Friday, July 29, 2005

People v. Blair (Cal. Supreme Ct. - July 28, 2005)

Don't represent yourself in a capital case. Don't do it. Just don't. And if you do, don't be the slightest bit surprised when you're sentenced to death and the conviction and sentence is unanimously affirmed by the California Supreme Court. Which is precisely what happens here.

There's an ongoing -- and important -- debate about whether defendants should really be allowed to represent themselves, particularly in high-stakes matters such as these. But I agree with the California Supreme Court that, at present, defendants do indeed have that right. Even if it's an utterly irrational and disasterous choice by the defendant, as it assuredly was here. Everybody knew that Blair would be convicted and sentenced to death if he represented himself. Including the prosecution, which was why they were more than willing to go along with his request (as long as they could be fairly certain that it wouldn't result in a reversal on appeal).

But various judges told Blair in no uncertain terms that, yep, he was a fool to represent himself, and that he'd likely be sentenced to die if he did so. So he "knew" what he was doing. Which is all the law requires. So die at the hands of the state he shall.

A very good case that concretely demonstrates what's at stake in the debate about whether or not criminal defendants -- and especially death penalty defendants -- should be allowed to represent themselves. Whether we're willing to let, as here, the defendant put on virtually no evidence at either the guilt or penalty phase of the trial. We'd undoubtedly call a lawyer reversibly incompetent for doing what Blair did here. But since he did it to himself, we're fine with it. Whether or not that's the right policy choice is the only question.

Thursday, July 28, 2005

In Re Iris R. (Cal. Ct. App. - July 25, 2005)

When Iris gets arrested, police officers go to her house and find her children unattended. So the State wants to take away her two kids. Of course, Iris wants to object, and to be present at the hearing so she can try to keep her children. A matter of no small significance to her, obviously. But, of course, Iris is in jail. She hasn't been convicted of a crime yet, mind you, and I think -- if I remember our basic principles correctly -- she is still innocent until proven guilty. But she can't afford to make bail, and so is locked away in a California jail while the state tries to deprive her of her children.

Now, we generally like people to be able to participate in any procedure in which we're depriving them of their liberty -- I think that's called "due process" or something or other -- and taking away your kids counts. So the trial court, very reasonably, orders the state to transport Iris to the various hearings in which they're trying to take away her kids. Which, by the way, we do all the time. Just like we transport prisoners to their own arraignments and trials and sentencings. We sort of think they have a right to participate. And, by the way, that the process is fairer -- and more accurate -- when the person participates.

So everything is fine, right? And, to remind everyone, what the judiciary has done is to issue a court order that Iris be transported to the hearing.

But -- and here's where the case gets bizarre -- everyone in the universe seems to recognize that California has no intention of doing so. Of complying with the court order. Because even as the order is issued, counsel for Iris (and everyone else) admits that transporting Iris to the hearing "isn't going to happen". Why? Because it is apparently California's policy not to transport prisoners to a different county. And here, Iris is in jail in Riverside, but the hearing in which they're trying to take away her kids is in Los Angeles.

Now, as I recall, there are one or two tiny little freeways that do indeed connect these two cities. And, lest we forget, there's an entirely valid court order that compels the state to put Iris on it. But the state, consistent with a longstanding policy evident to pretty much everyone, simply doesn't comply. Apparently, this happens all the time.

So what happens? Does the court issue an OSC re: contempt? No. Does the court grant a continuance? Nope. Instead, the court just goes ahead and holds the hearing in Iris' absence and takes away her kids. And when Iris appeals, Justice Boren affirms. So write a letter from jail saying goodbye to your kids, Iris. Hope you enjoyed your pretrial stay in the clink as we made your children wards of the state. And hope that the kids similarly enjoy their time in a foster home or state institution, wherever the state decides to place them.

Does anyone else have a problem with the result here, or with the blithe way the state consistently refuses to comply with court orders like the one issued here and/or the judicial refusal to do anything about it?

P.S. - Interestingly, the opinion in this case was originally unpublished. Which just goes to show, inter alia, how fine everyone appears to be with both the process and result in this case. But then the Court of Appeal decides to publish the case, and when it does so, it adds a final paragraph to the opinion that's fascinating. A concluding paragraph that expressly mentions the "habitual and willful disobedience of a court order, which the Legislature had mandated the court issue" and which opines that this result "not only undermines a parent's potential statutory and constitutional rights, but fosters disrespect for the judiciary and its lawful orders."

Finally. A recognition that this case actually matters, alongside some strong -- and entirely appropriate -- language. In my mind, just what the doctor ordered.

But how does this paragraph end? What does the court actually do about this problem? Reverse the case? No. Issue an OSC? Nope. Deliver -- at a minimum -- a command that these judicial orders shall be followed in the future. Not at all. Justice Boren instead follows this strong language with a one-sentence plea that the Legislature address the "fiscal concerns among the counties for the expenses incurred in the transportation of prisoners."

In other words, the state deliberately and routinely disobeys court orders in matters involving the state-ordered deprivation of a parent's children for the weighty reason that each county wants the other one to reimburse it for the cost of a 60-minute bus ride. This is the lamest reason I've ever heard. And is entirely inexcusable. And the only thing that Justice Boren is willing to do to back up his strong language to merely say: "Well, okay, but maybe the Legislature can figure out who should pay."

What a crock. The more I think about this case, and how it was handled, the madder I get. I can't fathom why a court would be this weak in the face of such inexcusable, harmful, deliberate, and routine violations of its orders. Just can't fathom it.

Wednesday, July 27, 2005

U.S. v. Thomasian (9th Cir. - July 26, 2005)

I'm puzzled. I don't understand why Craig Thomasian files an appeal in this case, why he brings in an attorney all the way from Fairfax, Virginia (darn close to my hometown, I might add) to litigate the matter, or why the dispute is worth all the time and money that Mr. Thomasian has undoubtedly invested in the litigation.

This is a civil in rem forfeiture action in which the only thing at stake is the proposed forfeiture of a single Sentinal Arms Striker-12 shotgun, which Mr. Thomasian claims to own but which the ATF claims is illegal under the National Firearms Act. Now, admittedly, I don't particularly understand why one would want a Striker-12 in the first place. It looks roughly like a tommy gun from the 1920s. For sport hunting, no doubt. Or home security. Against the mob.

But be that as it may, regardless of the merits, I can't imagine that the gun is even nearly worth the time and effort of the litigation. A quick search reveals a Striker-12 shotgun in "excellent condition" on sale for $1200. I'm sure that plenty of other people are willing to sell for a similar price. Even if the gun has sentimental value ("I killed my first bootlegger with it!), I can't believe that it's worth all the fussin' and fightin' to try to get it back, particularly after the district court has ruled that, yep, it's a prohibited weapon, all right.

