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August 2015 - The Case of the Devious Defecator

by Richard W. Millar, Jr.

I just received an announcement from the American Bar Association that its publishing department is getting into the fiction business with new editions of Erle Stanley Gardner’s Perry Mason novels. The first one unleashed the criminal lawyer par excellence on the world—to the eternal dismay of District Attorney Hamilton Burger, who had a perfect losing record against the redoubtable Mr. Mason, aided always by his faithful secretary Della Street and investigator Paul Drake. Virtually every case went to trial, with the murderer breaking down on the stand under Mr. Mason’s withering cross-examination.

My father loved reading mysteries. So much so, in fact, that the act of shaving could easily take him an hour or so providing fodder for many “comments” from me and my brother as we were growing up. He shaved sitting down with a Remington electric razor in one hand and Ellery Queen’s Mystery Magazine in the other, finding spots he missed by feel rather than looking in a mirror, as that would require putting aside his reading material. He was a great fan of Gardner, not only of his Perry Mason series, but other books under the pen name A. A. Fair.

I followed suit, first with the Hardy Boys and thence on to Gardner and many others. I have probably read all the Mason stories, some more than once, as they all start with the title, “The Case of ... ”—the problem was that all I ever remembered was “The Case of ...” part, and could never remember the rest of the titles, so I was always buying a paperback (25 cents), and then finding I had already read it. (The publishers also changed the covers of the same book from edition to edition just to lure people like me into buying the same one over and over again, but I digress.)

So you can imagine my thrill when I came across an opinion which referred to “the mystery of the devious defecator.” It brought my childhood back—the “mystery” part, not the “defecator” part, although I would have to concede the last part caught the attention of my increasingly juvenile mind.

It also brought to mind the way some judicial opinions come up with euphemisms to avoid crudity. One of the few memories of cases I read in law school involved a horse “evacuating his bowels.” I remember nothing else about that opinion, but until the hospice people come, I will remember that phrase. I have groomed horses, ridden horses, and otherwise been around them, and I would not in a million years have come up with that phrase to describe that activity.

In any event, it seems that a company called Atlas Logistics operated warehouses to store grocery products that I would hope were kept in, shall we say, a clean environment. Alas, Atlas had a really big problem—one that I am betting it didn’t think to address in its personnel manual. “A mystery employee began habitually defecating in one of its warehouses.”

“The defecations occurred numerous times and necessitated the destruction of grocery products on at least one occasion.” I may be slow on the uptake, but that tells me we are not talking about the restroom here.

Well, Atlas did what every red-blooded American corporation faced with a pooping problem would do: it asked its “Loss Prevention Manager,” one Don Hill, to investigate. (I am guessing that the first thing Mr. Hill did was consult his employment manual to see if he really did sign on for this, but again I digress.)

Mr. Hill checked the timing of the “deposits” with employees’ schedules and came up with a list of at least two suspects: Mr. Jack Lowe and Mr. Dennis Reynolds. The opinion doesn’t say if there were any female suspects, but it would not surprise me if management thought this was a “guy thing.” Mr. Hill then hired, and I swear I am not making this up, Specklin Labs, to do a DNA comparison of Mr. Lowe and Mr. Reynolds on the one hand, and the poop on the other hand. (I just crossed DNA inspector off my lists of jobs I might want, which I promise is my last digression.)

Without getting into the DNA process, which read like a nightmare repeat of part of the O. J. trial, Mr. Lowe and Mr. Reynolds were clean, so to speak, and their DNAs were no match.

They, in turn, sued Atlas, which is how this ended up in court, for violation of something called the Genetic Information Nondiscrimination Act, which “generally prohibits employers from requesting genetic information from its employees.” I doubt the folks in Washington who write these laws had this situation in mind, but the district court granted Mr. Reynolds and Mr. Lowe summary judgment on liability. A trial will go forward on damages.

Meanwhile, the mystery is still a mystery and without the Specklin Lab people I don’t know how Mr. Hill will find his match. (I also don’t know how the magazine designer will do the artwork to accompany this article.)

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.

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