People v. Nelson (Cal. Ct. App. - Aug. 31, 2006)

I think that Justice Scotland gets this one right. It's admittedly difficult to defend yourself against a murder charge for something that happened 26 years ago. As a result, sometimes, we shouldn't allow such belated prosecutions.

But when the reason you're eventually charged is because you've been definitively linked, though newly available DNA evidence, to a brutal rape and murder, you're legitimately subject to prosecution. Yes, the crime occurred in 1976. Which is a long time ago, not only temporally (and culturally!), but also as regards the availability of witnesses, evidence, and the like.

Quite frankly, however, my instinctive reaction is that this is simply yet another good reason not to commit a murder. Or any other criminal offense with a long -- or infinite -- statute of limitations. Because, eventually, the police may catch up with you. Which, quite frankly, I hope they do. And when they do, we're not going to let you off merely because you've remained free during the past 26 years. By contrast, and just as a reminder, the victim has remained dead that whole time. So, honestly, even with the belated prosecution, you still got the far better end of the deal.

Yes, yes, I know: Maybe the defendant is actually innocent, and the delay in bringing him to court will allow an innocent man to be incarcerated. But my strong sense is that there wasn't much of a risk of that happening here; or, at a minimum, that the delay here didn't make it especially likely for Nelson to be convicted even if he was in fact innocent any more than in the usual case (e.g., as a result of inevitable human fallibility).

It's obviously a particularized inquiry. But, here, I'm happy that Nelson was prosecuted, and think that the result reached by Justice Scotland was the correct one.

Sometimes you can't, in fact, get away with murder. At least forever.

Funky Films, Inc. v. Time Warner Ent. Co. (9th Cir. - Aug. 29, 2006)

Let's play a game. I'll give you a quote. You read it, and tell me where it came from. Ready? Here goes:

"'Six Feet Under' explores the intimate lives of each member of the Fisher family by examining each character’s complex psyche and his or her interpersonal interactions and emotional attachments. . . . [The series] is not so much a story about death as it is about the way the characters struggle with life in the wake of the cataclysmic death of the father. . . . [It] is a neo-realistic, postmodern account of family and romantic relationships, without any overarching religious themes or overtones. Themes of love, romance, death, and sexuality are explored entirely through the characters’ complex interactions. The story focuses on the characters’ longing for connection, their insecurities, and their complaints." (emphasis in original)

Does this quote come from:

(A) TV Guide.
(B) A reader review of the series on imdb.com.
(C) The back of the box DVD set of "Six Feet Under -- The Complete First Season".
(D) A judicial opinion by Judge Fletcher.

(A) through (C) are all reasonable choices. Though the correct answer -- surprisingly enough -- is (D).

Though I wouldn't be at all surprised to see (D) promptly reprinted on any of (A) through (C).

Nice side job you have there, Judge Fletcher. I'm looking forward to the development of a weekly television show -- tentatively called "Epert and Fletcher" -- sometime soon.

See you at the movies!

People v. Gonzalez (Cal. Ct. App. - Aug. 29, 2006)

Here's another reason not to hunt animals. Sure, the deer won't shoot you. They can't pull a trigger. No opposable thumbs, after all.But what about that guy with a shotgun who -- unbeknownst to you -- is growing a big field of marijuana near where you're stomping around hunting. He probably has not one, but two thumbs. And, more importantly, a trigger finger as well. And even before you spot the marijuana, he may elect -- without warning -- to blow you, and your three year old son, away.

Which is what happens here. Thankfully, both the father and the son survive. But it wasn't pretty.

Just remember that the next time you go out into the wildnerness looking for prey. You might not be the only one out there with a gun. And you might, unknowingly, be prey as well.

People v. Massie (Cal. Ct. App. - Aug. 29, 2006)

I disagree with Justice Scotland. Yes, the facts of this case are deeply, deeply disturbing. But, respectfully, there was not "overwhelming" evidence of torture.

Nonetheless, this is a good example of the simple reality that certain facts inevitably have an effect on human beings, including judges. It's a horrible rape. There's a three year old child in the other room. When the defendant pushes his way into the bathroom and enters with a knife, after a brief struggle, the victim says "Fine, take me, just don't kill me." Defendant then assaults the victim both sexually and violently, and, after another brief struggle, starts to cut the victim with broken glass from a picture frame. And after defendant starts cutting the victim's neck and wrists, the victim -- convinced that defendant is trying to kill her -- tells the defendant: "Jesus loves you. If you kill me, he's going to forgive you if you ask him." A statement to which the defendant responds by becoming even more violent towards the defendant.

Those kind of facts get you sentenced to life in prison. Twice. And lead a Court of Appeal to affirm your conviction for torture.

There's a reason Justice Scotland includes in the opinion -- and is clearly affected by -- the victim's statements. Even though they're, legally, entirely irrelevant to whether or not the violence inflicted on the defendant is sufficiently large to establish torture.

Facts matter. Emotional reactions matter. And they did here.

Allen v. Bayer Corp. (9th Cir. - Aug. 29, 2006)

Want to be a district court judge? Seems like a good job, you say? Tolerable salary. Life tenure. Law clerks to do some of the work for you. Get to wear a robe during the day. Sounds pretty cool, eh?