I guess I'm just not a gun nut. I'd have saved the money. And bought myself a machete or something cool like that. Maybe a huge spear. Or speargun. Yeah, that's it. A speargun. Perfect for home defense and for fishing. The classic double whammy.

Anyway, Thomasian loses on appeal anyway. On a straightforward issue of statutory interpretation on which the panel makes the obviously correct call. Sorry, Craig. You're out the cash and the gun. C'est la vie.

P.S. - I usually don't change what I write after it's posted. But I thought I'd add this note from a loyal reader, since the thought is a good one: "The answer to the question you posted above is on the homepage of Thomasian's lawyer, which you linked to. He is a Second Amendment activist. No doubt one of the gun-rights organizations is footing the bill for Mr. Thomasian, and using their own lawyer, in an attempt to create some favorable precedent. Didn't work, though."

Tuesday, July 26, 2005

People v. Kennedy (Cal. Supreme Ct. - July 25, 2005)

Ordinarily, a unanimous decision of the California Supreme Court affirming the imposition of the death penalty is almost as automatic as the appeal itself. So too here. So there's nothing unusual or worthy of comment on that front.

But read this opinion anyway. Because it is one of those relatively rare cases in which I have strong doubts about whether the defendant in fact committed the offense for which he's been sentenced to death. There is exceptionally little evidence against Kennedy here -- much, much less than in most death penalty cases. And there are two eyewitnesses to the crime. One of them -- the one that is basically the key to the prosecution's whole case -- initially (and repeatedly) told the police that she saw the murderer "eye to eye" for "30 to 60 seconds," got a fantastic (and memorable) look at him, and that he had no facial hair. And the eyewitness was pretty confident about the no facial hair thing, and even drew a sketch of the perpetrator (with no facial hair) herself.

But Kennedy has a massive goatee and mustache that covers the lower half of his face. Indeed, the difference in this regard between Kennedy and the person described by the prosecution's key eyewitness was so severe that once she saw a picture of Kennedy in the newspaper and learned that he had been arrested for the crime, the eyewitness went to the police and said that they had the wrong man. Later, of course, she changed her mind; in particular, after viewing a picture of a shirtless Kennedy with a huge swastika tattoo. But she never explained how she could possibly have been so confident that the perpetrator was clean-shaven and yet was now confident that Kennedy is the guy. And the second eyewitness, by the way, also testified -- like the first eyewitness 00 that the perpetrator was clean-shaven. And also testified at trial that the perpetrator was not Kennedy. And this eyewitness, unlike the prosecution's witness, never changed his story or description.

There's some other troubling stuff described in the opinion as well. And, again, there's very, very little to link Kennedy to the crime other than the eyewitness identification and the testimony of a pretty darn uncredible witness who was caught using the victim's credit cards (and who initially told police that a third person -- not Kennedy -- had committed the murder). There's just not the type of evidence here that you're used to seeing in these types of cases.

Is it possible that Kennedy did it? Sure. It's possible. Is it likely beyond a reasonable doubt? Boy, that's a toughie. Are we so confident that Kennedy did it that we're willing to make an irrevocable decision to kill him? I'm not. Not with this evidence. There's just too much of a risk that we'd be killing an innocent man.

Like I said, this is not a reaction that I often have. But I have it here. I'm just not sure that we're not doing a horrible, horrible thing here.

CalFarm Ins. Co. v. Krusiewicz (Cal. Ct. App. - July 22, 2005)

Here's a good lesson on how not to write a majority opinion. Brief hint: Don't start the opinion with a two-page response to the dissent. Do your own thing first, and then respond. Or weave in your response to the dissent alongside your own analysis. Don't start out with: The dissent says X, but is wrong. Just don't do it. Whoever taught Justice Fybel otherwise should be severely reprimanded.

Monday, July 25, 2005

U.S. v. Kaczynski (9th Cir. - July 21, 2005)

I usually don't discuss the most high-profile cases, if only because I generally prefer to talk about overlooked principles rather than add yet another voice to the overcrowded discourse surrounding the rare case in which the public (or lawyers writ large) become interested. But I wanted to talk about this one, if only briefly, even though it's a case with popular interest given the celebrity status of the movant, Der Unabomber.

On the merits, my view is that Judge Hawkins correctly decides that Kaczynski's effects should be auctioned off and the proceeds paid to his victims rather than, as the government contends, left to rot in a government warehouse with only a token (or no) payment by the United States. An auction is the Pareto optimal solution, I think. Whereas the government's position (and what it's in fact been doing over past several years) benefits no one. Sure, maybe there's something that seems a bit ghoulish about, inter alia, selling Kaczynski's Manifesto to the highest bidder. But it provides a concrete benefit to real people, I'm all for it. And if the highest bidder wants to burn the Manifesto -- as one did, for example, with John Wayne Gacy's paintings of clowns -- that's fine too. The point is to give the victims their money. Now, I might have written the opinion a little bit differently than Judge Hawkins does (if only because I think that he wraps himself up in the flag a little bit too much by constantly reiterating the theme "focus on the victim" until it loses meaning by sounding like pure rhetoric). Still, we'd reach the same result.

Off the merits, I thought that footnote 12 was interesting. Judge Burrell overruled the magistrate judge in this case -- a fairly rare (but not super-extraordinary) occurrence -- to find against Kaczynski here and to hold that the government could permanently deprive him of his effects without any payment to anyone. Footnote 12 says: "Contrary to Kaczynski's suggestions, we find no proof of bias on the part of the district court," with the emphasis on "no" in the original. Why this emphasis? And why talk about "proof" of bias? Sure, it'd have been more telling if the emphasis was on "proof", as in "We find no proof of bias . . .", implying that there might well have been some indicia of bias. Still, it seemed an interesting way to phrase the footnote. Not the usual "We find no bias on the part of the district court" or the like. I'm left wondering what exactly I should make -- if anything -- of this footnote.

Friday, July 22, 2005

Meagher v. Maleki (Cal. Ct. App. - July 18, 2005)

I love this case. Just love it. First of all, I didn't know that we actually granted annulments here in California, a state in which it's pretty easy to get a straight-up divorce. I mean, I guess I knew that we probably granted them, but I didn't know of anyone who got one or why you would (other than, obviously, religious reasons, but that's an annulment decision by the religious organization, not necessarily by the state). And this case made me realize -- duh! -- why you might well prefer an annulment: namely, for money reasons. (Here, the wife wants an annulment because her husband said he was hugely wealthy and they made a lot of money in various real estate investments -- with wife's cash -- before wife found out that husband wasn't rich.) Stop thinking religion and morality, Shaun. It's always about the money. Money money money.

