (S.D.N.Y. 2001) (granting summary judgment for defendant regarding product liability claim that side-effect of Viagra included seeing "blue lightning streaks" that resulted in auto accident); Selig v. Pfizer, Inc., 735 N.Y.S.2d 549, 550-51 (N.Y. App. Div. 2002) (affirming summary judgment for defendant in products liability suit alleging that Viagra caused heart attacks in men with preexisting coronary artery disease).
Although I have grave doubts about the propriety and chances for success of products liability (or other types of) lawsuits alleging, in effect, that Viagra causes adultery, I am nonetheless surprised that no entrepeneurial lawyer has yet advanced such (or similar) claims. According to a May 1998 Associated Press report, however, at least one lawyer (the aforementioned Dominic Barbara) has mulled such a suit premised on negligence. Perhaps, it is only a matter of time.
In a series of votes over recent months, the three-trustee majority on the five-member board has made the Westminster School District the only one of 1,056 in California to resist a state law that lets students and staff define their own gender. Such a policy, the trustees say, could lead to promotion of a transsexual agenda in the classroom, cross-dressing on campus and boys and girls mixing in school bathrooms.
The three-member board majority seems to have grounded its resistance to the state policy expressly upon Christian principles. However, as the foregoing snippet reveals, they are also making the sort of pragmatic arguments that Professor Smith finds persuasive (e.g., "boys and girls mixing in bathrooms" and the like). The board majority's vociferous opponents have invoked principles such as the rule of law and civil rights, but have also invoked pragmatic concerns, namely the fact that the majority's actions jeopardizes state and federal funding.
The point about the rule of law struck a chord with me, but I was surprised to see it invoked by some others. Of the whole affair, Kevin Drum opines that:
[The board majority's] position is unquestionably illegal[.]
And in case his position was too subtly made for his readers—a genuine possibility if his comments section is any indication of the intelligence of his readership—Drum goes on to highlight Westminster's unsavory record of past lawlessness.
Drum, of course, has not always been so solicitous of the rule of law. Just a couple of months ago, he basically shrugged his shoulders over the mayor of San Francisco's decision to issue marriage licenses to same-sex couples in violation of the state's unambiguous limitation of marriage to unions between a man and a woman. Before San Francisco's exercise in civil disobedience was halted by the courts, some 4,000 gay marriages were recognized. Prior to that, Drum observed that:
What the City of San Francisco is doing is a publicity stunt. They are peacefully challenging the law in an effort to change public opinion, something that's a rich tradition in American politics from both liberals and conservatives. When a court rules against them, as it almost certainly will, they'll stop. So what's the problem?
Why the Westminster school board majority's conduct falls outside this "rich tradition" is not immediately obvious. One wonders if Drum has somehow reconciled his seemingly contradictory positions in his own mind. Or, perhaps, he has simply not noticed the tension that exists between the two pronouncements.
Returning to Professor Smith, he maintains that:
If you have a girl who wishes she were a boy, then what you have is a girl. Who wishes she were a boy. But she is still a girl. All the professors in the world spouting pseudo-scientific nonsense about socially constructed blah blah blahs don't change that. You don't have to be a Christian to see that. It may help, because it makes it less likely that you are in the grip of that particular insanity. But any form of reasonably lucid thinking will do. If you think you're a Martian, you're still an Earthling. Sorry, it's a tough old world that way.
* * *
. . . If some high school girl thinks she is a boy, or high school boy thinks he is a girl, what they need is help. Instead of messing with people's minds and forcing otherwise harmless Christians to be the ones to stand up and say, uh, sorry, but they aren't really boys or girls, the state could provide some real psychiatric care, along the lines of, Debbie, you're a girl. Let's see how we can deal with that, here's a concept for you, FACT.
I am sympathetic to Smith's basic premise, but even biology, it turns out, is not always so simple. Whatever one's biological status might be, I suspect that folks in many California environs may not share Smith's point of view. After all, San Francisco also decided to cover sex reassignment surgery and other treatment under its municipal medical benefits plan not too long ago. More recently, an Australian court authorized preliminary medical measures (viz. hormone therapy) for a 13-year-old girl who identifies as a boy. Given the Golden State's apparent cultural mores, can it be far behind the land down under?
