Lowering the Bar

Mistrial Declared in Rick Springfield's Buttocks-Assault Case [Updated]

After a series of "twists and turns" that began Tuesday afternoon, the judge declared a mistrial Wednesday in Calcagno v. Springfield, just before the case was to be sent to the jury. The judge has reportedly given both sides 90 days to investigate dramatic new evidence relating to the night that Vicki Calcagno claims Rick Springfield "struck her with his buttocks" during a 2004 concert.

Springfield, who is best known for the 1981 hit "Jessie's Girl," and now possibly for his buttocks, was performing at the New York State Fair when the incident allegedly occurred. Springfield's act included segments in which he entered the seating area and interacted with fans. Calcagno alleges that during one of these segments, Springfield contacted her with his buttocks and knocked her down, causing significant injuries.

Her evidence included a photo of the alleged weapon[s], which she claims to have taken just before she was knocked out:

As Rick Springfield's case in Syracuse nears jury deliberations, his buttocks has [have?] emerged as the weapon[s] accused of causing "serious, disabling and permanent injuries" to a Liverpool woman during a 2004 State Fair concert.

A photo, reportedly of Springfield's buttocks, was shown to the jury during the entertainer's testimony Tuesday.

When asked whose buttocks was [were?] shown in the photo, Springfield responded: "Possibly mine."

Tip: never admit that the buttocks shown in a photo are yours except as an absolute last resort.

Springfield did not recognize Calcagno, however, nor did he have any recollection of striking a fan, with his buttocks or otherwise, let alone of leaving one "disoriented or unconscious" for 10-30 minutes, as Calcagno testified. She claims to have "no memory" of that time.

Springfield did not deny the possibility of fan-buttock contact, nor could he. According to this review of the same 2004 concert, located by Syracuse.com, Springfield entered the seating area repeatedly that night and, according to one fan, "was really connecting with everybody." Actually, though the fans seem to have been doing most of the connecting. "Throughout the concert," the review notes, "Springfield let his fans grab his buttocks while he traversed the seating area, singing and playing his guitar amid the crowd." Evidence of recklessness, perhaps?

But Calcagno had no witnesses to back up her claim that there was any contact in her case, let alone injury. In fact, she conceded she did not leave the concert or seek medical attention at the time. But she offered medical records dated two days later stating that she had head and neck pain, muscle spasms, jaw pain, shooting pains in her left eye and right foot, insomnia, and sensitivity to bright light—all of which she now attributes to a celebrity-buttocks-induced fall.

Things started to get weird (relatively speaking) on Tuesday afternoon, when an unidentified woman called the judge to say she wanted to testify against the plaintiff. Springfield's lawyers, though, possibly feeling they did not need any help with this one, declined to call her as a witness. But later that day, Calcagno's attorney reportedly saw a comment posted on news site CNYCentral.com that corroborated his client's account. The report states that he posted his own comment asking that person to contact him, and by Wednesday morning, she (and her family) had done so.

 

I could not find either comment among the 150 or so posted about this case on CNYCentral, comments that I would estimate ran about 99% in favor of Springfield. Some of the commenters do claim to have been at the show—and one commenter kept popping up to ask those people if they would be willing to testify—but they all seem to be in Springfield's camp. In any event, these surprise witnesses now claim to have been standing right next to Calcagno at the time. Not only that, they got knocked down too! How about that?

What is not clear to me from any of these reports is why this last-minute nonsense was allowed to affect a trial that was almost over. Seems like the morning that deliberations are set to begin is a little late to add anyone to the witness list, no matter how you found them. But I guess when the stakes are this high, truth is all that matters. According to CNYC, the judge said he would allow the witnesses to be called and gave Springfield's attorneys 24 hours to prepare. They then objected, understandably, that this was not enough time, and asked for a mistrial. The judge agreed. Another trial, if any, is not expected to start for several months.

For those of you wondering why I haven't posted the probably-soon-to-be-infamous buttocks photo, all I can say is that I do have some standards and you people should be ashamed of yourself.

So no, I couldn't find it.

Update: in the meantime, because the internet exists of course there is a page devoted entirely to pictures of Rick Springfield's butt.

May a Magistrate Judge Ethically "Dance With the Stars"?

