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January|February 2004
The Queue Crew By Brian Montopoli
Shark Hunt By Dashka Slater
The Right to Dry By Dusty Horwitt
Peruvian Guilty By Jason Felch
Cases & Controversies
The Prudent Jurist By Stephen Gillers

Cases & Controversies


Breaking Up the Joneses

AS THE EIGHTH CIRCUIT COURT OF APPEALS TELLS IT, Donna and Richard Jones of Sioux Falls, S.D., had maintained a "near perfect" marriage for 17 years when Donna became reacquainted with her high school boyfriend, Todd Swanson. Swanson, who had become a wealthy orthopedic surgeon, was visiting his father in the hospital in 1998 when he bumped into Donna, swept her off her feet, andóthe court ruledóstole her love from her husband.

The court found that Swanson had committed the tort of "alienation of affection" and ordered him to pay $400,000 to Richard. It agreed with a jury's ruling that Swanson had caused Donna to lose affection for Richard. Swanson had repeatedly called Donna, bought her gifts, and taken her out on expensive datesóactive steps that the court ruled lured her away from marital bliss and culminated in divorce. (Swanson's lawyers insisted that Donna had already stopped loving Richard and that there was "no affection to alienate.")

Alienation of affection was once a salve to the broken hearts and bruised pride of cuckolds across the nation, but the claim began losing favor in the early 1900s. Feminists led the legislative charge against the tort, on the grounds that it treats adulterous women like stolen property. (The vast majority of cases have involved scorned husbands even though more husbands than wives have affairs.) Only nine states, still punish a spouse's seducer. But the laws retain their defendersóRichard Jones among them.

And a Rock Feels No Pain

RODCLIFFE MCPHEE, A BAHAMIAN CITIZEN, was apprehended by Coast Guard officials somewhere between Cuba and the Bahamas in May 2001 as he tossed more than 2,000 pounds of marijuana overboard from his ship, the Notty. Convicted in a U.S. court of drug possession and conspiracy, he appealed on the grounds that the United States did not have the authority to arrest him.

The United States and the Bahamas have agreed that the U.S. is free to intercept drug smugglers outside of Bahamian territorial watersódefined as fewer than three miles from its shores. Coast Guard officials contended that the Notty lay in international waters. McPhee argued that he had been in Bahamian water because of his proximity to a landmass known as Saint Vincent Rock, which he maintained was a Bahamian island from which Bahamian waters radiated. The government disputed the contention on geological grounds, arguing that the landmass failed to meet the statutory definition of an island, as well as on linguistic grounds, pointing out that "if it was an island, it would be called Saint Vincent Island."

The Eleventh Circuit dwelt on the statute's dichotomy. "We note in passing that for some purposes, the label is not altogether satisfying. Thus, for example, in the metaphysical sense, we can discern no reason why something could not be both a rock and an island at the same time." The court then cited Simon and Garfunkel's classic "I Am a Rock" in its entirety. "Of course," the court noted, "neither Simon nor Garfunkel has been identified as a nautical expert." Until such time, it found, McPhee should remain in prison.

Nursery Crimes

GRACE FIELDS DIED SHORTLY AFTER SHE WAS FOUND UNCONSCIOUS at her day care center in Lakeland, Fla. Doctors originally thought the 3-month-old's death was a SIDS case, but toxicology reports suggested that she had been given triple the adult dose of Benadryl. Prosecutors accused Paula Burcham, Grace's day care worker, of medicating the infant to keep her quiet. Burcham claimed she had treated Grace for a respiratory problem, though Grace's parents contended their daughter had been healthy. In August, Burcham pleaded guilty to manslaughter and was sentenced to eight years in prison.

Babysitters around the country have been caught drugging their charges to manage them. An Ohio babysitter admitted in 2000 that she gave Benadryl to her 17-month-old charge, who later died. And last year, a 2-month-old in Alabama died at a day care center after being given an overdose of over-the-counter cold medication. In response to the death of a 5-month-old under similar circumstances in North Carolina, the state recently passed a law making it a felony to give medicine to a child without parental consent. Parents in Ohio, Alabama, and Florida are pushing for similar laws.

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