love lies and audio tape glazner v glazner from TSCM/SO Group on 2007-01-27 (file.mbox)

From: TSCM/SO Group <Mit..._at_tscmusa.com>
Date: Sat, 27 Jan 2007 13:14:36 -0600

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Date: Sat, 27 Jan 2007 14:48:53 -0500
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From: "James M. Atkinson" <jm..._at_tscm.com>
Subject: Re: [TSCM-L] love lies and audio tape glazner v glazner
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It reminds me of a situation a few years back where a husband and
wife in a single party consent state got into a divorce situation and
had a long history or eavesdropping/wiretapping each other (legally),
and also on outsiders (quasi-illegally). Both parties were recording
each other on the phone, making threats, promised and such and then
filing and cross filing the transcripts with the courts. One of the
parties had an attorney who was pretty sharp and had the client make
their calls to and from a nearby state that had an all-party consent
state, the attorney also had his client not record the conversations
but instead had another person in the room (all party consent)
witness the conversation over the speaker phone and keep written
notes. The person in the other end (single consent state) of course
made the recording like they always did and submitted them to into
the court filings, the attorney on the other side brought to the
courts attention the issue of the calls in question crossing state
liens, and the conflict of laws over the one party/two party issue.

With everything being equal, the behavior being equal, and everything
pivoting on both side doing things equally egregious to each other
the final tipping point was the criminal action of the person in the
one party state recording the person in the all party state. While
the case didn't get to criminal court, the divorce proceedings took a
decided turn and many tens of million of dollars went to "victim" on
the other side of the scales of justice.

-jma

At 02:14 PM 1/27/2007, TSCM/SO Group wrote:
><http://www.ukiahdailyjournal.com/editorial/ci_5023913>http://www.ukiahdailyjournal.com/editorial/ci_5023913
>
>
>Judicial Follies
>Ukiah Daily Journal Staff
>Article Last Updated: 01/16/2007 09:16:05 AM PST
>
>by Frank Zotter Jr.
>
>Love, Lies, and Audiotape
>
>Compared to other branches of government, the judiciary is a staid,
>almost reflexively polite group. But it's also an offshoot of the
>legal profession, whose primary task is to work with the sometimes
>angry disputes that might otherwise be resolved not in a courtroom
>but in the street. And sometimes, those disputes can spills over
>into the dealings of the judges with one another - leading to some
>nasty exchanges between the judges. Consider, for example, the
>dispute between James and Elizabeth Glazner of Alabama, whose
>unhappy marriage led them to the Eleventh Circuit, the federal
>appeals court that oversees Alabama and some other states in the deep South.
>
>The Glazner's divorce was pending in the late 1990s, but they were
>still living in the same house. James put a recording device on a
>telephone in their home, and it recorded a number of conversations
>between Elizabeth and third parties. She filed a lawsuit against her
>(soon-to-be-ex-) husband in federal court for violating a federal
>law that made wiretapping illegal.
>
>The problem, as she discovered, was that a 1974 case, Simpson v.
>Simpson (no . . . not those Simpsons) that was still binding in the
>Eleventh Circuit, had created an "implied exception" to the federal
>law for "interspousal wiretapping." (The judges apparently thought
>that married folks might have good reasons to bug their spouses, so
>that they couldn't sue each other when the other party - like
>
>Elizabeth - found out.) The first three judges who heard the case in
>2002 agreed and upheld the dismissal of Elizabeth's case.
>
>But then a larger panel of the Eleventh Circuit took up the case
>again, and decided to revisit that 1974 decision to decide whether
>it had been correct. This time, in 2003, a majority of the judges
>who heard the case decided that the 1974 case was wrong - the
>wiretapping law had no explicit exception for spouses, and they not
>only overruled that case, but also made their decision retroactive.
>This meant that even though what James had done hadn't been illegal
>(for a damages lawsuit) when he did the wiretapping, Elizabeth's
>case against him could go forward.
>
>Three judges dissented, being particularly troubled that James might
>well have to pay damages for something that, as they put it, "was
>clearly lawful under the pertinent federal law in the Eleventh
>Circuit when he committed the act." The judge who wrote the opinion
>even added, "I am not trying to be facetious; but before today, some
>spouses might have chosen to live in the Eleventh Circuit because
>they could wiretap their own telephone without being liable under
>federal law. Even if we think it unlikely that someone would live in
>our Circuit to avoid liability under federal law for wiretapping
>their spouse, it is our job to ensure that someone cannot be
>punished retroactively for doing so, as the act was clearly lawful."
>
>Another judge, who agreed with the majority, decided to respond to
>this suggestion that a couple might have chosen to live "in the
>Eleventh Circuit" based on that 1974 case. He pointed out that what
>James had done was still a crime under Alabama state law, and
>imagined a hypothetical conversation between two folks who were
>especially savvy about the makeup of the federal judiciary and its precedents:
>
>"Jim: Honey, I've been thinking, we ought to move to Alabama.
>
>"Liz: But Sweetheart, I thought you liked living in Colorado.
>
>"Jim: I do, Sugar, but there's a problem.
>
>"Liz: What's troubling you, Sweetie?
>
>"Jim: Well, Punkin', Colorado is in the Tenth Circuit, and its
>federal appeals court has held that if I wiretap your private
>conversations without your knowledge and consent, I may have to pay
>you damages if you find out and sue me in federal court. But if we
>move to Alabama, which is in the Eleventh Circuit, its Simpson
>decision will allow me to invade your privacy electronically without
>having to worry about your having a civil claim against me in federal court.
>
>"Liz: But Honeybun, doesn't Alabama's criminal eavesdropping statute
>make it a crime to covertly record conversations without the consent
>of at least one of the parties to the conversation?
>
>"Jim: It does, Snookums, but all I'm worried about is the potential
>civil cause of action in federal court, not having to serve time in
>the state slammer.
>
>"Liz: You'll look so good in jailhouse stripes, my Love. When do we move?"
>
>Yes . . . it's hard to imagine a conversation like that between a
>husband and wife - even if both of them were lawyers.
>
>Glazner v. Glazner, 347 F.3d 1212(11th. Cir.2003)
>
>Frank Zotter is a Ukiah attorney
>
>
>Mitch Davis
>TSCM/Special Operations Group
>20 Music Square West,Suite 208
>Nashville,TN 37203 USA
>615 251 0441
>Fax 615 523 0300
>mit..._at_tscmusa.com
><http://www.tscmusa.com>www.tscmusa.com
>"maintaining a higher degree of excellence"
>******************************
>Tools for investigators at www.covertworx.com
>CONFIDENTIALITY NOTICE: This communication may contain privileged or other
>confidential information, protected from disclosure under applicable law. If
>you are not the intended recipient, or the employee or agent responsible for
>delivering the message to the intended recipient, or if you believe that you
>have received this communication in error, please do not print, copy,
>retransmit, disseminate, or otherwise use the information contained herein.
>Also, please indicate to the sender that you have received this e-mail in
>error, and delete the copy you have received. Thank you.
>
>

