U.S. v. W.R. Grace (9th Cir. - May 15, 2008)
Nice dissent!

Judge Hawkins writes an extremely well-written dissent to the majority's en banc decision. So good, in fact, that you should read it at length. It really is exceptionally well done.

I say that, mind you, even though I may well have been in majority on this one. Or at least have somewhat leaned that way as a practical matter.

The issue is about interlocutory appellate jurisdiction over suppression order in criminal cases. Section 3731 permits the United States to appeal an order of the district court that, inter alia, suppresses evidence in a criminal case upon the filing of a certification by the U.S. that the suppressed evidence is important and the appeal not taken for the purpose of delay. So the question then becomes whether that bare certification alone creates jurisdiction or whether those alleged facts actually have to be true.

For 30 years or so, the Ninth Circuit has held the latter. But the en banc court overrules this prior circuit precedent and says that the plain text of the statute suggests that the certification itself is sufficient. The dissent says that this is both a misreading of the statute as well as very dangerous, since it effectively makes the U.S. its own judge of the merits, without oversight by a neutral judiciary. But the majority says that we can trust U.S. Attorneys to be honest, and that if they're not, there are things we can do to expedite the appeal or get them in trouble.

It's a good debate, especially since the policy analysis focuses a lot on whether it makes sense to give carte blanche to bare, unsupported certifications of a party. Personally-- and I admit my own prejudice here -- I think that Judge Fisher makes a darn good point in the majority opinion that since the relevant U.S. Attorney has to get permission from the Solicitor General to appeal, we can be pretty confident that there's some real oversight going on. Personally, I tend to trust the SG's office, which goes to great lengths to preserve its credibility. Perhaps I'm a fool in that regard. But I like 'em. And trust that office a lot, lot more than any individual U.S. Attorney's Office. So I think that, as a practical matter, what Judge Fisher says makes sense to me.

But it does give Judge Hawkins an opportunity to make a variety of really excellent points, and in an extremely wonderful way. For example, in footnote 9, Judge Hawkins says the following, which I totally loved: "While I have great respect for the author of the Opinion distinguished
prior service as a senior Department of Justice official [Judge Fisher was an Associate Attorney General] , I wonder if recent experience might suggest that the comfort he finds in the supervision of Main Justice officials over the activities of United States Attorneys might not always be well placed. See John McKay, Train Wreck At the Justice Department: An Eyewitness Account, 31 Seattle U. L. Rev. 265 (2008)." Wonderful! In the same vein, here's the penultimate paragraph of the dissent: "Like the majority, my hope and expectation is that the government will act wisely and carefully when deciding whether to pursue an interlocutory appeal, and that its unchecked ability to do so will not diminish the independent judgment of district judges in the making of important evidentiary rulings. Unlike the majority, though, I would measure that confidence with caution. To paraphrase a former President, I would “trust, but verify.” [quoting President Reagan]."

How awesome is that?
- posted by Shaun Martin @ 3:14 PM

 
People v. Bordelon (Cal. Ct. App. - May 15, 2008)
I spent my morning reading the California Supreme Court's opinion in the marriage cases. All 160-plus pages of it (including the various concurrences and dissents). That's obviously the judicial highlight of the morning -- indeed, probably of the year or decade -- but since it's a high-profile case about which much ink will already be spilled, I doubt I'd have anything unique to add to the debate. But that's how I spent my morning, and I felt it to be productive (and interesting) use of my time. Which you can do, I might add, when you're an academic and don't have to bill it. Which is nice. Very, very nice.

Meanwhile, on a more pedestrian level, remember the elderly inmate in The Shawshank Redemption -- his name was Brooks Hatlen -- who almost kills a friend and fellow prisoner (Heywood) in order to stay in prison and, after being released, ends up hanging himself because he can't deal with the outside world? Here's the real life analogue. Someone who was similarly (in the words of Morgan Freeman) "institutionalized" by his stay in prision -- or simply sufficiently mentally ill -- that he was desperate to go back. So much so that within a week of being released, he ineptly robbed the same bank -- and same teller -- that he initially robbed in a seemingly deliberate attempt to be caught and returned to prison. And, if that was indeed his goal, succeeded with flying colors.

It happens. And it's not a defense to robbery that you wanted to get caught.

At least you can feel self-actualized, I guess. And better to be you than Brooks Hatlen, I imagine.

Now I'll spend the rest of my day being a pro tem. Hearing much, much less significant cases than whether there's a right to gay marriage or whether a defendant should be returned to jail.

But, still, every dispute is important to the participants. And they have the right to be carefully heard. So that's what I'll do.

A big law day -- on both a macro and micro level -- for our hero.
- posted by Shaun Martin @ 11:41 AM

 
Buono v. Kempthorne (9th Cir. - May 14, 2008)
Politics matters. But, sometimes, it doesn't. That's one lesson you might get from the lineup in this opinion and resulting en banc call.

At issue is a big, prominent Latin cross that sits atop Sunrise Rock on federal land in the Mojave National Preserve. The Ninth Circuit held back in 2004 that the maintenance of that cross violated the Establishment Clause, and one month after the oral argument in that case, sensing the writing on the wall, Congress passed a statute that would transfer ownership of the cross -- and a tiny parcel of land upon which it sits -- to a private party (the VFW) in order to keep the cross but "cure" the violation. After the transfer began to progress, on remand, the district court held that this manipulation didn't solve the problem, and that there was still an Establishment Clause violation. Which in turn spawned the (predictable) second appeal.

Judge McKeown wrote for a unanimous panel that, yep, the district court was correct, and that creating "a little donut hole of land with a cross in the midst of a vast federal preserve" didn't negate the Establishment Clause violation, especially given the (decidedly non-neutral) conditions of the transfer. At which point, in light of the politically sensitive (and high-profile) nature of the dispute, there was the predictable call for a rehearing en banc.

Full disclosure: I think the panel was clearly right on this one. And, indeed, the en banc call fails. But who dissents from the denial? Mostly who you'd predict, of course. Judge O'Scannlain authors the dissent, and it is a very good one -- indeed, both in style and substance it reads like a petition for certiorari, focusing on circuit splits and national importance, as well as the merits. Which, obviously, is deliberate. Who joins the dissent? The usual reliable conservatives, including Judges Bybee, Callahan, and Bea. As well as Judge Tallman, who's a Clinton appointee but who's joinder on this one is hardly surprising.

But what's equally interesting is who's missing. None of the strong libertarian-leaning (and somewhat more, artfully put, "academic") conservatives sign on. Chief Judge Kozinski doesn't join, which is not too surprising, as he wrote the original opinion back in 2004 (though that one was deliberately and tellingly phrased in terms of precedent rather than his own views). Nor does Judge Kleinfeld or Judge Clifton. Even Judge Rymer doesn't join the dissent, nor do the three most recent appointees (Judges Smith, Ikuta, and Smith). The latter may well be explained by their roles (e.g., newness on the court), which may make them reluctant to stand up so quickly and publicly dissent from the denial in a case like this. Still, both who joins the dissent, as well as who doesn't, in this one is interesting. And, I think, says a lot about at least some of the personalities and predelictions on the court.
- posted by Shaun Martin @ 10:48 AM

 
Center for Biological Diversity v. Rey (9th Cir. - May 14, 2008)
This is not Judge Noonan's finest work.

I understand that it's a review of a denial of a preliminary injunction, and sometimes we want to get these things out quickly. Especially when, as here, we reverse the denial. I also appreciate an effort to write a little more informally. That doesn't bother me at all.

But when I read the opinion, it looked somewhat slapped together. Indeed, as I was reading it, I honestly thought that it had been written in two or three days, rather than over two months after oral argument.

