Tuesday, July 31, 2007

California Capital Ins. Co. v. Nielsen (Cal. Ct. App. - July 31, 2007)

Justice Davis writes a 12-page (double-spaced) opinion that's fairly succinct. As well as correct.

But I can be even more succinct. And equally accurate. "You're not entitled to uninsured motorist benefits if the guy that hit you is covered by a $1,000,000 insurance policy and you get $1,000,000 from his insurance company."

'Nuff said.

Perryman v. County of Los Angeles (Cal. Ct. App. - July 31, 2007)

Okay, I agree that public entities can't be liable except as provided by statute. Sovereign immunity and stuff. And I also agree that there's no express statute that requires a coroner, who was given the body of a drive-by shooting victim to autopsy, to refrigerate or embalm a corpse. So, if s/he doesn't feel like doing it, and leaves the body to sit and rot for a week, resulting in massive decomposition and grief for the family when they are finally allowed to retrieve (and view!) the body, there's no lawsuit.

Okay, I get that. I can see a contrary argument that the body is actually "property" and hence that letting the property waste away conflicts with various property/bailee statutes and/or is a taking. But I understand that this would be a pretty novel theory, and one that the California Court of Appeal isn't likely to adopt. So I see how this case comes out the way it does.

Still. Doesn't exactly make you want to head on over to the L.A. County Coroner's Office, huh?

(Not that this was a desperate desire of mine in the first place, mind you.)

Monday, July 30, 2007

U.S. v. Sperow (9th Cir. - July 26, 2007)

When you're arguing in front of the Ninth Circuit, it helps to be accurate, restrained, and thoughtful. First, because they'll like you more. Second, because it'll help your client. Third, because if you're not, the Ninth Circuit may slam you in its opinion. Even if it's only a tiny little slam.

Like this. In which Judge Fisher, in a speedy trial case, says the following: "Contrary to government counsel’s exaggerated assertion at oral argument, Sperow did not 'vanish[ ] from the face of the earth.' Sperow used his real name in some business transactions and to pay taxes. Nonetheless, there is sufficient evidence supporting the district court’s finding that Sperow deliberately concealed his whereabouts."

That's a gentle spanking. Still, if you're Jonathan Haub -- the AUSA in Oregon who argued the case -- that's not exactly how you want to be remembered in the F.3d. For eternity.

Consider that the Lesson of the Day.

Morgan v. Gonzales (9th Cir. - July 26, 2007)

Compare how Pete Dunbar gets remembered in the F.3d.

It's in a case that only tangentially mentions him, in the following line: "In March 1983, then-U.S. Attorney for the District of Montana Pete Dunbar authorized a writtenrequest to the Helena, Montana, office of the INS to transfer Morgan’s case from the San Diego Office of the INS." But immediately following Dunbar's name, Judge Thomas drops a footnote, the text of which is as follows:

"We note with regret the death of former U.S. Attorney Byron H. “Pete” Dunbar on June 5, 2007. His lifetime of public service culminated in his appointment as U. S. Attorney for the District of Montana in 1981 by President Ronald Reagan. He served with great distinction in that position until 1990."

Pretty nice, huh? Especially since it's totally gratuitous. It's a very nice thing to do for someone. And, in truth, not that surprising, either. Since Montana is a very small legal community, and Judge Thomas, who wrote the opinion, is a huge part of that community, having been in private practice in Billings from 1978 (after graduating from Montana State and Montana Law) until he was appointed to the Ninth Circuit in 1995.

A good way to be remembered.

Friday, July 27, 2007

People v. Fritz (Cal. Ct. App. - July 26, 2007)

It's rare that you read an opinion that's intellectually rigorous, well written, sage, and full of common sense. Sometimes you get one of the four. But even that's fairly rare.

But when I read this opinion by Justice Bedsworth, I was -- quite literally -- flabbergasted by how good it was. By how wonderfully the opinion flowed. By how smart the guy seemed to be. And by how he brought to the resolution of the appeal a kind of obvious common sense that's far too uncommon in the judiciary.

There's no way I could have written an opinion that was half as good as this one. It's one of those very rare pieces that really had an effect on me; that instilled a deep, sincere reaction of: "Wow. That guy's really, really good."