But suspicions about her gender arose, and Merel and Magidson, who had both had sex with Araujo, began to compare notes, setting the stage for the showdown at Merel's house on October 3, authorities said.
Am I missing something? Other reportage suggests that Araujo, the victim, remained a male in terms of physical anatomy. Admittedly, the AP article could be using the term "sex" in some other fashion, but that word is typically used to convey the idea of intercourse. One might think that folks would not have to "compare notes" in order to discern the sex of a mutual sexual acquaintance. But I suppose that I am just old-fashioned for thinking so.
The stories indicate that the manslaughter defense is premised on the notion that it was a crime committed in the heat of passion, spurred on by sexual deception. Although I am somewhat perplexed by the deception in this case—Araujo had a penis after all—I can understand why any such deception might be devastating to the deceived. I have previously discussed such deception in the context of tort law, concluding that one's partners are entitled to full disclosure of such details. However, even I balk at the notion of recognizing such circumstances as grounds for declaring a homicide manslaughter rather than murder.
Nonetheless, without too much reflection, it does not seem that such a verdict is legally impossible by any means. Under California law, "voluntary manslaughter" consists of "the unlawful killing of a human being without malice. . . upon a sudden quarrel or heat of passion." Calif. Penal Code § 192(a). The portion of the jury charge pertaining to manslaugter in this case will look something like the following:
Every person who unlawfully kills another human being without malice aforethought but either with an intent to kill, or with conscious disregard for human life, is guilty of voluntary manslaughter in violation of Penal Code section 192, subdivision (a).
There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion.
The phrase, "conscious disregard for life," as used in this instruction, means that a killing results from the doing of an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his or her conduct endangers the life of another and who acts with conscious disregard for life.
In order to prove this crime, each of the following elements must be proved:1. A human being was killed;
2. The killing was unlawful; and
3. The perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life; and
4. The perpetrator's conduct resulted in the unlawful killing.
See Calif. Crim. Jury Instruc. § 8.40.
The key distinction between voluntary manslaughter and murder is "malice aforethought," which may be conceptualized as "a specific intent to kill unlawfully another human being." Calif. Crim. Jury Instruc. § 8.66 (Attempted Murder Charge). A nonlawyer (i.e., any juror) might find this distinction to be somwhat nebulous. However, the basic difference boils down to the level of intentionality. A separate model jury instruction attempts to spell out the difference between the two crimes:
The distinction between murder and manslaughter is that murder requires malice while manslaughter does not.
When the act causing the death, though unlawful, is done in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent.
To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel.
Calif. Crim. Jury Instruc. § 8.50.
What the jury's decision will ultimately come down to, in part, is a factual determination concerning the mindset of the defendants at the time that their crime was perpetrated. In particular, jurors will have to decide whether they truly acted "in the heat of passion." As the Supreme Court of California has noted,
[a]n intentional, unlawful homicide is upon a sudden quarrel or heat of passion, and is thus voluntary manslaughter, if the killer's reason was actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. [N]o specific type of provocation [is] required . . . . Moreover, the passion aroused need not be anger or rage, but can be any [v]iolent, intense, high-wrought or enthusiastic emotion other than revenge. However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter . . . .
People v. Breverman, 77 Cal. Rptr. 2d 870, 882-83 (Cal. 1998) (internal quotes and citations omitted).
However, as the quoted language indicates, in addition to the defendants' subjective state of mind, "heat of passion" defenses also have an objective component. People v. Steele, 120 Cal. Rptr. 2d 432, 449-50 (Cal. 2002). That is,
this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.
Id. at 450 (internal quotes and citations omitted).
So, in order to convict for voluntary manslaughter in lieu of murder, the jury must also in effect be convinced that an average man faced with the circumstances that the defendants encountered (i.e., discovery that they had unwittingly had sex with someone who is biologically of the same sex) might lose control and act out of passion rather than reason.
I gather that some would be grossly offended by the attribution of such a response to the average, otherwise reasonable man. One member of the venire (i.e., the panel from which the jury was selected) evinced considerable scorn concerning such a defense. One of the previously linked articles recounts that:
The potential juror, a nurse, had been dismissive in that earlier session of the concept of sexual deception as a possible mitigating circumstance in the case.
