Tuesday, June 27, 2006

There were giants on the bench in those days...

Just a quickie...the finest, most ornamental, filligreed, prolix and delightful example of legal wordsmithery since the Magna Carta. You'll laugh! You'll cry! You'll scratch your head as Justice Carlin of the New York Supreme Court denies relief to a woman and her two injured babies who were run over by a taxicab! Ladies, gentlemen, lingo-slingers of every stripe and persuasion, I give you Cordas v. Peerless Transportation Co., 27 N.Y.S. 2d 198 (N.Y. City Ct. 1941).

CORDAS et al.



City Court of New York, New York County.

April 3, 1941.

Nicholas Athans and Hyman Muss, both of New York City, for plaintiff.
Louis L. Resnick and Harry P. Rich, both of New York City, for defendant.

CARLIN, Justice.

This case presents the ordinary man--that problem child of the law--in a most bizarre setting. As a lowly chauffeur in defendant's employ he became in a trice the protagonist in a breach-bating drama with a denouement almost tragic. It appears that a man, whose identity it would be indelicate to divulge was feloniously relieved of his portable goods by two nondescript highwaymen in an alley near 26th Street and Third Avenue, Manhattan; they induced him to relinquish his possessions by a strong argument ad hominem couched in the convincing cant of the criminal and pressed at the point of a most persuasive pistol. Laden with their loot, but not thereby impeded, they took an abrupt departure and he, shuffling off the coil of that discretion which enmeshed him in the alley, quickly gave chase through 26th Street toward 2d Avenue, whither they were resorting 'with expedition swift as thought' for most obvious reasons. Somewhere on that thoroughfare of escape they indulged the stratagem of separation ostensibly to disconcert their pursuer and allay the ardor of his pursuit. He then centered on for capture the man with the pistol whom he saw board defendant's taxicab, which quickly veered south toward 25th Street on 2d Avenue where he saw the chauffeur jump out while the cab, still in motion, continued toward 24th Street; after the chauffeur relieved himself of the cumbersome burden of his fare the latter also is said to have similarly departed from the cab before it reached 24th Street. The chauffeur's story is substantially the same except that he states that his uninvited guest boarded the cab at 25th Street while it was at a standstill waiting for a less colorful fare; that his 'passenger' immediately advised him 'to stand not upon the order of his going but to go at once' and added finality to his command by an appropriate gesture with a pistol addressed to his sacro iliac. The chauffeur in reluctant acquiescence proceeded about fifteen feet, when his hair, like unto the quills of the fretful porcupine, was made to stand on end by the hue and cry of the man despoiled accompanied by a clamourous concourse of the law-abiding which paced him as he ran; the concatenation of 'stop thief', to which the patter of persistent feet did maddingly beat time, rang in his ears as the pursuing posse all the while gained on the receding cab with its quarry therein contained. The hold-up man sensing his insecurity suggested to the chauffeur that in the event there was the slightest lapse in obedience to his curt command that he, the chauffeur, would suffer the loss of his brains, a prospect as horrible to an humble chauffeur as it undoubtedly would be to one of the intelligentsia. The chauffeur apprehensive of certain dissolution from either Scylla, the pursuers, or Charybdis, the pursued, quickly threw his car out of first speed in which he was proceeding, pulled on the emergency, jammed on his brakes and, although he thinks the motor was still running, swung open the door to his left and jumped out of his car. He confesses that the only act that smacked of intelligence *200 was that by which he jammed the brakes in order to throw off balance the hold-up man who was half-standing and half-sitting with his pistol menacingly poised. Thus abandoning his car and passenger the chauffeur sped toward 26th Street and then turned to look; he saw the cab proceeding south toward 24th Street where it mounted the sidewalk. The plaintiff-mother and her two infant children were there injured by the cab which, at the time, appeared to be also minus its passenger who, it appears, was apprehended in the cellar of a local hospital where he was pointed out to a police officer by a remnant of the posse, hereinbefore mentioned. He did not appear at the trial. The three aforesaid plaintiffs and the husband-father sue the defendant for damages predicating their respective causes of action upon the contention that the chauffeur was negligent in abandoning the cab under the aforesaid circumstances. Fortunately the injuries sustained were comparatively slight. Negligence has been variously defined but the common legal acceptation is the failure to exercise that care and caution which a reasonable and prudent person ordinarily would exercise under like conditions or circumstances. It has been most authoritatively held that 'negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all.' Cardozo, C. J., in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 345, 162 N.E. 99, 101, 59 A.L.R. 1253. In Steinbrenner v. M. W. Forney Co., 143 App.Div. 73, 127 N.Y.S. 620, 622 it is said, 'The test of actionable negligence is what reasonably prudent men would have done under the same circumstances'; Connell v. New York Central & Hudson River Railroad Co., 144 App.Div. 664, 129 N.Y.S. 666, 669, holds that actionable negligence must be predicated upon 'a breach of duty to the plaintiff. Negligence is 'not absolute or intrinsic,' but 'is always relevant to some circumstances of time, place or person.'' In slight paraphrase of the world's first bard it may be truly observed that the expedition of the chauffeur's violent love of his own security outran the pauser, reason, when he was suddenly confronted with unusual