I Have Furry Autonomy!

Battery: it's not just what I do when I'm batting around my mousy toy with my paws.  

At the outset, we need to make a few distinctions.  First, you need to be aware of the difference between a crime and a tort.  A crime is an act that is punishable by the state, for which you can be arrested and prosecuted, (and convicted if found guilty).  A tort gives rise to a civil action between private people, for which (if found liable) you could be ordered to pay money.  (It is also, I am told, a pastry, but unless it has chicken in it, I am uninterested).  

Second, a brief note on common law v. statute.  A statute is a codified law that is passed by the government, and would look something like "It shall be a crime that any human shall cause any part of a feline to become wet or soapy."  Common law, however, is precedent created by previous court cases that creates a rule that following courts must follow in the absence of a statute.  For example, "In the case of Rory v. Human Male we ruled that Human Female wrongfully bathed Rory, and therefore in the present case of Merlin v. Human Female we must rule that Merlin was also wrongfully bathed."  A statute trumps common law, so once the statute is enacted, the court in Rory v. Human Male will cite to the statute, not to the Merlin case.  Crimes are nowadays all set forth in statutes, whereas torts tend to be based in common law.

Alright, so let's talk battery.  Battery is both a crime and a tort, meaning that if you were to commit a battery, you could be prosecuted in one action by the state, and also sued by the victim in another action.  I'm going to focus on the tort of battery for our purposes, for two reasons.  First, the crime of battery, while generally the same, varies from state to state depending on each individual set of statutes, and second, the crime of battery is generally based on the tort definition.  In order to speak generally, and not write fifty-one different posts here, it makes more sense to stick to torts for now.  (Bonus points and a reference in my next post to whoever knows why I'd have to write fifty-one and not fifty posts!)

Essentially, a tortious battery is an intentional, harmful or offensive contact.  You already knew this.  If you came to my apartment and I swished up to you and smacked you across the face with my claws out, you'd have understood me to have battered you.  (The more interesting analysis in that situation would be what unspeakable thing you'd have done to instigate such an out of character attack on my part, but I'll leave your personal failings for another time.)

Let's take these elements one at a time.  (With gratitude here to Joseph Glannon's The Law of Torts: Second Edition, Aspen Law & Business, 2000, which I highly recommend to any law student or student of law, pages 4-8).    

Intent

In order for my scratching you, (seriously, what's your problem?), to be considered a battery, I have to have intended to do so.  So, if I were say, scaling the window screens, and fell, claws outstretched onto your back, I may have hurt you and caused you injury, but I did not batter you, because I did not mean to contact you in any way.  

What then, if I mean to scratch Human Male, but he ducks and I scratch Human Female by accident?  Have I committed a battery? Yes, by virtue of something called "transferred intent."  I didn't mean to scratch Human Female, but I did intend to scratch Human Male. I have not committed a battery against Human Male, however, since I never actually contacted him.  I have committed a battery against Human Female, even though I never meant to contact her.  My intent against Human Male is transferred to my contact with Human Female.

There's a fine distinction to be made regarding intent here.  Let's say I purposefully swat and scratch the vet.  I'm liable to her for the scratch.  But let's say, I purposefully swat and scratch the vet, only intending to cause the scratch, but in addition to receiving the scratch, she is also so startled that she falls backwards, steps on a dog's tail, who turns and bites her.  I'm also responsible for the dog bite, as a proximate consequence of my intent to scratch her.  I certainly didn't act intending to cause her to be bitten, but I did intent to scratch her and therefore am responsible to her for both injuries.  

Harmful or Offensive

There are two types of battery: those caused by a harmful contact, and those caused by an offensive contact.  Think of it as the difference between your little brother throwing a toy at your head, or poking you incessantly in the back seat of a long car ride.  (I come from a litter of about six black and white kittens.  I know from sibling drama).   

Harmful contact involves "any physical impairment" (according to the Restatement (Second) of Torts), whereas offensive contact is based on the "reasonable person standard", i.e. how would a reasonable person react to being touched? 

Consider, if you will for a moment, my fur.  It is as glossy as a dream, as soft as a baby cloud, as elegant as a Paris runway.  A reasonable person would consider it a great honor to be rubbed up against by me.  What then, of an allergic guest? If the majority of guests to my home are happy when I brush up against them, have I committed a battery against the allergic guest, if I do not know he does not want me to touch him?  I have not, because my reasonable social knowledge tells me that it is an acceptable act to rub up against people.  However, if the allergic guest tells me when he enters "I am allergic, I do not want you to touch me" and I then do it anyway, I have now committed a battery.  The issue is not whether or not it's reasonable for the guest to not want me to touch him (seriously unreasonable if you ask me), but whether or not it's reasonable for me to expect that it's ok to touch him.  

Contact

Scratching or rubbing against are obvious forms of contact, but, this being the law, we can complicate this issue further.  I do not actually have to use any part of my body to commit a battery.  For example, if I leave my jingly ball on the stairs, purposefully knowing that Human Female walks around without her glasses and I intend her to trip on it, I have committed a battery, even if I am far away, crouched under the furniture, eagerly watching with my yellow eyes.  Or, let's say I know our allergic guest is coming to visit and I purposefully leave a giant fur ball on the chair where I know he will sit, intending to cause an allergic reaction.  I have also committed a battery.  

