Cyber Libel: Don’t Let your Good Name be Tarnished

Posted on April 16, 2013 by zlodmer

Internet Defamation / Cyber Libel

In this day and age of speedy information sharing and transparency, your good name is all you have. Unfortunately, the easiest and most impactful way for your good name to be tarnished is through disparaging statements made about you on the internet.

Internet Defamation is a false or misleading comment posted about you on the internet which causes damages to your reputation or business.

Defamation is different from reporting a truth that might just hurt. If you went to a restaurant and the service was slow, you are more than entitled to report about the slow service under your First Amendment rights. You can use colorful language to describe the slow service. You can vent. But if the service was slow and you start tweeting that your waitress, Jane Doe, is a total slut, you’ve published a defamatory statement.

Relief

While most website hosts (Yelp, Google, etc.) are immune to lawsuit for what users say about each other under the Communications Decency Act of 1996 (CDA). Public figures and famous people are also almost always immune from suit. So if you must go on a derogatory tweeting rampage next time your favorite football player commits a fumble, you should have no fear that he’ll go out of his way to sue you.

Individuals have no such immunity, however.

Once a victim of online defamation commences legal action, the most important relief is often obtaining an injunction requiring the person who posted the defamatory remarks to take the material off the internet. But above and beyond that, those harmed by defamatory speech online may be entitled to sizable monetary damages.

Anonymity

Message boards and review sites often allow users to post libelous, defamatory comments in total anonymity. Does that mean they are shielded from an internet defamation lawsuit? The answer is NO. Just because some coward changes his name doesn’t mean he doesn’t have to play by the rules (and/or pay the harsh penalties for breaking them!).

In any given internet libel or internet defamation case, there are legal mechanisms to go through to uncover the identity of the publisher of comments from “anonymous” sources.

Initiating Action

If you find yourself a victim of online defamation or cyber libel, contact your attorney immediately. The longer you wait from published libelous comment to initiating action, the more you open yourself up for your reputation to be tarnished online. Act fast to get an injunction and, moreover, monetary damages to punish the publisher of the defamatory material!

To STFU or Not to STFU: That is the Question

Posted on April 8, 2013 by zlodmer

My friend and colleague, Jessica Coffin Butterick, has a most colorful phrase that sums up the opinion of most criminal defense lawyers on whether or not a defendant should ever speak: “Never pass up an opportunity to shut the fuck up.” Crass it may be, but no other phrase or teaching is nearly as instructive as this one.

So to all my defendants out there wondering if they should speak up after they’ve been arrested or if they should testify on their own behalf at trial, let me make it perfectly clear. The answer is no. No. You should not.

There are always exceptions, of course. In certain extremely complex matters where the defendant is literally the only person who could possibly shed light on his own innocence, and the evidence can’t possibly be explained without his own testimony, then by all means, have at it. Take the stand. Do your thing.

But, for the vast majority of the time, whether it’s DUI, theft, assault, burglary, or any other thing that may land your tush in jail, it’s best to adhere to my friend’s adage. In case it’s not clear, let’s parse it out, shall we?

1) Never

You may be saying, “Wait…is it ok to talk….sometimes”? No. It’s not. It’s never advisable that you talk about what happened to you. “Never” means never. It means don’t do it. Cool? Cool.

2) Pass up an Opportunity

Over the course of any case, you’ll have many, many opportunities to speak about the crime that you allegedly committed. The first such opportunity will happen right there at the scene. The officer may say something to the effect of “Hey, so what happened?” You don’t need to tell him what happened. You don’t need to tell him what happened after he arrests you, cuffs you, and throws you in the back of his squad car. You don’t need to tell him what happened after he reads you your Miranda rights, and you don’t need to tell the detective what happened after you get put in your cell.

You don’t need to tell the jury your side of the story, either. The burden is solely on the prosecution to prove your guilt beyond a reasonable doubt. There are likely plenty of prosecution witnesses to cross-examine, and likewise tons of shoddy evidence to sift through. Trust me, your commentary on what happened would be suspect at best, damning at worst. Don’t help them out!! Which takes us to the third component of this adage….SHUT THE FUCK UP!!!

