Friday, December 13, 2013

DWR -- Driving While Rich


The word is not even in a common Webster’s dictionary.

Nevertheless, a judge sentenced a youth to probation for killing four people based on her belief that the teenager suffers from this non-existent psychological malady.

The boy faced a maximum sentence of 20 years in prison in the deadly, drunken crash in which he ran his truck over a mother and daughter and two others in Texas.

In considering a sentence for the 16-year-old, Texas District Judge Jean Boyd heard testimony from a defense psychologist who said the teen suffered from “affluenza,” a pseudo-psychological condition that boils down to “rich people do bad things because they don’t know any better.”

(Tell that to Bill Gates, Warren Buffett and 1 percent of all Americans.)

This affliction -- sounds like something you catch from touching money -- is rejected by real psychiatrists and became fashionable in a 2007 book of the same name.

Yes, you guessed it. The Texas kid comes from an “affluent” family, and his parents allegedly let him get away with everything (including murder?). So, because of his affluenza he didn’t know enough right from wrong to not have gotten drunk and run over people. (Poor kids obviously know better.)

So the kid is getting off with a decade of probation and must “rehabilitate” himself at a swank Newport Beach center in California, for which his neglectful parents are footing the $450,000 annual bill. (What? Obamacare doesnt cover it.)

We now focus on the judge. Judge Jean is no Judge Judy. Judge Jean Boyd graduated from South Texas College of Law, and has been chair of the juvenile justice committee of the Texas State Bar. But, I wonder whether she paid attention in evidence class when the professor talked about Kelly-Frye case law. The U.S. Supreme Court precedent says that if scientific evidence isn’t generally accepted by the scientific community to which it belongs -- in this case psychiatry -- it is inadmissible in court. Affluenza does not pass the Kelly-Frye sniff test, Madam Judge, even in sentencing, where rules are sometimes stretched. Additionally, anyone who vigorously reads Supreme Court decisions is aware justices often turn to dictionaries for meanings of words, and base rulings on common definitions. Had Judge Jean simply grabbed the Webster’s on her desk for a look-see, she wouldn’t have found “affluenza” in it. That act might have provided her a strong hint that it doesn't exist.
Probation for four manslaughters was an ignorant bow to fad science by the judge.

Saturday, November 16, 2013

Shooting After The NBA


Former Los Angeles Laker Javaris Crittenton is the latest NBA bad boy.

In his case, really bad -- like in murder.

 I remember watching Crittenton play at Staples -- a high-energy bench player who got minutes and scored some points.

 Yet, a harbinger of things to come should have been heeded when in December 2009, Crittenton and Washington Wizards teammate Gilbert Arenas displayed guns in the locker room after an altercation. Arenas, a bigger star, got the headlines and 6-foot-5 shooting guard Crittenton got a 38-game suspension.
Over a couple seasons in the NBA Crittenton’s contracts amounted to $4 million. That’s why it’s strange that Javaris Crittenton became an alleged member of a Crips street gang while in LA. As a result, he faces trial in Atlanta for murdering a mother of four, shot in a drive-by in August 2011, with Crittenton the alleged triggerman.
History does repeat itself in the National Basketball Association, or as former NBA star Reggie Miller benevolently calls it during TV games, “the Association.” Unforntunately over the years Association players have been associated with violent groups where flagrant fouls involve guns.

 For instance, it was nearly thirty years ago that another former NBA player reached back to his street roots, connected with gangsters, and ended up being charged with first-degree murder.

I remember watching Michael Donnell Niles of Cal State Fullerton play in the 1978 NCAA tournament, stealing the ball and slamming a dunk to bring his “Cinderella” Titans within two of favored Arkansas. While Fullerton lost, Niles went on to play in the NBA as backup forward for the Phoenix Suns.

When I saw Michael Niles years later, he was downcast, dressed in a dark suit, and appeared out of place. It wasn’t the court he was comfortable in, and he wasn’t playing for a trophy. He was on trial for his life for murdering his wife to gain $100,000 in insurance in Corona, California.
On Dec. 13, 1984, he drove to South-Central Los Angeles and visited old friends from Jefferson High School, where Niles had been a basketball star. He was willing to pay $5,000, he said, because “I want the bitch killed.” Gangbanger Noel Jackson took the bargain.
Jackson got a 12-gauge shotgun, rode back to Corona with Niles, and waited for the woman in their apartment. Niles fetched her from work and then faked an argument, storming off, leaving her at home. Jackson confronted Sonja Rose Niles, 29, but she ran down the street. He chased her, stuck the shotgun against her skull and blew her head off. As there always seems to be in these cases, a nosy neighbor saw Niles’s car speed away. And later, when Niles returned to find cops on his doorstep and was told about his wife, they claimed he “faked” grief.
Both men were convicted of premeditated murder, with the special circumstance of murder for hire, making them eligible for the death penalty. In the trial Niles and Jackson ratted each other out, claiming the other was the shooter. Jurors found Jackson was the gunman and gave him to death. Surprisingly, Niles, without whom there would have been no murder, was spared death and instead sentenced to life in prison without parole. I say surprisingly because in murder-for-hire cases it’s the person who hires the killer who is viewed by prosecutors as the real heavy.
Today as Niles sits in his cell it is easy to imagine that he often daydreams about his glory days in the NBA and how far he crashed. Feelings, potentially, not unlike those of another ex-professional basketball player facing murder charges thirty years later.

