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Is It Still Murder If You Shoot Your Friend in the Head Because He Asked You?

A strange form of what he claims to be assisted suicide, a man shot his friend of 40 years in the back of the head, claiming he only did so because his friend asked him to. Originally claiming he had nothing to do with the victim’s death, the man changed his tune after a couple hours into his interrogation and then claimed it was a staged suicide.

Beong Kwun Cho and Yeon Woo Lee were long-time friends, so close that Cho’s daughters even considered Lee an uncle, according to Cho. While being interrogated for Lee’s murder, Cho claimed a few months prior to his death Lee asked him for a favor.

Cho told officers that Lee expressed his business was failing, his marriage was falling apart, and that he wanted to die, but didn’t want to disgrace and burden his family with the trauma of a suicide.  Cho further claimed that Lee said he was unable to hire a “hit man” to complete the job, so he, instead, asked Cho to do it.  Don’t worry, it gets even stranger. Cho

According to Cho, Lee even orchestrated his own death. Lee bought the gun and ammunition, scouted possible sites for the death, arranged for the duo to attend target practice at a local gun range, and even went as far as taking Cho to buy black knit gloves and size 13 shoes as props to make his death look like a robbery gone bad, as well as chose the date of his death.

His wife’s birthday, nonetheless.  After driving separately to the location, Cho claims his friend flattened his own tire, ransacked his own car, smoked a cigarette, handed Cho the revolver, and knelt with his back before Cho to die.

Keep talking to me so that I won’t know when I’m being shot. And while I’m talking…shoot me in the middle of our conversation.”

The story isn’t entirely implausible, but Cho may not have been so innocent after all. After pressing him further, the investigating detective discovered a whole slew of slew of reasons Cho had for hating Lee. Among the motives driving his hatred, Cho claimed his family lost their home to debt collectors as a result of a bad business deal Lee made for him. He also claimed Lee was blackmailing him and sexually assaulted his wife.

Would you believe him?

Is Assisted Suicide an Affirmative Defense to Murder?

Generally, to be guilty of a crime, you need to both commit the crime that’s prohibited by law and have the intent or mental state required by law when committing the crime. The latter is where an affirmative defense could come in.  Affirmative defenses are legal excuses or justifications for committing a crime.  Although states vary in what they consider a valid affirmative defense, generally they include:

  • Self defense
  • Necessity defense
  • Entrapment defense
  • Insanity defense
  • Intoxication defense (this one’s a bit trickier and some states won’t recognize it)

As far as I know, shooting someone in the head just because they asked you to doesn’t qualify. In fact, the crime of murder doesn’t care what the motive is and no law allows mitigating factors for a mercy killing. In People v. Roberts, a Michigan Supreme Court case from the 20’s, upheld a murder conviction of a man that gave poison to his very ill wife because she asked him to.

Nevertheless, motive always plays a role in the decision of the jury and this case was no different.

Jury Bought Cho’s Story, At Least Partially

After a two-week trial, the jury found Cho guilty of voluntary manslaughter, a much lesser charge than murder.

Cho’s main argument at trial centered around the fact he claimed he had no intention of actually going through with Lee’s plan up until the very moment he pulled the trigger, claiming that he only did so in a “heat of the passion” moment because Lee was saying upsetting things about his wife and daughter.  Robert Kohler, Cho’s attorney, argued the jury needed to understand the importance of the Korean culture and the effect suicide has on bringing shame upon an entire family, not just the one that commits the act.

The state argued otherwise, that Cho had a clear intention to follow through with the plan when he arrived at the scene the night of the killing.

Did the Jury Get It Right?

The fact that Cho drove to the location, put on size 13 shoes and a pair of black gloves, is telling of the fact that he at least had some inclination to follow through prior to pulling the trigger. Crimes committed in the “heat of the passion” are commonly used as mitigating factors in crimes, but there seems to be plenty of evidence in this instance to show this wasn’t the case and that shouldn’t be enough to mitigate murder down to manslaughter.

Cho is set to be sentenced on September 23rd and faces a possible 21 years in prison, which is significantly less than the possible life sentence, or even death, he faced under the murder charge.