3) Shut the Fuck Up

When you see that jail is in your future, there’s pretty much nothing you can do to talk yourself out of that fate. For an officer to arrest you, all he needs is probable cause—enough evidence to think that you probably committed a crime. Once he’s decided that, you can only hurt yourself by speaking about the incident that got you on his radar in the first place. If you MUST speak, feel free to say “I’d like to talk to my lawyer,” or “I will not be giving any statements.” But otherwise, this is a prime example of a good opportunity to shut the fuck up.

Whereas hearsay statements (statements that are made outside of the courtroom) are usually inadmissible at trial, if it’s the statement of a defendant, you better believe it’s coming into evidence at trial. The good news is this: what you don’t say can’t hurt you (If you ever feel inclined to speak, just think about this article as the angel on your shoulder, whispering softly into your ear: “shutthefuckuuuuuuppppp”).

Once trial rolls around, there is a jury instruction that tells the jury that each witness should be judged on his own individual credibility (whether it’s the pope or the defendant on the stand). But let’s be honest, there’s always a bias against the defendant. Once you jump up on the witness stand, you’re in the hot seat. And what’s more? Once you’re in the hot seat, any information that could possibly make you look worse (including, in some cases, former convictions or even arrests) can be admitted into evidence. Why do this to yourself when you can sit tight and shut the fuck up? Let your lawyer do the talking. That’s why you’re paying him!

Conclusion

What’d we learn today, kids?

DUI CHECKPOINTS – Los Angeles

Posted on March 5, 2013 by zlodmer

It’s Saturday night. You’ve had a couple drinks. You’re trying to get home quickly and without any trouble. You’re driving carefully. And then you see the bright lights, the flashlights, the traffic, the cones, and the flashing sign, “DUI CHECKPOINT AHEAD”.

Almost every week I have someone ask me why and how DUI checkpoints are legal? The short answer is: they just are. Driving is a privilege, and there is no constitutional right that protects you from a checkpoint. So long as there is a supervising officer, the checkpoint is advertised (i.e. “DUI CHECKPOINT AHEAD”), and it’s in a reasonable location (i.e. high-traffic, obvious), then DUI Checkpoints are lawful.

One more curious requirement to make a DUI checkpoint kosher: if a driver does not wish to stop at the DUI Checkpoint, he must be allowed to leave. Careful on this one though, as such a request (especially such a request combined with slurred speech or the smell of alcohol) might, in and of itself, be considered probable cause for the officer to stop and detain the driver for suspicion of DUI.

DUI Checkpoints are a win-win for the state. In one fell swoop they keep intoxicated drivers off the roads while simultaneously generating some much-needed income in the form of restitution fees, court fees, and fines that are ultimately paid upon conviction.

So does that mean DUI Checkpoints are a lose-lose for the driver? Not necessarily. Being arrested at a DUI Checkpoint does not automatically mean you have a losing case. In any DUI case in California, there are two counts: BAC level (Blood Alcohol Content), and impairment level. While BAC is measured by blood, breath, or urine, the law requires impairment to be observed / observable. The most obvious way an officer can observe if a driver is too impaired to drive is by—you guessed it—watching him drive.

In the case of checkpoints, the checkpoint teams set up cones and manufacture new lanes. Drivers entering the checkpoints inch along before getting probed with flashlights. Unless you rear-end the driver in front of you, it’s pretty hard for an officer to observe “bad driving” in this scenario. There is simply no room to “observe” any bad driving. So if you do get nabbed at a checkpoint, don’t lose hope!

It goes without saying: if you’re out drinking and you need a ride, call a friend, get a taxi, or use uber.com to get home safely. If you insist on driving when sobriety is even slightly at issue, pull over and whip out your smartphone; SoCal checkpoints are often advertised before they go into effect. Check out @CheckpointsDUI on twitter for announcements of DUI checkpoints.