* * *
"I have a problem with that," the man had replied. He went on to outline a scenario in which a man with an affinity for women with large breasts engages in sexual relations with a woman he believes meets this criterion. If the man were then to find out that the woman's breasts were not natural, the man asked, "does that justify the man to kill this person?"
To which [defense counsel] Thorman had responded: "There is not going to be any claim in this case that the death of Eddie Araujo was justified."
"You are belittling what it is we're talking about," the attorney added.
Given the liberal social milieu in which this crime is being prosecuted, a jury may well not accept such a defense. However, I'm not convinced that a good defense attorney could not make it work either. It has been fashionable for some time now for folks of liberal sociopolitical persuasions to regard a significant portion of the population as being irrational and psychologically unhinged where homosexuality is concerned. Such "homophobia" is not confined to a statistically insignificant portion of the populace. For example, polls show varying but substantial support for various constitutional proposals designed to address a perceived homosexual threat to the institution of marriage. Given the liberal paradigm that contrues opposition to homosexuality as a product of fear and revulsion, the defendants' proposed murder defense seems neither subjectively nor objectively implausible.
Update: The Argus provides some more coverage of the trial here. At least one of the defendants is putting on a manslaughter defense, and his defense lawyer appears to have framed the issue precisely as elaborated in my original post:
A lawyer for one of three men charged with slaying a transgender Newark teen said in his opening statement Thursday that the killing was a classic case of manslaughter brought on by shame, revulsion and rage.
Michael Thorman, attorney for defendant Michael Magidson, told the jury of eight men and four women at the Hayward Hall of Justice that the slaying occurred during a violent "emotional eruption"—a heat of passion—ignited when several men determined that they had been deceived sexually.
"This is a case that tells a story about deception and betrayal and the tragic results when that deception and betrayal were discovered," Thorman said. He said his client accepts responsibility, both legally and morally, for the death.
* * *
Thorman said Magidson was catapulted into a realm beyond reason after discovering he unwittingly had engaged in homosexual sex.
"It brought shame and humiliation, shock and revulsion, anger and rage," Thorman said.
"This is not a hate crime, this is not a murder, this is not an execution," Thorman said in closing. "The evidence will show that it's a manslaughter in the heat of passion."
In the comments, Slithery D suggests that the "deceptive" sex acts were probably unilateral, so to speak, and of the oral variety, which would have allowed Araujo's anatomical sex to go undetected. The Argus story quoted above leaves such a possibility open, as it refers to two of the defendants having been "sexually active" with the victim without further elaboration. One wonders what would have made the defendants suspicious then. From the aforementioned article, one might come away with the impression that the answer to that question is that Araujo did not fight like a "girl." The Argus reports that:
The prosecution's third witness, Nicole Brown, an ex-girlfriend of Jose Merel's older brother, testified that Araujo began to raise suspicions about gender after a fight in which the smaller Araujo got the best of the larger Brown.
Interestingly, the article in the Argus also notes that another participant in the homicide,
Nabors, who turned 21 two weeks ago, pleaded guilty last year to voluntary manslaughter in a deal with prosecutors under which he will testify against the other three men.
Perhaps, defense counsel will be able to use the prosecution's willingness to accept a plea to voluntary manslaughter from another participant to his advantage. However, as to the nature of the sexual relationship between the defendants and their victim, it turns out that Slithery D is mistaken. A second article in the Argus states that more than mere oral sex occurred:
[During his two-hour opening statement, Deputy District Attorney Chris] Lamiero took the jury of eight women and four men and a packed courtroom through a detailed recitation of how the men encountered the flirtatious and attractive young teen they came to know as Lida in August 2002 and how Merel and Magidson ultimately came to have oral and anal sex with the teen.
* * *
In the weeks leading up to the killing, the prosecutor said, the men began to have questions about Araujo's gender. Why had the teen allowed them only to engage in anal sex? What about the "scratchy voice" and prominent cheekbones?
In one such conversation about a week before the slaying, Magidson, Merel and Nabors were in the garage of the Merel home and talked about what a "real bad, rough dude" might do if sexually deceived. One of the men said the person responsible for the deception could end up dead.