You'll have to read the whole opinion to see what I mean. And I admit that, perhaps, my reaction might be a tiny bit idiosyncratic, and may stem from the fact that I lack the intuitive insight into the human condition that I think that Justice Bedsworth possesses in spades.

Still, I think it's a great opinion. And full of arguments like these, which you won't find many places:

"We think the latter statement reflects the better rule. Obviously any person arrested for a crime, whether guilty or innocent, would harbor a fervent desire to look good to the police and might lie about any number of wholly irrelevant things.[FN] And a rule which equates any lie told in the context of such an attempt with being guilty of the crime, necessarily assumes that only criminals would lie to the police – the very same 'seriously prejudicial' assumption decried by Justice Traynor. . . . [A] lie about one’s past record may be offered by either a guilty or an innocent suspect. It indicates not that the truth about the instant case is damaging – it says absolutely nothing about the instant case – but only that the suspect fears the police will rush to judgment. That is indicative not of guilt, but of timorousness and distrust – both of which are regrettable, but not criminally punishable."

That's great stuff. Plus, I love the footnote (which I marked with FN above), and to prove the point that even a guilty person might well lie to the police, here's the text of that footnote, in its entirety: "'I love you guys; I always buy tickets to the Policeman’s Ball.' 'My brother’s a cop.' 'I don’t mind being detained because I support everything our police do; they don’t pay you enough.'"

Hilarious. Because, I'm sure, it's utterly and totally true. And in the midst of a wonderful and outstanding opinion.

Thursday, July 26, 2007

People v. Barnwell (Cal. Supreme Ct. - July 26, 2007)

Opinions by the California Supreme Court in death penalty cases are typically lengthy, plodding affairs. In part due to the nature of the offense as well as the consequences of the result.

But this one is different. It tops out at only 25 double-spaced pages, which is less than a third of many other death penalty opinions by the Court. And it's tight and punchy. Which is fairly rare.

But, then again, this is a pretty rare case. Not because of the result: as usual, the California Supreme Court unanimously affirms the death sentence. But rather due to the nature of the evidence against the defendant. Here's a taste:

"Defendant’s case is somewhat remarkable in that a policeman saw him shoot two of the murder victims. One night in 1992 Los Angeles Police Officers Brad Wise and Greg Smiley were on patrol. As they drove toward a tire shop, Officer Wise heard a shot. A woman screamed and another shot was fired. Wise ran up to a high fence surrounding the shop yard and looked through a hole in the gate. He saw defendant, some 20-25 feet away, standing above two men lying facedown on the ground. Defendant held a large-caliber, semiautomatic, blue steel pistol in his hand. The men were begging for their lives. Defendant bent down and put the pistol to the back of one man’s head. Officer Wise heard two shots. Defendant then fired two more shots into the back of the other man’s head.

Defendant ran but the officers intercepted him as he emerged from another gate, still holding the pistol. Officer Wise told defendant to drop the gun. Defendant protested, 'It wasn’t me.' He ran back toward the gate, but then stopped and turned toward the officers. Wise thought defendant was going to shoot them, so he fired four shots at defendant. Defendant ran back into the yard, where he was found by other officers. He had been shot three times. . . .

In addition to the two men Officer Wise had seen defendant shoot, the bodies of a woman and another man were also found. All four victims had been shot in the head."

Pretty unambiguous evidence of guilt, huh? And with the multiple murders -- and the victims begging for their lives right before their execution-style killings -- there's also not much doubt as to what the penalty is going to be.

Oh, one more thing. At the penalty phase, "the prosecution introduced evidence that in the four years preceding this trial defendant had committed two murders, an assault and robbery, and another assault."

Icing on the cake. Death penalty imposed. Death penalty affirmed.

In Re Hardy (Cal. Supreme Ct. - July 26, 2007)

You know the California Supreme Court isn't filled with twenty-somethings from San Diego when the following line -- in the middle of an 84-page opinion -- requires a footnote:

"The four then returned to the Vose Street apartments around 10:00 p.m. to 'party' and use cocaine. They also used a beer bong."

