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Lies & Damn Lies

by Charles Carreon
August 1, 2013

Order in the Court!  How many times have we heard that?  Order in the Court!  What’s that mean?  That means that all the rabble can pipe down and gentlemen will speak. There’s no free speech in the courtroom, I can tell you that.  Tell you a quick story to put it in focus.  It’s kinda fun, as it involves guns, dope, Mexicans, and a chicken coop.

There’s no way you win against the Feds unless you’re sneaky, so Federal Public Defenders are of two types – sneaky lawyers, and useless ones.  One afternoon the Assistant U.S. attorney was doing his sentencing hearing for my client, who had been busted after the search of what some folks might call a rustic lodge, but the DEA considered some type of drug safehouse.  In the attic of the safehouse was a backpack, with a gun, a bag of meth, and my client’s ID papers.  Well, for sentencing purposes, that was his meth, all right.  Can’t remember the exact amount, but it was under the mandatory minimum threshold of 100 grams of cut meth.  But they found more meth in a chicken coop about 300 feet from the lodge.  Like three pounds, way over the mandatory minimum threshold.  Fortunately for my client, reading the lab report, I discovered that the chemist at the DEA lab had mixed these two quantities of meth before testing them.  So that meant you couldn’t really attribute any of the meth to my client, because maybe what was in his backpack was all cut, and no meth!  Well, somehow the AUSA hadn’t really noticed this angle in the case, but Judge Aiken had, and she could see I was boxing in the government witness.  So she kept asking the prosecutor if he wanted a continuance to deal with this.  He didn’t pick up on the problem and said no.  I continued questioning, setting up the cross, and it was driving Judge Aiken crazy that the prosecutor couldn’t see me sneaking around in the weeds, getting ready to ambush the witness.

So Judge Aiken began prodding me to speed it up, and I got my back up, and I said, “Your Honor, this case obviously means more to my client than it means to you.”

Judge Aiken lifted herself slightly in her seat, and in a level voice, asked me, “What did you say?”

To which I responded, “You heard me, your Honor.”

Judge Aiken then stopped everything with a look, stood up fully, and said, “We’re going to take a recess, and you’re going to think about what you just said.  Then we’ll resume, and I’ll ask you how you’d like to proceed.”

You can imagine of course that I apologized for my conduct, once I realized how fortunate I was that my head was still attached to my neck.  It was a comment you could make to a regular person without much consequence, but to a judge, it was crossing the Rubicon.  Unlike Julius Caesar, however, who crossed the Rubicon and continued in open rebellion against Pompey all the way to Rome, I turned around midstream and got back on the safe side of the river.  Because there’s no free speech in court.

The reason there’s no free speech is because the judge is supposed to be administering the proceedings according to the rules of evidence, and the rules of evidence operate like a movie director who only gets one take at every shot, and the lines all have to be lines that the actors are allowed to speak.  These actors are first of all supposed to tell the truth, but this isn’t just a subjective thing – they can say whatever they want if they think its true.  No, it’s not like that.  With the help of one lawyer or the other, the judge will know, before a witness gets on the stand, what the hell he or she is going to add to the progress of the action.  Now the lawyers are like two competing sub-directors.  They want the other director’s actors (witnesses) to be denied a chance to testify, if possible, or they will try to restrict their testimony to narrow issues.  The judge will decide which actors get to testify and what questions they can answer based on what story the lawyers claim they are trying to tell.  If it’s a story about mugging, then we want to hear about what time it was, what the mugger looked like, whether there was good lighting, whether threats were made with speech and gestures, whether a weapon was used or displayed, what property was stolen, and what injuries were sustained.  Anytime a witness gets away from that story line, the judge will start to fidget and pretty soon, one of the lawyers realizes he’s being prompted to object, and maybe he says to himself dandy, the other guy’s pissin’ off the judge.