It should be recalled, that the foregoing is not evidence, but rather the prosecution's opening statement and explanation of what he intends to prove. However, if the facts are as the prosecution has outlined them, it seems that it would be very difficult to convince a jury that this was manslaughter and not murder. For starters, it sounds as if the defendants had plenty of reason to suspect that Araujo was not what "she" seemed prior to the homicide, and, perhaps, even prior to the sexual relations at issue. Deception followed by discovery and an unthinking, uncontrollable reaction may be very difficult to demonstrate. Evidence that indicates relfection or premeditation would be fatal to a "heat of passion" defense. So while such a defense may not be legally impossible, it's not clear that the facts will support it.
The Argus has been providing extensive coverage of this case from the very beginning, and has a page set up that collects all of its coverage in one place. Readers interested in the case should check it daily for further details.
My own experience is not particularly informative. I decided to apply for clerkships during the waning days of my third year of law school. Up until two or three weeks before the bar exam, I still did not have any prospects let alone a job. I interviewed at the last minute and was offered the job that I currently have, and I honestly cannot tell you why the judge hired me. So as things go, I am probably a better example of how not to go about seeking a clerkship. In retrospect, things worked out, but it was a bit unsettling at the time, and not just for me. I recall multiple conversations with my school's clerkship coordinator. They typically went something like this:
Her: Well, you do have a unique resume . . .
Me: The magenta paper really sets it apart, doesn't it?
Her: Um, yes, but given the time of year, wouldn't you like to apply for some firm jobs too? Time is sort of running out. If you don't start interviewing now, not only could you become homeless, you could screw up the school's graduation employment statistics . . .
Me: Nope. It's a judicial clerkship or sock sorting at The Gap for me, sister.
Technically, that's not a fully accurate transcription of our conversations. But it does capture the near hopeless, last-ditch, Kamikaze-like nature of my clerkship search. The application selection process was simple: "Who has the Senate confirmed this week?"
The foregoing vignette also captures my erstwhile aversion to firms. I would love to be able to say otherwise, but the truth is that the aversion was mutual. I had had something like three dozen preliminary interviews and multiple call-backs, none of which led to an offer. Although I doubt that my experience is typical, I really only moved on to consider clerkships after it became apparent that there was little else standing between me and unemployment.
I tend not to interview very well. I strongly dislike the sort of uninformative, facile prattle that passes for "interviewing" among firms.
Firm Drone: So why do you want to work for BIGLAW, Inc.?
Me: Well, ever since I was a small boy, I've dreamed of pouring out foreign plaintiffs injured by American corporations' products abroad on forum non conveniens grounds. So what do you find appealing about BIGLAW, Inc., anyway?
Firm Drone: Oh, it's the people!
Prior to attending law school, I worked for a large law firm with a national reputation. So I am plenty familiar with both the positive and negative aspects of a big firm practice. For me, such employment was always conceived of as a mutually beneficial business arrangement and nothing more. BIGLAW, Inc. offers a salary commensurate to my credentials and capabilities, end of story. For some reason, it is regarded as uncouth to simply say so. During interviews, firms seem to desire some gratuitous display of gratitude and enthusiasm. Frankly, I was looking to join a firm, not a cult.
But I digress. You wanted to know how to go about securing a clerkship, right? Well, it should be pretty obvious by now that I have no idea how to go about getting a job in general, let alone a prestigious one like a clerkship. It would be inaccurate to say that I just lucked into it, but there was hardly a method to my clerkship pursuit madness.
Setting the above to one side, I can, of course, offer some advice. Whether it's helpful or not, I'll leave to the reader to decide. Perhaps, other law clerks, former law clerks, or future law clerks will see fit to supplement my remarks with some sage observations.
Credentials. Your grade point average, class rank, the school that you are from, and the like matter. They probably matter more than anything else—at least as far as obtaining an interview goes, at least in the absence of connections. I am not telling you anything that you do not know, of course. But just because you do not have the grades to compete for a federal appellate clerkship does not mean that there is not a judicial clerkship out there for you. Federal district courts, magistrate judges, and state appellate courts all need clerks too. None are as prestigious as a federal appellate clerkship, of course, but they are not chopped liver by any means. Such jobs can also serve as a stepping stone to more prestigious jobs in the judiciary as well.