I can also commit a battery without causing any direct contact with the other person.  Consider the case of Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, (TX 1967).  The Fisher case was decided by the Supreme Court of Texas in 1967, and arose when "Plaintiff, a mathematician employed by NASA, was attending a professional conference on telemetry equipment at defendant's hotel."  Id.  While standing in line at the buffet, an employee of the hotel snatched the plate out of Plaintiff's hands shouting that a "Negro could not be served in the club."  Id.  The Texas court held that the employee had committed a battery against the mathematician even though he never physically contacted his body because in snatching the plate he had caused "offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person."  Id.  The court further held that "Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting."  Id.  (As a side note, I am torn as to the court's finding it necessary to state that the plaintiff was a NASA mathematician and the exact subject of the conference, as if it were highlighting that the hotel employee's actions were egregious because the Plaintiff was a particularly prized member of society, as opposed to just any black person in the buffet line, however, I do like to fantasize that some discovery of the Plaintiff served to save the life of that employee, forty years down the line and he was forced to owe a debt of gratitude to this man he had treated so inhumanely.)  

Consent

Lack of consent is implied in the definition of battery, although it may not be specifically stated.  If for some weird reason you want me to scratch you, and you ask me to do it, I have not committed a battery if I do so, even if I make you bleed.  Similarly, if Human Male and I are roughhousing and I bite him, I haven't committed a battery because he consented to being attacked by me as part of our play.  This is why football players aren't constantly suing each other for tackling each other.  The consent, however, can only be construed to encompass the reasonable activities involved in the game, so, if a football player were to pull out a gun and shoot the player with the ball to bring him down, that would be a battery (and also a really strange game).

Consent (informed consent at that) is commonly discussed in the context of a battery arising out of a medical procedure.  That is why you have to sign a stack of papers every time you go to the doctor.  I certainly did not consent to being neutered, and therefore was battered by the vet.  My autonomy! It may be furry, but it was still violated!

A prime example of this kind of medical battery is Mohr v. Williams, a Minnesota Supreme Court case decided in 1905.  95 Minn. 261, 104 N.W. 12.  The Plaintiff in Mohr underwent a surgery on her right ear.  While she was anesthetized, the surgeon found a problem with her left ear, and, without her consent, also operated on it.  Id.  The court held that the surgeon had committed a battery against the patient because, even though she had consented to surgery, her consent was limited to her right ear, and not her left ear.  Id.  For purposes of battery analysis, it is irrelevant that the surgeon meant her no harm, and in fact, meant to help her by curing her left ear, because the issue is that she did not consent to the procedure.  Id.  There was no emergency situation that would have permitted the surgeon to act without consent, (i.e. if you are brought into the ER unconscious, the doctors do not need your consent to save your life).  

And that, dear readers, is the basic elements of battery.  Join me next time for battery's sibling, assault!

Respectfully submitted, 

Rory, Esq.

From My White, Furry Paws.

Oh, hello there. Did you miss me?

Last you heard from me, I was a 10 month old kitten with a legal education and a dream. I now stand before you, bigger (15 pounds of pure fur, muscle and legal know-how¹), wiser, and more determined than ever to break down legal misconceptions. So, without any unnecessary formality (I wear a tuxedo every day, as it is), shall we begin?

Ushering in a new series I call “Know your Bill of Rights” let's talk about the Second Amendment. I've been watching (sleeping) while Human Male plays an alarming amount of Grand Theft Auto V², and I honestly can't get the sound of gun shots out of my head. If only I had thumbs!

Let's start with a little game. Without cheating or reading ahead, please type or write out, from memory, what you think to be the text of the Second Amendment. Take your time; I've got some stray carpet caught between my toes to clean out³.

All set?

If what you wrote is anything like “The People shall have the right to bear arms” you lose! You lose like the Humans lose whenever I try to teach them a game. Fetch does not involve me bringing the toy back, guys. Seriously⁴.

But back to the matter at hand. Don't feel bad if that's what you put down, because that's a fair paraphrasing of our modern, colloquial understanding of the right.

Here's what it actually says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The object of that sentence being... Militia? The government shall not infringe a militia?

Interestingly, there isn't a whole lot of Supreme Court case law on the Second Amendment. In 2008, however, the Supreme Court handed down its decision in District of Columbia v. Heller, which you may remember being a Big Deal⁵. 554 U.S. 570 (2008). And it was, because Heller is really the only Supreme Court case that analyzes what the Second Amendment actually says. The case arose out of a D.C. Law that prohibited the registration of handguns as well as prohibited owning an unregistered handgun. If you did have a handgun in your home, it had to be either disassembled or equipped with a trigger lock at all times, so that it was rendered inoperable. See id.

Do you have flashbacks to high school teachers forcing you to diagram sentence structure⁶? If so, you may want to skip the rest of this post. Because Justice Antonin Scalia, for about the first 50 pages of his opinion, proceeds to analyze the grammatical structure of the Second Amendment⁷. No, that's not an exaggeration. Your Rory does not exaggerate⁸. Justice Scalia even references an Amicus brief filed by a bunch of linguists.

So, what does Justice Nino conclude? Essentially, he starts by breaking down the Amendment into its “prefatory” and “operative” clauses. As he points out, this particular sentence structure is pretty rare in the Constitution.

If you're at all interested in grammar, Constitutional law, or Justice Scalia, you should read the opinion. I really can't do it justice by summary, but to provide you with a few key snippets for color.

"Before addressing the verbs “keep” and “bear,” we inter­pret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary
defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (Similar)." Id Slip Opinion at 12.

