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My Retirement: Pucks, Ducks, and Yucks
Well, it's official. The retirement papers are filed, I've said goodbye to my colleagues, and turned in my ID card. I may come back on assignment sometime, but basically I'm retired.
I know I'm going to miss it. I enjoyed it tremendously. I liked making the rulings, liked the attention, even liked the controversy.
I felt bad, of course, about my mistakes. But there were only five of them in fifteen years, which I felt was a pretty respectable number, considering all the calls I had to make.
Oh, I know there are some who insist I blew more than five calls. I got used to guys banging their sticks against the glass and glaring at me. And I frankly kind of enjoyed it when Grant Fuhr, a Hall of Famer, threw a water bottle at me. But instant replay only proved me wrong five times, so that's the number I'm claiming.
And one of them - the puck that went through the net - really wasn't my fault. An accident reconstruction specialist later explained to me that the time it takes a hundred-mile-an-hour slap shot to go through the thickness of a hockey net is faster than the human eye can react, so there really wasn't much I could do about that one. Had it not been for ESPN's super-slo-mo camera, I would have suffered only four reversals.
But it was time to put an end to my career as a National Hockey League goal judge. Like all great athletes. I had lost a step over the years. The climb from our locker room to my seat behind the net seemed steeper, the line for the pre-game meal in the press room seemed longer, the chair in which I sat for three periods seemed harder.
It was just tougher to get into judging shape every season. It may have looked to the uneducated eye like I was just sitting around, but actually, goal-judging is a lot more sedentary than it looks.
And the wear-and-tear on your thumb is - as you can imagine - brutal. My job was to sit for two-and-a-half hours every night, pressing a button to turn on the red light above my goal every time the puck went in.
Sure, most hockey games end with four goals scored. But there were occasional wild shootouts, crazy 6-5 offensive pyrotechnic displays, which could mean a half-dozen thumb movements a night. You add to that the ceremonial testing of the light before every period, multiply it by 45-55 games a year, and you can see what I mean about the fans not appreciating the physical toll goal-judging imposes on the body.
It was time to step aside for a younger man.
A shame really. I'd done the job for fifteen years. The NHL thus ties the Orange County District Attorney's Office for the title of employer who was able to put up with me the longest.
I was one of the original Anaheim Ducks goal judges. I was there opening night. I called the first goal in franchise history.
I got the job by writing a letter to the NHL when they announced the formation of a franchise in Anaheim. I pointed out to them that this was not Saskatoon; they were not gonna have thousands of job applicants who had been goal judges before.
I told them I had a day job where people yelled and screamed about my calls, so that wouldn't bother me. And I figured out that as an L. A. Kings season-ticket holder for fifteen years, I had driven 60,000 miles to see hockey games.
This last was one of the most embarrassing admissions of my life. I did the math several times before I was able to face the horror of it. Fifteen years of making a hundred-mile roundtrip from south Orange County to Inglewood forty times a year came out to 60,000 miles.
Sixty thousand miles. The equivalent of fifteen trips across the country. To see hockey.
Worse yet, to see the Kings, who, while not exactly the doormat of the league, were at least one of the throw rugs.
Only in an application for a job as a goal judge would that not qualify as an admission against interest.
But it worked. They tried me out for a coupla months in a professional roller hockey league in Los Angeles. When I convinced them I could watch roller hockey for two hours without losing consciousness, they hired me.
And it was more fun than anyone ought to be allowed to have.
For one thing, unlike the rest of the world, the National Hockey League recognizes degrees of impartiality. All season, we were expected to be impartial. But for the playoffs, we had to be REAL impartial . . . so they sent us on the road.
This meant me and a couple of my buddies from the officiating crew would go to Denver or Vancouver or Phoenix or Chicago or wherever they needed REAL impartial goal judges to replace the merely ORDINARILY impartial goal judges of the home team. There we would officiate two hockey games in three nights.
On a typical assignment, we would fly in on Thursday and work the hockey game. Friday we would get up and play golf, and then - since there was an off-night between all playoff games - we would go to a sports bar and watch hockey games on television. Then Saturday, we would go play golf. Saturday night, officiate the hockey game. Sunday morning we'd fly home.
It was every nineteen-year-old's dream weekend.
Of course, it wasn't all country clubs and margaritas. I had a full beer dumped on me by an irate fan in San Jose. I got stuck in a wild Cinco de Mayo parade in Denver and was almost late for the game. And one of the referees, Rob Shick, beat me like a drum on the golf course every year.
In short, it was grueling work and exposed us to the seamy underside of professional sports.
And, of course, there were those horrible reversals. When you make a mistake as a trial judge, the Court of Appeal sends you a politely worded opinion two years later that tells you what you should have done. They share it with the parties and their attorneys, so maybe a half-dozen people in the world know you erred.
In the NHL, they announce it to 17,000 beer-drinking fans and a local television audience: "The guy in the NHL blazer sitting behind the net, the guy with the beard who has nothing to do but watch the puck . . . he screwed up."
At least that's how it sounds to the goal judge, whose hearing is usually distorted by the glass box in which he is sitting - and the booing and laughter of the crowd.
It is, of course, even worse if the game is nationally televised. Once, when I was in trial and had to stay late to work on jury instructions, the crew chief asked the two penalty box officials if one of them would fill in as goal judge. One responded, "Are you kidding? Do I look like a masochist? The job description for goal judging tonight's game is, ‘Sit there for three hours waiting to be embarrassed on national television.' You gotta be crazy to do that job."
You don't have to be crazy. But it helps.
Which, of course, makes it a lot like my day job. Being crazy helps if you're going to take a job where the best grade you ever get is 50%.
And that's the plight of the bench officer: Every call makes you one temporary friend and one permanent enemy.
That's a little disconcerting when you first realize it. When it first dawns on you that you are not universally admired, that the attorneys do not go home singing the praises of your Solomonic wisdom, and that in fact they invariably walk out at the end of the day convinced you blew at least three calls, it comes as a bit of a shock.
And in a civil case, with a half-dozen parties, you can get grades like 33% and 16%. Judges are people who did well in academia; we are not used to bad grades - much less F-minuses. Watching six of the seven lawyers in the courtroom struggle to find different euphemisms for "moron" is tough on us.
But in almost a quarter-century, first as a trial court judge and now as an appellate jurist, no attorney or litigant has booed me, thrown a water bottle at me, or drenched me in beer. That may not say a lot about my judicial skills, but it should indicate to you why I decided to leave the NHL and stay with the court system.
 And smaller.
 With only two fifteen-minute breaks, two one-minute time outs, and fifty or sixty stoppages of play a night. Sweat-shop working conditions.
 Yeah, I know, Lloyd Freeberg, the local criminal defense attorney who's served as the other goal judge all these years, is still going strong at 94 or 95 or whatever his age is now. But Lloyd's a physical freak who still PLAYS hockey two or three times a week. He's been paying for ice time and his equipment with his social security check since the Eisenhower administration.
 Peter Zeughauser, another Orange County attorney, was the goal judge at the opposite end of the ice. How the only attorneys on the officiating crew ended up locked in a glass box every night is a question I try not to dwell on.
 And the first one in Great Britain, when the NHL's 2007 two-game opening series between the Ducks and Kings in London was serendipitously scheduled the same week as my speech to the ABA's International Law section.
 Let me hasten to point out that I was a trial judge then and the hallway outside my courtroom on law and motion day resembled nothing so much as an 18th century asylum, with people tearing their hair out, screaming at the tops of their lungs, and trying to leap through windows.
 Pretty much the same qualification that convinced Pete Wilson I was Court of Appeal material.
 Except without the strippers.
 San Jose provided two ushers to protect the goal judges, but mine was over-qualified. He was a college student. He knew enough to get out of the way of flying beers.
William Bedsworth on Friday, November 05, 2010 at 15:15
Finally -- A Judging Job I can Handle
I think I've found my calling.
This will come as good news to those of you who have waited so long for me to find it. You were pretty much convinced it wasn't appellate justice or columnist, but you were hard-pressed to figure out what it might be.
So was I. Lord knows, I've looked everywhere.
They've had me judge criminal cases, civil cases, superior court, juvenile court, appellate court, dog shows, flower shows, chili cookoffs, the National Hockey League . . . . The idea was to have me judge stuff until we found something I could handle.
We were still looking until last week, when my wife handed me a copy of Time Magazine and there it was, smiling up at me from page 43. Something I could handle: Fantasy Sports Judge.
I beg your pardon? Of course that's a real job. And a danged important one if you ask me.
