In criminal law, a suspect has the right to request a lawyer. Everyone who watches any of the CSI shows would know that. But, what happens when the request for lawyer is not clear? In Demesme v. State of Louisiana, the suspect was being interrogated. At some point, he said, “. . . so why don’t you just give me a lawyer dog?” Or, did he say, ” . . . so why don’t you just give me a lawyer, dawg?” The Louisiana Supreme Court was confused. It found the request was ambiguous.

Mr. Demesme said, “If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.” The defendant filed a motion to suppress evidence acquired after he made his request for a lawyer. He argued that any evidence obtained pursuant to this interrogation should not be used at trial. The Louisiana Supreme Court found that the defendant’s motion to suppress should be denied. The court explained that referring to a “lawyer dog” is not an unequivocal request for a lawyer. See ABA Bar Journal report.

Of course, the problem with that reasoning is that whether he said “give me a lawyer, dawg,” or he said “give me a lawyer dog,” he is still asking for a lawyer.

A woman was bicycling near Pres. Trump’s golf course in New Jersey happened upon the President’s motorcade. She could have swerved to avoid the traffic. But, realizing this was the President’s motorcade, she rode along and flipped off the President. She expressed her views. She engaged in the great American past-time, public protest, if a bit profane. She was then fired from her marketing position at Akima LLC. The employer explained that it is company policy to fire persons who post profane pictures on Facebook. See CNN news report. The picture went viral on social media. Nothing indicates she posted the picture herself. But, Juli Briskman seems to have expected she would likely be fired.

But, wait, isn’t she protected by the First Amendment? No, persons employed in the private sector do not have First Amendment rights. The First Amendment applies to actions taken by state and local governments. Private employers can indeed squash our free speech. But, you get the impression she felt it was worth it.

 

Former Texas Tech coach Mike Leach is still after the pay he believes he was owed. I wrote about his lawsuit against Texas Tech here and here. He seeks $2.4 million, including $1.6 million for a buyout clause. Under the terms of the buyout clause, he would be entitled to $1.6 million if he was fired without cause. Coach Leach recently hired a former news reporter to create a publicity campaign to help pressure the university. See Ft. Worth Star Telegram report. But, the thing is the school had pretty good cause to fire him., He had abused the son of an ESPN analyst, Craig James. Mr. James was also a former star running back at SMU and in the NFL. The coach might disagree whether the treatment of the young Adam James was abuse. But, the employer gets to make that call, not the employee.

He tried to sue his former employer for breach of contract. But, like most states, Texas has a law that a state cannot be sued unless it has given permission. And, it has never passed any sort of law that would allow a former coach to sue for breach of contract. He apparently feels like he was cheated in some way. But, everyone who deals with the state incurs that risk. Coach Leach is also a law school graduate. He may feel he has some inside knowledge. If so, it has not worked for him, yet.

Too, Coach Leach, while still employed at Texas Tech reportedly told his boss, the school President, to go f— himself. That sort of remark does tend to cause issues with management.

The thing about Bowe Bergdahl is why was he even in the Army in the first place? It is near suicide to walk off a FOB with no weapon and no protective gear. Yet, that is exactly what he did before he was captured by the Taliban. He had washed out of Coast Guard basic training after only three weeks. Coast Guard training is not as easy as some think it is, or so says Task & Purpose. But, being rejected from any of the services’ basic training suggests he was not ready for the Army and deployment. The Coast Guard psychiatrist who saw him recommended that he be evaluated first before any of the military services choose to accept him. That ought to have served as a major red flag. The Coast Guard diagnosed him with “adjustment disorder with depression.” In layman’s language, that means he did not adjust well to changing circumstances. Nothing changes more often or more quickly than a war zone.

He had an episode in the Coast Guard basic training in which he simply broke down. In the middle of the night, it appeared that he had gone into the latrine and smashed his face into the mirror. There was a lot of blood. When the trainees found  him, he was balled up and crying.

In 2008, the Army was struggling to meet its annual quota of recruits. They waived many entry requirements. According to Task & Purpose, the Army granted waivers to 20% of the new recruits that year. That was way above the normal 4-5%. Waivers are typically given for everything from convictions to excessive weight to psychological issues. See Task & Purpose report. Some of the waiver recruits actually do very well. But, studies have shown that many of the recruits who enter with a waiver are later problem soldiers. Certainly, Bowe Bergdahl was.

