Sunday, March 27, 2011

Questions of meta-law in Wisconsin

Things have been happening in Wisconsin lately. Here’s a brief recap, from memory:

New parenting rule:

No camera phones till you're 18.

Michael Vick has no regrets because everything happens for a reason

From an article in the Sports Illustrated:

Now a guy in his early 20s edged to the front of the crowd. "If you could do it all over again," said the inmate, his eyes meeting Vick's, "what's the one thing you'd do different?"

The answer was stunning. "Nothing," Vick said. "I mean, make some better choices. But I needed time to change. Everything happens for a reason."
My thoughts on this are summarized in this vintage tweet.

Dumpster-diving, movie-watching, newspaper-reading, relentless ... IRS agents

Perhaps it is just a coincidence, but on each of the last two days I have read a story about prosecutions that began as vigilante, off-hours, side-projects by an enterprising (some would say over-zealous) IRS agent. The methods used in both cases are so similar, however, that coincidence seems impossible.

Friday, March 25, 2011

Not all advice is good advice

I hope to write a longer post on the topic of people using bad judgment over the weekend. In the meantime, today’s news brings us the story of Carlos Lam.

Mr. Lam was, until Thursday, a deputy prosecutor in Johnson County, Indiana. As reported by the Wisconsin Center for Investigative Journalism, Mr. Lam emailed Wisconsin Governor Scott Walker, on February 19, 2010, and suggested that Governor Walker generate sympathy for his recent budget proposals by using “a ‘false flag’ operation.” Specifically, Mr. Lam suggested Governor Walker “employ an associate who pretends to be sympathetic to the unions’ cause to physically attack you (or even use a firearm against you), you could discredit the unions.”

In other words, Governor Walker should have one of his supporters attack him (with a gun!)while pretending to be a supporter of Governor Walker’s opponents.

When first contacted by the Center, Mr. Lam denied being the author of the email. Adopting the “Shaggy defense,” Mr. Lam stated, ““I am flabbergasted [by the email] and would never advocate for something like this, and would like everyone to be sure that that’s just not me.” Mr. Lam told the reporter that he was out shopping for a minivan with his family when the email was sent.

Initially, Mr. Lam’s protestations of innocence worked. His boss, Brad Cooper, the Prosecuting Attorney for Johnson County, defended Mr. Lam and announced there would be no investigation of the emails because Mr. Lam did not send them. However, by Thursday morning, Mr. Lam decided to fess up and resign.

Oddly, Mr. Lam is not the first prosecutor in Indiana to lose his job over current events in Wisconsin. Jeff Cox, an attorney with the Indiana Attorney General’s office, was fired after he tweeted that authorities should use live ammunition and deadly force to deal with the protesters in Wisconsin.

Mr. Lam and Mr. Cox have First Amendment right to say stupid things via email or via the Internet. Nevertheless, both of these individuals displayed appallingly bad judgment in deciding to transmit their respective messages. Mr. Lam’s email raises two basic questions. First, why did he think the Governor of Wisconsin needed his advice on how to handle the protests? Second, why did he think that faking an assassination attempt would be a good way to change the narrative in Wisconsin? It is difficult to fathom how such “false flag operation” would go undiscovered. Among other things there is a publicly available email from Mr. Lam suggesting the attempt.

In any event, it seems like Mr. Lam’s email is a good reminder that not every idea needs to be expressed and that lawyers representing the public should think twice before sending emails, publishing tweets, or writing blog posts.

Wednesday, March 23, 2011

Don't forget about Patrick Henry

Thank you for the birthday wishes, Mr. Torvik. You may be right that March 23 will now be known as the day Elizabeth Taylor died. Even before this year, however, March 23 was more well known as the day Patrick Henry said "Give me Liberty, or give me Death" than it was for being my birthday.

Happy Birthday to Mr. Gillette

According to Facebook, it is Mr. Gillette's birthday.  Unfortunately, his birthday will now forever be known as the day Elizabeth Taylor died.

Monday, March 21, 2011

The human cost of ending the death penalty

One of the arguments that I've heard people make against the death penalty is that it is too costly.  Without actually looking into the facts, this argument always struck me as unconvincing.  You're telling me that it is more expensive to execute someone than it is to provide him shelter, food, and medical care for decades?