And while I appreciate short, punchy sentences, and even a rhetorical device or two, the style that Judge Noonan employs here just doesn't work for me. Passages like: "Sell trees to loggers. Use the money to clear areas of what is potential fuel for fire. The solution has a secondary benefit: what the loggers cut can, at least in part, be timber that was potential for fire. In one sale, a fire hazard can be removed and the USFS paid so that it can remove the fuel of future fires. Two for one always has an attractive ring. But are there no alternative ways of getting money to do the clearing that is imperative? Obviously, there may be. First of all, there is the USFS’s own budget. Does that budget contain any funds that could be devoted to fuel removal? Is every one of its activities so necessary and so tightly allocated that no money could be shifted? We do not know the answer because this alternative has not been explored. Suppose that the USFS and its parent, the Department of Agriculture, cannot spare a dime. What then? Appropriate appropriations come from Congress. The work of fire prevention is work of the first importance. If the USFS does not have enough, why should not Congress be asked to give it more?"

To me, these aren't very strong arguments, but are rather merely a series of unanswered questions. And are written in a way that sounds a bit more rambling than a structured discussion of the merits.

Maybe my objections are merely stylistic, and if so, perhaps it's just a difference of opinion. But for whatever reason, the opinion just didn't gell with me. And perhaps others as well.
- posted by Shaun Martin @ 10:11 AM

 
Price v. Connolly-Pacific Co. (Cal. Ct. App. - May 13, 2008)
What?! An admiralty claim filed in state court?! What in the Wild Wild World of Sports is going on here?!

But Justice Woods is correct that you are indeed allowed to have admiralty claims in state court in limited circumstances under the savings to suitors clause. So, though unusual, the case is rightly here.

There's other none-too-common aspects of the opinion as well. For example, the fact that the case involves a seaman whose lawsuit is entirely about getting bitten by a mosquito and hence contracting West Nile virus. As well as the fact that the plaintiff here lived in San Diego (La Mesa, actually) but worked in Long Beach and spent the week camping in the company's parking lot so he didn't have to commute back and forth. The opinion also contains a little description of the difference between "blue water" seamen and "brown water" seamen that I found interesting. And, no, "blue" and "brown" water seamen have nothing whatsoever to do with whatever disgusting thought just entered your head.

A neat little case.
- posted by Shaun Martin @ 12:19 PM

 
Garcia v. Brockway (9th Cir. - May 13, 2008)
"I wrote the majority opinion for the panel. Sure, Judge Fisher dissented, and he and his leftie allies may have successfully gotten the case taken en banc. Even though there was totally no circuit conflict.

But guess what? Just because you've got the votes to take the case en banc doesn't mean you're going to win once it gets there. And I got drawn for the en banc panel and Judge Fisher didn't. Plus, for me, it was a very good draw. I end up getting nearly every single vote.

So here's what I'm going to do. I'm going to assign the majority en banc opinion to myself. And I can do that 'cause I'm the Chief Judge. And guess what that majority opinion is going to say? That's right. It'll adopt in full my majority opinion for the panel. Ha! (After correcting some minor errors in the opinion and adding a more careful caveat or two than I wrote in the original opinion.)

What does that leave you with? Only the dissent of the two Carter (!) appointees -- Judges Reinhardt and Pregerson -- from my edict. Who merely adopt Judge Fisher's dissent from the original panel opinion as their own. And even though they add a couple of bonus pages of their own commentary as well, we're still left with what I originally wrote on the panel. Only this time it's a 9-2 decision instead of a 2-1.

In other words: Victory is mine!"

So sayeth Chief Judge Kozinski.

P.S. - Take off that "Dissent by Judge Fisher" from the second page of the caption. He's not on the panel.
- posted by Shaun Martin @ 11:46 AM

 
NLRB v. Lim (9th Cir. - May 12, 2008)
Want to read an opinion that's (1) about labor law, (2) not too long, (3) about a disputed $5 or so (though the principle at stake is obviously the central issue), and (4) is unquestionably a correct resolution of the merits, at least in my humble opinion?

Then check out this opinion by Judge Pregerson.
- posted by Shaun Martin @ 3:21 PM

 
In Re Holtemann (Cal. Ct. App. - May 12, 2008)
You can comingle your marital assets, and there are a variety of good reasons to do so. But if you do, they're community property. And that matters -- a lot -- in a divorce.

That's the principal message of this short-and-sweet opinion by Justice Perren. I especially liked that Justice Perren explained the rationale of the decision with a very good quote from the trial court, Commissioner Patrick Perry (in San Luis Obispo). Commissioner Perry said:

"As the trial judge stated: "Husband argues that the transmutation was limited to estate purposes only. In other words, Frank wishes to have his cake and eat it too. He argues that, in the event of either his or Barbara's death, the survivor would be able to use the Transmutation Agreement to claim the property as community property, thus obtaining a full step up in basis to the fair market value of the property at date of death, while at the same time denying the validity of the Transmutation Agreement as an instrument which created community property. Thus, when it would benefit either Frank or his estate, Frank wishes to characterize the property as community. However, when it would be detrimental to Frank, he wishes to ignore the transmutation and call the property separate."

When the lower court explains its rationale in a way that's persuasive, I like it when the Court of Appeal gives credit where credit is due.
- posted by Shaun Martin @ 12:47 PM

 
Charles Pratt Const. Co. v. California Coastal Comm'n (Cal. Ct. App. - May 8, 2008)
Even if you read the caption, I bet you can't figure out what this case is about merely from the first paragraph. Which consists, in its entirety, of the following:

"If "it's a long, long time from May to December,"1 it's an eternity from 1973 to 2008. But time, as Einstein taught us, is relative."

So what's it about?

If you guessed "The vesting of development rights upon approval of tentative maps pursuant to Government Code sect. 66498.1," you're a winner!
- posted by Shaun Martin @ 2:28 PM

 
People v. Watson (Cal. Supreme Ct. - May 8, 2008)
A drive-by gang shooting in Compton. A death sentence for murder. A unanimous decision to affirm by the California Supreme Court.

Just another day in America.
- posted by Shaun Martin @ 9:59 PM

 
People v. Tolliver (Cal. Ct. App. - April 10, 2008)
Red Jaguar. Maroon Lincoln. Same difference.

Or not.

P.S. - I'll take the former every day, thank you very much.
- posted by Shaun Martin @ 1:57 PM

 
Serrano v. Stefan Merli Plastering Co. (Cal. Ct. App. - May 7, 2008)
When I first read the caption, I thought to myself: "Why are all these amici and objectors participating? It seems from the identity of the parties to be a totally mundane case." Then I saw what the case was really about: How much court reporters get to charge for deposition transcripts. Now I understand the reason for the heavyweight participation!

It's a definite must-read for litigators. Or at least those who care at all about how much their clients have to pay in costs. The issue is whether court reporters can charge whatever they want -- however unreasonable -- for copies of deposition transcripts. We know that they can charge the noticing party whatever they want. What about the non-noticing party who wants a transcript? Here, for example, can you charge the party who wants a copy hundreds or thousands of dollars for "expediting" a transcript that the ordering party has already fully paid to have expedited? Is there any reasonability review at all, or can the reporter charge whatever the market -- as defined by the noticing (not receiving) party -- will bear?

Justice Croskey writes an outstanding answer to this question. The Court of Appeal holds that costs do indeed have to be reasonable, and that courts are able to rein in unreasonable fees pursuant to a party's request. It's an opinion that's both well-written and seems entirely right to me. There are, admittedly, some administrative problems with the resulting regime, and I doubt that challenges to transcript costs will ever become routine as a result of the relevant economics. But the alternative -- that reporters are free to charge flatly unreasonable rates, with no recourse whatsoever for the party forced to pay -- is, in my mind, simply untenable. So, if only for that reason alone, I think that Justice Croskey hits the nail right on the head.
- posted by Shaun Martin @ 4:33 PM

 
People v. Litmon (Cal. Ct. App. - April 23, 2008)
Not much today; by lunchtime, only a single opinion from the Ninth Circuit and nothing new from the California Court of Appeal. So a sleepy Hump Day.