(From a new memoir by R.D. Byron-Smith to be published by Pilar Publishing in January 2014.)

Friday, September 20, 2013

Take That!

Talk about the bleeping arrogance of government. The Southern California city of Perris -- yes, pronounced like Paris, but much dustier than the real one -- takes the cake.

And we mean “take.”

It came to light in a recent case of “eminent domain” -- a couple of dirty words to regular folks. The city decided to build a road across part of a ten-acre vacant lot zoned for light industrial use and owned by a guy named Stamper and his partners. We’ll call them the “Stamper Boys.”

Well, the city (we’ll call them the “City Gang”) moved to “take” the two acres of land it needed for its road under eminent domain proceedings in Riverside County Superior Court. You know what eminent domain is, right? That’s when government takes your land for public projects and pays you something so that it doesn’t look like stealing.

In this case the City Gang offered the Stamper Boys $54,800 -- take it or leave it. The City Gang based the price of the two acres for the road on the vacant land’s value for growing crops. The Stamper Boys, if we may carrying the farming metaphor further, indicated the city was out of its gourd; that the land was zoned to build a factory and worth upwards of $512,000. (They hadn’t just fallen off the turnip truck, you know.)

They soundly argued that the land should be valued at its highest use as industrial property -- its current zoning, which, after all, had been set by the city.

But, what happens when you push a bully back? Like any street thug, the City Gang pulled out a Smith & Wesson in the form of a legal document. They said no matter what the Stamper Boys argued, the city of Perris would never approve the building of a factory on the remaining eight acres owned by the Stamper Boys without first requiring that the two acres the city wanted for the road remain undeveloped until the city built its road. At that point, the city would “take” the land anyways.

Does the concept of extortion come to mind? In brief, the City Gang had the Stamper Boys by their legal short hairs.

The case went to court and a two-pronged process was approved by a Riverside County judge. First he would hear evidence and rule on the constitutionality of the eminent domain “taking.” Then, a jury would be called to determine the amount of money the City Gang had to fork over to the Stamper Boys.

In the first court phase, the judge joined the City Gang, ruling in its favor. As a result, the Stamper Boys surrendered, agreeing to accept only $44,000 for their land, without going to a jury. Why did they capitulate? Because the judge ruled that the jury would have to determine the price of the land on its agricultural value and not on its zoned value for a factory. Essentially the judge tied the hands of jurors, giving them little wiggle room on the dollar amount.

The Stamper Boys rightly appealed, saying the land-taking was unconstitutional.

Recently a California court of appeal weighed in, overturning the case. They sent it back for a jury trial, saying that regular folks should decide whether the City Gang could rustle up the land, and if so, how much they’d pay, while noting the judge “erroneously usurped the role of the jury.”

Thursday, September 12, 2013

A Killer Calling

           In the early 1980s a male nurse turned psycho and murdered upwards of 50 elderly people in their hospital beds, heinous crimes that brought health care in Southern California to its knees, and made international headlines. Sometimes even while he held their frail, withered hands or wished them happy birthday, this sadistic killer injected defenseless old people with lethal doses of the heart stimulant, Lidocaine, which caused horrific seizures and death. It's a cardiac drug still commonly used in hospital emergency rooms, and, in the hands of sane medical professionals, has saved millions of lives. I covered the hospital murders for a daily newspaper, and once even interviewed the killer over a bloody plate of beefsteak -- months before his arrest -- where he actually described the last minutes of life of victims.

          Here's a scene from Chapter Five of my memoir "Dinner With A Killer," available at all Web booksellers. The scene shows how a reporter's professional life can spill into minor chaos at home.

“You gave a mass murderer our home telephone number?”

I had just told my wife that I had given our home telephone number to Robert Diaz, the nurse suspected in the hospital deaths.

She was incredulous, and to make her point dramatically sharper in an illustration that shouted “just how bone-headed can you get,” she wrapped her arms around our three-year-old daughter, protectively.

“He only kills old people,” I said, trying to bring a little brainy logic into her much-too emotional state.

“Well that’s comforting.”

