girl ipsa loquitur: 08/29/2004 - 09/05/2004 Email me!

Friday, September 03, 2004

Free at Last?

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As I am sure you must know, unless you live in a cave with no outside contacts to the world (rather like Girl Ipsa without cable), the criminal charges against Kobe Bryant have been dismissed. He has to be relieved. After all, the threat to him now is just to his wallet, and not to his freedom to play basketball at Staples Center. Is this a good outcome? I'm really not sure how relieved the rest of us should be. I still think a trial was warranted, to sort the facts from the distortions...

I took a look at the civil case, filed by Jane Doe, against Kobe and found it rather disturbing. There are some practical differences between the criminal procedure and the civil procedure which warrant a closer look.

For instance, in a criminal case, the prosecution is not the representative of the victim but represents the people of the jurisdiction in which the crime occurred. The victim is just like any other witness in that case.

On the other hand, in a civil case, the victim becomes the plaintiff; a party to the lawsuit, represented by counsel. She is no longer merely a witness. The civil complaint process in federal court (as it is here) subjects the plaintiffs attorney to some fairly stringent rules regarding what may be alleged. This tends to lend merit to the truthfulness of the plaintiffs allegations. Under the Federal Rules of Civil Procedure, the attorneys can be sanctioned for any number of misdeeds (whether intended or not) and this would seem to compel the attorney to be certain that she** can prove what she assisted her client in alleging.

For instance, FRCP Rule 11 requires the attorney to attest to the truthfulness of the contentions and to the belief that they can be supported, by admissible evidence (I started evidence class last night and it has kicked my torrid affair with the law up a notch or two...), after the attorney has made a reasonable inquiry. It puts that responsibility on the attorney directly. It works like this:

The federal court says to the attorney "Hey, you better make sure that what you are telling me is going to be supported by evidence 'cause if your client is a liar, I'm gonna spank you good!"

A Rule 11 violation can be very bad news for the attorney. The court can make her pay all of the other sides fees and costs, can make her pay a punitive fine and can subject her to professional discipline which includes the possibility of suspension from practice or even (GASP!) disbarment.

Really makes you wonder what would possess Ms. Does attorneys to allege, on information and belief, after a reasonable inquiry, that they will be able to show:

"...Defendant Bryant has a history of attempting to commit similar acts of violent sexual assault on females he has just met and has thereby established a pattern and practice of such unlawful acts."

At the risk of a Rule 11 violation, 3 separate law firms have signed this allegation. That means that all those attorneys are pretty darn sure they can come up with evidence to prove that Bryant has tried to do this before. PROOF. I know it's just conjecture, but imagine along with me... What would prove such a fact?

So, there is my problem with this whole sad affair. We are left with only our imaginations to sort out what really happened. Notwithstanding Girl Ipsas being a newly minted Lakers fan, I am uncomfortable with the idea that Bryant has escaped culpability for a violent crime. On that other hand, though, it is no better resolution to leave a cloud of suspicion lingering over an innocent man. The criminal case outcome is unsatisfactory all the way around.

We are not done with this subject, intrepid reader, as I am certain there is more on the horizon. Dork (back in his proper seat, ready to fulfill his appointed duties) contends that this case will never get to trial either. But I hope it does. So we can see what PROOF the plaintiff has to offer.

Or, if there is no proof to offer, we can watch the federal court make 3 law firms go fetch a switch.

**I use the feminine pronoun because I am a "she" and I just like it better. It is totally discriminatory and I will not apologize to offended masculine pronouns but only say "Grow up.", it's just a word.

Tuesday, August 31, 2004

Activist Judge *DERAILED! by Judicial Application of ACTUAL Law

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I was surfing through the legal news this morning. Having some coffee, thinking about EVIDENCE -- class which I start on Thursday -- and contemplating a slew of civil law suits against Dave Matthews Band for battery when I noticed this interesting quote:

"We were on pins and needles on this one," said Gloria Feldt, president of Planned Parenthood Federation of America. "The judge was very aggressive in his questioning and very transparent in his articulation of his personal views on the matter. Fortunately, he chose to uphold the law."

It is printed in an article about the recent revocation of the Partial Birth Abortion Ban.

Let's start there; I do not want to discuss the partial birth abortion issue. Mainly because I believe that it is a medical issue at this point, I am not a doctor, I do not have all the necessary facts to even formulate an opinion AND it is beside my point here.

What I do want to discuss is this nonsense idea that U.S. District Judge Richard C. Casey chose to uphold the law. (I can see the bumper stickers now "It's a LAW not a choice!") How can any reasonable person continue to suggest that judges just make it up as they go along?

It has been a frequent assertion here at Girl Ipsa that "If you don't like what's going on then you need to change the law." Because the law is controlling. Not the judge and, much to my biggest Fan's chagrin, not the jury. Everything that goes on in a court room is constrained within the bounds of the law. My problem with Ms. Feldts statement is the implication that the judge might have decided it differently, based on his personal opinion.

That's poppycock.

Fan and I were talking about juries when he admitted (He was NOT read his Miranda rights and therefore I couldn't just pass summary judgment based on his confession and lock him in my garage) that he would NEVER follow the judges instruction if he sat on a jury. "You know, if the judge says 'You must reach such and such conclusion' or 'You must NOT consider the testimony I have stricken', I wouldn't listen to him. I'd just do what I wanted to do, or consider what I wanted to consider."

Talk about activist judges! Fan wants to be an activist juror.

Still, this plan of Fan tends to illuminate the idea that our system is susceptible to these random acts and opinions of its constituents. Jury nullification aside (which is not one vigilante juror like Fan) the legal process is fairly predictable on the LAW front. Obviously, the trier of fact has to make determinations as to truthfulness of testimony and as to the inferences to be drawn from evidence. Yet, even in that case the trier (judge or jury) is constrained to a reasonable standard and therefore can not just flip a coin or advance his own agenda with out regard to the reasonableness of his determination.

Apparently, in this case, U.S. District Judge Richard C. Casey holds some very strong, but still personal, opinions about the practice at issue. While to the every day guy, like our beloved Fan, the notion of deciding this case based upon the law and not on the personal sentiment of the decision maker may seem like a difficult thing to do, it is my assertion that it's just his job. The ability to remain objective, to apply the law, and to constrain ones own personal feelings are judicial skills that should, in practice, be well utilized by ALL judges.

I'd like to applaud Judge Casey for following the law, but that would be rather like applauding the bag boy at the grocery for putting my stuff in the bags. It's his job. Of course he did it.

That's what we pay him for.

** I specifically chose the word DERAILED because it's been popping up in connection with right wing conspiracy theorist rantings. Plus, it's a really fun visual: Judges in train cars, headed for some absurd, impermissible judicial legislative goal, careening off the tracks and bursting into flame. Next time they'll think twice!

"To live is so startling it leaves little time for anything else." ~ Emily Dickinson

"Ouch!" ~ Mrs. Palsgraff

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