And:

"Logic demands that there be a link between the stated purpose and the command. The Second Amendment
would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of
interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or
expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpreta­tion and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).^9" Id. Slip Opinion at 4.

As Justice Scalia frames the issue, the question is whether or not the Second Amendment guarantees a right to the people (i.e. individuals), or to a Militia (i.e. an organization). Justice Scalia recognizes that the drafters wanted to ensure that the states could check the power of the federal government by raising and maintaining their own militias. He is not convinced, however, that this is the sole right codified in the Second Amendment.

"It is therefore entirely sensible that the Second Amend­ment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the mili­tia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codi­fied in a written Constitution. JUSTICE BREYER’s asser­tion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that selfdefense had little to do with the right’s codification; it was the central component of the right itself."  Id. Slip Opinion at 26.

If you think you have found a hole in this logic, have no fear, Justice Scalia can close that right up for you. If hunting and self-defense are equally important rights contained within the Second Amendment, why aren't they also stated? Because, he says, those rights were so ingrained in colonial culture that no one thought they had to say them¹⁰.

What then, to make of the fact that one (or even a militia) of people with hand guns couldn't possibly stand their own against the might and power of the U.S. Military? Well that's just simply not the point.

"Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.^11" Id. Slip Opinion at 55-56.

So where does Heller leave us? The D.C. Law was deemed unconstitutional. Justice Scalia recognized that state laws creating restrictions on time, place, and type of weapons were perfectly fine, but that the Second Amendment prohibited the kind of out-and-out prohibition on handguns that was the subject of the case. Arguably, though, the first real Supreme Court analysis of the Second Amendment created more questions than answers. Like most issues of Constitutional jurisprudence, however, the law will likely follow political and social shifts, rather than the reverse.

Respectfully submitted,

Rory, Esq¹².

1Have no fear, the vet says I am not overweight.

2Let you think he spent a whole day violently massacring crowds, let me assure you that what alarms me most is the amount of time his character spent closing pop-up windows, doing yoga, and sitting on couches.

3No, I was not scratching the carpet. I am a Good Cat.

4Oh, and can you get all of the toys I've batted under the oven? Thanks.

5I wanted to call it a “Big F'ing Deal” because I am an adult now and I use adult language, but I am far to eloquent and cultured to resort to crass sailor-speak.

6Human Female, a college double-language major, frets about this in her sleep. I walk on her face to shut her up.

7Not even kidding, his historical analysis doesn't really make it past the 1930s. I think this is because he ran out of time.

8Except for when it comes to how hungry I am. Because if I don't make the Humans think I'm starving, who knows how long it would take them to feed me.

9No doubt the man is a genius. The question is whether or not he is too smart for his own good, or for our good.

10Doesn't this kind of logic fly in the face of a 64 page grammatical, textual analysis? Are you a Supreme Court Justice? I thought not.

11Did you think Constitutional analysis was supposed to have some bearing on how laws impact our daily lives? You haven't been here long, have you?

12If you're wondering about the footnotes, I'm going through my David Foster Wallace phase, being the young, educated, adult that I am.

I Want My Day In Court! (I Think?)

Readers of this blog know how I yearn for the chance to be a real lawyer, to plant my four white paws on counsel table and yowl to the world. And yet, two recent decisions out of the Supreme Court may have changed all that. The courtroom, it appears, may not be as important as we'd all like to think it is.

The SCOTUS recently delivered opinions in two cases, Lafler v. Cooper and Missouri v. Frye in which the Court held that criminal defendants have a right to competent legal counsel during plea bargain negotiations.

That doesn't sound like much, but these decisions may have far-reaching ramifications on both the criminal law process and in how we think about it.

The Sixth Amendment to the Constitution states that:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

Look at that capitalized part. “Assistance of Counsel.” These days, most people know from listening to the recitation of Miranda rights on tv (hopefully that's why you know it, and not because of personal experience), that they have the “Right to speak to an Attorney. If you cannot afford an Attorney, one will be appointed for you.”

The reading of Miranda rights is a fairly recent development. Mirandav. Arizona was only decided in 1966. Even more importantly, up until 1963, there was no recognized right to court-appointed counsel in criminal cases for indigent defendants. What about the 6^th amendment, you ask?

Let me introduce you to Clarence Earl Gideon, who, in my humble opinion, is an example of what our legal system can be, at its best.

“Gideon was a fifty-one-year-old white man who had been in and out of prisons much of his life. He had served time for four previous felonies, and he bore the physical marks of a destitute life: a wrinkled, prematurely aged face, a voice and hands that trembled, a frail body, white hair. He had never been a professional criminal or a man of violence; he just could not seem to settle down to work, and so he had made his way by gambling and occasional thefts. Those who had known him, even the men who had arrested him and those who were now his jailers, considered Gideon a perfectly harmless human being, rather likeable, but one tossed aside by life. Anyone meeting him for the first time would be likely to regard him as the most wretched of men.” Gideon's Trumpet, Anthony Lewis, pgs. 5-6.

This “most wretched of men” did something very admirable and very brave.

