by Reason of Sanity

by Gene Grossman

  Stuart solicits people in Santa Monica to assign their TCPA actions over to him. He finds out who the California fax broadcasters and their clients are and then files suits against them in small claims court. When he wins, he gets his court costs back and then splits the rest with whatever client assigned the claim to him.

  In this particular case, one of the fax spammers wants to make an example out of Stuart, so that he can stay in business by clogging up the fax machines of millions of Californians with notices of free cellular phones, travel bargains, stock tips, health plans, new mortgages, etc., etc.

  He states three ways that Stuart is violating the law and asks for the small claims suits Stuart filed to be dismissed, and that Stuart be stopped from filing further ones. His contentions are that Stuart is guilty of Barratry, which is the stirring up of litigation for profit; Champerty, the participation in someone else’s action for some percentage share; and Maintenance - the financing of a lawsuit he shares in.

  “ Pete, these things sound like they’re from the middle-ages. Are they still on the books?”

  “I’m afraid so, pal. In California, we’ve got two sections of our Penal Code, numbers 158 and 159 that make barratry a misdemeanor.”

  “Exactly how serious is that?”

  “In California, the seriousness of a crime is determined by the severity of the punishment. A misdemeanor is punishable by up to a maximum of one year in the county jail, or a fine, or both. A felony is more open-ended, with the punishment starting out at a minimum of one year in a state penitentiary, and going all the way up to life in prison and in some instances, a lethal injection.”

  “So if this is only a misdemeanor, I’ll get fined, huh… I mean, they won’t send me to jail will they?”

  “Nah, jail time probably wouldn’t be a risk for you Stu, not for a first-time offense, but the fine can be a thousand dollars for each violation and you’ve filed quite a few of these things.”

  “Jeez, that could really cost me a lot. Is there any way we can fight this? I’m making several grand a month off of these cases and junk faxes to Santa Monica have dropped off since I started. That’s good, isn’t it? I mean, like I’m providing a service to the public.”

  “Yeah, Stu, you’re my hero, but we’ll need more than that to beat this guy down. Let’s just finish our dinner. I’ll work on the case a little more and have Jack B. do some snooping for us. Don’t worry - we’ll beat it. I’ve got a good feeling about this one.”

  Stuart calms down and the three of us finish our dinner. The dropped salad croutons and cake crumbs have a floor-life of about ten seconds and the table almost tips over every time the huge beast below goes after another morsel that hits the floor.

  Now that Stuart has been temporarily taken care of, it’s time to get to the real serious stuff. I’ve got stacks of videotapes to go through. Where are they? I thought I left them out on the dinette table. I don’t remember seeing them earlier today. No problem. Any time something strange happens on this boat, there’s a simple answer. The little princess is doing something that I know nothing of. I scribble a note quickly and drop another crouton on the floor. As soon as the dog comes to retrieve the dropping, I slip the note in his collar. This is his signal to make a delivery to the foreward stateroom.

  The next morning, there’s a message waiting for me. The videotapes were sent to some lab to be digitized. I don’t know what that means, but as long as Suzi’s behind it, it must be a good thing, so I’ll just wait to find out.

  A couple of days have passed and I now see a videocassette on the dinette table. I don’t know what happened to the other twenty or thirty of them, but I hope to find out. I pop this one into the VCR and hit the pla button. This is amazing, because this one tape contains all the action from all the other tapes. The parts where nobody moves have been eliminated and the action has been speeded up to eliminate the one-shot-per-second jittering that was on all the other tapes. What we’re left with is a smooth-action video of exactly what happened in Drago’s hospital room.

