Chilling Halloween Law cases

This Halloween special is a reblog from NW Sidebar, the blog of NW Lawyer, the journal of the Washington State Bar Association, written by Jennifer M. Richards. 

“Chilling Halloween-Law Cases from Washington

 

A “tombstone” inscription from Purtell v. Mason.

Everyone has heard of the Stambovsky vAckley case, where the court found that, as a matter of law, a house was haunted. Stambovsky vAckley, 169 A.D.2d 254 (N.Y. App. Div. 1991). Other strange and spooky case law includes personal injuries from corn mazes or haunted houses, flammable costumes, and other supernatural and sordid tales. See, respectively,Deborah Mays v. Gretna Athletic Boosters Inc.(court held being frightened in haunted house was part of the experience and no duty to protect plaintiff from injuries she sustained); Purtell v. Mason (couple with large motor home received angry response from  neighbors and retaliated by placing tombstones in their yard telling of the untimely deaths of those neighbors — see illustration); Ferlito v. Johnson & Johnson (couple dressed up as Bo Peep and her sheep sued after sheep costume made of cotton balls caught fire).

But what about some “Halloween law” from right here in Washington state?

  1. In a Halloween prank gone awry out of Spokane, the decision begins, “The night was black, and a heavy rain fell.” The parties crossed the railroad tracks on October 31 intending to play a trick on a friend. However, the trick turned into tragedy when “they rammed into a freight train as it coasted quietly through the crossing at the western edge of Lyle.” Hewitt v. Spokane, P. & S. Ry. Co., 402 P.2d 334, 66 Wn.2d 285 (Wash. 1965)
  2. The appellate division had a real treat when it decided a defamation claim for an ad involving the plaintiff’s name written on the side of a pumpkin. The advertisement invited the public to “spend Halloween Night” at a local bar. The phrase “Mark Crossman is…” was written on the left side of the pumpkin. Crossman alleged that his name was written on bathroom stalls at 15 other bars and his reputation had been tarnished. Crossman v. Brick Tavern, Inc., 655 P.2d 1206, 33 Wn.App. 503 (Wash.App. Div. 1 1982)
  3. The plaintiff stated that he was a “spiritualistic medium” with a supernatural power. He used his contacts with the dead to induce the defendants to enter into promissory notes to satisfy spirits beyond the grave. Specifically, “he induced them to believe that there were certain spirits which demanded that they execute the notes in question, for the purpose of what he called a materialization.” He filed suit to enforce payment of the promissory notes. The Court ruled in favor of the defendants, finding that the notes had been entered into through fraudulent representation instead of legitimate clairvoyance. Du Clos v. Batcheller, 49 P. 483, 17 Wash. 389 (Wash. 1897). 

For more spine-tingling lawsuits, check out the October 2014 issue of NWLawyer, which features our Top 10 Legal Cases that Will Spook You!

About the Author

Jennifer M. Richards. Jennifer is an associate attorney at Feldman & Lee, P.S. A native Nevadan, she enjoys cheering on the Nevada Wolfpack, Gonzaga, and exploring the Pacific Northwest. She occasionally blogs at Queen City Addendum, and loves to connect with other professionals on LinkedIn.”

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Police reports in vehicle crashes — what’s involved

medium_1795929952In a mystery I read not long ago, a sheriff got a written report from the sheriff in a neighboring county just a few hours after a complicated 3-vehicle crash, involving a car, a pickup, and a semi, on a narrow mountain highway that left two persons in critical condition, one not expected to live. And, not surprisingly, very similar to another crash two months earlier.

Won’t happen that way. In real life, it will take weeks to complete all the investigation necessary for a written report. Autopsy results can take several days, especially if the death occurs on a weekend or in a remote location. (Check your story state’s system for investigating suspicious deaths, and who performs autopsies in such cases—if a crime is suspected, as in many vehicle-related deaths, a state medical examiner may conduct the autopsy, rather than the local pathologist who might perform an autopsy in a more routine matter.)

Toxicology results may also take weeks. It’s not uncommon for law enforcement to issue a preliminary report without the toxicology results.

