One big story and a couple of notes:

Biggest legal news is the California Supreme Court’s 4-3 decision allowing gay marriage on equal protection grounds (172 pg. opinion). Called “revolutionary,” this was a double ”first” - the first time a court used “strict scrutiny” to examine a law aimed at gays (an earlier Massachusetts decision had used only a “rational basis” test, but ruled for gay marriage anyway) AND the first time sexual orientation has been deemed a “suspect classification” like race and gender. Much was made of the fact that six of the seven judges were Republican appointees, three of whom voted in the majority. Conservative groups promised a November referendum for a constitutional amendment to overthrow the decision (raising the fun legal thicket of a potentially unconstitutional constitutional amendment) but Gov. Schwarzenegger said he’d oppose the referendum. Lots of analysis here.

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In a story I discussed here, the feds have stepped in to prosecute Lori Drew in the MySpace Hoax Suicide. Missouri authorities had determined that Drew had broken no Missouri laws and declined to prosecute, but the feds will try to use a law primarily directed toward computer hacking. From the AP story:

The indictment alleges one count of conspiracy and three counts of accessing protected computers without authorization to get information used to inflict emotional distress on the girl [Megan Meier], who hanged herself.

U.S. Attorney Thomas P. O’Brien said this was the first time the federal statute on accessing protected computers has been used in a social-networking case. It has been used in the past to address hacking.

“This was a tragedy that did not have to happen,” O’Brien said at a Los Angeles press conference.

Both the girl and MySpace are named as victims in the case, he said.

Rebecca Lonergan, a former federal prosecutor who now teaches law at the University of Southern California, said use of the federal cyber crime statute may be open to challenge.

Lonergan, who used the statute in the past to file charges in computer hacking and trademark theft cases, said the crimes covered by the law involve obtaining information from a computer, not sending messages out to harass someone.

“Here it is the flow of information away from the computer,” she said. “It’s a very creative, aggressive use of the statute. But they may have a legally tough time meeting the elements.”

Will try to follow this and report.

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Finally, eBay vs. craigslist is underway in California state court. With facts and personal animosity reminiscent of the Papa Johns vs. Pizza Hut classic, this should be fun to watch.

B

As I suspected, the “letter from the grave” was too much to overcome. After 32 hours of deliberation over three days, Mark Jensen was found guilty of murdering his wife. Interestingly, the much-fought-over letter was deemed to fall within the “dying declaration” exception to the Hearsay Rule by the Wisconsin Supreme court, which expanded the traditional parameters of the “dying declaration” exception to include this letter.

http://www.cnn.com/2008/CRIME/02/21/jensen.verdict/index.html

B

Interesting case and test of “Reasonable Doubt” standard.  Not-guilty will be a surprise. If you look up information about poisons on line, and then that type of poison is found in the victim’s stomach… that’s a strike against you, regardless of whether or not the prosecutor’s expert overstated the amount of poison present. The victim’s letter expressing fear that her husband was trying to kill her doesn’t help either.

http://www.cnn.com/2008/CRIME/02/19/jensen.trial.ap/index.html

B

http://stcharlesjournal.stltoday.com/articles/2007/12/03/news/sj2tn20071203-1203stc_meier.ii1.txt

Update from the source that originally broke this story. The prosecuting attorney will not bring charges. (original story, a must-read if you have interest in this case)

The family of the deceased girl has stated they do not intend to sue the perpetrators of the hoax.  That is somewhat surprising under the circumstances.

B

http://www.nytimes.com/2007/11/28/us/28hoax.html?em&ex=1196398800&en=b1408a7356b77eef&ei=5087%0A

You may’ve heard about this, but the details are beyond shocking.

If this deeply malicious behavior toward a minor by a 47 year-old is not in fact a crime, then it should be criminalized.

That an adult would plot such a cruel hoax against a 13-year-old girl has drawn outraged phone calls, e-mail messages and blog posts from around the world. Many people expressed anger because St. Charles County officials did not charge Ms. Drew with a crime.

But a St. Charles County Sheriff’s Department spokesman, Lt. Craig McGuire, said that what Ms. Drew did “might’ve been rude, it might’ve been immature, but it wasn’t illegal.”

…

St. Charles County’s prosecuting attorney, Jack Banas, said he was reviewing the case to determine whether anyone could be charged with a crime. 

Is there at least an actionable civil tort here? Wrongful death? The minor’s suicide complicates that. Intentional infliction of emotional distress? Surely.

I feel so bad for the mother and father. I feel almost equally bad for the daughter and husband of the woman who conducted the hoax. Their quality of life and emotional well-being will be forever changed for the worse by the consequences of this woman’s immature, inhuman cruelty. 

B

Two interesting matters that have been dormant for some time, worthy of an update.