Be safe out there. Don’t drive impaired. And be prepared for checkpoints!

Medical Marijuana Dispensaries to Close

Posted on February 6, 2013 by zlodmer

Many herb-blazin’ Californians procure their OG Kush and Skywalker from their local dispensary. For them, it’s quite convenient: If you’re having a “Step out the house, stop short, OH NO! Went back in, I forgot my indo!” moment, there’s no need to dilly-dally or run through an alley to get your fix. Simply go to the corner pot store, pony up some cash, and walk away with your sweet, green reefer.

On the flip side, there are a great number of vocal, angry Californians who have been adversely affected by the high concentration of pot shops in California. A Hollywood resident famously testified during last year’s Los Angeles City Council meeting about banning pot shops in L.A. that she had to literally dodge clouds of marijuana smoke in the streets while walking her baby daughter in a stroller. Not cool.

Shortly after that meeting, the L.A. City Council indeed decided to ban dispensaries and do away with the “local pot shop” model within the city limits. However, after an aggressive backlash from the medical marijuana community, the council repealed its decision. Simultaneously, a case that has been stumping state and appellate courts for years (representing an issue that has been stumping state and appellate courts for the better part of a decade), The City of Riverside v. Inland Empire Patients Health and Wellness Center, was sent up to the Supreme Court to decide whether it was legal for a municipality to ban pot shops.

Despite many twists and turns, bans and overturns, it looks like the high court in California (no pun intended) is finally ready to weigh in. And all sources indicate that the court is prepared to have dispensary owners pack their spliffs and go.

But how can this be? Isn’t it legal to cultivate and possess pot for medical use in California? Yes, it is. However, there is nothing in the legislation that OK’d the corner-store approach to dispensing the marijuana. Medical marijuana laws in California certainly allow for the collective approach. That is, lawmakers noted that not every person who needs medical marijuana is adept at farming, cultivating, trimming, lighting, and drying pot. So they allowed for small groups to facilitate the cultivation and distribution of marijuana among members of the group. For example, one medical marijuana patient in the collective could provide money and align with another medical marijuana patient in the collective to provide cultivating services in exchange for the financial donation. It should be noted that in this model, the patient accepting money was not legally permitted to make a profit.

Instead of having one patient provide money and another provide soil, seeds, and labor, the pot shop industry was born and quickly blossomed. Collectives today hardly resemble the small-town cooperatives intended by the legislature. Instead, storefront dispensaries are full-on commercial enterprises, making money hand over fist.

Anyway, it’s all fun and games ’till someone blows ganja smoke in a stroller. As the California Supreme Court will likely allow municipalities to regulate (read: close) dispensaries within their jurisdictions, expect to see even more tumult from the pro-medical-marijuana side. Patients will be in an uproar over access. Now that the corner pot shop is closed, how can patients get their Jack-Herer-cookies and hash oil? What if they don’t associate with cultivators personally?

My guess is that the marijuana industry will find another way to spread ganja up and down The Golden State. Delivery service, small-group associations, marijuana farmers markets. There are plenty of possibilities. After all, people love marijuana, and those who have marijuana love money. So when the Supreme Court of California closes the door on your favorite pot shop, take three deep breathes, and just chill…’till the next episode.

How Social Media Can Ruin Your Case

Posted on January 3, 2013 by zlodmer

How Social Media Can Ruin Your Case

Omeisha Daniels’ case seemed to be going perfectly. She was injured in a car accident and her lawyers proved up all her damages. Additionally, Ms. Daniels showed how the rest of her life would be forever changed for the worse as a result of this accident….and the jury awarded her substantial money for pain and suffering. $237,000 to be exact!

But despite her contention during trial that the lacerations on her forehead that turned into a scar would compromise her ability to do her job as a stylist, Ms. Daniels’ social media posts were a bit more optimistic. Way more optimistic. Straight up sunny-side-of-the-street optimistic, in fact.