Location. One way to increase your odds is to apply in less desireable geographic areas. For example, federal district judges outside of major urban centers likely receive far fewer applications on average. If you are willing to live in such locations, you can compete in a smaller applicant pool. In addition, the cost of living is often substantially lower in such locales, which will make your meager clerkship salary go much further.
Writing Samples. I've assisted in reviewing clerkship applications for my employer a couple of times now. I suspect that the writing sample is especially important for landing a judicial clerkship, because judges have to have confidence in your written work in order to hire you. Strangely, writing samples are often the weakest component of many candidates' applications. Few writing samples are likely to be perfect, but I have seen many with multiple typos, poor organization, and little clarity. A sample should be concise and should demonstrate your ability to dissect and analyze a difficult legal problem. A discursive, purely descriptive essay-style sample does not provide a judge with an opportunity to see what your work product will be like if you are hired.
Recommendations. Most judges will want formal letters of recommendation. Whether you obtain yours from former legal employers or professors, make certain that you know that they can be relied on for a solid, unambiguous endorsement. Letters of recommendation seldom set one apart from the competition in a positive fashion, but they can help sink one's candidacy. I have seen more than one letter of "recommendation" that subtly damned the applicant with faint praise.
All these observations are subject to qualification, of course. Like law firm partners, federal judges have their own individual idiosyncracies, and you should know them before applying (and certainly before interviewing), if possible. I have heard that students normally mail out their clerkship applications in bulk. Although I understand the reasoning (more applications = more chances for an interview), I am not convinced that it is the best method. A more targeted, thoughtful mailing scheme might be more useful. After all, unless you want a clerkship no matter what, there are likely judges that you do not want to work for, and a little preliminary research might tell you this. Via the clerk grapevine, I was once told of a Ninth Circuit judge who requires her clerks to come in early and make her tea and serve it to her in the morning. This judge is also reputed to fire nearly one clerk a term. I suppose that clerkship is fine for self-effacing geishas, but others might want to look into alternative employment.
On Monday, the end of a nearly 20-year relationship between [the never married] Margaret Horvath and William Hubner began to play out inside an Oakland County courtroom before Oakland County Circuit Judge Nanci Grant and a jury of eight.
Horvath, now 42 and living in Birmingham, broke up with Hubner in December 2000. She is suing him for breach of contract, saying he promised her a lifetime of luxury. It will be up to the jury to decide whether she is entitled to anywhere from $27 million to $160 million to maintain the life to which she has become accustomed as Hubner's lover.
* * *
Not long after the pair met in the summer of 1983, Hubner asked Horvath to move to California and live with him, she said. But she declined and returned to the University of Michigan where she graduated with degrees in English and political science.
Horvath continued to write to Hubner who disregarded her letters until the spring of 1984 when he invited her again to move in with him.
She accepted, and began working as his personal assistant, travel agent and cook.
After two years together, Horvath began to press Hubner, whom she considered her boyfriend, about marriage. But he told her he would never marry again and did not want any more children.
Instead, Hubner promised to pay her living and travel expenses and care for her parents, said Horvath's attorney David Mendelson.
"He extended his hand and said, 'Let's shake on it,' " said Mendelson of a conversation between his client and Hubner. "He said, 'My word is my bond.' "
But Bill Hampton, Hubner's attorney, told the jury that his client promised nothing. In fact, Hubner always told Horvath that "nothing lasts forever."
Further factual and legal details for this not-so-hypothetical quiz are provided in this earlier Detroit Free Press article as well.
Best of luck!
(Links via Obscure Store.)
Long before he became one of the most liberal Republicans in the Senate—and the target of Congressman Pat Toomey's GOP primary challenge—Arlen Specter of Pennsylvania demonstrated a knack for notoriety. In 1964, as a member of the Warren Commission, he invented the "single-bullet theory" to explain how Lee Harvey Oswald assassinated President Kennedy. Conspiracy junkies have obsessed over him ever since. (In Oliver Stone's movie JFK, Kevin Costner's character labels Specter "an ambitious junior counselor" behind "one of the grossest lies ever forced on the American people.")