Second, I didn't know that we also had a pretty well-developed body of case law about when you can get 'em. I would have assumed -- merely reasoning from first principles -- that you get an annulment when the marriage really didn't work from the outset, or the decision to get married was made in haste and an annulment quickly sought, etc. Which just shows what a moron I am. Rather, the cases in which annulments are granted, at least as categorized by Justice Ruvolo, are all about fraudulent inducement of the marriage. And, by the way, as he makes clear, they're all -- or at least all but one -- about one thing. Sex.

Sex and money. Sex and money. That's the message for today. God, I love America.

Anyway, back to the doctrine, as Justice Ruvolo explains, the only types of fraud for which we're willing to grant an annulment are those frauds that the state recognizes go to the "heart" of the marriage. And those things -- those key marital principles -- almost universally concern sex. So, as he explains, we're willing to grant annulments when a spouse gets married with a secret intention never to have sex with his or her spouse. Or is secretly sterile. Or is secretly pregnant by another man. Or secretly intends to continue an existing (soon-to-be adulterous) affair. Those go to the "heart" of the marriage. But Justice Ruvolo can only find one non-sex case granting an annulment, and that one's an egregious situation in which the husband is secretly a criminal (and on parole) and has secretly abandoned his kids etc. etc. and the Court of Appeal held that the husband's inherent lack of trustworthiness was sufficient to grant an annulment. But that's merely the outlier. And Justice Ruvolo hold that since the present case isn't about sex or as egregious and the only non-sex case he can find, the wife isn't entitled to an annulment. But nonetheless holds out the possibility that the wife might be able to rescind some of the business arrangements using typical contractual remedies for fraud.

Anyway, I found it fascinating to learn about California annulment principles and the continuing centrality of sexual relations as the ostensibly fundamental principle of marriage. Which, of course, is entirely untrue -- if it ever was. Not that I disagreed, by the way, with Justice Ruvolo's holding here. 'Cause I didn't. I could have decided this case in a single paragraph. I'd simply say that the state properly refuses to recognize the value of a marriage entered into for money, and so even if the spouse lies about their money, tough. That's not a basis upon which you should get married. So it's not a basis upon which you can annul one. End of story.

The opinion also got me thinking about a string of hypotheticals. For example, several of those sex cases are from the 1920s and 1940s. Would we still hold, for example, that the sterility of a spouse or being pregnant by another man are grounds for an annulment? And how far does this whole sex thing go? For example, sure, I'm confident that the refusal to have sex at all would still be grounds for an annulment. But what if the spouse was willing to engage in sex, but not Sexual Act X? (The family-friendly policy here demands that I use letters instead of my typical crass language.) Is that grounds? What about Sexual Act Y? And what if the spouse is willing to engage in both X and Y, plus even a little bit of Z (on special occasions), but not intercourse? What about the spouse that's willing to do all of the above, but only on Wednesdays?

The mind boggles at the possibilities. But I'm confident that our judiciary can draw those critical lines that the law demands. Maybe they'd impose, say, a two-sex-a-month minimum. Sort of like a two-drink minimum, but with regard to annulment rather than a nightclub. AND NO SUBSTITUTIONS.

Just order from the menu, please. Thank you for your judicial patronage.

A case for the ages.

Thursday, July 21, 2005

People. v. Jiang (Cal. Ct. App. - July 14, 2005)

There's a plethora of interesting stuff in this opinion by Justice Mihara. First, there's some good Miranda stuff, and the Court of Appeal holds that the defendant wasn't properly given his Miranda warnings when they were somewhat butchered by a telephonic AT&T interpreter who translated them into Mandarin. It's funny to know (but I guess not that surprising, once you think about it) that the best that the Santa Clara Police Department can do is to use off-the-shelf AT&T interpreters. In any event, this part of the opinion is interesting and worth a definite read.

Second, Justice Mihara also holds -- in a portion of the opinion that I think is clearly right -- that the court improperly allowed various privileged documents to be introduced at trial. The defendant wrote some very important communications to his attorney on a laptop, and both password-protected these documents and saved them in a file marked "Attorney". But the laptop was technically owned by his employer, and on this basis the trial court held that there was no reasonable expectation of privacy and hence no privilege. Now, I can see someone making this argument, and if justice were both blind and not very much concerned with the actual advancement of justice, I could see a court buying it. But I thought that the Court of Appeal was surely right that the defendant had a reasonable expectation of privacy in these documents notwithstanding their presence on the employer's computer. I've got lots of stuff on my University computer. Sure, they've got a technical policy that it's theirs and that they can do what they want with it. But, to my knowledge, they have never looked at it and never will. I've got a reasonable expectation of privacy. So did the defendant -- even more, since his documents (unlike mine) were password protected. So I clearly agree with Justice Mihara on this one.

(Brief tangent. There's an undercurrent here that I definitely perceived, but wonder if it is idiosyncratic. My fairly strong belief is that the only reason that the defendant got a reversal on the Miranda issue is because the erroneous translation was tape-recorded pursuant to AT&T's policies. If this wasn't the case, then you'd have just have had the police and interpreter testify falsely that the translation was accurate, and there'd have been nothing the defendant could do. Which is why the police often, I believe, have a policy not to record Miranda warnings and interrogations until the very end, when the defendant simply reiterates his prior confession. So there's no record. And, on that same theme, does anyone else who reads this opinion smell something pretty bad in the section about the privilege issue? The prosecutor here repeatedly swore that she didn't open the privileged documents until the very very end, and didn't know what was in them until then. But, for some reason, I had a gut feeling that she simply wasn't telling the truth. Which, I know, is assuredly terrible thing to say about an officer of the court. But that's nonetheless my strong feeling here.)

One last interesting part. On the merits, for the benefit of the retrial, at the end of the opinion, Justice Mihara talks about the decision of the trial court to exclude an proposed defense expert who was going to testify, inter alia, that due to the culture of the defendant and victim, various acts (e.g., drinking from the same glass and borrowing books) were probative of the fact that the defendant sincerely -- but mistakenly -- believed that there was consent to the sexual conduct at issue. This issue clearly makes Justice Mihara so uncomfortable that while he discusses it, and gives some insight, he doesn't actually decide whether the trial court was right or wrong. And the language that he uses is intriguing. Justice Mihara (rightly) holds that this proposed testimony was not relevant to the objective component -- did defendant's conduct demonstrate objective consent -- "because our society is not willing to tolerate a belief in consent that is based on the content of loaned books or the sharing of a wine glass." But on the real issue -- whether this evidence is relevant to the subjective component (e.g., did defendant actually believe there was consent), the only thing that Justice Mihara can say is that since the expert's testimony was not relevant to the objective component, the relevance of the testimony on the subjective component was minimal. But that's not really responsive. And Justice Mihara seems to know as much, since he concludes that "maybe" the expert could rephrase his opinions, and leaves it to the trial court to sort out this mess on remand.