The footnote appears at the end, and explains that a beer bong is “a funnel-type device which enables the user to pour beer directly down his throat and into his stomach.”

I love that this fact ostensibly needs explanation.

Wednesday, July 25, 2007

U.S. v. Castillo (9th Cir. - July 25, 2007)

There are lots of people who put Judge Callahan on the short list for the Supreme Court if the Republicans win the 2008 election. Indeed, Tom Goldstein -- who's an extremely bright and informed guy -- predicts she'll be the first appointment.

I'm not Carnac, so can't weigh in on the probabilities. That said, on the merits, cases like this don't help Judge Callahan's cause. It's a criminal case, but one without the typical political stuff at stake. The issue is whether a guilty plea and waiver of appeal deprives the Court of Appeal of jurisdiction to hear the appeal or whether, instead, it's a claim-processing rule that may well be enforced, but isn't jurisdictional; e.g., can be waived by the government.

Issues relating to what's jurisdictional and what's not are fairly complicated. Partially because the law here isn't crystal clear and partially because judges often misuse the term or fail to understand what it really means. So it's not the most facile concept in the universe. Which is why the Ninth Circuit took this case en banc. Because there were some Ninth Circuit cases that said that waivers are jurisdictional and others that said they weren't, and this was precisely the type of intracircuit conflict that needed to be resolved.

Now, as I said, deciding what's truly "jurisdictional" isn't totally easy. That said, I think that Judge Bybee writes an entirely compelling and persuasive opinion that cogently explains that the waiver here is indeed an obstacle to theappeal, but that's it's not a jurisdictional one. Which was my initial (somewhat informed) take as well, and I think that Judge Bybee clearly explains why this view is correct.

I'm not the only one who thinks so. Judge Bybee's opinion garnered 14 of the 15 votes on the en banc court. Including the votes of conservative judges like Pamela Rymer and Milan Smith. Plus, remember, Judge Bybee himself is far from a lefty.

Who's the one dissenter? Judge Callahan. Who writes an opinion that's simply not persuasive.

Now, mind you, there are some who might well -- and perhaps accurately --think that being on the wrong side of a 14-1 decision as actually advancing Judge Callahan's elevation. Either because one is of the view that she's the only judge who's smart enough to get the right answer here -- though I think that's clearly wrong -- or, more likely, that someone who's "bold" enough to refuse to make a holding even marginally in favor of a criminal defendant, even when weak-kneed conservatives like Judges Rymer and Bybee (!!!) go that way, is precisely what we should be looking for in a Supreme Court nominee. I'm positive that there are people who would take that view.

But, on the merits, I don't think this bodes well for Judge Callahan. It's a complicated case, and one that requires more than a little thought. And that she's on the wrong end of a 14-1 doesn't, in my view, say overwhelmingly positive things in favor of moving her up to a tribunal that deals with even more complicated and important issues.

It's only one opinion, of course. But it may nonetheless be a telling one.

Tuesday, July 24, 2007

Societe Civile Succession v. Redstar Corp. (Cal. Ct. App. - July 24, 2007)

Sometimes it's not enough to know American civil procedure. Which is hard enough alone. Sometimes you've got to know all about civil procedure in France as well.

Which is even tougher. Especially if you don't even speak French.

So, yeah. It seems like Justice Mosk gets this one right, and that the "provisional" French judgment is subject to enforcement in the United States. I'm on board. But I could see how Judge Wu (the trial judge in L.A.) thought that only 30,000 francs of the 3 million+ franc judgment was subject to immediate enforcement. Being a superior court judge is hard enough. Having to figure all this French stuff out, especially alongside your hundreds of other active cases -- is even harder. Especially with both sides trying to "educate" you in a way that undoubtedly distorts and tilts the actual French law to their advantage.

So I feel for Judge Wu. Still, I'd reverse too. Seems right.

Golden Pisces, Inc. v. Fred Wahl Marine Const. (9th Cir. - July 24, 2007)

Fans of the Discovery Channel's "Deadliest Catch" -- a show which my children call "The Crab Show," and with which they are (inexplicably) enthralled -- may appreciate this case. It's about as close as the law gets to Dutch Harbor, Alaska. And involves some repairs to the F/V Golden Pisces that allegedly misaligned the propeller shaft and caused the ship to be repaired again in Dutch Harbor and, thereafter, to again break down and be towed back, ultimately causing the ship to miss the A cod fishing season.