Take special note of the weasely nature of the introduction. Miller does not comment on whether this perception of Specter is justified, he just repeats the ravings of a Hollywood nutjob without qualification. This is not the first time Miller has invoked Oliver Stone as a character witness against Specter, so the invocation is not thoughtless. Miller himself has indicated in the past that Stone is hardly to be relied upon, so his own reliance on Stone in this instance is peculiar to say they least. Or shall we just say unprincipled and opportunistic?
Miller's intellectual honesty does not improve in the remainder of the piece. He dredges up a criminal defense representation from 1979 as evidence of Specter's supposed lust for power. In the infamous Ira Einhorn case, Specter successfully argued for a lower bond than the government desired, and the defendant subsequently absconded to Europe. Miller can point to no ethical or legal lapse on Specter's part, so he just settles for unfairly smearing him, writing that:
Perhaps he was just doing his job. It must be remembered, however, that his job, for which he volunteered possibly to curry favor with potential political supporters, involved reducing bail for a murderer who fled from justice.
Miller offers no evidence regarding Specter's alleged political motives beyond the former's own speculation. In short, he seems to have spun a conspiracy theory worthy of Oliver Stone. Moreover, it is rather unsophisticated to say the least to tar criminal defense attorneys with the misdeeds of their clients in the absence of collusion.
As I have said in the past, I think that one could rationally side against Specter in the GOP primary. I also do not think that there is any question that Toomey is more conservative, if that is to be the dispositive criterion. But National Review's attacks on Specter are intellectually dishonest. Miller's repeated conduct is cause for shame.
The government was apparently none too happy with Judge Hittner's decision. The Associated Press story posted at CNN details that:
Both Lea Fastow's lawyer, Mike DeGeurin, and prosecutors asked to make statements before Hittner made his decision, but the judge cut them off.
Prosecutor Linda Lacewell told the judge her research had showed he must give a reason for denying an agreement.
"You say I have to give additional reasons? Show me? Give me your cases right now," Hittner told her.
Lacewell said she didn't have her research with her because she never before had a judge reject a plea.
Another portion of the story suggests that Hittner declined to accept the plea agreement, because he felt it inappropriately constricted his (already limited) discretion in sentencing:
"I think that due process was in jeopardy by not allowing the thoughts of counsel to be expressed," DeGeurin said. The judge "articulated that his reasoning was that he did not want to be bound by an agreement. The agreement to plead guilty and resolve all of these matters at once included an agreed sentence. It resolved a lot of matters."
The Houston Chronicle's report is more explicit on this point, quoting Hittner as stating that:
"Based upon my consideration and full reading of the presentencing report, the court declines to voluntarily limit its role in the sentencing process," said Hittner. He said he would give her a sentence of between 10 and 16 months.
* * *
Fastow had agreed with Enron Task Force prosecutors that she will serve five months in prison and another five months under home confinement [under the rejected plea agreement].
Although I have not done any great amount of research, I doubt that the prosecutor will ever be able to come up with any cases that will demonstrate that Judge Hittner was required to offer reasons in addition to the general one that he gave.
The Federal Rules of Criminal Procedure provide district judges with the authority to reject a plea agreement. Fed. R. Crim. P. 11(c)(3). Pursuant to the foregoing rule, a court must generally inform the parties in open court if it chooses to do so, but the rule does not specify that the court must elaborate on its reasons. A trial judge's rejection of a plea agreement will be reviewed by the court of appeals for no more than an abuse of discretion. United States v. Jeter, 315 F.3d 445, 447 (5th Cir. 2002). The Jeter court defined abuse of discretion in this context as consisting of decisions premised on an error of law or a clearly erroneous assessment of the evidence. Id. But, in general, discretionary decisions tend to be upheld so long as they are not capricious or arbitrary.
As such, offering a rationale for rejecting a plea agreement on the record is probably prudent, as it allows the court of appeals to see that one's discretion was properly exercised. However, I have not located a Fifth Circuit case that has declared that not doing so (i.e., not offering a reason) constitutes a per se abuse of discretion. At any rate, the reportage indicates that Hittner did indicate a rationale for not accepting the agreement, namely that he did not care to limit his own role in the sentencing process. In addition, his remarks indicate that he would likely consider a less favorable sentence (i.e., one that is potentially greater in length and, perhaps, one sans home confinement). The Fifth Circuit has upheld such a rationale as legitimate. See United States v. Adams, 634 F.2d 830, 835 (5th Cir. 1981) ("[W]e have found that a refusal of a plea bargain may be based on the court's belief that the defendant would receive too light a sentence under the circumstances.").