----------------------------------------------------------------------------------------------------
 World Class, Professional, Ethical, and Competent Bug Sweeps, and
Wiretap Detection using Sophisticated Laboratory Grade Test Equipment.
----------------------------------------------------------------------------------------------------
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 Granite Island Group Fax: (978) 546-9467
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<html>
<body>
It reminds me of a situation a few years back where a husband and wife in
a single party consent state got into a divorce situation and had a long
history or eavesdropping/wiretapping each other (legally), and also on
outsiders (quasi-illegally). Both parties were recording each other on
the phone, making threats, promised and such and then filing and cross
filing the transcripts with the courts. One of the parties had an
attorney who was pretty sharp and had the client make their calls to and
from a nearby state that had an all-party consent state, the attorney
also had his client not record the conversations but instead had another
person in the room (all party consent) witness the conversation over the
speaker phone and keep written notes. The person in the other end (single
consent state) of course made the recording like they always did and
submitted them to into the court filings, the attorney on the other side
brought to the courts attention the issue of the calls in question
crossing state liens, and the conflict of laws over the one party/two
party issue. 
With everything being equal, the behavior being equal, and everything
pivoting on both side doing things equally egregious to each other the
final tipping point was the criminal action of the person in the one
party state recording the person in the all party state. While the case
didn't get to criminal court, the divorce proceedings took a decided
turn and many tens of million of dollars went to "victim" on
the other side of the scales of justice. 
-jma 
 
 
At 02:14 PM 1/27/2007, TSCM/SO Group wrote: 
<blockquote type=3Dcite class=3Dcite cite=3D"">
<a href=3D"http://www.ukiahdailyjournal.com/editorial/ci_5023913">
http://www.ukiahdailyjournal.com/editorial/ci_5023913</a> 
  
Judicial Follies 
Ukiah Daily Journal Staff 
Article Last Updat=
ed:
01/16/2007 09:16:05 AM PST 
  
by Frank Zotter Jr. 
 
Love, Lies, and Audiotape 
 
Compared to other branches of government, t=
he
judiciary is a staid, almost reflexively polite group. But it's also an
offshoot of the legal profession, whose primary task is to work with the
sometimes angry disputes that might otherwise be resolved not in a
courtroom but in the street. And sometimes, those disputes can spills
over into the dealings of the judges with one another - leading to some
nasty exchanges between the judges. Consider, for example, the dispute
between James and Elizabeth Glazner of Alabama, whose unhappy marriage
led them to the Eleventh Circuit, the federal appeals court that oversees
Alabama and some other states in the deep South. 
 
