damnum absque injuria

September 30, 2009

On Rape-Rape

Filed under:   by Xrlq @ 11:25 pm

By now you’ve heard everyone rant away over Whoopi Cushion-Goldberg’s idiotic claim that Roman Polanski’s crime wasn’t “rape-rape,” a claim which is technically true in the sense that the indictment described Mr. Polanski’s crime merely as “rape,” and not as “rape-rape,” a phrase appearing nowhere in the California Penal Code. However, I think the worst part of Whoopi’s quote was not so much that as what came afterward:

What we were talking about was what he did, and that’s what I wanted to clear up, and that’s all I wanted to clear up. ‘Cause I don’t like it when we’re passionate about something and we don’t have all the facts…

Bzzzt. Wrong answer. In my view, it would actually have been defensible to say that what Polanski pleaded guilty to, as opposed to what he did, wasn’t “rape-rape.” Sure he drugged his victim, refused to take her home when she asked him to, and repeatedly forced himself on her even after she told him to stop. All horrible stuff, all make a strong case for “rape-rape.” None of these facts, however, are elements of statutory “rape.” The sex could have been 100% consensual, and it would still have been considered “rape” on the theory that consent by a minor doesn’t count. Sure, he was 44 and she was 13, a gross difference in age that would have called into serious question how “consensual” even in fact (let alone law) any sex act between the two could possibly have been under any circumstances. That’s not an element of statutory “rape,” either; as far as that law is concerned his might as well have happened on his 18th birthday with a steady girlfriend who had been born the day after he was. So it’s not inherently unreasonable to say that the crime Polanski pleaded guilty to, rather than what he did, was less than “rape-rape.” But Whoopi didn’t say that, did she? Nope, she said that “what we are talking about is what he did.” Well, what he did was refuse to drive a young girl home when she asked him to, drug and liquor her up to get her to stop resisting, and force himself upon her both ways. If those acts don’t constitute Whoopi’s idea of “rape-rape,” then what the frickin’ frack ever could?

Whoopi continues:

We’re a different kind of society. We see things differently. The world sees 13 year olds and 14 year olds in the rest of Europe… not everybody agrees with the way we see things…

This from the same geopolitical genius who describes the Commonwealth of Virginia as the “Deep South,” notwithstanding nothing north of it has been considered part of the South at all since the Civil War (or should I say the “War of Primarily Yankee, but Also Southern Aggression?”). One side of me wants to say “This crime occurred on U.S. soil, and the victim was American, so with all due respect to the Europe and the world, who the frickin’ frack cares?” The other wants to call B.S. where B.S. is found. Per Wikipedia, only Spain allows sex with a 13 year old, and presumably even they don’t allow you to drug and force yourself on the victim (nor would they allow you to plea bargain down to the non-crime of lawful consensual sex if you did). The two European countries making the biggest stink over Polanski’s arrest, France and Poland, both set the age of consent at 15, and Poland is poised to impose mandatory castration on anyone convicted of having purely consensual sex with anyone under 15 (or at least, any such person who isn’t super famous and didn’t commit that crime against a Pole or on Polish soil).

Then again, Switzerland’s age of consent is 16, which may explain why they’re a bit harder than France or Poland is on 44 year olds who sequester, drug and forcibly rape and sodomize 13 year olds than France or Poland is.

UPDATE: Another lawyer named Xrlq makes some similar points.

September 28, 2009

Criminal Justice for Me vs. Thee

Poland is enacting a new law providing mandatory castration of anyone convicted of raping children under the age of 15, unless the rapist was a really famous guy and the rape occurred nowhere near Poland.. Or something like that. There’s a bad Polack joke in there somewhere…

September 27, 2009

Liberal Gains Forge Right Coalition

Filed under:   by Xrlq @ 9:00 pm

Ah, the joys of living in a country where “die Liberalen” really means liberals, and not pinko socialists who call themselves liberals. One of the fringe benefits of a society whose actual socialists don’t run from the word “socialist,” I suppose.

Attainted Love

Filed under:   by Xrlq @ 5:50 pm

Eugene Volokh has a memo by LOC Attorney Kenneth R. Thomas discussing the question of whether certain provisions of the Defund ACORN Act constitute a bill of attainder. Short answer: under the original definition of “bill of attainder,” no, as no one is getting executed. Under the more recent definition, maybe.

Just to be on the safe side, I say let’s pass a Defund Everything That Looks, Tastes, Smells, Walks or Talks Like ACORN Act.

September 26, 2009

A Tempest in a Teapot in a Tempest

Filed under:   by Xrlq @ 9:45 pm

Tempest: ACORN advising a putative hooker and pimp on how to defraud lenders and the federal government while setting up a brothel employing underaged illegal immigrants.