Update I: Professor Bainbridge speculates as to why Judge Hittner might have decided not to accept Fastow's plea agreement.
Update II: Judge Hittner has declined to revisit Fastow's plea bargain.
Update: Another Associated Press report provides still more fodder for the to-do list.
My take-away from all this (for now) is that if you are in the adult entertainment industry, you may only have second class First Amendment rights.
I am not so sure that his argument supports this conclusion. It is worth noting that the case that inspired Balasubramani's post did not involve an adult entertainer per se, so much as amateur adult entertainment. Indeed, the adult entertainment industry itself seems to have had its First Amendment rights vindicated (for the time being) by the lifting of the temporary restraining order. Regarding the "entertainer" herself, the Associated Press reported that:
[Former news anchor Catherine] Bosley, who won $250 in a tie for first place in the [wet t-shirt] contest, said she had not given anyone permission to use her picture. She testified that she would not have participated in the dance if she knew pictures would turn up on the Web.
More significant to the ultimate outcome of the case in all likelihood are the facts that Bosley "'was aware of some taking still photographs'" and was engaging in this conduct in a public place.
Balasubramani is correct as a general matter that adult entertainment enjoys "second class" status under the First Amendment, though I would avoid the pejorative phrasing. Although it is the amendment in question that guarantees adult entertainers' livelihoods, the protection enjoyed by adult entertainment is less than that accorded to other forms of expression. See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234, 234 (2002) (observing that pornographic expression is subject to obscenity exception to the First Amendment articulated in Miller v. California, 413 U.S. 15 (1973)); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565 (1991) (finding nude dancing to be within "outer perimeters of the First Amendment, though . . . only marginally so"). It does not seem to me, however, that Bosley's free speech rights have been denigrated. She exercised her First Amendment rights to their fullest extent. But like all public speakers, she must now bear the consequences of her speech.
Like Kevin Drum, I noticed the aforementioned article the other day, but I was simply too disheartened to comment. National Review has practically devolved into a congress of error, and I have spent far too much time of late dissenting from its content. Indeed, I have begun to wonder whether National Review really remains an ally of informed conservatives in any meaningful sense. The magazine seems to have lost its compass.
Stop and consider the magnitude of National Review's ridiculous (and, perhaps, unethical) defense of intelligent design theory. Or more to the point, marvel at its aftermath: it has united myself (a religious conservative, albeit an idiosyncratic one), Timothy Sandefur (a
right-wing libertarian atheist), Brian Leiter (a presumably atheistic leftist), and Kevin Drum (a more moderate Democrat of unknown—to me—religious proclivities) in bewilderment and disgust. That's a telling accomplishment.
Amiot Metayer, the charismatic and popular leader of an armed group, had become an awkward problem for Aristide. Originally he was a strong and ruthless backer of the president and his Lavalas Family political party. Metayer led one of Aristide's OPs, or organisations populaire, the groups Lavalas armed to enforce the president's political will. OPs throughout the country beat, harassed, and allegedly killed members of opposition groups, as well as journalists critical of Aristide. In Gonaives several radio reporters were forced to flee. Human-rights workers alleged in 2002 that Metayer had ordered a man involved with an anti-Aristide political party to be burned to death. The Organization of American States pressured Aristide to charge Metayer. In July 2002 Haitian police did arrest him on arson charges, but in August his followers, who called themselves the Cannibal Army, commandeered a tractor and smashed through the prison walls to free him, along with more than 150 other prisoners.
The bolded portions of the text create some unintended gallows humor in otherwise bleak prose. However, even in Aristide's Haiti one was not charged with arson for ordering the immolation of political opponents. The unrelated arson charge stemmed from allegations that Metayer et al. "assaulted opponents and burned down their homes." The prosecutor claims to have been pressured to drop the charges by the Aristide government, and subsequently fled the country after refusing to do so. A judge eventually threw out the charges.