The obvious undercurrent, I think, is that the proposed evidence is clearly relevant, but consists of something we very, very much don't like. Even if, in some cultures, it's evidence of desired intimacy that you drink from the same glass, we don't want to admit that evidence in the U.S., because we (1) don't want people in the U.S. to draw those inferences, and instead want to demand that they comport themselves according to our cultural mores, and (2) don't want to admit that it's ever a possible defense to a rape charge that the alleged victim did something like drank from the same glass as the victim. Just like, for obvious reasons, we'd be super-reluctant to allow evidence that an alleged rape victim was "asking for it" by wearing provocative clothing even if it were true that, in some cultures, wearing provocative clothing was an indicia of desired intimacy.

So I think there's a fertile area of intellectual thought here surrounding how you transport differential cultural values in the context of criminal prosecutions, particularly vis-a-vis consent. And it's because this is such a tough and complicated area that Justice Mihara basically totally punts on the issue. But someone smart and devoted could really draw some fascinating conclusions about this field.

Wednesday, July 20, 2005

Fanucchi & Limi Farms v. United Agri Products (9th Cir. - July 14, 2005)

This is a somewhat dry opinion, but I liked it nonetheless. It's almost exclusively about the various principles that surround California's common law of contractual novation (as opposed to, say, modification and accord) and the application of those principles to the summary judgment entered in favor of the defendant. But it's a good explication of those principles -- which I readily admit that I didn't know much about before reading the opinion -- and is a pretty easy read notwithstanding its depth.

As a result, I enjoyed Judge Willie Fletcher's opinion, and learned a fair amount to boot. Plus, the case has some good and interesting facts (basically, about a farm that was about to go under and a contract with its owners that was modified in order to persuade the plaintiff not to declare bankruptcy). And even though I'm usually somewhat skeptical of alleged oral modifications of integrated written agreements, I actually found plaintiff's story here pretty darn credible, and also agreed with Judge Fletcher that the entry of summary judgment was improper.

The other interesting thing about the case is Judge Fletcher's tone. The opinion sounds a lot like an academic explication of doctrine rather than your traditional judicial missive, which is perhaps not too surprising given Willie's former occupation. But it sounds even more like the kind of opinion that a former debate-type would write, particularly in its point-by-point responses to Judge Beezer's concurrence. I wouldn't be surprised at all to learn that the relevant law clerk responsible for the opinion had a background in that area. This looks like precisely the type of opinion that I would have written back in the old days. (Plus, even though the tone of the opinion is always respectful, it's a little more of a direct attack on Judge Beezer than one is used to from Judge Fletcher's opinions. Another indicia of the type of "it's all about the argument, baby: nothing personal" approach that often characterizes former debate people.)

I do have one substantive critique of the opinion. Judge Fletcher states at the outset of his response to Judge Beezer's concurrence that to the degree Beezer disagrees with Fletcher's legal analysis, it is a dissent. See Slip Opinion at 8199 ("Judge Beezer has written a separate concurrence to express his understanding of novation under California law. To the extent Judge Beezer's concurrence is at variance with our majority opinion, it is, of course, a dissent.").

Uh, no. It's not. At all. Judge Beezer totally agrees with the judgment: it is crystal clear that he would reach the result as the majority (i.e., a reversal of the entry of summary judgment in favor of defendant). Which means that Judge Beezer's opinion is indeed a concurrence, and not a dissent. 'Cause it's a concurrence vs. a dissent based exclusively upon the differential response to the judgment, not the basis for that judgment (or the reasons one articulates). That's basic Civ Pro 101. And it's a little embarrassing for Judge Fletcher not to know that. And even more embarrassing for him to talk down to Judge Beezer ("[I]t is, of course, a dissent.") and be wrong about it.

Tuesday, July 19, 2005

Southern Union v. Southwest Gas (9th Cir. - July 13, 2005)

Back in April, I wrote a couple of posts (here and here) that critiqued the use of unnecessarily fancy words by Judge Fernandez in a couple of his opinions, including fossicked, bosk, daedalian, banausic, and recrudescent (for the last of these words, ten different times!).

Now listen to this sentence from the last page of his concurring opinion in this case: "I do not intend this opinion to be an elogium; I do not say that Irwin's behavior deserves encomiums, but, whatever its failings, the evidence does not require the conclusion that he is a rapscallion."

This is the exactly type of sentence that a high school student would pen if he mindlessly hit his computer's thesaurus button three times after writing: "I do not intend this opinion to be a compliment; I do not say that Irwin's behavior deserves praise, but, whatever its failings, the evidence does not require the conclusion that he is a criminal [or rouge, or outlaw, or rascal, or reprobate, or scoundrel, or sleazeball, or any of a dozen other synonyms]."

My belief is that twenty-cent words typically detract from, rather than add to, an opinion. Hopefully Judge Fernandez will learn this soon enough.

Monday, July 18, 2005

Bear Creek v. Edwards (Cal. Ct. App. - July 13, 2005)

Yikes! This is not the opinion that I would have wanted published if I were Lucila Enriquez, the attorney for the appellant (and the trial attorney below) in this case. As you'll soon see, about the only thing she can be grateful for is that the Court of Appeal repeatedly misspells her name, calling her "Lucia" rather than her actual first name (Lucila). But that's small solace.

Not only does Ms. Enriquez lose the appeal, but the 49-page opinion by Justice Ward is repeatedly mean to her. Here are some of the words that Jusice Ward uses in describing Ms. Enriquez's arguments: "duplicative, misplaced, disingenuous (four separate times!), catagorically reject[ed], a red herring, obscure, irrelevant, indefensible, nonsense, [and] frivolous." And here's a characteristic sentence by Justice Ward to describe Ms. Enriquez's position (at 40): "This contention, like most of those raised, is completely unmeritorious."

Plus, the opinion also contains a not-so-flattering discussion of her conduct below, including what it calls the "highly unusual circumstances" surrounding her repeated failure to show up during various trial proceedings -- and mentioning the resulting sanctions against her -- as well as her personal participation in various events surrounding the underlying case, many of which appear to have affirmatively harmed her client. And it also contains this gem, which is indicative of pages and pages of slams on Ms. Enriquez: "[T]he court was within its rights to discredit any claims by attorney Enriquez with respect to her medical condition . . . . Attorney Enriquez's delaying tactics had succeeded once in gaining a 60-day delay in the middle of trial. The court did not abuse its discretion in refusing to grant a continuance, based solely on the representations of an officer of the court who had previously manipulted and abused both the proceedings and the court's indulgence."