Yes, according to South Carolina's Advisory Committee on Standards of Judicial Conduct:

FACTS

A full-time magistrate inquires as to the propriety of dancing in a fund-raising event that is similar to a popular television show ("Dancing with the Stars"), in which the judge’s religious institution is the recipient of the funds. The judge will be one of five dancers from the congregation performing with a dance professional from a local studio. The judge will not personally solicit donations, and all monies raised go directly to the religious organization....

CONCLUSION

A full-time magistrate judge may participate as a dancer in a fund-raiser for a religious organization where the judge does not personally solicit donations or allow the organization to use the prestige of the judge’s office in fund-raising efforts.

Judges are of course allowed to be members and even officers or directors of non-profit organizations, but the concern here has to do with judicial fund-raising efforts. As you can imagine, in certain circumstances it could be very difficult, or at least feel very difficult, to tell a judge "no" when he or she asks for money, and so rules of judicial conduct generally restrict judges' ability to do that kind of thing. Under South Carolina's rule, for example, a judge can assist the organization with fund-raising but shall not "personally participate" in soliciting money or membership, or permit the prestige of his or her office to be used for that purpose.

Here, the judge apparently wanted to make sure that to dance as one of the "stars" in a fundraiser would not constitute "personal participation" in the sense meant by the rule. He or she was probably asking out of an abundance of caution, because I don't think anyone would consider this "personal solicitation" unless the judge was planning to dance over to people and hold his or her hat out for donations. (I personally would pay just to see that, but hey—it's against the rules.) In the absence of any such facts, at least, the committee said this would be okay.

It did caution the inquiring judge that he or she must still "abide by all other provisions of the Code of Judicial Conduct," citing among other things Canon 1, which "requires a judge to maintain high standards of conduct in all of the judge's activities...." Take some dance lessons if necessary, in other words (reading between the lines), and don't embarrass the office.

I believe this is only the second (or third) mention of "Dancing With the Stars" on this blog, both previous mentions having to do with the appearance on that show of a certain former Speaker of the U.S. House. See "Next on 'Dancing With the Stars': Tom DeLay" (Aug. 18, 2009); see also "Dancing With the Indicted" (Dec. 5, 2010) (noting that DeLay was convicted on conspiracy and money-laundering charges, in addition to being a crappy dancer). There were no ethical rules precluding DeLay from participating in that event, of course, not that it would have mattered.

The U.S. Supreme Court Coloring Book (2013 Edition)

The Constitution may be color-blind, but this book is color-ful.

Well, it isn't right now, of course, but it will be after you and/or your child and/or your attorney get done adding the colors (colors sold separately).

Note: those colors appearing on the cover of the book are not necessarily intended to reflect the actual coloration of the Supreme Court building and/or grounds. Any actual correspondence with said coloration is purely coincidental.

Now with more Justice Kagan!

The Rogers Doctrine

This was Stephen Colbert's take on the hearing where Rep. Mike Rogers insisted that your privacy isn't violated if you never find out about it (see "If They Violate Your Privacy in the Woods, Do You Make a Sound?" (Oct. 30, 2013):

The Colbert Report
Get More: Colbert Report Full Episodes,Video Archive

"I'm just watching you shower, but the second you see me through the window, suddenly I'm the criminal?" Great as always.

Retraction of the Millennium

Previously in the Harrisburg Patriot & Union:

We pass over the silly remarks of the President. For the credit of the nation we are willing that the veil of oblivion shall be dropped over them and that they shall be no more repeated or thought of.

Yesterday, same newspaper:

We write today in reconsideration of "The Gettysburg Address"....

The Patriot-News regrets the error.

Now under new management, of course.

"Probably an Accident," Say Police About Death of Spy Found Inside Locked Bag

After a three-year investigation, the Metropolitan Police have concluded that their initial suspicions of foul play were unfounded in the case of Gareth Williams, a 31-year-old intelligence agent whose naked body was found in his bathtub inside a padlocked bag.

Although a spokesman acknowledged that some people—like the coroner—had drawn what seemed to be the "logical inference" that someone else was involved, he said that based on all the evidence, or actually the lack of it, police had decided that the death was "probably an accident" and were closing the case.

Williams, described as a "math genius," was a communications officer at GCHQ, the UK's equivalent of the NSA—"equivalent" in terms of its respect for the law as well as its function. See, e.g., "Leaked memos reveal GCHQ efforts to keep mass surveillance secret," The Guardian (Oct. 25, 2013) (quoting memos expressing concern about a "public debate which might lead to legal challenges"). He had been "secunded" to the Secret Intelligence Service, often known as "MI6," at the time of his death, however. Because MI6 handles primarily foreign intelligence (MI5 is the domestic agency), it works closely with GCHQ, as you would expect.

