I promise that I'm going to write about res judicata soon. I'm certain that an anxious world awaits. I've just been awake for 48 straight hours now finishing up a brief, and don't have it in me to do much other than drive to the courthouse in 30 minutes to file the thing (due later today, of course).
In the meantime, definitely take a gander at this opinion by Justice Vogel, which is both incredibly brief (only eight pages) as well as incredibly frightening. It is a photo identification case, where the defendant is picked out of a traditional "six-pack" of photographs by a witness.
Take a look at the six-pack here, which Justice Vogel helpfully reprints (photos!) on page four. Do you notice that the defendant is smack dab in the middle, and that his is the only photograph that has a name and identification number immediately under his picture?! And then did you read when Justice Vogel noted that the prosecutor testified that every single photographic six-pack always has both (1) the defendant in the immediate bottom center of the six-pack, and (2) the name of the defendant and his identification number -- and only his name and identification number -- on the six-pack, immediately below his (and only) his name?! So that whenever a witness is shown a six-pack, the only photograph that has a name and ID number beneath it is the picture of the suspect?!
Stunningly, the witness here circles the picture of the defendant. You know: the one in the middle, and the only one with a name and (jail?) identification number on it! What a shock.
I can't believe -- I really can't -- that this is honestly the uniform practice in L.A. County. If it is, there should be a lot more habeas petitions granted in addition to this one. What a stupid, utterly absurd practice. Beyond giving the witness a "hint" as to which photograph to hint, I can't think of a single rational reason why it would be necessary to uniformly structure the six-packs in such a fashion. Wow.