Meanwhile, the jury is surprised a lot of the time how well the story gets told, and how they get a sense of the truth even though hardly anyone seems one hundred percent truthful, or one hundred percent accurate in their perceptions or recollections.  This is beautiful work to do, and only trial lawyers get to do it.  It’s actually pretty addictive, and if you do it often, the rest of your law practice seems utterly tame and boring.  Mastering the art of evidence becomes a delightful activity.  Understanding the hearsay rule and its ten, twelve or thirteen exceptions, depending on how you count them, is a genuine intellectual delight, because you see how past generations of jurists have evaluated the trustworthiness of out-of-court statements of various different types.  Evidence, at its most elevated level of practice, is a set of rules for extracting the gold of truth from the ore of common human recollection.  If you could see how little of the evidence that the lawyers would try to put on at trial actually gets presented to the jury, you would be amazed.  Trial judges are constantly counseling efficient presentation, and lawyers often want to throw in the kitchen sink.  Good trial lawyers, though, are incredibly efficient at extracting relevant testimony from both helpful and hostile witnesses.  They don’t go over the jury’s head, they don’t ask irrelevant questions, they know how to get crucial evidence in and how to evade objections by offering evidence for multiple purposes.

Without this careful pre-presentation analysis of evidence, juries would be completely confused by free-ranging testimony presented in an amateurish fashion.  Because we see inaccurately, and misunderstand what we see, due mostly to inherent biases that operate without our knowledge.  The most tragic misunderstandings in the criminal justice business are when people who suffer from disabilities are mistaken for recalcitrant drunks, and get all the wrong treatment, ending up dead a lot of the time because cops misread symptoms of disability as criminal misbehavior.  But the more commonplace prejudices – such as assuming that poor people have good reason to steal and therefore probably did, and assuming that wealthy people have no need to steal and therefore probably didn’t – are as omnipresent as the sky overhead.

So it was no surprise to me to discover that so many people who had been dished up a ration of misinformation about me would end up painting a portrait of me that is laughably untrue.  Legions of people hold forth about me for hours based on knowledge they acquired in a nano-second, so of course none of them subjectively feel like they’re lying.  They’re like people telling Columbus, “You’ll sail off the edge of the earth before you find the Indies, you fool!”  Or to be more au courant, they’re like people saying, “Quantitative easing will cause hyperinflation!”  This is to say, they are so ignorant they cannot know they are talking nonsense.  This doesn’t absolve them of blame, of course, because when sounds are emitted from the pie hole, we are, in fact, responsible for their effects.

Order in the court!  Tara has brought order to the data, and that helps us bring an analytical eye to consider the facts.  We now know based on a rough survey of some of the main screeds written by 105 rapeutationists, that the most popular six lies about me were:

#1:  Charles Carreon threatened to sue Inman; his letter was abusive, extortion, shakedown, blackmail.

#2:  It’s outrageous and immoral to sue charities.

#3:  Charles Carreon sued charities to suppress speech of critics and harass defendants.

#4:  Charles Carreon wanted to divert charity moneys elsewhere.

#5:  FunnyJunk stole Inman’s content; FJ is a scraper and aggregator site; FJ gave no attribution.

#6:  Charles Carreon sued Inman for FunnyJunk.

Let’s discuss these a little.

On Charging Someone With Extortion

Extortion is defined under California Penal Code § 518 as follows:

“Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.”

So the question is simple:  Was Charles Carreon’s letter a “wrongful use of force or fear” intended to “induce” Inman to give up his property?  Let’s go with an easier hypothetical for starters.

The Bobcats
Written and drawn by Matt Inman of The Oatmeal 

[Bob 1] Hey you ugly little NardMango, give me that pudding cup.
[Bob 2] Don’t make him ask twice, Billy. You don’t want to see him angry. Bob’s like a fighter jet when he’s angry.
[Bob 1] That’s right, you little NardBucket. Hand over the pudding cup or I’ll come down on you with the agony and suffering of a thousand Panzer tanks. I am Genghis Khan. I am the sword. I am your horror, your plague, and your death.
[Bob 2] I’m trying to work with you here, Willy. I’m the good guy. Just give him your pudding cup and everyone wins. Especially Bob.
[Willy] Sniff. Well okay …
[Bob 2] Smart move, little man.
[Willy] You know what Bob?! One day you’re going to grow up and you’ll see the world differently. You’ll find that kindness and compassion are how you get ahead in life. Not violence. Not hate.
[Bob 1] What’s that little NardCopter rambling about? He’s disturbing my pudding feast.
[Bob 2] I’m pretty sure he just called you Captain Booger Balls. You just gonna sit there and take it, Bob?
[Bob 1] IS THAT SO? You like the taste of mulch, you little nardbagel? Do you?!! HRMFPFACKTHPTTH.
[Bob 2] You shouldn’t have hurt his feelings, Willy. This is what happens when you hurt Bob’s feelings.
[Bob 1] I said, give me that tasty sandwich, you little DouchePickle.
[Bob 2] Don’t make him ask again. You don’t want to see him angry. Bob’s like a fighter jet when he’s angry.