Mot notably, Daniels tweeted about an #epic weekend in New Orleans, complete with pictures of her gallivanting on the beach with her friends. In another post, she said “I’m starting to love my scar”. Great news for someone who isn’t alleging a life-altering, permanently-disabling injury! But these posts ultimately resulted in the judge lowering Ms. Daniels’ award from $237,000 to $142,000. For those keeping score at home, that’s almost $100,000. One…hundred…grand…..lost….over twitter posts. #bummer

Here’s the deal: when a plaintiff is awarded pain and suffering, the jury is acknowledging that but for the wrong of the defendant, the plaintiff’s life wouldn’t be permanently altered. Because the plaintiff’s life is permanently altered, and because we can’t go back in time and undo the wrong committed upon her, she’s entitled to the next best thing to compensate for this permanent wrong: money. Ms. Daniels’ posts, however innocuous they may have seemed at the time of posting, showed the world that “everything’s OK,” which flies in the face of “permanently wronged” (physically and emotionally).

Sadly, I’m sure Ms. Daniels was just trying to be positive in the face of adversity. But in this day and age of transparency-through-social-media, if you’re a party in litigation, it’s best to simply take a little sabbatical from social media and stop posting. Anything you post can and will be used against you.

While I’ve previously admonished those involved in custody or divorce cases to keep a tight lip, Ms. Daniels’ unfortunate turn of events has signaled that social media’s reach extends far beyond the family law courts. It can turn any case upside down.

You want to spread good news? Call a friend, or do it in person over lunch. You want to keep tabs on what all your twitter homies are talking about? That’s cool, too! Read away. You can even re-tweet articles and links so long as they have nothing to do with the subject matter of your litigation.

But don’t be an #idiot. My advice is simple: get off twitter and facebook and find a new distraction if you’re a party to any type of litigation. What you don’t say can’t hurt you.

5 Reasons Why the L.A. Court Closures Suck

Posted on November 16, 2012 by zlodmer

Yesterday, it was announced that 10 courts in Los Angeles County will close in June, 2013, as part of an effort to slash funds and fight the county’s mounting deficit. There are plenty of reasons why this is horrible, of course. But here are the top five reasons why the imminent court closures suck.

1) BURDENSOME TRAVEL: The beauty of the almost-defunct system was that all citizens had access to the justice system. Live in Pomona? Got beef with someone who owes you some money? No worries! All you had to do was roll down to the Pomona court, fill out some forms, and you had access to the courts, a judge, and a jury (and even a court reporter). Now, those same Pomonans will have to find a way to beat the traffic and head downtown for the same access. Even if they don’t own a car. Even if they can’t afford the gas. And that sucks.

2) LOST JOBS: It should go without saying that many people will be out of a job once these courts close. Anyone who knows anything about court—whether it’s from serving jury duty, watching Law and Order, or litigating a case—knows that a lot of people are involved in making the judicial system tick. Judges, bailiffs, clerks, receptionists, security guards, parking gurus. Each court that closes will have to axe an entire community’s worth of jobs. Now multiply that by 10. THAT sucks.

3) LONG LINES: Remember Communist Russia? Remember those images of people waiting in lines—lines that extended endlessly down the block, then weaved ‘round the corner? We used to eat Twinkies and laugh at such a proposition. (Notwithstanding the fact that Hostess just declared bankruptcy and we will no longer be eating Twinkies…) This is very much the future of the justice system in L.A. Expect to wait in long-ass-Communist-era lines for just about anything. With 10 courthouses less worth of staff, but the same amount of conflict and controversy, lines will be outrageous. Need an extension? Get in line. Need to file a case? Get in line. Need to talk to a live person about something? Get in line and get comfortable. Lines suck. Always. But the lines you’re gonna’ have to navigate through come June 2013 will give a whole new meaning to the word “suck”.

