Barely Legally

Confessions of a Moot Court Bailiff

Superhero Silliness

This article on New York City’s burgeoning superhero movement started out earnestly. Although as a matter of procedure, it seems dishonest to refer to costumed vigilantes as either super or heroes, I’m sure it’s hard to resist the temptation to romanticize something so instinctively American.

There are hundreds of superheroes in cities across the nation. New York’s superheroes patrol the nighttime streets for crime, putting themselves in situations that ordinary citizens do their best to avoid. […] Though New York City’s crime rate has drastically decreased from its notorious heyday between the 1960s and the 1990s, it has recently seen an uptick. There are dark gaps in the city’s terrain where some superheroes believe the watchful eye of Commissioner William Bratton’s police force does not reach, and where they believe they are needed. One of these heroes is Dark Guardian.

Okay. I’m in. This is totally badass. Dark Guardian is out for justice, courageously standing up for the downtrodden and disaffected among us. Where the cops won’t get their hands dirty, he alone will uphold the law.

Where does he patrol? The rough and tumble neighborhood of Brownsville? East New York? The wretched hives of scum and villainy of … uh … Little Felontown? DoRiTo? Okay, I clearly don’t know where criminals hang out.

It is eleven at night on a Sunday. I’m standing under a traffic signal on the corner of Christopher Street and Seventh Avenue waiting to meet Dark Guardian. We’re going to patrol Greenwich Village.

You’ve got to be kidding.

For those of you who aren’t familiar with New York City’s endless series of boutique neighborhoods, Greenwich Village is one of the nicest parts of Manhattan. In this “hardscrabble” part of town, you can live the authentic life in a 4 bedroom, $5 million apartment. It contains three of the most expensive zip codes in America. How absurdly ritzy is Greenwich Village? Celebrity residents have their own category on Wikipedia.

That being said, it’s not some wonderland without any crime at all. While there were literally zero murders in this neighborhood in 2013, check out the statistics. While Greenwich Village sees below-average crime in almost every category, the rate of Grand Larceny is almost four times higher than the city’s average.

For those of you keeping score at home, Grand Larceny is when you steal:

  1. Anything worth more than a thousand dollars; or
  2. A credit or debit card; or
  3. Anything directly from a person.

There are other ways to get to Grand Larceny (11 different kinds of 4th degree Grand Larceny alone!), but those are your most common.

Well, all right. I stand corrected. Initially, I did a spit take upon reading the “we’re going to patrol Greenwich Village” line. But apparently, there are a lot of muggings there. You go, Dark Guardian. Break up the purse snatchings and the apple pickings, and do Batman proud.

Published in The Category Gotham Deserves on

Jurisprudence, Interesting Quirks of

Paige Williams, writing in The New Yorker, on Alabama judges with superpowers. Specifically, in Alabama, judges sitting specific courts can exercise the “Judicial Override.” An override is when a judge sentences a guilty defendant to death after a jury declines to impose the death penalty.

In effect, there are two opportunities for defendants to be sentenced to death: once by a jury and another time by a judge, sua sponte. In addition to all the usual concerns over the death penalty, like how black criminals are over 300% more likely to be executed than white criminals, and how there are hundreds of innocent people on death rows right now, there are extra problems with Alabama’s override system:

Every six years, Alabama elects circuit judges (who hear capital cases) and members of the Alabama Court of Criminal Appeals and the Alabama Supreme Court. Judicial overrides tend to spike in and around election years. According to a 2011 study by E.J.I., thirty per cent of the state’s death sentences in 2008, an election year, were imposed through override, compared with seven per cent the previous year.

I’m reminded of the Israeli parole boards, which grant fewer and fewer applications the longer their day goes. Humans aren’t machines, and seemingly trivial factors can have significant effects on our cognitive processes.

In this case, it’s not difficult to see the connection. Elected judges order the execution of more people in election years to make for cool TV:

Every election season for decades, television ads have shown aspiring judges posing with a hunting rifle or saying things like “I’ve looked killers in the eye and sentenced them to death.”

Yeah, that’s pretty horrifying.

It Gets Worse

Like most states, Alabama has egregiously loose campaign finance laws. When judges are elected (on the basis of sentencing people to die after a jury decided the opposite), there’s often an absurd campaign finance angle.