Life Sentences for Possession of Marijuana Remains Legal

Who would have ever thought you could get a life sentence for simple possession of marijuana? If you’ve been convicted of certain prior felonies, four states mandate a life sentence enhancement without the opportunity of parole for possessing marijuana, even in small amounts.

Lee Carroll Brooker, a 75-year-old Alabama resident currently serving a life without parole sentence, was convicted under Alabama’s Habitual Felony Offender Act for growing about three dozen marijuana plants in his son’s backyard.

Brooker has multiple chronic ailments and had absolutely no intention of selling the marijuana. Prosecutors conceded the fact that the plants were for Brooker’s own personal medicinal purposes, but despite that fact, Brooker was still charged and convicted.

Brooker’s prior felonies consisted of a slew of robberies, all of which he served a total of 10 years in prison for those crimes. Although the sentencing judge wished he could offer a different sentence, the judge had no choice but to impose a life sentence. Alabama law mandates a life sentences in case histories like Brookers.

Brooker filed a Writ of Certiorari to the Alabama Supreme Court asking the Court to consider whether his sentence violated the 8th Amendment’s cruel and unusual punishment clause. The Court ultimate denied Brooker’s request to review the case. Chief Justice Roy Moore concurred with the Court’s decision, but wrote separately expressing that he believed Brooker’s sentence was “excessive and unjustified” and that sentencing judges should have discretion to choose a lesser sentence. Life Sentence

Referencing the life imprisonment sentencing law, Justice Moore further wrote, “I urge the legislature to revisit that statutory sentencing scheme to determine whether it serves an appropriate purpose.” The U.S. Supreme Court also denied to review Brooker’s appeal, leaving him to spend out the rest of his days in prison.

Is Brooker’s Punishment Cruel and Unusual?

How in the world is that justified that a person can serve 10 years for robbery, but a life sentence for simple possession of marijuana? Even more so when you consider the fact that Brooker’s plants weighed in at a grand total of 2.8 pounds…including unusable parts like stalks and leaves. Alabama law mandates a life sentence for 2.2 pounds or more. That’s less than a half-pound difference that got Brooker a life sentence. Oh, and don’t forget marijuana is now legal in 24 states and D.C. for medicinal use and 4 states for recreational use.

Brooker was allowed to remain free and out of jail after his conviction while he awaited sentencing, so he was clearly not a threat to society. Brooker received a punishment that’s typically given to an offender that’s committed a violent crime.

Life sentences, according to the Bureau, are rare with a whopping 1% of total prison sentences. The U.S. Department of Justice released statistics reporting that in the year 2000, the average sentence length in state courts for murder was nearly 20 years and 8 months.

That’s right—Brooker received a longer sentence than a murderer simply because he had prior felony convictions. Among the 8,600 persons convicted of murder or non-negligent manslaughter, only 23.3% were sentenced to life in prison.

To top off those statistics, federal law mandates a minimum sentencing of 3 years for possession of marijuana and that’s only after a 3rd offense. Under federal law, a person would have to cultivate at least 1000 plants before a life sentence would even be an option and the minimum sentence is only 10 years. Brooker had roughly 36 plants. This means under federal law, a sentencing judge has the option to choose a mere 10-year sentence, the minimum, for growing 1000 plants and is not required to direct a life sentence. The same goes for selling 1000 kg or more of marijuana.

Most states mandate a maximum sentence of five years for possession of less than three pounds of marijuana.

When Would a Life Sentence Be Justified For a Non-Violent Drug Crime?

In terms of severity, life without parole is the second worst punishment an offender can get. The first is the death penalty. Mandatory life sentences shouldn’t exist for any crime and in no instance should a life sentence be warranted for possession of marijuana.

Even in states that don’t have the life sentence enhancement for habitual offenders, some still have three-strikes laws that can send someone away for life. It doesn’t seem justifiable to sentence someone to die in prison for simple possession of marijuana. Currently, Louisiana, Florida, Alabama, Mississippi, South Carolina, and Oklahoma all sentence nonviolent offenders to life without parole for nonviolent crimes. Mississippi alone requires life sentences for being convicted of possession for barely one ounce of marijuana.