4) TRIAL DELAYS: One of the biggest complaints I hear about the justice system in Los Angeles is that it’s slow-moving. The courts are already back-logged. Slashing 10 courthouses will not improve the situation. It will, of course, make it much, much worse. Cases that require immediate attention, like injunctions, may not get it (which could prove fatal to some cases). And cases that should wrap up quickly and smoothly will be neither quick nor smooth. Unhappy litigants + overworked court staff trying to push cases through the mill = SUCKS!

5) JUSTICE WILL NOT BE SERVED: No court case is worth the time and effort trying it without witnesses. While the court closures present obvious problems for lawyers, staffers, and litigants, perhaps the biggest problem with this whole scenario is trying to put on cases without witnesses. Witnesses make the case. And with long lines, long commutes, long waits, and delays, don’t expect witnesses to play along in L.A. County’s budget-cutting games. With added stresses and inconveniences brought upon by the court closures, you can expect witnesses to dodge process servers. Expect subpoenas to be ignored, and expect incidents of contempt of court to rise when these closures occur. Expect cases to suffer. Justice will not be served. Nothing sucks more than that.

Honestly….Who Shoots a Naked College Student?!?!

Posted on October 8, 2012 by zlodmer

Honestly….Who Shoots a Naked College Student?!?!

You know that something is sorely wrong when a college freshman at the University of South Alabama is shot and killed by campus police for being naked and acting “erratically”.

That’s the story, ladies and gentlemen! Police heard a loud banging noise on the window of the station this past Saturday at 1:23 a.m. When this esteemed campus policeman went out to investigate the strange sounds, said the school, “he was confronted by a muscular, nude man who was acting erratically.”

I’m just gonna’ go ahead and call bullshit right now. Gilbert Thomas Collar, 18, was a freshman at South ‘Bama, and from the picture on CNN, he looks pretty scrawny (Editor’s note: His mom released a statement that he was 5’7’’ and weighed 135 pounds. Those figures make Collar officially underweight according to the relevant national indexes).

Moreover, the dopey spokesperson for the university reiterated that this monster of a naked man kept charging at the officer despite many admonitions to stop.

Anyone who’s ever seen a movie with cops in it knows that the men in blue can’t just whip out their guns and shoot anyone for any reason. There’s a protocol. A checklist. A rising series of situations that dictate when and how it becomes appropriate for an officer to initiate deadly force.

What happened on Saturday was so far from being that type of situation, it’s disgusting.

While “erratic” behavior can sometimes (SOMETIMES) justify the use (SOMETIMES) of deadly force (SOMETIMES…meaning IN RARE OCCAISIONS), there must be erratic behavior combined with some perceived threat. And by perceived threat, I mean credible threat of death or great bodily harm. I’m trying to find what the credible threat was in the case of a naked freshman South ‘Bama student in a “challenge” stance. It seems more like a scene out of a strange John Waters movie.

When the police talk of “credible threat of death or great bodily harm,” what they usually mean is that a suspect is armed. So again, a judge putting himself in the shoes of the average police officer might note that in circumstances where a suspect is *armed*, is acting erratically, and has continually ignored admonitions to stand down, using a gun may be an appropriate means of subduing the suspect.

Compare: Gilbert Coller wasn’t armed. He didn’t have a gun. He didn’t have a knife. He didn’t have a bomb. HE DIDN’T HAVE UNDERWEAR! He was naked!! I don’t care if he was a Mixed Martial Arts champion. If you’re a cop, and you have a gun, even if you think the suspect is acting erratically, it is totally inappropriate to open fire against someone who is naked without first calling in for backup and trying to take him down, cuff him, and arrest him.

Campus police may not be the brightest lights on the force, but I am astounded at the stupidity and gun-happy hijinks of the unnamed officer that have contributed to the death of this young man with the rest of his life in front of him.

To the University of South Alabama: Shame on you. Lawyer up and settle this wrongful death case early. Because if this thing goes to trial, you’re gonna’ let your whole institution go bankrupt.