Occasionally their directors are even forced to testify together, as happened last week. See Michael White, "Britain's spy chiefs make daylight debut like a trio of Draculas in winter sun," The Guardian (Nov. 7, 2013).

After Williams had failed to show up at work for a week, an officer found his body in the tub inside a fully zipped-up bag, the zippers of which had been locked with a padlock. None of his DNA was found on the lock and his prints were not found on the edge of the bathtub. No drugs or alcohol were found in his system. There were some traces of DNA in the flat from which "it had not been possible to gain full DNA profiles," but no conclusive evidence that third parties had been present. There was some evidence that Williams may have engaged in certain bondage practices—he once had to call for help after tying himself to a bed—and police apparently believe this might explain why he might have sealed himself in a duffel bag.

Still, there was that nagging issue as to how he might have locked the bag from the inside.

At the coroner's inquest, an expert witness (described as "an expert on confined spaces") who is about the same size as Williams said he had tried and failed to do this no fewer than 300 times. The bag is big enough, he testified. "You can get into the bag and you can zip the bag up. That's not a problem."

So what IS the problem?

Turns out the problem is locking yourself in, although you wouldn't think it'd take 300 attempts to be sure of that. "You can't access the lock from the inside without damaging the bag, so it cannot be padlocked from the inside," he said. "Even Harry Houdini wouldn't have managed it."

Houdini could not be reached for comment.

The coroner concluded that Williams had been "unlawfully killed" by a person or persons unknown, and his body then put inside the bag after his death. But after another year of investigation—and an unspecified level of "co-operation" from MI6—it seems that a small thing like absolute physical impossibility has not deterred the police from concluding that Williams managed to do this himself. In fact, the spokesman said he was satisfied it was "theoretically possible" that Williams had locked himself inside the bag, although the report did not explain why. Maybe the 301st time is the charm?

I'm sure this sequence is coincidental

"Now at the end of our investigation," the spokesman said, "based on the evidence, or where we have been unable to find positive evidence, we believe that it is a more probable conclusion that there was no other person present when Gareth died." Well, "more probable" than what? If the only other hypothesis was that "Voldemort did it," I would agree. Otherwise I think the only conclusion you can draw from the lack of evidence is that you can't draw any conclusions at all.

Maybe I'm being too cynical here, though, because it's not like this is the first time this sort of thing has happened. See "Police Pretty Sure Man Tied Himself Inside Sack and Shot Himself Before Jumping Into River," Lowering the Bar (Aug. 19, 2013). On the other hand, that sequence of events was at least physically possible. Just really, really unlikely.

Missouri Supreme Court Hears Hot-Dog-Flinging Case

Here's another update to a story previously (and repeatedly) covered here: the Missouri Supreme Court is considering whether the Kansas City Royals can be held liable because its lion-like mascot, Sluggerrr, threw a hot dog into somebody's eye. Goofy as the facts are, the court's decision may set an important precedent.

The story so far:

• John Coomer says he was enjoying a game in 2009 when Sluggerrr, who had at least put down the air cannon sometimes used for this purpose (seen in this frankly somewhat disturbing image) and was tossing them by hand, somehow managed to toss a hot dog behind his back and into Coomer's eye with enough force to detach a retina. See "Dog-Flinging Mascot Blamed for Eye Injury," Lowering the Bar (Feb. 24, 2010).

• The Royals moved for summary judgment based on the "assumption-of-risk doctrine," which in the baseball context means that, for example, a fan hit by a foul ball can't sue because that risk is inherent in the game. The court denied the motion because it found that even if hot-dog flinging had become a customary part of the game, as the Royals argued, there was an issue of fact as to whether Sluggerrr flung negligently. See "Court: Baseball Fan Did Not Assume Risk Associated With Hot Dog Toss" (Feb. 10, 2010).

• For whatever reason, that particular Sluggerrr did not return after the 2009 season, and reports said the new incarnation would receive more comprehensive training at a "mascot boot camp" run by the guy who was the original "Phillie Phanatic." See "New Royals Mascot Reportedly Training to Avoid Further Incidents"(Feb. 26, 2010).