In 1962, Gideon was serving a 5 year sentence for allegedly breaking into a pool room, stealing some money from a cigarette machine (probably no more than $25.00) and some alcohol. Gideon's Trumpet, pgs. 7, 249.  At his trial, he told the judge he wasn't ready because he did not have an attorney. Gideon's Trumpet, pg. 10.  At the time, the sixth amendment was construed to mean that a person only had the right to a court-appointed lawyer if there would be “denial of fundamental fairness” without an attorney. Betts v. Brady, cited in Gideon's Trumpet, page 8. This meant that unless there were “special circumstances” such as “illiteracy, ignorance, youth or mental illness, the complexity of the charge against him or the conduct of the prosecutor or judge at the trial.” Gideon's Trumpet, page 9. Gideon was on his own.

Gideon wrote a petition to the Supreme Court, in pencil, asking them to overturn his conviction because he didn't have a lawyer at trial. Gideon's Trumpet, page 3.  He knew enough to know what the 6^th amendment said, even if he didn't know about Betts.

And that's what the Court did. It overturned Betts. Gideon v. Wainwright, 372 U.S. 335, (1963).  It decided that the right to counsel is a “fundamental right” that is guaranteed to defendants in criminal cases.  Id.  It noted that

“Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." Id. citing Powell v.Alabama.

Which is exactly what had happened to Gideon. For example, he spent a good deal of time at his trial encouraging witnesses to assert that he had not been drunk on the night in question, (probably trying to protect his character), without realizing that intoxication would have been a defense. Gideon's Trumpet, pg. 63.  Because he had been in jail, he didn't have the opportunity to research the backgrounds of the witnesses against him (one of which had previously lied).  Gideon's Trumpet, page 250

When the Supreme Court remanded his case, and he was retried with the help of defense counsel, Gideon was found not guilty.  Gideon's Trumpet, page 249.

Because of Gideon, we now understand the right to counsel to be one of the most fundamental rights in our idealized version of the United States legal system. So, fifty years after Gideon, why do we now have Lafler and Frye? Both of the defendants in those cases had counsel at their trials. There is no allegation that there was anything wrong with their trials at all. They were found guilty through a fair process. They benefitted from Gideon's fight. So what's the problem?

The criminal justice system has changed dramatically since Gideon's day. When Gideon was arrested, he was put in jail to await trial. Now, however, he would have been offered the opportunity to “plea” or, to agree to admit guilt in exchange for a lesser sentence. "97 percent of federal convictions and 94 percent of state convictions in 2009 were obtained by a guilty plea, according to the Justice Department."  Pleas save on scant resources. They save time and money.

Defendants' fates are decided overwhelmingly outside of the courtroom. Effectively, there has been no recognized right to counsel in 94% of state convictions.

Here's how that plays out. Galen Frye was charged with driving with a revoked license. Missouri v. Frye. The prosecutor offered his attorney a 90 day jail term if he pled guilty to a misdemeanor or a 10 day sentence if he pled guilty to a felony.  Id.  His attorney never told him. Id.  He pled guilty at his trial and received a three year sentence. Id.  Anthony Cooper shot a woman in the buttock, hip and abdomen. Lafler v. Cooper.  He was charged with “assault with intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, misdemeanor possession of marijuana, and for being a habitual offender” under Michigan law. Id.  He was offered two plea bargains, which would have subjected thim to a 51-85 month sentence if he pled guilty. Id.  Bizzarrely, however, he “rejected the offer on both occasions, allegedly after his attorney convinced him that the prosecution would be unable to establish his intent to murder...because she had been shot below the waist.” Id. (I think I know a lawyer who should start reading The Purrdict).

Both Cooper and Frye had, by all accounts, fair trials. What more could you ask for? Well, according to Justice Kennedy, we can't consider the trial the be all and end all of the criminal justice system anymore. Instead, plea bargaing “is the criminal justice system.” Missouri v. Frye.

I submit to you that the Frye and Cooper decisions are controversial because this just isnt' how we want to think about our justice system. Our courtrooms, shabby and broken as they may (usually) be, are panneled in wood. They have seals above the judge's head. They are steeped in formality. Plea bargains take place behind closed doors with plastic chairs and bad lighting. There is very little Latin spoken. Tuxedo kittens do not demand litter-box facilities in the counsel rooms of jails, (although now...)

And what are we to do with Mr. Frye and Mr. Cooper? As Justice Scalia points out in his (unsurprising) dissents, they received fair trials. Are we to overturn the ressults of two completely appropriate and fair trials, in which the men were found guilty, to allow them to receive lesser sentences that they were offered in plea bargains? What does that say about the trial itself? What does that say about the jury, that institution that is so highly regarded in our jurisprudence?

Do these two decisions say more about the Supreme Court, or about the state of our legal system? Or, do they say more about our actual legal system, or how we want to think about our legal system?

And is this all just a ploy to keep cats out of the courtroom?

YEOWLLL! (I object).

Adoring public, I have returned. Let me explain my absence.

When the Humans first brought me home, Human Female, although a lawyer in name, was not working. It was fantastic. She snuggled me when I needed snuggling, she fed me when I needed feeding (not enough to my liking, by the way), she played with me when I needed playing with.

And then she went back to work. 

I am so alone! Neglected!

Frankly, I've just been too distraught to write.

But I am determined to not turn into another After-School Special, despite Human Female's abandonment. I have made a commitment to this blog, and I shall persevere! I am Rory! I am not just another latchkey kitten!

So, today shall be just a short post about the purpose of objections, because I am feeling very objectionable lately.

You've seen the tv shows and movies. You've seen the lawyer-actors pop up like jack in the boxes and self-righteously announce “Objection, Your Honor!” when the testimony is not going their way. Alas, that's not really how it works.