“Look, he might be willing to sit and talk; that would be great for my career. It’d be a huge headline. I gave him my home number to show some trust.”

“How about your family’s safety?”

I could see the frightened glazed look of being axed to death in her eyes.

“He’s only a suspect,” I said. It was lame but true. “He hasn’t been arrested.”

“You didn’t hand him our home address along with it, did you.”

I paused, making kind of a mock sweep of guilt with my eyes around the living room. It was all for effect, and that’s what I got.

“You gave a mass murderer our God damn address?”

She was yelling now, and -- as she gathered up the kid as if to run off to mother for safety -- I intervened. “Of course not.” I thought about telling her that it was a simple reporting skill to look up an address in the Crisscross Directory once you had the phone number but held up: why poke the bear, as they say.

“I’m done,” she said. She was calming down I could feel it.


“I’m not answering the phone anymore.”

“Why?” I asked the question but I knew it was rhetorical.

“It might be him.”

I thought about saying, “I hope it is,” but said, “Oh, he’ll never call.”

That night I slept on the sofa, feeling the true depth of her anger.

About a month afterward ... the telephone rang around nine at night. On a morning daily newspaper a late-night call to a reporter from a copyeditor about a story the reporter had written that day was nothing unusual. The call was likely the copydesk, I figured.

My wife answered the telephone, and after a male caller asked for me, she asked, “Who’s calling, please?”

“Bob Diaz,” the voice said.

She hurriedly cuffed her hand over the phone receiver and said in an animated whisper, “It’s him, Diaz.”

I’m sure my eyes were pretty wide open when she handed me the phone. She immediately left the room, probably to make sure our daughter was in bed, and more importantly, safe.

He was calling to set up an interview at his home in Apple Valley for June 15th. It would be the first of two interviews I had with him months before his arrest. Each lasted more than an hour and one was conducted in the restaurant of then-fashionable Apple Valley Inn near Diaz’s apartment. The Inn which was a stone’s throw from where Roy Rogers lived in a new horseshoe-shaped home built by his son, Dusty Rogers, had gained local fame two years before as the location where movie star-director Robert Redford had directed actors Mary Tyler Moore and Donald Sutherland in scenes for his hit movie, “Ordinary People,” which won Best Picture Oscar in 1981.
-- From "Dinner With A Killer" by R.D. Byron-Smith.
(Blog readers interested in my "run-in" with Mary Tyler Moore on the set of "Ordinary People" at the Apple Valley Inn during filming can read about it in my new memoir, to be published soon. For a taste, see blog "Getting the Lead Out," 6-10-13, a scene from the new memoir to be published by Pilar Publishing,  

Saturday, August 24, 2013

The Heart Never Sleeps

Many of you have read my crime novels and in them you know murdered bodies seem to multiply like morning glory twining a picket fence. For instance: Hemingway Homicides, Image of Evil and Murder Under London Bridge. But, the only bodies in my latest novella, The Heart Never Sleeps, are the hot and steamy kind. In this story of modern love and discovery, middle-aged Elizabeth Kent is a self-confessed "cougar" who is assigned to write about a GI who wakes fully alert from a coma four decades after being wounded in war. She soon learns she has much in common with this "older" man and his "life never lived."

Until November the book is available only at Amazon. After that check the usual suspects such as Apple, Barnes & Noble, Kobo, Smashwords and other Web booksellers. Search "R.D. Byron-Smith" to find all my fiction and nonfiction books. And thank you for doing so.

I'm including the first chapter of The Heart Never Sleeps © 2013 by R.D. Byron-Smith and Pilar Publishing. Inquiries:

Chapter One

Five-ten, she read the bedside clock, and switched on the light in the master bathroom. She hadn’t wanted it to go this way, at least not just yet, but it had, and now that in her mind their “relationship” had passed the buoy of no return, her unmade face looked swarthy and sea-worn in the vanity mirror. Closing her eyes didn’t rub it away. She stuck out her coffee-stained tongue, curling it downward toward her chin in the mirror.

“Yuck,” she managed, still tired. She’d have to clean her tongue later.

Suddenly she had an unexplainable urge to attend early Mass. It was Sunday morning in Arlington, Virginia and wasn’t it the bishop himself who had reminded her she’d been away from church too long, the last time they talked on the phone.

She’d wake the dude now snoring across her king bed, and tell him to leave her apartment. Her place only had one bedroom and there wasn’t room for his ego.

It wasn’t like she wasn’t practiced at these shoveoffs.

Elizabeth Gale Kent had been taking in young stray dogs for years, and she had a knack for knowing the exact time to take the food bowl away. In the mirror she could almost see her head throbbing from her indulgence of vodka cocktails last night, and her thigh muscles ached. She’d thought her legs would have been used to the kind of work over she had had, and Kent managed to chuckle to herself in the mirror, remembering her last visit to the nurse practitioner for a pelvic.

