Wednesday, June 21, 2006

Federal Sentencing: "Reasonableness" Review.

Sentencing Law & Policy is always a great resource for keeping up with federal sentencing developments. One of the best posts over there is Professor Berman's "Tracking Reasonableness Review Outcomes".

Professor Berman has collected an updated list of cases covering every category of reasonableness review: reversal of within-guideline sentence as unreasonable, affirmance of within-guideline sentence as reasonable, reversal of above-guideline sentence as unreasonable, affirmance of above-guideline sentence as unreasonable, reversal of below-guideline sentence as unreasonable, and affirmance of below-guideline sentence as reasonable.

If you have an interest in federal criminal law or sentencing, this is a great resource to keep bookmarked and follow.

Wednesday, June 14, 2006

Compilation of "Light-Hearted" Court Antics.

In the past few months there have been a number of rather "light-hearted" moments in court proceedings, either in strange motions being filed or in somewhat humorous orders being issued. Inasmuch as I've been busy lately and do want to keep this blog "active," I'm going to simply post a compilation of some of the better ones I've seen. Let me know if you have more, and I'll update this specific post with them.

    1. A Motion for Fist Fight.

Back in April, The Legal Reader posted about the "Motion for Fist Fight" filed in a Montana criminal case. An excerpt, in which it bears noting that "S.D." and "J.C." are the attorneys representing the State in the action and "K.K." and "B.B." are the defense attorneys:

COMES NOW counsel for Defendant, through his [counsel] and respectfully requests this Court to Order a fist fight between [S.D.] and [J.C.] on one sided [sic] and [K.K.] and [B.B.] on the other side.
. . .
[S.D] and [J.C.] have consistently maintained that it was perfectly right, legal and moral for the stronger [M.P.] to beat up [D.J.]. They have maintained that [D.J.] did not have to worry because [M.P.'s] drunk and stoned friends would jump in and protect [D.J.].
The defense team disagrees but would love to give [S.D.] and [J.C.] a chance to stand up for the principle they stand up for, ie. the brutal humiliation and beating up of weaker human beings is the most cherished principle in life. . . . For further insurances that [S.D.] and [J.C.] don't get beat up to [sic] bad, an group of defense attorney's drunk and stoned friends will be there to assure [S.D.'s] and [J.C.'s] safety.

The State filed a responsive pleading, also viewable at the link, in which the State asserted that the defendant "went far beyond what was necessary for self defense." The State also asserted that "[t]he latitude normally given to the exercise of free speech, especially that which, however ill conceived, is intended as humorous, should not extend to filed court pleadings in a case which has led to the death of one young man, serious and possibly permanent injury to others, and the specter of long imprisonment and community strife for others." Additionally, not wanting to be left looking "afraid" of the challenged fist-fight, the attorneys for the State asserted:

While counsel for the State are confident they could acquit themselves respectably if it were necessary to settle any part of this matter by means of a physical contest, ancient methods of trial by fire, water and the like no longer have any place in our system of justice.

    2. A Game of Rock, Paper, Scissors.

While attorneys in Montana have been busy challenging each other to fist fights, down in Florida things are settled more amicably -- with a game of Rock, Paper, Scissors.

In the case of Avista Management, Inc. v. Wausau Underwriters Insurance Co., counsel for the parties have apparently been unable to reach agreements on a number of routine matters without enlisting the assistance of the federal court. The latest impasse apparently concerned the location of a deposition. Counsel for the Plaintiff brought a motion to designate the location of the deposition. The federal court denied the motion, but also "fashion[ed] a new form of alternative dispute resolution" -- a game of rock, paper, scissors. The court ordered:

. . . at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of [the federal courthouse]. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and a witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the . . . deposition.

    3. A Motion to Wear Hat in Court.

Before leaving Florida, let's go back to April when a criminal defendant was due to be sentenced and filed a motion requesting permission to wear his cowboy hat in court because the defendant, Jean-Marc Brun, is a well-known hairstylist and his hat is a recongized and recognizable feature of his own style and fashion. Although the prosecutor had no objection, the court did not expressly grant the motion. Rather, the court issued an order counseling on the respect associated with removing hats. The court ultimately left it up to the defendant. The court noted, however, that "[i]f in doubt, a true gentleman will remove his hat indoors as soon as is practical. Leaving one's hat on when it is considered 'proper' to remove it is generally considered a sign of contempt and/or disrespect."

    4. DaVinci Code Order's Code.

These unusual and lighter moments are not reserved to the United States. Back in April, Justice Peter Smith issued a judgment in the DaVinci Code case in England, which pitted author Dan Brown against authors of another work who claimed that Brown had breached copyright restrictions in writing the DaVinci Code. The judgment was crafted with its "own" code. You can read about it here.

