Thứ Ba, 13 tháng 4, 2010

I Left My Heart (and $10 Million?) in Liechenstein.


When's the last time you were accused of stealing $10 million from Afghan royalty and moving it from an offshore account on an English Channel island to another in Liechtenstein?

For West Palm Beach attorney Manley Thaler, I'm gonna say once:

The strange tale of international intrigue has also spawned a criminal investigation in a small island in the English Channel and a civil suit in Palm Beach County Circuit Court.

In each, attorney Manley Thaler is accused of misappropriating millions that the late Afghan leader Abdul Madjid Zabuli left in his will to promote education and culture in his native country. A benefactor of the arts in his hometown of Ithaca, N.Y., Thaler has served on several local philanthropic boards, including the American Red Cross. Now 80, he dined with Britain's Prince Andrew when the queen's son visited Palm Beach in 2007.

According to court records both here and in Liechtenstein, Thaler stripped Zabuli's widow and others of their power over the foundation. He then created a dummy corporation in Liechtenstein, which sits between Switzerland and Austria and is notorious as a place to hide assets.

To finish the deed, he moved $10 million from the foundation that was based in Guernsey, an island state under the British Crown, into the corporation he controlled in Liechtenstein.

Manley is represented by his partner Eileen O'Malley, and the plaintiffs by David Mankuta and Bob Butterworth.

Although I never personally transferred Afghan millions from an English offshore shelter to a tiny European principality, I do vaguely recall a tremendous Who concert on the Isle of Wight, various power struggles involving an iron-clad Doctor that took place in lovely Latveria, and a tiny European war-mongering duchy known as Grand Fenwick.

So it's kinda similar I guess?

Law Updates for April 2, 2010

Kurecka et al., 35 FLW 666, 4th DCA, Florida’s implied consent statue does not require police officers to advise persons arrested for DUI that the right to counsel does not attach to their decision to submit to the breath test. The statue only requires that the person be told that the failure to submit will result in suspension of driving privileges, and refusal to submit can be admitted at trial. Refusal to submit based on def’s misconception is not basis for excluding refusal from evidence where confusion was not the fault of law enforcement on any action of the police.

Harrison, 35 FLW 678, 1st DCA, Lewd and Lascivious, expert - Where the trial counsel defended the case by challenging the reliability of the 11 year child’s memory of events, trial court erred in excluding expert testimony of the formation of children’s memories. Abuse of discretion to prevent the expert from testifying because of failure to list expert as a witness until 13 days before trial as state made no objection and court failed to conduct a hearing.

Bellamy, 35 FLW 680, 1st DCA, Peremptory challenges - Trial court erred in failing to determine whether state’s purported race-neutral reasons for striking jurors were genuine or a pretext.

Slack, 35 FLW 690, 1st DCA, 316.1935(1) is a lesser included offense of 316.1935(2) although they are both third-degree felonies: fleeing or attempting to elude a law enforcement officer. No evidence that the vehicle driven by LEO had contained agency insignia and other jurisdictional markings, court should have directed a verdict to the lesser included offense.


The Law Offices of Roger P. Foley, P.A.

Your Evidence Lesson For the Day!

Foreclosure Rehearing Transcript

I don't mean to pick on Steven Chapman Fraser, who was appearing at a hearing recently on behalf of David J. Stern.

Hey, a guy's got to work.

But take a gander at this transcript of a motion for rehearing on a foreclosure summary judgment previously granted by Pinellas County Judge Anthony Rondolino.

The homeowner's counsel is Michael Alan Wasylik of Dade City.

Judge Rondolino starts by saying there is substantial merit to the rehearing motion, and wants to hear what the bank has to say.

Fraser, appearing by phone, responds with general stuff about the rehearing standard.

Judge: "Did you not read the motion?"

It goes downhill from there.

At one point Fraser attempts to rebut arguments regarding the admissibility of an affidavit submitted in support of the sj, which defendant objected to:
Mr. Fraser: Yes, Judge. You know, Courts can take hearsay evidence at the summary judgment proceeding. I believe there is a case -- I don't have it with me --

The Court: Yes, what is that, Courts can take it?

Mr. Fraser: Yeah. Sure. My understanding is that the Court at the summary judgment level can accept hearsay.

The Court: Over objection? I --

Mr. Fraser: I do have a case that stands for the proposition, not on me, that Courts can take hearsay evidence at the summary judgment level.

The Court: Okay.

Mr. Fraser: Whether or not over objection, if it's objected to, I --

The Court: Over objection?

Mr. Fraser: I have no case to either support or refute that.
Zing!

How do you think the Judge ruled?

Thứ Hai, 12 tháng 4, 2010

I Am So Sick of Federal Legislation Being Rammed Down Our Throats!


Are yachts undergoing land-based repairs "vessels"?

Do bears....well, you get the picture.

That's the essence of today's 11th Circuit opinion that provides a comprehensive and very interesting history of the development of maritime liens.

