Lawyer requests trial by combat: 9th Amendment and goofiness factor

Factual Questions
1

On August 4 a Staten Island (borough of NYC) paper described a request – motion? Counterclaim? I don’t know what the term is – by a lawyer in response to a lawsuit against him, that the claim be adjudicated by trial by combat.

The occasional goofy court filings are fun, but this guy’s livelihood is at stake, and for him to go full Snark seems crazy. (In some OP from a while ago I asked about the goofiness-quotient allowable of judges, who get their own yucks at times.) So that’s’ an opinion, not a GQ, really, but any comments from legal types would be nice.

But to the “serious” matter at hand. From the original article (Real-life Game of Thrones: Lawyer seeks trial by combat to resolve lawsuit - silive.com):
[…]Over the course of 10 pages, Luthmann discusses the history of trial by combat from Middle-Age England to the founding of the Thirteen Colonies. (Fun fact: One British bishop in 1276 paid a champion an annual retainer fee, with additional stipends and expenses for each fight. Luthmann doesn’t say how much.)

More to the point, an attempt to abolish the practice in the Thirteen Colonies was blocked by Parliament in 1774, nor was it subsequently banned by the Constitution in the United States or by the state of New York, Luthmann contends.

[…]

He acknowledged the judge could take a dim view of his request, when a reporter asked him that question.

But he insists there’s a bigger Constitutional issue here: Exactly what rights are protected under the Ninth Amendment?

  1. Anyone here want to take a crack at how the judge/state law would respond?

  2. Any comments on the actual history of the practice (ignoring the guy’s argument for its current validity). The duel between Aaron and Burr is mentioned a lot…

Also, a kind of circular question is: if (a big if) trial by combat is/was legal, how was the malfeasance of assault and manslaughter (if not murder) handled?

  1. If this guy has the slightest chance of making a case, however temporary regarding the plaintiff at the moment, does the NY or US justice code have to be updated by legislative action?

That is, As everyone knows, there are old-timey laws on the books all over (no-ladies-on-public-benches-after-dark kind of thing). If somebody makes enough of a fuss, like this character, must they be legally deleted? Ie, does deprecation-by-desuetude have some sort of legal definition?

  1. As a good GQ citizen, I half-heartedly (!:)) googled around law directories associated with NYState to try and get a copy of the actual document he filed; all I found were decisions and opinions. Are such documents as the one here publicly available by law?
2

I think he may be indicating to the plaintiff that the lawsuit against him is going to take a long time and get expensive. Hopefully the judge will put an end to the bullshit quickly.

Trial by combat? No, but combat can be sanctioned as sport, and in Vegas a bet can be placed on the outcome of a fight, I don’t know that’s allowed in New York, or if a ‘winner-take-all’ fight can be held in New York, but if both parties are willing an effective trial by combat is possible. Swords, pistols, and the like won’t be allowed, but man-to-man trial by combat has been around a lot longer.

3

Well, in some big Japanese v. American courtroom case (I think mentioned in my previous “judge goofiness” OP), wasn’t it set by the judge that the victor be established by who wins paper-rock-scissors?

So yeah, that’s a trial-by-combat by the non-standard judicial goofiness definition. But no claimed legal precedent.

4

:smack:
I’m obviously making a subtle metaphor of Aaron Burr’s internal moral struggles before facing off with Hamilton…

5

There have been cases where pre-trial bickering (like arguing over where a deposition is to be taken) are ordered settled in such a way. Even the most whimsical of judges is unlikely to settle an actual matter of law with rock-paper-scissors. For that they use blackjack.

6

Tennessee DA claims that referring to them as “the Government” is prejudicial.

“The State believes that such a reference is used in a derogatory way and is meant to make the State’s attorney seem oppressive and to inflame the jury.”

Defense attorney:
[He…] demanded his client no longer be referred to as “the Defendant,” but instead be called “Mister,” “the Citizen Accused” or “that innocent man” — since all defendants are presumed innocent until a judge or jury finds them guilty. As for himself, clearly “lawyer” or “defense attorney” wouldn’t do him, well, justice.

"Rather, counsel for the Citizen Accused should be referred to primarily as the ‘Defender of the Innocent.’ … Alternatively, counsel would also accept the designation ‘Guardian of the Realm,’ " Justice wrote.

And since prosecutors are often referred to formally as “General” in court, Justice, in an effort to be flexible, offered up a military title of his own.

“Whenever addressed by name, the name ‘Captain Justice’ will be appropriate.”

Gathering steam, he went on to say that even “the defense” wasn’t adequate and that “the Resistance” would be far more appropriate.

This goofiness/Snark I have sympathy with. But still takes balls, no?

7

You say cases plural, and “such a way” referring to rock-paper-scissors?

