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Law News & Opinions

High Crimes & Misdemeanors

All My Exorcists Live in Texas

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By Alan J. Levine, Attorney

Surely there’s no creepier personage at a Halloween party than the guest who attends costumed as an attorney. Thoroughly trained to assist their clients with life’s unpleasantries, even when dealing with matters merely perfunctory, the occasion to hire a lawyer is usually not cause for celebration. Some lawyers – i.e., estate planning attorneys – even make their “living” writing prose for the dead – or if not dead, those at least suspicious their present existential condition may be passing. But seldom do attorneys of any variety encounter cases dealing substantively with the spirit world. Yet when it happens, it need not be a probate matter. In fact, be they rooted in the apparently paranormal or patently psychological, whether involving ghosts or more unsavory denizens of the Otherworld, the variety of case types involving supernatural weirdness runs the gamut, including real property, copyright, personal injury and criminal matters.

Ex Ghost Facto Trumps Caveat Specter

             Just west of Tarrytown, New York, across the Hudson River, where once a headless Hessian trooper pursued a hapless schoolteacher through the lonely glen of Sleepy Hollow, lies the Village of Nyack. There, in the 1960s, the five-thousand square foot Victorian home at 1 La Veta Place, vacant and in a state of disrepair, was purchased by George and Helen Ackley. The neighborhood kids informed the Ackleys they’d just purchased a haunted house. The Ackleys came to believe the kids. Helen published a story about the hauntings in Reader’s Digest. And she promoted it as one of five homes on Nyack’s walking tour of haunted houses.

            Among the astonishing things reported by the family, a presence, perceived as female, would come into the bedroom of the Ackley’s daughter Cynthia every morning to shake her bed, waking her for school. Being a considerate ghost, when Spring Break arrived, Cynthia announced before retiring for the night, as there was no school the next morning, she wanted to sleep in. Her bed did not shake the next morning.

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            Not merely useful, they were generous ghosts to the Ackleys. Coins, silver sugar tongs, and baby rings for newly born grandchildren, spontaneously appeared. Helen saw one of the ghosts looking on approvingly as she painted the living room. Cynthia’s husband, Mark, reported hearing conversations in otherwise empty rooms. One night, while in lying bed with Cynthia, back to the outside edge of the mattress, Mark heard the door creak and floorboards squeak. Next, he felt someone sit on the edge of the bed and lean against him. Nearly frozen, as if he’d been transported into Henry Fuseli’s painting “The Nightmare,” Mark was able to turn his head just enough to see a woman looking at him.

            In 1989, with local property taxes increasing, Helen decided to sell the house and move to warmer climes. Jeffrey and Patrice Stambovsky of New York City put down $32,500 of the $650,000 purchase price. But, Helen’s passion for promoting her preternatural premises had passed. She never disclosed to potential buyers the presence of her home’s other inhabitants. Only after a local architect commented, “Oh, you’re buying the haunted house!” did the Stambovskys learn of their new residence’s reputation. Jeffrey was fine accepting this prior existing condition. Not so Patrice. Forsaking exorcists, lawyers were hired.

            In overruling the lower court’s denial of the Stambovskys’ rescission action, Justice Israel Rubin found while Helen had, in the past, done much to market her haunted house, the Stambovskys could not have been expected to divine the presence of poltergeists with an ordinary and reasonable home inspection, let alone “unearth the property’s ghoulish reputation in the community.”[i] Justice Rubin estopped Helen from denying the existence of ghosts in the house and held “as a matter of law, the house is haunted.” Furthermore, one of the conditions of this “most unnatural bargain,” now unstruck by the Court, was that Helen was to deliver to the Stambovskys a “vacant” house. While not ruling on whether the complained of phenomena were ultimately “parapsychic or psychogenic,” the Court remained doubtful that said condition was met. Thus, an important principle of jurisprudence was established: ex ghost facto trumps caveat specter – or, a buyer need not beware of a prior existing apparition. 