At which point, not surprisingly, litigation commenced. The owners of the ship prevailed at trial, and moved for attorney's fees pursuant to the contract. Attorney's fees, however, proved to be even more difficult to obtain than a catch from the Bering Sea, the chief barrier being that the contract upon which the parties sued did indeed have an attorney's fee provision, but since it didn't have virtually anything else -- a description of the work to be performed, a signature of one of the parties, etc. -- it was invalid. Thus no fees, given that absent a valid written contract with an attorney fee provision, the American rule applies.

So there you have it. The remaining Wild West in the contemporary United States fails to be untouched by our modern legal system. We see all. And, unless you're pretty careful about it, we're going to make you pay your own legal fees.

Monday, July 23, 2007

Winzer v. Hall (9th Cir. - July 23, 2007)

The California bar examination starts tomorrow. Woo-hoo. Good luck to those taking it.

Perhaps in recognition of this event, the Ninth Circuit issued an opinion today that's a good crossover review of various evidence, contitutional law (the Confrontation Clause), and criminal law (habeas) issues. Let's get started studying, shall we? And, for the already-barred amongst us -- and, by "barred", I mean that you're an attorney, not that you're currently incarcerated -- it's a good review.

Around 11:00 a.m. on December 2, 2001, Marcus Winzer allegedly says to his on-again, off-again girlfriend Parrish Harvey -- during an argument -- that "I'll smoke you and your daughter," gesturing to his waistband to suggest that he had (or would obtain) a gun. The argument ends, and around five hours later, Ms. Harvey makes a very calm 911 call and tells the operator the above facts. The district court describes Ms. Harvey's 911 call "one of the calmest" it had ever heard. Then the police come to Ms. Harvey's home, interview her, and she repeats to the officers the above facts, and she is upset and shaking as she recounts these events.

At Winzer's trial, the prosecution wants to introduce (1) the 911 tape, and (2) the officer's testimony about what Harvey allegedly told him. Three questions: (A) Does the 911 tape get admitted? (Hint: It's hearsay, but the prosecution says it's a spontaneous utterance and hence admissible.) (B) Does the officer's testimony get admitted? (Same hint.) (C) If either (A) or (B) is erroneously admitted, does federal habeas relief lie, or is this merely an evidentiary error noncognizable on habeas?

Got your answers? Good. Because it's not just a hypothetical, and the Ninth Circuit helpfully provides us with the actual answers:

(A) Nope. Doesn't come in. Even the trial court got this one right, and Judges Kozinski, Trott, and Malloy (sitting by designation from Montana) are pretty clear that a calm declaration five hours after an event like this doesn't qualify as a spontaneous statement.

(B) Good question. The trial court admitted this testimony as a spontaneous utterance, since (unlike the 911 call) the declarant is now shaking and upset at the time of the statement. And Judge Fischer, from the Central District, agreed, and hence denied relief on habeas. But the Ninth Circuit disagrees. The fact that you're upset when you're making the statement doesn't make it a spontaneous utterance. You've still had hours to ponder the issue and, potentially, fabricate things. That isn't sufficiently reliable.

(C) Yes, hold the Ninth Circuit. Typically evidentiary errors don't get you habeas relief. But Ms. Harvey was in custody (and hence available to be called as a witness) at the time of trial, and by refusing to do so, and by using the officer's testimony instead, the state deprived defendant of his constitutional right to confront the witnesses against him. That's a federal claim. And cognizable on habeas. So not only did the trial court (as well as the district court) err, but that error was, according to the Ninth Circuit, sufficiently crystal clear to just habeas relief, because admitting hearsay evidence of this type conflicts with clearly established federal law and hence justifies relief even under AEDPA.

Get those right? Good. You're better than the trial judge. And even Judge Fischer. You should definitely pass the Bar. Or repass it were you -- absurdly -- to take it again.