Well, earlier this month, Illinois repealed the death penalty, and the news today is that this will lead directly to the loss of 37 state jobs in the Office of the State Appellate Defender.  Most of the affected are lawyers who handle death penalty appeals.  This will save Illinois taxpayers $4.7 million in year one, and more in the future after the agency gets a chance to downsize its office space.

Some thoughts.

1)  A while back, we discussed the crisis in funding for public defenders.  As a partial solution I proposed "fewer crimes," on the theory that if we had fewer crimes we would need fewer public defenders.  Apparently "fewer punishments" also works.

2)  This is another good reason for a libertarian-minded person to be against the death penalty.

3)  On the other hand, perhaps instituting the death penalty is good for the economy, since it puts people to work?

Sunday, March 20, 2011

The Wisconsin Supreme Court...

is in embarrassing disarray.

My opinion is that it should be disbanded so that the citizens of Wisconsin can elect some adults to the Court.  Perhaps Mr. Vander Plaats can cross the Iowa border and get a throw-the-bums-out movement cooking in Wisconsin.  (There are plenty of good Wisconsin-based pizza joints -- like Rocky Rococo's and Pizza Pit -- from which to stage the revolution.)

Friday, March 18, 2011

Are pizza lovers more likely to be against gay marriage?

As I discussed in November, the relationship between the Iowa Supreme Court and the citizens of Iowa has become more politicized. Prior to 2010, no Iowa judge had ever lost a retention election. Three Iowa Supreme Court justices lost their retention election in 2010. Bob Vander Plaats, a failed Iowa gubernatorial candidate and gay marriage opponent, helped coordinate the efforts of various special interest groups to bring about the loses.

Now Mr. Vander Plaats is calling upon the four Iowa Supreme Court justices who were not up for retention election to resign. As the Quad Cities' Times reports, Mr. Vander Plaats spooke to 30 people at Wise Guys Pizza as part of his effort to launch a grassroots effort to get rid of the four justices. While Mr. Vander Plaats believes the justices should be impeached, he also thinks that Iowans "should give the remaining four justices the opportunity to do the right thing." If the justices fail to do the right thing, they should be impeached because the Iowa Supreme Court unanimous ruling allowing gay marriage exceeded constitutional limits in a way that amounts to malfeasance warranting impeachment. I find the use of the phrase "do the right thing" strange given that I assume that the justices were trying to do the right thing when they unwittingly provoked the ire of Mr. Vander Plaats.

Mr. Vander Plaats made similar statements on March 14 at a Godfather's Pizza in Cedar Rapids Iowa. There Mr. Vander Plaats said the fact that Iowa allows gay marriage could lead to the legalization of polygamy or incest. Mr. Vander Plaats's argument is similar to the one made by Justice Scalia in Lawrence v. Texas. As I am sure you recall, the Lawrence case is the one where the United States Supreme Court struck down a Texas law against sodomy as unconstitutional. Justice Scalia's dissent, like Mr. Vander Plaat's recent speeches, worried that laws against "bigamy, same-sex marriage, adult incest, prostitution, masturbation, fornication, bestiality, and obscenity" were no longer sustainable.

Mr. Vander Plaats's recent public appearances raise a couple of questions. First is there some link between opponents of gay marriage and pizza (or mafia-themed pizza places)? I worked at a pizza place for several years during and after college and did not notice a connection. Perhaps it is like law school and Mr. Vander Plaats figures that by offering people free pizza he will get them to show up and listen to his arguments against gay marriage.

Second, is there any evidence to support slippery slope argument advanced by Mr. Vander Plaats? At first blush, the answer is no. None of the of the states that have legalized gay marriage (or civil unions) have also legalized incest or polygamy. Moreover, it seems unlikely that any state is going to do so. As University of Minnesota Law School professor Dale Carpenter has noted, polygamous marriage has been tried and rejected by many different cultures over human history. Gay marriage has not. Thus, the comparison between the two is somewhat specious. Moreover, polygamous marriage presents legal problems that do not exist if gay marriage is allowed, e.g., if the husband dies whiteout a will, which wife gets what.