In order to object, the lawyer needs to have “grounds.” Just because you don't like the way things are going, doesn't give you the right to object. The testimony has to be violating some rule of evidence.

For example, imagine I am suing Human Female for emotional distress for leaving me alone all day. At the trial, she testifies that she has to work in order to pay for my kibble. I leap up onto the counsel table and howl “Objection!”

The judge is the ultimate arbiter of what evidence is allowed to stand and what she or he chooses to strike. She or he can stop a line of questioning. So, when I object, I have to explain to the judge what my grounds are, so that he or she can either “sustain” my objection (i.e. agree with it and strike that particular piece of evidence), or “overrule” it, (i.e. rule that the evidence can stand). Most times, the grounds are obvious enough to the judge that she or he will decide without asking for grounds. This also makes for better television than a protracted argument at side bar about the meaning of the Rules of Evidence. (I'd rather have a hairball).

So, what are my grounds? I can't tell the judge that I just don't like her answer, or that it is hurting my case. I could try to argue that her testimony is irrelevant, (seriously, I don't care how she gets the kibble;YOU DO NOT LEAVE RORY). I could argue that the testimony is overly prejudicial, that it will create an improper emotional response in the jury that will distract them from the legal and factual issues of the case (ok, I'm a kitten, she's a lawyer. You're the jury. Who do you vote for?)

There are a number of highly technical objections. If she testifies that Human Male told her that I told him that I wanted her to leave me alone, I could object on the grounds of hearsay. (Also, perhaps I'd have an argument that she is totally incompetent, because, whoever heard of a talking cat?) One of my favorite grounds is “asked and answered,” which is pretty much a formal way of saying “Your honor, this clown of a lawyer has asked this same question fifteen times as a way of hammering home his point, and it's starting to get on my nerves.”

But don't think those television shows have it all wrong. Objecting has an element of drama to it, no question. The lawyer may use objections to signal the jury. Depending on his tone, he could try to imply that a particular line of questioning is totally off base, he could roll his eyes (not recommended), he could flail, he could raise his voice. He may just want to throw the other lawyer off, or derail the witness, by interrupting. It's a dangerous game; the judge isn't likely to allow him to play these kinds of games for very long.

But let's get back to what's important here. Rory. Why can I not be brought to work? Look, I even fit in Human Female's briefcase! They have kibble in the office, right?

Beyond a Whisker of a Doubt

Ladies and Gentleman, you are entering the Court of the Honorable Rory. You are charged today with an important duty as jurors. By the end of this session, you will have learned the three different types of Standards of Proof used in the United States judicial system. You will also have caused justice to be done, once and for all, in the matter of the events surrounding my alleged presence on the table on the night of November 11, 2011. (I am judge and defendant, and if you have an issue with that, you can step into my chambers to discuss it. My litter-box is my chambers. That's what I thought.)

In the American legal system, we use three different standards of proof, depending on the type of case. They are generally referred to as the “preponderance of the evidence” standard, the “clear and convincing evidence” standard, and “beyond a reasonable doubt.”

Rory v. Human Male

In a civil case (i.e. your typical lawsuit), the jury is charged that they must make their decision based upon a “preponderance of the evidence.” This is a matter of likelihood. The jury, “acting as reasonable persons” must believe that “the points to be proved are more likely so than not.” Evidence Under the Rules: Fifth Edition, Christopher B. Mueller and Laird C. Kirkpatrick, Aspen Publishers p. 671.

The uncontested facts of the case are as follows: on the night of November 11, Human Male and Human Female ate pizza for dinner. Said pizza was left on the table to cool before being wrapped up and put away after dinner. The Humans left the room. At some point in the night, Rory was accosted by Human Male with a spray bottle and accused of snuffling, chewing, licking, and otherwise disturbing the pizza.

Rory has brought this lawsuit against Human Male seeking damages for emotional distress, slander, and property damage (his fur was caused to become wet). Human Male asserts that he acted in proper defense of his pizza.

“[t]he weight or preponderance of evidence is its power to convince the tribunal which has the determination of the facts, of the actual truth of the proposition to be proved. After the evidence has been weighed, that proposition is proved by a preponderance of the evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.” (This is an actual jury charge, or instructions given to the jury by the judge, used in Massachusetts in Stepakoff v. Kantar, 393 Mass 836 (1985).

Hmm? Let me try again:

“Another description of the state of mind which is satisfied by a fair preponderance of the evidence is a firm and abiding conviction in the truth of the plaintiff's case.” Id.

Still not clear?

Rory has to prove that his injuries were “more likely due to the negligence of the defendant than to some other cause for which he is not liable.” See id.

If you decide in favor of Rory (which, you should), it will be because you are persuaded that the evidence that you have heard here today leads you to believe that it is more likely than not that Human Male attacked Rory with the spray bottle for no good reason. If you decide against Rory, (which would be unforgivable), it will be because you are persuaded that the evidence you have heard here today leads you to believe that it is just as likely, or more likely, that Rory's injuries were caused by some cause other than Human Male's improper actions.

Human Male v. Human Female

After Rory (allegedly) snuffled, chewed, licked, and otherwise disturbed the pizza on the table, leaving tomato-y paw prints across the carpet, cheese on the chairs, and crumbs every-blessed-place, Human Male and Human Female began arguing about who was responsible for Rory's actions and the subsequent clean-up. Human Male has brought a very strange sort of child-custody case in the Probate and Family Court seeking a decision that Human Female is wholly responsible for Rory's obedience training (hahaha) and cleaning up after him.