But wait! There's more! Let's not forget the reference to "the obduracy of the defendant parties and their attorney, the constant quibbling, delaying, obfuscatory, frivolous, unreasonable, disingenuous, repetitive, and even bizarre conduct of the defense". Or "the penchant of Edwards and his counsel for overlitigation, for refusal to comply with court directives, for unreasonableness, [and] for repetitive meritless motions and other tactics."

This is as about as crushing a slam on an attorney as I've ever seen issued by the California Court of Appeal. It is a back-breaker.

Tan v. Runnels (9th Cir. - July 7, 2005)

This is actually a pretty good "know your Ninth Circuit judges" test. Start reading this opinion on page 7900, which is where the analysis begins. Make sure that you don't glance at the second and third pages of the opinion, which tell you who authoried it.

The panel is Schroeder (a moderate liberal who's conservative on criminal issues), Pregerson (a leftie), and Trott (a right-winger). All agree on the result, and all join the opinion. Can you tell by the analysis, rhetoric, and style of the opinion who wrote it?

Darn tooting you can.

Friday, July 15, 2005

Tellis v. Alaksa Airlines (9th Cir. - July 12, 2005)

When you live in Seattle and your wife is days away from delivering a baby, your decision to fly to Atlanta to pick up a car (and drive it cross-country back to your home) -- something that you did instead of staying with your wife and participating in the birth of your daughter -- does not count as "caring for" your wife under the FMLA. Even if you talk to your wife on the phone during your cross-country trip.

You could read Judge Thompson's five-page, single-spaced opinion, which affirms the grant of summary judgment to Alaska Airlines on this basis. Or you could simply state the facts and then say: "Duh."

An easy decision.

In Re Michael Lowe (Cal. Ct. App. - July 8, 2005)

Michael Lowe has been in prison for 20 years after pleading guilty to second degree murder for shooting his homosexual lover in his sleep. Lowe is now 55 years old. He has no prior criminal record, and at his parole hearing, the district attorney's office has no objecting to granting parole, and states that they do not believe that Lowe is a threat "to his country or the People of the State of California." The Board of Prisons grants Lowe parole. And Governor Davis -- and, I know, this will come as a total surprise -- reverses this decision. 'Cause God forbid anyone -- anyone -- ever convicted of murder should ever get parole. Right, Gray? Why take even the slightest risk of a political hit just because someone's rotting in prison and everyone concedes that he's already paid his debt to society. Nah. Let 'em rot some more.

Anyway, Lowe files a habeas petition, and it's granted by Judge Hastings in Santa Clara. But the appeal goes to the exact same panel (about which I've posted here) whose willingness to affirm parole denials is evident. And the panel doesn't disappoint: in this case, they indeed reverse the grant of parole. So Lowe gets to say in prison.

At least the panel's consistent. Whether it's a discovery order or on the merits, in a case from one judge or a different one, they're not going to let you out. But rest assured, it's not results-oriented. That's just the way the law reads. Consistently. Right?

Thursday, July 14, 2005

U.S. v. Bussell (9th Cir. - July 12, 2005)

What do you tell the jury when Husband and Wife are jointly tried for a crime and, during jury deliberations, Husband jumps out of their hotel room window to his death? Which is what in fact happens here. I guess your choices are basically these:

(A) "Husband is no longer in the case. Don't speculate why. Just decide Wife's fate."
(B) "Husband is dead. Just decide Wife's fate."
(C) "Husband took a header out the window. Make of it what you'd like."

Okay, so (C) isn't a very good choice. But selecting between (A) and (B) is tough. The benefit of (A) is that it ostensibly keeps the deliberations "pure," but the downside is that it will likely cause the jury to speculate -- notwithstanding the contrary instruction -- that Husband may have pled guilty. The benefit of (B) is that it's the truth, and also avoids potential speculation, but the downside is that it might cause jurors to sympathize for the widow.

Judge Clifton's opinion talks a lot about both (A) and (B), but never actually decides which is preferable. He instead simply holds that (A) -- which is what the district court did here -- wasn't reversible error. Which is a holding that seems right to me.

Still, I'd have preferred to know his take on whether (A) or (B) is better. Guidance to district courts is usually a pretty good thing.

P.S. - Don't feel too bad for Wife. She was convicted of various charges -- including false statements and tax evasion -- by concealing from her bankruptcy petition a four-unit condo in Park City and various stock in her dematology practice, and was ordered to pay restitution of $2.4 million. But she still had enough to hire as her appellate counsel Shirley Hufstedler, the former Secretary of Education and Ninth Circuit judge (currently senior counsel at MoFo). Plus she ends up getting a remand on part of her sentence, anyway. So she's hardly someone without resources or who never had a chance in life. She just didn't make the best of it. 'Cause she wanted to go bankrupt and yet still be rich.

Wednesday, July 13, 2005

Maynard v. Brandon (Cal. Supreme Ct. - July 11, 2005)

We all know that the California Supreme Court basically finishes drafting most of its opinions prior to oral argument. One bad thing about that practice, of course, is that it means that oral argument is essentially irrelevant, since the outcome is largely predetermined at that point. Another potentially bad thing about this practice -- as this case amply demonstrates -- is that it means that the Court is unlikely to dismiss a case as moot, even if it is. After all, the Court has already written the opinion. Why should a little thing like the fact that the case is moot and the parties don't care one whit about the outcome deter the Court from publishing it?

The question at issue here was a relatively narrow one: whether CCP 473(b) can be utilized to relieve a party from a failure to file a timely request for trial de novo after a mandatory attorney fee arbitration award. Sure, this happens sometimes, but it's a fairly rare problem. But the California Supreme Court nonetheless thinks that the issue is worth resolving. Fair enough.

However, four weeks before oral argument, the parties settle. They then notify the Court and request that the appeal be dismissed. But the Court denies the motion. Which means that, at oral argument, no one who cares about the outcome is actually participating in the case. Great oral argument, eh? But Justice Moreno (and the rest of the Justices) elect to decide the case anyway, stating (in a brief footnote) that they do so because the case "raises issues of continuing public importance."

Hogwash. This is not a critical or high-profile issue. Virtually no one cares about the result, and even the parties don't care at this point. The Court decides the case because it already wrote the opinion and doesn't want to flush it down the toilet. Let's not pretend otherwise.