To those of us who are not campus police: Don’t act all erratic when you’re naked, banging on the windows of the police station. And be very, very concerned with what just happened in Mobile. This is tragedy. This is the very definition of senseless violence and death.

How to Fight a Traffic Ticket in Los Angeles

Posted on September 6, 2012 by zlodmer

How to Fight a Traffic Ticket in Los Angeles

OK, so how do you fight a traffic ticket in Los Angeles?

Just because some cop throws on the lights, pulls you over, and scribbles out a citation doesn’t automatically mean you should plead guilty to a traffic violation. Often, it’s a good idea to go to court, put on your gloves, and fight! Here’s how:

1) WHEN YOU GET PULLED OVER, if there’s any doubt in your mind that the violation is not legit, start your case right then. Take pictures, gather evidence, line up witnesses, record statements…anything that might help you beat the case when it goes to a judge. Obviously, be cordial to the officer and wait until he’s done writing you up before you start building your case. On a related note, feel free to write a journal or an email to yourself about the incident. The closer you can do that from when the incident happened, the more accurate it will be months down the line when you’re pleading your case in court.

2) GO TO COURT ON THE DATE LISTED ON YOUR CITATION. Dress nicely and conservatively. Men: suit and tie. Women: pants-suit or modest skirt/dress. Wear flats or low heels. Keep the stilettos at home. You’ll have to check in with the clerk or bailiff (each courtroom has its own culture). Most often, someone will “take roll,” and when you hear your name, indicate that you are present.

When your case is called, approach the judge and, when prompted, enter a plea of not guilty. You will be given a new court date. Often there is no other paperwork, just the judge telling you the new court date, so write it down, put it in your iPhone, set your reminders. DO NOT MISS THE NEW COURT DATE. Leave the courthouse. Have a sandwich.

NOTE: By simply pleading not guilty and getting a new court date, your chances of “beating” the ticket have improved dramatically because the officer now has to come to court on the new date to testify against you. If the officer who cited you was a traffic cop, he’ll probably be there. But if he’s a routine patrol officer, chances are he’s got more important fish to fry than the person who (allegedly) made a rolling stop in front of him.

3) WORK YOUR CASE UP. Get your witnesses prepped, get your color photos printed out, and get your arguments ready. And if you got a speeding ticket, send a “request for disclosure letter” or a subpoena to the prosecutor and the citing officer. Under California law, they are entitled to give you the information you seek if it’s reasonably calculated to be used against you in your case. So ask for the kitchen sink: copy of the citation, information about the radar used (maintenance records, make, model, calibration records, training standards for use of the radar, etc.). NOTE: if you properly serve your subpoena (as evidenced by a proper and complete proof of service) and don’t get a proper response at trial, then you can argue failure to disclose information; this is often the best grounds for your case being dismissed.

4) RETURN TO COURT ON THE NEW DATE. FIGHT THE POWER. You’re used to the drill now. Check in. Respond when your name is called. This time, the bailiff will usually separate those contesting tickets into two categories. In group A, he’ll list the folks whose officers failed to show up to court, and in group B, he’ll list the folks whose officers are present. If you’re in lucky group A, don’t celebrate just yet. You still have to go in front of the judge to make your dismissal official. But once the judge says “case dismissed,” you’re free to leave and you can put this whole ticket situation in your proverbial rear-view mirror.

If you’re in the more-unlucky group B, the bailiff will allow you to exchange exhibits that may be used at trial. He will pair you up with the officer that ticketed you and you will make the exchange. Then it’s time for your “trial.” I put it in quotes because it’s in front of the judge, and they usually simply take the officer’s testimony at face value and find you guilty. USUALLY. If you have a skilled attorney who understands the vehicle code, is able to effectively cross-examine the officer, and can present your evidence in a sharp way, then things could turn out differently.