In deciding this matter, you must use the “clear and convincing” evidence standard, which is a higher standard than the “preponderance of the evidence” standard. This standard is used in non-criminal matters where the “individual interests at stake are both particularly important and more substantial than mere loss of money.” Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). This standard comes up in cases of child-custody, paternity, and refusal of medical care, among other situations.

You have heard evidence that Human Female is a huge sucker, always shares her meals with Rory, lets him sleep on her bladder even when she has to pee, and is solely responsible for changing the litter-box. You have also heard evidence that Human Male ignores his guests to play with Rory, buys him toys whenever he buys himself ice cream, and wakes up early on weekend mornings to feed Rory.

“A party cannot meet the burden of establishing [that it is in the best interests of Rory that he be the cat's custodian] by simply producing evidence which is slightly more persuasive than that opposed to it, which would meet the burden of proof under the preponderance of evidence standard. Instead, the party must produce clear and convincing evidence which is evidence that is substantial and that unequivocally establishes the elements of [the best interests of Rory]... Clear and convincing evidence is evidence that establishes for you a very high probability that the facts asserted are true or exist.” Connecticut sample jury instructions.

State v. Rory

As it turns out, Human Male pressed charges against Rory for stealing the pizza. This case is a criminal case, and therefore, the highest standard is used: evidence “beyond a reasonable doubt.” This traces back to the due process requirements of the 5^th Amendment to the Constitution of the United States. As the Supreme Court held, this standard is necessary because “[t]he accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.” In re Winship, 397 U.S. 358, 363 (1970). Furthermore, “[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilty with utmost certainty.” Id at 364.

“It is not required that the prosecution prove guilt beyond all possible doubt, for it is rarely possible to prove anything to an absolute certainty. Rather the test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense. Proof beyond a reasonable doubt must be proof of such a convincing character that, after consideration, you would be willing to rely and act upon it without hesitation in your important affairs. A defendant is never to be convicted on mere suspicion or conjecture.” Alaska jury instruction.

Therefore, you must find Rory guilty only if the prosecution has established, beyond a reasonable doubt, that Rory unlawfully stole the pizza.

Now that you've seen the three standards, I ask you to take a moment to compare your decisions in each case. In your own heart and mind, what is the difference between being certain beyond a reasonable doubt, or believing something is more likely than not? How much doubt is acceptable to you, in each case? For a fascinating, and in depth look at the kind of decisions a juror goes through, I urge you to read A Trial by Jury by D. Graham Burnett, a true account of serving on a jury in a New York murder case.

Thank you for your service, ladies and gentleman. I now shall step into my “chambers.”  

Killing Me Softly With Her Paws

I had the best photograph posed for today's post, but unfortunately the Humans interfered. I managed to scratch my throat while wearing my harness and had my white throat and both front paws covered in blood. I thought that would be a great way to introduce today's discussion of homicide, but the Humans freaked out and the next thing you know, I was in the bathtub. So, you're going to have to use your imagination to picture this adorable little fur-ball as a killer. (Hey, technically I am a predator, even if I prefer tomato soup to chicken).

 I hear a lot of confusion regarding the different types of homicide, so today's post is a very brief overview of the basic definitions of first degree murder, second degree murder and manslaughter. Keep in mind that in each jurisdiction, these definitions are set by statute, so these are just the very basics that are common to each state.

 Let's start at the top with first degree murder. If you were to think of the term “murder” this is probably what you'd picture. First degree murder consists of three elements: an unlawful killing, malice, and premeditation. Malice has nothing to do with being a “bad” person. In the legal sense, it means that the defendant “had a specific intent to kill or to cause grievous bodily injury, or to do an act that in the circumstances known to defendant a reasonable person in the same situation would have known that the doing of that act would have created a strong likelihood that death would happen.” (Quote taken from Human Female's old law school lecture notes). Bear with me, that will make more sense when we discuss manslaughter, below.

 Premeditation does not necessarily mean making a plan. It simply means that the defendant thought before she acted. The time frame can be a matter of mere seconds. Imagine Pandora gets into a cab. For reasons unclear, the taxi cab driver takes a cat as a fare, which proves to be a fatal mistake because Pandora, attempting to rob the cab driver stabs him. In the seconds that follow the stabbing, however, Pandora slashes his throat. (I'd like to note here that Pandora is a very sweet cat in real life, and this is a purely fictional example surely out of character for the real life Pandora. Just in case the neighbors read this.) Pandora claims at her trial that she really only meant to wound the driver as part of the commission of the robbery. Her lawyer argues that the element of premeditation is missing because there wasn't enough time between the stabbing and the slashing for her to form the intent to kill. Not so. Despite the fact that it took place in the space of a millisecond, Pandora formed the intent to kill the driver, not just wound him, and that is when she slashed his throat. (Facts taken from State v. Ollens 733 P.2d 984 (Wash. 1987)).

 In some states, by statute, first degree murder also includes any killing that is done as a result of poisoning, or with “extreme atrocity.” (See M.G.L.A. 265 §1). It also can include “felony murder,” which is a killing committed as part of committing another felony, (think of a bank robbery).

