With the holidays approaching, Hollywood begins to trot out their “Oscar-bait” movies—those awards season contenders hoping to generate a buzz among those who select the nominees for the Academy Awards, Golden Globes, and other cinematic accolades. But what about the legal world? Don’t we deserve our own laurels for those “you just can’t make this stuff up” episodes that livened up the legal system over the past year? I know the awards I’d hand out.
Let’s begin with the “Judicial Honesty” award. This year’s pick is Ninth Circuit Judge Jay Bybee, who bared his true feelings about dealing with the opinions of his brethren. In his July opinion in U.S. v. Martinez-Lopez, a complex sentencing case, Judge Bybee began as follows: “Bybee, Circuit Judge, concurring in part and dissenting in part, but frustrated with the whole endeavor.” Wow—tell us how you really feel, Judge Bybee. What’s next, “Bybee Circuit Judge, concurring because the Supreme Court won’t look at this one anyway?” Of course, if there were a category for “Painful Honesty,” Bybee may have some competition—David Bookstaver, the longtime communications director for New York’s Office of Court Administration. In August, after denying to a reporter that his job responsibilities had been taken away, Bookstaver accidentally “butt-dialed” the same reporter later that day. The result was a four-minute-long voicemail of a conversation Bookstaver had with a colleague in which he admitted “the story’s true. I’m not doing anything. I barely show up to work and I’ve been caught.” Not surprisingly, soon thereafter Bookstaver was fired from his $172,000 a year “no show” job.
Our next category is “Creativity in Getting Your Hearing Postponed.” Unfortunately, one contender took this subject way too far. Syracuse lawyer Jacqueline B. Jones really, really, wanted to avoid a hearing on sanctions against her in a civil case, so she called in a bomb threat to the day care center at the federal courthouse where the hearing was scheduled to take place. The ruse failed miserably: Judge David Peebles went ahead with the sanctions hearing in Jones’ absence, and the bomb threat was traced back to Jones. Shortly, thereafter, Jones parted ways with the law firm she’d been working for, and in August she pleaded guilty to falsely reporting an accident, a charge that carries a possible sentence of up to a year in jail and a fine of up to $100,000. On a more positive note, let’s give props to the assistant U.S. attorney in Tampa, Florida who requested a continuance of an August hearing because of the Aug. 21 solar eclipse. It seems a key government witness had pre-paid for a ticket to visit an area in the path of the totality. U.S. District Judge Steven Merryday seemed somewhat sympathetic, as he noted that a solar eclipse “understandably occupies a provocative and luminous place in history and in art,” and proceeded to cite not only historic eclipses of the past but also the eclipse reference in Carly Simon’s 1972 hit “You’re So Vain.” But ultimately, the judge decided against the continuance. Perhaps he had a “Total Eclipse of the Heart.” (Incidentally, Judge Merryday is no stranger to unusual continuance requests. In 2012, he denied an attorney’s motion for continuance where the lawyer’s “conflict” was participating in an Ernest Hemingway lookalike contest.)
Finally, we have our “Most Creative Tactics” category. Admittedly, this is a close one. Early contenders included a San Francisco pro se plaintiff in a municipal court case who requested—and got—the cost of a “pizza party” as part of the discovery sanctions she was awarded. This may be the only court order I’ve seen that lists “31.19 for a large cheese pizza and bread sticks” in it. There was also European Union Agency for Law Enforcement Cooperation (Europol) and its use of lighthearted postcards sent to fugitives on the run (one, addressed to an armed robbery suspect wanted in Cyprus, said “We are inviting you back to Aphrodite’s island. The beach is full of oysters, pearls, and us waiting for you.”).
Ultimately, though, the award had to go to former radio host and financial adviser Dawn Bennett. Charged by the SEC with fraudulently raising $20 million in a Ponzi-like scheme (among other things, Bennett owed back rent to the Dallas Cowboys for a luxury suite at AT&T Stadium), Bennett had a rather novel defense strategy: voodoo. According to federal prosecutors, agents raiding Bennett’s Maryland townhome found Mason jars bearing the initials of SEC lawyers. Inside the jars were beef tongues, as well as instructions for a “Beef Tongue Shut Up Hoodoo Spell,” that Bennett purportedly cast in hopes of paranormally silencing the SEC lawyers investigating her.
Voodoo: now there’s something they didn’t teach in law school.
John G. Browning is a shareholder at Passman & Jones in Dallas, where he handles a variety of civil litigation in state and federal courts.