Just to be sure, read this opinion, and get a sense of what it must be like to be Judge Rothstein in the Western District of Washington. In what I can only imagine was punishment for evils in a previous life -- and resulting bad karma -- Judge Rothstein was assigned the 3300 MDL cases alleging injury from phenylopropanolamine ("PPA"), which was used in many decongestants and weight-control products until the FDA discovered that it potentially increased the risk of stroke.

The opinion gives a keen sense of three things. First, the procedural nightmare -- and judicial streamlining and short-circuiting -- that necessarily accompanies these mass MDL cases. Second, the critical nature of active judicial involvement in providing individualized structure to the litigation of such disputes. Finally, the opinion reflects just how poorly some (and perhaps many) lawyers litigate these MDL cases, and the large numbers who fail to perform even the most simple tasks and even after dire and repeated warnings that their cases will be dismissed if they fail to comply.

This is undoubtedly the case only for a portion of the claimants. But one nonetheless gets a strong sense that at least some portion of the lawyers in these case are merely pushing paper around -- and not even doing that! -- in a effort to obtain a quick buck in the hope that they can file a facile claim in a mass tort action and obtain a contingency without actually providing much (if any) service to their clients.

There are assuredly lawyers in these MDL cases that do massive amounts of work, and are justly rewarded for their efforts. But then there are the lawyers, and cases, discussed at length in this opinion. Which do not look good.

Admittedly, in some cases, perhaps the clients are also to blame. Perhaps the clients are the ones (or are also) looking for easy money without any actual effort or demonstration of harm. But I can't help thinking that, for at least most of the cases mentioned in this opinion, the cases were dismissed largely due to the incompetence of counsel.

Which is unfortunate.

Anyone who hasn't been personally associated with an MDL case will get a keen sense of (parts of) them by reading this opinion. It's both informative and enlightening.

Priebe v. Nelson (Cal. Supreme Ct. - Aug. 28, 2006)

Here's a case that should be of interest to anyone who, like me, has a dog. At least if you have a dog that might bite someone. (And, in the proper circumstances, pretty much any dog can bite.)

Justice Baxter's opinion holds two things. First, he holds that even though there's a strict liability statute (Section 3322 of the Civil Code, commonly known as the "dog bite" statute) that makes the owner of a dog strictly liable for any dog bites -- even if s/he didn't have reason to know that the dog might bite -- that law doesn't apply to kennel workers; e.g., when your dog bites someone at a dog kennel. Dog bites in such settings are, the majority holds, instead governed by a beastly version of the "firefighter rule" -- a/k/a, in the animal context, the "veterinarian rule" -- which says that since the victim basically contracted to take on the risk of injury, there's no duty (or at least, no strict liability). Second, notwithstanding the inapplicability of the strict liability statute in such settings, Justice Baxter holds -- in a single paragraph at the end of the opinion -- that a kennel worker can still assert a common law strict liability claim against a dog owner who knowingly keeps a domestic animal with vicious propensities.

As to the central holding, I agree with Justice Baxter, and disagree with Justice Kennard's dissent. Justice Kennard thinks that the majority is disregarding the statute by creating a common law defense. But, in my view, the common law does that all the time; indeed, that's both the power and the wisdom of the common law. The Legislature doesn't think of everything, nor do its categorical pronouncements necessarily envision coverage in all possible scenarios. For example, the Legislature may say (indeed, has said) that everyone is responsible for their own negligence. But such a statute doesn't stop -- nor should it stop -- the judiciary from creating common law rules such as primary assumption of the risk, laches, etc. So I think that Justice Baxter's opinion does something that's both entirely legitimate as well as advantageous from the perspective of public policy. It does indeed seem to me that a kennel worker who has contracted to take care of an animal shouldn't be able to sue if, in taking care of that animal, s/he is bitten. That danger is inherently part of the job.

The only (somewhat marginal) problem that I have with Justice Baxter's opinion is the final paragraph, which holds that kennel workers still may be a common law strict liability claim for harboring a vicious animal. This conclusion seems inconsistent with the preceding analysis. If, as Justice Baxter clearly holds, the owner of an animal has no duty to a kennel worker with respect to injuries that might result from a dog -- or if (again, as Justice Baxter also holds) the kennel worker has contracted to undertake the risk of injury -- then I'm not sure it makes sense to allow a common law strict liability claim even if the dog is vicious. That's the danger of working in a kennel and agreeing to board a dog, no? And, if there's no duty to a kennel worker, then where did the common law duty come from that creates strict liability in such settings?

I'd have liked to see that final -- important -- paragraph explored a bit more. But otherwise, I'm on board for both the analysis and the result. Good job, Marvin.

People v. Bradley (Cal. Ct. App. - Aug. 24, 2006)

Ah, the life of a public official in Compton. Which, as far as I can tell, basically consists of petty corruption and fraud, including charging personal expenses to your City credit card as well as double-billing your travel expenses by obtaining cash advances for them and then, instead of paying for the expenses with the advance, charging these expenses to the City credit card.

At least that's what I gather from this opinion, in which Justice Flier (properly) upholds the convictions of the former mayor of Copton (Omar Bradley), a former city councilman (Amen Rahh), and the former city manager (John Johnson).

What's perhaps most amazing about this case is how little it took to corrupt these people. Each of these people stole something around $15,000 or so during their tenure as an elected official. Amazing.