 Let's move on to second degree murder. Please keep in mind that second degree murder doesn't necessarily mean that the killing was somewhat more justified in some way than first degree murder. It is a pure matter of definition. The homicide definitions provide a legal framework, not a moral one. There is a story behind each case (probably more than one story, really), and the law is not interested in human stories. I digress. Second degree murder requires that the defendant have known that her actions carried a strong likelihood of causing death. Imagine Pandora organizes a Russian Roulette game. Instead of following the accepted rules of the “game,” Pandora pulls the trigger three times against the Jack Russell's head. Given the chances, she reasonably should have known that by doing so, there was a 60% chance of killing Jack. (See Commonwealth v. Malone, 47 A.2d 445 (Penn 1946). 354 PA 180.) Why would she do such a thing? Who knows, and, in purely legal terms, it just doesn't matter. Motive is not an essential element of second degree murder.

 Another term that falls under second degree murder is something called “depraved heart murder.” Again, we're talking depravity in the legal sense. No leather whips and chains necessary. This is “an act done willfully and deliberately as opposed to negligently which is so wanton or reckless as to indicate extreme indifference to human life generally.” (Human Female's lecture notes again.) The key here is something called “universal malice.” Instead of an intent to cause death or serious bodily harm to one specific individual, the defendant's intent is aimed at an unknown group. Imagine that Pandora is out joyriding while intoxicated with her friend in the car. Throughout the night, she stops at a number of bars to continue drinking. Her friend tells Pandora that her driving is scaring her. Pandora has a near miss and nearly gets into a car accident. At one point, a police officer tells her not to drive. Pandora, despite all of these warnings, continues to drive, causing a horrible accident and killing someone. (See Pears v. State, 672 P.2d 903 (Alaska App. 1983)). Pandora should have known that her actions were likely to cause a death, and continued to drive. That, is depraved-heart murder.

 This brings us to manslaughter. Manslaughter is broken down again into voluntary manslaughter and involuntary manslaughter. Earlier I mentioned that malice would become clearer when we discussed manslaughter, and that is because manslaughter does not include the element of malice. Comparing first degree and manslaughter examples highlights the difference. You can think of voluntary manslaughter as a first degree murder that has been mitigated to such an extent by the circumstances that the defendant didn't have the requisite intent, or state of mind, to constitute legal malice. This circumstance is often termed the “heat of passion.” Courts have split hairs on what constitutes heat of passion for ages, so suffice it to say for now that it refers to some circumstance under which a reasonable person would be so upset as to act as the defendant did. Imagine Pandora walks in on her husband in bed with the Jack Russell and kills Jack. She had the intent to kill Jack, so it was clearly premeditated, but she was so upset as to not be able to form the state of mind in which she could be considered to have consciously acted with malice. Or, imagine that the Jack Russell attacks Pandora and she fights back in self defense, but counters his attack with unreasonable force, (i.e. she pulls a gun on him when he attacked her with bare paws).

 Involuntary manslaughter differs from all of the above in that the death was unintended. The defendant was so negligent that she exhibited a “reckless disregard for human life.” (Human Female's lecture notes). In failing to perform a duty that the defendant had, or in preforming it in a grossly negligent fashion, she caused a death. Think of an ordinary drunk-driving case (as opposed to the example above, where Pandora was told multiple times that she ran the risk of killing someone). To my mind, these cases can be some of the saddest because the defendant may have acted with the best of intentions, and, in the moral sense, has already suffered the loss of the person who died. Imagine Pandora has a kitten who is sick. Pandora loves her kitten, but she is afraid that if she brings the kitten to the vet, the vet will report her to the MSPCA for animal abuse, (even though she didn't abuse the kitten). Her fear is so overwhelming, that she refuses to bring the kitten to the vet, caring for her instead as best she can, until the kitten dies. The law presumes that she should be punished, because she should have known that she could have saved her kitten, and failed to protect her. (See State v. Williams, 484 P.2d 1167 (Wash. App. 1971).

 For a less heart-wrenching example, see Michael Jackson's physician, who owed a duty to care for his patient and, recklessly disregarded that duty.

 So there you have it, the three basic forms of homicide, as brought to you in the furry version (instead of the horribly upsetting human form). As always, I'm happy to answer your questions. Oh, and I'm purrfectly fine, thank you for asking. The biggest trauma was the bath. Human Male bought me a new ball and I got lots of treats.

Plant Chewers Unite!

I've given a good deal of attention here at The Purrdict to Constitutional jurisprudence, but I've yet to explain how one gets a case before the Supreme Court.

Some people are under the impression that the Supreme Court can (and should) rule on any law that a certain person or group of people finds objectionable. If this were the case, the Supreme Court would be even more backlogged than it already is. I've been threatening a post on jurisdiction for some time now, and I will get to it, but not today. Suffice it to say, for now, that the Supreme Court only has jurisdiction over certain issues, among them the Constitutionality of Federal Law.

But even that isn't enough. Under what is generally termed the “cases and controversies” clause of the United States Constitution, there are certain bars to an otherwise valid challenge to a federal law which serve to prevent the Court from speculating or legislating. The Court's purpose is to settle disputes and to redress wrongs. Ideally, the Court is not to serve as an academic body, dealing in abstract issues, but instead to settle actual disputes.

As an example, imagine a federal environmental protection law that prohibits the destruction of a certain species of bamboo. I happen to be a card-carrying member of the House-Plant Chewers Appreciation Club. My club consists of members from across the country, who all share a love of chewing house-plants. (Side note: how can Human Female, a vegetarian, object to my nibbling a leaf here and there?) The HPCAC's message board has been very active lately, with concerns that the new law will prevent members from nibbling on bamboo kept as house-plants. They appoint me legal counsel to challenge the statute in the Federal Courts on First Amendment grounds. (We express ourselves through our chewing of plants! I chew, therefore I am!)