For example:

The state allows lawyers to contribute money to the campaigns of judges who may preside over their cases, and they do so routinely. Randy McNeill, the prosecutor who asked Judge Gordon to sentence Shonelle Jackson to death, had contributed to Gordon’s campaign fund.

McNeill, a deputy district attorney who some thought would make a good D.A., donated the money in April, 1991, with his wife, Margaret, who had clerked for Gordon. The McNeills gave fifty dollars, because Gordon, who was running unopposed, had personally capped contributions at that amount.

Oh, good. The judges have created their own campaign finance regulations, for money they accept from lawyers who argue in front of them.

You know, in other states, judges can’t even be Facebook friends with lawyers. Alabama’s letting them flat out exchange money. That’s an interesting twist on that whole “impartial judge” thing.

Published in The News on

Pyrrhic Victory

A thought experiment: you’re the attorney for one of the largest school districts in America. The parents of a student in one of your schools are suing the district because one of your teachers sexually assaulted their child, a student at your school. The teacher was convicted of the crime a few years back, so you’re going to have to get a little creative here. From CBS Los Angeles:

“Why [isn’t] it her fault that she planned on having sex with her teacher? That she lied to her mother so she could have an opportunity to have sex with her teacher,” attorney W. Keith Wyatt said in a radio interview with KPCC. “That she went to a motel in which she engaged in voluntary consensual sex with her teacher. Why shouldn’t she be responsible for that?”

TOO CREATIVE! TOO CREATIVE! ABORT! ABORT!

The LA School District actually won the case. The jury found that the school district had no knowledge of the assaults and therefore should not be liable for them. The article notes the teacher had a reputation for being handsy with students. Whatever the jury decided, their verdict probably had nothing to do with:

Remarks by attorney W. Keith Wyatt that crossing the street was more dangerous than deciding to have sex with a teacher.

spit take noise goes here

Now that is a really interesting argument. On the one hand, yes: I would be willing to bet that no one has ever been hit by a car while being assaulted by a pedophile. That is some sound statistical reasoning. On the other hand, you’re shockingly devoid of basic human empathy and seem hell-bent on blaming a kid for being assaulted.

All right, I can’t. Let’s roll up our sleeves. You want a stupid argument based on statistics? Let’s go, W. Keith Wyatt of the California law firm Ivie, McNeil & Wyatt. You and me. It’s a good ol’ fashioned stats-off.

Statistics For Lawyers 102

Take a gander at this other tragic story from a few weeks back. A small plane crashed into a building in Kansas and killed three people who were inside a flight simulator in that building.

This year, about 650 million people will get on a plane in America. According to a 2013 census of non-military flight simulators, there are about 330 commercial simulators (like for a 747 or Airbus) in America.

Stay with me here: even if there are a thousand “prosumer” flight simulators for each commercial simulator (there aren’t), and each of those hundreds of thousands of hypothetical prosumer simulators used three times a day every single day (they aren’t), there are still many orders of magnitude more people on planes than people in flight simulators in America each year.

About 25 people die on random, non-commercial flights in America every month. But because there are so many more people in the air every month, for the month of November, you were more likely to die in a flight simulator than on a plane. Statistically speaking.

Boom. How you like that stupid argument?

Oh also

Yeah, LA fired that firm so hard. What kind of jackass shows up to a sexual assault trial to blame the victim like that? That’s disgraceful.

Published in Irreverently irrelevant on

That Clears Things Up

Margaret Sullivan, the Public Editor of the New York Times, writing about perceptions that the Times is only for the wealthy:

So who is The Times written for — the superwealthy, or for citizens of all income levels? Is the paper trying, in the axiom about journalism’s mission, to “afflict the comfortable and comfort the afflicted”? Or is it plumping the Hungarian goose-down pillows of the already quite cozy?

I asked the executive editor, Dean Baquet, whom he has in mind when he directs coverage and priorities.

“I think of The Times reader as very well-educated, worldly and likely affluent,” he said. “But I think we have as many college professors as Wall Street bankers.”

Oh, good. The audience runs the gamut of the net worth spectrum, from upper class to upper middle class. Glad you see yourself as catering to both sides.

Meanwhile, from the Nieman Reports, 16% Percent of Americans live in poverty (49.7 million total), but 0.2% of news stories covered poverty between 2007-2012.

