Posted on 11/27/2012 7:23:24 AM PST by marktwain
It's a 34 page scanned pdf, so it is both detailed and slow to download. Reading the earliest versions of what happened, or was alleged to have happened, I find them incomprehensible. Bullets coming out of the trigger guard or the side of the gun? Then he changes to an out-of-battery discharge, but even that doesn't hold up.
The judge doesn't fix a number, but orders the defense to file its documents on attorney fees (with a hint that they shouldn't be tempted to pad things out). I suspect this will be a VERY expensive mistake.
Comment by James:
Reading through the whole case, I'm not a lawyer, but the judges repeatedly note that the lawyer being sanctioned not only failed to do due diligence about investigating whether a failure of the type he described was possible, but he continued to pursue that claim after it was fairly solidly refuted by the defendant's expert witnesses, and even undermined his own expert witnesses by failing to provide them with adequate explanations of what was claimed to have happened or of what the defendant's proposed might have happened (namely, that the physical damage to the pistol was consistent with the damage done by shooting a pistol with another gun, with the pictures submitted by the defendants matching the actual evidence gun so closely that the plaintiff's expert witness thought they were just pictures of it).
The medical evidence would also support this theory, since the wound was a through-and-through injury with no mention of stippling or fragments of bullet or case, as would normally be expected in an out-of-battery discharge or close range self-inflicted gunshot. That the plaintiff's lawyer didn't even refer to an expert witness on gunshot wounds to determine whether his client's story matched the evidence would just be further evidence that he failed to exercise due diligence under Rule 11 in his filings.
” Malicious prosecution needs to carry a financial penalty. Either via fines or incarceration...”
YEP
Sorry about that. You are correct; I'm not yet used to the 5-inch screen and tiny little keyboard.
At a minimum.
Either via fines or incarceration...
Except for egregious cases and repeat offenders. You familiar with Benjamin Cleveland?
In 1778 Ben was made colonel of the militia. Despite his reputation for brutal justice (or perhaps because of it!), he was appointed justice of the Wilkes County court and placed at the head of the Commission of Justices. Regarded as one of the most popular leaders of the mountain section of the state, Ben was easily elected to the state's House of Commons during this year.
Even while Ben was busy with these affairs of county and state, he was active in sending scouting parties into certain mountain regions to break up Tory bands infesting the frontier. One detachment of Cleveland's Bulldogs caught a Tory desperado named Zachariah Wells and brought him to Hughes Bottoms, about a mile from Round About. Here thirteen-year-old James Gwyn and a colored boy were at work in a cornfield when Ben joined those who had taken Wells prisoner. The band of freedom fighters included Ben's two sons, his brother Robert, and Lieutenant Elisha Reynolds.
Needing something to hang Wells with, Ben borrowed the plow lines from James Gwyn's horse. James, innocent of the ways of war, was shocked at so summary an execution and begged his neighbor not to hang the poor fellow who looked so pitiful and was suffering from a former wound.
"Jimmie, my son," Ben explained gently, "he is a bad man. We must hang all such [damned men]." Captain Robert Cleveland was cursing "at a vigorous rate" as he prepared the wincing, squirming prisoner for execution. Ben was not unaffected by the boy's naive pleas, and tears flowed down his cheeks as he adjusted the rope around the neck of Zachariah Wells. The big-hearted colonel regretted the necessity of hanging the trembling culprit, especially in front of young Jimmie, but he also knew that the lives of the Yadkin River patriots would be much safer and they would all sleep more peacefully when the country was rid of such vile desperadoes. Wells soon dangled from a convenient tree, and his body was buried in the sand and loam on the bank of the Yadkin.
Wherever Ben travled, he remained vigilant for any glimmer of Tory influence. ... .
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