Friday, July 20, 2007

Chosak v. Alameda County Medical Center (Cal. Ct. App. - July 20, 2007)

The judicial tendency to interpret a statute according to its (alleged) "plain" meaning has increased over the past decade or so. Particularly -- but by no means exclusively -- in federal courts. For those who prefer an alternative vision, this case is a good exemplar.

The underlying issue is a simple one. MICRA was designed to govern (and limit) medical malpractice claims. The text of the statute makes clear that it applies to claims against "health care providers," which are defined as anyone (or any thing) that's "licensed or certified pursuant to" various statutes. Seems pretty clear, right? So doctors, who are licensed to practice medicine, are covered.

But here's the rub. What about medical students? They aren't licensed. But they nonetheless treat patients. So when medical student Lynn Valdez allegedly injures someone during the course of an eye examination, is she covered by MICRA?

The plain language of the statute seems clearly to indicate that she's not. No license, no coverage. Period. So if you're a plain language type, that's the end of it.

But Justice Margulies comes out the other way. And I could explain in detail why -- and you're free to read the full opinion, which is a good one -- but, in truth, one need not. You can get a sense of where she's going on this one, even before she tell you her actual analysis, by how she sets it up. With language that clearly says: "Sure, the plain language is clear, but I think that wouldn't really make sense, so I'm going the other way." And that provides a pretty good encapsulation of how one might begin an opinion -- or brief -- in which you want the judge to ignore the seemingly crystal clear language of the statute. She says:

"Our overriding objective when interpreting a statute “is to determine the drafter’s intent.” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902.) In making that determination, we look first to the words of the statute because they “ ‘ “generally provide the most reliable indicator of legislative intent.” ’ ” (Bernard v. Foley (2006) 39 Cal.4th 794, 804.) “The rules for performing this task are well established. We begin by examining the statutory language, giving it a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language in isolation; rather, we look to the entire substance of the statutes in order to determine their scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mind the statutes’ nature and obvious purposes. [Citation.] We must harmonize the various parts of the enactments by considering them in the context of the statutory framework as a
whole.” (People v. Cole (2006) 38 Cal.4th 964, 975.)

If this analysis demonstrates that the statute’s language is clear and unambiguous, “it governs. [Citation.] Experience teaches, however, that unforeseen ambiguities can and do come to light despite the drafters’ considered efforts to avoid them.” (Alan v. American Honda Motor Co. Inc., supra, 40 Cal.4th at p. 902.) “If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.” (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.) “[I]t is appropriate to consider ‘the consequences that will flow from a particular interpretation. [Citation.]’ [Citation.] Where more than one statutory construction is arguably possible, our ‘policy has long been to favor the construction that leads to the more reasonable result. [Citation.]’ [Citation.] . . . . Thus, our task is to select the construction that comports most closely with the Legislature’s apparent intent, with a view to promoting rather than defeating the statutes’ general purpose, and to avoid a construction that would lead to unreasonable, impractical, or arbitrary results.” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1291.) Ultimately, “[t]he legislative purpose will not besacrificed to a literal construction of any part of the statute.” (Giles v. Horn (2002) 100 Cal.App.4th 206, 220.)"

Once you read that, it's pretty clear which way she's coming out, huh?

Thursday, July 19, 2007

People v. Muhammad (Cal. Ct. App. - July 16, 2007)

This appears to be your run-of-the-mill criminal stalking case. And it is. Malik Muhammad dates Ivory Hart for six or seven months, the relationship terminates, Muhammad starts leaving hart threatening telephone messages, and Muhammad is convicted of stalking (and making terrorist threats) and sentenced to San Quentin.

When he's paroled, as a condition, Muhammad is ordered (over his objection) not to contact Hart or her employer (Citibank), but he apparently places massive numbers of hang-up calls to her and initiates a campaign of harassment against Hart by contacting her employer. Which, among other things, constitutes stalking (again), and he's convicted (again) and sentenced to 10 years in prison. He appeals, and gets a limited remand under Cunningham, but -- notwithstanding some pretty aggressive pro-prosecution comments by the trial court (Judge John S. Graham up in Marin County) -- ultimately he'll still have to spend the better part of a decade in prison.