Things That Go Bump in the Copyright 

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            Not enough scary stories exist for horror movie-makers to busy themselves without having to steal from one another. But, as with paranormal perception, sensitivity to trademark and copyright infringement is a trait not all have in equal measure. Thus, that of which the auteur and their lawyer so clearly discern, often the court remains indefatigably skeptical.

            William Wirt Winchester made his fortune in guns. After his death, William spoke to his wife, Sarah. Through a medium, he told her his demise, as well as their infant daughter’s, was because the family was haunted by the ghosts of people killed with his rifles. The only way to appease these restless spirits was for Sarah to leave Boston and build them a house. Thus, in 1884, Sarah commenced building Llanada Villa, her four-and-a-half acre, 160-room mansion in San Jose, California. Following no master plan, construction on the monstrous Victorian continued round the clock until Sarah’s death on September 5, 1922. With the command, from the spirit world, never halt construction on Llanada Villa lest she die, the house has windows opening into walls, doors leading to precipitous drops, and stairs disappearing into ceilings.

            In 2009, Global Asylum, Inc. decided to make a low-budget horror film ostensibly based on Sarah’s story, shooting on site. But when Global inquired about rates to film there, the Winchester House informed them a contract had just been signed with Imagination Design Works, Inc. “for the exclusive rights to the Winchester story.”[ii] Andrew Trapani, director of the critically panned, major motion picture The Haunting in Connecticut, would direct Imagination’s effort to tell the Winchester tale. But Global struck first releasing the otherwise forgettable Haunting of Winchester House. The Winchester House brought several causes of action including trademark infringement, unfair competition, and interference with contractual relations. Global pled the First Amendment, moving for summary judgment. The trial granted Global’s motion which was upheld.

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            Back in 2012, the Winchester House and Imagination teamed with the storied and newly re-invigorated British film company, Hammer, to give us their long promised version of Sarah’s saga. In addition to the 1966 anthropological case study One Million Years B.C. starring Raquel Welch, back in its heyday, Hammer worked with distinguished actors like Christopher Lee and Peter Cushing to give discerning moviegoers the classics Death in High Heels (1947), The Abominable Snowman (1957), The Curse of Frankenstein (1957), Dracula (1958), Revenge of Frankenstein (1958), The Mummy (1959),  The Two Faces of Dr. Jekyll (1960), The Curse of The Werewolf (1961), The Plague of The Zombies (1966), The Devil Rides Out (1968), The Vampire Lovers (1970), Lust for A Vampire (1971), Dracula A.D. 1972 (1972), and Frankenstein and The Monster from Hell (1974). This is meant to be an indicative, not exhaustive, list of Hammer’s great cinematic legacy.

            Now a museum and conference center, to this day, visitors to and employees of the Winchester House report all manner of paranormal activity. The sounds of invisible construction are heard. Some have seen Sarah’s workers – unwilling or unable to retire – still plying their craft. And in the rooms she frequented, Sarah still makes her presence known as she sees fit. 

Possession is Nine-Tenths of the Law 

            The Devil has appeared in American courts since the Nation’s founding. In Pennsylvania, during the Revolutionary War, poor Abraham Carlisle, “not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil,” worked “to raise again and restore the government and tyranny of the king of Great Britain.”[iii] Though sedition became passé, Old Scratch continued to work in the trenches of men’s souls. In 1832, one Jesse Mitchell was “moved and seduced by the instigation of the devil” to plant an axe in one Samuel Wilson, causing Wilson’s immediate demise.[iv]

            Of late, the Devil has progressed from moving, seducing and instigating to the outright taking over of minds and bodies. Within the Catholic Church, exorcism is the last step in a long evaluative process that includes psychological and medical testing. Chemical addictions, and physical and sexual abuse, may manifest later as cries for help leading the sufferer, or other observers, to erroneously see demonic involvement where none exists. Father Gary Thomas, the exorcist upon whom the 2011 film The Rite is based, cautions most people brought to him for exorcism “do not have issues of the diabolical – they have issues of mental health.” However, Father Thomas cautions a small number of cases he sees cannot be treated solely, or at all, through medicine or psychiatry. Yet even with training in spiritual dispossessory actions, would-be evictors may find themselves criminal defendants after a botched exorcism.   