I wonder if that's indicative of how easy it is to bribe public officials -- or at least officials like these -- as well. I figure that if you're willing to steal, you're willing to be bribed. I'd have never guessed that bribes could be in such small amounts and yet be effective. Who knew?!

People v. Stanley (Cal. Supreme Ct. - Aug. 24, 2006)

There are many reasons not to visit Oakland. Raiders fans being only one of them.

The first ten pages of this opinion, which discuss Darren Stanley's violent crime spree in that fine city during Christmas 1988 (and the three weeks thereafter), add yet another reason. Not a place, or time, that I'd want to be in Oakland.

P.S. - I especially like the last sentence of the second paragraph of the California Supreme Court's opinion: "We affirm the convictions and judgment of death but order defendant’s determinate sentence reduced by two years." In other words: "I've got some good news and I've got some bad news. The bad news is that, yes, we're indeed going to kill you while you're in prison. But the good news is that you're going to get out of prison two years early." Hurray!

People v. Lewis & Oliver (Cal. Supreme Ct. - Aug. 24, 2006)

It's a simple message. But nonetheless one worth mention:

Don't enter into a bigamous marriage, repeatedly commit domestic violence upon your "wife", terrorize her after she leaves you once she discovers that you're already married to someone else, and then assault a church during services and shoot and kill several of her family members worshiping therein.

Oh, and don't help your friend do so either. Because if you do, you'll both be sentenced to death. And the California Supreme Court will affirm both of your sentences in a unanimous opinion that spans 127 pages.

Assaulting a church during services in order to kill your ex-wife's family because she left you once she discovered you were a bigamist. Wow. You're pretty much begging for the death penalty, no?

M2 Software v. Madacy Entertainment (9th Cir. - Aug. 21, 2006)

Here's another reason to put your stock market investments into a blind trust once you become a judge. That way, you won't have to deal with motions such as these. And the resulting implicit (or even explicit) attacks on your actual or apparent partiality.

Judge Pregerson doesn't recuse himself, and I think he's right that his failure to do so doesn't justify recalling the mandate. Still, it would probably have been better if the problem had never arisen in the first place.

Moreover, as this case amply demonstrates, you often aren't aware of a recusal problem until after you've written the opinion and/or participated on the panel. Yet another reason to avoid potential conflicts at the outset.

Blind trusts. Learn it. Live it. Be it.

Thompson v. County of Los Angeles (Cal. App. Ct. - Aug. 22, 2006)

The County of Los Angeles wins this case at trial, and Justice Doi Todd affirms the judgment. I don't see anything wrong with that.

The facts of the case are nonetheless a tiny bit disturbing. Here's what happens:

"On February 8, 1991, appellant tried to steal two cars. . . . Shortly thereafter, Los Angeles County Sheriff’s Deputy Patrick Cleary responded to an attempted robbery and car theft call at a 7–Eleven store in Downey. When he arrived at the store, he saw appellant run through a nearby alley and then climb over a block wall. Once Deputy Cleary had positioned himself at one end of the alley and some neighborhood youth [!] at the other end to contain appellant, he called for backup. Sheriff’s Deputy Ken Lawrence, a dog handler, and Sergeant Robert Devot were among those who responded to Deputy Cleary’s call. They learned that appellant was a carjacking suspect on parole and that he had a prior weapons-related offense, but they did not receive any information to establish that he was armed or had injured anyone at this particular time. The deputies announced via both car loudspeakers and a helicopter that a dog would be deployed. At that point, appellant was under a car in a carport, hiding from the police. Approximately 15 minutes after the announcement—and 30 to 40 minutes after appellant had climbed over the block wall—the deputies began using a search dog.

The dog made its way to the carport where appellant had been hiding for 30 minutes, and Deputy Lawrence deployed the dog into that area attached to a 60-foot leash. When the dog first barked at appellant, he did not move. A few moments later, appellant heard a voice, the dog stopped barking and lights shone on the carport area. Appellant heard a voice over a loudspeaker directing him to come out from under the car with his hands in the open. As he started to comply, the dog bit appellant’s leg. Appellant screamed 'get him off.'

Meanwhile, Deputy Lawrence could not see the dog once it had entered the carport; he first saw it again when appellant, seated, was fighting with the dog—trying to pull the dog’s muzzle off of his leg and punching the dog in the head. The dog continued to bite down on appellant’s leg and also bit his hand when he tried to remove the dog by grabbing and pulling on its jaw. Both Deputy Lawrence and Sergeant Devot yelled at appellant to stop fighting the dog, but appellant continued to struggle with the dog, eventually grabbing and twisting its collar, choking the dog.

At that point, Deputy Lawrence began striking appellant with his flashlight, hitting appellant’s left arm, shoulder and leg in order to stop him from fighting the dog. Sergeant Devot also used his flashlight to strike appellant once. When appellant still had not released the dog, Sergeant Devot grabbed appellant’s arm while Deputy Lawrence grabbed the dog’s collar and pulled the dog off. Deputy Lawrence kicked appellant’s
upper body while pulling the dog away and both he and Sergeant Devot were ultimately able to restrain appellant.