“How many sex partners have you had?” the nurse, new at the clinic, had asked, explaining they were conducting a survey for the National Institutes of Health.

“Before or after marriage?” Kent mused back at her intrusive carnality. After getting home that night she roared to herself, thinking of it: “And why does the damn government want to know how many guys I’ve slept with?” Truth be told -- and Kent herself had crunched the numbers one night alone, curious and drunk -- the average age of her sex partners was 27 over the past decade, and she hadn’t made love to anyone more than 32 since her divorce.

She had a voracious bodily appetite, and the hairy-backed, muscular 26-year-old now sprawled buck naked in her bed was the latest hot dish. She had met him at a lavish party hosted by The Washington Post for the Washington Press Corps, and although Kent was Pentagon reporter for the rival Washington Tribune, she had been invited, first, because she was a bonafide Press Corps member, and, second, because she had stunning looks for a 47-year-old, knew how to hold a Champaign glass the right way according to Miss Manners, and enlivened any gathering of mixed sexes. Whispers followed her as she left the party before midnight with the youngster in tow -- he’d just have to get used to it because she had years ago. That was a week ago.

He worked for a think tank off K Street and in their first night together he had shown her what he had really been thinking about at the office. But, like the same campaign speech on the stump by a political candidate, reporters tend to get bored with repetitiveness sooner than most, and for Elizabeth Kent last night had been nothing new and it was time for her latest young studly thing to think about impressing other older women.

Now, with her make-up finished she looked 10 years younger, she stood at the foot of the bed, having squeezed into a white, wholesome skirt, and buttoned a white and pale yellow flowered blouse from the closet. She readied a pair of white flats from the closet.

“Mark, wake up,” she said in a raspy, morning voice.

He remained a dead weight on top of the sheets.

Had he awoken he would have seen her straight blonde hair scissor-cut just above the shoulders, her smooth, tanned, unblemished complexion, a delicate nose centered between attractively high cheekbones and a mouth squeezed into perfection by two puffy, red lips, all playing second fiddle to a melodious body, proportioned fulsomely top and bottom. In other words, she was a female stud muffin.

Kent shook him, and he rolled over, lifted his head and yawned. “What time is it?” he said, sleepily, looking around. “It’s still dark. Come back to bed.”

“No, it’s time for you to leave,” she insisted. “I’m going to Mass.”

“Mass? Jesus Christ!”

“You’ve got the concept, yes.” Kent tapped him on the bottom of his foot, saying, “Come on, up!”

She didn’t want it to get nasty, as some of these partings had, and she added, “I’ll make you a couple eggs and bacon, if you like. I’m just having coffee and a croissant, but, I’ll cook breakfast for you.”

Now how magnanimous was that?

“Screw breakfast,” he barked like a woolly hound at her, getting dressed in a hurry, as if he couldn’t wait to get out. -- As if she might drip cold holy water on his nakedness. His rush of attitude belied his inner anger. She had seen it often in her passing stable of young stallions. -- Always eager to trot when a canter was called for.

“OK, screw breakfast,” she said, without a smile, leaving the room and going to make coffee in the kitchen.

Now he stood shoeless at the kitchen door as she was measuring ground coffee for the coffeemaker. “When will I see you again?”

“You screwed up my count,” she said, angrily, dumping the coffee in the filter back into the one-pound can of Yuban. “Shut up for a second.” She counted out ten spoonfuls. “OK, what?”

“When can I come back?”

“Mark, we’ve had a lovely go-round, to our mutual satisfaction, I am confident in saying. But, our relationship has gone as far as it can, I’m afraid.”

“Bitch,” he mumbled, scorchingly.

Kent had been to Iraq and Afghanistan, embedded with Army Rangers, Marines and Special Operators, and had let loose enough of these tough 20-somethings to have become battle-hardened herself. Not one of them -- not one -- had ever called her a bitch.

“Get out of my house this minute or I’ll call my SEAL friends and you’ll be floating face down in the Tidal Basin.” She grabbed her cell phone from the countertop. “Go home to your mother!”

“If I wanted my mother I’d stay here.” He turned to leave, mumbling, “broken down, wretched old bitch.”

When skin talks to skin you learn a lot.

She trailed him into the living room as he put on his shoes near the door. “Who’s weirder, an old woman who likes younger men or a young man who craves old women?” Kent’s quarrelsome heart pounded and she shouted, “Get out!”

He slammed the door, knocking a picture off the wall.

“I might call a SEAL anyway,” Kent huffed to herself, picking the picture off the carpet, hanging it up, and returning to the kitchen for coffee. She never made the call, and in less than an hour she walked piously up the steps of her church, pulling a lace shawl over her head, ready to atone for her plenitude of sins.