emergency which 'took his reason prisoner'. The learned attorney for the plaintiffs concedes that the chauffeur acted in an emergency but claims a right to recovery upon the following proposition taken verbatim from his brief: 'It is respectfully submitted that the value of the interests of the public at large to be immune from being injured by a dangerous instrumentality such as a car unattended while in motion is very superior to the right of a driver of a motor vehicle to abandon same while it is in motion even when acting under the belief that his life is in danger and by abandoning same he will save his life'. To hold thus under the facts adduced herein would be tantamount to a repeal by implication of the primal law of nature written in indelible characters upon the fleshy tablets of sentient creation by the Almighty Law-giver, 'the supernal Judge who sits on high'. There are those who stem the turbulent current for bubble fame, or who bridge the yawning chasm with a leap for the leap's sake or who 'outstare the sternest eyes that look outbrave the heart most daring on the earth, pluck the young sucking cubs from the she-bear, yea, mock the lion when he roars for prey' to win a fair lady and these are the admiration of the generality of men; but they are made of sterner *201 stuff than the ordinary man upon whom the law places no duty of emulation. The law would indeed be fond if it imposed upon the ordinary man the obligation to so demean himself when suddenly confronted with a danger, not of his creation, disregarding the likelihood that such a contingency may darken the intellect and palsy the will of the common legion of the earth, the fraternity of ordinary men,--whose acts or omissions under certain conditions or circumstances make the yardstick by which the law measures culpability or innocense, negligence or care. If a person is placed in a sudden peril from which death might ensue, the law does not impel another to the rescue of the person endangered nor does it condemn him for his unmoral failure to rescue when he can; this is in recognition of the immutable law written in frail flesh. Returning to our chauffeur. If the philosophic Horatio and the martial companions of his watch were 'distilled almost to jelly with the act of fear' when they beheld 'in the dead vast and middle of the night' the disembodied spirit of Hamlet's father stalk majestically by 'with a countenance more in sorrow than in anger' was not the chauffeur, though unacquainted with the example of these eminent men-at-arms, more amply justified in his fearsome reactions when he was more palpably confronted by a thing of flesh and blood bearing in its hand an engine of destruction which depended for its lethal purpose upon the quiver of a hair? When Macbeth was cross-examined by Macduff as to any reason he could advance for his sudden despatch of Duncan's grooms he said in plausible answer 'Who can be wise, amazed, temperate and furious, loyal and neutral, in a moment? No man'. Macbeth did not by a 'tricksy word' thereby stand justified as he criminally created the emergency from which he sought escape by indulgence in added felonies to divert suspicion to the innocent. However, his words may be wrested to the advantage of the defendant's chauffeur whose acts cannot be legally construed as the proximate cause of plaintiff's injuries, however regrettable, unless nature's first law is arbitrarily disregarded. Plaintiff's attorney in his brief cites the cases of Grunfelder v. Brooklyn Heights Railroad Co., 143 App.Div. 89, 127 N.Y.S. 1085, and Savage v. Joseph H. Bauland Co., 42 App.Div. 285, 58 N.Y.S. 1014, as authorities for a contrary holding. Neither case is apposite in fact nor principle. In the classic case of Laidlaw v. Sage, 158 N.Y. 73, 89, 90, 52 N.E. 679, 685, 44 L.R.A. 216, is found a statement of the law peculiarly apropos: 'That the duties and responsibilities of a person confronted with such a danger are different and unlike those which follow his actions in performing the ordinary duties of life under other conditions is a well-established principle of law. * * * 'The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily.' It is there said that this rule seems to be founded upon the maxim that self-preservation is the first law of nature, and that, where it is a question whether one of two men shall suffer, each is justified in doing the best he can for himself'. (Italics ours.) Kolanka v. Erie Railroad Co., 215 App.Div. 82, 86, 212 N.Y.S. 714, 717, says: 'The law in this state does not hold one in an emergency to the exercise of that mature judgment required of him under circumstances where he has an opportunity *202 for deliberate action. He is not required to exercise unerring judgment, which would be expected of him, were he not confronted with an emergency requiring prompt action'. The circumstances provide the foil by which the act is brought into relief to determine whether it is or is not negligent. If under normal circumstances an act is done which might be considered negligent it does not follow as a corollary that a similar act is negligent if performed by a person acting under an emergency, not of his own making, in which he suddenly is faced with a patent danger with a moment left to adopt a means of extrication. The chauffeur--the ordinary man in this case--acted in a split second in a most harrowing experience. To call him negligent would be to brand him coward; the court does not do so in spite of what those swaggering heroes, 'whose valor plucks dead lions by the beard', may bluster to the contrary. The court is loathe to see the plaintiffs go without recovery even though their damages were slight, but cannot hold the defendant liable upon the facts adduced at the trial. Motions, upon which decision was reserved, to dismiss the complaint are granted with exceptions to plaintiffs. Judgment for defendant against plaintiffs dismissing their complaint upon the merits. Ten days' stay and thirty days to make a case.