Your officers may spend hours at a collision scene. In a tragic and complicated case my law firm handled last year, the lead investigator—a state highway patrol officer—reached the scene about thirty minutes after the crash, on an Interstate highway in Montana near the Canadian border. He spent nearly six hours on site, along with two other patrol officers and nearly a dozen officers from other agencies, interviewing witnesses, taking photos and measurements, and ensuring the safety of other travelers. The crash resulted in one fatality and several injuries. One involved vehicle was a semi pulling a trailer; the tractor had to be towed to the dealership more than a hundred miles away so the Electronic Control Module or ECM, similar to the black box in an airplane, could be removed and data obtained. The data—second-by-second details of speeds, gear shifts, and braking—had to be reviewed within the department and by outside experts.

In most states, as in mine, an official reconstruction is mandatory in a fatality collision, and will be conducted in many other serious crashes as well. All state agencies responsible for investigating traffic accidents, whether called state police, highway patrol, or some other name, and most mid-sized and larger police and sheriff’s departments will have officers trained as reconstructionists. They measure skid marks, yaw marks, and other gashes and gouges found on the road, the distances between vehicles, and more; take extensive photographs; and compute Total Station Data, using sophisticated CAD-like software. Ultimately, they will compute speeds, angle of impact, turning angles, and more, and reach an opinion on what happened.

When a commercial vehicle is involved, as in my firm’s case and the one in the book I mentioned, vehicle inspections may be required to determine whether the vehicle was properly maintained. (Mandatory in Montana, and no doubt elsewhere.) Those, too, will take some time.

But the kicker? In the book I read, a written report wasn’t necessary—and it might not be necessary in yours, either. Sheriff One could simply have said “I got a call from Sheriff Two, and it’s all still preliminary, but he thinks …”

Take that into account in your stories.

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The Saturday Writing Quote — Anne Rice on risk

Anne Rice quote

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How to Make Fake Blood

Not the usual Law & Fiction post, but in honor of the approach of Halloween, I’m delighted to share this recipe for fake blood from Al O’Brien, an adjunct professor of Criminal Justice at Seattle University, one of the more surprising articles in the Fall Alumni magazine!

1-1/3 cups water

2 cups powdered milk

1-1/2 ounces red food coloring

25 drops green food coloring

5 drops blue food coloring

Slowly add the water to the powdered milk, stirring constantly to get a blood-like consistency. Adjust the amount of water as necessary. Add food coloring and stir well to blend. The mixture will keep about a week, but the consistency may change over time. Makes about 3 cups.

O’Brien says there are a dozen or more recipes online, using maple syrup, congealed BBQ sauce, peanut butter, soy sauce, chocolate syrup, coffee, and tomato. He credits this recipe to Elizabeth Murray, a forensic anthropologist and professor at the College of Mount St. Joseph, in Cincinnati.

Enjoy — and as always, bleed responsibly.

References for Writers

The Saturday Writing Quote — measuring success

“[Remember t]hat the sale of a book, or an Amazon review is not the measure of success. That the value of your work is not measured in stars. But instead, value is measured in moments you will never know about; moments in the lives of your readers that are so private, they could never consider sharing it with anyone.”

Dan Blank, writing and publishing consultant, on Writer Unboxed

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CSI for Real: Lisa Black on Fingerprint Facts & Fictions

Today we welcome Lisa Black back to the blog. A latent print examiner and crime scene investigator in Florida, she’s also a suspense writer extraordinaire. I still remember that sleepless night, home alone, when I stayed up too late finishing one of her books and the smoke alarm kept going off…

Lisa - computersWe see Abby or Nick or someone in the background on Bones do it every week: scan a fingerprint picked up at a crime scene into some omnipresent Batcomputer and search it against everyone who has ever been printed in the entire United States, including job applicants and military.

This is a myth. It has always been a myth.

Databases are local. My database includes everyone arrested in the city of Cape Coral, Florida, since about 1998 and people arrested by the surrounding county agency since about 2008. No job applicants, certainly no military. Not even our own personnel. (Kind of embarrassing if the prints you collect at scenes come back to your own clumsy cops…it’s better to not even go there.)