However, it is true that the Lawrence decision has been used to strike down other sex crime laws. For example, in Martin v. Ziherl, the Virgina Supreme Court struck down Virgina's law against fornication was struck down solely on the basis of Lawrence. Also, in Reliable Consultants, Inc., v. Earle, 517 F.3d 738 (2008), the Fifth Circuit struck down a Texas law banning the sale of any devise, to quote the law in question "designed or marketed as useful primarily for the stimulation of human genital organs." So perhaps Mr. Vander Plaats's concern over the expansion of the gay marriage decision is not entirely misplaced.

On the other hand, the Lawrence decision has not prompted Courts to strike down, as Justice Scalia speculated, laws prohibiting incest, prostitution, or obscenity. See e.g., Muth v. Frank, 412 F.3d 808 (7th Cir. 2005)(upholding Wisconsin law prohibiting incest from a challenge based on Lawrence, State v. Lowe, 112 Ohio St.3d 507 (Ohio Ct. App. 2006) (upholding Ohio law prohibiting incest, State v. Romano, 114 Hawai'i 1 (2007) (holding laws prohibiting prostitution from a Lawrence challenge, U.S. v. Stagliano, 693 F. Supp.2d 25 (D.D.C. 2010) (finding Lawrence does not render laws against obtaining or distributing obscene material unconstitutional).

All of this is a long way of saying that while Mr. Vander Plaats' arguments may or may not be misplaced, Iowa's retention elections in 2012 and 2014 are apparently going to be as contentious as the one in 2010. Do we think that is a good thing?

Monday, March 14, 2011


In case you have any questions about squirrels, here is the definitive FAQ.

But if you have any questions about the proper placement of commas, please look elsewhere.

Seeing is believing; and sometimes it is a crime

At Mr. Gillette's request, I am separately posting my response (originally posted as a comment) to his very interesting post about the recent sentencing of a government attorney in Maine on child pornography charages. 

Mr. Gillette focuses not on the case itself, but on commentary about the case by Peter C. Lomtevas, an attorney in New York.  I'd like to defend Mr. Lomtevas a little bit.

Mr. Gillette is correct that Lomtevas's points are somewhat disconnected to the actual case at hand. Namely, this was not a case of planted porn, and the AG's conduct went beyond the "mere possession" of child pornography -- the government's trial brief details quite a bit more than that, including transferring the materials across state lines.

But I think Lomtevas's aim was broader -- he's indicting the laws that criminalize the mere possession of child pornography because they lead to invasions of privacy and are too easy to use offensively. As he says, "The real problem in these situations is that the man did not produce these images, he only shuttled them around." I agree that this a problem. Of all the child-pornography prosecutions I have become aware of, not one involves the actual production of this heinous material.

Why not? Well, Lomtevas has a theory: "the United States has a fundamental inability to control anything that is on the internet just like it cannot control its own borders or the foreign production of drugs." In fact, my guess is that the vast majority of this material is produced overseas. The result, as Lomtevas points out, is that "one producer [of child porn] can cause the incarceration of potentially millions of people. The U.S. has no control over the producer but can attack its own citizens."

And what exactly are these citizens being attacked for? It seems beyond dispute that the production of child pornography is far, far more destructive and culpable behavior than downloading, uploading, or carrying it across state lines in a computer. But our entire enforcement regime against child porn seems focused on this lesser conduct -- going after the perverts for whom the Internet has opened up a terrible opportunity to indulge their deviant fantasies, but who would likely (in my opinion) never harm an actual child. In my opinion, this lesser conduct should not be illegal, given the invasions of privacy and thought policing it invites. But if it is going to be illegal, the punishments should be far, far lower than they are. Viewing pictures of the molesting of a child is not laudable behavior; but it is utterly distinct from actually molesting a child. Our law bizarrely treats them as virtually identical acts.

Saturday, March 12, 2011

UPDATED -- Bev & Beverly Stayart: American Originals

UPDATE -- 10/7/2013:

The Supreme Court denied certiorari today in Stayart's appeal of the case against Google.