    5. Billy Madison as Legal Precedent.

As I posted about back in March, a Texas bankruptcy judge dismissed a motion due to "incomprehensibility." In doing so, the judge quoted the movie Billy Madison in his footnote, commenting:

Or, in the words of the competition judge to Adam Sandler's title character in the movie, "Billy Madison," after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

    6. An Invasion of Sea Sponges.

I also posted about the importance of proofreading as demonstrated by the "Sea Sponge" case. In that case, an attorney drafted a brief and his spell-check system inadvertently changed every reference to "sua sponte" to "sea sponge" and the attorney did not catch the error when proofreading. A couple of the good examples were:

"An appropriate instruction limiting the judge's criminal liability . . . must be given sea sponge explaining that certain acts or omissions by themselves are not sufficient to support a conviction."
"It is well settled that a trial court must instruct sea sponge on any defense, including a mistake of fact defense."

    7. Motion to Transfer Denied.

Judge Samuel Kent, a federal district court judge in Texas, has a bit of a reputation for "colorful" language in his orders. Kent recently issued an order denying a motion to transfer a case from Galveston to Houston. An excerpt:

Defendant should be assured that it is not embarking on a three- week-long trip via covered wagons when it travels to Galveston. Rather, Defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this Court’s predecessor, Judge Roy Bean, the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be able to hurtle to justice at lightning speed. To assuage Defendant’s worries about the inconvenience of the drive, the Court notes that Houston’s Hobby Airport is located about equal drivetime from downtown Houston and the Galveston courthouse. Defendant will likely find it an easy, traffic-free ride to Galveston as compared to a congested, construction-riddled drive to downtown Houston. The Court notes that any inconvenience suffered in having to drive to Galveston may likely be offset by the peacefulness of the ride and the scenic beauty of the sunny isle.

As to Defendant’s argument that Houston might also be a more convenient forum for Plaintiff, the Court notes that Plaintiff picked Galveston as her forum of choice even though she resides in San Antonio. Defendant argues that flight travel is available between Houston and San Antonio but is not available between Galveston and San Antonio, again because of the absence of a commercial airport. Alas, this Court’s kingdom for a commercial airport! (fn) The Court is unpersuaded by this argument because it is not this Court’s concern how Plaintiff gets here, whether it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas jackrabbit, as long as Plaintiff is here at the proper date and time. Thus, the Court declines to disturb the forum chosen by the Plaintiff and introduce the likelihood of delay inherent in any transfer simply to avoid the insignificant inconvenience that Defendant may suffer by litigating this matter in Galveston rather than Houston.

fn. Defendant will again be pleased to know that regular limousine service is available from Hobby Airport, even to the steps of this humble courthouse, which has got lights, indoor plummin’, ‘lectric doors, and all sorts of new stuff, almost like them big courthouses back East.”

Friday, June 02, 2006

Update: Legislation on Military Funeral Protests, Fred Phelps, and the Patriot Guard Riders.

As I noted recently, among the most often viewed and searched for articles here at Kierkegaard Lives are the posts about Fred Phelps and his "church" protesting at military funerals and the Patriot Guard's "counter-protest" and attendance at these funerals.

Prior Kierkegaard Lives Posts on this subject:
Update: Military Funeral Protests, Fred Phelps, Patriot Guard Riders (May 10, 2006)
Patriot Guard Bikers vs. Fred Phelps (February 22, 2006)

In my last post on the subject, I noted that

According to Jurist, the U.S. House of Representatives [had] passed a bill that is titled "The Respect for America's Fallen Heroes Act." The bill seeks to block unapproved protests at Arlington National Cemetery and other federal cemeteries and creates a 500-foot no-protestor zone around military funerals. Apparently, similar legislation has been passed or proposed in states such as South Dakota and Oklahoma.

On May 25, 2006, the Senate passed a similar bill. And on May 30, President Bush also signed the Act into law.

According to

Demonstrators would be barred from disrupting military funerals at national cemeteries under legislation approved by Congress and sent to the White House.

The measure, passed by voice vote in the House Wednesday hours after the Senate passed an amended version, specifically targets a Kansas church group that has staged protests at military funerals around the country, claiming that the deaths were a sign of God's anger at U.S. tolerance of homosexuals.


In an interview when the House bill passed, Phelps said Congress was "blatantly violating the First Amendment" rights to free speech in passing the bill. He said that if the bill becomes law he will continue to demonstrate but would abide by the restrictions.

Sen. Pat Roberts, a Republican from Kansas, said the loved ones of those who die have already sacrificed for the nation and "we must allow them the right to mourn without being thrust into a political circus."

In response to the demonstrations, the Patriot Guard Riders, a motorcycle group including many veterans, has begun appearing at military funerals to pay respects to the fallen service member and protect the family from disruptions.