It makes total sense, but I never really understood that the reason maritime liens exist is to allow ships to get quick repairs wherever they are, without having to provide cash or other security not readily available far away from home port:
Maritime liens originated, in part, “in a desire to protect the ship,” which is “peculiarly subject to vicssitudes which would compel abandonment . . . unless repairs and supplies were promptly furnished.” Id. at 9, 41 S. Ct. at 3. Ships braved the danger of the seas dependent on a solid construction and a skillful crew. Should structure or seaman fail, ships had little to compensate for the loss and, at times, had to seek the help of strangers. Ships, however, often lacked items of sufficient value to offer in exchange for the help they needed.

Because a ship was often in need of repairs and necessaries while it was away from its home port and without large sums of money on board, maritime liens enabled persons in charge of the ship to use the value of the vessel itself as a pledge of credit in order to secure the work and parts it needed during the voyage.
However, each state and jurisdiction had their own maritime lien law, creating confusion and contradictory legal obligations:
It is not surprising that, given the historical nature and special needs of the shipping industry, maritime lien laws are no recent development. Maritime liens existed in Continental Europe and first emerged in the United States through state and common law. See 2 Benedict on Admiralty §§ 36–37 at 3-21 to 3-22; § 41, at 3-44 (7th ed. rev. 1998). This decentralized development of the lien laws resulted in a “confusing collection of individual statutes enacted over . . . centuries—each enacted to solve some particular problem of the day.” See H. R. REP. NO. 100-918, at 11 (1988). The statutes were “poorly organized, duplicative, often obsolete, and difficult to understand and apply.” Id.

The competing legal regimes governing maritime liens were further complicated by geographical variance. Different locations had different rules governing whether liens could attach, depending on, for example, a ship’s origin and port of service. See H. R. REP. NO. 46-1698 at 1–3 (1880). The laws also differed as to when during the repair process a lien could attach. Id. Congress recognized the need to unify and simplify the law. See The Gertrude v. Coward, 38 F.2d 946, 948 (5th Cir. 1930) (noting one of the purposes of the Act of June 23, 1910 was to replace state maritime-lien statutes with a single, national law). In 1910, Congress passed the first version of the Federal Maritime Lien Act, establishing a uniform national maritime lien system.
Hold on -- federal legislation that imposed uniform national requirements on differing and contradictory state regimes??

Goddarn federal do-gooders running roughshod over individual states' rights?

Where are the teabaggers when you really need them?

DOWN WITH TAFTCARE!

I Have Nothing Negative To Say About Elliot Miller.


I merely am referencing this story about Miami Beach attorney Elliot Miller and his lawsuit over a negative Ebay comment:

Just when you think that set of flamingo-themed flatware is a questionable enough buy on eBay, your business might be even more risky: the seller could be a Miami lawyer.

Mike Steadman paid $44 for a "working" time clock for his small Cape Canaveral welding business in November 2008, but it didn't work -- and now he's out $7,000 for legal fees and still facing a $15,000 defamation lawsuit from seller Elliot Miller, an attorney living in a $3 million dollar waterfront home on Miami Beach, WFTV reported.

Perhaps he should have purchased a stone and a slingshot.

"I made the mistake of leaving my honest opinion online," Steadman told Florida Today of checking "negative" in the feedback section eBay asks all buyers to complete at the end of a transaction. "The comments are there to let other buyers know who they're dealing with. [But] because I don't have the money to fight them, I'm losing. It's not right. I'm speechless."

Steadman says when he received the clock, it didn't run, stamp time cards, or work with the accompanying set of keys as advertised. "When I opened the box it was in 3 pieces [from three separate models] that didn't even fit."

Miller refused to grant a refund, so Steadman filed a complaint with PayPal's buyer protection plan and eventually got his $44 back. But the bad taste lingered.

"Bad seller," he wrote in an effort to warn other buyers about EMiller1313. "He has the ethics of a used car salesman."

Unfortunately for Steadman, Miller is juuuuust a tad uptight about feedback. He filed a lawsuit in Miami-Dade court last February, claiming that the single comment lowered his perfect 100 percent positive feedback rate to just 98.6% -- thereby "seriously harming" his "commercial reputation."

Miller's attorney is Judith Frankel:
Miller's attorney, Judith Frankel, declined to comment."We have no comment on the case because it is a matter still pending," she said. "It'll be resolved in the courts."
Judith's practice appears to focus mostly on probate and estate matters.

BTW, the last thing I bought on Ebay were some old Bo Derek trading cards -- I'm sure I'm not alone on this? -- and needless to say I was 100% satisfied.

Chủ Nhật, 11 tháng 4, 2010

Glenn Garvin Almost Ruins Holocaust Remembrance Day


Leave it to Glenn Garvin to drop a big fat word turd on this most solemn of days by politicizing and performing a hatchet-job on the legitimate debate over the way the Anne Frank diary was popularized and presented to non-Jews in the mid-1950s.