And, now it turns out the judge gave SGT Bergdahl no time in prison for his offense, apparently viewing his 5 years as a POW prison enough. He will lose his stripes, which is a big deal to most NCO’s. He will have to pay $10,000 out of his pay. See CBS News report. I know he did not intend anyone to get hurt looking for him. With his mental state, perhaps he did not realize soldiers would be looking for him. But, sure, for months no one knew what happened to him. Of course, they would move mountains to find him. Shame on him for bringing that on all the soldiers in his area of operations. I do not know what to think. He certainly suffered as a POW. But, he caused a great deal of suffering for his fellow soldiers.

 

There are reasons why Presidents never comment on pending criminal prosecutions. Anything they say will be amplified across the country and could undermine the prosecution. But, precedent never hinders Pres. Trump. Two days after the attack in New York City, Pres. Trump called for the attacker to be given the death penalty. He called for “strong” justice. Certainly, if anyone deserves “strong” justice, it is Sayfullo Habibullaevic Saipov. He killed eight people with a rental truck. But, in making those comments, Pres. Trump actually makes it more difficult to achieve those aims. Defense lawyers will not hesitate to ask for a change in venue if the local jury pool is tainted. But, since the publicity about the attacker and the President’s comments are national, there may not be a jury pool that is not tainted.

As one former federal prosecutor said, “Mr. President, your tweet takes it harder for DOJ to impose the death penalty, not easier.” See CNN news report.

But, this is what happens when you have a President who is anxious to change the topic of the news day.

Arbitration is becoming more and more a significant feature of the legal landscape. Arbitration is a creature of contract. Whatever the parties agree to becomes the arbitration. What if the parties agree to arbitration, but then allow some form of appeal? In a recent decision, the Fourth Court of Appeals wrestled with that question. In Methodist Healthcare System v. Friesenhahn, No. 04-16-00825 (Tex.App. San Antonio 10/11/2017), the employer invoked arbitration. But, the arbitration did not go as the employer had hoped. The arbitrator awarded the employee almost $214,00 in damages and $170,000 in attorney’s fees. So, the employer got creative and filed a motion to vacate the arbitration award. Methodist Hospital argued that the arbitration agreement provided for expanded judicial appeal. It pointed to a small number of cases that recognized arbitration agreements that provided for appeals of decisions which contain reversible error. That is, they sought to appeal the arbitration decision based on traditional litigation type appeals. For example, in one section, the agreement states that the arbitrator will apply the same law as would a judge in court. The employer argued this meant reversible error would be grounds for appeal.

But, no, the Fourth Court was not going there. The court of appeals discussed the provisions cited by the employer. It said those provisions do not provide for an expanded appeal. They simply explain that the arbitral forum is simply another forum. The same legal theories apply in arbitration and apply in court. To provide expanded judicial review, the agreement would have to apply limitations on the arbitrator’s authority. For example, noted the appellate court, the agreement could have incorporated a reference to reversible error. It did not include any such reference. See the decision here.

The employer wanted arbitration. It drafted the arbitration agreement and then invoked the agreement when the plaintiff field suit. But, in the end, the employer found arbitration was not what it wanted, after all. Be careful what you ask for. You just might get it.

The judge in SGT Bowe Bergdahl’s case will not limit or dismiss the court-martial because of Pres. Trump’s comments about the young sergeant. The judge found Trump’s comments, while inappropriate, would not affect Col. Nance. Col. Nance is the judge. He can judge whether the comments about Bergdahl will affect him. But, he is also implicitly saying he does not believe denial of the motion will provide basis for an appeal for SGT Bergdahl. See Task & Purpose report.

As I mentioned here and here, Pres. Trump has loudly condemned Bergdahl. SGT Bergdahl’s lawyer has claimed those remarks constitute unlawful command influence. COL. nance is set to retire in 2018 and is not eligible for promotion. Yes, that would make him unlikely to be influenced by what the President says or by what others might think of the President’s comments.

Of course, it should not be necessary to say that Pres. Trump and Candidate Trump should not make comments like that. There is no reason to create possible issues for an appeal.