Sunday, June 25, 2006

The expanding universe....and everything else.

The picture at the left is the 100 meter radio telescope located at Green Bank, West Virginia. It was in 1959 in this remote Appalachian valley that science began to transcend the visual, discerning the nature of our expanding universe at frequencies not visible to the human eye. It was in this selfsame bucolic mountain valley on June 23, 2006, that I discerned the nature of an expanding brake caliper piston. Carefree, like a fucking flatland moron, I rode the brake as I descended from the mountain above to the valley below. And as I came to a stop at the Visitor Center at Green Bank, I was greeted by a billow of smoke from beneath the right front fender of my super-annuated Ford Ranger. It was that same phenomenon of expansion, generated by the heat from my abused braking system, that caused the brake caliper piston (which closes and (ideally) opens the caliper holding the brake pads against the disc, thus slowing the rotation of the wheels and bringing one's vehicle to a safe and controlled stop) to expand while in the "closed" position, essentially setting my brake pads on fire.

My musings on the serendipitous juxtaposition of these sublime and mundane examples of expansion were (I now see in retrospect) a defense mechanism against the well and truly fucked position in which I found myself. I was deep in the mountains with no brakes and a truck that was threatening to burst into flames the next time I tried to slow down.

There followed one of those karmic "good news-bad news" ping-pong matches that the universe occasionally plays with mere mortals such as we.

Unfortunately, I was smack-dab in the middle of the National Radio Quiet Zone, where cell phone reception is but a futuristic rumor. Fortunately, I believe that cell phones are the tool of the Devil himself, and I won't even talk on one, much less own one. Fortunately, there was a bank across the street, whose employees generously allowed me to call AAA for emergency road service. Unfortunately, it was 2:00 on a Friday afternoon, and I was 3 hours from my hotel.

Fortunately, the tow truck operator showed up promptly, with news that he had located a brake caliper for my truck. Unfortunately, AAA had told him my truck was a 3/4 ton pickup, which it is not. Fortunately, his shop was just a few miles up the road, so he could still locate the right part and get me rolling. Unfortunately, the parts store had a left hand caliper, but NOT a right hand caliper for my Ranger. Fortunately, he was willing to take a look at the problem and see if anything could be done. Unfortunately, he had to "run into town" before he could assess my problem. Fortunately, the town he had to run into was only 10 miles away. Unfortunately, this errand would consume "about an hour". Fortunately, he returned in 45 minutes. Unfortunately, still no brake caliper. Fortunately, he pulled the wheel and found that the passage of time and the resulting dissipation of heat had freed up my hitherto expanded brake caliper piston.

That's it. No more "unfortunately." I win. I beat the pole-smoking universe at its own capricious game.

And I did scurry and scamper over and about the Appalachian Mountains, enjoying views such as this, and remembering at all times to use 2nd gear when descending steep mountain grades.

Thursday, June 15, 2006

A liberal looks at the World Cup

I guess I'm a typical American sports fan, albeit a liberal one. Football, baseball, the major golf tournaments, college hoops during March Madness, the occasional auto race, the Olympics. That's more than enough to occupy my time from season to season. Like most Americans, I don't follow soccer, save for every four years when the World Cup penetrates my consciousness.

