Federal Judge Strikes Down “Flying Spaghetti Monster” (Or At Least A Prisoner’s Claims About His Ability To Worship The “Flying Spaghetti Monster”)

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

When appointments are made to the U.S. Supreme Court there is often much talk about the potential justice’s “paper trail” — the articles, briefs, or, if the candidate is already a judge, opinions he or she has written. If Judge John M. Gerrard of the U.S. District Court for the District of Nebraska is ever fortunate enough to be appointed to the Supreme Court, I hope that someone questions him about his recent opinion in Cavanaugh v. Bartelt. The decision does not provide much insight into his “judicial temperament” or his position on any hot button social issues that might come before the Supreme Court. It is just a well written and — not to sound too geeky — enormously entertaining opinion to read.

Cavanaugh was a lawsuit filed by a prisoner in a Nebraska prison who claimed to be a “‘Pastafarian,’ i.e., a believer in the divine ‘Flying Spaghetti Monster’ who practices the religion of ‘FSMism’.” Plaintiff sued prison officials, claiming they were not accommodating his religious requests. Judge Gerrard concluded that FSMism was not a religion under the law, but was instead “a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education.” While he acknowledged that these were “important issues and FSMism contains a serious argument,” he held that FSMism was “not entitled to protection as a religion.”

Before addressing the legal issues presented by the complaint, Judge Gerrard provided a brief and entertaining history of FSMism. Because it developed as a response to “intelligent design,” Judge Gerrard traced the debate over teaching evolution in public schools from the adoption of state laws banning the teaching of evolution, to the Supreme Court’s rejection of those laws, to the adoption of state laws requiring that schools teach both evolution and “creation science,” to the Supreme Court’s rejection of “creation science” under the Establishment Clause, to the rise of “intelligent design” as an alternative to evolution. Proponents of “intelligent design” claim that the “Earth’s ecosystem displays complexity suggesting intelligent design by a ‘master intellect.” They try to avoid the Establish Clause issues that brought down “creation science” by not expressly identifying the “master intellect” as a deity.

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Jury Instructions Deemed Ambiguous “and/or” Erroneous “and/or” a “Mongrel Expression”

When I used to teach Legal Research and Writing, one of the phrases I encouraged my students to avoid was "and/or." Like a lot of legalese, I think lawyers believe that using "and/or" leads to greater clarity in their writing when in fact the opposite is true. I suspect that, like much of what I taught them, my students avoided "and/or" in the writing they submitted to me and then quickly went back to using it as soon as they got out of my class. They may have thought that my opposition to "and/or" — like my opposition to "any and all," "heretofore," and any number of other phrases — was personal preference not generally accepted advice. If they did, however, they would have been wrong, and the Appellate Division has now confirmed as much.

In State v. Gonzalez, the Appellate Division reversed defendant's conviction and ordered a new trial because the trial court's repeated use of "and/or" in its jury charges rendered the instructions "hopelessly ambiguous and erroneous in important respects." In that case, defendant was convicted of, among other things, robbery and aggravated assault. (The emphasis on "and" will become clear later.) He was accused of conspiring with two other individuals to rob and then assault another individual. As might be expected, the prosecution and defense presented different versions of the underlying events to the jury. The problem for the Appellate Division was not the evidence that each side presented, but rather the repeated use of "and/or" by the trial judge when he instructed the jury on how to evaluate that evidence.

The Appellate Division began by observing that "[t]he imprecision of the phrase 'and/or' and criticism for its use [in New Jersey] and in other jurisdictions has been well documented." New Jersey's highest court previously described it as an expression that "has never been accredited in this state as good pleading or proper to form part of a judgment record." Courts in other states were less kind, calling it: a "verbal monstrosity, neither word nor phrase;" "an inexcusable barbarism" that was "sired by indolence;" a "mongrel expression" that was "an equivocal connective, being neither positively conjunctive nor positively disjunctive;" and an "abominable invention." The Appellate Division further observed that "[w]henever found in the decisions of [New Jersey] courts, 'and/or' has been recognized as creating ambiguity."

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Not Quite El Chapo’s Escaping Through A Tunnel Under His Shower, But Still An Escape From “Custody”

There have been two high-profile prison escapes in recent weeks — one in Mexico and one in upstate New York. In United States v. Small, the U.S. Court of Appeals for the Third Circuit dealt with a third escape that was much lower-profile but still interesting. It presented the question of whether an individual could be guilty of the federal crime of escape even if he was never in the physical custody of the federal government or its agents.

In Small, defendant was serving a state prison term when he was convicted of federal tax fraud and sentenced to 135 months in a federal prison. The federal sentence was set to begin after the state sentence expired. To that end, the U.S. Marshal delivered to the state prison a detainer, which "governed Small's transfer to federal authorities upon completion of his state sentence." A few years later, however, the state prison "received documents in the mail, ostensibly from the [federal court], but which in reality were forgeries sent at Small's direction," which purported to vacate Small's conviction and sentence. The forgeries must have been good because the state prison believed them to be genuine and released Small after his state prison sentence ended.

A few months after he was released from state prison, a federal agent learned of Small's release. Federal agents quickly located and arrested Small, charging him with several crimes including escape. Small moved to dismiss that charge on the ground that he was never in federal custody, a requisite element of the federal crime of escape. He then entered an "open plea of guilty" and was sentenced to 60 months in prison on each count of the indictment (to be served concurrently with each other but consecutively to his tax fraud sentence).

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Is A Locked, Fenced-In Parking Lot A “Structure”? It is in New Jersey.

by: Peter J. Gallagher (@pjsgallagher)

I was in law school during the Bill Clinton/Monica Lewinsky drama. When the pundits seized on Bill Clinton's grand jury testimony about what the "meaning of 'is' is," I recall one of my professors saying that lawyers make distinctions like that every day. In practice, I have learned that this is true. At depositions and in court, lawyers often argue over the meaning of certain words that most people would think are fairly uncontroversial. Sometimes these arguments are more for the sake of argument than anything else, but often they are crucial to the issues in the case, like in the recent New Jersey Supreme Court decision in State v. Olivero.

In Olivero, defendant was convicted of third-degree burglary for stealing metal printing rollers used in printing presses from a fenced-in lot that was adjacent to a warehouse. Defendant and his brother cut the chain and padlock that secured the fence around the lot before driving in and taking the rollers. Unfortunately for them, a security guard noticed that the chain and padlock had been cut and called the police, who arrested defendant and his brother as they attempted to drive out of the facility.

Under New Jersey law, "A person is guilty of burglary if, with purpose to commit an offense therein or thereon he . . . enters a structure." A "structure" is defined as "any building, room, ship, vessel, car, vehicle or airplane, and also means any place adapted . . . for carrying on business." At trial, defense counsel argued that defendant could not be found guilty of burglary because the lot was not a "structure." The trial court rejected this argument, holding that the fenced-in area was "a prohibited space not open to the public, as well as a place for carrying on . . business." The Appellate Division affirmed, noting that the lot was secured from the public.

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