Teapot: that ACORN was not in good standing as a corporation in Maryland (though it is now) at the time the Baltimore video was shot.

Eye on the ball, people.

September 24, 2009

On the ACORN Suit

Filed under:   by Xrlq @ 10:40 pm

Gotta hand it to ACORN for their chutzpah, if for nothing else. Chutzpah aside, however, they may be able to collect on this case, not because they should be able to, but because Maryland really is that screwed up. Maryland Code § 10-402(a) makes it a felony to “Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” “Intercept,” in turn, is defined in § 10-401(3) to mean “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” [Subsection (4) provides some technical exceptions to “any electronic, mechanical, or other device” which may or may not have helped Linda Tripp, but which have no application in a non-telephonic contact such as the ACORN videos. Section 10-410 provides for a private right of action, entitling the aggrieved party to:

(1) Actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
(2) Punitive damages; and
(3) A reasonable attorney’s fee and other litigation costs reasonably incurred.

Assuming arguendo that ACORN can convince a court that they had a reasonable expectation of privacy (an assumption that is, by the way, probably wrong, but let’s run with it anyway for the moment), this is where the case can get interesting. Does ACORN say “screw the proof, we’ll take liquidated damages of $1,000 per defendant, plus punis?” Maybe, but if they do, presumably the punies will be computed as a function of the actual or liquidated damages, e.g. treble damages. That leaves ACORN two possibilities:

  1. Collect $1,000 each from Hannah Giles, James < < and Andrew Brietbart, plus treble damages from each, bringing their grand total to $12,000 plus reasonable attorney fees, which are next to nil since proving that the tape occurred costs nothing.
  2. Go for the gold, adn attempt to collect “actual damages” by proving in a court of law how many of your tax dollars they would be able to collect from Washington if only the Baltimore tape hadn’t been shot.

My guess is that ACORN will go for #1, thereby entitling them to a nominal victory, which will cost Giles et al. nothing, and will do nothing to vindicate ACORN in any way, shape or form, but will allow them to tell the true believers that they sued those bastards and won, therefore, ACORN itself must not have done anything wrong. Because I can’t imagine even ACORN is stupid enough to want a court to focus on what actually appeared on the tape, and how much better off ACORN would be today if the truth about ACORN had not come out.

UPDATE: Phelps has located the complaint, in which ACORN and its ex-employees pray for both nominal and supposedly actual damages. My favorite part of the complaint is Count 22, which reads:

As a direct and proximate result of the actions of defendants, Ms. Thompson and Ms. Williams have lost their employment and have suffered extreme emotional distress with attendant physical symptoms and injury to their reputations.

Silly me, somehow I had gotten the idea that the loss of employment was the result of ACORN’s action in firing them. Also amusing is the notion that it was the allegedly illegal taping of their statements, and not the statements themselves, that sullied the reputations of both ACORN and its ex employees, whom Giles, O’Keefe and Breitbart apparently forced to fire.

September 23, 2009

Jon & Kate + H8

Filed under:   by Xrlq @ 11:40 pm

Just how ugly does this thing have to get before The Voyeur Channel takes a hit for continuing to air it?

Landmark in Name Only?

Filed under:   by Xrlq @ 9:40 pm

Via Les Jones, attorney Ellen Brown argues that the recent Kansas Supreme Court decision of Landmark National Bank v. Kesler calls into question the validity of 60 million mortgages. Perhaps it does, if you put two and two together, get 1.2 million, and then assume 49 more Supreme Courts will follow suit. Otherwise, probably not.

Here’s what happened in Landmark. The borrower, Boyd Kesler, secured a first mortgage from Landmark National Bank, and a second mortgage from Millenia Mortgage Corporation. The second mortgage named Millennia as the “lender,” but identified Mortgage Electronic Registration Systems, Inc. (MERS) as acting “solely as nominee for [Millennia], and [its] successors and assigns.” The second mortgage was later transferred to Sovereign Bank, which diligently, brilliantly and competently forgot to record the transfer. So when Kesler defaulted on the first mortgage (probably the second as well, though the court doesn’t say), Landmark served notice on the two defendants it could reasonably expect to have to serve notice on: (1) Millennia, as the lender it reasonably believed to hold the note on the second mortgage (as the real holder had been too lazy, stupid and/or incompetent to record the subsequent assignment) and (2) Kesler himself.

Kesler, the borrower, knew he was in default and filed no answer. Neither did Millennia, who had sold the note to Sovereign and could therefore give a flying fig how this case turned out. Sovereign cared, of course, by they weren’t served because they had been too stupid/lazy/incompetent to record their ownership of the note when they bought it from Millennia, and had also been too stupid/lazy/incompetent to start paying attention when Kesler filed for bankruptcy 3 1/2 months earlier, naming Sovereign as a creditor. By the time Sovereign got around to answering, the foreclosure sale was over.