Which gives me the opportunity to go back and write, if only briefly, about a very good opinion I read a couple of weeks ago.

I really, really like this opinion by Justice Elia. It's not only persuasive, but it is manifestly written with a sense of justice and the importance of the subject matter. Shorthand for what it says: Liberty matters. You deserve some sort of a timely hearing to challenge your involuntary commitment to a mental hospital.


I don't uniformly get a palpable sense that an opinion deeply and profoundly "gets" what Due Process means. But I do here.

Bravo.
- posted by Shaun Martin @ 12:06 PM

 
Ellis v. Arriaga (Cal. Ct. App. - May 6, 2008)
You can be a putative spouse. So you can be a putative domestic partner too. And get un-domestic partnered even if you never actually got partnered.

Seems right to me.
- posted by Shaun Martin @ 1:10 PM

 
People v. Gemmill (Cal. Ct. App. - May 6, 2008)
Want to know what the police can do -- in particular, where and how they can search a home -- when they find an unattended child wandering in the street? Then read this opinion. Which goes through all of the various cases in California that present this issue. Of which, sadly, there are quite a few.

Justice Robie authors a very good opinion here. It's comprehensive. It's moderate. It's well-reasoned. And it articulates a reasonable position that fairly attempts to balance both of the important competing interests at stake -- the privacy of the home versus the potential welfare of any occupants.

Ultimately, Justice Robie concludes that, under the particular facts here, it was reasonable for a police officer to look in a side window of the home. That counts as a search -- assuredly so -- but such a limited non-physical entry into the home was justified by the emergency aid exception. Reasonable minds might disagree about such a conclusion, but it seems a rational one, and Justice Robie's presentation of the issue is very persuasive. At least to me. (Thereafter, based upon what the police officer saw through the window -- a child playing with a plastic bag near an unresponsive adult -- the officer reasonably entered the home under the emergency aid doctrine, a result that seems entirely right.)

For you parents out there: Yet another reason not to let your young child wander alone in a street. Especially if you have a boatload of pot and meth in your house. Because the police can reasonably take a gander.
- posted by Shaun Martin @ 12:57 PM

 
People v. Williams (Cal. Supreme Court - May 5, 2008)
You can read the first ten pages of this 80+ page opinion if you'd like. But it can also be summarized by simply saying that Dexter Williams engaged in a series of events during February 1991 that constitute nothing less than a barbaric display of inhumanity.

Weirdly, though, then read the subsequent pages. In which you discover facts that are difficult to square with calling Williams a total sociopath. Facts that seem to show humanity, at least of a sort. Not remorse or deep feelings, perhaps. But something unexpected nonetheless.

Anyway, he's sentenced to death. And the California Supreme Court unanimously affirms. For reasons that are not at all surprising given both the nature of this institution as well as the facts underlying the sentence.

This is not to assert, by the way, that the California Supreme Court in the post-Bird era is totally incapable of exercising detached legal judgment in death penalty cases. It has that capacity. Indeed, on the same day the opinion in Williams came out (today), the California Supreme Court also published this opinion, in which it unanimously reverses a death sentence based upon the failure to produce exculpatory evidence.

That said, examples like the latter are relatively few and far between. And are largely limited to situations involving innocence -- either factually or as relevant to the penalty phase. Even there, the spectre of recall and electoral pressures are never entirely absent.

So an interesting duo of death penalty cases today.
- posted by Shaun Martin @ 3:21 PM

 
Brown v. Farwell (9th Cir. - May 5, 2008)
This is definitely a powerful way to begin an opinion:

"At Petitioner Troy Brown’s trial for sexual assault, the Warden and State’s (“Respondents”) deoxyribonucleic acid (“DNA”) expert provided critical testimony that was later proved to be inaccurate and misleading. Respondents have conceded at least twice that, absent this faulty DNA testimony, there was not sufficient evidence to sustain Troy’s conviction. In light of these extraordinary circumstances, we agree with District Judge Philip M. Pro’s conclusions that Troy was denied due process, and we affirm the district court’s grant of Troy’s petition for writ of habeas corpus."

It's a little less strong, however, when you read on, because at that point you realize that that "inaccurate and misleading" nature of the testimony at issue doesn't actually go to the merits of the DNA analysis, but instead relates to how those findings were presented. True, these facts were presented in an erroneous fashion -- in a manner called the "prosecutor's fallacy" -- that wrongly conflates guilt and match probabilities. And that's error, to be sure. But that a much weaker claim than I was expecting based upon the opening paragraph.

Here, for example, is the money paragraph of the opinion: "Romero initially testified that Troy’s DNA matched the DNA found in Jane’s underwear, and that 1 in 3,000,000 people randomly selected from the population would also match the DNA found in Jane’s underwear (random
match probability). After the prosecutor pressed her to put this another way, Romero testified that there was a 99.99967 percent chance that the DNA found in Jane’s underwear was from Troy’s blood (source probability). This testimony was misleading, as it improperly conflated random match probability with source probability. In fact, the former testimony (1 in 3,000,000) is the probability of a match between an innocent person selected randomly from the population; this is not the same as the probability that Troy’s DNA was the same as the DNA found in Jane’s underwear, which would prove his guilt. Statistically, the probability of guilt given a DNA match is based on a complicated formula known as Bayes’s Theorem, see id. at 170-71 n.2, and the 1 in 3,000,000 probability described by Romero is but one of the factors in this formula. Significantly, another factor is the strength of the non-DNA evidence. Here, Romero improperly conflated random match and source probability, an error that is especially profound given the weakness of the remaining evidence against Troy."

That's a fair piece weaker than the opening paragraph, eh? At least for me, I read the outset of the opinion as saying that there might well be an innocent person in prison. But when I read the rest of the opinion, I thought: "Well, yeah, I guess in theory there might be an innocent person in prison, and apart from the DNA evidence, there are indeed some holes in the case, but even after I've heard a perfectly accurate articulation of the DNA evidence, I think that Troy looks pretty darn guilty of the offense." That's a fair piece different than my reaction after the first paragraph.

Mind you, I disagree with Judge O'Scannlain, who dissents from Judge Wardlaw's opinion and concludes that even with an accurate recitation of the facts "no rational trier of fact would have changed its mind." Maybe I might not have changed my mind (maybe), but I'm not convinced that's true for everyone. It's tough, I concede, to be convinced yourself that X is true beyond a reasonable doubt and yet admit that you might be wrong: that other rational parties might find the other way. And that's a global problem whenever you're doing harmless error review, and is especially difficult in habeas cases, in which you have to add to this difficult mental gymnastics the required deference to state court findings. But, here, I think that even though I -- an alleged rational actor -- might have still voted to convict, a parallel rational actor might well have gone the other way. Which means a retrial is required.

Only when we're darn confident that a retrial would come out the same way as the originally flawed proceeding should we allow the latter to stand. I don't think that's the case here. Sure, Troy may well be convicted again at a trial in which the facts are accurately explained. But that is a result that's far, far from meaningless.
- posted by Shaun Martin @ 11:23 AM

 
Pinhoster v. Ayers (9th Cir. - May 2, 2008)
The lower court docket number is"CV-95-06240-GLT"; in other words, this case has been pending in federal court for 13 years. The appeal to the Ninth Circuit was filed in 2003, it took four years before the thing was scheduled for oral argument, and over a year after argument for the panel to issue its opinion. And the opinion, in turn, consists of three separate opinions -- one from each of the judges on the panel -- and totals 74 single-spaced pages. Oh, and the crime that gave rise to the opinion took place in January of 1982; i.e., over a quarter-century ago.