All of which describes your typical stalker. The only things worth additional, tangential, mention are these: (1) Muhammad is a former Oakland police officer, (2) Muhammad is a graduate of the U.C. Hastings College of Law, (3) Muhammad is a former deputy district attorney, and -- thankfully -- (4) after a history of discipline, in 2001, Muhammad was disbarred.

Proving that attorneys, police officers, and deputy district attorneys -- and sometimes all three in one -- can sometimes go very much off the deep end.

Wednesday, July 18, 2007

In Re Sareen (Cal. Ct. App. - July 17, 2007)

It's only one side of the story, of course. Listen nonetheless to how Vikas Sareen ('husband") allegedly decides to leave his wife, Reema ("wife"):

"On February 17, 2002, husband and wife were married in New Delhi, India. In July 2002 they moved from India to New York State. Husband is a United States citizen and wife is a legal resident of the United States. Their daughter, S., was born in New York on February 20, 2004. She is a United States citizen.

According to wife, on August 20, 2004, husband told her the family was going to Switzerland for a vacation. However, when they got to Frankfurt, Germany, they changed planes not for Switzerland, but for India. They arrived in India on August 21, 2004. Less than a week later, on August 27, 2004, husband filed for divorce in an Indian court. Three days later, on August 30, 2004, husband filed a petition for custody of S. in the Indian
court and an application to restrain wife from leaving India with S. Husband then returned alone to New York.

According to wife, husband abandoned wife and six-month-old S. in New Delhi without financial support, taking with him wife’s United States residency documents, her Indian passport, and S.’s United States passport."


Tuesday, July 17, 2007

People v. Cardenas (Cal. Ct. App. - July 17, 2007)

Here's a great way to illegally kick Hispanics off your jury, at least if you've got a Hispanic defendant and/or witnesses who will testify in Spanish:

Ask all the prospective jurors whether they speak Spanish fluently. Hispanics will likely disproportionately respond in the affirmative. Then ask those (largely Hispanic) jurors, as we often do: "Imagine that a witness testifies in Spanish, and you think the interpreter misinterprets that testimony. For example, imagine that a defendant testifies, in Spanish, 'I wasn't there,' but the interpreter interprets this testimony as 'I was there'. Could you ignore the testimony as you actually heard it, and instead decide guilt or innocence purely on the basis of the interpreter's erroneous interpretation?" Some jurors will presumably say: "That seems totally wrong. I couldn't really do that." You get those -- largely Hispanic -- jurors dismissed for cause. Others will say: "Well, I could, but it would be difficult." Those jurors you can now dismiss with a peremptory challenge. Even if they're all Hispanic. Because you now have an allegedly race-neutral reason for booting them.

It works.

U.S. v. Jenkins (9th Cir. - July 17, 2007)

It's pretty rare that you see an indictment dismissed on the grounds of prosecutorial vindictiveness. But, in an alien smuggling case arising down here in San Diego, District Judge Benitez did precisely that. And, in this 2-1 decision, written by Judge Canby (with Judge Conlon, a senior district court judge from Illinois, sitting by designation and dissenting), the Ninth Circuit affirms the dismissal.

It's a fairly unusual case, which perhaps explains the unusual result. Sharon Ann Jenkins is caught dead to rights -- twice, on two subsequent days (!) -- smuggling some undocumented aliens into the United States in the trunk of a car she was driving. Jenkins basically admits both times that she's guilty, but for some totally inexplicable reason (at least to me; I do, in fact, understand why it happens), the U.S. doesn't prosecute her for either offense, notwithstanding the fact that the cases are open-and-shut.

Then, two months later, Jenkins gets busted (again!) when the car she's in pulls into San Ysidro from Mexico full of hidden marijuana. This time, they charge her. And her defense at trial is -- surprise! -- "I didn't know there was pot in the car; I thought there were just illegal aliens, like all those other times."

So, at the end of all of the testimony, the jury goes out to deliberate. They don't arrive at a verdict on the first day; but, at 4:46 p.m. that same day, while the jury is deliberating, the U.S. files an indictment against Jenkins for -- surprise again! -- two counts of alien smuggling! The offenses for which they originally didn't charge her, but for which now they feel like busting her.