In a rational world, Sovereign would have simply owned up to the reality that it had screwed up royally, and was now paying for it big time. Instead, Sovereign took the concept of chutzpah to ACORN-esque levels, and effectively argued that their own failure to record the transfer of the deed meant that MERS – who, I might remind you, had never had any role on the second mortgage except as nominee for Millennia before it sold the note to Sovereign – was entitled to service of process as a nominal party independent of both Sovereign (the real party in interest now, who had no relationship to MERS) and Millennia (who, as previously noted, could now give a flying fig about the note it no longer owned), and that Landmark’s failure to serve process on MERS somehow prejudiced the rights of Sovereign, which had no relationship to MERS in this transaction except perhaps as its unrecorded nominee (or as the recorded nominee of the original lender, which was served).

If that last paragraph is a bit hard to follow, and strikes you as an aggrieved second mortgagee’s answer to the Chewbacca defense, it’s because that’s precisely what it is. Maybe if Millennia had given a flying fig about a note they no longer owned, and had wanted to help Sovereign out of the goodness of its corporate heart, it could have notified Sovereign as soon as it were served. Maybe if MERS had been served, and given a flying fig about the note they may or may not even have servicing rights to, and which had since been transferred to a lender they never had any dealings with in the first place, they too could have notified Sovereign immediately. Or maybe monkeys would have flown out of my butt. All three scenarios are distinct possibilities; none are terribly likely.

Brown rightly notes that MERS’s role as a “straw man” precluded it from being a contingently necessary party to a foreclosure action it had not brought, from which she wrongly concludes that this means MERS would not have had standing to bring a foreclosure action of its own, either. She then goes completely off the rails by arguing that no one else has standing to enforce the note, reasoning that:

MERS as straw man lacks standing to foreclose, but so does original lender, although it was a signatory to the deal.

Wrong, on two counts. First, this case is about who has “standing” (so to speak) to set aside an existing default judgment on theory that they were a “contingently necessary party” to the original action who had to have been served for the original judgment to stand, and not about who would have had standing to bring an action of their own in the first place. Big difference. Second, and more importantly, the Supremes did not rule that it was unnecessary to serve the original lender on the second mortgage (Millennia) but instead relied on the fact that process had been timely served on them. Not because they were the original lender, of course, but because they were the last recorded one.

The lender lacks standing because title had to pass to the secured parties for the arrangement to legally qualify as a “security.” The lender has been paid in full and has no further legal interest in the claim.

This case said absolute squat about the securitization of anything. Brown simply made that up out of whole cloth. Either that, or she confused security interests with securitization, two wholly unrelated concepts. I’m not sure which is worse.

Only the securities holders have skin in the game; but they have no standing to foreclose, because they were not signatories to the original agreement.

Again, Brown simply made this up. The note was transferred from one lender to another, not securitized (i.e., packaged together with many other loans and converted into a security that trades much like a stock). The court made it clear that the reason the transferee was not entitled to intervene in the case (again, not the same as lacking standing to enforce on their own) was because it had failed to record itself as the new holder of the note, not because they weren’t the signatories to the original agreement.

They cannot satisfy the basic requirement of contract law that a plaintiff suing on a written contract must produce a signed contract proving he is entitled to relief.

Sure they can, if they have the note in hand, which as far as we can tell from this decision, both Sovereign and MERS did. It seems that Brown herself has missed a pretty basic provision of contract law, namely that any contract that does not specifically forbid assignment, may be assigned to third parties, who will then have all the same rights to enforce the contract as the assignor did prior to the assignment.

UPDATE: Apparently I was a bit too hard on Sovereign for failing to record the transfer. MERS advertises on its web site that their clever arrangement “eliminates the need to prepare and record assignments when trading residential and commercial mortgage loans.” Perhaps it does, but not in Kansas.

Gun Safety

Filed under:   by Xrlq @ 9:49 am

Looks like Xrlq Cooper’s. four rules were not enough, so I propose two more:

5. For purposes of Rule 2, your own head should not be among the things you are willing to destroy.

6. Never take gun safety lessons from a guy named Looney.

September 22, 2009

Insanity Defense

Filed under:   by Xrlq @ 9:08 pm

Contrary to popular opinion, getting acquitted of a crime by reason of insanity is harder than you might think. In most states, you either have to prove you were so crazy that you didn’t know right from wrong, or that you were so crazy that you didn’t really understand what you were doing, e.g., you thought you were slaying a dragon when you actually murdered some innocent bystander. In Washington, it’s harder still. There, you have to prove that you were sane enough to douse your victim with gasoline to cover your tracks, and the person in charge of your loony bin has to be insane enough to think that sending you on a day outing to the local fair is a good idea.

 

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