Which can mean only one thing: It's a death penalty case. And, here, the Ninth Circuit reverses the grant of penalty phase habeas relief provided by Judge Taylor.

You see a lot more reversals of habeas relief coming out of the Northern District than you do from the Central District. Chalk this up towards evening the score, I guess.

Judge Tallman writes the majority opinion, Chief Judge Kozinski concurs, and Judge Fisher dissents.
- posted by Shaun Martin @ 12:03 PM

 
Enpalm v. Titler Family Trust (Cal. Ct. App. - April 30, 2008)
I've always found perjury an interesting subject. It seems to me that it's fairly common. Even in the civil side, in which only money (rather than liberty) is typically at stake. My belief is that the typical civil case involves an extraordinary amount of "shading" by the majority of witnesses, a healthy dose of manifest exaggeration, a plethora of convenient forgetfulness, and the not-at-all-rare occasions of outright lying. And, parenthetically, that deception of this type is often rational, and increases the expected net result of a lawsuit.

So that's a problem. Which is, in part, why I found this opinion so interesting.

It contains a great debate between Justice Rubin, who authors the majority opinion, and Justice Cooper, who dissents, regarding whether Judge Biderman (up in Los Angeles) erred when he cut 90% off of the prevailing party's contractual attorney fee award because its principal party witness was a manifest liar at trial. Justice Rubin says that's okay; that the trial court may legitimately conclude that certain fee expenditures are not "reasonable" when they are based upon a client's deliberate perjury, especially if that perjury itself gave rise to the lawsuit and/or substantially complicated it. Conversely, Justice Cooper concludes that such a rule would give trial judges way too much leeway in setting fee awards and potentially unjustly punish prevailing parties.

Justice Rubin and Justice Cooper both make very good arguments. On the merits, I tend to lean a little bit in favor of the former, though that may be in part for policy (rather than doctrinal) reasons, as I believe that this is a huge problem area and one that demands at least an attempt at a solution. Admittedly, cutting a fee award doesn't really work in the vast majority of cases, most of which neither allow recovery of fees nor even get to trial. But it's a start.

Anyway, read the debate. It's a good one. And another reason to tell your clients to tell the truth. Even when you're not so sure that's really the most economically rational decision.
- posted by Shaun Martin @ 10:46 AM

 
Luce Forward v. Koch (Cal. Ct. App. - April 30, 2008)
Sure, I've been listed (as most of us have) on the counsel line in a variety of published appellate opinions. And my academic pieces are occasionally cited by courts, so my name appears there as well. But I've never been singled out by name in the text of a published opinion. So, as of today, my former student Todd Kinnear -- an attorney at Luce Forward -- has me beat on that one.

It's actually an interesting case, and mentions by name a number of other notable San Diego legal figures in the text of the opinion as well. Basically it's an opinion about challenges to arbitrators. Justice McConnell holds -- sensibly, I think -- that even though an arbitrator can be dismissed as a matter of right based upon a variety of compelled legal disclosures (significant business ties, attorney-client or familial relationship, etc.), there's no similar absolute right to dismiss an arbitrator based upon voluntary disclosures made by the arbitrator about his or her connections to various parties or counsel beyond those required by law. And this matters, since the common practice among informed arbitrators is to make as full and complete a disclosure as possible, even if it involves totally minor things that don't especially matter. To grant a party an absolute right to dismiss the arbitrator based upon those things seems wrong, and it instead seems better to strike the balance in favor of a discretionary recusal (pursuant to the judgment of the arbitrator or some other neutral) for those more minor nonmandatory disclosures.

So, here, it's an attorney fee arbitration before former Judge Haden, who works with JAMS. Not surprisingly, Judge Haden knows a wide variety of people at Luce Forward, who's suing the defendants for unpaid legal fees. So he makes a variety of disclosures, and, later on, when additional attorneys at Luce appear on various briefs, he makes additional disclosures as well, including that he was on the Board of the ABTL with a couple of them. This, as you might imagine, is fairly common in the relatively close-knit legal community in San Diego, at least amongst higher profile judges and attorneys. Defendant then moves to dismiss Judge Haden, he declines to let them do so, and then, after Judge Haden finds for Luce Forward in the arbitration, the defendant appeals on the ground that Judge Haden had an obligation to step aside.

To which the Court of Appeal demurs, saying that "Judge Haden's candor was commendable" -- always gotta love being complimented by the Court of Appeal, eh?! -- and that "arbitrators should, of course, be encouraged to err on the side of disclosure," but holding that the voluntary disclosures by Judge Haden did not give rise to an absolute right to dismiss him (e.g., would not create an impression of bias to a reasonable person). Which, as a policy matter, I think does encourage extensive voluntary disclosures by arbitrators, and I agree with Judge McConnell wholeheartedly that that's a good thing, and something that the law should advance.

My former student was mentioned multiple times in the opinion since his name was on the briefs and Judge Haden thought that he -- not those lawyers at Luce Forward with whom Judge Haden had a more extensive relationship -- was going to be the lead counsel at the arbitration. Which, I might add, would assuredly have been an equally smashing success for Luce Forward had Todd in fact been lead counsel, since he was a great student and is, I am confident, an utterly outstanding attorney. So that's the nature of Todd's brush with fame -- and, more importantly, his entrenchment in the California Appellate Report and California Reporter for all eternity.

So great job Luce Forward, great job Justice McConnell, great job Judge Haden, and great job Todd.

FULL DISCLOSURE: Especially since the underlying case is all about full and frank disclosure, I too should voluntarily reveal that I'm connected with just about every one of the participants here as well. As I said, Todd Kinnear is a former student, and I (obviously) know a variety of former students and others at Luce Forward as well. Plus, continuing on the student side, Judge Haden's son, Andrew, is a former student of mine (and, parenthetically, like Todd, is also exceptionally talented) as well. Lastly, I also know Judge Haden, who presided over a case on which I worked several years ago and who is, ironically enough, the arbitrator on an upcoming case I'm working on as well. None of which matters in the slightest, but I thought I'd mention them. Oh, one more thing. Todd's even balder than I am.
- posted by Shaun Martin @ 2:12 PM

 
People v. Semien (Cal. Ct. App. - April 30, 2008)
Some peremptory challenges that are allegedly race-neutral are, I'm fairly convinced, based upon stereotype and pretext, and shouldn't be allowed. But then there are cases like this one.

Yes, the dismissed juror was the only African-American on the panel, and the defendant was an African-American charged with very serious crimes. But the juror was a pastor of a Baptist church, dealt with homeless people a great deal, and his wife worked in the county welfare department. As the prosecutor said in justifying the peremptory challenge: “He deals with homeless, and he’s in a situation where not only is his occupation one of forgiveness and sympathy, that’s the main gist of it, he’s in an occupation where he deals with underprivileged people who are homeless who require counseling and who he talks to. And I believe that that would put him in a situation where he would be more sympathetic towards a defendant, even though there’s a jury instruction right on point that they’re not supposed to take into consideration sympathy for a defendant. I also took into consideration that his wife works for the welfare department. This has nothing to do with [the pastor’s] ethnicity. I don’t know what the ethnicity of his wife is. But between the two, the[ir] combination of occupations is very sympathetic towards -- I don’t want to use the word ‘underdog,’ just towards people who may be in a situation where people are trying to bring charges against them."

I think that makes total sense. And, like Justice Sims, would affirm.
- posted by Shaun Martin @ 12:26 PM

 
Roman v. Liberty University (Cal. Ct. App. - April 29, 2008)
We're on the Left Coast. So we don't usually see cases in which (1) Liberty University is a defendant, and (2) Jerry Falwell provides a supporting declaration.

But they happen.

At least the plaintiff's name is a classic California. Last Name: Roman. First and Middle Names: Marlon Brando.

