Serious studies: Filled pauses in the US Supreme Court: They're just like, um, us.

Constantine the Philosopher University in Slovakia has completed a seemingly-silly study in which they analyzed the filled pauses of our Supreme Court. They found that Judge Kennedy used the most pauses and Ginsburg used the least, but they all favored "um" over the seldom used "uh," "ah," and "eh."

Summary chart from the Study

Unless I'm misreading the stilted conclusion, it appears that the justices were more likely to give a favorable conclusion if the content of the filled pause was closer to the one used by the arguing attorney. 

The Annals of Improbable Research has more.

The study can be found here: ‘Entrainment in spontaneous speech: the case of filled pauses in Supreme Court hearings’ Proceedings of the 3rd IEEE Conference on Cognitive Infocommunications 2012.

Screwed by the Town of Cary AND by the Fourth Circuit

Bowden v. Town of Cary, 22 January, 2013

Holding: 1) Aesthetics are more important than your right to free speech, 2) A sign ordinance is okay so long as it still allows self expression in a less meaningful way.

Actual exhibit to the Court's Opinion! 

William Bowden believed that the Town of Cary damaged his property from runoff from construction projects. So he reacted like any rational person and spray-painted "Screwed by the Town of Cary" in large fluorescent letters on the side of his house. The Town of Cary responded by serving him with a zoning violation because his "wall sign" was too large and used impermissible fluorescent lettering.  

The District Court agreed with Mr. Bowden and allowed him to continue his Quixotic Free Speech graffiti. 

The Fourth Circuit, ruling from their dark castle in Richmond, felt differently. They decided that the sign ordinance was content neutral (it was not aimed at any particular viewpoint). Therefore, it must decide whether the ordinance furthers a substantial government interest, is narrowly tailored to further that interest, and leaves open ample alternative channels of communication. The Court then goes on to say with minimal further explanation "it is beyond dispute that the Town’s stated interests in promoting aesthetics and traffic safety are substantial." (Three fallacies committed here; extra credit if you can name them!)  Further, because the sign ordinance still allows a person to say what he wants to say, it is narrowly tailored to further that interest.

This should be a deeply disturbing ruling from those people who feel like they should be able to do whatever they want with their property. It should be also be deeply disturbing to people who hope the world continues to be populated by suitably entertaining people.

Of note here is that the Plaintiff is actually the administrator of his estate. That means that the fight of a crazy old man continues on from the grave. The world is awesome.

Duke Lacrosse Update: Ugh!

The 4th Circuit issued an opinion today in Evans et. al. v. Chalmers et. al., the civil suit brought by the Duke Lacrosse defendants against pretty much everyone.

Yep. More of this.

If you're the kind of person who likes to gawk at accidents on motorways, the case is here. 

Having read it, I see nothing helpful to the actual practice of law. I am only assured that if the defendants were poor minorities, they probably couldn't expect so much "justice" from the system.

Cases: Right to bear arms does not extend to illegal aliens

US v. Carpio-Leon, 4th Cir., 12/14/2012

Upon being charged with possession of weapon while being illegally or unlawfully in the US, Mr. Carpio-Leon argued that the law was unconstitutional pursuant to the second amendment. 

The Court concluded that the Second Amendment does not provide protection to illegal aliens because they are not "law-abiding members of the political community."  Prohibiting illegal aliens, as a class, from possessing firearms is rationally related to Congress’ legitimate interest in public safety. 

Cases: 4th Circuit approves 60 month sentence for a "legend in the dogfighting community"

US v. Hargrove, 4th Cir. 12/12/2012

Harry Hargrove was a "legend in the dogfighting community. By Hargrove’s own admission, he has been involved in dogfighting activity for over four decades, and at one time he had approximately 250 fighting dogs on his property. Information in the record shows that offspring from one of Hargrove’s fighting dogs, Midnight Cowboy, sold for large sums of money across the country because of its aggressiveness and propensity for fighting. Hargrove advertised his dogs in various dogfighting-related publications, and he is famous in the dogfighting industry for his dogfighting, his breeding activities, his training regimen, and his ability to produce aggressive fighting dogs. His prior criminal history includes a 1983 Georgia felony dogfighting conviction, a 1993 North Carolina animal fighting misdemeanor conviction, and a 2001 North Carolina animal cruelty misdemeanor conviction."