Sergeant Devot and Deputy Cleary then handcuffed appellant. Appellant lost consciousness intermittently, waking up at one point in a patrol car and at another point in an ambulance. He regained full consciousness at Los Angeles County U.S.C. Medical Center, where he remained for the next four days. He sustained a large laceration to his lower left leg and backside as a result of the dog bite, as well as dog bites on his hands. He also sustained a blunt force trauma to his lower right leg. After his release from the hospital, he was confined to the jail hospital for another month. He also suffered an infection that required daily care for several months. Longer term, appellant lost some control over his left foot, had significant tissue loss and suffered from prominent deformities and scar tissue that negatively affected his mobility."

I was on board for releasing the dog. But I was a bummed when the dog bit the guy as he was following the police's instructions to get out from under the car. And could understand why the guy instinctively -- but obviously wrongly -- tried to fight the dog that was currently chomping on his body. Then, of course, came the multiple blows of the heavy flashlight, by both Deputy Lawrence and Sergeant Devot. Which gotta hurt. Then there's Deputy Lawrence's final kick on the guy's torso while the dog's being pulled away. Nice.

I understand why everything went down as it did. Still, that's an awful lot of injury for a dude that's just trying to get out from under the car to give himself up.

Doesn't seem right.

People v. Alonzo (Cal. Ct. App. - Aug. 21, 2006)

This is an incredibly short opinion that tops out at a mere seven paragraphs. In which Justice Yegan holds that a wallet with decorative metal spikes on the outside can constitute "metal knuckles" (e.g., brass knuckles) prohibited by Section 12020.

Watch out, all you ex-punk rockers out there. Those spiked collars and wristbands -- one of which I'm happy to say I still possess (a gift from Tallie Gray, if I recall) -- might potentially qualify as well.

Take that, Johnny Rotten.

People v. Rogers (Cal. Supreme Ct. - Aug. 21, 2006)

Something old, something new. First, the old. The California Supreme Court unanimously affirms a death sentence, and does so in an opinion that spans 111 pages. Been there, done that. Second, the new. The death sentence here was imposed against David Keith Rogers, who was a Kern County Sheriff's deputy who murdered two prostitutes in Bakersfield -- 20-year-old Janine Benintende in January 1986 and 15-year-old Tracie Clark on February 8, 1987.

There seems utterly no reason why Rogers killed these women. And that's not something -- committing cold blooded murders of multiple women -- that I want my Sheriff's deputies doing, thank you very much.

Amy G. v. M.W. (Cal. Ct. App. - Aug. 17, 2006)

Wow. Talk about messed up.

Father is married to Amy. Father has an extramarital affair with Kim, who is married to (but separated from) Steven. Father impregnates Kim. Kim hides her pregnancy from her family and friends moves to Virginia, where she has her child with Father, Nathan. Kim takes care of Nathan for a month, but then Father flys to Virginia, where he meets with Kim in a hotel lobby. Father presents Kim with documents -- which Kim signs while sitting in Father's limousine (!) -- that state that Kim agrees to give sole custody of Nathan to Father, to waive visitation, and to consent to Nathan's adoption by Amy. Kim then hands Nathan -- and all of Nathan's clothes, formula, diapers, and toys -- to Father, and Father returns them all to California that evening. And, since 2003, Nathan, who is now three years old, has lived with Father and Amy.

I shan't even attempt to describe the various lawsuits that shortly arise therefrom. Let's just say that Amy, Father, Kim and Steven are each parties to multiple actions in which Father, Amy, and Kim (but not Steven) are trying to assert some degree of parentage over Nathan.

Which is a mess. Justice Klein's opinion discusses various tough issues, including standing, joinder, presumed parentage, and other doctrines. But, in the end, we're still left with a mess. How'd you like to be Nathan? Or even Kim, or Father, or Amy?

This is a no-win situation for everyone. Yuk.

People v. Alvarado (Cal. Ct. App. - Aug. 16, 2006)

Vouching. Don't do it. It'll get you reversed. And, as an aside, it's also fundamentally unfair.

Like here. Here are the first words out of the prosecutor's mouth to begin her rebuttal closing argument:

“I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it.”

That's vouching. It's improper. And, indeed, it got the conviction reversed.

I can understand why the prosecutor said what she did. Or, more accurately, why she thought that it might be okay to say what she did. But she was wrong. Plus, even purely as a tactical matter, the benefits of vouching -- even in a case where you think it might be okay -- are rarely worth the risk of a reversal. So don't do it. And, again, it's also wrong. Convict on the merits. Don't try to convict by getting the jury to take your words for it. Play tough, but also play fair.

That said, while I understand that Business and Professions Code 6086.7 requires that the opinion be referred to the State Bar since the conviction was reversed for prosecutorial misconduct, I also hope -- and very much think -- that the prosecutor won't get in disciplinary trouble for what she did. She made a mistake; indeed, an error of judgment. But she didn't do something worthy of further sanction. At least in my mind.

One final point. Justice Rothschild -- in the majority -- clearly wins the debate with Justice Vogel (in dissent)regarding whether the error was prejudicial. Indeed, in all honesty, I'm frankly stunned -- and yet, ironically, simultaneously not entirely surprised -- by Justice Vogel's view. Justice Vogel thinks there was no prejudice because there was a single eyewitness who testified that he was sure the defendant was the guy. But wholly apart from the many, many reasons elicited at trial why the eyewitness might not be believed (and there's so much on that issue here), to say that the testimony of a single eyewitness allows us to be confident that the defendant did it -- and hence that the jury would have convicted anyway -- so flatly conflicts with all of the modern research and analysis regarding the flaws of eyewitness identifications that I really wonder what Justice Vogel could possibly be thinking. To hear a judge essentially conclude "Oh, well, he was identified by an eyewitness, so we're sure he did it, even though there's no other evidence at all against him" in the modern era is pretty surprising. And yet, sadly, perhaps not surprising at all.