Odyssey Marine v. Spain update:

A report in El País newspaper has revealed that the 500,000 coins which the Odyssey Marine Exploration company found off the coast of the Algarve last April and May are Spanish coinage. …

The revelation was made by the company itself when if [sic] completed customs forms in Gibraltar on April 10 and May 16, the dates that they took their haul out of the colony and back to their base in Florida. …

The fact that the Odyssey company has admitted the coinage found is Spanish, does not, the company claims, mean it was found on a Spanish ship. On that point they insist that they still have not been able to establish the nationality of the vessel, a point key as to which nation or nations might later claim part of the treasure. (emphasis mine - the nationality of the ship is crucial to Spain’s claim to ownership) …

One theory is that the ship concerned is the ‘Nuestra Señora de la Mercedes’ which sunk in 1804 in the battle of Cape Santa María during an attack from British ships, although this has been dismissed by the Odyssey director Gerg Stemm.

He told the EFE news agency that his company invited the Spanish Ministry of Culture to take part in his expedition last year. ‘At first’, he said, ‘they did not show any interest, now they do. They have tried to force us to give information which we consider could put the site where we found the treasure in danger’.

Louis “Outraged Octogenarian” Montgomery update:

The 81-year-old man accused of hitting a Sheriff’s deputy over the head with a paint roller is suing the county and the deputy involved in the case.
Louis Montgomery has filed a claim for personal injuries he says he sustained as a result of excessive use of force. Montgomery also claims his arrest in March was illegal.

He says the arrest by Deputy Steven Williams was not made with a warrant or based on probable cause. The claim was filed with the County on Sept. 4. According to the Sheriff’s Department, Montgomery became violent with Deputy Williams after Williams asked Montgomery to stop painting a neighbor’s fence.*

Montgomery claims he didn’t hit the deputy with the paint roller, it fell on his head. The 81-year-old man faces charges of assault with a deadly weapon.

If you haven’t been keeping up, let me point out the crucial point that Montgomery was painting his own fence, NOT his neighbor’s as reported in the article. Montgomery had build a concrete block fence under a court order related to his neighbor’s irritation with Montgomery’s mini pig farm. To annoy his neighbor, Montgomery was perched upon his wall painting the side facing the neighbor in the tradition of tasty, but unlovely Neapolitan ice cream. It is debatable as to whether this otherwise legal activity represented a breach of the peace in which the responding deputy could lawfully interfere, or whether it was merely a “so sue me” nuisance properly dealt by filing suit.

B

Good article and excellent video from Jason Kotowski writing for The Bakersfield Californian showing the painted wall and more.

I am coming around to the understanding that the subject wall is actually on/at/near the property line, but of course this becomes a very precise concept and requires a survey at some point. It was built by Montgomery, under a court order related to his pigs, and when you build a fence it is supposed to be on your side of the property line (if only barely). If it was entirely on his land, then it still seems “it was his to paint” - though that would explain why he actually seems to have sat or stood atop the wall to paint it (so as not to trespass on the other side).

I’m not sure how that’s a police matter assuming no breach of the peace. If the neighbor has a problem with it, go to court. If the neighbor was instigating a breach of the peace, it should’ve been the neighbor being warned off by the deputy. Until I learn different, I’ll continue to feel this way.

The next hearing in the case is on June 18.

B

This story has some legs in California. Any of these three links should work for the video:

http://www.kget.com/mostpopular/story.aspx?content_id=69d2f9b3-ac17-4472-9fb7-09d351703540
http://www.kget.com/mediacenter/local.aspx?videoId=17879
http://www.kget.com/mediacenter/?videoId=17879

The video accompanies a brief report that the accused, Louis Montgomery, will be held for trial - the hearing at which this video was taped established that there was sufficient evidence for a trial. I assume there will be a bail hearing, but it wasn’t mentioned.

One BIG twist. In my previous post, all the quotes and info stated directly that Montgomery was painting HIS OWN fence, on HIS land.  Now, in the report accompanying the video, there is an unsourced remark that Montgomery was painting HIS NEIGHBOR’S FENCE, and he was asked to stop by the Deputy.

Investigators said Montgomery became violent with Deputy Steve Williams after he asked Montgomery to stop painting his neighbor’s fence.

IF TRUE, that would be a breach-of-the-peace/destruction of property type situation where the Deputy would be (more) justified in trying to stop Montgomery - though his chosen tactics still seem highly questionable.

So which is it? Was the fence on Montgomery’s land or was it his neighbor’s fence - or was it a shared fence or a disputed property line? The earlier report seemed very clear on this point, but now we don’t know.

At least Montgomery has a lawyer, Kyle Humphrey, who said on the video:

“I don’t believe we pay our law enforcement to bust up old men … The evidence will be substantially different than what has been testified to [today] … We’ll let a jury sort it out.”

B

…I’d say only if it killed you.

This story (which is real, to my knowledge) is too good to pass up, and includes some interesting legal issues.

BAKERSFIELD, Calif. — An 81-year-old retiree was back in court Tuesday facing a felony charge of allegedly assaulting a Kern County deputy.