Racial divisions are building in the last couple of years. White right activists are becoming more active. If we accuse someone supporting discriminatory policies of being a white supremacist, have we defamed that person? In Tennessee, Lisa Rung heard Robert Weidlich speak against LGBT persons at a school forum. Upon leaving the building, she saw Mr. Weidlich’s car and noted bumper stickers espousing a group known as the League of the South, considered by some to be a Neo-Confederate group of some sort, and a Confederate Battle flag. Mr. Rung posted a picture of the Weidlich car with the bumper stickers on her Facebook page and said, “The Fisty Family (a pejorative nickname for the Weidlich’s) are white supremacists.”

Mr. Weidlich sued Lisa Rung for defamation in state district court and won. The court awarded $12,000. Mr. Weidlich could point to a customer he lost, which cost him lost profits of $7,000. He has a car repair shop. Mr. Rung appealed. And, he claimed $5,000 in attorney’s fees. Ms. Rung appealed.

The Tennessee court of appeals looked carefully at Ms. Rung’s post. The court noted correctly that a statement of fact, stating for example, that Weidlich is a white supremacist would be defamatory. But, in this particular situation, she did not simply state he was a white supremacist. She also posted a picture of his bumper showing the stickers. In effect, said the court, Ms. Rung was expressing an opinion that Weidlich was a white supremacist. A statement of opinion is not a statement of fact. She was expressing her opinion and with the picture, she was inviting her Facebook friends to agree or not. See the decision here. So, the court found the statement was not defamatory, because she was simply expressing her opinion.

It is a remarkable decision. The law in most states is that a statement of opinion is not slanderous. But, a statement of fact would be defamatory.

Notice too that the court did not find that espousing an organization that might be racist and displaying a flag that might be used by some white supremacist groups did not necessarily indicate Weidlich was a white supremacist. The judge did not find that mere display of questionable symbols does not in itself support the accuracy of the accusation. Truth is always a defense to an accusation of defamation. But, the court did not find that display of problematic symbols would in itself show the alleged truth of the slanderous statement.

But, still, I would recommend most people refrain from accusing other persons of being racists or white supremacists. It is exceedingly difficult to truly know what is inside someone’s head, or their heart.

The “outing” of celebrity sexual harassers continues. John Besh, the celebrity chef from New Orleans, has admitted to an improper sexual relationship. A female employee filed a complaint with the Equal Employment Opportunity Commission alleging he pressured her for a relationship. The New Orleans Times Picayune has reported that 25 current or former female employees reported various instances of sexual harassment by male managers at the Besh Group. John Besh resigned from the restaurant group that bears his name.

The Times Picayune reported that two EEOC charges were filed. One woman accuses Mr. Besh of pressuring her into a relationship. See Times Picayune report. Mr. Besh responds that he believed the relationship was consensual. Like in the Army, no relationship between a higher ranking person and a lower ranking person is truly consensual.

Harrah’s New Orleans casino said it would sever relations with the Besh Group and rename its restaurant, now known as Besh Steak restaurant. A Besh Group spokesman said none of its thousands for current and former employees had ever filed a sexual harassment complaint during its 12 years before now. But, the Besh Restaurant Group had never had a Human Resources department until Oct. 11, just a few weeks ago.

John Besh, who talks about his family frequently on his television show, said he was resigning, so he could focus on his marriage. He publicly apologized to his employees. See CBS news report. The Besh Restaurant Group operates some 11 restaurants and employs 1200 persons.

Bowe Bergdahl was supposed to be sentenced on Oct. 23. But, instead, his lawyer renewed a motion he had filed before. Eugene Fidell re-argued a motion alleging there has been unlawful command influence (UCI). Pres. Trump talked about SGT Bergdahl last week, saying he cannot say anything, but he said things earlier. The President, in effect, affirmed his prior comments about that “traitor,” Bergdahl. The judge, Col. Nance, was not impressed by the prosecutor’s argument that Pres. Trump was simply responding to the reporter’s question. He had a “hard time” with that explanation.

So, Col. Nance postponed the hearing for a couple of days, so he can review cases about UCI. The challenge is this UCI is unprecedented. Never before has a president gone after one particular soldier. Pres. Nixon once referred to the My Lai massacre as a “travesty,” But, he did not focus on one specific soldier. Pres. Trump brought up SGT Bergdahl often during his campaign, referring to him as “dirty rotten traitor,” “horrible traitor,” “dirty no-good traitor,” and more. In the military, the President is always spoken of as the top person in the chain of command. Yet, in some ways, the President is removed from the military. So, the judge is being careful with this issue. As he should.

See San Antonio Express News report.