UPDATE -- 3/12/2011

Stayart's suits against Google and Yahoo were dismissed (for failure to state a claim and, in Yahoo's case, lack of jurisdiction as well) on March 8th.  Here is the order in the Yahoo case.

ORIGINAL POST -- 10/1/2010

Today the Seventh Circuit Court of Appeals affirmed the dismissal of a somewhat quixotic Lanham Act claim by a woman named Beverly "Bev" Stayart.  From the opinion:
Like many, Beverly Stayart was curious about what she would find when she put her name into a search engine. In this case it was Yahoo. To her dismay, the comprehensive search results eventually contained links to websites and advertisements that she found shameful. She then sued Yahoo and the other defendants alleging trademark infringement and a host of state law claims. The district court dismissed her complaint, finding she lacked standing under the Lanham Act to sue for trademark infringement. She appeals, and because we agree that Stayart lacks standing under the Lanham Act, we affirm.
Some interesting factoids after the jump.

Friday, March 11, 2011

Planting pornography on someone's computer.

An attorney in the Maine Attorney General's office was recently sentenced to sixteen years in prison for possession of child pornography. Although we frequently mention the crimes, foibles, and faux pas of prosecuting attorneys, this post is not about that attorney. The judge in the case summed up my views on the matter:
You were working in a position of authority and respect, and here you are not on the right side of the book but in the defendant's seat. ... A criminal,. . . You lost your job, your wife, your assets, your reputation, and your freedom. For what? To view images of children being sexually assaulted and abused. Images that are sickening and sad.
But the comment by Peter C. Lometevas caught my attention. According to his website, Mr. Lometevas is an attorney in New York specializing in criminal defense and family law matters. Mr. Lomtevas comments that he has represented men in what he calls “guilt by computer cases.” According to Mr. Lomtevas,

The common thread in them is a wife who wants to isolate children from the man. Family members obtain the computer and find child pornography on them. These searches are valuable because there is a federal law prohibiting possession of child porn so it pays to find – perhaps even plant – this stuff on a man’s computer.

Mr. Lometevas goes on to say, "Divorcing couples know this and now child porn appears on a prosecutor’s computer. An over zealous judge who knows nothing about how the internet operates craps all over the man.”

A disgruntled wife planting child porn on a prosecuting attorney’s computer as part of divorce strategy would be a horrific act. However the issue I have with Mr. Lometevas's comment is that it no one involved in the case seems to think that is the defendant's wife planted the evidence.

First, as this story makes clear, the child pornography was not discovered as a result of a search by anyone in the attorney’s family. Instead, Yahoo! reported finding child pornography in photos of an account holder later identified as the attorney’s wife. The article further explains, “The Yahoo! reports were made to the National Center for Missing and Exploited Children in Alexandria, Va., an organization that works with local, state and federal investigators.” So, no family members made the report and the account holder was not the defendant (as one might expect if it were planted) but the defendant’s wife.

Still, given that it was in the wife’s account, we can assume the defense was that the wife planted the photos, right? Wrong. As the Kennebec Journal reports, the defense argued that “someone from outside his family's home in Hallowell might have been responsible for the explicit images found on their four computers, or that the images had been downloaded by his 12-year-old autistic son.” So while the defense was willing to blame strangers or a handicapped boy, it was not willing to blame the wife. Moreover, as this article notes, the attorney's (now ex)wife agreed to be responsible for him while he was on bail. Hardly the actions of someone wishing to isolate the defendant from his children.

While Mr. Lometevas is wrong that the this case right involves a disgruntled wife planting child porn on a hapless husband’s computer, it apparently does happen. A Westlaw search of all federal and state cases revealed three cases where the topic came up. In United States v. Starr, 533 F.3d 985, 999 (8th Cir. 2008), the defendant claimed his wife planted child porn on his computer. However, the victim testified that she sent the photos to the defendant. Based on this testimony, the Eighth Circuit rejected the defendant’s appeal that there was no evidence that he possessed the images prior to his wife providing them to the police. In State v. Sanders, 126 S.W.3d 5, 28 (Mo. Ct. App. 2003), the defendant claimed that his ex-wife planted the child pornography. He was allowed to present the defense but was convicted. Finally, there is one case where a court found that the wife did plant child porn on her husband’s computer. That happened in Tauck v. Tauck, FA054004889S, 2007 WL 3087962 (Conn. Super. Ct. Sept. 21, 2007), a Connecticutt divorce case. Lasting 86 days and generating more than $13 million in attorneys fees, the New York Post reports that the Tauk divorce trial was the largest and most expensive in Connecticut history.