Humans are just the worst.

Following a conviction of violating the Animal Welfare Act by dogfighting, the District Court sentenced the Defendant to 60 months. The sentencing guidelines suggest a sentence of 0-6 months. The District Court opted for an upward variance noting: "I would say that other than the criminal dog fighters in America, every other person in America would be shocked beyond belief that you could do what [Hargrove] did and come out with a federal sentence of zero to six months....  No one could defend that. No judges. No legislators. No president."

The Fourth Circuit approved the variance, stating that the district Court's rationale was necessary to accomplish the objective of sentencing and had the discretion to increase the sentence to the statutory maximum.

Afterword: For people who like gory details: "the officers found multiple tools and indicia of the dogfighting trade throughout Hargrove’s property, including: a fighting pit that was covered in a significant amount of blood; "break sticks" which are used to break the bite hold of a dog during a fight; modified jumper cables that were used to electrocute dogs; a large debris pit that contained, among other things, dog carcasses; a bloodcovered treadmill with wooden sides; a springpole, which is used to build up a dog’s leg and jaw muscles; an old "jenny," which is used to increase a dog’s stamina by having the dog run continuously for extended periods of time while chasing a bait; large quantities of animal medicines; and hundreds of canine pedigrees."

Cases: Common Law marriages from Texas are not valid in North Carolina where there is slight evidence that there is no actual agreement.

Garrett v. Burris, NC Court of Appeals, 4 Dec 2012

Hulya Garrett requested a divorce from a man that she believed to be her common law husband. The Court denied her request, saying that there was never an agreement to be common law married, despite the fact that they lived together, wore rings, introduced themselves as husband and wife, and filed taxes as married.

North Carolina does not allow common law marriages, but does recognize valid common law marriages from other states. A common law marriage requires 1) an agreement to be married, 2) living together as husband and wife, and 3) holding out to other people to be married.

In this case, the husband denied the marriage because there was no ceremony, no joint accounts, she never officially changed her name (although she used his surname in public and in unofficial documents), and in deeds indicated that she was unmarried. The trial Court and Court of Appeals decided that there was insufficient evidence to show that it was more likely than not that there was ever an actual agreement to marry. 

Judge Beasley quite rightly dissented from the Court's opinion, stating that there was sufficient evidence to support a common law marriage early on in the marriage, despite any evidence that later on, they were acting as if not married. Since there was a dissent, this will likely be addressed and, hopefully, corrected by the NC Supreme Court.

For future reference, if someone sues you in the State of North Carolina saying that you have a common law marriage, all you have to do is say that you never actually agreed to do so, despite whatever mountain of evidence may indicate that you did, in fact, marry the person. And if you do get common law married, make sure that you do nothing to indicate that you are not properly married. Apparently this state is itching to void marriages.

Cases: It's against the law to wear military dress and insignia if you aren't in the military. Who knew? Not Hamilton!

US v. Hamilton, 4th Cir, 11/9/2012

Wear these in public and become public enemy number one!

An honorably discharged disabled serviceman shows up at a veteran's recognition ceremony wearing full military dress (with medals he never earned). The government was not amused. In it's typical authoritarian style, he was politely asked to leave (by means of an arrest for criminal charges).

Mr. Hamilton challenged his convictions on the grounds of the first amendment. The Fourth Circuit affirmed the conviction, stating that there was a compelling state interest to maintain the symbolic value of military insignia and to "ensure that the individuals displaying these honors to the general public are those who actually have receive such honors."

Our government is very forgiving of people who commit fraud on investors, consumers, or the general public. But God save you if you choose to do so while wearing military insignia. 

No word yet on whether it's okay to continue to wear "sexy soldier" costumes sold at Halloween.

More analysis here and here.

Cases: In which we learn that wearing form fitting shirts may get you in trouble.

US v. Vaughn, decided 11/29/2012, 4th Cir.

After being stopped for travelling 79 in a 70 miles per hour zone. In the vehicle, the Officer observed four cell phones in plain sight and a passenger who acting normally but was exhibiting "high levels of nervousness" -- he was shaking and breathing heavily with trembling hands and the officer "could see his heart beating through his shirt." (emphasis added by me, to highlight asininity).  In addition, the driver and passenger gave conflicting answers about where they were going. After a somewhat prolonged questioning for a speeding stop, a dog arrived and detected drugs.