  As pleased as I am to find out that thirty or forty hours of my time have been saved, I’m not too happy with what I see on the screen. It’s my reluctant client. He’s moving around in the room, stops at the closet for a minute, then picks up a pillow off of the unoccupied bed next to Drago’s and proceeds to smother Drago to death. He then returns the pillow to the empty bed and walks out of the room. For some strange reason, he even looks up towards one of the security cameras. His face appears plain as day, with no effort at all to avoid the cameras or escape guilt. They must have found him by showing his picture around the neighborhood. There are a few quirky spots on the tape but that’s probably a result of the digitizing process, which I now know is what they call it when you load video footage into a computer.

  About two minutes of this stuff is all that Myra will need to deliver my client to the guy with the needle. She might be willing to offer me a plea bargain of some sort if I have something to give her in return, but since my client won’t even talk to me, I rule out a deal. Maybe he’ll talk to me at the arraignment.

  7

  My client has been brought in from the holding cell area and he’s already sitting behind the counsel table when I get there. I look at him as the bailiff calls the court to order. He doesn’t return the look. He looks terrible, but that’s understandable.

  The County Jail is not a vacation spot. Only the really rich defendants have enough resources to get brand new suits delivered to the holding cell, so they can walk into court looking like they just came from a Brooks Brothers store. My client is not rich, so he’s wearing one of the fashionable orange jump suits they give out to prisoners. As far a juries are concerned, on the back of the jump suits they should have the word ‘guilty’ silk-screened on. It’s now ‘show time,’ so the bailiff makes his announcement.

  “Remain seated and come to order. The Superior Court of the State of California is now in session, the Honorable Ronald Axelrod, presiding.”

  The bailiff’s announcement having been made, the judge sits down behind the bench and calls the case. “People versus Harold Blitzstien.” He looks down toward the counsel tables. “Appearances?”

  Right on cue, Myra stands up. “Myra Scot for the People, Your Honor.”

  My turn. “Peter Sharp for the defendant, Your Honor. We waive reading of the charges and statement of rights.”

  The judge looks down at my client. “Well Mister Blitzstien, it’s your turn. In the charge of Murder in the First Degree, a violation of California Penal Code Section 187, how do you plead?”

  My client just stands there and glares at the judge. Silence. After about ten seconds of pin-drop quiet, the judge takes over. “Okay, tell you what I’m going to do. Mister Sharp, I have a feeling that you really haven’t had a chance to properly interview your client, so I’m going to put this matter over for another ten days, during which time maybe the both of you can get to know each other a little better. Then, next time we all get together, perhaps a plea might be forthcoming.” He looks over to Myra, and then to me. “Any objections?”

  We both answer almost in unison, “No, Your Honor.”

  The judge then looks over towards the calendar hanging on the wall over his clerk’s desk. “I see that we’ve got an opening on either the 13th or 14th, so if either of you would like to make a reservation, please go right ahead.”

  Both Myra and I check with our calendars and agree that the 14th would be a good day to come back. She checks to see if she had anything else going on that day. When I check my calendar, I see that I’m free for the rest of my life. The judge bangs his gavel on the desk. “Done. See you then.” He stands up and heads back to his chambers.

  Just before the bailiffs lead him away, I take the opportunity to try a conversation with my client. “Listen Mister Blitzstien, you don’t have to like me, but at least give me the courtesy of acknowledging my presence here. I’m going to do whatever I can for you so please, if I come to the jail
to visit you, at least come to the interview room. If you don’t want to talk okay, you can just sit there silently. That’s your decision and I’ll respect it.”

  No response. The bailiffs are on the way to escort him back to the holding cells. I try one more time. “If I come to the jail tomorrow will you see me?”

  As he’s led away, he looks back at me and utters the first words I’ve heard from him. “Knock yourself out.”

  I don’t know if that’s an acceptance or not, but I’ll go to the jail tomorrow to find out. If he refuses to see me again, I’ll notify the judge and then do whatever I can for his defense. About the only chance we have is to block Myra’s having the videotape evidence admitted – and if they document the chain of custody and bring all the right witnesses in, then I have no chance at all.