Latent means hidden, referring to a print that can’t really be seen until it’s processed with something—powder, superglue, fluorescent light. But we use the term to mean unidentified prints, prints lifted at crime scenes and off pieces of evidence. These unknowns are compared to knowns—prints rolled (these days, usually with a scanner instead of ink) when a person is arrested. These are called 10-prints, though they also include the palms. My database has over two hundred thousand sets of 10-prints. A separate database is full of the unknowns, and I’m constantly searching items from one category against the other. I spend about 85% of an average day doing this, which is exactly as glamorous and thrilling as it sounds.

Lisa and powderI identify about 11% of all the latent prints I get that are suitable for comparison, which is about 40-50% of all latent prints received. This is a pretty good rate as I believe the national average is more like 6%. Of course not every identification means that the case is closed—sometimes prints belong to the victim, other family members, house guests, or customers. [Note from Leslie: That's Lisa, covered with black print powder. At least I got that part write -- er, right -- in the WIP!] 

Side note: We do not do ‘elimination prints’, except on homicides. We enter the prints, and if they match someone who has no good excuse to be in the home, great. We don’t fingerprint every family member to eliminate them as having left the print—it is not an efficient use of resources to put in that kind of time and effort just to find out that the print on the window was made by the daughter.    [Note from Leslie: "except on homicides," she says. Whew. I just wrote this scene....]

Another side note—just because I don’t have access to local job applicants and our own personnel doesn’t mean other examiners at other agencies don’t. Apparently it depends on the personal preferences of the higher-ups.

Any prints I can’t identify eventually go to the state, but it isn’t a digital process and it certainly isn’t instantaneous. Because the state software is slightly different from mine, I have to make a copy of the print cards for our files, repackage the originals, seal, submit to our Property Department, wait for them to assign a number and then fill out a (mercifully online) form to submit them to the state lab. Then some poor sucker at the state lab, who probably feels that they have enough of their own work to do, has to scan them, evaluate them and search them—all the work that I have already done, they do over. This is one of those ‘get to it when I have time’ projects, and the state lab limits me to five submissions per week, so right now I’m sending prints from 14 months ago. Okay, it’s clunky—but it works. We’ve made a number of ‘hits’ this way. Some we had already made by the time we get the state paperwork back, because the person had been arrested by us in the meantime, but some are a happy little surprise.

If this sounds dismally haphazard, remember that despite our best efforts to reach the shining ideals of TV shows with its spotless rooms, obedient children, and omnipotent computer databases, most of life is still haphazard. The perpetrator may not have been arrested. He may have been arrested but in a different state or a different county. He may work as a roofer or bricklayer and have worn-down ridges. He may have left a palm print at the scene and the person who rolled his palms cut off the interdigital section (something the county used to have a bad habit of doing). The latent print might be smeared right where his 10-print is clear, and his 10-print is smeared right where the latent is clear. He may have come up in the search results, but an examiner, clicking through search after search, got a little too cavalier and said ‘nah’ a little too quickly. (We have all done this, which is why a second examiner double checks everything.) And he may have had half a brain cell and actually pulled on a pair of freakin’ gloves.

However—all that said, the myth is becoming reality. Slowly and haphazardly, but becoming. As I’ve said I’ve been receiving prints from the county, a different software system, for the past 5 or so years. (I can’t search their database, which goes back decades, but their recent arrests are in mine.) The software I’m on now has the ability to remotely search the same software-based databases at other police departments, some in neighboring counties, some in other states, and vice versa (with their permission, of course). Unfortunately that caused such bugs in the system that we shut it down completely for over a year and only recently opened it back up again. Then, after an update, I noticed a checkbox in my search engine that said ‘federal databases.’ You mean I could actually search the FBI?  I filled out the paperwork, got the signatures of the higher-ups, sent it in. Eventually it came back but in the meantime our chief had retired so new paperwork had to be completed. Almost a year later (another of those ‘when I have time’ projects) I picked up the ball and tried again. Nothing. I have to go through the state, a very nice man from the state eventually tells me. The prints have to be sent there first. Our software doesn’t mesh with this, but if the software company can figure out a patch then the state has no problem with it. I call the software company. They are stunned to find out that the state will allow this. No one had actually asked them before.

