What Forest? All I See is a Bunch of Trees

From the Annals of Creative Lawyering (yes, that's "annals" with two n's) comes a pair of gems this morning. First up, it seems that all misappropriations of government resources are not created equal:

A Wisconsin jailer is off the hook for looking at Internet porn on the job -- he was just surfing online poker, instead.

An arbitrator has ruled Rock County didn't have proper cause to fire Dana Fichtner. Fichtner says the porn came from unwanted pop-up ads linked to the poker site.

The arbitrator agreed the county didn't have sufficient evidence that Fichtner intentionally accessed the X-rated Web pages. He could be back on the job next week, and is eligible for back pay and benefits, too.

Excellent. I'm reminded of an exchange between Dan Fielding and Bull Shannon on Night Court (which is, as confirmed yesterday by Bryan Curtis, the mythology of our generation) -- Dan confronts Bull and demands to know whether he slept with Dan's sister; Bull is indignant at the suggestion and explains that they "just had sex."

Next, attorneys for everyone's favorite drunk America West pilots (no, the other ones) explain that the qualifications for flying a jet aircraft include seeing, hearing, walking, and talking, and that by "include", they mean "are limited to":

Two former America West pilots charged with operating a plane full of passengers while drunk may have consumed alcohol and smelled of alcohol but they could still walk and see, their lawyers told a jury on Monday.

Pilots Christopher Hughes and Thomas Cloyd were hauled off an Airbus 319 in Miami on July 1, 2002, and charged with operating a plane under the influence of alcohol.

They were in the cockpit as the aircraft was being towed to the runway for takeoff from Miami International Airport on a flight to Phoenix, Arizona. But after a security screener reported the pilots were red-eyed, flushed and reeking of alcohol, air traffic controllers ordered the plane back to the gate.

Police said Cloyd's blood-alcohol reading was 0.091 and Hughes' was 0.084. Florida law assumes a vehicle operator, including the operator of a plane, to be drunk if his blood alcohol level is 0.08 or higher, and state authorities charged them with operating an aircraft while intoxicated.

The pair had played pool at a bar until 5 a.m. before the 10:30 a.m. flight and consumed 350 ounces of beer between them, the equivalent of nearly 22 pint glasses (10 litres), after earlier sharing a bottle of wine with two flight attendants, Assistant State Attorney Hillah Katz told jurors in opening statements at their trial.

. . . .

Defense attorneys said the pilots should not be convicted because they were not "operating" the plane at the time in question. The aircraft was being towed from the gate and the tug truck driver had control of the aircraft, they said.

"They couldn't endanger anyone as long as they were connected to that tug," said Cloyd's attorney, Dan Foodman.

The fact that the pair had consumed alcohol the night before and that they smelled of alcohol did not mean they were impaired, the defense attorneys said.

"Mr. Hughes was able to see, hear, walk, talk, etcetera," attorney James Rubin said of his client.

Has anyone tested this attorney's sobriety? For those of us who haven't yet saved enough box tops to get a pilot's license and a position with America West, perhaps we can still use this information in a pinch -- "While I may be legally drunk, Officer, I was able to talk my buddy into letting me drive, walk to my car, see your flashing lights, and hear your siren. Moreover, I'm not operating this car; I could not possibly endanger anyone so long as it's still wrapped around this tree."