Fantasy sports judging is the wave of the future, and I'm gonna jump on it and ride until I reach the shore or fall off my board, break my collarbone, and spend the rest of the summer the laughingstock of Hermosa Beach.
According to both Newsweek and BusinessWeek, fantasy sports is a three-billion dollar industry in this country. I'll stop while you re-read that sentence and try to catch your breath.
In fact, this might be a good time to take a break and walk around the block. After all, it's not every day you encounter a sentence that tells you the culture to which you belong has reached a new nadir. If you thought we made a u-turn at Smokey and the Bandit and were headed back toward civilization, this has to be crushing news for you. A little fresh air might help you deal with it.
A three billion dollar industry (this is an admitted approximation; it grows 7-10% a year and it's hard to keep up with the numbers) with somewhere between 15 and 25 million participants. Baseball, hockey, football, basketball, golf . . . hell, for all I know there's fantasy badminton and backgammon. You talk about addictive substances, fantasy sports is right up there with cigarettes, alcohol and baked goods.
I personally manage two baseball teams and a hockey team every year. That means the sun never sets on my need to know who got a hit in the Pittsburgh-Houston game and how many assists the Blackhawks got against the Leafs, games I would otherwise have no interest in.
Don't look at me like that. Justice Fybel has a baseball team and I know of at least two other judges and two of the best lawyers in this county who play. And we don't even play for money; we're just in it for the competition.
The mayors of eleven major United States cities (including San Francisco, Sacramento, and Oakland) are, as I write this, adjusting their rosters for their big Yahoo fantasy football competition. Soon they too will be squinting from having to read the agate nanotype in which box scores are printed.
I don't know how to break this to you, folks, but while you've been spending your off hours listening to Copeland and Ives and Cage, re-reading the Durants, and cultivating your cymbidia, much of the male - and a statistically significant portion of the female - populus has been pouring its time down the sink of fantasy sports.
You wanna know how big it's gotten? Yahoo and the National Football League Players' Association spent part of their summer vacation sparring in US District Court over whether Yahoo was going to have to pay for NFL stats for its fantasy leagues. Two years ago the 8th Circuit, in a 2-1 decision ruled that a fantasy sports company did not have to pay Major League Baseball for using its players' names and statistics in its fantasy games.
If you are not a government lawyer - if you have the luxury of choosing your clients - you know this indicates there's big money involved. I mean, you're not going to choke down your pride, put on your best big-boy suit, stroll into a federal circuit court and utter the sentence, "I represent a producer of fantasy sports games," unless there's some serious green on the table.
And I aim to clear that table.
Turns out there is an outfit called SportsJudge.com, started five years ago by a Rutgers law professor and erstwhile Skadden Arps associate, that resolves fantasy sports disputes. For a fee.
You think somebody violated your league salary cap or made an illegal waiver claim or made a trade after the trading deadline? Take it to SportsJudge.com. You think there's been collusion in your league because Joe Shlabotnick just traded three all-stars from his cellar-dwelling team to his cousin Tony Shlabotnick's contender in exchange for the Minnesota Twins' bat boy? Take it to SportsJudge.com.
But just as our judicial system has its alternative dispute doppelganger, Sportsjudge.com will soon have competition. Me.
Hey, not only am I a fantasy sports veteran, I'm a judging veteran, with 25 years' experience and the NHL on my resume. This is perfect for me; I'll be great at it.
I haven't yet decided on a name for my new enterprise. I'm going back and forth between JAMSMUS (Judicial Arbitration and Mediation Services for Made Up Stuff) and ADRARD (Alternative Dispute Resolution for Alternative Reality Disputes). My choice of a name has been delayed by the need to do a little research on unfair competition law, but I'm almost there.
And this is just the beginning. There are all kinds of computer-simulated virtual worlds, whose players, having created their own worlds, now prefer virtual reality to life. Those folks seem to be tripping over each other to spend real money on made-up furniture for their made-up homes in their virtual reality worlds. And when they start slipping on the made up floors of the made up furniture stores and spraining their avatar lumbars, they're gonna wanta sue somebody, right?
And when they do, and when they find long lines waiting at the virtual courthouse doors, they're gonna come to JAMSMUS or ADRARD or whatever I end up naming this thing.
And when that happens? Easy street, Baby.
No more lugging briefs home every night, no more petitions for rehearing all weekend, no more ruling in favor of whichever side's brief the cat falls asleep on . . . oops, did I actually say that out loud?
Better get back to that unfair competition law research. Me and the cat may need work sooner than I'd planned.
 I was a National Hockey League goal judge for 15 years. Worked NHL games from Anaheim to San Jose to Chicago to Vancouver to . . . well, to London, England, where the Ducks and Kings played the season openers in 2007. Great fun, but I would have had to work 2,000 games a year to match my DCA salary.
 My writing instructor always said metaphors are better if they are based on true life experience, but I find that mine often take turns I don't anticipate.
 Just stay away from rooftops and bridges. And leave your gun, your belt, and your shoestrings behind.
 I'm usually skeptical of any statistics that involve something people are liable to do under an assumed name. Especially if they're liable to do it several times and only report once. After all, if you tried to gauge how many people eat chocolate chip cookie dough right out of the package, my own consumption would lead you to overestimate by a couple of hundred.
But I keep finding numbers like this everywhere I look. Lord have mercy.
 Football is the big dog in the kennel. Fantasy football generates a fanaticism that makes you grateful there is no reason for them to resort to improvised explosive devices.
 San Francisco inexplicably took Peyton Manning when it could have had any of the 49er quarterback candidates.
 My wife calls it baseball porn.
 "I represent a serial rapist"? Maybe. "I represent a polluter of our nation's waterways"? Maybe. "I represent a producer of fantasy sports games"? Show me the money.
 That whirring sound you hear is my mother, who never got me to clear a table in her entire life, spinning in her grave.
 Yeah, I know it sounds like a weak argument, but my pitch for the Court of Appeal gig wasn't a whole lot better, and here I am. Say what you will about me, I can sell.
 Pronounced "Jams-am-us."
 Maple Street, Second Life, Fox News.
William Bedsworth on Friday, November 05, 2010 at 15:10
A Ticket to Walk: Cap'n Crunch and the Other Terrorists
I think I may have underestimated the Pepsi Cola people. This would, after all, be an easy thing to do. About all we see of Pepsi is that red-white-and-blue beachball logo, and it's hard to take them seriously as an evil empire when all they seem to want us to do is join the Pepsi generation and think young. Frankly, I think we've long since passed the point of diminishing returns on getting me to think young, and I doubt I would be successful if I tried somehow to switch generations, so I'm afraid I haven't paid them a lot of attention.
Too bad. Turns out they are some kind of corporate Hannibal Lecter and I've fallen right into their evil clutches.
Yesterday I received word, via the magical powers of Al Gore's internet machine, that Pepsi is part of a vast, international Zionist conspiracy. The worldwide web treated me to a diatribe by an Egyptian cleric who maintained on his television show (picture Jimmy Swaggert with an Old Testament beard and a turban) that the letters P-E-P-S-I were an acronym for "Pay Every Penny to Save Israel." According to him, every time I drink a Pepsi, I'm really investing in missiles for Israel.
This was, of course, remarkable news to me, since I was pretty sure Pepsi pre-dated Israel by at least fifty years, and if the company was that prescient, I would have expected their stock to be selling for more than $54 a share.
But it was on the internet. It had to be true. At least that's my understanding of the law.
And it appears to be the understanding of a disturbing number of people who have my email address. I find that I know people who do not accept as authoritative the Koran, the Pentateuch, the New Testament, Joseph Smith's golden tablets, the sworn testimony of the Attorney General, or the pronouncements of the United States Supreme Court, but will forward to me every half-baked crackpot idea they find on the internet as if they had personally seen it graven in stone and handed to Moses.
Thanks to these people, I have learned that Barack Obama is not a United States citizen, that Hillary Clinton bore three children out of wedlock, that the walls of my colon are plastered with at least ten pounds of gunk, and that Elvis Presley is alive and being held for ransom in the rec room of a Croatian family in Secaucus, New Jersey. I have learned that the mainstream media hates U. S. soldiers, that stem cell research was started by Adolph Hitler and that the Virgin Mary is flitting all around the world to make guest appearances on cheese sandwiches and garage doors.