Sorry, though; no personal jurisdiction, and we'll forum non conveniens you anyway. Enjoy Virginia.
- posted by Shaun Martin @ 3:56 PM

 
Wang v. Valverde (Cal. Ct. App. - April 29, 2008)
Cheating on your DMV test. No upside (if you're caught). But no downside either. At least if you're not criminally prosecuted.

A concise and coherent opinion by Justice Rothschild that spans a little over two double-spaced pages. Who says justice needs to be prolix?
- posted by Shaun Martin @ 12:35 PM

 
U.S. v. Stoterau (9th Cir. - April 29, 2008)
Pimp out a boy who's 14? You'll get right around the same number of years in prison.

Oh, yeah. One more thing. When you appeal to the Ninth Circuit, and ask the court to use a pseudonym rather than your real name (because otherwise everyone in prison will shank you as a child sex offender), we'll deny the motion. And publish the opinion to boot.
- posted by Shaun Martin @ 12:03 PM

 
People v. Lewis (Cal. Supreme Court - April 28, 2008)
It's been a busy m*****f***ing month. By which I do not mean that it's been busy for me personally, though assuredly it has. No, what I mean is this: Lately, the California Supreme Court has been really busy using the word "motherfucker".

How busy, you ask? How about three different opinions in less than 40 days. That's a lot of m*****f***ing.

First there was People v. Gay back on March 20th. Justice Baxter graced us with "motherfucking" in that one (check out page 7). Then there was In re Lawley on March 24th. Though Justice Werdegar coyly abbreviates the term there as "m__________r".

Then, today, there's People v. Lewis. In which you need only read the first six of Justice Kennard's 156 (!) page opinion before you see the phrase "mother fucker".

Who knew the California Supreme Court would use this phrase even more frequently than I do? :-)

Three other tangential points. Because who can get enough of m_____f___ing?

First, can't we standardize this usage? During the last 40 days, Justice Baxter writes the phrase as one word, Justice Kennard writes it as two words, and Justice Werdegar edits it. Seems to me that we should have a set usage. Profanity Bluebook, anyone?

For what it's worth, the one word version seems to be more prevalent than the two word version. At least in the California Supreme Court during the past 18 years (which was all I checked), with a ratio of 3:2. So maybe that should be our default. Though, interestingly, the uses vary not only by individual (Justices Chin and Brown, for example, only used the one word version), but also by opinion: Chief Justice George, for example, used one word thrice during this period (in 1999, 2004 and 2005), but also used the two word version as well (in 2005). And Justices Baxter and Kennard similarly varied their usage. Even Justice Werdegar changes style; she doesn't have a problem spelling it out in 2004, but in 2008 she edits it. Interesting stuff!

Second, what accounts for all this swearing? You guessed it. Quotes in death penalty cases. Of the 16 times I saw this term used, every case (save one) was a death penalty case. The sole exception was an employment discrimination case. So chalk up another downside to automatic California Supreme Court review in death penalty cases: Foul language.

Third, who's the biggest potty mouth of them all (at least in terms of this particular word)? Well, as of today, at least during the period that I reviewed, the winner and new champion is . . . Justice Kennard! She used that phrase back in 1995, 2004, 2005 (two words), 2006, and now 2008. So her five times during this period edges out Chief Justice George, with whom she was previously tied at four.

Congratulations!

Fear not, Justice Kennard: An appropriately shaped trophy is not on its way.
- posted by Shaun Martin @ 12:30 PM

 
People v. Morgan (Cal. Supreme Ct. - Nov. 15, 2007)
It's been a slow day today in the Ninth Circuit and California Court of Appeal. So not much about which I can intelligently comment. Plus my posts yesterday dragged on forever; sorry about that.

So I decided to go back and comment briefly on a case from several months ago that was in a different genre than the recent cases I've discussed. On a more visceral, rather than logical, level.

There are some people who are prototypical examples of why one -- at least emotionally, and often intellectually -- wants the death penalty. Edward Morgan is one of them.

Read the facts of his offense, as well as his prior history, at your peril. Maybe it's the extreme and pervasive violence against women. But something about what's here really strikes at my core.

And makes me, or at least a part of me, not care in the slightest what happens to the guy. To feel that he deserves whatever evil he begets.

Not the best way to feel, much less to set policy -- I know. Still. There's something there.
- posted by Shaun Martin @ 2:41 PM

 
U.S. v. Sei (9th Cir. - April 24, 2008)
Let's talk about pirates.

They exist. Not just in Disneyland. And they're bad.

Okay, I get that. The question then becomes: How can they be punished? Or, more accurately, does the United States, in particular, have jurisdiction to punish pirates for offenses committed on the high seas?

Let me give you the short (and easy) answer: Yes. For a variety of different reasons. For example, in Article I, Section 8, the Constitution enables Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." There's also the Article II Treaty Power, backed up by the Necessary and Proper Clause, and since the U.S. has, in fact, entered into a couple of international treaties that deal with piracy on the high seas, the constitutional power to punish pirates is pretty darn solid. Backed up by a wide variety of statutes that exercise that power.

Fair enough. So you're safe from Johnny Depp on the high seas. And less fictional -- and less savory -- real pirates as well.

But what about from people like Lei Shi?

Now, admittedly, you and I aren't likely to encounter people like Shi on a three-hour cruise. Or ever, for that matter. Shi's a Chinese citizen working on a Tawianese merchant ship. He's the cook. He allegedly gets beaten and harassed repeatedly by the Captain and First Mate. Which seems plausible. This does not make Shi happy, and in a subsequent fit of rage, he stabs and kills both men.

Not nice. Well, at this point, Shi realizes he's in what we legally call "deep doo-doo". So he throws the captain's body overboard and tells the crew to set a course for China or he'll do to them what he did to his harassers, plus he'll (allegedly) scuttle the ship. The crew obeys for a couple of days, but then promptly overpower Shi and lock him up in a storage compartment.

What's this got to do with the United States? Well, nothing. Shi's a Chinese national. The Captain was from Taiwan and the First Mate from China. The ship's a Tawianese fishing vessel registered in the Seychelles. The murders happen in international waters, where the ship was fishing, and there's utterly no connection to the United States.

But, after overpowering Shi, the crew sets a course for Hawaii, the closest major land mass, and eventually the U.S. Coast Guard intercepts the ship. It eventually takes charge of the vessel, takes possession of Shi, and then Shi's charged with a variety of crimes in federal court.

But Shi objects to being criminally charged in the United States, a forum as to which he has absolutely no connection other than that he was forcibly taken there. He didn't commit a crime there. He didn't go there. Why can he be charged there? Legally, he makes the argument that's traditionally (and often successfully) used by drug runners, who argue that they can't constitutionally be prosecution in the United States unless there's some nexus between their crime and that sovereign. Which, as we all know, there often is. But for Shi, there's not. So why can the U.S. prosecute him? Why doesn't that violate Due Process?

Remember that Article I, however, permits Congress to punish felonies committed on the high seas. Murder certainly counts. But so does drug-running, and still, we require a nexus. In other words, sure, Article I (as well as the Article II Treaty Power) grants an enumerated right, but Congress still has to comply with the Fifth Amendment and demonstrate a nexus. Otherwise, no dice.

So here's what Judge O'Scannlain holds today: The nexus requirement doesn't apply to Shi because he's a pirate. A pirate?! You may ask yourself: (1) How does that possibly matter legally?, and (2) How is that possibly true, since the guy's a cook, not a pirate? Both good questions.