The Court decided that the prolonged stop was acceptable due to the nervousness, cell phones, and conflicting stories.

The lesson to be learned is that, should you choose a career in drug trafficking, stay calm. We can also learn that criminals generally wear over-sized clothes not as a fashion statement, but to thwart the superhuman observation abilities of the police.

In this case, an emergency includes a traffic stop.

Another take on this case can be found here.

Freakonomics Radio explains how bail bonding works

Last year, Freakonomics Radio made a show explaining how the bail bonding system works. The US is one of two countries in the entire world that relies on the bail bonding (i.e. bounty hunters) system to ensure that Defendants appear in Court. Surprisingly, it is 97% effective, more than two times that of the police.

The broadcast includes the economic benefits of such a system, but also a unique insight into the methods used by bail enforcers:

The bottom line is we look for the fugitive and the Judas. Everybody has a Judas in their life. An ex-girlfriend might betray him because he ran off with someone else, a rival crack dealer will betray him because he wants that guy out of the system because he’s competition. There’s always someone that will betray you for love, out of caring.

 

Freakonomics Radio: The Economics of Bounty Hunting

"We note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.... Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception." U.S. v. Foster, 634 F. 3d. 243 (2011).
 

Aesop presents: The jerk and his wife

Mussa v. Palmer Mussa (NC Supreme Court decision August 24, 2012) 

Juma and Nikki are married for 12 years. They divorce. The Court Orders that Juma pay Nikki some money. Juma is unhappy with this. All of a sudden he recalls that he had sort of married someone else many years ago, so his marriage to Nikki is void, saving him from paying her money. Unfortunately for Juma, his marriage was performed by an uncredentialed charlatan who has long since disappeared. If that marriage isn’t valid, then he can’t challenge the second marriage.

The moral: If you’re enough of a jerk, you can delay having to pay your ex-wife for quite a bit of time.

The legal message is a bit less obvious. If Juma had been legitimately married before, then he would have a valid claim that his second marriage was void because it was a bigamous marriage. There are people who claim that the sanctity of marriage is threatened by the people with similar genitals who love each other. People like Juma and laws that support his position cause more damage to the “sanctity” of marriage than could any state-sanctioned union loving partners of any sex.  It, then, becomes obvious that those people who oppose an expansion of marriage don’t care about cases like Juma’s. They only care that society conforms to what is comfortable to them. A society that ensures that people who love each other stay apart and people like Juma are free to marry who they wish.

Norfolk Four Update: Fourth Circuit Declares that Sex Offender Registries are not Considered "Custody"

The Fourth Circuit published US v. Flaherty yesterday, in which Eric Wilson, one of the "Norfolk Four, " had filed a federal Habeas Petition challenging his conviction. He argued that he was in custody because the requirements of the sex offender registry are sufficient restraints on liberty to be considered custody.

Wilson was convicted of rape in 1999 after a confession was coerced by Detective Robert Glenn Ford. Ford has since been convicted of  Conspiracy to Commit Extortion under Official Right, Extortion Under Official Right, and False Statement for his behavior in this case. He was sentenced to 360 months in Federal Custody. If you've never heard of this case, PBS did a Frontline documentary called "The Confessions" about it. It's well worth anyone's time to view if you want to develop or bolster a healthy distrust of law enforcement.

In the Case, the majority opinion indicated that the requirements of the Sex Offender Registry are too trivial and too collateral to satisfy the requirements of Custody. Judge Wynn properly points out in the dissent that the registry requires checking in with local law enforcement and maintaining an address within certain bounds (not to mention the social scrutiny involved), which is a significant restraint on his liberty and should be considered. 

The Court suggests, in a well-meaning bout of verbal diarrhea, that "Wilson has alleged compelling claims that significant legal burdens and disabilities imposed on him are wholly unjustified by any legitimate governmental interest; morally and legally, he is clearly entitled, in my judgment, to a judicial forum to test the accuracy of his claims. If, as the dissent posits, Virginia law would foreclose access to such a judicial forum under coram nobis or some other extraordinary procedure, I believe a due process claim under 42 U.S.C. § 1983 would raise grave issues of profound moment deserving of serious judicial examination." 