And now, thanks to the worldwide web and some half-wit imam in Sharm el-Sheikh, I've learned the truth about the sneaky folks at Pepsico.1
The problem is that I don't have time to act on all these problems. There's just too much to do. As Edmund Burke so poignantly noted, "All that is necessary for evil to triumph is for good men to get too caught up in fantasy baseball."2
So it's important that I channel my efforts. If I try to combat all the evil plots and horrible conspiracies that show up in my email,3 my efforts will be diluted into ineffectuality - just as the Tripartite Commission intends!4
So, having conducted my own triage process to try to figure out which ones were most pressing, and having concluded that Dick Cheney can't save the world all by himself, I had bought a bus ticket for Secaucus5 and prepared an email of resignation to send to Justice Ming Chin.6 I was gonna rescue Elvis.
But then I received an email from Blaise Curet. Blaise is a nice guy, but he's an infidel as far as the internet is concerned. He insists on checking things with snopes.com7 and doing his own research. Blaise is hopelessly mired in the twentieth century.
So when he forwarded to me the story of Janine Sugawara and her heroic battle against Pepsico, he did not understand its significance. He did not realize how completely it corroborated the Egyptian holy man's clarion call. He had no idea it would cause me to forward my bus ticket and the Elvis email to Geraldo Rivera and go after Pepsico instead.
Janine Sugawara, like many brave Americans, fights daily against special interests.8 But, like the rest of us, she finds herself overwhelmed by their greater resources - resources they have gathered through unspecified nefarious means, the secrets of which have been handed down from the ancient Hebrews to Edmund Burke to the Masons to . . . uh . . . well, to the special interests.
One of the secrets they used against Janine was tricking her into eating Captain Crunch with Crunchberries breakfast cereal. After four years of eating Captain Crunch with Crunchberries breakfast cereal, Janine somehow developed the extraordinary insight that "crunchberries" were not berries at all! They weren't even fruit! They were sugar-saturated cereal just like everything else in the box.
As you might imagine, Janine was - to use the legal term - freaking blown away. Her trust in her fellow man, like her teeth, was completely eroded. She could not believe that Pepsico, a company she had trusted because their beachball logo seemed to be smiling at her, could deceive her this way. So, of course, she sued.
She alleged Pepsico, in its zeal to collect thousandths of dollars for Israel, had misled her. Until her phenomenal powers of observation uncovered the true non-fruit nature of the crunchberries and foiled them, Pepsico was stealing her fractions of centimes and funneling them to the Middle East.
According to the opinion in Sugawara v. Pepsico 2009 US Dist LEXIS 43127, 9 the lawsuit boiled down to this, "The Crunchberries are pieces of cereal in bright fruit colors, shaped to resemble berries. While close inspection reveals that the Crunchberries on the [box] are not really berries, Plaintiff contends that the colorful Crunchberries, combined with use of the word "berry" in the product name, convey the message that Cap'n Crunch is not all sugar and starch, but contains redeeming fruit. This message is allegedly supplemented and reinforced by additional marketing that represents that, ‘Crunchberries is a combination of crunch biscuits and colorful red, purple, teal, and green berries'."
A winner, right? Colored Sugar Pops passed off as redeeming fruit! The attorney who drew up this lawsuit, clearly knew what he was doing.10 He had Pepsico by their corporate . . . er . . . berries.
But he filed the suit in the United States District Court for the Eastern District of California. This was, of course, a tragic error. The Eastern District of California is part of the Ninth Circuit, a court whose domination by the international communist conspiracy has been well-documented in scores of emails. Everyone knows the Ninth Circuit is in Pepsico's Zionist pocket.11
Sure enough. The case was assigned to Judge Morrison C. England, Jr. Think about it, folks: The man's last name is England! Edmund Burke was from England. And his first name, Morrison, is a Scottish name. Burke's Hebrew madrasah? Where was it? Scotland!!! The poor woman never had a chance.
Judge England threw her out of court. Oh sure, he cloaked his evil bias in bogus legalese, suggesting that reasonable consumers should know what berries look and taste like and that had she read the ingredients on the box, she would have seen it contained neither berries nor any other kind of fruit. He seemed to insinuate that four years was an unusual amount of time for someone to be unable to identify a berry. But anyone who ventures into the tubes of the internet - as any concerned patriot ought to do - knows the real reason she lost.
I would call filing in the Eastern District a rookie mistake, but Janine is not a rookie. A few years ago she dragged Pepsico - kicking and screaming - into the sunlight over their fraudulent marketing of Froot Loops, a product which, as she revealed to an astonished America, contains NO FRUIT.
She lost that lawsuit, too.
God bless her and her lawyer for continuing to get up off the canvas and keep fighting.12 I look for more big things from them. I'm pretty sure Mountain Dew is not really dew, mountainous or otherwise. And if you're drinking Pepsi's Sierra Mist, well, you should get in touch with Ms. Sugawara right away, because you're clearly a member of the defrauded class.
Let's hope she and her courageous lawyer try a less closed-minded court next time. What circuit is Secaucus in? According to the internet, there's a dynamite false imprisonment suit there, just begging to be filed.
1 I've also learned, thanks to the imam, that a penny is "one-thousandth of a dollar." This is why the godless minions of Pepsico have been so successful: They have mastered the zero, an Arabic invention that has apparently not quite caught on in some parts of the Middle East.
2 Burke's prescience got him a job on the original Pepsico Board of Directors. Historians were baffled by his commitment to the survival of Israel until they found out he had been educated for three years in a hitherto unknown Hebrew madrasah in Scotland. If you doubt this, just google, "Burke Scotland schooled with Obama."
3 Did you know that no Jews died in the 9/11 attacks? Or that the plane that crashed into the Pentagon was in fact NOT one of the hijacked airliners, but a small jet of a type typically used by the CIA?
4 It's also important to remember that sometimes, as Senator Ted Stevens explained so well, the tubes that make up the internet get clogged up with advertising and important emails sent to him by his staff sometimes get delayed for several days until Roto-Rooter can get the internet up and running again. So when you try to figure out which conspiracy to fight against, always check to make sure you're dealing with new matter. The Hitler/stem cell email, for example, was sent to me in 1944, and only arrived two weeks ago.
5 Did you know you could buy bus tickets on the internet? Be careful to re-read footnote 4, however, so you realize your ticket may not arrive as quickly as you'd hoped.
6 Yes, I realize that ordinarily my resignation should go to Chief Justice Ron George, but I received a disturbing email the other day indicating that during his Princeton years he once visited Secaucus and was friendly with an unusual number of Croatians, so I decided to send it to Justice Chin instead. I wrote it in code to make sure the Chief would not get wind of my plans to rescue The King.
7 I've forwarded to Blaise an email I just received explaining that snopes is actually British rhyming slang for popes and is part of a Papist conspiracy to turn all Mormon temples into IKEA outlets.
8 Special interests. Noun. Anyone who does not back your candidate in an election. Antonym: The American Way.
9 Once again, if you want the truth, you go to the internet.
10Although he inexplicably failed to name Gordy Berry and Halle Berry as codefendants.
11 After we invaded Iraq, and therefore had to delete it from the Axis of Evil because, in the immortal words of Pogo, "We have met the enemy and he is us," President Bush proposed replacing it with the Ninth Circuit. Fortunately Condoleezza Rice convinced him that if we lumped North Korea in with the Ninth Circuit, North Korea would almost certainly declare war. Just another fact the mainstream press failed to report because of their liberal bias. If you don't believe me, google Axis of evil, Rice, Ninth Circuit.
12 I have not included the name of her lawyer, though it's set out in the court's opinion. I've read that lawyers who file cases against Pepsico have a peculiar habit of turning up missing shortly after mysterious black cars bearing CIA or NSA license plates are seen parked in front of their homes. That is, of course, what happened to Judge Crater, a brave Prohibition era opponent of the Pepsico/Zionist cabal's scheme to distribute bourbon disguised as soda under the brand name "Cap'n Pepsiberry."
William W. Bedsworth on Saturday, August 01, 2009 at 12:52
Itís Alright Ma (Iím Only Bleeding)
I have gone gently into the good night of geezerhood. I'm not sure exactly when it happened. At some point, apparently while my attention was diverted, I went from being "The Kid"1 to being "Acting PJ." That's like going to bed Warren Zevon and waking up The Werewolf of London.
It's not like the age thing snuck up on me. Two years ago, my birthday breakfast was served under a banner my wife had hung in the kitchen: 59, Gateway to the Wild Embellishment Years.
And a plaque I won in high school is on a wall in my chambers.2 It's dated. Every time I walk past it, I am reminded of my membership in the Class of '65. I should know how old I am.