The case I was thinking of, and the judge’s edict, is, as you correctly say, about determining a place for a deposition. From Wiki “rock paper scissors.” (Rock paper scissors - Wikipedia):
In 2006, American federal judge Gregory Presnell from the Middle District of Florida ordered opposing sides in a lengthy court case to settle a trivial (but lengthily debated) point over the appropriate place for a deposition using the game of rock-paper-scissors.[31] The ruling in Avista Management v. Wausau Underwriters stated:

Upon consideration of the Motion – the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006.[32]

8

May or may not be relevant here, but a TL,DR event I witnessed when I was young and may be of interest:

My parents were getting divorced and mother was using every dirty trick she could to show Dad as horrible person that he was NOT (divorce took nearly three years). My Dad caught a discharged Special Forces guy, friend of my Mom’s, (towards end of Vietnam war, fwiw) attempting to attach a blasting cap to his car’s carb. Dad ran him off with a shotgun, but ID’d him in a lineup through Sheriff’s Dept. Cap was attached but he was caught before wires attched to starter. Sheriff’s Dept took my Mom’s word that the guy (lets call him Al) was with her that night, even though my brother and I both made statements that Mom was with her future husband (different fellow) that night and no one else was present in our home (and we had friends staying the night, to boot!). Al was then going getting hired by Sheriff’s Dept, so it was an obvious ‘cover-up’. Dad took brother and I to HQ ASAP to witness deputies removing blasting cap and wiping down all surfaces to remove fingerprints, etc, and official-report said nothing was found, though bro and I both saw it ourselves being put into a small bomb-proof box and taken away. The deputies threatened to arrest us if we did not leave the public parking lot we were in, but we stayed and Dad said to have City Police arrest us all so he could file report of witnessing the wiping down of engine/car and steam-cleaner used upon engine. Deputies backed down when they saw people with cameras aimed at them, and that a different agency would take reports that would be difficult to ‘suppress’ :slight_smile:

Fast forward to hearing of suppresion of evidence: Bro and I not allowed to testify due to our ‘bias’, per judge/Sheriff, and Sheriff said they had to steam clean engine to verify existence of anything unusual. Total bullshit. Dad was portrayed as a vengeful lunatic by Sheriff’s office as he was constantly harrassed by Mom’s ‘friends’ and only made story up to get back at Mom. After the bogus hearing, something awesome happened.

Being in Huntsville, TX, it was apparently legal to challenge someone to a duel by gun or sword. The attorney stopped Sheriff on steps of the Courthouse and did just that, calling him a liar, swindler, and yellow-bellied coward who lied consistently, etc, and asked him if he would put his life on the line for honety’s sake. Sheriff was fuming and drew his gun which made attorney state the challenge as loud as he could to draw folks from all around, and challenge was repeated several times loudly and deputies wanted to arrest attorney, but he quoted apporpiate law and said he could do what he was doing and harm those who tried to stop him. Sheriff told his dep’s to stand-down to avoid him getting hurt and to consider the attorney a lunatic. This attorney was paratrooper at D-Day who suffered cervical spine injury when landing behind the ‘line’ (true hero in my book), and had NO fear, and was quite the marksman and sword-handler. He taught me a lot about firearm sfety and such and Google finds he is still in practice in nearby town to Huntsville nowadays. fwiw. He had both type weapons at his side on ground ready to use for the duel, and kept asking Sheriff what his choice was, if he were a real man as the electorate assumed he was.

Sheriff walked away through crowd of onlookers with the reddest face you can imagine, and deputies were ordered to disperse immediately by him unless they wanted to be challenged themselves to duel for their interference as his action was legal at the time (IIRC).

I know this is not directly involved with a Court hearing, but there is at least one attorney who put his very life on the line for my Dad, bro, and me involving Court actions.

9

Was any portion of that story true?

10

Cool story bro.

11

Dry, dry…

12

It worked for Ivanhoe and Rebecca.

13

I think both Aaron and Burr survived that duel.

14

The part where he has a mother and a father is probably true.

15

Huntsville Texas is a real place.

16

Trial by combat was not part of the English common law which the nascent United States adopted and, over time, adapted (and dueling was illegal even in Hamilton’s and Burr’s day in New York State, which is why they rowed over to New Jersey to shoot at each other, the idjits). The law in just about every state today provides for a dispute between parties to be privately - but peacefully - resolved between them, or mediated, or arbitrated, or adjudicated in a bench or jury trial. Trial by combat isn’t an option. Any judge worth his or her salt would flatly deny such a motion.

17

Can I ask for a cite for that?

18

Trial by battle was introduced into England by the Normans, but had fallen into disuse by the fourteenth century. However in the 1818 case of Ashford -v- Thornton the Court of King’s Bench held that it was still available in certain circumstances. Parliament abolished it a few months later with the Wager of Battle Abolition Act 1819 (59 Geo. III cap. 46).

So, yes, it did still form part of the English legal system when the American colonies were established, and when English law was adopted. I suspect, though, that if push came to shove the American courts would hold that it could not have survived the eighth amendment, which guarantees a right to trial by jury.

19

I’m trying to find the name of the author and book shown on Fareed Zakaria GPS today. She mentions that in the US there had been a tradition of dueling, even though illegal, following elections. The loser of the election would instigate a duel to regain their status following the loss. The ‘Aaron and Burr’ duel against Hamilton was one of those cases according to her. Not a court settlement, but if she is correct dueling was a more common activity in the US in times past.

20

:slight_smile: + :dubious: + :frowning:

Oy, now this.