  For some reason, this matter has attracted the press’ attention – probably because of Myra’s recently gained notoriety in beating her former boss a few months ago and forcing him out of office. There are several reporters in the long hallway outside the courtroom. When Myra sees them, I’m once again reminded of her love affair with any camera. They crowd around her, asking those inane questions that they get overpaid to ask. After stalling the exact right amount of time to build the suspense, she breaks it by making a statement. “As you’ve already seen by that footage leaked from the district attorney’s office before I was appointed to this case, not only did the defendant do the act with which he’s charged, but even my predecessor, former District Attorney Bill Miller, could win this case.”

  A reporter asks her a leading question. “Does that mean you’re you willing to stake your reputation on a conviction here?”

  Myra’s a smart cookie. She sidesteps that one. “I don’t have any reputation to stake. I’m not the district attorney, I’ve just been appointed as a special prosecutor for this one case. When it’s over, I’m back to my private practice.”

  The reporter won’t let up. “In other words, can we assume that if you lose this case, you won’t run for district attorney in the next election?”

  Myra wasn’t ready for that one, but she tries to answer as tactfully as possible. “Let’s put it this way, anyone who loses a dead-banger like this one doesn’t even deserve to carry the district attorney’s briefcase.”

  The press acts like it’s in a feeding frenzy and I can see that Myra’s getting uncomfortable with it. I try to help her out by grabbing her arm and pulling her into the elevator, which is going up to the second floor. She appreciates the extraction. “I’m just going up to the second floor cafeteria for a cup of coffee… come on, join me.”

  “You buying?” She’s still as stingy as ever.

  “Yeah, why not. I’ll write it off as a celebration for our working on another case together.”

  The coffee break is a cordial one. After the usual small talk, she apologizes to me.

  “Pete, I can’t give you anything on this case.”

  I guess she’s talking about a plea bargain, which I’m really not interested in here. “That’s okay, I don’t think I’ll need one.”

  I catch her by surprise with that one. “What do you mean, you won’t need one? You think he’ll plead straight up, to the 187?”

  At this point, I figure it’s time to rattle her cage a little. As I’ve said many times before, knowledge of the law isn’t as important as knowledge of the prosecutor. “No, I mean that maybe he’s insane. I’ve always thought that anyone who can take another life in cold blood like that can’t be sane… even if it’s a cat or dog they kill. No reason it shouldn’t apply here. I looked in those gray, cold eyes of his today and it creeped me out. I think the guy’s nuts.”

  Wow, that sure presses a button. She starts to come unglued. “No you don’t – you’re not doing that to me. You know damned well that my run for district attorney may depend on a straight conviction in this case, so don’t you go pulling any of your crap on me.” When she sees me embarrassingly looking around the room, she realizes we’re still in a public place, so she immediately stops yelling at me and leans across the table. In almost a whisper, she gives me an ultimatum. “You try that on me, and I’ll cut you right off at the knees in open court. I’ll fillet you like a fish. I promised the public a conviction and that’s what they’re going to get.” With that, she gets up and storms out of the room. There’s never a reporter around when you need one.

  Driving Myra crazy was always a specialty of mine and now that I don’t have to be worried about her threatening to throw me out of the house, it’s even more fun. It seems that we’re having much better fights now that we’re divorced.

  While I’m at the courthouse I might as well get some use out of their law library, so I start some research. I’ve got several areas I need to know more law about and if I don’t doze off reading this stuff, maybe I’ll learn something that might help with my cases.

  I pull out a bunch of books and start reading up on Barratry for Stuart, Dramshop for Vinnie, and client refusal to cooperate, for my own edification. And while I’m at it, I make a note to research how far the bank’s liability could extend to deceased claimant Mike Drago.

  While scanning through one case after another, I notice one that mentions one of the most celebrated cases in criminal law… one I should know more about for possible use in Blitzstien’s defense.