Published in The News on

Lunch is a Battleground

Remember that Reagan-era punchline about ketchup being classified as a vegetable for school lunches? I grew up thinking it was just a joke, but it has a 7,000 word Wikipedia article. This is probably how archaeologists in the future will measure the social impact of everything in the pre-nuclear wasteland: the length of the wikipedia article. As of this writing, the most important thing in society are… Supreme Court clerks. Huh. Well, I guess we know what those folks do in between terms.

So ketchup is a vegetable. Sure. Why not. But apparently, we’ve reducto’d this ad a little bit more absurdum:

Pizza is one of the school-food companies’ most popular products; schools purchase more than $450 million worth every year. Under the old rules, companies could market pizza slices as a product combining grains, protein and a full serving of vegetables.

This was possible thanks to a longstanding loophole: Rather than count the two tablespoons of tomato paste on a serving of pizza as two tablespoons of tomato paste, they could count it as eight tablespoons of tomatoes, the theory being that at some point before being processed, the two tablespoons had existed in the form of several whole tomatoes.

I love it when the pull quote is its own punchline.

Seriously, the New York Times Magazine wrote a surprisingly engrossing piece about this, titled How School Lunch Became the Latest Political Battleground. I’m surprised at how complicated it gets and how strange the bedfellows become, but that really comes with the territory at a certain point.

Published in Not The Onion on

Clinging to the Past

By way of the always excellent Pirated Thoughts comes news that the Supreme Court of the United States has refused to hear the Sherlock Holmes case. Well, with all the questionable evidentiary issues, I’m more surprised it took this long for it to hit the high court, really. All right, so which one is this? The Blind Banker? The Lady in Pink? The Noodle Incident?

Actually, it’s about whether Sherlock Holmes is copyrighted or not:

Beginning in the 1880’s, [Sir Arthur Conan] Doyle authored and published four novels and 56 short stories about the exploits of detective Sherlock Holmes and his trusted sidekick, Dr. John H. Watson. When Leslie Klinger, an author and co-editor of a series of short stories of new and original stories in the Sherlock Holmes universe, sought to publish his book. The estate of Doyle soon came a’ knocking and stated Klinger must be licensed to use the characters and their likeness.

Now, I know what you’re thinking. “Dominic, the first Sherlock Holmes story appeared in the same year that earmuffs and phonograph were patented. That’s basically the Stone Age.”

Yes, but, via SCOTUS Blog, the stupid argument which birthed so many billable hours. As they wrote over the summer:

Doyle has been dead for eighty-four years, but because of extensions of copyright terms, ten of his fifty-six short stories continue to be protected from copying. All of the short stories and four novels were published between 1887 and 1927, but all of the collection except ten short stories have entered into the public domain as copyrights expired.

The Doyle estate, though, is pressing a quite unusual copyright theory. It contends that, since Doyle continued to develop the characters of Holmes and Watson throughout all of the stories, the characters themselves cannot be copied even for what Doyle wrote about them in the works that are now part of the public domain and thus ordinarily would be fair game for use by others.

You got that, right? The Doyle estate admits Sir Arthur started writing Sherlock stuff in 1887, but he kept writing about it later, and so copyright should extend backwards in time from the very last story all the way to the first story. Like an inverse tachyon pulse phased through the deflector dish. No, that sentence didn’t make any sense, and neither did the other one.

Doyle’s estate even tried to invent the idea of “rounded” and “flat” characters, Holmes and Watson being the former, which deserve to be protected backwards in time. It was… interesting.

Given the way Congress has been all too happy to retroactively extend copyright for dead people, (“to promote the useful arts and sciences,” don’t forget), I guess it was worth a shot. But Judge Richard Posner of the Seventh Circuit Court of Appeals had some choice words for shooting that particular theory down.

Lacking any ground known to American law for asserting post-expiration copyright protection of Holmes and Watson in pre-1923 stories and novels going back to 1887, the estate argues that creativity will be discouraged if we don’t allow such an extension.

If [Doyle] loses copyright on the original character, his incentive to improve the character in future work may be diminished because he’ll be competing with copiers, such as the authors whom Klinger wishes to anthologize.

Of course this point has no application to the present case, Arthur Conan Doyle having died 84 years ago.

Read the whole opinion here. It’s Posner, so you know it’s enjoyable.

Published in The News on