But after six years of the Dim Son administration, the world looks at America differently, and the World Cup serves as the lens which most closely approximates how they see us.

This is not baseball, where our "World Series" ignores Latin America, Japan, and other countries where baseball is played, and played well. It's not American football, beloved at home, but widely ignored the world over. It's not even the Olympics, where we field a team in every event, and our sheer force of numbers guarantees us a spot high in the medal standings.

No, this is soccer. The world's game, open to all comers if you can cut the mustard. A game in which wee Togo and tiny Trinidad y Tobago can make the cut, but Russia and Canada cannot. In other words, it's a meritocracy. It's not the G7, or the UN, where America's seat at the table is assumed and assured. The mighty USA has to get into the World Cup the old fashioned way...we have to eaarrrn it. And in recent years, we have done so. We've qualified, but little more. And then we've trotted out a string of excuses, redolent of sour grapes. "Our best athletes play football and basketball." "Soccer is a sissy game." "We just aren't that interested in soccer."

To all of which I call "bullshit."

We went to the fuckin' moon! Are you telling me we can't chase a ball around and kick it into a net the size of a two car garage? Well, actually, we can't. And todo del mundo knows it. We're the 1990 Yankees...67 wins, 95 losses and 21 games out of first place. We're Gulliver, bound, poked and prodded by Liliputians. We're terribly, terribly average.

There is a parallel between our World Cup performance and our recent performance in other areas of global discourse. We no longer enjoy the presumption of perfection. Our motives are no longer assumed to be noble. There is some serious question as to whether we can cut the international mustard. Diplomatically, we have to play our way in to the tournament.

Once we led the world against Nazi Germany and Imperial Japan. Once we played pot-limit nuclear poker with the Soviet Union, and the other guy blinked, then folded. Now, weakened at home and abroad by the reckless policies of the Bush Administration, we are reduced to leading a piss-poor "coalition of the willing" (Eritrea, Estonia, Latvia, Uzbeckistan) in a failing occupation of an already weakened Iraq. And we stand, like Ozymandias bestride the goal, while the Czech Republic scores three times between our vast and trunkless legs of stone.

Thursday, June 08, 2006

OK, this is just freakin' weird.....

My traffic tracker indicates that I had a visitor today from Seoul, South Korea, who got here by searching for the phrase "whoa it's magic, you know". This phrase appeared in the comments to the Freddie and the Dreamers thread, below, and represents about 75% of Pilot's contribution to popular culture.

The other 25% of Pilot's contribution consists of the next line to their big hit, "Magic" which made it to the Top 5 in 1975, more than 30 years ago. A search for that line ("never believe it's not so") deposited a music lover from San Antonio, Texas within two hours of the Korean gentleman.

I am so fucking totally global. Excuse me, I'm gonna go have some t-shirts made up.

Monday, June 05, 2006

Keep yer soft hands off my marriage, yew faggot!

The Christopithecus wing of the Republican party has kicked off the midterm election season with their big biennial boo-hoo on behalf of marriage. Or, more accurately, their nasty, bitter, mean-spirited, ill-defined version of what they claim constitutes a marriage.

You see, in Republican JesusLand, the vitality of one's own marriage is inextricably linked to what is going on in the bedroom across town, or two states away. That's why the very institution of marriage is doomed, DOOMED I tell you, unless we amend the United States Constitution to make sure that loving couples of the same gender cannot have their committment to one another protected by law.

Now, reports are flowing in from outposts all across Left Blogistan, and rather than duplicate those worthy efforts, I'll simply point you to Driftglass and The Viscount LaCarte and Kevin Wolf for a few excellent and representative takes.

I do, however, have a take of my own; one that I believe to be compelling and which I believe should be added to the arsenal of rational arguments in favor of equal marriage rights for all. I refer to marriage rights because I believe that the right to marry is not only among the most important rights we enjoy, it is THE most important right we enjoy!

Let me 'splain. You see the couple up there? A typical, happy, married couple. She, heavy with a child and a Benson & Hedges. He, displaying his delight by way of a semi-toothy grin. Even their best man, Bubba the Rottweiler, is basking in the glow of officially sanctioned marital bliss. A cheap shot at rednecks? You betcha! But I would never suggest that they should be denied this most basic of rights. Now, I know a lot of folks just like these two. (I'm a public defender in West Virginia; do the math.) And as such, I'm more aware than most as to the rights which they stand to lose. If Bubba runs loose, he can be seized by Animal Control and euthanized, depriving them of their property. Either one of them could be locked up for domestic battery or manufacturing meth (or both), losing in the process their right to freedom. Child Protective Services would likely intervene, seeking termination of their parental rights. If that crime results in death they could (in some states) lose their very lives.