Now, maybe that's a good practice, and maybe it's not. But the Court should at least be honest about what it's doing, rather than making a lame effort to claim that this was an important case that just had to be decided even after it became utterly moot. 'Cause it didn't.

Tuesday, July 12, 2005

Defenders of Wildlife v. Flowers (9th Cir. - July 12, 2005)

I admittedly don't have anything substantive to say about this opinion, which concerns the fate of the Arizona cactus ferruginous pygmy owl.

But the name of the case made me chuckle. Defenders of Wildlife v. Flowers. Ho ho ho.

Lu v. Grewal (Cal. Ct. App. - June 28, 2005)

I think that this is the first substantial opinion that I've read by Justice Zelon (who was appointed to the Court of Appeal in August 2003). And I'm predisposed to be excited about her. She's a former partner at Morrison & Foerster (at which I once worked as a summer associate), is a fellow graduate of HLS ('77), and was -- like yours truly -- an editor on the Harvard Civil Rights-Civil Liberties Law Review. Plus she was born in Durham, North Carolina, not far from the birthplace of my lovely wife. So I'm somewhat psyched to have her join the bench.

Which means I was slightly sad to see her get this one what I think is at least a tiny bit wrong. Here's the basic "Law School Hypothetical" version of the facts. D breaches a lease by abandoning a property (here, for a gas station) and not paying rent. P tries unsuccessfully to release the property to mitigate P's damages, so decides to run the business herself, and makes a healthy profit doing so. Assume that the lease was for $5000/month and that P earned a net profit of $8,000/month from running the business. If there were 12 months left on the lease at the time of the breach, what are P's recoverable damages? Would your answer change if P made only $3000/month (rather than $5000/month) from the business?

What do you think? To me, there's at least a reasonable argument that P has fully mitigated her damages in the former example, since she is up a total of $36,000 ($8000 profits minus $5000 rent times 12 months) as a result of the breach, and hence is entitled to no recovery. And, under this (plausible) theory, in the latter example, P has partially mitigated her damages, so is entitled to recover $24,000, which is $5000/month minus $3000/month times 12 months.

But Justice Zelon holds that P is entitled to recover $60,000 in both settings, and that the benefits that P has received as a result of the breach categorically do not count in mitigation. She also decries (on page 10) that any contrary holding would "def[y] principles of public policy and offend[] notions of fairness, justice and common sense."

Well, I certainly disagree with the rhetoric. A contrary position seems quite plausible, and hardly absurd.

But mroe to the point, I think it's Justice Zelon's apparent position that is contrary to public policy. My view is that plaintiff can't obtain the benefits of both a rent-free business and leasehold damages at the same time. At a minimum, the fact that plaintiff elected to utilize the property conclusively establishes that it does, in fact, have some fair rental value that was utilized and should offset damages: after all, plaintiff essentially elected to rent it herself. For example, if D breaches a residential lease and P moves into the property herself during the unexpired term, does D really get no mitigation since the property was only utilized by P rather than a third party? I think not.

I think that Justice Zelon is led a bit astray by the compelling facts at issue here; in particular, the fact that the business was a success (and hence resulted in mitigation profits) only because P's husband worked as the manager of the gas station virtually 24/7. Which is why, I think, Justice Zelon asserts that defendants "are not entitled to the benefits of appellant's hard work and capital in making the property productive; nor should [P] be punished for bringing the property back to life."

But it's not punishment; it's mitigation, and is no different than "punishing" a landlord by reducing her damages based upon her releasing of a property. Which, of course, similarly "takes" her hard work and efforts to release the property, but is something that we routinely require. Plus, under a proper mitigation doctrine, any "hard work and capital" that P invested in the property would be deducted from the amount of mitigation. So if, for example, P's husband worked 4000 hours to manage the business, at a fair hourly rate of $20/hour, then the profits of the business available for mitigation would be $80,000 less. Ditto for any expenditures necessary to run the business. So there's no really "usurping" of plaintiff's capital here, much less "punishment".

Now, admittedly, I don't think that defendant is entitled to a risk-free option on the plaintiff's business; i.e., that there's mitigation that benefits defendant if the business succeeds but no penalty (notwithstanding the investments by plaintiff) if the business fails. So I think that, for this reason, Justice Zelon's basic holding may in fact be right -- that you can't simply offset damages with profits. But there's definitely at least some offset due here, if only because the fair rental property of an asset that is actually used is greater than zero. This is the proper middle ground, and it's not one that Justice Zelon particularly explores. Which is too bad, since it's the position that I think is right. Oh well. I'm confident in Justice Zelon's intellect, and am sure that I'll agree with her more times than not. Just not totally on this one.

Monday, July 11, 2005

Board of Prison Terms v. Superior Court (Cal. Ct. App. - July 5, 2005)

I'm always conflicted when I think about parole. On the one hand, I'm consistently upset whenever I read an opinion -- and there are several of them -- in which the defendant is convicted of a serious crime after a prior conviction for a serious crime that resulted in a relatively brief period of incarceration (including a potential early release on parole). You definitely don't want to release people who will reoffend, and it probably pays to be a little bit risk adverse in this regard. On the other hand, you want to give convicts both a second chance at a life and also an incentive to perform well in prison; plus, you don't want to keep people rotting in prison when they can become productive and worthwhile members of the community.

So I definitely see both sides to the issue. But the current application of parole by the Board of Prison Terms seems to avoid any sort of reasonable middle ground. Apparently, the Board denies 98 percent of all parole applications, and does so nowithstanding the fact that the Legislature has stated in Section 3041 of the Penal Code that the Board should "normally" set a parole date. A 98-2 split is not exactly the ratio I'd expect from a fair and neutral body.

The California judiciary has -- thus far -- consistently rebuffed attempts to challenge the fairly obvious (and potentially illegal) parole policies that are being applied by the Board, and when a judge goes against this tide and gets involved, the resulting decision generally doesn't last very long. So too here. Judge Emerson in Santa Clara County had four separate habeas petitions involving prisoners who were denied parole in very similar settings, seemingly consistent with the Board's policy to pretty much automatically deny parole to anyone convicted of murder. But the Sixth Appellate District had previously held (in a case now accepted for review by the California Supreme Court) that in order to get relief, it wasn't enough just to show evidence that the Board was doing the exact same thing in virtually every case; rather, you'd have to introduce "statistically significant" evidence of a disparity. So Judge Emerson orders the Board to produce discovery of the basis for its pervasive denial of parole; namely, the decision sheets that articulate its reasons for the various denials. That way the prisoners can have the essential evidence required for any statistically significant showing.