So since the beginning of summer, the software company is working on a patch or conversion system or whatever it is, which they assure me is not difficult, and then they will work on interfacing with the state, and eventually, perhaps even by Christmas, after twenty years of seeing it on TV every day, I may actually be able to do a little bit of that omnipresent Batcomputer stuff.

Cool.

close to the bone 1About Lisa’s newest, Close to the Bone:

Close to the Bone hits forensic scientist Theresa MacLean where it hurts, bringing death and destruction to the one place where she should feel the most safe—the medical examiner’s office in Cleveland, Ohio, where she has worked for the past fifteen years of her life. Theresa returns in the wee hours after working a routine crime scene, only to find the body of one of her deskmen slowly cooling with the word “Confess” written in his blood. His partner is missing and presumed guilty, but Theresa isn’t so sure. The body count begins to rise but for once these victims aren’t strangers—they are Theresa’s friends and colleagues, and everyone in the building, herself included, has a place on the hit list.

L Black author photoAbout Lisa: Lisa Black spent the five happiest years of her life in a morgue. As a forensic scientist in the Cleveland coroner’s office she analyzed gunshot residue on hands and clothing, hairs, fibers, paint, glass, DNA, blood and many other forms of trace evidence, as well as crime scenes. Now she’s a certified latent print examiner and CSI for the Cape Coral Police Department in Florida. Her books have been translated into six languages and one reached the NYT mass market bestseller’s list.

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The Saturday Writing Quote — on naming

“Names generate meaning in a short amount of space – they provoke thoughts, questions. That’s something I like doing. Of course, you have to be careful. Sometimes it can alienate the reader, it can be another level of mediation, to make a character carry the great burden of a metaphoric name. The character can be a device before he or she becomes a person, and that can be a bad thing for a writer who wants to offer up a kind of emotional proximity in the work. It’s a constant struggle, the desire to be playful and the desire to communicate on some very stark emotional level.”

– Joshua Ferris, American novelist (b. 1974) in The Paris Review, quoted on National Public Radio

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The Saturday Writing Quote — the right word

“The right word is as important to the writer as the right note to the composer or the right line to the painter. . . . A writer needs an ‘ear’ as much as a musician does. And without this ear, he is lost and groping in a forest of words, where all the trees look much alike.”

– Sydney J. Harris, Last Things First 266 (1961). (Quote via Bryan Garner’s daily blog on Modern American Usage) Harris’s weekly column in the newspaper was required reading in my household in the 1960s!

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Dorothy Cannell Guppy Scholarship

From In SinC, the Sisters in Crime Quarterly:

“To honor one of the most enduring author/agent partnerships in mystery publishing, Sisters in Crime is administering the Dorothy Cannell Guppy Scholarship, offered by agent Meg Ruley to honor her long-time client.

The $1,000 scholarship will be offered each year to an aspiring or published mystery author who is a member of the Guppies (a member of the Sisters in Crime GUPpy or “Great Unpublished” chapter), and is designed to subsidize attendance at the Malice Domestic conference, held annually in Bethesda, Maryland.

Malice Domestic honors the traditional mystery and awards the prestigious “Agatha,” named for Agatha Christie. According to Rule, “Attending Malice was, for Dorothy as for many other crime writers, a wonderful introduction to the community of mystery readers and writers. This scholarship will allow another new writer (published yet or not) the opportunity.”

To apply, a Guppy member should send a statement, no more than 200 words, about how attending Malice will support her writing goals, to Sisters in Crime at sistersincrime@juno.com, RE: Dorothy Cannell Scholarship.

All entries should be received by December 1, 2015. The winner will be selected from the entrants and announced early in 2015. The award will be for attendance at Malice Domestic May 1-3, 2015.”

Wow. As an original Guppy—one of two—I’m stunned and grateful. Thank you, Meg and Dorothy. Gups, get your entry in soon! 

 

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Fact vs. Fiction in police work — a sergeant speaks

Today, we welcome Adam Plantinga to the blog to share a few tips about the reality of police work. A sergeant with the San Francisco Police Department, Adam is the author of 400 Things Cops Know: Street-Smart Lessons from a Veteran Patrolman, published today by Quill Driver Books. He’ll make you laugh, but he’ll also make you smarter. Read on.

