Saturday 14 March 2009


All of us are prone to making stupid decisions. Some of the decisions of some people have gone horribly wrong whereas other decisions have merely been an inconvenience to those who made them. What follows are bad decisions which had gone wrong for unusual reasons.

In 1985, I was visiting Bologna, Italy and while I was there, I chose to climb up the steps of the famous Asinelli Tower which is 97 metres (318 feet) in height to take pictures of the city from the top of the tower. When I went to take a picture, I discovered to my horror that the film in my camera was already used up. This meant that I had to climb back down again, go to my car and put a new roll in my camera and then climb up the wooden steps to the top again. After I took the pictures, I suddenly discovered that I still had an unused roll of film in my pocket.

That blunder wasn’t as bad as what happened to a man in Idaho recently. He had leaned towards the hole in a portable toilet to pee and when he was finished, he went to reach for his keys in his right pant’s pocket and couldn’t find them. He assumed that his keys had fallen into the hole. He removed the plastic cover at the base of the toilet and climbed into the tank of crap to look for his keys. He couldn’t find them and worse yet, he couldn’t climb out. About 15 minutes later, members of the local fire department rescued him through an access hole used to pump the waste out of the tank. They then washed him down with a fire hose. Minutes later he made an excruciating discovery. The keys were actually in his back pocket all along.

In June 2008, in Sydney, Australia, a judge halted a drug conspiracy trial after some of the jurors were found playing the puzzle game, Sudoku. Sydney District Court Judge Peter Zahra ended the trial for two men facing possible life sentences on drug conspiracy charges. The judge was alerted after jurors were observed writing vertically, rather than horizontally. The jury foreman admitted to the judge that he and several other jurors were playing puzzle games for up to half the time the trial had been going on. He said, (brace yourself for it) "It helps me keep my mind busy paying more attention." The aborted 66-day trial had cost taxpayers an estimated $950,000.

Speaking of trials, here is one you should never forget. Canadians, Martin and Lynn Mustapha in November 2001, found a dead fly and part of another dead fly in their Culligan water bottle. It's a riveting story that tells us a lot about our legal system and its participants. After finding the dead fly, the Mustaphas claimed that they suffered immense harm. Lynn, who was pregnant, vomited. Martin was nauseous. He developed a "major depressive disorder with associated phobia and anxiety." He claimed he couldn't get that fly out of his mind. He had nightmares. He couldn't stomach drinking water. He saw his family doctor, a psychologist and a psychiatrist. He couldn't take a shower until he had desensitization therapy from the psychologist. His evidence was he just couldn't get the thought of that fly or its revolting implications out of his mind. He later told the court that he pictures flies walking on animal feces or rotten food and then being in his supposedly pure water. A complaint to Culligan led to a measly offer of a replacement bottle and two new bottles of water, but no apology. Martin was hurt and insulted. He felt Culligan was heartless. The Mustaphas sued Culligan for negligence and breach of contract. Martin vomited in court while on the witness stand. Fortunately, his lawyer had arranged to have a bucket placed near the witness stand. Following a seven day trial in October 2004, Ontario Superior Court Justice Brockenshire released a controversial decision awarding Martin a judgment of $341,775 plus interest and $101,541.26 as partial reimbursement of legal costs. But the story didn't end there as Culligan filed an appeal. The Court of Appeal allowed the appeal and dismissed the action. Martin's reaction to seeing the fly was "bizarre" and ruled Martin's reaction was not reasonably foreseeable as a probable consequence of the dead fly. With that conclusion the $341,775 flew out the window. The Mustaphas were ordered to pay part of Culligan's trial and appeal costs. But the story didn't end there either. The Mustaphas were successful in getting a three-judge panel of the Supreme Court of Canada to allow an appeal. The appeal was heard in and a decision was released. The nine judges ruled it was not reasonable to believe that Culligan would have foreseen that either Mustapha or a person of "ordinary fortitude" would have suffered a serious injury from seeing the dead fly. Therefore in a 9-0 unanimous decision, the court finally put this sad case to rest by dismissing the appeal and ordering the Mustaphas to pay a portion of Culligan's fees for the trial and both appeals. The legal bill to the Mustaphas topped half-a-million dollars. This had to be the most expensive dead insect in the annals of legal history. I can't help but wonder why Culligan didn't pull out all stops to prevent the lawsuit. The offer of two free bottles of water is a pretty cheap way to settle a claim. Culligan won the lawsuit but the bad publicity must have hurt them.