If I had threatened to blow up Inman’s aggressive cat, “Bob” by sticking a cherry bomb up Bob’s butt, unless Inman drew a cartoon just for me of Ken White getting raped by a polar bear, that would be extortion.  Because threatening to blow up a cat would be what we call an “element of the crime” under Section 519(a), that defines “fear, such as will constitute extortion,” as fear induced by the threat to infict “unlawful injury to the person or property of the individual threatened….”

Okay, now let’s go back to the Charles Carreon letter fact scenario and see if we could charge him with extortion.  But first, let’s get you into an honest frame of mind.  Let’s pretend that you wanted to be a lawyer, and you have finished law school, and you’re taking the California Bar Exam.  You open a packet with three hours on the clock, and out spills a file.  The first thing in the file is a letter that reads verbatim just like Charles Carreon’s letter to Matt Inman, except the lawyer’s name is Hokum, and the guy who’s just like Inman is named Scrotum.  As you read the hypothetical facts, they say this:  “You are an Assistant District Attorney in the City of Buttstool, California.  Scrotum is a prominent citizen and a well-known cartoonist.  Your boss, the District Attorney, is a big fan of Scrotum’s.  He has asked you to determine whether Hokum can lawfully be charged with extortion for sending Scrotum a letter just like Carreon’s in every respect, under Section 518 of the California Penal Code, a copy of which is in the file.  While your boss is angry on behalf of his friend Scrotum, he reminds you not to get him in hot water, and to consider the implications of the following ABA Standards for Criminal Justice, and California Rule of Professional Conduct 5-110, of which he’s given you a copy.  He wants a memo on his desk in three hours, ready to discuss with Scrotum after they come back from lunch.”

ABA CJ Standard 3-1.2 (c):

The duty of the prosecutor is to seek justice, not merely to convict.

California RPC 5-110:

“A member in government service shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause. If, after the institution of criminal charges, the member in government service having responsibility for prosecuting the charges becomes aware that those charges are not supported by probable cause, the member shall promptly so advise the court in which the criminal matter is pending.”

So, now that you know you have to come up with the “right” answer, and not just the one that will suit your confirmation bias, go ahead and answer that question.  I feel like I’m skatin’ on this charge.

The Immorality of Suing Charities

Charity fraud is a booming business in the age of instant disaster reporting.  Very likely the majority of the money raised through large-scale charitable giving is entirely diverted to causes inconsistent with a charitable purpose.  I was accused of acting immorally in suing the American Cancer Society and the National Wildlife Fund; however, I intended only to benefit them, and achieved that goal.  The fact was, Inman hadn’t talked to either ACS or NWF before starting the Bear Love spite donation campaign on Indiegogo, and had no commitment to either one to give them anything.  The only thing binding him to give even one dollar to either one was his commitment to give – to give what?  To give $20,000.  That’s all he promised to give to charity, and the way Indiegogo acted, he could have given it all to himself, or his Mom, or Bob the aggressive cat.

Now of course, most of the people who made spite donations did so because they wanted to throw a ten-dollar-shaped turd at their concept of Charles Carreon.  So of course they didn’t care how Inman dispensed the money.  Giving the money to ACS and NWF were simply the inducement to act “philanthropically” by putting down “douchebaggery.”  However, the law of charitable giving does not say, “If people don’t care who you give the money to, you don’t have to give it to the people you said you were collecting the money for.  You can collect it for Haiti and give it to the Texas Rangers.  If it’s okay with the givers, and they like you, no worries.  You’re the philanthropist, big guy, give it to whoever you want to!”