As to the first, Judge O'Scannlain says that the nexus requirement doesn't apply to pirates because they're stateless and universally condemned. In the words of Ninth Circuit precedent, which concerned jurisdiction over stateless ships running drugs, “[s]uch vessels are international pariahs” and hence “by attempting to shrug the yoke of any nation’s authority . . . subject themselves to the jurisdiction of all nations." Or, as the Supreme Court put it in the conext of pirates, because "piracy . . . is an offense against the universal law of society, a pirate being, according to Sir Edward Coke, hostis humani generis [an enemy of the human race]."

Okay, I get that. Assume that's right, and that a pirate can be tried anywhere. I'm willing to sign onto that, I guess. How the flock is Shi a pirate?!

Well, Judge O'Scannlain holds, he's a pirate because he meets the definition of one. What?! Judge O'Scannlain admits that, traditionally, pirates were, well, pirates: i.e., people who robbed or plundered other ships on the high seas. Those are indeed the people who hostis humani generis. But that ain't Shi.

Ah, says Judge O'Scannlain, but you are one. Why? Because that's the way Congress defined it, as Section
2280(a)(1)(A) prohibits “seiz[ing] or exercis[ing] control over a ship by force or threat thereof” (which Shi surely did) and § 2280(a)(1)(B) prohibits “act[s] of violence against a person on board a ship” that are “likely to endanger the safe navigation of that ship" (which is a stretch, but which Shi arguably did).

But, with all due respect to Judge O'Scannlain, that argument constitutes an obvious logical fallacy, and conflates two distinct realms. Yes, Congress has, inter alia, the Article I power to "punish Piracies," and, for that matter, any "Felon[y] committed on the high Seas." But we already know that enumerated power doesn't categorically negate the Due Process Clause, otherwise drug offenses could be prosecuted without a nexus as well (since they're felonies too). What does negate the nexus requirement is a boat (or person) being stateless in the way that pirates or the crew of a stateless ship is stateless. But, again, that's not Shi.

What Judge O'Scannlain is basically saying is this:

(A) The Due Process Clause allows Congress to prosecute a "pirate" without a nexus to the U.S.
(B) Congress has defined a "pirate" to include someoe like Shi.
(C) Hence, the Due Process Clause does not bar Shi's prosecution.

But (C) does not follow from (A) and (B). Congress cannot define for itself who constitutes a stateless pirate sufficient to allow Congress to constitutionally exercise jurisdiction. So if Shi's not a "pirate" under the usual (and historically understood) definition of the term, it's insufficient that Congress has nonetheless passed a law that declares him to be one. Any more than Congress could define "piracy" as including "hitting of a golf ball off a cruise ship into the high seas" and thereby prosecute a citizen of Fiji with utterly no connection to the United States who engaged in this practice.

Is Shi a nice guy? No. Not to the Captain and First Mate, at least. Is he a "pirate"? Dubious, though I can at least see an argument based upon his takeover of the ship (though I doubt that mutiny counts as piracy). But that's not the argument that Judge O'Scannlain makes. And the argument he does make I don't find especially persuasive.
- posted by Shaun Martin @ 5:08 PM

 
Humane Society v. Gutierrez (9th Cir. - April 24, 2008)
Sometimes justice is way speedy. Which is, in part, why I loved this one.

It's just an order on an emergency motion for a stay pending appeal of a preliminary injunction motion. You don't see many of those granted -- especially with a published order -- outside the death penalty context.

The question is whether Oregon and Washington can remove -- e.g., kill -- some sea lions (up to 85/year)who will otherwise eat a lot (e.g., up to 2000) endangered Chinook salmon below the Bonneville Dam on the Columbia River. Oregon and Washington planned to start whacking the sea lions today, the Humane Society requested a preliminary injunction below but were denied, so they filed an emergency motion in the Ninth Circuit. Their mantra: "Save the Sea Lions. Kill the Fish." Just kidding. More like: "Save the Sea Lions. Circle of Life for the Other Guys."

The motions panel -- to its credit -- takes the motion incredibly seriously. And grants it, in part. The Court says, correctly, that there's irreparable injury either way: if you kill the sea lions, they're dead, but if you let them eat the fish, the fish are dead. So where does the balance lie? Well, you could obviously favor the side you think will win the appeal. But it's typically pretty hard to figure out where that balance lies in the context of an emergency motion.

So the Ninth Circuit says: "Look, apparently, the fish run this particular year looks like it'll be pretty big; something like 269,000 fish. So letting sea lions gobble up 200-2000 fish won't be a monster deal. As a result, I won't let you whack the sea lions. But I'll tell you what I'm going to do for you. First, I'll let Oregon and Washington catch sea lions and relocate them to zoos and aquaria. They say they can do that for around 19 of them; go ahead. You can't whack 'em, but you can sell 'em into bondage.

Second [and I very much liked this part], let's speed this thing up. We hereby sua sponte expedite the appeal. Your briefs are now due to be exchanged simultaneously 7 days from now. With opposition briefs due 4 days later. And we hereby schedule the appeal on the merits to be heard 3 days thereafter. Justice is speedy, my friends. Now, if that freaks all of the attorneys out [as it well may!], you guys can stipulate if you want to keep on the current briefing schedule. Otherwise, I'll see you all at oral argument in two weeks, and enjoy the next week and a half of all-day-and-all-night briefing."

I love it. Both the Solomonic decision and the sua sponte briefing order. Absolutely love it.

POSTSCRIPT - A little birdy (thanks!) clued me into the fact that the oral argument is actually in two weeks whether the parties like it or not; they merely get to choose whether to drink a lot of caffeine and submit merits briefs next week or have the court decide the case on the basis of the briefs already submitted. Which I assume means -- though I'm just guessing -- the briefs on the emergency motion, since I doubt the parties submitted merits briefs prior to the motion. So no choice: justice shall be speedy!
- posted by Shaun Martin @ 12:55 PM

 
People v. Soukomlane (Cal. Ct. App. - April 23, 2008)
Justice Cornell writes a concurring opinion in this case to try to be helpful to trial courts in confronting the challenges involved when a criminal pro per defendant may potentially be disruptive.

Let me add another one:

Chill out. Remain calm. Because if you don't, you may well engage in conduct that's clearly -- or, as Justice Gomes more tactfully (but equally correctly) puts it, "patently" -- erroneous. And, I might add, in manifest derogation of a defendant's obvious -- freakingly obvious -- constitutional rights.

So, for example, you may (1) obviously shackle a pro per litigant notwithstanding any evidence on the record whatsoever that would justify such conduct, and then (2) kick him out of court during the direct examination of the critical prosecution witness for no compelling reason; indeed, for virtually no reason whatsoever. The fact that (retired) Judge Couillard thought the latter was okay is especially stunning. Who could possibly think that not letting anyone on the defendant's side hear the testimony of the key prosecution witness before cross-examining her was okay?

This just in: It's not.
- posted by Shaun Martin @ 3:29 PM

 
Wagner v. Wagner (Cal. Ct. App. - April 23, 2008)
It's not enough to have a good claim on the merits. You've also got to follow the rules on appeal.

So, for example, Justice Perluss says today to James Crowell, the attorney for the appellant (Claire Wagner):

"Our review of the court’s ruling on this motion, however, has been thwarted by Claire’s failure to provide us with a transcript of the hearing on the motion or a copy of the court’s minute order denying the motion. All that has been provided is a copy of the notice of ruling prepared by Claire’s counsel following the hearing. The absence of a record concerning what actually occurred at the hearing precludes a determination that the court abused its discretion. [Cites] As the party challenging a discretionary ruling, Claire had an affirmative obligation to provide an adequate record so that we could assess whether the court abused its discretion. [Cites] Accordingly, she has forfeited this argument on appeal."

Oh, yeah. The record. That tiny little thing. Oops.
- posted by Shaun Martin @ 2:51 PM

 
Villegas v. Mukasey (9th Cir. - April 23, 2008)
Mental institutions in Mexico may not constitute deliberate "torture" sufficient to justify withholding of deportation. But, at least currently, they're really horrible. So sayeth Judge Hall.