• The case went to trial, and in March 2011 a jury that had been instructed on assumption of risk found in favor of the team. On appeal, the plaintiff argued that instruction should not have been given, and the Missouri Court of Appeals agreed with him. See "Bad News for Dog-Flinging Mascots" (Jan. 16, 2013) (noting court's holding that the doctrine did not apply because "the risk of being hit in the face by a hot dog is not a well-known incidental risk of attending a baseball game"). The Royals appealed.

So that's how a case involving a guy in a freaky-anthropomorphic-lion suit throwing hot dogs at people got to the Missouri Supreme Court. That court heard oral argument on September 11 (the briefs and an mp3 of the argument are available here).

Coomer primarily argues that the assumption-of-risk doctrine doesn't apply because "the risk that Sluggerrr would negligently throw a hotdog [sic] that would strike a business invitee is not a risk inherent to the game of baseball." (Both parties still insist on writing "hot dog" as one word, and both parties are still wrong.)

The Royals, though, phrase the question as whether "the risk of being struck by a thrown hotdog is an inherent risk of the Hotdog Toss" (emphasis added), which they say has become "an integral part" of a Royals baseball game. Their brief notes that the "Hotdog Toss" has occurred at every one of the 800 home games the Royals have played since 2000 and that fans have come to "love and expect" it. Considering that from 1995 to 2012 the Royals had exactly one winning season, it is not too hard to believe that the "Hotdog Toss" did become very important to their fans. But is it—and are other potentially risky things that teams and their mascots do—really "integral"?

I personally think the Missouri Supreme Court is going to affirm, ruling in the plaintiff's favor on the grounds that at least these kinds of mascot antics are not an inherent part of the sport. This would mean the case would be sent back for another trial in which the jury would not be instructed on the doctrine.

It's one thing to say the doctrine protects a sport, because like most sports, baseball has a detailed set of rules. (The exception of course is soccer, where people just run around and kick at things, as far as I can tell.) The existence of those rules make it more likely that a court will be able to tell if necessary what is and isn't an inherent part of the activity. But I'm pretty sure there is no mascot rulebook, so that these cases would be pretty fact-intensive and so more suited for a jury. This wouldn't mean mascots must go, just that juries would have to determine whether they were negligent based on particular facts.

It might mean that teams would decide to get rid of things like mascot-fired air cannons rather than take the liability risk, but you know what? That would not be the end of the world.

An Important Solar Update

Toby McCasker of Vice.com somehow got an interview with Angeles Duran, who as I'm sure you remember is la mujer española que es la propietaria del sol. See "The Woman Who Owns the Sun Is Using Her Powers for Good," Vice.com (October 2013); see also "Sunshine No Longer Free, Says Sun's New Owner," Lowering the Bar (Nov. 29, 2010). It's pretty great.

Still free to individuals

You'll be glad to know that she has apparently decided not to charge individuals for using the energy emitted by her sun, only companies that use it without her authorization. This is good news for individuals everywhere, especially given that, according to her, she has been fending off legal challenges from other people who also claim to own the hydrogen-fusing G2-class star at the center of our system. Who knows what they might charge? One is apparently a Romanian man who she mocked for not knowing the law. She also claims to have actually been sued by another Spaniard who claimed he owned the entire universe (of which the Sun is allegedly a part), a suit in which she says she prevailed but I'm not buying that until I see some documents.

I'm also not buying any plots of "solar land" from her, although she's letting them go for just 1 euro per square meter. (You don't need to rush, because there are plenty to go around.)

Although you'd think that owning the sun would provide a sufficient revenue stream, Duran says she has diversified. "I also own the Tarzan shout," she says. (Another priceless item that was just sitting around waiting for someone to claim it.) She's selling el grito de Tarzan too, although exactly what she is selling in that regard was not entirely clear to me. Either her own recording of it, or a license to make your own, I assume.

Anyway, if you happen to absorb any solar energy this weekend, you might drop Angeles a line to say thanks.

No Quantum of Solace

There are lots of posts out there about the horrifying Eckert case (including mine), and lots of them are good, but you should definitely read this one posted today by Ken White at Popehat, entitled "What Is The Quantum of Proof Necessary for Police to Rape and Torture You in New Mexico?"