Old habits -- and beliefs -- assuredly die hard.

Seever v. Copley Press (Cal. Ct. App. - Aug. 15, 2006)

Michael Seever worked as the building supervisor for the Daily Breeze, a newspaper in Torrance. By 2001, the Daily Breeze was losing a great deal of money, so some staff members -- including Seever -- were terminated in order to reduce costs. Seever filed suit, claiming that his termination was the result of discrimination based upon, inter alia, age, disability, and family and medical leave.

It was a lengthy, intensive lawsuit. Seever took 20 depositions and propounded 780 document requests. The Daily Breeze -- owned by Copley Press -- made a statutory settlement offer to resolve the suit in return for its agreement to pay over $200,000, plus costs and attorney's fees. Seever rejected the offer.

Big mistake. The case goes to trial, at which point the jury returns a defense verdict on all counts. And Copley Press is awarded over $85,000 in costs, including expert witness fees. And although Justice Woods tinkers a tiny bit with the amount of the cost award, in essence, plaintiff also loses on appeal.

From up $200,000+ (plus fees) to down $80,000+. Yikes. Sometimes it's a good idea to settle, huh?

U.S. v. Hill (9th Cir. - Aug. 11, 2006)

Two things about this case.

First, if recent opinions by the Ninth Circuit are any indication, there has been an explosion in child pornography prosecutions lately. I kid you not when I say that every other Ninth Circuit opinion recently seems to involve a kiddie porn prosecution. It was sufficiently weird to see all these child pornography cases that I actually went back and counted them. There's Hill today. The day before, there was Battershall. Two days before that, there was Ziegler (which I discussed here). And a couple weeks ago there was Romm (which I also discussed, here).

During this period, there were 13 published Ninth Circuit opinions in criminal cases. 4 of the 13 -- over thirty percent -- of these cases involved child pornography prosecutions. And, during the past three days, 3 of the last 8 Ninth Circuit opinions in criminal cases days have been child porn cases.

What's going on here?! Was it NAMBLA week at the Ninth Circuit? Weird.

Second, check out who the trial court judge was in this latest case. None other than our own Alex Kozinski. I guess he (and his clerks) don't have enough work to do on the Ninth Circuit to keep them sufficiently busy, so he's got to troll in the district court for some extracurricular fun. And no, I'm not saying he was deliberately trolling for kiddie porn cases. Get your minds out of the gutter.

P.S. - How'd the case come out, you ask? Well, you'll be happy to know that Judge Kozinski's colleagues on the Ninth Circuit unanimously affirmed his decision below. And even said nice things about him. Shockingly.

U.S. v. Mohamed (9th Cir. - Aug. 11, 2006)

I can summarize this seventeen-page, single spaced opinion pretty easily. Indeed, in two sentences:

If you're a total loser and petty thief, don't make a phony terrorist threat after 9/11 -- here, the one in 1994 that claimed that terrorists were planning to blow up shopping malls in Los Angeles -- that results in massive public disclocation, all in an absurd attempt to (somehow) curry favor so that hopefully the INS will let you back into the United States. Because if you do, the district court isn't going to follow the sentencing guidelines' recommendation that you get 12-18 months in prison, and will instead depart upward and send you to prison for five full years, and even a liberal majority on the panel in the 9th Circuit will affirm the sentence, since we ain't gonna help out no two-bit fake terrorist wannabe.

See? I just saved you seventeen pages of reading. Consider it an early birthday present.

Now get back to work.

U.S. v. Flatter (9th Cir. - Aug. 9, 2006)

You know the government has done something obviously wrong when a panel that consists of Judges Bybee, Beezer and Tallman unanimously reverses a criminal conviction on the basis of an illegal search.

Which is what happens here.

Andrew Flatter allegedly is a postal worker who (allegedly) steals some (alleged) mail. After a sting operation in which they (allegedly) catch him stealing some mail, the postal inspectors interrogate Flatter. But before they do so, in a classic move, in order to "make sure he doesn't have any weapons" -- yeah, right -- they pat Flatter down. At which point, during the frisk, they feel the missing envelope that they think Flatter stole during the sting (but which they couldn't see on the videotape), seize it, and then introduce it into evidence at Flatter's trial.

But the Ninth Circuit reverses. It's clear that you have to have at least a suspicion that someone's carrying weapons in order to conduct a Terry search. And there was utterly none here. Sure, it would be dangerous if Flatter had some weapons. But that's not enough to justify a search; after all, it would be dangerous if anyone had weapons, so if that's all that was required, there'd be no limits.

You've instead got to have reason -- or at least a reasonable suspicion -- to believe that the person actually has a weapon before you can conduct your (ostensible) search for weapons. Which didn't exist here. Sure, if you've investigating a drug dealer, maybe the fact that he's an (alleged) drug dealer is good enough to justify a frisk, since lots of drug dealers carry weapons. But, last I checked, postal workers who steal mail rarely do so while packing. Hence no legitimate frisk.