But you know what?

In no case, under no circumstances, can the government dissolve a valid marriage without consent of one of the parties.

That's pretty important. That's my big contribution to the debate, so I'm gonna repeat it.

In no case, under no circumstances, can the government dissolve a valid marriage without consent of one of the parties.

They can kill you, but they can't divorce you. The right to marry is afforded more protection than the right to life itself. That's pretty fucking fundamental.

The U. S. Supreme Court pretty much agrees. In a unanimous decision (Turner v. Safley, 482 U.S. 78 (1987))concerning the rights of prison inmates to marry, the Court observed:

"The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.

Taken together, we conclude that these remaining elements are sufficient to form a constitutionally protected marital relationship in the prison context...."

Let's take another run at Justice O'Connor's opinion, with minor editing in boldface:

"First, gay and lesbian marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some gay people and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, [. . .] most gay and lesbian marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of sexual orientation or the pursuit of legitimate marriage protection goals."

Taken together, we conclude that these remaining elements are sufficient to form a constitutionally protected marital relationship in the same sex context...."

Show me where I'm wrong about this.....

Sunday, June 04, 2006

Big light in sky slated to appear in east...

No invasion of Iran, no indictment of Karl Rove....it's what the professional journos call a slow news day. But did that impede the CNN.com ActionNewsTeam? It did not. Click on the link for audio.....and let me know if you think this is an annoying feature. Or not.

this is an audio post - click to play

Saturday, June 03, 2006

My ego knows no bounds......

It was bad enough that I thought anyone would care to read what I have to write....now I get to pretend that anyone cares to hear what I have to say!

this is an audio post - click to play

Thursday, June 01, 2006

The land of the free....

The ol' content has been a little slow in coming these past couple of weeks, largely due to the press of work. Since my job involves dealing with clients, and since there are ethical concerns, I can't really swing for the fences and vent with regard to the frustrations involved in representing folks who are staring down a stretch in the penitentiary. Too much detail could lead to a breach of confidentiality, and I'm not interested in turning the personal crises of my clients and their families into blogfodder.

Now, I know what you're saying..."Frustrations? You're not the one on a fast-track to Durance Vile!" True enough....the judge very rarely sends me to the pokey at the end of the case. But as a cog (not particularly well-greased, but a cog all the same) in the criminal justice system, there are certain things that grind on me like nails on a chalkboard. Chief among these irritants is a certain prosecutorial insistence that people be sent to prison for victimless crimes.

In the little blurb to your right, I point out that most of the people I know are criminals. I don't use the word "criminal" in any pejorative sense; when my college roommates and I were peddling reefer to cover the rent, we were criminals. When I bought crack on a dare at the corner of Fifth Avenue and Central Park South, I was a criminal. (Hey, you don't get that slice of the Big Apple on the Gray Line Tour....) The odds are good that you, too, are a criminal to some degree. Makes no never-mind to me, any more than if you're short, tall or left-handed.

My point (and I do have one) is that the people who sentence our fellow criminals to spend months or years in a "correctional facility" often see these people as being so fundamentally different and dangerous that society can only be protected from them by locking them up. The prosecutor, for example, has typically never had a conversation with someone accused of a crime, much less actually represented a criminal defendant. And yet, he stands straight-faced and recommends that a fellow citizen be sent to the penitentiary for 2 or 4 or 6 years for vending some vegetation to a willing neighbor. When I stand next to my client before a judge, I usually know him or her better than anyone else in the room. But because I am an "advocate", my arguments are tainted with the perception that I somehow shouldn't be taken seriously when I say that some sanction short of imprisonment is adequate to redress the public grievances against my client.

I understand this attitude. I work as hard and argue as passionately on behalf of the murderer and the molester as I do on behalf of the nickel-bag dealer; my obligation to my client demands nothing less. (You may be surprised, by the way, to know that the defense attorney is the only guy in the system who has no obligation, and little opportunity, to see that justice is done. Our job is to give our clients a zealous defense. "Justice" is left to the judges and prosecutors, who all too often equate "justice" with "retribution.")

So, anyway, that's why I have been lax in posting. I've been grinding out deals and preparing for trials on behalf of my clients. I stole a little time at 5 a.m. to throw this scribbling at the wall. I'll have more on this topic later, when/if things slow down at the justice mill.....