But I was somehow still unprepared to find myself blurting out medical information to virtual strangers: "Yeah, got an arthritic right hip that makes it difficult to walk the course anymore" or "Chondromalacia in the left knee; little too much weekend warrioring."
I was still surprised to hear myself muttering "Dipstick!" under my breath while a Nobel Prize-winning economist held forth on television. And I was not ready for the realization that my youngest, a junior at UCLA, no longer regards me as a major obstacle to her future happiness3 as much as a quaint memento of her childhood.
These sure signs of advancing age seemed to spring fully-developed, like Athena from the head of Zeus4. They just suddenly appeared, fully armored and intimidating as hell. Scary stuff.
I'm still fighting, but it's pretty much Custer standing next to the flag, pointlessly firing a six-shooter at a thousand Sioux and Cheyenne. I know as soon as I stop to reload, I'm going to be toast. I'm going to find myself eating dinner at 4:30, watching re-runs of Matlock, and yelling at kids to get off my lawn.
But even though I know all that, there is a part of me that takes great pleasure in the fact I have reached an age at which I have greater confidence in my ability to identify idiocy.5 This, I believe will be a great comfort to me when my children file the conservatorship petition. I'll be able to wave my walker at them and shout, "You idiots! I'm not crazy, you are. . . . and get off my lawn."
I mention this because another sure sign has manifested itself this morning. I find myself completely bumfuzzled by the morning paper. The newspaper, which, like me, treads further down the path of the buffalo every day, is so far over my head this morning that I can't even hear its engines.6 And I think this may be an appropriate time to employ my newfound idiot-detection confidence.
If I read it correctly, Bob Dylan is being threatened with a lawsuit because the portable toilet on his sprawling Malibu estate is wafting noisome7 odors onto the property of his neighbors. Apparently you don't need a weatherman to know which way the wind blows if you live next door to Dylan.
According to the Los Angeles Times, which I hope will be one of the last buffalo shot by the internet, Dylan has a porta-potty on his property that - at least according to his neighbors - is not doing a good job of containing sewage gases. They insist they've been sickened by them.
Dylan is not commenting.8 Nor is his New York lawyer.9 So I hasten to point out that we do not have both sides of the story. I hasten to point this out because I suspect Dylan has libel lawyers on speed dial.
And his neighbors are probably not dining on free cheese, either. Certainly they have a bigger budget than I. Their response to the odors was to install five industrial strength fans to try to blow the fumes back toward Dylan. Unfortunately, they are due east of the Dylan estate and even King Kong fans are no match for the prevailing westerlies.
So when self-help failed10, they asked the city to do something about it. But when the city's code enforcement officer showed up, Dylan's security guards refused to let him in. They told him he was trespassing. They threatened to sue the city. So he left. Took his badge and went home.
Instead of demanding access, the city had the City Manager drive by. Sure, that oughta do it.
Here's how the City Manager handled the matter: "I drove by one time and couldn't locate the porta-potty or smell anything. I called the rental company on her behalf to find out what chemicals they use and forwarded that information to her."
What more could he do? The National Guard is deployed in Iraq: there just weren't any troops available.
The city has an ordinance requiring that temporary toilets connected to authorized construction projects must be removed upon completion of the project, but Dylan's position appears to be that this is not a temporary toilet. It's permanent.11 It's for his employees. Check and mate.
Dylan's neighbors consider this preferential treatment. The city denies that, and, of course, it is certainly unprecedented for entertainment bigwigs to be treated any differently by government officials than the rest of us, so I'm pretty sure they're as on top of this as they could legally be. As I understand it, their official response was, "Don't Think Twice, It's Alright."
But in that regard, I do feel obliged to point out one small point in the Times story that concerns me. The guard shack where the code enforcement officer was turned away was built in 1989. At that time, Los Angeles County building inspectors discovered it was not accessible to the handicapped. But they allowed Dylan to bypass the accessibility requirement "by promising, in writing, that he ‘would not hire any handicapped persons' to work in it."
Excuse me? Did I read that correctly? You can avoid the requirements of the ADA just by promising - in writing - that you will, in the future, discriminate against the handicapped?
"Tell you what, instead of making my Burger King accessible to the handicapped, I simply will not allow them in." That works? "Instead of putting a ramp up behind the judge's bench, we'll just agree that no handicapped persons will be appointed judges." That works?
Apparently it works in Los Angeles.
But I try not to get too worked up about these things. At my age, it's not safe. So rather than continue with the Dylan story, which involved a lot of civil law I didn't want to research unless it came before me, I decided to read a story about criminal law. I'm an old prosecutorial horse. I figured I'd understand the criminal law story a lot better.
It said a woman had been arrested for stealing breasts. Say what?
Well, I guess that's not exactly what it said. But let me put it this way: If you obtained a car through false pretenses, you would be accused of stealing that car, right? Penal Code §487 explicitly covers theft by false pretenses.
Well, according to my newspaper, this woman is "accused of using a false identity to get breast implants and liposuction." In other words, they say she obtained them through false pretenses. So in plain language, the allegation is that she stole breasts.
I think this is a new crime. It's certainly one I've never heard of before.
And I therefore take great pride in announcing that the seminal case in this regard - Patient Zero, if you will - has been filed in my county, more specifically in Surf City, USA: Huntington Beach. Huzzah.
Obviously, I cannot comment on the merits of the case. This is good news for me because I know absolutely nothing about the merits of the case.
What's more, I am apparently hopelessly out of step with modern criminal conduct. In my day, you changed your appearance so you could change your identity. Now, as I understand it, that's been reversed. This woman is charged with having changed her identity so she could change her appearance.
Needless to say, if that rather pedestrian aspect of the crime confuses me, I have no chance with the much more exotic concept of felonious body improvement. Trust me, folks, if there is anyone on the planet who should be willing to lie, cheat or steal to get a better body, it's me. Yet this particular crime - fraught as it is with surgically inserting goo into one part of the body and surgically sucking goo out of another part - simply eludes me.
But I don't really need to comment on the case. I need only express my complete and utter confabulamentation12 that I have reached an age where even basic breast crimes are beyond my ken. I mean, I expect to have difficulty with computer crimes. I expect to have problems when a negligence case involves some colossally complicated principles of medical technology or an alleged investment fraud requires understanding of derivative securities.
But breasts? I really thought I understood breasts. I would have thought I knew all the illegal things you could do with breasts. You get to my age and find out there is breast crime you never even imagined, it's hugely disconcerting.
So I'm just going to put the newspaper down and resolve to try again tomorrow. Right now, I think it's time for my nap.
1 I was the youngest member of my law school class.
2 Yeah, I know that's a little sad, but it's in an out-of-the-way-spot; I'm the only one who ever sees it. There have been so few athletic triumphs in my life that I don't want to take the chance of forgetting one.
3 The proper role of all fathers of daughters.
4 No, I was not there to see that.
5 Still another sure sign of geezerhood.
6 Apparently my figurative ears are giving out as quickly as my real ones.
7 This word does not mean what you think. Neither does "bemused," which describes me a whole lot better than "amused" these days. Digression: another sure sign.
8 If he did, he wouldn't be Dylan, now would he?
9 The Times thought the lawyer's residence was significant, and they know more about journalism than I do, so I thought I better put it in, too.
10 Talking it out with Dylan failed. When a guy writes things like "It Takes a Lot to Laugh, It Takes a Train to Cry," he figures to be difficult to negotiate with.
11 "Temporary Like Achilles."
12 A portmanteau word: lamentations caused by my increasing inability to distinguish fact from fancy.
William W. Bedsworth on Wednesday, May 13, 2009 at 10:08
Two More Cases I Would Have Gotten Wrong
I was a trial judge for ten years without ever being assigned to Family Law. Turns out all you have to do is deny a coupla divorces and the Presiding Judge decides you're not cut out for that assignment. Go figure.
Seemed to me you shouldn't need a judge to grant divorces if there wasn't an option to deny them. I assured him that if he assigned me a few more I was confident my grants would eventually exceed my denials, but he seemed not to be reassured. PJ's are hard to figure sometimes.
It's probably just as well. I think maybe I'm not cut out for that kind of work. I think you have to have a better head for money matters than I have (and fewer ex-wives).
But those of you concerned about my ability to handle them at the appellate level -- those of you who think maybe a guy who thinks exit orders are the signs on the freeway that say "Right lane must exit" maybe shouldn't be grading the papers of the Family Law judges1 -- will be reassured by the Florida case of Craissati v. Craissati. Judging from the handling of that case, I'm precisely the guy to be deciding family law appeals.
