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FROM COURT TO MOCK TRIAL: THIS CASE WON’T DIE Although 89-year-old Michel Thomas lost his defamation suit against the Los Angeles Times, his lawyers and supporters are still battling in the court of public opinion. They will present his case before a panel of journalism and law professors at Boalt Hall School of Law on April 4. The idea, they say, is to explore First Amendment, defamation and journalism issues raised in the dispute. An April 15, 2001, Times article titled “Larger Than Life” cast doubt on Thomas’ accounts of his experiences during World War II. The article specifically questioned whether Thomas served with the United States’ Counter Intelligence Corps, was present at the liberation of the Dachau concentration camp, discovered a huge cache of Nazi Party membership cards and escaped interrogation from Klaus Barbie. A district court dismissed the suit, granting the Times’ anti-SLAPP motion. The Ninth Circuit U.S. Court of Appeals upheld the decision, and in January the U.S. Supreme Court denied Thomas’ petition to review the case. “We were never able to present evidence before a jury,” said Alex Kline, a San Francisco private investigator who worked for Thomas’ attorney, Anthony Glassman. “If the jury had seen all the information that [ Times reporter] Roy Rivenburg had ignored, we felt very strongly they would be appalled.” At a mock trial, Thomas will get a chance to present data that he says was left out of the Times piece in order to portray him as a fraud. Ted Kraus, who served with him in the Counter Intelligence Corps, will be his chief witness. Glassman, of the Beverly Hills firm Glassman, Browning & Saltsman, will square off against John Bartko, of Bartko, Zankel, Tarrant & Miller, who will present the newspaper’s position. Glassman said the newspaper did not respond to his invitation to participate in the mock trial, so he called on Bartko, his friend and former Boalt alum, for help. “We’ve spent an enormous amount of time and money defending the Los Angeles Times, and every court has said the case does not have merit, and yet they want to continue litigating it,” said Kelli Sager, a partner at Davis Wright Tremaine’s Los Angeles office who represents the newspaper. “I don’t know what the point is. He’s had more than his day in court.” Robert Cole, a professor emeritus at Boalt who is organizing the event, said the case will provide an educational experience and give students a chance to see “very fine lawyers in operation.” After a three-hour trial, a panel of journalism and law professors will discuss litigation strategy, as well as the First Amendment, defamation and journalism practices. – Brenda Sandburg $39,000 BUYS A LOT OF LEATHER Talk about damages for pain and suffering. In an arbitration case that even the judge noted had “very unique” facts, Jennifer Jo Smith — alias Jewel Marceau — sued Paige White, a legendary performer and director in the bondage community, for injuries incurred during a very explicit San Francisco photo shoot for Slave Labor Productions. It seems that Smith, considered a star in her field, injured her left arm, wrist and hand while bound, gagged and hanging from ropes several feet off the ground. Or as the arbitrator put it in a ruling released Thursday: “Claimant (unable to express any discomfort with a gag in her mouth) was left hanging as ropes were unevenly loosened and she was not provided effective bracing.” The arbitrator, former San Francisco Superior Court Judge Raymond Williamson Jr., found that Smith was not an “employee” for purposes of workers’ compensation as she had argued. But he did rule she had been injured because of negligence and awarded her $35,544. In addition, he ordered White to pay more than $8,700 for the American Arbitration Association’s administrative fees. Walter Walker III, a partner at Walker & Hamilton who represented Smith, said the case should have settled for a pittance, considering the injuries were rather minor. But, he said, he “had a real tiger by the tail” in White, who refused to settle for fear of ruining her image in the bondage world. So Walker used the terms of Smith’s contract to force the case into arbitration. “Given the fact that we had a bondage case,” he said, “it was interesting that it was binding arbitration.” Smith, from Virginia, had contacted White, and the two arranged the photo shoot at White’s home/studio. Smith — star of videos such as “Asses in the Air 1,” “Leather Bound Dykes From Hell 15″ and “Sorority House Slaves” — was paid an hourly rate. The injury occurred during a pose that Smith hadn’t tried before. Arbitrator Williamson, who noted more than once that he had watched the video in question, offered detailed descriptions, noting that White urged Smith to “push the envelope,” and Smith responded with comments such as “more-more,” “more pain” and “I’ve experienced more hurt.” “Clearly this ‘work’ was a labor of love and mutual pleasure for both claimant and respondent,” Williamson wrote, “and each wished to maximize the effect for themselves and each other.” In trying to defend herself against claims that she was Smith’s employer, White noted that for one thing, Smith had provided her own extensive wardrobe. “However,” Williamson wrote, “the arbitrator, having viewed the video, concludes that ‘extensive wardrobe’ is a ‘term of art’ in the industry.” Walker said he’s never handled an arbitration case quite like this one and did it “for a change of pace.” But he said the subject matter wasn’t as erotic as it might appear. “What seemed quite interesting and titillating before we watched it,” he said, “after 10 minutes became quite boring.” Much of the film, which is available online, was of the work around the production. Stephen Cusick, the Nielsen, Haley & Abbott partner representing White, said he isn’t sure whether he’ll try to appeal, especially since appealing an arbitration ruling isn’t easy. He said the arbitrator seemed to have fun with the case, but he regretted that negligence was found. “Tying yourself up for fun and profit,” he said, “is a risky business.” — Mike McKee FOOTNOTE FRENZY If the issue didn’t keep your interest in last week’s Ninth Circuit U.S. Court of Appeals decision, United States v. Crawford, rest assured the footnotes will. The case was about the standard the government must meet in order to search California parolees. To kick off an argument that there should be an extremely low standard, Judge Stephen Trott raised the specter of Richard Allen Davis, the California parolee who killed 12-year-old Petaluma girl Polly Klaas. Majority author Stephen Reinhardt weighed in with some doozies among his 36 — 36! — footnotes, including several finger-wagging reminders that federal law trumps state law. The dissent in Crawford, 03 C.D.O.S. 1987, was almost as lengthy, however Trott contributed only three footnotes. But the third was a keeper. In it, readers learned that Trott recently opened up his suitcase following a flight to San Francisco and found a notice that his bag had been arbitrarily searched. “Times change,” Trott wrote. “So do our reasonable expectations of privacy.” Not that Davis had anything to do with the case, as Reinhardt pointed out. As a rebuttal, in footnote 36, Reinhardt listed a gaggle of cases that cite bogeymen unrelated to the matter at bar, including Jeffrey Dahmer, John Wayne Gacy, Charles Manson, Lee Harvey Oswald, Al Capone, Adolf Hitler, Pontius Pilate and Satan. As for the finger-wagging reminders of federalism, how about footnote 14? “We recognize that the California Supreme Court has apparently determined that California law does not recognize as legitimate the expectation of privacy of a parolee subject to a ‘properly imposed parole search condition,’” Reinhardt wrote. “Of course, a search of a California parolee must comport not only with California law, but — as in all jurisdictions within the United States and its territories — with the demands of the federal Constitution as well.” — Jason Hoppin

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