400 Things Cops Know CoverPlaywright Arthur Miller once said drama is a compressing of time. You need to make a lot of things happen in a short span. That’s why you skip the slow stuff to keep the audience engaged. So if cop shows, books, and movies aren’t very realistic, it’s okay, because that’s just how narrative best functions. But you still want to craft a work that rings true when it counts. It’s a bit of a balancing act. To aid in this endeavor, I have listed examples below to keep in mind if you are writing a police-related novel or screenplay and wish to sound reasonably authentic.

1.  Fiction: Even the most willowy of cops kicks down the suspect’s door in a single blow.

Reality: Doors, especially exterior ones, can be onerous to take down. Once it took me twenty-seven tries. I know this because there was a sergeant next to me counting out loud encouragingly. And the most effective means of entry isn’t the manly snap kick where you face the door with your shoulders squared, but rather the ungainly mule kick, where your back is to the door and you lash out with your foot like Eeyore.

2.  Fiction: The male cops are ruggedly handsome and frequently shirtless, with toned, tan physiques. The female officers have shimmering hair with a lot of bounce to it and commendable skin.

Reality: We are not as gorgeous or dynamic as our fictional counterparts. Some cops look like they’ve been hit in the face with a crowbar. (Some, have, in fact, been hit in the face with a crowbar. It’s that kind of job.) If cops looked like models, believe me, we’d be models. That gig would beat sprinting down some dirty alley after a knife-wielding meth addict any day.

3.  Fiction: Local law enforcement has just started investigating the big case when the feds swoop in with their trench coats and sunglasses. One of the feds says, “We’re taking over.” A bitter argument about jurisdiction ensues.

Reality: If the feds show, you probably have a massive migraine of a crime scene on your hands that involves something you don’t deal with much (a train derailment, a nasty hazardous materials situation, a multi-state crime spree). So if some three letter agency offers to be on point, your reaction is likely going to be Thank the Lord. The FBI really wants this mess? It’s all theirs. Maybe you can still make your daughter’s piano recital after all.

4.  Fiction: The hero cop shoots a few bank robbers in the afternoon, and returns to work the next morning full duty as some police colleague comments, “Nice work yesterday.”

Reality: If you are in an officer-involved shooting, you are immediately placed on administrative duty pending the completion of the investigation. There’s also mandatory counseling involved. Police shootings are relatively rare and a very big deal. They are treated as such.

5. Fiction: Plainclothes cops or detectives in suits walk around in public with their guns out but no visible form of police identification.

Reality: You are required to have your badge/ID out if your firearm is showing. How are civilians supposed to know you’re a cop as opposed to just some nutjob walking around with a firearm? Even other police officers may not know who you are, especially on larger departments. Is everyone just supposed to intuit you’re the police because you have that shimmering hair with a lot of bounce to it?

6.  Fiction: The two detectives interrogate the suspect and cut right to the chase. After a few minutes, the suspect breaks down and gives a full confession.

Reality: Interrogations start with rapport-building. You want to find out something about the suspect first. Where he grew up, which school he went to, if he has siblings. You usually don’t even touch on the crime at hand until you’ve gotten him comfortable talking to you. Then there’s bathroom breaks.  Maybe even a proffered fast food meal. The whole process can take hours. Usually the only people who confess within a few minutes are juveniles.

7.  Fiction: The police protagonist knowingly enters an incredibly dangerous situation alone, often muttering, “There’s no time for backup.” He also is equipped with a flashlight that only seems capable of illuminating the first three feet in front of him.

Reality: There’s almost always time for backup. If there’s one suspect, at least two to three cops will respond. Two suspects? No fewer than four. Three or more bad guys? The whole shift is showing up. Police aren’t superheroes. You succeed because you use training, tactics, and superior numbers.

Also, our flashlights work just fine.

Adam PlantingaAdam Plantinga is a sergeant on the San Francisco Police Department and the author of the just-released book 400 Things Cops Know: Street-Smart Lessons from a Veteran Patrolman, available from Amazon, Barnes and Noble, local booksellers, and from the publisher, Quill Driver Books

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