Here's the headline that focused my attention on Craissati v. Craissati: Ex-wife's Alimony Cut Off Because She Has Cellmate.
"That," I thought, "is the kind of divorce case the PJ should have assigned to me - one that involves criminal law, too." I was a prosecutor for fifteen years; send me the divorce cases that involve cellmates.
But it turns out to be harder than it looks.2 I guess I should have known. It's a Florida case. Nothing is easy in Florida.
Not even in Palm Beach Gardens. Silly me; I would have thought everything is easy in Palm Beach Gardens. Certainly it should be. These people are richer than God. And their money is older.
Palm Beach Gardens is the kind of place that wouldn't be satisfied banning leaf blowers; they would want to do away with deciduous trees and all those unsightly leaves.
All you need to know about the quality of life in Palm Beach Gardens is that when they surveyed their residents about "what things are most important to you as a resident of Palm Beach Gardens, the three answers that got the highest vote totals were "streetscape aesthetics and maintenance," "street cleaning and repair," and "appearance/ maintenance of parks." Education, fire services, police protection, and youth programs were not in the top tier.3
Now that's a sweet deal. When the biggest problems in your life have to do with "streetscape aesthetics," you have definitely "moved on up town."
So I'm betting when the Craissatis got around to splitting the sheets, the thread count probably looked like a zip code. I'm sure the documents were signed with Mont Blancs.
As part of their marital settlement agreement, Andrew Craissati, an investment banker, agreed to pay the erstwhile Mrs. Craissati the rather modest sum of $2,000 per month in alimony for eight years or until "the death of either party, remarriage, or cohabitation [by Patricia] with another person other than the parties' child . . . for three consecutive months or more."
Four years later, in 2005, Patricia was convicted of driving under the influence causing serious bodily injury and leaving the scene of the crime. She was sentenced to nine years in Hillsborough Correctional Institute, in Riverview, Florida.4
Shortly thereafter, Andrew went back to court and pointed out that Patricia was in violation of the marital settlement agreement. She had, after all, been cohabiting for more than three months with another person: HER CELLMATE.
Honest. He argued that she had forfeited her spousal support by cohabiting with her cellmate!
Since you are familiar with the quality of work turned in by the vast majority of trial court judges, you will not be surprised to hear that the trial court judge got this one exactly right. He said being thrown in jail was not the kind of cohabitation the parties could have had in mind. He said it might well be that Patricia - since she was now being provided room and board by the Great and Sovereign State of Florida - needed less support than had been originally set, and he was willing to hold a hearing to determine whether that was the case. But he was not going to wipe out the support obligation entirely.
Andrew was not satisfied with that perfectly reasonable result. He didn't just want fire and police protection and education, he wanted streetscape aesthetics and maintenance; he wanted pristine parks; he wanted trees that didn't drop their leaves every fall. He appealed.
Justice Larry Klein, of the Fourth District Court of Appeal of the State of Florida, wrote a perfectly lovely opinion in which he agreed with the trial court: re-compute the spousal support based on Patricia's new circumstances, but don't count against her the fact she was not put into solitary confinement in the Graybar Hotel. Short, concise, reasonable.
If only it had been the majority opinion.
That's right, two justices of the Florida Court of Appeal held that cohabitation is cohabitation. Doesn't matter whether you chose to cohabit or had it forced upon you by the Department of Corrections.
Doesn't matter whether you're living with a band of guerillas who kidnapped you and are holding you in the mountains east of Havana; doesn't matter if you're comatose in a semi-private hospital room; doesn't matter if you've joined the army and are living in a barracks; doesn't matter if you've gone back to school and are living in a dorm. You forfeit your support.
Cohabitation is cohabitation. Word definition is easier than thought.
This did not convince Justice Klein5, and it doesn't convince me. But two votes is all Andrew needed, and he got them.
The majority, in an opinion whose erudition took up all of two pages,6 explained that its decision was based almost entirely on the fact trial counsel for Patricia had conceded that her living with another person was "cohabitation." Hard to argue with that. The agreement says "cohabitation" and she admitted that what she was doing fit the word used in the agreement.
Brilliant. So if you asked a vendor for a hot dog and he gave you a terrier in a trenchcoat, the Fourth District would feel the contract was perfectly executed. No wonder they only needed three paragraphs of legal analysis: this is a slam dunk.
What's more, in one of those three paragraphs they pointed out that "driving under the influence of drugs or alcohol is a voluntary act which is known to possibly result in incarceration," so they saw nothing problematic in the result they had reached. Patricia should have known when she committed the offense that she might be incarcerated, so she has no basis now for complaining about being thrown in the pokey.
Of course, as Justice Klein pointed out, it wasn't the incarceration that constituted cohabitation under their ruling, it was the "mere happenstance that she must share her cell with another person."
So the mistake Patricia made was not getting herself thrown into solitary confinement every ninety days. Had she only stabbed someone occasionally or poisoned a prison guard, she'd be collecting her check every month, no questions asked.
Anything that got her put into administrative segregation7 would have solved her problem. But was she willing to make that one little sacrifice? Was she willing to take the one simple step that would have saved her husband and the Florida judicial system all this agida? Noooooooooooooo.
Certainly we can't have our courts rewarding someone for such a complete lack of foresight and cooperative spirit. She's lucky they didn't take away her tv privileges.8
So I probably would have gotten that one wrong, but the reasoning is so close to the kind of thing I usually come up with that I'm sure you'll agree it proves my fitness to handle Family Law appeals.9
I hope it doesn't sound like I'm being too critical of the Craissati majority. These are, after all, difficult cases. Take, for example, the case of Calbi v. Calbi, in New Jersey.10
Calbi is another spousal support issue. New Jersey has a rule that an alimony order11 can be terminated only if it can be shown the receiving party no longer needs it, or the receiving party has done something so egregious, "so violative of social norms" that it would "confound notions of simple justice" to require support.
In Calbi, the ex-husband had a somewhat better case for stopping his alimony payments than did Andrew Craissati: Calbi's ex had killed one of the children.
That's right. Mrs. Calbi, in a drunken rage, kicked her fifteen-year-old son to death. As you might imagine, that made it harder for dad to sign the alimony check every month. He tried to get his support obligation terminated on the ground it would "confound notions of simple justice" to force him to keep paying to support the woman who had beaten his child to death.
You wanna take a minute to make your own call on this one? Does making this guy keep writing that check confound your notions of simple justice? Does mine.
But the New Jersey Superior Court (appellate department) said "no." They said mom "had no evil intent," had received a lenient sentence recommendation from the prosecutor (impliedly recognizing she wasn't really a bad person), was already being punished by the criminal courts, and would have to carry around the guilt from this act forever. She shouldn't also have to support herself.12
The New Jersey state legislature was on this like a duck on a june bug. Bills were introduced in both houses to provide that if you beat your child to death, your ex- doesn't have to keep supporting you. I rather hope one of them passes; then maybe I can get my paper re-graded.
Because as it is, I got both of these wrong. I would have continued support payments in Florida and stopped them in New Jersey. I am - proudly - 0 for 2.Yet they keep on sending me Family Law appeals. I can only assume they hope I'll be able to live up to the high standards of New Jersey and Florida someday.
1. Hellooooo, Orange County family law judges.
2. Much like marriage.
3. "Getting rid of the 55 trashy renters who have somehow infiltrated our enclave" did not appear on the survey or I'm sure it would have been right up there with streetscape aesthetics. Can you imagine a city with only 55 renters?
4. Which has to be the most idyllic prison name in America. Hillsborough . . . Riverview . . . Villa Park . . . Shady Canyon . . . . They all sound like great places to live, right?
5. Justice Klein authored the chapter on appeals in the Florida Dissolution of Marriage Manual. He also wrote the chapter on appeals in a text called Florida Proceedings after Dissolution of Marriage. I can't tell you anything about the author of the majority opinion because the court does not claim her on its website. But I'm pretty sure she's a judge because my own research has indicated that most states require that in their courts of appeal.
6. It would have been shorter, but the consarned statement of facts required a page and a half.
7. in case you are not a denizen of the criminal law, "ad seg" is what Andy Griffith would have called "solitary confinement" and James Cagney would have called "The Hole."
8. Apparently no truth to the rumor the court, in a separate ruling, ordered that she not be allowed to watch the television series Prison Break "or any movies dealing with that subject matter."
9. See what I mean about the kind of reasoning I usually come up with?
10. Calbi v. Calbi (2007) 396 N. J. Super. 532. Honest, I don't make these things up.
11. Both New Jersey and Florida still use the term "alimony." You will look in vain for a reference to spousal support in these cases.