It was good that Mr. Lometevas drew attention to this issue. I had never heard of it before. I just wish he would have done so without suggesting that the the wife of this particular defendant had done such a monstrous thing.

Thursday, March 10, 2011

A classic example of what?

A jury in Ramsey County District Court convicted Maksud Mahbub of sexually assaulting four women. According to reports in the Minneapolis Star Tribune, Mr. Mahbub would go to bars look for extremely intoxicated women, convince them to get in his car, and then take them hope and rape or grope them. Mr. Mahbub faces a sentence of at least four years in prison.

After the verdict, Earl Gray, Mr. Mahbub’s attorney, offered the case this way, “It's a classic example of someone who doesn't understand our culture being convicted of crimes he didn't intend to commit.” What is Mr. Gray trying to say? The phrase “classic example” does not make sense. If one says something is a classic example of mistaken identity, the listener instantly understands that the wrong person has been identified. The situation is classic because we have all seen or read of this situation in movies, television, or books. One example is the Alfred Hitchcock film “The Wrong Man.” Likewise, if someone says that a child is a “classic example of an only child” the listener understands that the child in question has parents who spoil the child. Again, we know what the speaker means because various media have presented us with the situation in the past. This stereotype is so common that articles are written trying to debunk it.

What examples are there of “someone who doesn’t understand our culture being convicted of crimes he didn’t intend to commit”? Mr. Gray says that this is a “classic example” of that particular phenomenon. I have no idea what he means.

Wednesday, March 9, 2011


I am not sure what to say about this. One hopes this puts us a step closer to everyone having their own jet packs. That said, I am not sure why Jetman thought he needed to have his flight surrounded by two wing walkers. Would it have be insufficiently impressive if it was just a guy flying a jet pack with wings?

Wednesday, March 2, 2011

The understatement of the year (so far).

In a remarkable bit of candor, a member of the Minnesota Senate has admitted that a bill he purportedly authored is "really stupid." According to the Bemidji Pioneer, Republican John Carlson, a freshman senator representing Bemidji, Minnesota, has pulled a bill that would have repealed Minnesota's Pay Equity Act. The Pay Equity Act is eliminates gender-based wage disparities in public employment in Minnesota local governments.

As you might imagine, Senator Carlson’s bill caused a bit of a stir. The Pioneer ran an editorial against the bill and Senator Carlson wrote an op-ed opinion defending it on February 15.

Since his op-ed, Senator Carlson changed his view of the bill. He recently told a group of Minnesota teachers that he pulled the bill. He also apologized for authoring the bill. I am not sure he should have apologized for that since the Pioneer’s article makes it seem like he did not, in fact, author the bill. How does the article do that? By presenting Senator Carlson’s admission that he didn't know what the bill did. Senator Carlson said “What I was told by the League of Minnesota Cities was not to worry about it as it’s not about fair pay for women. It’s about some onerous reporting problems and it costs a lot.” So, because his interest group said that the bill he wanted to repeal was not about pay equity (despite the name of the bill), Senator Carlson just went along with what he was told. It apparently did not occur to him that the cost in question was, you know, paying women as much as men. Nor did it occur to him to check.

To his credit, Senator Carlson admits that he “didn’t do [his] homework very well.” One might suggest, that he did not do his homework at all. However, we should keep in mind that, as Senator Carlson puts it, “When you’re new in the Legislature, the learning curve is unbelievably steep and we honestly don’t know what we don’t know.” I can certainly agree that we often don’t know what we don’t know. However, I would have assumed that the “author” of a piece of legislation might know what his bill actually does.

Tuesday, March 1, 2011

March Madness

Okay, so February was a bad month here at the Gillette-Torvik Blog.  Except for one post, we took an unscheduled hiatus.  I, for one, promise to do better in March.  In exchange for increased blogging, however, you may notice a lot more posts about ... college basketball.