Monday, June 10, 2013

Getting the lead out

I just finished David McCullough’s excellent book on the Johnstown, Pennsylvania flood of 1889, which killed 2,000 people. Reading it made me think of my own run-ins with flood waters over the years, both covering them and as a victim.

In the mid-1990s my wife and I owned a weekly newspaper in a small town in Washington State. About every third decade the town flooded. It was situated stupidly between two rivers in a flood plain.

The last flood had been in the sixties. So, guess what?

Causing the flood was something quirky and particular to the Pacific Northwest. Called a Chinook, warm air in winter causes temperatures to rise suddenly.

A snowstorm had thickly blanketed nearby mountains when temperatures violently skyrocketed, melting ice and snow into gushing torrents, cascading off the hills into the low-lying town of 1,000. All night waist-high, yucky brown water spread like soup, covering homes and businesses. It literally ran through our newspaper office: in the back door and out the front. The flood deposited eight inches of dead-fish smelling silt inside. We moved the paper’s computers and printers to our house on high ground so we could continue publishing.

As always happens in disasters, people began showing up, volunteering to help.

We had to move several heavy cases of lead ingots and lead type out of the building to clean it. A gang of men showed up and volunteered to move the wooden cases. The eight guys spent a half hour moving them out the back door. Afterward I stood outside with them, saying thank you. One of them mentioned that some of the lead type that had fallen out of the cases was “really cool.”

“Pick up what you want and take it with you,” I said to him, pointing at little Z’s, W’s and M’s sprinkled on the muddy ground. Near them was a two-pound lead ingot for melting and making letters in a linotype machine.

“I better not, man,” he said, quietly. A few of the guys he was with snickered.

“It’s OK,” I said. “I own the lead and it’s yours if you want it. Put it in your pocket. It’s my way of saying thank you.”

The guy looked behind him sheepishly and shook his head. “Man, they won’t let us have no lead.”

“Who’s they?” I inquired.

He gestured around the building, and I walked out to look. For the first time I saw a uniformed, armed guard. Unbeknownst to me the state prison nearby had sent a gang of inmates to assist flood victims.

I had covered enough cops and courts to understand the meaning of aiding and abetting. Immediately headlines flashed through my brain.

“Inmate clobbers guard with lead ingot. ”

“Editor helps prisoners escape.”

I turned quickly back to the gang. “It’s cool,” I said, nodding and holding my hand up in a non-verbal whoa. “Better leave the lead lay.”

Ironically, months later we sold the lead to a fellow who made practice bullets for county sheriff’s deputies.


(Excerpt from an upcoming memoir about four decades in news by R.D. Byron-Smith. Look for his novels, including Image of Evil, and Murder Under London Bridge, and his works of non-fiction, including Dinner With A Killer at Web booksellers.)

Friday, May 31, 2013

Executing a business plan?

Perhaps it’s time to outsource executions in California.

After all, a May 30th appellate court ruling shows the state doesn’t know how to do it.

Most Californians know capital punishment has been on hold since 2006, when 700 bad men on San Quentin’s Death Row got a free pass to think a little more about the last seconds of life of their victims. But, by 2008 after the U.S. Supreme Court sent shivers through prison cells by affirming lethal injections for executions, justice-minded folks figured executions might begin again in earnest.

Alas, it wasn’t to be.

Enter pizza deliveryman killer Mitchell Sims and a couple of his infamous buddies on Death Row. They filed suit, claiming a drug used in a three-drug execution injection -- Pancuronium bromide -- was, well, “painful,” and that the state Department of Corrections and Rehabilitation failed to followed state law in adopting required execution guidelines, which had gotten the blessing of Gov. Arnold himself.

A Northern California judge who heard the case ruled that Pancuronium bromide was all right for executions, but also slapped the state prisons people for violating legal requirements in adopting their lethal injection protocol.

The state appealed. (It is interesting that before appeal, killer Sims dropped the issue over Pancuronium bromide, obviously fearing that the appellate court would essentially codify the use of the disputed drug in executions.)

On May 30th, an appellate court upheld the judge’s decision, saying that the department of corrections screwed up in its adoption of lethal injection protocol. The court ordered the prison bureaucrats to follow state law in adopting new ones.

The ruling puts executions on hold for the foreseeable future.

While it didn’t say it, the appellate ruling points up the state’s utter incompetence in applying capital punishment, despite the costly, hygienically painted new “lethal injection” room at San Quentin. (Did any condemned criminals ask for a tour when it opened in 2010?)

It seems that in executions, private industry could do a better job.