12. My favorite part of this opinion was their directive that if dad could show that the death of his son had so decimated him that he could no longer earn a living - a possibility I, as a father, could completely understand - he could still get his support reduced on that basis. Economics they could handle; it was compassion they had difficulty with
William W. Bedsworth on Wednesday, April 01, 2009 at 14:37
The National Judicial College is located in Reno, Nevada. I don't know why. I always assumed that's where the founders' wagon train ran out of food and water.
Whatever the reason for the location, it's problematic. Say what you will about Reno, it is geographically undesirable for the vast majority of judges. The vast majority of judges, like the vast majority of everything else, is not in northern Nevada.
They have, what, nine judges in northern Nevada? Everybody else in America has to hop a plane, rent a car, hire a stagecoach, whatever, to get to Reno. Putting the National Judicial College in Reno was like putting the Mexican embassy in Milwaukee.
So they've always had to work very hard to get judges to attend their programs - a problem made especially exasperating by the fact California, which has more judges than gas stations, and is right across Donner Summit from the College1, has never taken full advantage of their proximity. California has enough judges to run its own continuing education programs, so the NJC has never been able to tap into the judicial mother lode that runs along the Sierras, just the other side of Truckee.
Years ago, in an attempt to showcase their wares to the California bench, the NJC offered California four scholarships for a Fourth Amendment course. I was selected for one of them. Chief Justice Malcolm Lucas phrased the letter informing me of my choice with characteristic elegance and dignity, but the bottom line, it seemed to me, was that he considered me one of the four judges in California most in need of education.2
So I polished up my blackjack technique, re-read the Fourth Amendment, and hightailed it off to Reno. It was August. It was like spending a week in a hairdryer.
Reno in August is the world's largest outdoor convection oven. Nobody missed a class; we were all afraid if we left the building before sundown, we'd combust.
I'm told it's not always that way. Apparently I was unfortunate enough to be there when the city was passing unusually close to the sun. Sure enough, my newspaper this morning predicts a high of 19 and a low of 6 for that part of Nevada. It appears that Reno, like Mercury, has both hot and cold days.
But despite the climate and the rather ego-bruising circumstances of my excommunication to the Great Basin, I had a good time in Reno. I enjoyed the classes, learned as much as I am ever capable of learning, and met some very nice people.
I was not invited back, but I've become accustomed to that. I think I might have offended them when I suggested modern technology had made the trip over Donner Summit safer, and an escape could now be safely made.
Since then, most of my education has been in-state. The California Center for Judicial Education and Research (CJER) has struggled like a woman3 to raise my consciousness, expand my horizons, and elevate my intellect. Or any combination thereof.
There seems to be some difference of opinion about their success.4
So I was pretty excited to receive an email from something called The Ark Group, announcing a seminar on "Knowledge Retention Strategies for the Government Sector." I mean, that's exactly what I need, right? A knowledge retention strategy.
I've been on the bench for 21 years and no one has ever provided me with a knowledge retention strategy. It's a wonder I haven't driven us off a cliff.
The seminar sounded great. It was in Washington D. C., which recent events have proven to be pretty much the font of all wisdom, and its objective was "Shaping the future of innovation and organizational viability through the seamless transfer and management of experience-based knowledge within the public sector," something I have hungered for as long as I've been in government service.
Colleagues will tell you I have often complained about the number of seams that mar the transfer and management of experience-based knowledge within our courts. And I have long been an outspoken advocate of a more cogent strategy for shaping the future of innovation and organizational viability - also I've been an outspoken proponent of hiring a staff urologist for the Court of Appeal, but that's rather clearly just a natural concomitant of the first two. So this seminar was perfect for me.
I don't really know anything about The Ark Group, except they know a lot of big words. And they agree with me that I need a knowledge retention strategy. And they're in Washington, D. C. Applying the same logic I used to account for the NJC's location in Reno, I can only assume the Ark Group was in Washington when the flood waters receded5, and have not yet figured out that it's safe to leave.
They've gathered together some really impressive-sounding people for this seminar. They have the "Chief Knowledge Management Officer, Federal Transit Administration," the "Chief Learning Officer, HCO/Learning Center, US Government Accountability Office," the "Risk & Knowledge Management Officer, Exploration Systems Mission Directorate, NASA Headquarters," and the "Director, Knowledge Management Center of Excellence, U. S, Air Force Materiel Command."
And that's just for openers. They have CKO's and CLO's and Chief This and That's from some very important branches of government. The piece de resistance is the "Chief Knowledge Officer, U. S. Secret Service," a guy who knows a lot of stuff but usually keeps it secret. This is presumably the person who will be charged with remembering to have Iraqi journalists remove their shoes before Presidential press conferences. This is somebody I gotta meet!
I didn't even know there were such positions. I've never been a part of an organization that had a Chief Knowledge Officer or a Chief Learning Officer or a Directorate of Remembering Things or any of the wonderful titles attending this conference. It would take me a week just to think up a title that cool.
So you can imagine my dismay when I learned that the state would not pay to fly me to the Ronald Reagan Building & International Trade Center6 in Washington D. C., for one of the fourteen seats miraculously still remaining7 when the email was sent to me.8 I was devastated. My hopes of parlaying this symposium into a position as Chief Knowledge Muckety-Muck for the California Court of Appeal or Grand Poobah in Charge of Not Forgetting Stuff were dashed with one stroke of the key.9
It appears they went on without me. Unimaginable to me, but it seems to be so. I haven't been this unhappy about missing an event since I had chicken pox the week Lady & The Tramp was released. It's a disappointment I'll just have to soldier through - although if Malcolm Lucas were still the Chief . . . .
Oh somewhere in this favored land, the sun is shining bright, the band is playing somewhere, and somewhere hearts are light. And somewhere men are laughing and somewhere children shout, but there is no joy at my house, I'll remain a forgetful lout.10I just want the record to reflect that I did try to improve myself.
1. Donner Summit is where the NJC founders who pressed on past Reno ended up.
2. It's been twenty years and I've yet to develop an effective rebuttal to that conclusion, so the present Chief Justice probably shares it. I doubt it's been sheer good fortune that has resulted in every one of my requests for education funding being approved.
3. I had originally written "manfully" but many of the continuing education courses I've attended have dealt with gender bias, so I knew better this time.
4. I think they've done just fine; everyone else disagrees. I didn't say opinion was evenly split, I said it was divided.
5. I guess we can call off the search of Mt. Ararat.
6. Still another reason I wanted to go: I'm up for election in 2010. In my county, if you can juxtapose the words "Ronald" and "Reagan" in your ballot statement, you can be elected by acclamation. This was my chance.
7. It said so right on the email: 14 seats remaining.
8. I'm a little disheartened that I was apparently not in the first wave of recipients of this invitation, but having griped about being in the first wave of recipients of the Malcolm Lucas invitation, I guess I don't really have much of a case for having my feelings hurt.
9. I'm sorry, that just doesn't have the same ring to it as "one stroke of the pen." The 21st century leaves a lot to be desired in terms of imagery.
10. Yeah, well Ernest Thayer was born rich and writing humor for the San Francisco Examiner was his only job when he wrote "Casey at the Bat." He had time to make all the lines scan perfectly; I don't.
William W. Bedsworth on Wednesday, April 01, 2009 at 14:19
Crime and Punishment
My first year criminal law professor spent a great deal of time - an inordinate amount of time, I thought then - on the philosophy of punishment. I was a lot more confident at twenty than I am now of my ability to recognize a waste of time, and the weeks we spent debating the efficacy vel non of deterrence, retribution, incapacitation, and rehabilitation, satisfied my definition thereof as well as this column satisfies most others.
I knew why we punished people. We punished them for the same reason my mother spanked me when I was a kid: They'd gotten out of line. And the legislature told us how to punish them. We had an elaborate scheme of punishment schedules and a collection of bureaucrats, the Board of Prison Terms, to apply them.
It seemed pretty simple to me. Find the crime in Column A, find the punishment in Column B, impose sentence. How tough could this be?
Well, now I've spent a good part of forty years lamenting just how tough it could be. Granted, this is partly because the legislature broke into the peyote locker in 1977 and enacted the trainwreck in a blizzard we now refer to as the Determinate Sentencing Act.1
But mostly it's just because punishment is damned difficult. Professor Kadish, I am apparently the last person to figure out there was method in those weeks of madness.