The Glazner's divorce was pending in the la=
te
1990s, but they were still living in the same house. James put a
recording device on a telephone in their home, and it recorded a number
of conversations between Elizabeth and third parties. She filed a lawsuit
against her (soon-to-be-ex-) husband in federal court for violating a
federal law that made wiretapping illegal. 
 
The problem, as she discovered, was that a
1974 case, Simpson v. Simpson (no . . . not those Simpsons) that was
still binding in the Eleventh Circuit, had created an "implied
exception" to the federal law for "interspousal
wiretapping." (The judges apparently thought that married folks
might have good reasons to bug their spouses, so that they couldn't sue
each other when the other party - like 
<div align=3D"center">  
</div>
Elizabeth - found out.) The first three judges who heard the case in 2002
agreed and upheld the dismissal of Elizabeth's case. 
 
But then a larger panel of the Eleventh
Circuit took up the case again, and decided to revisit that 1974 decision
to decide whether it had been correct. This time, in 2003, a majority of
the judges who heard the case decided that the 1974 case was wrong - the
wiretapping law had no explicit exception for spouses, and they not only
overruled that case, but also made their decision retroactive. This meant
that even though what James had done hadn't been illegal (for a damages
lawsuit) when he did the wiretapping, Elizabeth's case against him could
go forward. 
 
Three judges dissented, being particularly
troubled that James might well have to pay damages for something that, as
they put it, "was clearly lawful under the pertinent federal law in
the Eleventh Circuit when he committed the act." The judge who wrote
the opinion even added, "I am not trying to be facetious; but before
today, some spouses might have chosen to live in the Eleventh Circuit
because they could wiretap their own telephone without being liable under
federal law. Even if we think it unlikely that someone would live in our
Circuit to avoid liability under federal law for wiretapping their
spouse, it is our job to ensure that someone cannot be punished
retroactively for doing so, as the act was clearly lawful." 
 
Another judge, who agreed with the majority=
,
decided to respond to this suggestion that a couple might have chosen to
live "in the Eleventh Circuit" based on that 1974 case. He
pointed out that what James had done was still a crime under Alabama
state law, and imagined a hypothetical conversation between two folks who
were especially savvy about the makeup of the federal judiciary and its
precedents: 
 
"Jim: Honey, I've been thinking, we
ought to move to Alabama. 
 
"Liz: But Sweetheart, I thought you
liked living in Colorado. 
 
"Jim: I do, Sugar, but there's a
problem. 
 
"Liz: What's troubling you, Sweetie?
 
 
"Jim: Well, Punkin', Colorado is in th=
e
Tenth Circuit, and its federal appeals court has held that if I wiretap
your private conversations without your knowledge and consent, I may have
to pay you damages if you find out and sue me in federal court. But if we
move to Alabama, which is in the Eleventh Circuit, its Simpson decision
will allow me to invade your privacy electronically without having to
worry about your having a civil claim against me in federal court. 
 
"Liz: But Honeybun, doesn't Alabama's
criminal eavesdropping statute make it a crime to covertly record
conversations without the consent of at least one of the parties to the
conversation? 
 
"Jim: It does, Snookums, but all I'm
worried about is the potential civil cause of action in federal court,
not having to serve time in the state slammer. 
 
"Liz: You'll look so good in jailhouse
stripes, my Love. When do we move?" 
 
Yes . . . it's hard to imagine a conversati=
on
like that between a husband and wife - even if both of them were lawyers.
 
 
Glazner v. Glazner, 347 F.3d 1212(11th.
Cir.2003) 
 
Frank Zotter is a Ukiah attorney 
  
  
Mitch Davis 
TSCM/Special Operations Group 
20 Music Square West,Suite 208 
Nashville,TN 37203 USA 
615 251 0441 
Fax 615 523 0300 
mit..._at_tscmusa.com 
<a href=3D"http://www.tscmusa.com">www.tscmusa.com</a> 
"
maintaining a higher degree of
excellence" 
****************************** 
Tools for investigators at
<a href=3D"http://www.covertworx.com/" eudora=3D"autourl">
www.covertworx.com</a> 
CONFIDENTIALITY NOTICE: This communication may
contain privileged or other 
confidential information, protected from disclosure under applicable law.
If 
you are not the intended recipient, or the employee or agent responsible
for 
delivering the message to the intended recipient, or if you believe that
you 
have received this communication in error, please do not print,
copy, 
retransmit, disseminate, or otherwise use the information contained
herein. 
Also, please indicate to the sender that you have received this e-mail
in 
error, and delete the copy you have received. Thank you. 
  
 </blockquote>
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nbsp;           &nbs=
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spy. 
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