Although Garvin references the 90s, his real beef is and has always been with the "identity politics" of the 60s -- the civil rights movement, women's lib, Stonewall, "Native American rights" (they wuz Indians when I was a kid!! -- F Troop anyone??) etc:

But it was in the 1990s, with the ascendance of identity politics -- in which individuals matter only insofar as they fit comfortably into groups ideologically constructed from ethnicity, gender, sexual orientation and the like -- that the tug of war over Anne's diary began.

Much of the vitriol took the guise of retroactive attacks on the 1950s play and film adaptations of the diary.

Wrong.

Wrong, wrong, wrong.

Anyone with even a casual familiarity with Holocaust survivor narratives knows that American publishing houses in the 1950s wanted nothing to do with stories about "real Jews," as Annie Hall's Grammy used to call them.

That's why Elie Wiesel could not get his original 800-plus page manuscript of Night published in the United States -- too "Jewish," too depressing.

Same with Primo Levi and his remarkable Survival in Auschwitz.

Garvin picks on a Frank Rich column from the mid-90s as if the debate emerged out of thin air. He selects Rich in particular to reinforce his "liberal NYT" wine-sipping narrative that is an essential part of Garvin's world view.

Again, you have to presume Garvin knows the true history of the debate over how to present Anne Frank's diary to a larger non-Jewish audience, but doesn't want his readers to know -- it was a debate that raged from the inception and is a fascinating, 30-year legal struggle that was brilliantly recounted in Lawrence Graver's 1997 account An Obsession with Anne Frank: Meyer Levin and the Diary.

Here is the Amazon review of this book (Rich reviewed it for the NYT), for a feel of the history that Garvin omits from his column:
An Obsession with Anne Frank: Meyer Levin and the Diary, by Lawrence Graver, is a work of disciplined, erudite storytelling about Meyer Levin's messy, passionate obsession with The Diary of Anne Frank. Levin, an American novelist and journalist, was among the figures instrumental in publishing and publicizing The Diary of Anne Frank in the United States. His 1952 review of the Diary in The New York Times raved, "Anne Frank's voice becomes the voice of six million vanished Jewish souls." Thanks in no small part to Levin's work, his proclamation came true: Anne Frank became one of the most famous figures in the world, an icon of the devastation of the Holocaust. Levin, by contrast, descended into a paralyzing and terminal despair when his attempts to become a central guardian of Anne Frank's legacy were rebuffed by Anne's father, Otto Frank. Most dramatically, Levin fought a bitter court battle when he felt he was cheated out of the opportunity to adapt Anne Frank's book for the stage, and was replaced by Frances Goodrich and Albert Hackett, a more famous, more optimistic, and non-Jewish team of playwrights. Graver describes Levin's obsession with detailed attention to the role of popular culture in defining Jewish identity, and the ways that Anne Frank was and is still being politicized by Jews and gentiles around the world. In his characteristically spare, lucid style, Graver writes in the final chapter that "[Levin's] history testifies to the enormous difficulty, if not the impossibility, of finding an authentic way to bear witness to the Holocaust in a society governed by money, popular taste, media hype, democratic optimism, and a susceptibility to easy consolation."
I could go on, but it's too nice a day out -- I mean seriously, Garvin has no clue why they cast former alter boy Gregory Peck as the undercover Jew in 1947's Gentleman's Agreement?

It's true the Anne Frank story has universal elements, and that the Holocaust involved the systematic destruction of ethnic minorities, gays, communists, and others. And, however edited by her father, Anne Frank's diary remains one of the more moving and inspirational pieces of 20th century literature.

But Anne Frank and her family were selected for "deportation to the East" solely because of their Jewish identity, not in spite of it. Even Garvin celebrates how, in this new version, "the sharp edges have been restored to Anne's character."

Yet surely Garvin is aware that back in the 1950s, when this work first appeared, one of the "sharp edges" for American audiences was precisely Anne's Jewish identity.

I plan to watch the new version tonight, but thanks Glenn for bringing your usual nonsense into what should have been a straightforward TV movie review.

Thứ Sáu, 9 tháng 4, 2010

SFL Friday -- Thank You, Justice Stevens.


So Justice Stevens Justice Stevens Justice Stevens!

It's good to see there won't be any prejudging of whomever Obama picks as his replacement (headline -- "The question for conservatives will be not whether but how to oppose Obama's nominee"):
No doubt some Republicans will say that it is unimportant to fight the nominee because Obama will merely be replacing one liberal with another rather than changing the balance of the Court. But the choice before any Republican senator is whether to acquiesce to several more decades of liberal activism on the bench. Unless Obama provides evidence of having dropped his litmus tests, the question for conservatives will be not whether but how to oppose Obama’s nominee.
That's a relief -- at least we can look forward to some nice quiet months ahead, filled with rational, thoughtful and intelligent discussions of the law and its proper place in American society.

Onward to the weekend, which I hope for you all starts about now.

The agenda for me includes staying off of Facebook, paying close attention to my credit card charges, and getting more sleep.

BTW, it's not too late to sign up for Baynanza -- let's face it, you owe it to Biscayne Bay.

Have a great weekend!

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