The first challenge that I would have to overcome is that of standing. No, I don't mean that I'm not tall enough to see over the podium, (although that is why Human Female always wears heels to court). Standing refers to the requirement that the plaintiffs in a case before the federal courts have a “personal stake in the outcome of the controversy.” Baker v. Carr, 369 U.S. 186, 204 (1962). The goal is that “the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” Flast v. Cohen, 392 U.S. 83, 101 (1968). I have to establish that the plaintiffs in the case, the members of the HPCAC, are actually affected by the law; they are not just concerned by-standers.

I must not make the mistake of the plaintiffs' counsel in Sierra Club v. Morton, 405 U.S. 727 (1972), (although, to be fair, it's an important case dealing with standing, and the attorneys probably didn't know of the trap they stepped into). Sierra Club dealt with a highway to be built through Sequoia National Park. Id. The Sierra Club challenged the plan on the basis that it would cause irreparable harm to the park. Id. Fair enough, but unfortunately, the Sierra Club failed to state in its pleadings that its members actually used the park. See id. That is, the Court held that it wasn't enough that the park would be harmed, and that the Sierra Club members were committed to preventing harm to parks, but instead, the Club had to show that its individual members would be harmed by the action. Id.

In my pleadings, I must state that members of the HPCAC actually chew bamboo, that the law will prevent us from so doing, and that therefore the law causes, or will cause us, concrete harm.

Think of it this way. Imagine the Court is a high school chemistry teacher, and your sister comes home with a bad grade on a test. If you march yourself into the classroom protesting the grade, the teacher is going to look at you over the Bunsen burners and say, “Who the helium are you?” He's going to tell you that if your sister has a concern about her grade, she should be the one to talk to him. The point of the Courts is to avoid authorizing “judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process.” Id. The Court is there to settle disputes, not rule on ideologies.

My next trap to avoid is mootness. It's a silly word with devastating consequences. It prevents the Court from hearing cases brought by plaintiffs who had standing who, for one reason or another, are no longer, and can no longer be, affected by the law. The issue commonly comes up in cases involving students, because there is a set period of time during which they can be effected by the school's action (i.e. while they are in school), and litigation can often take years, during which the plaintiffs may have graduated. For example, in Cook v. Colgate University, 992 F.2d 17 (2d Cir. 1993), a group of female ice hockey players challenged the school's refusal to create a female varsity ice hockey team under Title IX of the Education Amendments of 1972 (which deals with gender discrimination in an educational setting). The problem was that the group of women who brought the case had either graduated by the time the Court of Appeals heard the case, or would graduate before the beginning of the next ice hockey season. Id. Their claim was moot, since there was no way for the Court to redress the wrong done to them. See id. A claim is moot “when it becomes impossible for the Courts, through the exercise of their remedial powers, to do anything to redress the injury.” Alexander v. Yale, 631 F.2d 178, 183 (2d Cir. 1980). Instituting a women's hockey team would not help the plaintiffs. The fact that it would benefit younger students was, well, moot. The case would have had to have included some of those younger students in order for the Court to hear the case.

I can't sustain a case that I bring on behalf of past bamboo chewers; my group of plaintiffs must include current bamboo chewers. If, through a sustained chewing binge, the group has decimated the house-plant bamboo population, and bamboo is not available as a house-plant, then we risk our case being found moot, because we'd be complaining that the law prevents us from doing something we can't do anyway. We'd really just be wasting the Court's time.

This leads us to the third trap: ripeness. This has nothing to do with the greenness of the tasty bamboo. It refers to the actual harm sustained by the plaintiffs, that they “[have] been or inevitably will be subjected to [the unconstitutional law].” Thomas v. Union Carbide, 473 U.S. 568 (1985). It's very close to mootness, but deals with the future, rather than the past.

For example, in Thomas, a group of agricultural companies challenged a provision of the Federal Insecticide, Fungicide and Rodenticide Act, or “FIFRA,” 7 U.S.C. 136 that required arbitration to settle complaints about mandated sharing of health and safety aspects of pesticides. The Court had previously faced a similar complaint in Ruckelhaus v. Monsanto Co., 467 U.S. 986, but dismissed it on the grounds that the plaintiffs' claim was not yet ripe. The provisions of the law hadn't yet gone into effect at the time was brought, so those plaintiffs were speculating as to potential harm to them. They hadn't suffered any harm, and there was no indication that they would suffer harm. However, by the time the Court heard, there actually were disputes ready for arbitration, and the companies had made the required disclosures about the pesticides. That claim, therefore, was ripe.

HPCAC can't challenge a law that hasn't been passed yet; our claim isn't ripe until our chewing activities are actually hindered, not just in danger. Let's say that the law prevents the sale of bamboos to homes with known chewers, but specifically permits us to chew plants already in our possession. In that case, our claim isn't ripe until the law actually prevents us from obtaining bamboo to chew. The Court can't redress a harm it doesn't know has actually happened or is about to happen. For all anyone knows, the household bamboo pipeline will not be interrupted. We'd just be a group of howling cats.

And with that, I leave you for now. All this talk of bamboo has given me a craving. A craving that can only be satisfied by

LEAF CHEWING!