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            Some consider Ouija boards to be a source of fun used by preteens at slumber parties – a veritable adolescent rite of passage – others consider them dangerous conduits to dark occult forces.[v] Rusk County, Texas became witness to horror in 2008.[vi] After beginning to date Blaine Milam, the previously outgoing, well-kept Jessica Carson became the opposite. The two began using a Ouija board, communicating with their dead fathers. Of supernatural origin or otherwise, after using the Ouija board, Jessica and Blaine descended into madness.

            Jessica came to believe Blaine was possessed. Blaine admitted a devil would come into him, but maintained once gone, he was then able to speak with God. God told him Jessica’s 13-month old little girl, Amora, too was possessed. Jessica asked what could be done. Blaine said God would show him how to perform an exorcism. Subsequent events were anything but holy. The murder of Amora by Blaine, and Jessica’s acquiescence in it, was in the truest sense of the word – evil. Today, Jessica serves a life sentence without possibility of parole. Blaine has been sentenced to death by lethal injection. This past May 2018, Blaine’s appeal of his sentence was denied by the U.S. Court of Appeals for the Fifth Circuit. His execution date has not been set.

            Two hours west of Rusk County, near Dallas-Fort Worth, is Colleyville. In the summer of 1996, during youth activities, a young member of the Pleasant Glade Assembly of God reported seeing a demon near the church. The youth minister determined demons were about the premises. The children anointed everything in the church with holy oil. Other efforts to cast out demonic entities began. However, one youth, Laura Schubert, started manifesting behaviors church leadership, including senior pastor Lloyd McCutchen, found consistent with possession. Pastor McCutchen, maintaining “[e]vil spirits can move and can torment persons,” also acknowledged “a young dramatic person such as Laura Schubert can . . . fake the entire experience in order to [get] attention.”[vii]

            Nevertheless, Laura underwent exorcism. As she was held down on the floor and prayed over, it was demanded “the Devil leave Laura’s body.” Laura suffered carpet burns, scrapes and bruises all over her body. But the subsequent emotional injuries proved far worse than the physical.

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            The Schuberts sued the church for, among other things, gross negligence, intentional infliction of emotional distress, false imprisonment, assault, and battery. A jury awarded Laura $300,000 for her trauma. However, a divided Supreme Court of Texas dismissed all claims finding Laura’s injuries, physical and emotional, firmly rooted in a religious controversy protected from judicial interference by the Free Exercise Clause.

            Yes, the Devil is familiar with the legal world. Looking remarkably like Al Pacino, in the 1997 film The Devil’s Advocate, the Archfiend opined managing a law firm staffed with demon lawyers is an excellent way to further His dastardly designs. But hasn’t every attorney, even those serving the most worthy causes and deserving clients, at one time or another enjoyed playing Devil’s Advocate? And – if to some – trick-or-treaters costumed as attorneys prove every bit as terrifying as those dressed as devils, isn’t that understandable? But what of it? At least we clean-up nicely. Dressed for court, we lawyers look far better than shambling, leprous zombies, sickly pale vampires, or green-skinned, yellow-toothed witches.

            So Happy Halloween Counsel. This is our holiday.

[i] Stambovsky v. Ackley, 572 N.Y.S.2d 672, 676 (1991)

[ii] Winchester Mystery House, LLC v. Global Asylum Inc., 210 Cal. App. Rep. 579, 585 (2012)

[iii] Respublica v. Carlisle, 1 U.S. 35 (Court of Oyer and Terminer 1778)

[iv] Mitchell v. State, 16 Tenn. 514 (Tenn., 1835)

[v] The nefariousness of the Ouija Board is supported by the fact that the modern incarnation of this ancient ‘automatic writing’ device was patented in 1890 (U.S. Patent 446,054) by Elijah Bond – an attorney!

[vi] Carson v. Texas, No. 06-11-00112-CR, Ct. of App. 6th Dist. Texarkana (2013)

[vii] Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 11-12, Court of Appeals 2nd District Ft. Worth (2008)

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