Seems like the panel gets this one right.

Comer v. Schiro (9th Cir. - Aug. 10, 2006)

This one's interesting (and short), and something you don't see every day. A published order in which one of judges -- Judge Rymer -- tells her colleagues: "Get off your duff and write the opinion already, this appeal has been going on for years." Whereas the other two members of the panel respond with a paragraph that says, in essence: "Hey, this is a toughie. We're working on it. Leave us alone."

Of course, there's an additional subtext to all of this. It's a death penalty case. And one in which the defendant wants to die. Judge Rymer, not surprisingly, wants the sentence executed. Quickly. By contrast, the other two members of the panel -- Judges Ferguson and Pregerson -- want the exact opposite. Hence the delay.

What's perhaps most interesting is that the spat goes public. That's Judge Rymer's call, of course, since she's almost certainly the one who called for the published order. Still, an interesting dynamic. One that you'll occasionally see when, as here, you have a panel that's addressing a hot-button issue (especially the death penalty) and that contains two hard-core members of one side of the political aisle and one member on the other side.

That said, I think that Judge Rymer's decision will have an effect. Even though the appeal has been pending for many years, I bet you'll now see an opinion on the merits in this case -- and one that, I'm quite confident, will end up finding a violation of constitutional rights -- within the next several months.

Stay tuned.

U.S. v. Ziegler (9th Cir. - Aug. 8, 2006)

I don't know about you. But if I'm Jeffrey Ziegler in this case, I don't know that I would have filed an appeal.

Ziegler downloads kiddie porn on his computer at work, after using searches for "preteen girls" and "underage girls". His employers catch him and turn him over to the FBI. He eventually enters into a plea bargain and, as a result, the (very serious) child pornography charges against him are dismissed in return for his plea of guilty to receipt of obsence materials. He's sentenced to two years of probation and a $1,000 fine.

No jail time. Probation. A $1,000 fine. A conviction merely for "reciept of obscene materials" -- without any reference to kiddie porn. Seems like a pretty good result to me.

But he decides to appeal. But not only does he lose the appeal, but it also results in a published opinion that informs the world that Ziegler accessed kiddie porn. That his conviction wasn't just downloading rancy sex stuff from the internet, but instead involved underage children.

I'd rather do the probation and pay the $1,000 fine, thank you very much. Even if I had won the appeal. Just don't tell the world what I was downloading at work, please.

Not an appeal I would have filed, I think.

People v. Terrell (Cal. Ct. App. - Aug. 8, 2006)

Robbery #1 happens a little after 1:00 a.m. on November 17, 2001. The robber points a gun at the victim's stomach and says "Give me the money." The victim hands over his wallet, and the robber departs.

Robbery #2 happens a little after 1:30 a.m. that same day. The robber points a gun at the victim's stomach and says "Give me your money." The victims hands over her wallet and purse. At the same time, a second robber (alongside the first) says to the second victim "Freeze . . . this is a stickup." Victim #2 doesn't believe Robber #2, and so (boldly) says "Show me the weapon." At which point -- and I love this -- Victim #1 says to Victim #2 "Quit being an effin' smartass and give him the money." Robber #2 then pulls out his gun and points it at Victim #2's stomach. Robber #2 gets $160 from Victim #2's pockets and both robbers run off.

Robbery #3 happens between 1:30 a.m. and 2:00 a.m. that same morning. The robber points a gun at the victim's stomach and says "Give me your f***ing wallet." Sounds familiar, no? Except listen to what the victim says this time. He says: "No." The robber repeats his demand. The victim again says: "No." The robber then turns to the woman who's with the victim, points the gun at her, and demands her purse. She gives it up. Then the robber goes back to the victim and twice again demands his wallet, pointing the gun at him each time. To which the victim again consistently responds: "No."

So what does the robber do? After the victim's final refusal, the robber shoots the victim in the chest. The victim -- who was the son of a California state senator -- dies four hours later at the hospital.

Four victims relinquish their money. All live. One refuses. He dies.

Example No. 1000 of the modern day truism: Give it up when you have to. It's only money. It's not worth your life.

People v. Ramirez (Cal. Supreme Ct. - Aug. 7, 2006)

It will suprise no one that the California Supreme Court unanimously upheld the death penalty sentence of Richard Ramirez, a/k/a the Night Stalker. There's no way in the universe the California Supreme Court was going to reverse the death sentence in such a high-profile case. There ain't gonna be a Rose Bird II.

(Not that the Court wasn't correct on the merits, mind you. Just that the merits didn't especially matter.)

Two more things that also weren't at all surprising. (1) The opinion is over 100 pages. That's what you get in these types of cases. Long, long, long. Related to: (2) The automatic appeal alone took over 16 years since the death sentence was imposed -- a full 22-plus years after the first murder. And petitions for certiorari, as well as state and federal habeas proceedings, have not yet even begun.

That's "justice" in death penalty cases. No one -- on either side of the issue -- can be happy with the present state of affairs.

Nobody v. Nobody (Everyone - Aug. 4, 2006)

One (boring) opinion by the California Court of Appeal today, none yesterday, and no opinions by the Ninth Circuit today either.

Heck, if everyone else is gonna take a vacation day, I will too. No post today. Time to hit the pool.