5) LISTEN TO KENNY. Like Kenny Rogers said, you’ve got to “know when to hold ‘em, know when to fold ‘em.” Traffic tickets are a way (surprise!) for cities and counties to make money. If it ends up COSTING the jurisdiction more money to fight the case (i.e. a patrol officer in metro LA has to take his day off and the county needs to pay another officer over-time to cover his shift), chances are your citing officer may not show up and the case will be dismissed. If you get pulled over on your way back from apple-picking in Solvang….chances are the cops have little else to do but fight tooth and nail to work the system into collecting on your violation. Be smart and choose your battles.

Good luck out there! And drive safely! (If you don’t get tickets in the first place, you won’t have to worry about all this stuff)

Gym, Tan, Laundry….Lawsuit

Posted on August 23, 2012 by zlodmer

Gym, Tan, Laundry….Lawsuit

There’s quite a “situation” brewing over phrases like “Gym, Tan Laundry (GTL)” and “Twinning”. Pun most definitely intended. MTV’s parent company, Viacom is in the process of thwarting Mike “The Situation” Sorrentino’s plans to capitalize on these catchphrases he made famous playing ~~a suuuuuper-tanned-and-muscular dude with abs of steel and hair of glue~~ himself on MTV’s reality show Jersey Shore.

Specifically, The Situation recently filed paperwork to trademark the phrase “Twinning” with the hope to plaster it on shirts, stickers, folders, and whatever else the tweens need these days as they prepare to go back to school. For those keeping score, “Twinning” is a portmanteau (the act of making two words into one) inspired by a “winning” moment on the show during an escapade with twins. “Twins! Winning! Twinning!” Voila.

But what The Situation may have in the sculpted abdomen department, he clearly lacks in contract-reading ability. Like most every reality “star” before him, prior to filming the inaugural season of Shore, Sorrentino signed a contract which, by its terms, granted the rights in “all ideas, gags, suggestions, themes, plots, stories, characters, characterizations, dialogue, text, designs, graphics, titles, drawings, artwork, digital works, songs, music, photography, video, film and other material whether or not fixed or reduced to drawing or writing, at any time heretofore or hereafter created or contributed by me which in any way relate to ["Jersey Shore"]… .”

So…yeah, basically everything he says, does, writes, eats, poops, and drinks in front of those omnipresent cameras is owned by MTV. Including (but not limited to) “Twinning,” of course.

Here’s the thing about contracts: they’re awesome. The reason we enter into contracts is to dictate actions in the future and spell out the consequences for acting contrary to the agreement (if such penalty isn’t dictated by a statute, ordinance, or other regulation).

We enter into contracts every day. Next time you hastily pull into that parking spot in the mall, before you bolt out to scout the aisles of Nordstrom and Victoria’s Secret, read the back of your parking ticket. Notice that by taking that little ticket, the premises owner explicitly limits its liability—for theft, water damage, fire, or anything else that might go wrong while you diligently search for deals on designer goods and eat soft, fluffy cinnamon pretzel bites. Chances are you didn’t even read the contract. You surely didn’t go over the terms with your lawyer (Shame on you!).

When you got home from the mall, you probably installed the latest version of iTunes. Remember checking the box at the bottom and agreeing to “all the terms and conditions” before the download would commence? That, too, was a contract (with definitions of future conduct and how to proceed when unforeseen things may go awry).

But, for better or for worse, The Situation’s contract is wayyyyyy more valuable than a parking ticket contract or your iTunes contract. The potential for ca$h that may be generated from “Twinning” is a much bigger deal to a great number of important people than the liability potential of someone vandalizing your Honda Civic. And for that reason, Sorrentino was given a detailed contract (and presumably reviewed it with competent counsel) with clear-as-day language in it.

Why he’s trying to misappropriate catchphrases that clearly stopped belonging to him the moment they left his lips is confusing, and it’s ultimately a big waste of time, lawyering, and money.

That said….dude’s got great abs. There is no denying that.

Mental Illness and the Batman Massacre

Posted on August 1, 2012 by zlodmer

Mental Illness and the Batman Massacre

Since James Holmes’ now-infamous killing spree during a midnight showing of The Dark Knight Rises last month, we’ve been fixated on what’s going to happen as our justice system inherits this sad mess.