Think of it. Some enterprising technology wizards could form a company, logically in conservative Orange County, attract law-and-order venture capitalists and take over state executions. Like any Silicon Valley startup, at some point they’d go public on Wall Street. (Ticker symbol KILL on NASDAQ?) They’d come up with an execution method as simple as clicking a mouse, as fast as posting on Facebook. They’d likely forswear the archaic three-drug method of lethal injections for the one-drug kind used in Arizona and Washington. Fearful of putting profits in jeopardy, they’d follow state law to the letter, unlike the state itself. Executions would resume, ending the free ride of Sims and his ilk who have cheated California out of its justice for decades. Parenthetically, the three murderers involved in his suit have seven victims between them, crimes committed in 1980 (more than 30 years ago!), 1983 and 1985.

Flights of fancy aside: lacking the turning over of the punishment portion of capital punishment to a company with the ticker symbol KILL, the department of corrections should:

1. Not appeal the appellate loss to the state Supreme Court (that would slow things up).

2. Spend its bureaucratic energy on promulgating lethal injection guidelines which follow the appellate decision to the legal letter.

3. Adopt a one-drug lethal injection for executions.

Do these things and it can begin using the sparkling clean execution room at San Quentin for the purpose intended.

Is that too much for the families of victims to expect?

Thursday, May 2, 2013

Murder Under London Bridge

Sometimes a book will pour out of you like cuss words after stubbing your toe in the middle of the night. It was like that with Murder Under London Bridge.

The novella was inspired on a visit last year to Lake Havasu City, Arizona, where I met a childhood friend who was there on business. Seeing London Bridge there for the first time, it seemed the perfect locale for a murder mystery.

The main character is a dust-swept sheriff's detective trying to cope with the death of his wife while working to solve the most baffling case of his long career. That is if he survives it.

Here is the blurb that's going out with the book:

"When mutilated bodies of women begin bobbing up under famed London Bridge in the Arizona desert, aging Detective Garret Browning soon learns these aren't cut-and-dried, big-city serial murders. He is thrust into a world of Native American legend, supernatural lore and ancient vendettas, where, when the bloodthirsty walk upright, it doesn't mean they're human."

The book is available at Amazon, and at Apple, Barnes & Noble and other booksellers.

Wednesday, February 20, 2013

High Court Bites Florida

Every dog has its day. But, usually not before the United States Supreme Court. Unless it's Aldo, drug-sniffing dog for the Liberty County Sheriff's Office in Florida.

On Feb. 19, Aldo and his K-9 handler William Wheetley won a landmark case as the federal High Court reversed Florida's Supreme Court, and found that Aldo's drug "sniff(ing) is up to snuff" -- reciting the court's own doggerel.

The case involved a Florida man who was driving in his truck, complete with open can of beer in the cup holder, and was pulled over by the deputy for expired plates. The deputy noticed the man was unusually nervous and asked him if he could search his pickup. The man refused. The deputy got K-9 Aldo and walked around the truck. The German shepherd, trained to sniff out heroin, cocaine, pot, ecstasy and methamphetamine, alerted -- signaling with specific behaviors -- that it smelled drugs on the truck's door handle. The deputy searched the truck and found illegal chemicals used to make meth. The man then admitted he routinely "cooked" meth and "could not go more than a few days without" using the highly addictive drug. In court the man's attorney argued that the deputy didn't have "probable cause" to search the truck, even though the drug-sniffing dog had smelled meth chemicals. The trial court disagreed, and the man pleaded the equivalent of guilty, and appealed to the Florida Supreme Court.

Florida's top court agreed with the man, saying the cop had insufficient cause to search the truck, and the dog's nose alone couldn't be relied on. They didn't go so far as to require the dog itself to testify, but almost. They required a ridged test to show the dog's nose was reliable. The Florida court said prosecutors "must present the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts) and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability." The court said the "dog's performance history" was critical, especially whether the K-9 "has alerted in the field without illegal contraband having been found."

Well, the U.S. Supreme Court showed the Florida judges who's top dog. The justices said Aldo had gone through extensive training as a drug sniffer. The court said the Florida Supreme Court set up a checklist for determining probable cause that was unworkable and against the High Court's own "flexible" standard, which says a reasonable person looking at the facts can determine whether "evidence of a crime is present." In other words, the dog's behavior was enough to warrant the search. "The Florida Supreme Court flouted this established approach to determining probable cause," the justices wrote. They made intellectual fun of the Florida court's logic, saying it was requiring all this history on each dog's sniffing record, but "one wonders how the court would apply its tests to a rookie dog."

You can almost hear them panting with ridicule in their opinion.

(Postscript: In reading the official biographies of justices on the U. S. Supreme Court's Web site, all are rich in legal pedigrees. None, however, mentions whether he or she is a dog owner.)