Stark v. Hickman (9th Cir. - Aug. 1, 2006)

Today was a boring day in the Ninth Circuit and California appellate courts. One published opinion from the Ninth Circuit, nothing at all from the California Court of Appeal, and one opinion from the California Supreme Court (which reached a result that I thought was entirely correct). So a sleepy Thursday.

This does give me an opportunity, however, to go back and talk about another case from a couple of days ago, a case that's fairly unremarkable for its legal doctrine -- at least in my view -- but nonetheless evoked in me an emotional response. It's a habeas case involving a second degree murder conviction. (In truth, the defendant was convicted by the jury of first degree murder, but the trial judge found the evidence insufficient to support a first degree murder conviction, so reduced it to second degree.)

Here's what happens. Thomas Stark and Marilyn Stark are married in 1972. They have two kids. After 23 years of marriage, in 1995, Marilyn starts having an affair with Steven Johnson. Which happens. The affair apparently goes on for a while, since in the summer of 1996, Marilyn tells Thomas about the affair, and shortly thereafter, Marilyn moves in with Steven.

Needless to say, these events bum out Thomas. Severely. He lost weight, couldn't sleep, became depressed, wept frequently, and often spoke of committing suicide. Shortly after Marilyn moved in with Steven, Thomas had a couple of confrontations with Steven, and threatened him each time. Obviously, Thomas wants to have his wife back, and can't get over the fact that she's not with him. Irrational, of course. But it happens.

Things go on like this for a while, though apparently without any more confrontations between the two men. Then, in February 1997, Marilyn and Thomas have dinner, apparently to discuss possible reconciliation. But Marilyn decides that's not what she wants at this point, and tells Thomas at the restaurant that she's not going to move back in with him. But when they leave the restaurant, they notice that Steven is following them in his car. Steven somewhat freaks out when Thomas and Marilyn return to the former marital abode, and while he and Marilyn are talking in Thomas' front yard, Thomas comes out of the house with a gun, telling Steve "Leave, little worm." Steve, by contrast, tells Thomas to put the gun down and "fight like a man". But when Thomas will do no such thing, Steve returns to his truck and leaves. (Parenthetically, I think it profoundly unwise to tell someone with a gun to "fight like a man". It's not likely to persuade them, and such a comment may well end up getting you killed. But I guess I'm not really in the head of the gun-toting, or fight-provoking, manly men of this world. Hardly something I'm desperate to change.)

Anyway, after all this, Thomas and Marilyn go into the kitchen, at which point Thomas talks about suicide. Not a good sign. Then, in an even worse sign, 45 minutes later, Steven returns to Thomas' house. At which point Marilyn tells Steven to leave, but Steven starts screaming for Thomas to (you guess it) come out and fight. Eventually, Marilyn persuades Steven to leave. Then Marilyn goes to a bowling alley to find Steven, and when she returns to Thomas' house, Thomas tells her that he has spoken to Steven and that Steven is going to come over to the house and "settle" the matter once and for all. Bad sign.

Sure enough, Steven drives on over. Thomas comes out with his gun, and (predictably) starts calling Steven a "little worm", while Steven continues the refrain that Thomas should drop the gun and "fight like a man." What scintillating discourse. Then, like children, Thomas and Steven start shoving each other. During the shoving, Thomas stumbles, and accidentally fires a shot into the ground. Does the sound of actual gunfire stop things? No way. These are "men". They then go back to shoving. At which point Thomas points the gun at Steven's gut and says "Boom, Boom". Does such an actual threat of death stop the fight? Fuggetaboutit! The shoving match then continues apace.

Well, you can guess what happens next. During the latest -- and final -- round of shoving, the gun goes off again, this time hitting Steven in the stomach.

Sure, the fight's now over. But that's not all. At this point, a neighbor runs into the house to dial 911, which Marilyn has already done. Then Thomas leans over Stevens -- who's now lying on the ground with a gunshot wound to the stomach -- and ponders what to do next. And then, after a little bit of contemplation, pumps three more shots into Stevens as he's lying on the ground. Figuring -- I'm quite confident -- "Screw it. I've shot him already. My life is over. Might as well make sure he's dead."

Then Stevens walks into the house, unloads the gun, and puts it on the counter. And -- and this is what really gets to me -- takes a bunch of pills, apparently in an effort to kill himself. To me, that's incredibly weak. Now, I know, he's not thinking clearly, or rationally, or even coherently, at this point. But taking pills?! You've just killed someone with a gun. If you want to off yourself, shoot yourself in the head. Taking pills at that point is just a totally lame cry for attention and sympathy. Which, lemme tell ya, you ain't gonna get, Mr. Murderer. At least from me. At least have the cajones to finish the job with yourself. Like you darn well made sure you did with your victim.

Now, I admit, this may sound harsh. And, let me tell you, it's not that I don't sympathize -- at some level -- with Thomas (though only so much). He's obviously distraught. He obviously can't think straight. He's been through events that might make even the most sane person act utterly irrationally. And, honestly, I can see why someone might think "Oh well. I'm going to spend the rest of my life in prison anyway. Might as well get my money's worth by making sure the guy is dead." As well as want to -- but not really want to -- kill myself after the stark realization of the consequences what I'd done and began to set in.