Apparently, there is some worry that should the Court decide that a sex offender register is "custody" it would open the floodgates of litigation and abhorrently allow yet another avenue for people for relief  merely on the grounds that they are actually innocent.

This raises the bigger political question of whether it is good for our Courts to be so dogmatic in their approach to these issues given the clear innocence of Mr. Wilson. Both sides will continue to argue the political and pragmatic implications of "judicial activism". In the meantime, people like Eric Wilson will live their lives, unable to find employment, unable to adopt, unable to live in certain areas, having to alert the government where he lives at all times among a populace that will believe him to be a dangerous rapist despite the overwhelming evidence to the contrary FOR THE REST OF HIS LIFE.

I presume that his attorneys will seek review by the Supreme Court. So, it appears that the government is not finished ruining his life yet.

Court of Appeals Saves Us from "Chaos and an Absence of Justice," Criminal Cases, NC Court of Appeals 7/17

State v. Kelly 

A particularly horrible baby killing case in which the Court of Appeals informs an overzealous appellate attorney that a jury is not to be instructed on jury nullification lest “it would lead to chaos and an absence of justice in North Carolina.” Sounds like the Court of Appeals wanted to get in on some of that overzealous action.

State v. Askew and State v. Talbert 

The State filed a probation violation against Defendant, who was to have an approved residence plan upon release from prison. This violation was filed against him prior to his release from prison because he couldn’t set up anything while still in prison. The Court of Appeals finds one cannot violate their probation before given the opportunity to do so. Precogs be damned.

State v. Bell

Three holdings (of interest):

1)      No need to indicate voluntariness of a consent to search in an Order if no dispute in evidence as to voluntariness.

2)      The elements of kidnapping are part of certain offenses. Unless the kidnapping elements are not related to the accompanying offense, a Defendant cannot be convicted of both.

3)      If you tell a kid to wait in a room while you hold his mother at gunpoint and force her to perform sexual acts, you have kidnapped him.

State v. Brunson 

Again, three holdings (of interest):

1)      Crazy defendant who kept firing attorneys is not denied effective assistance of counsel.

2)      It’s no big deal if you are denied probable cause hearing so long as it does not lead to a possibility of a different result at trial. Constitutional rights? Pshaw!

3)      The trial court may quash subpoenas if there is no possibility for a different outcome.

State v. Collins 

Defendant has buyer’s remorse after pleading to assault on handicapped person. The Court finds that the plea was his informed choice and that there were facts to support the plea. He then goes on to challenge the indictment for not indicating the type of handicap or that the Defendant knew of the handicap. The Court upholds the conviction.   

State v Harris 

If you don’t object at trial to statements made during closing, there must be “gross impropriety” in order to require the trial Court to intervene on its own.

State  v. Hunt 

When you have previously sexually assaulted someone, it’s a bad idea for your attorney to ask you if you have “ever done such a thing before,” but it’s not ineffective assistance of counsel because it was not prejudicial in light of the other evidence. It is, however, ineffective assistance of counsel to fail to argue a double jeopardy issue.

State v. Mather 

Defendant convicted of carrying concealed weapon despite having a permit following bringing handgun into a bar and getting his drink on. It’s illegal to carry a concealed weapon while drinking. Defendant argues that the indictment was insufficient because it does not state allege that the Defendant had been consuming alcohol. Court of Appeals holds that an indictment need not include an exception if it is not the within the State’s burden to prove that said exception applies.  

State v. Robinson 

Defendant denied motion to be evaluated to determine whether he is competent to stand trial. The motion was made on the eve of trial with affidavits supporting a deteriorating mental condition. The Court denied the motion and proceeded with trial. The Court of Appeals states that this is an abuse of discretion if there is supporting documentation showing a need for evaluation. They may have remanded for new trial but, unfortunately for the Defendant, he put his doctor on the stand on the fourth day of trial who stated that he believed the Defendant to be competent.

Motion to suppress statements made during an recorded interrogation because he is borderline retarded (really) and didn’t understand his rights. The Court noted that he had previous experience in the criminal justice system, was not misled by the officers, and not deprived of necessities. Absent any other reason to believe that he didn’t understand the Miranda warning and waiver, the Court need not suppress the statements.