I did not realize that Mexican mental institutions are/were as bad as they are/were. But Judge Hall recounts a story that's quite persuasive.

Yet another reason not to go crazy in Mexico.
- posted by Shaun Martin @ 10:43 AM

 
U.S. v. Staffeldt (9th Cir. - April 22, 2008)
Two years? I mean, sure, I understand why the government might not want the name of the relevant AUSA mentioned in the published opinion. He's being reversed, after all. I can also understand why the panel might grant an unopposed motion to delete references to him -- though I could see the other side as well. I mean, it's not like the attorney -- Keith Vercauteren -- is some super-secret undercover spy. Though he did just transfer to the National Security Section in the Arizona U.S. Attorney's Office. But if you can get all that off of Google -- and you definitely can -- it's hardly like having his name buried in Volume 451 of the F.3d is likely to result in untoward publicity.

But ignore all that. Here's the thing. The opinion that mentions Vercauteren was published almost two full years ago, in 2006. And the petition for rehearing -- after an extension, no less -- was due way back then as well. Why are we just now getting around to taking his name out?

Maybe the petition for rehearing was just sitting around chambers for two years. If so, that doesn't seem right. Or maybe the government didn't get around to actually reading the opinion and noticing the AUSA's name for a couple years. But that doesn't seem right (or plausible) either. And I doubt that Vercauteren was happy to have his name in the opinion before but only recently had a change of heart.

So why the two-year delay? No idea. I guess it's one of those eternal mysteries.
- posted by Shaun Martin @ 11:22 AM

 
Daybreak Group v. Three Creeks Ranch (Cal. Ct. App. - April 21, 2008)
Now you're just making fun of me.

It's a published opinion by Justice Bedsworth. It's got only three and a half pages of text. And it begins with the following paragraph:

"This is a case of first impression. Many such cases present interesting analytical challenges; others result only in rueful head-shaking. This, unfortunately, falls into the latter category."

Of course I'm going to mention that opinion! How can I not?! It's short, easy to read, and fun. Written in the classic Justice Bedsworth style.

The case is technically about an alleged requirement for a member of the California Bar who resides outside the state to be admitted pro hac vice. Or, as Justice Bedsworth rightly holds, the utter absence of such any such actual requirement. I get the keen sense that the case is really about what awe-inspiringly bad arguments attorneys can sometimes make. And that's definitely how Justice Bedsworth writes the opinion. In a way that's light, breezy, and deadly persuasive.

So fun for everyone. That is, I imagine, except for Stuart W. Knight, counsel for appellant (and 1968 Southwestern Law School graduate). For him: Not so fun. But trust me, Mr. Knight: It could have been a lot, lot worse.

The winner, by contrast, is R. Allen Payne. Who lives in Helena, Montana, but who is a member of the California Bar. A fact that's not only interesting, but dispositive to the appeal.

By the way, I thought to myself: "I wonder how many California attorneys there are in sparsely populated Montana?" So, having nothing more productive to do with my time, I checked. 331. Which, I believe, is roughly half the population of that State. Though I admit my math may be slightly off on that latter point.

Most of these Montana resident/California attorneys, by the way, have either resigned from the California Bar, are inactive, been suspended for nonpayment of Bar dues, or died. For example, of the 45 California attorneys who reside -- like Mr. Payne -- in Helena, Montana, only 9 of them (including Payne) are active; i.e., only 20 percent. The majority (25) are inactive, five didn't pay their bar dues (and hence not eligible to practice in California), five are dead, and one -- David DePasquale, a disgraced graduate of USD Law School, I might (sadly) add -- has been disbarred.

So Montana: A great place to retire or move or (maybe) work, or even die, but not such a great place to practice California law. But if you want to, we welcome you back. With open arms. No pro hac vice needed.
- posted by Shaun Martin @ 11:01 AM

 
U.S. v. Arnold (9th Cir. - April 21, 2008)
They can search your laptop at the border without probable cause. We know that from a couple of years ago.

But Judge O'Scannlain adds to that today. They can also search your laptop at the border without even reasonable suspicion.

Personally, I would have at least cited the earlier Ninth Circuit case, especially since it says a lot of things (albeit in dicta) that support Judge O'Scannlain's holding. If only to let everyone know I was aware of it.

On a more practical level, for you international travelers out there: Don't put anything on your laptop that you wouldn't be willing to broadcast to the world. Because the U.S. Government has the categorical right to spend as much time as it wants looking through your private stuff for anything in which it might be interested.
- posted by Shaun Martin @ 12:16 PM

 
People v. Zamudio (Cal. Supreme Court - April 21, 2008)
When you read all the death penalty cases in California, there are some basic, fairly universal themes. Most of the time, guilt is fairly obvious, and the evidence is overwhelming. And you have some incredibly bad facts about the defendant that, when combined with his obvious guilt, makes you appreciate (even if you don't agree) why the jury sentenced him to death.

Not here.

Yes, it's the murder of an elderly couple, and that's a terrible thing. But unless we're going to kill everyone who commits that offense -- and we don't -- I cannot figure out what distinguishes this case from the others. It's not a particularly outrageous example of the offense; no torture or the random killing of strangers. There's no massive criminal history or a lifetime of violence or even depravity. And, yes, do I think it's likely that the defendant did it, sure, but I gotta say that the evidence of guilt is pretty darn scant, and a fair piece less than you find in most of these cases.

One of the things that the Supreme Court occasionally talks about in death penalty cases is how you're supposed to be able to rationally distinguish those who die from those who live. I can't do that here, and it's not for a lack of trying. It just seems to me that the jury here was hard core: that it thought that someone who killed an elderly couple whom he knew (and was previously very nice towards) for meaningless reasons always deserves to die. That may or may not be correct as a moral matter, but I don't think it helps to distinguish this case from similar ones in which the defendant was sentenced to life without the possibility of parole.

I've read hundreds of death penalty cases, and none of them have ever struck me as highlighting the inequity argument as much as this one. Which is especially interesting given the none-too-overpowering evidence of guilt that's also present here. Although I have always intellectually understood the "lingering doubt" instruction (i.e., that there may still be some doubt about the defendant's guilt even though you're morally certain that he committed the offense), I've never actually felt it. Or even come close. And I'm not sure that I feel it here -- I find it very hard to say that I'm morally confident that a defendant's guilty and yet square that with some lingering doubt, since presumably that would mean that I'm not sure "beyond a reasonable doubt" -- and yet I think this one at least comes close.

So this one generated some unique feelings, at least for me. Which may well be idiosyncratic. But this one didn't sit well with me. I have no substantive objections to Justice Chin's legal analysis for the unanimous Court. But there's still something here that makes me uneasy.
- posted by Shaun Martin @ 11:14 AM

 
Brooks v. WCAB (Cal. Ct. App. - April 18, 2008)
I don't know why this struck me as particularly funny. And it admittedly came out of some slim pickings today (the Ninth Circuit, for example, didn't publish anything).

But when Justice Vartabedian introduced the case by saying: " that Virginia Brooks sustained an injury to her right shoulder and psyche arising out of and in the course of her employment as a correctional officer," I found myself smiling. Injured in your psyche. That's awesome.
- posted by Shaun Martin @ 4:18 PM

 
People v. Concha (Cal. Ct. App. - April 16, 2008)
Unlike the Ninth Circuit, you typically don't see that many votes ever cast to grant a petition for rehearing in the California Court of Appeal. My intuition is that many (or at least some) on the Court of Appeal deem it somewhat "out there" to do so; that it's somewhat uncollegial in a way that's different than just dissenting.

But it occasionally happens.