Friday, February 15, 2013

Farrah, Warhol and Ryan O'Neal

A Los Angeles court has just handed actor Ryan O'Neal a monster legal win, one that could help him add to his $12 million net worth.

The Court of Appeal for the State of California, Second Appellate District, known among the lawyer-class as one of the brainiest in the state, has ruled that Mr. O'Neal could go ahead with his defamation suit against Farrah Fawcett's former personal assistant. As you might recall Mr. O'Neal and Ms. Fawcett, a TV personality and sex kitten of the 1970s, were friends and intimates for decades. Mr. O'Neal sued Craig Nevius for claiming that O'Neal committed a crime (a no-no in media law unless you have a police report). He claimed the actor stole a painting of Fawcett by Andy Warhol. A signed martini napkin by Warhol is gold, and this painting is worth $30 million. (The University of Texas claims Ms. Fawcett bequeathed it to the university and Mr. O'Neal disputes it. That's a separate lawsuit.)

Mr. O'Neal says the painting, one of two Warhol works of beauty Fawcett, wasn't stolen by him because he owns it. He sued Nevius for his defaming comments. Nevius defended himself by filing a motion used by newspapers called an anti-SLAPP motion. Essentially, an anti-SLAPP defense permits a person to speak his mind on public issues without fear of being sued. But, the state's anti-SLAPP law has a hole, which says if the wronged litigant has a good chance of winning his case for defamation, the matter should be heard in a trial. That is where O'Neal v. Nevius is now likely headed -- although our money's on a pretrial settlement in which Nevius begs for mercy and hands over what pitiful valuables he has.

Two of three appellate justices who heard the case sided with Mr. O'Neal. "We find the trial court was correct in its determination that O'Neal presented sufficient evidence of Nevius's malice to demonstrate O'Neal had a probability of prevailing on his complaint," the justices said in their ruling Feb. 14th. The justices went so far as to say Nevius "asserted that O'Neal was a fraud, a thief and a criminal" and that Nevius "hates O'Neal so much." The justices said Mr. O'Neal could be able to prove "actual malice" by Nevius, a legally damning statement in a defamation case.
One justice, however, sided with Nevius in a weak dissent. For naught, though. As the late-city attorney of Riverside, California, John Woodhead, once informed the then-Assistant District Attorney of Riverside County and later Superior Court Judge Jay Hanks, after Hanks tried to use a "dissenting opinion" to sway the Riverside City Council: "Let me remind the assistant district attorney, dissent means you lose."

What I particularly liked about this ruling is it is a strong reminder to bloggers on the Web who fashion themselves neo-journalists. Think you can say anything about people, especially celebrities such Mr. O'Neal -- who for this case was ruled a "public figure" under The New York Times v. Sullivan (1964)? No, you surly cannot. The old newspaper-bound laws of libel and defamation of character have gone digital.

Thursday, January 31, 2013

This Antitrust Suit's For You, Bud

The U.S. Justice Department’s trustbusters have brewed one heck of a brouhaha in the beer business, and like the chiseled-muscle buddy who asks you to hold his beer in a barroom brawl, they’ve got your back.

The feds sued Anheuser-Busch InBev, maker of top-seller Budweiser, saying that the Belgium company’s bid to acquire all of Grupo Modelo, brewer of Corona beer, is anti-competitive and will lead to beer prices foaming up like the head on a frosted glass of draft. The case should be of interest to all beer drinkers, who, according to the Justice Department, buy beer close to home and blindly pay whatever the going price is.

While the lawsuit is complex (it took 19 U.S. attorneys to file it), here it is in one gulp: ABI owns part of Modelo and wants all of it, and last year, ABI agreed to pay $20 billion for that pleasure. Modelo is the nation’s third largest beer seller, and No. 2 is MillerCoors. The lawyers at the Justice Department want to stop the sale of Modelo to ABI, claiming Modelo is the only one of the Big 3 Brewers that doesn’t always go along with beer price hikes, refusing to follow when other brewers raise them. The feds say MillerCoors simply follows Budweiser’s lead. The feds contend Corona’s shyness for raising prices will evaporate once Bud swallows Modelo, and as a result, prices at the Big 3 will continue to increase.

These federal trustbusters are born showmen. They really know how to create a buzz. They filed the suit Jan. 31, just in time for all those beer commercials during the Super Bowl. You know when Dynastic Team Bud Light takes on Upstart Team Corona.

Here is a paragraph lifted from the suit about the beer market, and it gives a little flavor of the antitrust case: “Modelo ... has not followed ABI-led price increases in local markets in California. Because of the aggressive pricing of the Modelo brands, ABI’s Bud and Bud Light brands have reported “heavy share losses” to Modelo’s Corona and Modelo Especial. Consumers in California markets have been the beneficiaries of Modelo’s aggressive pricing. ABI rescinded a planned September 2010 price increase because of the share growth of Modelo’s Corona brand,” which the feds say has been “eating (Budweiser’s) lunch” in California.