As usual, Ken pulls no punches (including in his headlines). He analyzes the affidavit that was used to justify the search warrant (itself an interesting read for different reasons) that was used to justify the repeated anal intrusions, and concludes:

It really comes down to three things:  (1) subjective officer impressions that Eckert looked nervous, (2) a dog alerting on his [car] seat, and (3) an unnamed cop making an unspecific claim that he had previously hidden drugs in his anus. 

Those hardly add up to probable cause, at least given that there was no corroboration for the anonymous "tip," he points out.

One thing I will add about that: the assistant DA who approved the warrant is a defendant, and in his answer to the complaint he says he doesn't know who told the officers that Eckert was "known in Hidalgo County to carry drugs in his anus," and so denies that allegation. But he admits that Eckert was in fact "known in Hidalgo County to carry drugs in his anus." He doesn't say where he obtained this knowledge of what was known about the anus in question, though.

Anyway, you should read the post, which is an excellent analysis of the case (based on what we know so far) and of why, exactly, it is so terrifying. Beyond the obvious, that is.

Plaintiff in Deming Case Was Held for 15 Hours [Updated]

Via Reason.com, here's the complaint in Eckert v. City of Deming, which I also wrote about yesterday.

In general the KBO News report summarized it correctly, but there are some additional facts alleged here (in addition to more horrible details of what the police allegedly put him through). These are just the allegations in the complaint, remember, although according to KBO the medical records do confirm the plaintiff's allegations about the procedures done.

First, the complaint also alleges claims based on a different incident last year, when the plaintiff was stopped in his home county (Hidalgo) for having a cracked windshield. Because he "looked nervous," other officers were called and a drug-sniffing dog brought in. No drugs were found.

Second, the more recent stop in Luna County allegedly was quite a team event, involving officers from multiple jurisdictions and possibly a separate drug task force. According to the complaint, the officer who stopped the plaintiff hadn't actually seen the traffic violation, he got a call about it from another officer. Since the violation was failure to yield at a stop sign, why wouldn't the officer who saw it make the stop himself? We don't know yet.

Third, here are the facts that allegedly justified the warrant (still looking for the affidavit itself):

• Eckert was ordered out of the car, and that's when the alleged butt-clenching was noticed. Specifically, it says the officers claimed his "posture was erect and he kept his legs together," which is not exactly the same thing. (Yes, I just tried it.)

• At that point a sniffer dog was brought in—which turned out, oddly enough, to be the same dog from the 2012 stop. It supposedly "alerted" to the seat of Eckert's car.

• The third piece of "evidence," apparently, was that officers from Hidalgo County—which is not where the stop took place—told the first group that Eckert was "known in Hidalgo County to insert drugs into his anal cavity." "Known" by whom? Learned how? How and why did these officers get involved in a traffic stop in a different county? All good questions.

The complaint also alleges that the affidavit was defective in other ways, saying for one thing that the law requires planned medical procedures to be specifically listed (it cites a 5th Circuit case and this would seem to follow from the Fourth Amendment's specificity requirement), and they weren't.

Fourth, the complaint alleges the plaintiff was held for 15 hours. The stop was sometime before 2 p.m., and he was not released until 5 a.m. the next day, after being probed for several of those hours.

Let's say police stop someone they know to be a major drug dealer, previously convicted, maybe even a "kingpin." As far as I know there is no evidence Eckert is such a person, nor do I think the officers believed he was, just because if I were a drug kingpin I sure as hell wouldn't be carrying the drugs in my butt. You hire someone else to do that. But let's say they stop someone who is a real bad guy. Or they even have a tip that he's got drugs in the car, and they've been trying to get him for years.

It wouldn't matter. The Constitution and laws have to apply regardless of who the defendant is or else they don't do the rest of us any good. And we don't know, maybe these cops just didn't like the guy. Maybe he's just the wrong race or likes the wrong sports team or slept with somebody's wife. Whatever the reason, they (allegedly) picked up a guy on a pretext and talked a couple of doctors into searching his bowels all night long. Think about that one for a few minutes, if you can stand it.

Then consider whether the "War on Drugs" and its even creepier pal the "War on Terror," which have consistently eroded the rules that are supposed to protect us from this kind of thing, are really worthwhile.

I know what I think, so I'll just be over here practicing how to stand upright in a very relaxed position.

Update: KOB News now says it has found another person with a very similar story: traffic stop, same dog, same medical center, similar probing, same result (nothing). Also, although searches with dogs are often tainted by signals the dogs get from their handlers, KOB says this particular dog has not been certified to sniff in New Mexico since 2011.