Ask any criminal courts judge what his/her most daunting task is. If the answer isn't sentencing, you're talking to someone with no heart and an advanced degree in mathematics. The rest of them are herniating their frontal lobes trying to figure out the appropriate range of sentence, and then burning out their stomach lining worrying about where in that range their defendant belongs.
When I was a trial judge, my staff knew from the moment I walked in on a Friday morning whether I was going to send anyone to state prison. You remember the Li'l Abner comic strip character Joe Btfsplk, who walked around with a little black cloud over his head? Well, when I had to send someone to state prison, that cloud was right behind my eyes, and my staff saw it immediately. My clerk and bailiff would compete to see who could correctly guess which orange jumpsuit had drawn the short straw.
I'm very glad I don't have to do that anymore. It was always very hard, and appears to me to have gotten much harder. Just yesterday, I read of a woman in Japan who has been jailed on a charge of avatar murder.
No, that is not a typo. Avatar, not aviator. Aviator murder I could handle. I might not like it, but I'm confident I could devise an appropriate sentence for aviator murder.2
But avatar murder is a different thing entirely. And if, like me, you are old enough to remember once flying on a plane that made three stops on its way to Minneapolis, the odds are you would be as befuddled as I by an indictment that alleged avatar murder.
An avatar is a character in a computer game. Remember when you were a kid playing monopoly and you got to pick whether you wanted to be the top hat or the race car or the iron or the thimble or whatever?3
Well, the present generation has a broader selection. And when they choose, they get to pick character traits, eye colors, bra sizes, magic powers, weapons, sidekicks, etc. The character they build is their avatar.
If you consider the original meaning of the word - the incarnation of a god who has come down to earth to mingle with the mortals - you'll have a pretty good handle on what most avatars are like. They're just like the game player only cooler, smarter, faster, taller, prettier, and . . . well . . . you get the idea: just choose any favorable adjective and ratchet it up a coupla notches. I mean, why would you want to be yourself in virtual life when you could be a cross between Hugh Jackman and Gandhi?
So this nice, quiet, 43-year-old piano teacher in Sapporo created an avatar for a game called Maple Story, described by the Associated Press as one in which players "engage in social relationships and fight monsters and other challenges." I can't speak to the quandaries encountered in Maple Story, but I'd rather fight a monster than engage in a social relationship any day. And sure enough, the social relationship part is what got this lady thrown in jail.
Ms. Doe4 closed the book on Chopin and Haydn one day and fired up the computer for a round of monster-battling, only to receive the disconcerting news that her virtual spouse had divorced her avatar. Divorced! Without warning!
No lipstick on the collar, no long unexplained business trips, no emotional withdrawal, no couples counseling, nothing! The sonofagun just said, "I divorce you,"5 and moved on. Without explanation. Just left her there to fight the monsters alone.
She was, of course, distraught. Divorce is always difficult. And this one was greatly complicated by the whole monster thing.6 Apparently unable to retain a virtual Gloria Allred, Ms. Doe released her own statement: "I was suddenly divorced, without a word of warning. That made me so angry."7
But as commonplace as her public statement might have been, Ms. Doe's revenge was a tour de force of imagination befitting someone with a background in monster eradication. Using login information she obtained when their characters were happily married - virtually - Ms. Doe logged in with her virtual husband's password and caused his avatar to walk in front of a truck.
Yep. Flattened him. Dead before the virtual paramedics arrived.
I don't know what the Maple Story District Attorney is doing about it, but the Sapporo police have thrown Ms. Doe's REAL self in REAL jail. Real self faces five years in prison and/or a fine of up to $5,000 for illegally accessing a computer.8
Now you tell me: What is the appropriate sentence for this crime? Is this more serious than kicking over somebody's monopoly board just because it was done with a computer? Are we really going to put people in prison for sneaking additional Risk armies into South Africa or employing a crooked Game of Life wheel, just because the games were being played on-line instead of on-kitchen-table?
This is a sentencing dilemma that will - like Putin in Alaskan air space - raise its ugly head more often in years to come. In Tokyo, police arrested a sixteen-year-old boy for manipulating another player's computer game stock portfolio and swindling him out of $360,000 in virtual kopecks or cyber drachmas or whatever currency they use in Computoworld.
You tell me: Grand theft because it's $360,000 for crying out loud, or petty theft because it's ZERO for crying out loud. Yeah, I know he stole the guy's password and broke into his computer, but he did it to win a game of 21st century Parcheesi . . . for crying out loud.
These are tough calls. I hope they don't reach this country until I've retired.9
But when they do get here, I suggest we ask Judge Paul Sacco of Fort Lupton, Colorado, to take a crack at them first. Judge Sacco's job includes sentencing noise ordinance violators - especially loud car radio offenders, the ones who pull up beside you in teeny-tiny little cars with speakers bigger than a Wal-Mart, the output of which makes your car shake so violently your bone marrow sloshes around in your sternum for weeks afterward and you have to buy new shocks for your car.10
Judge Sacco's solution? Well, the crime was forcing people to listen to music they didn't want to hear, so the punishment should be making the violators listen to music they don't want to hear.11 So he rounds up all these mostly-teenage criminals and makes them sit and listen to Barry Manilow and Barney the Dinosaur for a few hours.
I don't know how well this works. You are, after all, presently reading the thoughts of a man whose phone plays Merle Haggard's "Mama Tried,"12 and who usually lets it ring for awhile so he can listen to the song. I am, perhaps, not the right person to be evaluating the efficacy of musical punishment.
But judging from the pictures of the miserable teenagers subjected to this penalty in Colorado, it is successful enough to raise Eighth Amendment concerns. I hope someone took their belts and shoelaces away from them before the music started. They look like they would have preferred Alabama's infamous "Old Sparky" to this.
Who knows? If we can get Manilow and Barney to record a few duets, we may have an appropriate punishment for avatar abuse.
But "we" is probably not the appropriate pronoun here. I don't think I'll tackle this one. I think I'll leave it for the next generation of judges. I'm gonna go home, light a fire, open a good book, and stare at the ocean. I'll leave these monsters for my avatar. And Professor Kadish.13
1. Anybody ever tries to tell you how crazy the sixties were, point out to them that at least we had a criminal sentencing scheme that didn't require a phone call to Stephen Hawking to sentence a burglar.
2. Although, if I were doing it in California, I'd need to employ a desktop, a laptop, three sentencing algorithms, the collected works of Judge Jack Ryan, and a Ouija board. And I'd need to start within 72 hours of the commission of the crime to be done by the sentencing date.
3. I always chose the top hat. Not sure why, except that the other choices were remarkably unappealing. An iron?
4. None of the dozens of news stories covering this event provides her name. I find this remarkable: You kidnap a baby or rob a bank, media reports provide your name and age; but if you're charged with something as depraved as erasing a computer game character, they feel obliged to protect your privacy.
5. Apparently the middle eastern version of the game requires this phrase to be repeated three times, but the Japanese edition only requires once. I'm told the American edition requires lawyering up by both sides and much virtual shouting.
6. AP does not disclose whether there were virtual children involved.
7. It's banal and pedestrian statements of outrage like this one that make you appreciate Gloria Allred.
8. Apparently leaving the avatar to collect her dead husband's insurance and run away with Michael Douglas' avatar, which is what she had in mind all along.
9. A woman in Delaware was indicted last August for attempting to kidnap the real-life person whose avatar she'd fallen in love with on-line, but I think I can handle real-life crimes; it's the virtual ones I'm having trouble getting my head around.
10. I suppose that sentence forfeits my claim to objectivity on this point.
11. Judge Sacco, meet Professor Kadish.
12. "I turned twenty-one in prison, doing life without parole. No one could steer me right but Mama tried, Mama tried. Mama tried to raise me better, but her pleading I denied. That leaves only me to blame, ‘cause Mama tried." Who says there are no Walt Whitmans anymore?
13. My thanks to loyal - and therefore tasteless - reader Sharon Lowsen for turning me on to still another thing I can't cope with - except by turning it into a column.
William W. Bedsworth on Friday, March 06, 2009 at 15:52
The Tyranny of Small Laws
G. K. Chesterton said, "When you break the big laws, you do not get liberty. You do not even get anarchy. You get small laws." And when you break the small laws, some poor judge gets another ulcer.
Before Pete Wilson went walkabout and gave me the absolute best job in the legal system, I had the second best job: trial judge.1 I loved being a trial judge. It was like being a big league umpire: All you had to do was yell "safe" or "out" occasionally and you got to watch the ballgame for free.