Mandatory death sentences and mandatory life without parole sentences for juveniles have already been banned. The Supreme Court did so on the basis that the 8th Amendment must adapt to “evolving standards of decency that mark the progress of a maturing society.” With the ever-changing views of marijuana and as more states begin to legalize, the court may be forced to review the issue in the future and in turn, force legislatures to change their minimum sentencing standards.

Too Much Ice is Not Nice: Suing Starbucks for Fraudulent Under Filling?

Starbucks has recently been in hot water over under filling their hot drinks; now another class action lawsuit is looking to put them on ice. The new suit, coming only weeks after the hot drink lawsuit, alleges that Starbucks defrauds its customers by misrepresenting the actual fluid ounces of cold drink in their iced beverages. The suit says that the company intentionally fills their cups only halfway, then fill the rest to the brim with ice.

Who hasn’t known the heartbreak of ordering an iced coffee, taking a few sips, and being left with a cup full of ice? The facts put forth in the lawsuit’s complaint state that Starbucks designs their cups with a black line slightly over halfway up the cup. This line is to allow their baristas to consistently fill the iced drinks to that line with already cold liquid, then fill the rest with ice.

As an example, a Venti iced drink—advertised at 24 fluid ounces—would be filled with 14 fluid ounces of actual drink under Starbucks company policy. Amusingly, the size below Venti is measured to contain 12 fluid ounces while being advertised as 16 fluid ounces—a difference of only 4 fluid ounces compared to an advertised difference of 8.

Is this fraud? Ms. Stacy Pincus, a resident of Chicago, and her lawyers certainly think so.  They have alleged, among other things, breach of warrantee, negligent misrepresentation, and fraud.

Breach of Warrantee-Is It What You Say It Is?

Warrantees are basically guarantees a seller makes about their product.  Unlike Starbucks drinks, they come in only two flavors—express and implied.

Express warrantees are guarantees that the seller makes through their overt actions or statements. They can be created by, among other things, statements by the seller or descriptions of the product by the seller.

Implied warrantees exist regardless of statements made by the seller, and include the warranty of merchantability and the warranty of fitness for a particular use. The warranty of merchantability is that the product sold will meet the general expectations of quality in the market and be fit for their intended purpose.  Starbucks Iced Drink

The implied warrantee of fitness for a particular purpose works a bit differently. Where a shopper asks a merchant if a product will serve a particular purpose, the merchant knows they are relying on their expertise, and the shopper actually relies on that expertise—the product must actually serve the purpose the merchant said it would.

The iced drinks lawsuit alleges that by labeling their drinks as containing a certain amount of fluid ounces, Starbucks created an express warrantee that their iced drinks had that much fluid in them. Ms. Pincus alleges that filling the cup with ice not count towards fluid in the cup.  By failing to include as much fluid as advertised, Starbucks has breached their express warrantee.

Ms. Pincus’ lawsuit has a colorable case supporting a breach of express warranty. Ice isn’t fluid, as any grade schooler fresh out of science class will tell you. However, their argument for breach of implied warranty is extremely weak.  The lawsuit claims that under filling of the drinks makes them not fit for their ordinary purpose—which one would assume would be drinking. They also raise facts in support of an argument of fitness for a particular purpose—stating that customers relied on Starbucks employee’s recommendations in believing their products were properly filled.

Frankly, this seems ridiculous.  The purpose of an iced coffee is to be cold and capable of being drunk—extra ice doesn’t change that.  Also, it seems highly suspect that the plaintiff or any other customer told their barista that they specifically needed the exact fluid ounces advertised only to be assured that this was going to be the case.

Negligent Misrepresentation-You Should Have Known It Wasn’t What You Said It Was

Negligent misrepresentation is where a party makes a representation about something they have no reasonable basis for believing to be true and another party, believing the statement, relies on it in making a purchase.  However, the purchasing party’s belief must be reasonable—and that is the biggest issue in this case.

Starbucks certainly knew there wasn’t as much fluid in their cups as they said there was. At a minimum, they should have known that their policy of filling cups to a predetermined line that was less than the stated fluid ounces in the drink would—lo and behold—leave less fluid in the drink than they said was in it. This means they made a misrepresentation.