Anyway, an interesting story. I'll finish up by noting that, after Steven is shot, when police and firefighters come on to the scene, they find Marilyn cradling Steven's body on the sidewalk. Depressing. And they find Thomas unconscious in a pickup truck, as well as checks that Thomas had written to his children and letters that he had written to his family and friends, all of which presumably constructed after the murder and while Thomas waited for the pills to kick in. Depressing II.

So there's my uplifting story for the afternoon. Reminds me of a case I once worked on. In which a guy, high on crack, enters his ex-girlfriend's 17-floor apartment, tells her he desperately wants her back, and fights with her as she says she doesn't want to reconcile with him. So he drags her to her 17-th floor balony, throws her off, waits 20 seconds or so, and then jumps off himself. Oh, one more thing. She hits the concrete and dies. He hits the hood of a parked car and lives.

But that's a story for another time.

People v. Rubio (Cal. Ct. App. - Aug. 1, 2006)

This is a good opinion by Justice Rushing. Fair, balanced, and reasonably short (13 double-spaced pages). He reverses and remands for a new trial when one of the jurors indisputably had severe problems throughout the trial hearing the evidence and yet was kept on the jury. I thought that Justice Rushing's decision to include the portion of the transcript (at pages 3 to 8 of the opinion) in which the juror discussed her hearing problems with the court -- in which the juror repeatedly couldn't hear what was said even then -- was especially telling. Clearly the right result. As was Justice Rushing's (important) caveat that this shouldn't mean that we dismiss jurors who are having difficulty hearing. That said, when the court-supplied hearing aids don't work and the juror can't hear or understand large (and critical) portion the testimony, you can't leave 'em on the jury.

One more point. Retrial or not, I ain't getting a massage from the defendant, Joe Rubio. It's a family blog, so I shan't retype the first paragraph of the "Statement of the Facts" (on page 2 of the opinion). But read it. YUK! I definitely didn't come in for that, thank you very much. P.S. - Rubio was also convicted of illegal possession of testosterone. Two points: (1) How weird is that? And (2) From the facts of the case, it sounds like Rubio needs a lot less of that stuff, not artificially more.

Witte v. Kaufman (Cal. Ct. App. - Aug. 1, 2006)

Justice Hull only publishes a small fraction of this opinion. But even the stuff that's published is, in my view, a damning indictment of the performance of attorney -- and plaintiff -- Thomas M. Witte. To say that Witte does not come out smelling like a rose, either in the underlying action or on appeal, is an understatement. Sure, he didn't kill anyone, or anything like that. Rather, he acted unprofessionally, and in a manner that I'm sure he's embarassed to have anyone read. Or at least should be.

Not the finest graduate of the McGeorge School of Law.

Standard Fire Ins. Co. v. Spectrum Community Ass'n (Cal. Ct. App. - July 31, 2006)

You've got to love the brevity of the last sentences of each of the first three paragraphs of this opinion by Justice Moore:

Paragraph One, after describing appellee's principal contention on appeal, concludes with: "No dice."

Paragraph Two, after describing appellant's argument, concludes: "We agree."

Paragraph Three, after a brief description of the dispositive issue, concludes: "We reverse and remand."

Thirty-eight pages follow these three brief paragraphs. But the first page really said it all.

People v. Vance (Cal. Ct. App. - July 31, 2006)

Two quick things about this case.

First, what a bummer for Mom. Imagine having your 23-year old son, who's been in treatment for mental illness since he was 17, attacking you with a meat cleaver while screaming "You're a clone, you're not my mother!" Which is what happens to Mrs. Vance here. Downer.

Second, I'm not especially impressed with the quality of justice in Shasta County, at least if this case is any indication. Twenty years after Vance went after his mother with the cleaver, California wanted to put Vance back in the hospital on the grounds that he was a danger to himself or others. At trial, the bailiff put Vance in shackles, which were clearly visible to -- indeed, were commented upon -- by the jurors. Remember: The whole point of the trial is to determine whether the defendant is dangerous to others. When the first thing the jury notices is that the defendant has to be shackled at trial, do you think that might result in, oh, a tiny bit of prejudice as to the ultimate conclusion?

When the defendant's counsel says, "Uh, about this shackle thing, could we please have them taken off?", Judge Halpin responds: "That's not my call. The bailiff determines that. And I'm sure he'll want to keep them on." To which I can only say: "What?!" Judges must have some pretty good stuff to smoke up there in Shasta. Because last I checked, the judge was responsible for ensuring a fair trial, not the bailiff. Plus, there are a dozen cases or so that squarely hold that the judge can't delegate the decision whether to shackle a defendant in front of the jury to someone else. Which is precisely what Judge Halpin did here.

What's perhaps most amazing about this case is that the Attorney General's Office -- led by Paul O’Connor (a Boalt graduate, no less) and Stephen Herndon (from Loyola) -- not only don't confess error, but instead throw up a half-dozen arguments that assert that what transpired was entirely fine. Fortunately, Justice Cantil-Sakauye sees these contentions for what they are, and rightly slaps them down.

You can't shackle someone in front of a jury without a judicial finding that they're dangerous. And you can't abjure your responsibility to ensure a fair trial to the guy sitting beside you just because he carries a gun. He probably didn't go to law school. You did. Which doesn't give you a big advantage in a street fight. But which nonetheless gives you a pretty huge advantage in deciding how best to effectuate justice at trial.