Louis Montgomery is facing the possibility of three years in prison for hitting a deputy with a paint roller. Last March, Montgomery was in the middle of a dispute with his neighbor over his pig farm. The feud boiled over when he decided to paint a wall facing his neighbor’s property using an assortment of old paint, according to the Kern County Sheriff’s Department. The neighbor then called the authorities to stop Montgomery.

It’s hard not to laugh (for me, impossible). But… this is serious business with three years in the pokey at stake.

Let’s fill in the blanks a little as we go along:

“[D]ispute with his neighbor over his pig farm.” Pigs are notorious for their stink, which isn’t respectful of property lines and often harmful to neighborly relations.

“The feud boiled over when he decided to paint a wall facing his neighbor’s property using an assortment of old paint…” Classic passive-aggressive. I’m feuding with you, so I do something to irritate you that you can’t really do anything about - for example I paint a wall on my land that you have to look at every day some really ugly colors. You’re so irate, you call the cops on me anyway.

This is where it gets really good.

A Kern County sheriff’s deputy who arrived at his home in Northwest Bakersfield told him to stop painting the wall. Montgomery said he explained to the deputy the fence was his to paint.

“He accused me of graffiti on my own fence,” said Montgomery.

The deputy said Montgomery ignored the deputy and continued to paint the wall with a long-handled paint roller.

How can you not side with Montgomery here? Isn’t he in the right? It’s his fence, on his land, and he’s painting it (and don’t call it ugly - beauty is in the eye of the beholder, right?). Sure the neighbor doesn’t like it, and it may be intended to aggravate the neighbor. But isn’t this like you painting your house hot pink? Your neighbor can’t call the cops to stop you from painting your house hot pink! It’s only hurting his feelings. Pig stink may be a legitimate private nuisance (or public - it’s been a while since I’ve reviewed nuisance law) but the color of a fence? And anyway private nuisance is a civil action, it’s not something you get police involved in. It is in no way violative of any criminal statute to paint your fence.

The graffiti charge sounds made up to me. Not buying it, no way. There is no indication that Montgomery was painting words (obscenities or slurs) on his fence (after all, he’s using a “long handled paint roller”).

So the Deputy told Montgomery to stop painting his own fence on his own property. Montgomery ignored him. And why shouldn’t he? How can the Deputy’s order possibly be lawful? I seem to remember some variance from state to state on obeying the orders of a law enforcement agent. Failing to do so can be a crime in itself. But I also seem to recall “lawful order” being part of that equation, at least in some states. I’ll have to research that. But — regardless – it offends common sense, the notions of private property and individual liberty, and the Bill of Rights to suggest that Montgomery should have to obey that order.

It was then that the Deputy Sheriff had the bright idea to use force against the 81 year old hardened criminal.

According to Deputy District Attorney Alex Harper, Montgomery hit the deputy over the head with the roller when the deputy tried to wrestle it away. The deputy was covered in paint and required medical attention for the gash in his head. Harper said the deputy received several stitches.

Montgomery said he was also injured in the brawl.

“When I was taken off the wall he busted both my arms, my elbows and a few of my ribs,” Montgomery explained.

He was arrested following the fight and charged with one count of felony assault with a deadly weapon.

Montgomery has pleaded not guilty.

Explain to me what right the Deputy had to walk onto Montgomery’s private property and lay hands on him (to stop him from painting!)? This sounds like a gross abuse of police power to me. No laws were being broken here. This neighborly feud was a civil dispute at best. So file suit already. The police aren’t supposed to take sides in a civil dispute.

Montgomery was having none of it. At a certain age, I can imagine you’re just done taking bull from anyone. Monty cracked the Deputy over the head with the paint roller (in self defense?). Was the Deputy trespassing on Montgomery’s land and assaulting him, all at the behest of an irritated neighbor? That will certainly be for a court to decide in the coming months when Monty sues the department. I’d love to represent the old codger, and I bet plenty of California lawyers will be jumping at the chance to try the criminal and civil suits.

Oh and by the way, I don’t believe anyone’s ever been killed by a paint roller (update: Google says the only time it ever happened, it was a freak accident). So lay off the “deadly weapon” charge, alright? Can’t we find anyone better to “throw the book” at? There’s this thing call prosecutorial discretion…

B

An AP article on CNN.com considers the question.

No point ($) in going after the original accuser. So you’re left with Durham County District Attorney Mike Nifong (and presumably the State of North Carolina), and perhaps Duke University?

Nilfong is very deserving, but possibly immune. Several pundits sound off on this issue in the AP piece. Duke may’ve created some liability for itself through its sanctions against the students prior to … anything legitimate. Innocent ’til proven guilty anyone?

Slander, libel and various flavors of wrongful prosecution come to mind as causes of action… doubtless there are others.

Should the players sue? These guys will be dogged by and tagged with this allegation for the rest of their lives - or at least for the foreseeable future. Their lives will be more complicated, and more difficult because of it. If they can recover damages to soften the hardships they’ll endure over this nonsense, more power to them.

B