However, do people really believe that their iced drink won’t be filled with ice? Do people expect the advertised fluid ounces on a drink to represent the actual amount of fluid in the cup or the volume in fluid ounces of the cup the drink is served in?

Ms. Pincus and Starbucks will certainly have something to say about these questions—as their answers will decide the case.  If people don’t expect advertised fluid ounces to represent the actual amount of fluid in their cup, then Starbucks is off the hook because correlating advertised fluid ounces and actual ounces is not a reasonable belief.

Fraud-You Know Dang Well It Isn’t What You Say it Is!

Fraudulent misrepresentation has nearly identical elements to negligent misrepresentation—with one big difference.  In negligent misrepresentation, the party selling the product has no basis for knowing if their statement is true or false.  Fraudulent representation requires that party to act with “reckless disregard” as to the truth or falsity of their statement or actual knowledge that they are lying.

Given that under filling their drinks was company policy, it seems impossible that Starbucks did not know that their advertised fluid ounces for drinks were untrue. Exactly what sort of reliance on a statement is required varies subtly from state-to-state for both negligent and fraudulent misrepresentation. Illinois, where the lawsuit is being brought, requires reasonable belief in justifiable reliance on the statement.

Reliance is not reasonable where a statement is obviously false or a reasonable person wouldn’t take it seriously. Once again, this cause of action will hinge on what customers expect from their drinks.

The Cold Case Going Forward

This lawsuit is still in its infancy; with no response from Starbucks beyond a general statement calling the whole thing ridiculous, it is impossible to truly predict the outcome. However, the complaint is not as ridiculous as Starbucks would have the world believe.  At a minimum, some of the allegations made will likely withstand Starbucks’ inevitable motion for summary judgment—a ruling by a judge that one side of a case will win and there is no possible issue of fact that could lead to a different outcome.  No matter how the case progresses, I’ll be ordering the smallest size for my iced coffee—light ice please.

Can I AirBnB My Rental If I Have a “No Subletting” Clause?

If you own or rent property in any major city, you likely have heard of AirBnB. AirBnB is now utilized by over 190 countries. It is considered a way to make easy money by property owners and renters alike, targeting travelers who prefer to stay in someone’s home or rental unit as opposed to a hotel. Beyoncé, for instance, rented a $10,000 a night home in Los Altos Hills, California for the Superbowl. Several months later, Justin Bieber rented the same home. Sublease

More than the rich and famous, AirBnB targets budget-conscious travelers. Typically AirBnB offers “more bang for your buck” than hotels in similar areas. Where renters or homeowners stay in the unit with AirBnBers, it also offers the added bonus of a local city dweller to recommend restaurants, nearby shopping areas, and tourist attractions.

While AirBnB is internationally popular, many landlords worldwide dislike AirBnb when the landlords’ tenants sublease their property to consumers.

What is Airbnb and How Does it Work?

Simply put, Airbnb is a room letting website. It allows people to list, find and rent lodging from all over the world, including popular destinations such as Paris, London, Berlin, and state side in cities such as San Diego, New York, and Miami. It is privately owned and is reportedly worth $25 billion. The primary source of Airbnb’s revenue comes from service fees from bookings.

Why Do Landlords Oppose Their Tenants Utilizing AirBnB?

Landlords from many cities are against AirBnB. Their opposition depends on the local laws and regulations.

First, AirBnb rental by tenants creates a residency that can lead to a more long-term tenancy, which the landlord’s mortgage lender typically forbids and which can constitute a material breach of their mortgage contract. Second, it may qualify as a House in Multiple Occupancy, which could require the landlord to acquire a specific business license and additional liability insurance.

In San Francisco, most tenants are covered by rent control such that the rent can only be raised by a certain amount each year. Let’s say a tenant has been renting a one bedroom, one bathroom unit since 1980 and pays $800 a month due to rent control. If the tenant is able to get $500 a night the four days in the summer, the tenant stands to make $2,000 on the transaction, pocketing $1,200 after she pays her monthly rent. Landlords believe this type of arrangement unfairly enriches the tenant.