Crazily enough, the law even does something really rational, and says that one person, one single donor to a campaign can file a lawsuit to make that charitable fundraiser do with the donations what he said he’d do.  That’s the law I sued under.  And that’s the law that Judge Edward Chen enforced when he told Inman to deposit copies of the checks with the court.  So was I the $10 tail that wagged the $220,000 dog?  Yes, I was.  Say “bow wow,” doggie.

On Suing Charities To Suppress Speech

How do you suppress speech with a lawsuit?  Only two ways – you deter the other party with the threat of damages or awards of attorney’s fees, or you get an injunction that shuts them up.  In my letter to Inman, I said that his false accusations of FunnyJunk’s copyright infringement could be enjoined, and they could have been, if I could have shown a risk of irreparable harm flowing from their continued publication.  But I didn’t sue Inman on behalf of FunnyJunk.  I sued him on behalf of my mother, whom he insulted with the Bear Love campaign, and on behalf of my father, who in his life could never have conceived of a public medium so debased that not only would the Bear Love illustration be created and published, but also widely lauded as a piece of hilarious, enjoyable pop culture.

I sued the charities for two reasons: to get them into court for failing to control the use of their names, and tacitly collecting dirty money in the form of spite donations, which are inherently inimical to charitable purposes, and because the judge would have wondered where they were with respect to the lawsuit if they weren’t joined as defendants.  I spoke to a dedicated attorney in the Attorney General’s office, who encouraged me in the suit, and confirmed unquestionably that I had analyzed the issue exactly as he would have.  Kamala Harris was named in the case because California law requires that she be made a party, a fact that was actually pointed out to me by a rather helpful zombie whom I struck up an email conversation with during the early days of the Rapeutation.  Of course, if the ACS and NWF were actually run by people with ethics, they would have sued Inman himself for misusing their trademarks.  You can imagine if he had done a fund raiser for Starbucks usingtheir logo.  There would be a SWAT team of baristas at his door.

My Client, FunnyJunk, Made Out to be A Crook

I’ve often said you shouldn’t judge a client by his lawyer.  Lawyers get used to being judged by the clients they represent, and to some extent that’s fair.  Dirtbags like to be represented by dirtbags, which is why I’ve represented very few, and regretted it each time I’ve done so.  I always liked FunnyJunk as a client, and that website is most definitely not what people have said it is – a thief of Inman’s cartoons, depriving him of “attribution.”  What nonsense.  Inman’s work is so well-known on FunnyJunk there’s no need to attribute it to anyone.  The FunnyJunkers all know who does the Oatmeal, because they’re the ones who copy and post the cartoons.  Which is of course why FunnyJunk is not a “copyright thief,” any more than Facebook is.  Stuff gets copied, posted, and taken down on a daily basis at all of these social media sites, because the DMCA, for all the bitching and moaning, works pretty damn well.

The Bear Love Caper That I Would Have Loved to Pull (Not)

Top lie number 5 is of course the lie that I was trying to get the Bear Love money for myself.  Biggest lie of all.  The complaint asked the Judge only to divide the money between ACS and NWF and not to let Inman touch it.  And he didn’t get to.

The Biggest Lawsuit That Never Happened: FunnyJunk v. Inman

Lie number 6, fomented by Inman’s very deft phrasing of his initial distress call, was believed by large numbers of rank-and-file zombies, based on the number of times hatemailers accused me of suing on behalf of FunnyJunk.  But I would be blamed regardless of what I did.  Suing and not suing are equally blameworthy in the DIRA playbook.  Because I did not sue Inman, my letter is derided as having been an insincere threat all along.  One does not follow from the other.  FunnyJunk obviously did not want to add to its woes litigation that would further antagonize its user base, that includes many Oatmeal fans.

What About the Rest of the Lies?

I will get to them in a separate post, and it’s interesting to see that some of the more virulent lies were fairly lightly dispersed throughout the zombie mind.  Just so you know how they sorted out, here’s the rest of the list:

Tied for 7th

Charles Carreon wanted the charity money for himself.

Inman intended to give money to only two charities all along.

Charles Carreon is a free speech lawyer who fell off the wagon.

Tied for 8th

Charles Carreon’s website was not really hacked.

Charles Carreon was suspended twice or more by the California bar.

Inman took photographs of the actual Bear Love donations.

Jon Corbett is an attorney.