State v. Rollins 

During a rape trial, the trial Court closed the Court during victim’s testimony over Defendant’s objection. Court of Appeals states that to close a hearing (1)  “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,” (2)  “the closure must be no broader than necessary to protect that interest,” (3)  “the trial court must consider reasonable alternatives to closing the proceeding,” and  (4)  “it must make findings adequate to support the closure.” An absence of findings altogether is error. There must be sufficient findings for the Appellate Courts to review the propriety of the decision. The Court remanded the case to the trial court for a determination as to whether closure was necessary.

The Court also determined that there was an error in determining that out-of state conviction for burglary in Florida was sufficiently similar to a NC conviction for burglary. Instead, burglary in Florida is similar to felony breaking and entering in NC. Remanded for new sentencing hearing.  

No liability when hit in face with balls-- and other things that civil litigators find interesting

(Civil Cases decided by N.C. Court of Appeals 7/17/2012)

Bryson v. Coastal Plain League  

Defendant hit by a wild pitch by pitcher warming up in bull pen. The Court follows a line of cases that says safe areas covered by screening only necessary where the danger is greatest (i.e. behind home plate). No duty of care exists if someone is injured in an unusual way by a thrown or batted ball. In the end, baseball is still boring, but at least there’s the chance to see someone hit by a ball. 

Bigger v. Arnold  

An executor of an estate does not have standing to appeal case as he is not an aggrieved party. Only the beneficiaries have standing to do so. It seems, though, that an executor can spend the estate's money filing an appeal that they should have known they never had standing to file.

Bullard v. Wake County

Court affirms the principle that County inspections are in place to annoy, but not to protect after stating that Wake County is immune from suits for negligent inspections.

Fontana v. Southeast Anesthesiology Consultants 

Employment contract which requires arbitration for any disputes concerning termination of employment must go to arbitration and stay any court proceeding about that issue.  A case that teaches us, that if one is verbose in explaining something obvious, then we may overlook its obviousness.

In RE: V.A. 

The Interstate Compact on the Placement of Children requires that when placing a child outside of the state, following a finding that a juvenile is abused, neglected, or dependent, the receiving state must first decide whether the placement is in the best interest of the child. In this case, South Carolina stated that the placement was inappropriate due to the proposed placement’s history with Child Protective Services. The trial court appeared to ignore this and did it anyway. Our Court of Appeals did not approve.

James v. Charlotte-Mecklenberg County Board of Education 

Assistant principal acts inappropriately around female teachers following a bout with colorectal cancer. He wasn’t present during his dismissal hearing due to a scheduling issue. Court of Appeals reviews the record and sees no issue with the board’s decision.    

Hutchens v. Lee 

In which the Court of Appeals reminds me why I do not now, nor do I ever intend to practice Workers Compensation law.

Court of Appeals Issues Empty Threats to Small Town Judge

The Court recently decided Sisk v. Sisk, which made the lackluster opinion that a motion for new trial must be heard before the judge that heard the original trial. In that case, the trial judge, K . Dean Black took about two years to enter a judgment in an equitable distribution action. Judge Black had previously been reprimanded by the Judicial Standards Commission for this case.

The Court of Appeals issued an unsolicited chiding to Judge Black: “This does not mean that Judge Black is totally blameless in this matter. The trial was held in June and July of 2008, and the judgment was not filed until 13 July 2010. This delay clearly contributed to the germination of the issues raised by this appeal. The record reveals that Judge Black was assigned to hold court in another county shortly after trial in this matter was conducted. However, this is not an uncommon problem in multi-county judicial districts. It cannot excuse a two-year delay in the entry of the judgment in this case. Our State Constitution provides that ‘right and justice shall be administered without favor, denial, or delay.’ N.C. Const. art. I, § 18.” In other words, shame on you smaller counties for not expediting the administration of law and if you continue to do so, the Court of Appeals will continue to do nothing about it (about two years later).

Court of Appeals publishes cases, four boring, one useful

This week, the Court of Appeals decided (and published) the following cases:

State v. Harwood

The police recieve an anomymous tip that Harwood would be at the convenience store selling marijuana. With only the tip, a photograph, and a criminal history, the police follow the defendant to an address that is other than the defendant's, pull in behind him, and performs a search. They find marijuana on him. He volunteers that there is more at the house, where they find more drugs and guns. 