  In 1843, a paranoid young woodworker from Edinburgh named Daniel McNaughton was convinced that Sir Robert Peel, the Prime Minister of England, was conspiring against him. Daniel got a gun and tried to assassinate Peel. Unfortunately, Daniel shot the wrong guy in the back by mistake – he killed Mister Edward Drummond, Peel’s private secretary.

  Of course McNaughton was caught and arrested. The cops in those days couldn’t catch Jack the Ripper, but that failure was understandable because all he ever carved were prostitutes - and Sherlock Holmes was probably on vacation that month. It might have been a different story if Jack tried to whack the Prime Minister. What a terrible thought… then he might forever be known as Jack the Whacker. My mind drifts in and out of reality when I read about the law.

  When McNaughton was brought to trial, he must have had what was the ‘dream team’ in those days because they came up with a new argument for his defense. They said that because he believed his life was in danger, he acted in self-defense when trying to kill the Prime Minister. Not quite as creative as ‘if the glove doesn’t fit, you must acquit,’ but it seemed to get the job done anyway. The court accepted the dream team’s argument, and found McNaughton not guilty by reason of insanity.

  That case gave rise to quite an uproar in the legal community, and it hasn’t stopped yet. Modernly, the casebooks contain many celebrated trials where the insanity defense was put forth. Some of the most memorable cases include the one involving Wade McClave who thought his parents were vampires, so he butchered them. It worked for him. Andrea Yates drowned her five children but it didn’t work for her. Probably because her trial was in Texas and they really like to execute people there.

  The insanity defense was never more hotly debated then when John Hinckley shot President Ronald Reagan, outside a hotel in 1981. The very next year, Hinckley was declared not guilty by reason of insanity.

  I’ve never asserted that defense for a criminal client, but maybe that’s because I haven’t had that many capital cases. You don’t waste your energy on a defense like that for a shoplifting charge… although it has been done. I think an attorney tried to convince a Beverly Hills Municipal Court that his movie-star client was not responsible for stealing thousands of dollars from Saks Fifth Avenue’s store because she was mentally impaired and under the influence of prescription drugs. She lost.

  One of the big downsides of an insanity defense is that you have to admit your client actually did the act with which he or she is charged, before you can claim that they didn’t know what they were doing. That removes all the fun of trying to destroy the eyewitnesses. Another bad thing about it is that it turns the trial into a batt
le of the shrinks, who’ll say anything for the right amount of money. In order to be successful I’ll have to show by a preponderance of the evidence that my weird defendant, because of a mental illness, either didn’t understand what he was doing when the crime was committed or that he didn’t know that his actions were wrong. A tough sell, especially when you can’t back it up with a nice history of prior craziness.

  Partly in jest, I threatened Myra with the not guilty by reason of loonyness defense. Now it’s starting to look like a better idea. Everything will depend on whether or not I actually get a chance to meet with my client tomorrow at the jail. It’s bad enough when I can’t get my legal ward to talk to me. I don’t want to fail with a fifty-year-old killer too.

  There’s still time left this afternoon to get a message of representation off on Vinnie’s case, so I use Jack Bibberman’s information and send an email to the restaurant where the drunk got drunk.

  The kid is doing her volunteer dog act at the hospital today, so I’m going to turn off the phone, get comfortable, and do some reading. I copied over fifty pages from the courthouse library books, which should take me at least three hours to get through. By that time, the Saint Bernard will be hungry, so maybe Suzi will be generous and feed me too. She usually stops by the Chinese restaurant on her way back from the hospital, or calls the Asian Boys to deliver something for us.

  8

  A

  surprising message comes in from Ms. Patty Vogel, counsel for the restaurant where Vinnie’s drunk driver got loaded. She informs me that they are denying all liability, which is pretty standard practice for defense attorneys. They want you to get the feeling that it’s going to be an uphill fight all the way if you threaten their client. Just for the record, I email her that we have several affidavits from independent witnesses who have placed the defendant driver in her client’s place of business for a minimum of six consecutive hours prior to his driving into the tree and injuring my client.