Sorry, Justice Bamattre-Manoukian -- of the Sixth Appellate District -- holds. Reversed. The prisioners don't get such discovery. I guess you'll have to make your "statistically significant" showing without any statistics. Good luck!

Look, the California Legislature could certainly abolish parole. I don't think that'd be a great idea, but they could do it. Or they could pass a law that says that it should be reserved only for the most exceptional case. But, again, they haven't. What the Board's doing here seems clearly impermissible. And for the judiciary to go to such great lengths to close its eyes to the Board's obvious practice also seems improper. I'd hope for -- and expect -- more from a neutral judiciary.

Friday, July 08, 2005

Gilbert v. City of Sunnyvale (Cal. Ct. App. - July 6, 2005)

How wonderful to know that our public safety officers are looking out for the welfare of their constituents. For example, this case details the "alleged" -- I always say "alleged" lest I be all-too-easily sued -- conduct of police officer Randall Gilbert in serving the various needs of the prostitutes working at the Crystal Palace, a Korean hostess bar in Sunnyvale. Officer Gilbert was apparently ready and willing to serve, for example, when these prostitutes needed to be picked up from the airport or driven to the homes of other hookers. And when the owners of Crystal Palace (correctly) suspected that they were under surveillance by the FBI, Officer Gilbert graciously ran the license plates of various undercover FBI vehicles into the DMV computer and reported back the results to his friends at Crystal Palace. Ah, the joys of being a corrupt police officer.

Anyway, when Gilbert is eventually terminated -- and, let me assure you, even after all this misconduct is discovered, it takes a full year for him to actually be fired, all the while enjoying the comfort and benefits of administrative leave in the meantime -- rather than hide his head in shame, he instead files a petition for writ of mandate that challenges his termination and seeking reinstatement, back pay, and punitive damages.

Fortunately, he loses. And I was excited to see that Justice Elia's opinion ends with the following sentence: "Appellant shall bear costs on appeal." A tiny victory, to be sure. But it at least does something to satisfy the distaste I feel for Gilbert as a result of what I've read here. Yuk.

Thursday, July 07, 2005

People v. Dickens (Cal. Ct. App. - July 5, 2005)

Here's something you don't see every day: a trial court that is sufficiently uncertain about the guilty verdict in a criminal case that it grants a new trial, and the Court of Appeal affirms. Pretty darn unusual.

We do something like this all the time in civil cases, of course: grant a new trial because the verdict is against the weight of the evidence. (Well, admittedly, even in civil cases this doesn't happen "all the time," but it's still something that occurs with some regularity.) But it's a much more unusual -- and somewhat weird -- result in criminal cases because we're simultaneously much more deferential to the jury's verdict but concerned that only guilty people be convicted. So usually courts either just let the jury's verdict stand, if the evidence was sufficient to support it, or dismiss the charges if the evidence is inadequate. A new trial order is a much rarer result.

But this seems a quite plausible case in which a new trial order might be the most equitable result, and in any event, I definitely agree with Justice McKinster that the decision should be affirmed. (Indeed, I thought it somewhat stinky of the Riverside DA's office to argue to the contrary.) The evidence that the crime here was really premeditated was incredibly low; indeed, I thought -- as did the trial court -- that it was possible that the evidence was legally insufficient on this point. Given this fact, even if the charge isn't dismissed, it seems more than fair for the court to grant a new trial. Maybe if a second jury agrees with the first it'll persuade the judge that other minds are wiser than hers and hence that the conviction should be affirmed. But I don't at all see the need for the judge to simply say "Whatever the first jury says, goes" even if she's exceptionally dubious about the propriety of such a result. A new trial seems like a pretty good -- and just -- response.

So good job Justice McKinster. It's a good opinion, reaches a good result, and contains pretty good analysis of the arguably competing authorities to the contrary, which do indeed appear to take -- unjustifiably, in my view -- a somewhat more dubious view of new trial orders in criminal cases. And good job Judge Waters, of the Riverside County Superior Court, for not taking the easy way out and simply letting a dubious conviction stand. Sure, some will argue that she should have dismissed the charges outright. Some others will undoubtedly argue that she should have let the conviction stand. Her decision to grant a new trial may not entirely please anyone. But perhaps that's the reaction often engendered by reasonable and fair resolutions.

Anyway, my reaction is a positive one. So good job everyone.

People v. Ward (Cal. Supreme Ct. - June 30, 2005)

I should make a macro: "The California Supreme Court unanimously affirmed the death sentence of the defendant in this case." It would get routine use. Anyway, here's another one.

One might nonetheless want to read the case if only because it might make one legitimately wary the next time one was deciding whether to seek out a $20 piece of crack. Here's the Court's brief description of the factual circumstances surrounding the first murder for which defendant was convicted. It chillingly demonstrates the danger associated with even a routine drug transactions:

"With Springer in the passenger seat giving directions, Stumpf [the victim] drove to Norton Avenue, where they saw defendant -- with whom Springer had had previous drug dealings -- standing on the sidewalk with another person. They pulled up to defendant, and defendant, standing on the passenger side, asked what they wanted. Springer indicated they needed a $20 piece of cocaine; and defendant handed a rock to Stumpf, who was holding money in his hand. According to Springer, Stumpf passed it back to defendant because the rock was too small. Perceiving Stumpf had broken a piece of the rock, defendant said something like, 'You broke my shit.' He then pulled a gun, leaned in the passenger side, and fired several times from close range at Stumpf's chest."

What a random, senseless death.

P.S. - Here's the sentence that Ward receives (and which the Court affirms) for the first degree murder of Adkins: "Death, plus two consecutive years for the firearm enhancement." Death plus two years. You gotta love California.

Wednesday, July 06, 2005

Root v. American Equity Specialty Ins. Co. (Cal. Ct. App. - June 28, 2005)

Want to see the type of enlighted, well-written, equitable, and incredibly reasonable opinion that I wish were the norm rather than the exception? Here it is.

It's an insurance case, but don't let that stop you. It's a very, very good opinion by Justice Sills. I wish that I could write half as well as he does here.

P.S. - This is the third time I've been very favorably impressed by an opinion by Justice Sills; my comments about two of his other opinions are here and here. Indeed, I don't recall ever strongly disagreeing with one of his published opinions.

Which just proves that you can indeed be a lifelong politican -- Justice Sills was a former member of the Republican State Central Committee and Mayor of Irvine -- and still be an excellent Justice. Who knew?!