The Court held that an uncorroborated tip is insufficient to establish reasonable suspicion to detain the defendant.

Patel v. Scottsdale Insurance Co.

Following a hotel fire, the insured (Patel) made a claim on his insurance company (Scottsdale). Scottsdale tried to pay him less than he felt the damages were and sued. The Court determined that it was inapproriate to sue as the policy required an appraisal process be requested and remanded to determine whether, in fact, an appraisal would be possible under the language of the policy.

The lesson here is to review your policy when you make a claim on it (and hopefully when you sign). An insurance company has the sole motivation of making money. A policy often contains several seemingly extraneous steps that you must do, or else, lose your rights under the policy. Here, the appraisal requirement is not all that unreasonable, and failing to do it may cost Mr. Patel quite a bit of money (not to mention attorney's fees). 

There was no decision regarding Patel's mother, who lives in a Victorian mansion overlooking the site of the motel.

Mostetler v. Stiltner

A social worker who was subpoenaed has no standing to challenge the Trial Court's Order compelling her to testify and produce patient records if she is not a party to the action and the patient failed to object to such privileged information.

State v. Huerta

The Court holds in part that it's perfectly fine for SBI to mix samples for testing and weight in a drug trafficking case. 

So make sure that you store your cocaine in a different place from your popcorn salt.

State v. Morston

When a trial court fails to consider a mitigating factor, there is no right to a new sentencing hearing, only further consideration of whether to consider those factors in revising sentencing (it's a little more complicated than this, mind you).

More importantly, this case taught me that mixing gin with crack cocaine and tylenol is an actual thing people do.

Visual estimates of speed not enough for stop if the arresting officer is sufficiently dumb

Recently, the Fourth Circuit declared in US v. Sowards that a stop was illegal where based solely on an officer's training and experience. In that case, the Defendant was stopped for driving approximately five miles over the speed limit as estimated by the arresting officer. Following the arrest, the Officer found a quantity of drugs in the vehicle, which the Defendant moved to suppress on the grounds that the officer had no grounds to stop the vehicle.                                                                                                                        

At the trial, the Defendant challenged the officer's ability to estimate speeds. At trial, the officer declared that Sowards' car was approximately 100 yards away. 

On cross-examination, and when questioned directly by the district court about his knowledge of distances, Deputy Elliott gave several inconsistent and incorrect answers regarding measurements: 

Q. [Government counsel] And how many feet are in a hundred yards?

A. [Deputy Elliott] There’s 12 feet in a yard.

Q. So 300 feet?

A. Correct.

Q: And how many feet are in a yard?

A: How many feet? There’s 12 feet in a yard.

THE COURT: Well, do you know what a yardstick is?

[Deputy Elliott]: Yes, sir.

THE COURT: How many inches in a yardstick?

[Deputy Elliott]: Well, on a yardstick there’s 12

inches. Well, it depends on the yard stick that you have.

THE COURT: Use your hands to indicate a yardstick.

[Deputy Elliott]: A yardstick is about that long (indicating).

THE COURT: All right. And how many inches are in it?

THE WITNESS: Four foot in a yard.                                                                                                      

US v. Sowards, No. 10-4133 at 5-6 (June 26, 2012)

The Fourth Circuit, upon reviewing the totality of the officer's basis for the stop, overturned the trial court's ruling stating that "Deputy Elliott lacked probable cause to initiate a traffic stop based exclusively on his uncorroborated and unsupported belief that Sowards was traveling 75 mph in a 70-mph zone."                                                                                                                                                                                                                                                                                                 

So, what does this mean to you? When you are stopped and charged following that stop, you should consider that the officers involved are human and can make very human errors. You should carefully weigh whether it is worth it to question the officer's judgment. In most cases, it will not affect the outcome of your case if you challenge the officer on a preliminary issue like this one. Your attorney should be prepared at a hearing to address these issues as they arise and make sure that when the officer involved doesn't know the length of a yard, the Court is aware of his shortcomings. It may make a vital difference that would affect you for the rest of your life.                                                                                                                                                                                                                                                      

Remember that making fun of police officers is sensitive business and should only be undertaken by a trained professional like myself.