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PERCOCET MAKES PAIN (AND DRUG CONVICTION) DISAPPEAR Perhaps being high in court isn’t such a bad thing — even if you are facing felony drug charges. A three-judge panel of the Ninth Circuit U.S. Court of Appeals recently overturned the convictions of Jeffrey Dean Howard, arguing that he was so loopy from pain medication that he couldn’t understand a plea agreement. Howard pleaded guilty in federal district court after Pierce County, Wash., deputies found a methamphetamine lab at a home he shared with another man. Howard was charged with five felonies in 1998, among them establishing a drug operation. Howard was set to go to trial in February 1999 but instead pleaded guilty to four of the five counts and received a sentence of nearly 25 years in prison. At the time, Howard was taking pain medication for leg injuries from a motorcycle accident. His injuries came up during the hearing. The court asked if he were under the influence of drugs or alcohol. Howard hesitated, but then admitted to taking Percocet for a motorcycle accident. The court noted that the drug was “pretty tough stuff,” but the issue was soon dropped. “The record reveals that Howard was under the influence of a powerful narcotic drug that could have affected his cognition; the only question is whether it actually did,” Judge Raymond Fisher wrote. “That he could have been rendered incompetent, and specifically and credibly claims to have been so, is sufficient to tip the scales in favor of an evidentiary hearing on this aspect of his claim.” — Justin M. Norton A NEW WAY TO GET BACK AT YOUR EX What’s in a name? Well, that’s the $64,000 question. Except in this case, it’s a $64 million question. Last week, San Francisco’s First District Court of Appeal threw out a Solano County suit filed by Joy Elizabeth Johnson, who claimed her ex-husband and his attorney owed her $64,000,032.90 for daring to use her allegedly copyrighted name in the couple’s divorce papers. In her complaint, the court said, Johnson described herself as the “living, breathing, sentient woman known by the appellation, ‘Joy Elizabeth; Johnson �,’ Sui Juris, in her proper person.” The use of her name, she insisted, violated her contractual rights to royalties under the Uniform Commercial Code. The First District wasn’t impressed. “Appellant’s assertions that she could prevent others from referring to her by her name in pleadings, or could require payment of royalties for such protected conduct, are without merit and frivolous,” Justice Lawrence Stevens wrote. Justices Barbara Jones and Mark Simons concurred. The justices also shot down Johnson’s contention that she had “contracted” with the court in her appellate case. “We are compelled to point out,” the court said, “that there is no such contract.” But the justices didn’t stop there. They said the court record was “severely impeded by multiple deficiencies in appellant’s briefs, which are almost unintelligible.” The court noted that she accused the trial court of being guilty of “misprision” and “contempt for the rule of law” in granting a motion to strike her complaint. And she provided the appeal court no citations to support the factual assertions. “Appellant proclaims that she presents no citations as to the standard of review applicable to summary judgment,” Stevens wrote, “because ‘any lawyer or judge who does not recognize this principle is thoroughly incompetent.’” The court noted that Johnson’s original bold text had been omitted. The unpublished ruling is Johnson v. Saunders, A104475. — Mike McKee KEYSTROKE SUIT SETTLES Employees, watch what you type on your work computer. Employers, don’t get too curious about what your workers are doing. Those are the lessons from a civil case that recently settled before going to trial in front of U.S. District Judge Jeremy Fogel in San Jose. The plaintiff was a woman named Diane Tran, who worked for Lehrer Management Co., a financial planning and investment management firm in Cupertino. According to Tran’s lawyer, William Fayette Taylor of Berkeley, Tran used her work computer for some personal business, including checking an online e-mail account and instant messaging. Company policy allowed employees to do so. Unbeknownst to Tran, however, Lehrer had installed a program on her computer called eBlaster, which monitors the users’ keystrokes. The program then e-mails supervisors a report of what the person under surveillance does on their computer. Unfortunately for Lehrer, eBlaster mistakenly sent the reports to someone else, who alerted Tran she was being watched. Her instant messaging, along with bank and credit card communications, had been recorded. Tran resigned from the company and filed a lawsuit alleging damages under federal electronic communications statutes and state law that forbids invasion of privacy. Lehrer was represented by Susan Kabanek at Sims & Layton in San Jose. Although the case didn’t go to trial, there’s something instructive there for both parties. Of course, Lehrer’s lesson was a little more painful: After a one-day mediation, the company agreed to pay Tran $100,000 to settle the suit, according to court records. The case is Tran v. Lehrer Management Company, Inc., 03-360. — Jeff Chorney

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