But it's not all black robes and bar association canapés. Sometimes it's like driving around all day with a flat tire: You get where you have to be, but you have to go way slower than you wanted, and the constant wap-wap-wap drives you crazy. Most of those days involve "small laws."
Take my friend Bob.2 Bob agreed to call a traffic calendar for a colleague so the colleague could take a day off and watch his daughter play in a big soccer game. By the end of the day, Bob - whose lawyering career had consisted almost entirely of trying serious felonies to juries - had grown so weary of hearing that "Everyone else on the freeway was going 88 miles an hour that day; I was just keeping up with traffic," and "I know I wasn't going that fast because my tires wobble if I go over 65," that he was contemplating simultaneously breaking a big law and a gavel over someone's head.
So when a woman stood up, looked him in the eye, and actually said with a straight face that it was okay for her to drive in the car pool lane because she was pregnant so there were really two people in the car, Bob went for it. Bob figured, "Aw, what the heck. Give her a break." He found her not guilty.
The next day, Bob was front-page news. War, famine, pestilence, and the National Football League were not front-page news, but Bob was.
In the outraged opinion of most of the western hemisphere, the quality of mercy had been strained too much in Bob's court. They wanted his head on a plate. If they'd known where he lived, they would have been there with pitchforks and torches. Indignant letters to the editor filled editorial pages for weeks. Pol Pot got better press.
So the breaking of the small law about car pool lanes caused Bob more agida than all the rapes, robberies, and homicides he'd tried in his entire career. His tombstone will read, "Once Bought the Pregnant in the Car Pool Lane Defense." Small law, big headache.
The latest victim of Chesterton's Law of Small Laws3 is a Los Angeles County Commissioner named Thomas Grodin. Commissioner Grodin, like Bob, made the classic mistake of trying to be a human being while simultaneously serving as a bench officer - a feat of legerdemain roughly equivalent to Harry Houdini's underwater straitjacket trick. He should have just let himself drown.
Grodin found himself handling the case of David Grigorian, a 43-year old man arrested, according to the Los Angeles Times, for violating the very large law against making terrorist threats against people. Not a problem. Grodin, like my friend Bob, could have arraigned him on that charge while handcuffed in a locked box and sawed in two.
But Grigorian had also violated the very small law which prohibits the possession of certain animals without a permit. When police arrested him, they found "Cheeta," his pet marmoset, in his car.
Yep. Fate had dealt Grodin an unpermitted marmoset case.
All those classes in Constitutional Law and Intellectual Property and Conflicts, all that midnight oil burned trying to distinguish res judicata from collateral estoppel and trying to figure out incorporeal hereditaments? Worthless. Those are all big law cases. This was a small law case.
Very small.4 According to the Times5, "In California, people must obtain a special permit to possess marmoset monkeys . . . [and] only those who use the animals for educational or professional purposes, such as filming can get permits." Harbor a marmoset, go to jail.
Okay, so how tough can it be? Judging's a piece of cake. The guy's got an illegal marmoset. You fine him, take away the marmoset and . . . and . . . well, hell . . . what does one DO with an unpermitted marmoset?
I mean, it's the guy's pet. Unpermitted or not, you can't just take it away from him and toss it to the nearest rottweiler. Can you?
Well, Grodin couldn't. Bless his poor, frail, human heart, he worked out a plan under which, "Grigorian agreed to surrender Cheeta to Fish and Game officers, who would transfer the animal to a courier who would then take him to Nevada. Grigorian told officials he would pick up cheetah in Nevada and take him to a caretaker in Arizona."
Honest. The commish worked out a court-approved Monkey Disposal Plan - five words and a hyphen never previously juxtaposed in the history of California law.
So Fish and Game picks up the animal and delivers him to a "courier." I love that part. A courier. Folks, I've worked in the California court system for 37 years. In all that time, I have never found it necessary to employ a "courier" to carry out a court order.
Nor have I ever conspired to transport illicit monkeys across a state line. I mean that just HAS to be some kind of federal violation. Where's Homeland Security when you need them?
But Commissioner Grodin, desperately trying to do the right thing for this man and his monkey, arranged a four-party, tri-state monkey-smuggle only slightly less complicated than the Treaty of Guadalupe Hidalgo. There were fewer players - and couriers - involved in the trade that moved Manny Ramirez to the Dodgers.6
This was a lot of work - work the commissioner did not have to take on. I'm sure he went home feeling good about himself. He should have.
But, like Judge Bob, his self-esteem was short-lived. A few months later, Burbank police stopped Grigorian for violating another small law - a traffic violation. Guess who was with him: a) Jimmy Hoffa; b) Joe the Plumber; c) my friend Bob; d) Cheeta the Well-Travelled Marmoset.
If you guessed (d) - the only one that would get him in trouble - you're right.
So did Grodin throw the guy in jail? Did he hold him in contempt or confiscate his car or remand him to the custody of Torquemada?
Nope. Commissioner Grodin is a patient man. He gave Grigorian another chance. He ordered him to get rid of the marmoset and to provide proof of such gotten-rid-of-ness in court.
Which Grigorian did, right? Well . . . sort of.
According to the Times, he showed up in court with pictures of Cheeta "beside a recently dated Mexican newspaper. Red, white, and green decorations filled the background." Obviously, Cheeta was in Mexico, right? Right?
Didn't I see this movie? Didn't I see it several times with several different directors? Isn't this the way the kidnapper proves the victim is alive, or the bank robbers convince the bank manager they have his family, or the Secretary of the Treasury convinces the Congress that the economy is still alive? Isn't this what you do right before the ransom - or bailout - demand?
Not if you're smart. Not if you realize Mel Gibson or Denzell Washington will be looking at the photo. Because if either of those guys7 - or Commissioner Grodin - is looking at the photo, you're gonna get flogged with your own monkey.8
Commissioner Grodin, having been bitten once, was twice shy. He pressed Grigorian about the Mexican decorations, which looked suspiciously like an Olvera Street estaurant. Grigorian folded up like a wooden chair.
Cheeta was not in Mexico, he was in downtown Los Angeles - historically, a fine distinction, perhaps, but legally significant.9
So poor Grodin went through the whole megillah all over again. Tears, recriminations, sad descriptions of heartbroken children losing their monkey, handcuffs, perp walk, lockup. But then he brought Grigorian back into court and let him promise - again - to hand the monkey over to Fish and Game.
And here, so help me, is the last line of the Times story. Here is the part that will either make you want to stand and applaud (my own reaction) or rend your garments in despair (an equally valid response). Your reaction to this last line should tell you a lot about what you want out of your bench officers. Do you want brains or heart? Compassion or capacity? Big law celerity or small law tenacity? Here is what the Times said about Grigorian's promise to hand the monkey over to Fish & Game:
"He was told to come back next week with actual proof."
That's right, "Come back next week and tell me again you've gotten rid of the monkey."
God bless him, Grodin still hasn't given up on this dipstick! He gave him another chance!
I figure Grigorian will show up next week with a picture of the monkey in a Fish & Game uniform. From the Lesser Antilles.
The monkey will be sporting dreadlocks and holding a Bob Marley CD. Grigorian will be smoking a doobie and holding a sign that says, "|Greetings from St. Barts."
At which point Grodin, like my friend Bob, will acquit him once and for all.10
1. California Supreme Court justice is the fourth best job. After Superior Court Ado
2. Bob isn't his real name. I chose Bob because it's easy to spell, a quality I admire in pseudonyms.
3. And A. E. Kahn's "Tyranny of Small Decisions," a rule of economics which posits that, "Decisions that are small in size, time perspective, and in relation to their cumulative effect may lead to suboptimal resource allocation," a fancier way of expressing Bedsworth's Third Law of Human Dynamics, "Little stuff always causes more trouble than big stuff."
4. The common marmoset weighs less than a pound. And even the somewhat larger buffy-tufted marmoset, which I mention only because . . . well because who can resist a chance to say buffy-tufted marmoset . . . weighs only slightly more. So VERY small laws.
5. And I hope they're right because I am way too lazy to look this up.
6. Although Manny was represented by Scott Boras, which is like adding a dozen couriers and a trainwreck to the equation.
7. Neither of whom serves in Congress.
8. So to speak.
9. A VERY fine distinction if one studies the history of the aforementioned Treaty of Guadalupe Hidalgo.
10. My thanks to Benjamin Shatz, whose obsessive interest in marmoset law made this column possible and will doubtless be the subject of a special Manatt Phelps partners' meeting at about the same time the Grigorian case comes back to Commissioner Grodin's court.
William W. Bedsworth on Friday, March 06, 2009 at 15:05