Legally Speaking: Truth Is Stranger Than Fiction, Part 1 of 2

John G. Browning Jan. 28, 2009, 6:00am

Friends and family regularly ask me when I'm going to turn my time and literary energies to writing a courtroom thriller a lá John Grisham.

At the risk of being accused of false modesty, I really don't think I can come up with any fictional scenarios that rival what's really going on in the legal system on a daily basis.

Don't believe me? Then consider some of the following incidents from real life and tell me if you still think that fiction is stranger than the truth.

I've seen a lot of unconventional arguments and legal defenses raised over the years. I've even written about some, like the motorist accused of speeding in Connecticut whose "defense" was that he was too busy dunking Oreos in milk to realize how fast he was going (I have yet to come across the "milk & cookies" defense elsewhere).

But nothing prepared me for the "God wills it" defense employed by a San Antonio motorist last November. Fifty-two-year-old Michael Schwab told Bexar County sheriff's deputies that he rammed a woman's sedan and tried to run her off the road because she wasn't "driving like a Christian, and it was Jesus' will for him to punish the car."

According to Lt. Kyle Coleman, Schwab stated that "God said she wasn't driving right and she needed to be taken off the road." Neither driver was seriously injured, but Schwab – who was driving over 100 miles per hour – has been charged with aggravated assault with a deadly weapon (motor vehicle).

Some Michigan residents who are members of the Old Order Amish Church are using a legal defense that owes more to the Good Book than to the law books. A group of Amish farmers in Michigan are suing the U.S. Department of Agriculture, over a Michigan state requirement that cattle be identified with RFID (radio frequency identification) tags.

According to the farmers, being forced to use an electronic numbering system for their livestock constitutes "some form of a 'mark of the beast' and/or represents an infringement of their dominion over cattle and all living things in violation of their fundamental religious beliefs."

That's right, the mark of the Beast (Satan) is the legal argument raised, with the Book of Revelation cited as legal precedent ("no one will be able to buy or to sell, except the one who has the mark, either the name of the Beast or the number of his name").

I'm not sure if I agree with the plaintiffs about the whole "rule in our favor or condemn us all to a lake of fire" argument, but, associating the federal government with Satan's handiwork does make a lot of sense lately.

Of course, not every legal argument or defense needs to invoke Scripture. In Britain, representatives of gentlemen's clubs seeking to avoid greater government regulation of their industry testified in Parliament that lap dancing is "not stimulating." Yeah, right.

Equally unconvincing was a German woman's explanation that she was unable to timely respond to a government agency's information request because she suffers from "a phobia of official correspondence."

Maybe she should consult with the defendant in a 2007 IRS proceeding, whose excuse for not paying taxes or filing returns for five years was his debilitating case of "late-filing syndrome."

C'mon, if there really was such a medical disorder, don't you know that either Wesley Snipes or Treasury Secretary-elect Timothy Geithner would have come up with a doctor's note by now?

Creative defenses are limited only by the imagination, it seems. Members of the "Wampanoag Nation" claimed in a lawsuit that as Native Americans, they were entitled to tribal immunity.

Their claim might have proven more convincing had it not been revealed that their "tribe" had three members and was founded in an Arby's in Provo, Utah, in 2003.

And in a cross-examination straight out of "Boston Legal," defense attorneys for a man accused of killing his stepdaughter pointed out that the defendant had once been given a coffee mug that read "World's Greatest Dad."

Not to be outdone in the creativity department, a Florida couple recently filed a lawsuit against United Airlines, claiming that the husband's arrest for beating his wife was the result of the airline serving him too much alcohol on the flight.

Soon after bringing the suit, attorneys for Yoichi and Ayisha Shimamoto sought to dismiss it, perhaps after belatedly realizing that they wouldn't be entitled to damages because of the laws governing overseas flights (specifically, the Warsaw Convention).

Criminal defendants who have been convicted have sought reversals on some unusual grounds. Last year, for example, a Texas death row inmate pointed to the rumor – later proven to be fact – that the Collin County judge who had presided over his trial had once been romantically involved with the prosecutor.

A convicted felon in St. Louis is claiming he didn't receive a fair trial because two jurors had been having sex (hopefully not in the jury room).

Many efforts at getting a conviction reversed don't pass the "smell test." Perhaps that's the best way to describe the defendant's argument in Commonwealth v. Young, a case out of Massachusetts.

Mr. Young, who was convicted of second-degree murder, maintained that Judge Nancy Staffier-Holtz had improperly dismissed a juror, who happened to be the same race as the defendant. Judge Staffier-Holtz's decision had more to do with hygiene, it seems, than the ethnic composition of the jury.

As she explained on the record:

"[The juror], for whatever reason, had some very bad, I guess to be blunt again, body odor, which was extremely strong, and I was able to detect it in my lobby, as was the clerk, which is a personal matter for that potential juror, but for the fact that her personal problem was [of] such a magnitude that other jurors who had already been picked… either by act or words had indicated discomfort with that problem… And given the strength of the body odor, I'm satisfied that the other jurors would be put at a distinct disadvantage in their efforts to concentrate."

The appellate court agreed with Judge Staffier-Holtz, finding that there was no evidence of bias in the racial makeup of the jury, and holding that when it comes to jurors, dismissing on grounds of B.O. is O.K.

After all, Lady Justice may be blind, but she's still got a healthy sense of smell.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

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