So it's worth mentioning when it does. Especially when, like today, it's thus far a very slow day in the Ninth Circuit and California Court of Appeal. Though the afternoon dump of opinions from the latter is still to come. And we can always hope for a thriller.

POSTSCRIPT - The "afternoon dump" from the California Court of Appeal turned out to be, well, nothing. Oh well. So much for a "thriller"!
- posted by Shaun Martin @ 12:56 PM

 
U.S. v. Davis (9th Cir. - March 19, 2008)
"When we tell you to jump, the proper response is 'How high?', not 'I'm going to do a double gainer.' Learn it or be reversed."


That's the message the Ninth Circuit sends to Judge Damrell. In a per curiam opinion that takes only a week or so after oral argument to write.
- posted by Shaun Martin @ 11:37 AM

 
People v. Bragg (Cal. Ct. App. - April 15, 2008)
Taxes are finished. Money has been paid. The national welfare and defense is secure.

So now we can move on to more important issues. To wit: Precisely what is the lingo of your classic exchange between Bloods and Crips?

Let me give you the context. Which, needless to say, is a sad one, since it's reflected in a judicial opinion. Very few happy stories are articulated therein.

But this one, for some reason, struck me as particularly depressing. Maybe because of the uselessness of the underlying violence. Or maybe because of the rapid change in tenor.

W.V. -- I'll call him Wilson -- walks up to Hites Market in Sacramento and sees Adam Bragg, who's hanging out at the entrance to the store about to buy some beer. Wilson and Adam grew up together, but had not seen each other for some time. So it was a happy meeting. Wilson goes over to Adam and gives him a hug, saying "What's up, dog?" Adam's also happy, and "responds" "What's up?!" At which point Wilson says: "Nothing, just kicking back and being boo."

Now, you may not understand what that means. "Being boo?" What the heck is that? And I hear you on that one. Especially since it's possible that this is actually a transcription error, since whenever I've heard the phrase -- and trust me, that's not very often -- I've seen it reported as "being bool," not "being boo". But it's possible that "boo" is street shorthand for "bool."

Which leaves the question: "Fine, but what the heck is 'bool'?!" Which takes us back to the whole Crips and Bloods thing. You notice, I take it, that Crips beings with "C" and Bloods begins with "B". There you have it. Since the Crips don't like the Bloods, Crips often take words that begin with "B" and replace that first letter with a "C". And vice-versa; Bloods take words that begin with "C" and articulate them with a "B" instead. A "Take that, my evil foe: I refuse even to use words that being with your letter! Suffer the indignities of my wrath!" sort of thing.

Yes, I know: it sounds like a petty nothingness. Maybe something you'd see in a really fractious university English Department or something. But when Bloods and Crips feel insulted, they tend to fire off something other than testy internal memoranda.

Which brings us back to Adam and Wilson. And helps to understand Wilson's comment. He was "kicking back and being boo". Which is instantly understood to mean that he's sitting back and being "coo" - i.e., "cool" -- and to simultaneously indicate to the recipient that the speaker either was or is associated with the Bloods. And in a manner that's deemed to be a serious insult to the Crips.

But no problem, right? So Wilson's a Blood? Big deal. Hites Market is in an area frequented by Bloods anyway, so that should hardly be a shock. And, after all, Wilson and Adam grew up together, and just gave one another a hug. No biggie.

Except here's what Adam then reveals to Wilson, whom (recall) he hasn't seen in a while. Adam responds: "I'm a Crip, cuz." Oops.

Okay, now, normal people, in a traditional setting, might say: "Oh, sorry. I didn't know. I didn't mean to insult you. I'm sure there are some very fine Crips out there, and I'm sure you're one of them. I was just talking as a broad stereotype. Sorry if my language offended you." Whether they meant it or not.

Contrast that hypothetical exchange to how Wilson actually responds to his boyhood friend's revelation. He instead says: "Fuck you, then." And walks into the store.

Needless to say, this isn't going to turn out well.

Wilson first insulted his gave-him-a-hug childhood friend accidentally, in a manner offensive to his gang. And then followed it up with a deliberate, in-your-face affront. Sadly, that's not something that's just going to be let go. Adam -- now extremely angry -- starts screaming at Wilson to "bring your bitch ass outside." And at this point I'll let Justice Hull finish the tale:

"At this point, [Wilson] started out of the store thinking only that he and [Adam] were going to engage in a fist fight. [Wilson] did not think there would be greater violence because [Adam] and [Wilson] had grown up together, [Adam] lived just around the corner from the store and, at some point, [Wilson] had trimmed [Adam’s] mother’s trees.

Some of the women who had come to the market with [Wilson] began pleading with [Wilson] not to fight and began trying to hold him back or block his exit as he went back through the door of the market. At or about the point that [Wilson] and the women passed through the doorway, [Adam], standing outside and facing them, took a gun out of his pocket and began firing it in their direction." As Adam fires ceaselessly into the crowd of people in the store, he shoots Wilson twice and two different bystanders as well.

That's how the story ends. With, of course, Adam subsequently being found guilty of multiple attempted murders and sentenced to 85 years in prison.

All of which, remember, began with a hug and greeting. Of childhood friends.
- posted by Shaun Martin @ 1:27 PM

 
Warner Bros. v. Golden Channels & Co. (9th Cir. - April 15, 2008)
I can't honestly say that I'm interested enough to read the underlying briefs and make sure that my impression of this case is absolutely, positively right. But I can definitely say this: Judge Kleinfeld writes an opinion that I find both entirely persuasive and incredibly equitable. I like it. A lot.

While I respect Judge Morrow (below), I think that Judge Kleinfeld's decision touches my heart -- and instinctive sense of fairness -- a lot more than hers. And seems to have the law behind it as well.


See if you agree.
- posted by Shaun Martin @ 12:40 PM

 
In Re Viray (Cal. Ct. App. - April 15, 2008)
You know the story. The Board of Parole Hearings grants parole to a convicted murderer in an exceptional case. The Governator files a rubber-stamp reversal of the grant. The defendant files a habeas petition. The California judiciary then reverses the Governor.

What's true writ large in California is even true in fairly conservative San Diego. As this case demonstrates.

Nicomedes Viray stabbed a man to death on a dance floor. In an admittedly senseless act. He was sentenced to 16 to life, and has now been in prison for 24 years. He has no prior criminal history. He's got a pretty good record in the joint. He was 27 at the time of his offense, and is now 51. He's got a ton of employment skills that he obtained in prison. He's got very good job opportunities. And, one more thing, he's going to be deported to the Phillipines upon his release anyway.

The Governor says that he's nonetheless clearly a danger to society. The Court of Appeal says (and rightfully so, I might add): "Not."

Even Justice Haller -- who writes separately because she wants to be a fair piece more deferential to the Governor than expressed in the majority opinion by Justice McIntyre (who's hardly a flaming leftie) -- concurs in the result. This is not a case where the Governor is trying to do the right thing. Or even making a real effort to follow the law. It's a token, routinized political act. To which the judiciary rightly responds.
- posted by Shaun Martin @ 12:59 PM

 
U.S. v. Reveles-Espinoza (9th Cir. - April 15, 2008)
"So you want to petition for rehearing and rehearing en banc with respect to our memorandum disposition, eh? Maybe getting a little traction on the latter, are you? So be it. We hereby vacate the memo dispo and replace it with an opinion that's a bit more solid in its analysis, and hence more difficult to attack. Oh -- and this will shock you, I know -- the opinion comes out the same way. So you still get deported. One last thing. We'll publish this one. So now it's precedent. Ha!"

As wise practitioners know, sometimes it doesn't pay to petition for rehearing, and you should instead make a beeline for en banc or Supreme Court review.
- posted by Shaun Martin @ 12:23 PM

 
Munson v. Del Taco (9th Cir. - April 14, 2008)
There's courtesy, and then there's courtesy.

Appel