So what’s at stake, according to antitrust division of the Justice Department? Eighty billion bucks. That’s the amount of beer Americans swill every year. The feds claim putting the stopper on Bud’s bottling of Corona will maintain competition. We should all drink to that. What’s ABI say? Well as far as the suit, they promise to fight rather than switch.

“Stay thirsty my friends.”

Friday, January 11, 2013

Calling Lazy Lawyers

I'm going to disagree with my learned friends on the California Court of Appeal who recently ruled in a case involving a Crips gang member in Riverside, who got his third strike and was sentenced to 25 years.

I don't care that this mobster got 25 to life for selling cocaine. What I do object to is the appellate justices, in ruling to uphold his conviction, also setting a precedent that encourages lazy lawyering.

Here's what happened. The man was arrested and assigned an attorney. Before trial the defendant decided his lawyer wasn't up to snuff and filed a "Marsden" motion which allowed him to ask the judge to let him fire his lawyer. The judge rejected the request but again, well before trial, the gangster filed a second "Marsden" motion in a note to the judge, saying he wanted a hearing to show why his attorney should be canned. The judge ruled he "would hear the motion on April 27th."

As often happens in California's bulging-to-to-point-of-breaking criminal courts, the guy's trial was postponed many times. At first, every delay was noted in the court's official record, stating that a "Marsden" hearing was to be held when the trial started. The first trial date rolled around and the defense attorney asked for a delay, and in the court's official record the clerk wrote, “Jury Trial / Marsden Motion to May 3." Several more continuances were approved by the judge, and each time the need for the "Marsden" hearing was duly noted in the record. However, on June 14th when the trial was rescheduled for June 21st, for the first time the court's official record didn't mention the "Marsden" hearing. Subsequently, the trial was postponed three more times -- July 7th, August 16th and August 20th -- and none of the minute orders from these court proceedings stated anything about a "Marsden" hearing. The defendant attended each of the court sessions.

Finally the trial got underway, and the judge began: “We’ve resolved most of the issues that counsel had brought before us. There was a couple of issues that counsel were thinking about, and so this is the time. If anybody has anything else that they want to say, put it on the record, make a pitch, or whatever. So feel free.” The judge never used the word "Marsden." The ignorant defendant "remained silent."

Here is what the appellate justices said in their unanimous ruling: "Defendant raised the Marsden issue by filing a handwritten motion in April 2010. However, he never again brought the matter to the trial court’s attention despite having been present in court a dozen times before his trial began. The trial court’s failure to conduct a hearing on the motion appears to have been the inadvertent result of the repeated continuances. ... Defendant had the duty of bringing his motion to the trial court’s attention at a time when the oversight could have been rectified. We conclude defendant’s failure to raise the issue before the matter proceeded to trial constituted abandonment of his claim."

So they're blaming the dumb gangbanger. How about his dumb lawyer who knew his client wanted to fire him but blithely neglected to remind the judge about the pending Marsden motion? How about the dumb judge who knew the guy wanted to fire his lawyer but somehow forgot? And how about the dumb court clerk who stopped writing the word "Marsden" in the official court records? We won't dump on the prosecutor who understandably didn't want to stick his nose in it. The appellate court lets them all off the hook, blaming the defendant who knows less about the judicial system than any of them.

The ruling coddles the man's attorney and as a result encourages laziness by lawyers who "forget" to carry through on their clients' wishes, however distasteful and self-afflicting. This ill-advised precedent also pardons sloppy record-keeping by our courts.

Friday, January 4, 2013

Dinner With A Killer

Now that my latest book is published I can return to this blog.

Most of you know me as a fiction writer. And I love fictionalizing crimes I have covered as a newspaper reporter for you, often enhancing the thrill by mixing in terrifying glimpses of the supernatural, as I did in "Image of Evil," my first novel based on the true and grisly hatchet murders of a family in Southern California.

My latest book, however, is fully non-fiction, cross my heart. "Dinner With A Killer" published in December is a memoir of the most sensational hospital serial murder case in California's history. I reported the story from discovery of the first corpse to sentencing of the murderer, a male nurse who injected victims with drug overdoses while he worked alone at midnight in the intensive care ward. The title comes from my exclusive interview with the killer over a beefsteak dinner, in which in between bites of his bloody T-bone, he remembered the last moments of life of his murder victims -- months before his arrest. The book also details the painstaking investigation of the crimes, one of the most complex in history, and includes information never before published.

You can get the new book at Amazon, Barnes & Noble, Apple and other booksellers.