Our collective reaction to this outrageous act of senseless violence has been a mix of compassion for the victims, questioning of our gun control laws, and curiosity about what the shooter’s fate will be in court. With that curiosity, there has also been much speculation and legal misunderstanding. Flip through any channel and you’ll hear words tossed out like “schizophrenia,” “competency,” “death penalty,” and “first degree murder.” Some of the victims were outraged when the beady-eyed-red-haired shooter waived time for arraignment during his first hearing. One victim, 22-year-old Carli Richards, thinks “death by firing squad would be totally justified” as punishment for the shooter.

We’ve reacted with a great deal of emotion and interest in Mr. Holmes’ fate. But at the end of the day, there are two distinct issues in this case: 1) Is Mr. Holmes competent to stand trial? And, 2) If he is competent, was he legally insane at the time of the killing spree?

COMPETENT TO STAND TRIAL

Competency is different than insanity in that the analysis of whether a defendant is competent has to do with his mental state NOW (not at the time of the incident).

One is considered competent to stand trial if he is able to rationally and factually understand the charges against him, and consult meaningfully with an attorney to aid with his defense. Whether one is “competent” has nothing to do with the merits of the case, the charges against him, or his possible defenses. It is a threshold issue that must be dealt with prior to hearing evidence, arguing substantive motions about the facts of the case, and the like.

When a defendant is found NOT competent to stand trial, the judge essentially puts the case on hold until the defendant is declared competent. At that point, the defendant is sent for diagnosis and treatment until he is declared competent. For example, Jared Loughner, the defendant who killed six and shot Rep. Gabrielle Giffords last year was declared not competent to stand trial and is currently undergoing treatment for schizophrenia in a Missouri prison facility. When he is fit to stand trial, the trial will commence.

THE INSANITY DEFENSE

Whereas the question of competency looks at a defendant’s current mental state, a plea of not guilty by reason of insanity looks at the defendant’s mental state AT THE TIME OF THE INCIDENT.

If a defendant is found competent to stand trial, but he can show that at the time of the incident he was suffering from mental illness so intensely that he could not distinguish between right and wrong, he may plead not guilty by reason of insanity. After the prosecution presents evidence that the defendant committed the act(s) in question, it’s up to the defendant to show proof of his diseased mind.

In the case of the Batman massacre, many armchair legal analysts point out facts that Mr. Holmes was “educated,” and “bright” as evidence that he was not legally insane at the time of the killings. Others are quick to point out that he was seeing a psychiatrist, or that he composed a notebook detailing his planned attack, which tends to show he was crazy.

In reality, assuming Mr. Holmes is found competent in the first place, at this juncture, we (the public) have no idea what the psychiatric evidence will show about his mental state at the time of his heinous act. We want answers, and we want answers now, but unfortunately we’ll all just have to wait and see. Sadly, the process could take many, many months.

MENTAL ILLNESS

For many, Mr. Holmes’ bright orange hair and dazed look in his mugshot and court hearings have brought a discussion of how mental illness impacts our criminal justice system for the first time. To be certain, mental illness is not new to the criminal justice system. Every day, hundreds of mentally ill defendants are tried for a great range of crimes in our courts. Just because one is “competent,” doesn’t mean that he is therefore not mentally ill. Many mentally ill defendants have baseline competency, yet still suffer from a huge range of mental problems and disorders. Likewise, just because someone is mentally ill doesn’t make them legally “insane.” In fact a very small percentage of criminal defendants assert the insanity defense, and an even smaller percentage (infinitesimal) is acquitted under the same.

It’s my hope that, in addition to greater scrutiny of our gun control laws, the Aurora tragedy will highlight mental illness in this country. What is it? Where does it come from? How do we recognize it and treat it effectively before innocent people are killed? The guns certainly killed the innocent victims in Aurora, but the man shot the guns. Let’s learn about the man.