Can Landlords Limit AirBnB?

The short answer is it depends. Different cities have different regulations. In most cities, a landlord can include a “no subletting” clause limiting a tenant’s ability to utilize AirBnB. A “no subletting” clause dictates that the tenant cannot rent out all or part of the apartment for any length of time. If you violate the provision, your landlord can evict you.

However, in Victoria, Australia, a court ruled that tenants cannot be evicted for violating the subletting clause. In a recent case, a tenant argued that AirBnB guests do not have “exclusive possession” of the rental apartment, or the right to use the premises at the exclusion of all others, including the landlord herself. The Victorian Civil and Administrative Tribunal concluded that AirBnB guests cannot be said to have exclusive possession of an AirBnB unit because AirBnB specifically limits possession. The case is the first authoritative case of its kind in the world.

It is important to note that most American jurisdictions do not follow this principle. Instead, they conclude that no subletting clauses can limit a tenant’s use of AirBnB if it is included in the residential lease.

Wells Fargo Bank Commits Fraud Against Its Customers

Wells Fargo Bank is facing a lawsuit from the city of Los Angeles, which alleges that the bank participated in unfair business practices by persuading its employees to engage “in unfair, unlawful, and fraudulent conduct.” According to the lawsuit, Wells Fargo workers were under a great deal of pressure to meet sales goals, and thus, were in the habit of opening accounts for their current customers without first obtaining their permission.

The city of Los Angeles refers to Wells Fargo as a “fee-generating machine” because of its efforts to compel its employees to meet unrealistic sales goals. According to the city, “Wells Fargo places unrelenting pressure on its bankers to open several accounts for each customer. “ “Wells Fargo’s bankers are thus naturally and predictably forced to use alternative means to meet quotas.”

As a result of the workers’ actions, customers were subjected to more fees and a diminished ability to obtain credit anyplace else. For example, their credit reports were affected, thereby having an adverse impact on their capacity to obtain a car loan or mortgage. Customers also felt compelled to get identity theft protection because Wells Fargo accounts were being opened in their names without the customers’ consent. wells-fargo-robbery

The city is therefore attempting to secure a court order from the Los Angeles Superior Court that would mandate that the bank act in compliance with the law. It is also seeking to have Wells Fargo penalized with a fine of $2,500 per violation in accordance with California’s unfair competition statute and restitution.

In addition, the city alleges in its lawsuit that Wells Fargo workers were dishonest with customers when they told them that they had to open more accounts in order to get a checking account. Moreover, workers incorrectly informed customers that there were no fees associated with the accounts, and pressured customers into buying extra products, such as life insurance.

Furthermore, the city claims that Wells Fargo was in violation of state and federal law when it misappropriated customers’ private information, and neglected to inform customers that their private information had been misused. In response, representatives from Wells Fargo said that they have disciplined a few employees who have misappropriated customers’ personal information in order to open accounts without their permission.

Ken Wallman, a business owner, was one customer whose private information was misused by Wells Fargo workers. Wallman told Los Angeles Times in an interview that he opened a checking account with Wells Fargo, but eventually he had a dozen additional accounts because the bank opened additional accounts without first obtaining his approval. When Wallman tried to close the accounts, Wells Fargo refused and, instead, charged him extra fees.

Unfair Competition Law

Under California’s Unfair Competition Law (UCL), there are five definitions of unfair competition outlined in §17200. They are as follows:

  1. An illegal business act or practice;
  2. A business act or practice that is unfair;
  3. A business act or practice that is fraudulent;
  4. Advertising that is unfair, deceptive, untrue, or misleading; or
  5. Any act forbidden by §§17500-17577.5.

Under §17203, the court can order injunctions to prevent the unfair competition as well as order other equitable defenses. Victims of unfair competition can obtain relief through the court, which can order that money or property be returned to them. In the event that an injunction is issued in accordance with §17200, those who intentionally engage in unfair competition could be penalized up to $6,000 per day. And when a lawsuit is filed by a government agency, such as the city of Los Angeles, civil penalties of up to $2,500 per violation are permitted.