Many years ago I represented a client in court who sued for the same reason the Mustaphas sued accept my client had found a dead worm in her cereal. The manufacturer offered her a free box. The matter ended up before a Toronto Small Claims Court. The manufacturer spent five thousand dollars trying to prove that they weren’t at fault. The evidence was overwhelming, especially since my client had bought several boxes that were still unopened when the court-appointed expert on worms opened them. There were worms in those boxes also. My client had previously offered to settle for $500 plus her legal costs (which were minor at that time). The manufacturer refused her offer, saying that their reputation was at stake. At the suggestion of the trail judge, they paid my client $1,100 plus her legal fees when my client accepted the trial judge's suggestion. The manufacturer’s refusal to settle for the $500 and her minor legal fees, cost the manufacture over $5,000. I don’t know if their reputation hurt. I still buy their product but instinctively I look for worms when I pour their cereal in a bowl.

A Macedonian journalist in Skopje, Macedonia was charged in June 2008 with murdering two elderly women – crimes he wrote about for his newspaper. The police said they were also investigating his possible involvement in two more murders. Police began to suspect Vlado Taneski, 56, after reading his articles about the crimes in the national daily Utrinski Vesnik and noticing details that had not been released to the public. Since then, police have found Taneski's DNA on the bodies of two of the victims.

A man was found dead in a Calgary, Alberta manhole on June 25, 2008 after his apparent attempt to steal copper wire had turned deadly. The body was discovered about 11:45 a.m. after a passerby walking along the street noticed an Enmax manhole cover was open and took a closer look. When the fire department arrived, they found the man face down in approximately six inches of water. He had been electrocuted.

Online hangouts like Facebook and MySpace have offered crime-solving help to detectives and become a resource for employers vetting job applicants. Now the sites are proving fruitful for prosecutors, who have used damaging Internet photos of defendants to cast doubt on their character during sentencing hearings and argue for harsher punishment. MySpace and Facebook sites have yielded critical character evidence about defendants waiting for sentencing. What follows are good examples.

Two weeks after Joshua Lipton of Providence, Rhode Island was charged in a drunken driving crash that seriously injured a woman, the 20-year-old college junior attended a Halloween party dressed as a prisoner. Pictures from the party showed him in a black-and-white striped shirt and an orange jumpsuit labeled ‘Jail Bird.’ In the age of the Internet, it might not be hard to guess what happened to those pictures: Someone posted them on the social networking site Facebook. And that offered remarkable evidence for Jay Sullivan, the prosecutor handling Lipton's drunken-driving case. In July 2008, Sullivan used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital. A judge agreed; calling the pictures depraved when sentencing Lipton to two years in prison.

Darryl Perlin, a senior prosecutor in Santa Barbara County, California made good use of such a picture of a young woman who was being sentenced for drunk driving in which her passenger in her car died in the crash. Perlin said he was originally willing to recommend probation for Lara Buys until he thought to check her MySpace page while preparing for sentencing. Buy’s site featured photos of her – taken after the crash but before sentencing – holding a glass of wine as well as making jokes about drinking. Perlin used the photos to argue for a jail sentence instead of probation, and Buys, then 22, got two years in prison.

Santa Barbara defence lawyer Steve Balash said the day he met his client Jessica Binkerd, a recent college graduate charged with a fatal drunken driving crash, he asked if she had a MySpace page. When she said yes, he told her to take it down because he figured it might have pictures that cast her in a bad light. But she didn't remove the page. Shortly before Binkerd was sentenced in January 2007, the attorney said he was ‘blindsided’ by a pre-sentence report from prosecutors that featured photos posted on MySpace after the crash. One showed Binkerd holding a beer bottle. Others had her wearing a shirt, advertising tequila and a belt bearing plastic shot glasses. The photos hurt her. She was given more than five years in prison.

Rhode Island prosecutors said a defendant named Lipton was drunk and speeding near his school, Bryant University in Smithfield, in October 2006 when he triggered a three-car collision that left 20-year-old Jade Combies hospitalized for weeks. Sullivan; the prosecutor, said another victim of the crash gave him copies of photographs from Lipton's Facebook page that were posted after the collision. Sullivan assembled the pictures – which were posted by someone else but accessible on Lipton's page – into a PowerPoint presentation at sentencing. One image shows a smiling Lipton at the Halloween party, clutching cans of the energy drink Red Bull with his arm draped around a young woman in a sorority T-shirt. Above it, Sullivan rhetorically wrote, "Remorseful?" Superior Court Judge Daniel Procaccini said the prosecutor's slide show influenced his decision to sentence Lipton. He added, "I did feel that gave me some indication of how that young man was feeling a short time after a near-fatal accident; that he thought it was appropriate to joke and mock about the possibility of going to prison.

Defendants faced with charges of drunk driving causing death should be going to Alcoholics Anonymous or should be in therapy or in a program to learn to deal with drinking and driving but in the cases of the above defendants, they were doing nothing other than having a good old time and showing no remorse whatsoever and then foolishly made it public by displaying their pictures in the Internet for all to see, including their prosecutors and judges.

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