Tuesday, July 05, 2005

Roos v. Red (Cal. Ct. App. - June 28, 2005)

Who doesn't love nonmutual offensive issue preclusion? I do, anyway. It's been the subject of several of the exams I've given in my first-year Civil Procedure class, and also an important topic in a case that I argued a little while ago in a federal district court in Massachusetts. Plus, it's an interesting area, and one with a fancy name. So maybe that's why I got a little misty-eyed when I read this case. It brought me back to those heady days teaching students about the intricacies of res judicata. Unlike the lazy days of summer, in which I do nothing but sit back and eat bon-bons all day long. Ah, academia. I love ya.

Anyway, Justice Wood's opinion is written pretty simply; indeed, is a decent introductory primer to the topic of res judicata as a whole. The central issue here is whether the court should give offensive preclusive effect to a finding of wilfulness in bankruptcy court. (The facts: Red killed several people with his car, filed bankruptcy, the bankruptcy court found that he wilfully ran over his victims and hence that his debts to them were not dischargeable, and the victims tried to use this finding offensively to preclude Red from arguing in their state court wrongful death actions that he was not responsible for their deaths.) Defendant principally argued that the court shouldn't give preclusive effect because he didn't have the right to a jury trial in bankruptcy court, unlike his jury trial right in the state court wrongful death actions. But Justice Wood properly rejects this argument, as well as Red's ancillary arguments.

The opinion provides a good overview of Parklane Hoisery and SEC v. Monarch, two cases that we typically read in the first year. Worth a read for anyone interested in res judicata, studying for the Bar, or doing well in a first-year exam in Civ Pro.

Monday, July 04, 2005

U.S. v. Bravo-Muzquiz (9th Cir. - June 16, 2005)

Poor guy. Bravo-Muzquiz becomes a temporary resident alien in 1988 and annually renews his registration, but eventually his renewal is denied and he becomes illegal in 1995. In October 2001, he has the misfortune of being grabbed up at the Temecula checkpoint (here in sunny San Diego) because he's nervous. What's even more of a bummer for him is that he apparently took a gun safety course and keeps a "Basic Gun Safety" card in his wallet. Silly rabbit! 'Cause there's a law against being an alien in possession of a firearm. So now Bravo-Muzquiz is not only looking at being deported, but is also looking at doing time. The old double whammy.

Of course, Bravo-Muzquiz would have avoided all this if he hadn't taken a gun safety course or kept a safety card in his wallet. Oops. Plus, Bravo-Muzquiz didn't actually have a weapon when he was caught, so he wasn't actually guilty at the time. But because he had that Gun Safety Card, that gave probable cause to search his house. The crazy thing is, the police didn't search his house until two months after Bravo-Muzquiz was caught at the Temecula checkpoint. And apparently, when he was caught, Bravo-Muzquiz did not, in fact, have any weapons.

But, four days before Christmas, the police finally decide to search his house. (Nice timing, by the way. "Ho ho ho! It's not Santa Claus! It's the cops!") In the meantime, Bravo-Muzquiz had secured his release from detention by posting an immigration bond. Which, he thought, meant that he was permissibly in the country, at least pending the conclusion of his removal proceedings. And the documentary evidence reveals that the day after he got out of detention pursuant to the immigration bond, he picked up -- for the very first time -- a handgun that he had purchased on layaway. Which -- as luck would have it -- was in his house on December 21, 2001, when the police conducted the search. Ouch. So that's why they bust him for being an unlawful alien in possession.

Bravo-Muzquiz says that he thought he was cool to have the gun because he only got it once he was "legal," as he only picked it up once he was out on an immigration bond. For this reason, he claims, he was not an alien "illegally or unlawfully in the United States," which are the only people who aren't allowed to possess guns under the statute. But Judge Hug disagrees, and affirms his conviction. So it's prison, and then deportation, for Bravo-Muzquiz.

Yeah, yeah, ignorance of the law is no excuse. But there are some strong cases that support Bravo-Muzquiz' interpretation of the statue. I hate to see a guy go to the joint because he thought that what he did was legal. We all can't be lawyers and read the statutes. And even if we could, we certainly can't exect laypeople like Bravo-Muzquiz to parse precedent in the manner performed by Judge Hug. Maybe he's in fact guilty. But I can definitely see why he thought he wasn't. And you've got feel at least a bit bad for sendng people to jail under such circumstances.

Friday, July 01, 2005

U.S. v. Sears (9th Cir. - June 20, 2005)

Time for a pop quiz. There's a criminal case that involves whether the court should supress evidence obtained in a search pursuant to a warrant. The panel is Bybee, Fletcher, and Kozinski. One of them dissents. Who is it, and which way does he go (i.e., does he want to supress or admit)?

What's your answer? Write it down in the space provided. You have 60 seconds.

Tick, tock, tick, tock . . .

Okay. The best guess would be that Bybee and Kozinski (the two conservatives) are in the majority upholding the search and that Fletcher dissents. But that's too obvious. It wouldn't be worth mentioning. And it's also wrong. Another good guess would be that Kozinski (the libertarian) would join Fletcher and suppress the evidence, with Bybee dissenting. That could happen too. But not here. The most absurd guess would be that Fletcher and Kozinski would want to admit the evidence and Bybee would want to suppress. That'll happen when pigs fly.

The correct answer is, here, that both the conservative (Bybee) and liberal (Fletcher) vote to admit the evidence and the libertarian (Kozinski) votes to suppress. Not too stunning, but still, not a split that you're likely to see a lot of times. Admittedly, it's a somewhat weird case, in which everyone (including the United States) admits that some of the evidence needs to be suppressed, and the only dispute is about whether the warrant is facially invalid -- and hence all of the evidence needs to be suppressed -- or not. Regardless, the makeup of the majority is an interesting one. Not what you'd probably predict.

People v. Miller (Cal. Ct. App. - June 15, 2005)

Orange County Superior Court Judge Suzanne Shaw had a pretty bad 24 hours. She is reversed during that period not once, but twice, in the Court of Appeal. Both times in an opinion by Justice Moore. And both times in an opinion that was originally unpublished but that Justice Moore thereafter was convinced to published. Ouch.

The first reversal was in People v. Gallardo, where Judge Shaw gets reversed because she suppressed the results of a traffic stop (a case I briefly discuss here). The second is this case, where Judge Shaw gets reversed because she refused to suppress the results of a traffic stop.

Reversals both times. Sometimes you can't win no matter what you do.

P.S. - Judge Shaw apparently has had far worse days, including June 26, 2000, which was the day on which the Commission on Judicial Performance issued a public admonishment of her for, inter alia, a conversation in which asked the defendant: "You know what they do to skinny white boys in prison?" Not exactly what you want to hear from your judge. There's some more stuff about Judge Shaw in the CJP's findings. Looks like she's quite an interesting jurist. Well worth a read.