Judge Benitez says: "I think not. You're just retaliating against her for testifying and going to trial in the drug case. Indictment dismissed." The U.S. responds: "Not really. Our case was a lot stronger once she admitted in the drug trial that she had previously smuggled aliens." At which point Judge Canby says: "That might be a good argument if she hadn't already confessed. But she had. You already had her dead to rights. This looks to much like vindictive prosecution. Affirmed."

So Jenkins avoids the alien smuggling charges. Now, mind you, this only helps Jenkins a little bit. Since, as it turns out, although the first jury deadlocked on the drug charges, the second jury -- at the retrial -- didn't. So she's now serving a five year-plus prison sentence.

Still, she wins a vindictive prosecution claim. Which is pretty rare. So she's got that going for her. Which is nice.

Monday, July 16, 2007

City of Santa Barbara v. Superior Court (Cal. Supreme Ct. - July 16, 2007)

Wow. Wow. Wow.

I'm not easily impressed. But: Wow.

I don't think that I've ever -- and I really mean ever -- read a more scholarly and impressive opinion by Chief Justice George than this one. It's an absolute tour de force. I wouldn't have written an opinion that was half as good. Or, most likely, even a quarter.

The question is whether prospective releases of gross (as opposed to ordinary) negligence are void against public policy. The majority (of four) says "Yes". Justice Kennard and Moreno say "Sometimes," and Justice Baxter (in dissent) says "No." It's an important issue, and one that affects -- at least potentially -- almost every single resident of California. When, for example, you sign those ubiquitous forms (often, adhesion contracts) that say "I hereby waive any claims of ordinary or gross negligence in order to" (A) participate in sports, (B) attend a ballpark, (C) swim in a lake, or -- seemingly -- (D) breathe, are those waivers enforceable if the defendant subsequently injures you as a result of gross negligence? (We know, at least in California, that they are effective as against ordinary negligence, and not effective as against intentional torts, but what about the situations in the middle? Well, now we know.)

This opinion harkens back to the days of Chief Justice Traynor -- viewed by many as one of the greatest legal talents never to sit on the United States Supreme Court -- and is similarly scholarly, progressive, empirical, and informed. Chief Justice George clearly put a massive amount of work into this 38-page opinion. It is, in my view, an attempt to establish a torts legacy similar to -- albeit overshadowed by -- Traynor. Perhaps not entirely in result, as Traynor and George would assuredly disagree on a number of points -- but rather in rigor, intellect, method and style.

One more time: Wow. This is not what I expected to see when I read the first couple of paragraphs. I'm impressed. And humbled. And wowed.

R.B. v. Napa Valley Unified School Dist. (9th Cir. - July 16, 2007)

Some people have very little chance. Even at birth. Which is incredibly, incredibly sad.

Listen to the life of the little girl in this case:

"R.B. was born in 1991 to a mother who abused cocaine, alcohol, and heroin. In infancy, R.B. demonstrated symptoms of exposure to illegal drugs in utero (including irritability, delayed visual maturation, and delayed motor skills). Both of R.B.’s birth parents were incarcerated. F.B., a single parent and schoolteacher, adopted R.B. at eighteen months of age. . . . R.B. was molested by her natural father when she was two. Afterward, she required a year of play therapy because of her self-mutilation and inappropriate displays of affection."

As one might imagine, the litany of problems doesn't end there. She was expelled from three different preschool programs. She banged a second grade classmate’s head against a computer monitor for refusing to give up the computer at recess. She was suspended in third grade for throwing chairs and running off campus. She was suspended in fourth grade when she yelled at her teacher and was restrained by law enforcement. She was suspended in fifth grade -- twice in a month -- for twisting a child’s arm during recess, saying that she hoped her music teacher would die, and poking another student with a mechanical pencil.

The thing is: she gets really good grades in school, frequently makes the honor roll, and seems genuinely and inherently smart. But, at the same time, deeply, deeply disturbed.


Friday, July 13, 2007

Mardirossian & Assocs. v. Ersoff (Cal. Ct. App. - July 13, 2007)

Sugar Ray Leonard. Tae Bo. California attorneys suing for fees. Dilatory misconduct and sanctions. Alleged conflicts of interest. This case has it all.

I'll leave most of the case for your own review. But let me just make one comment about the sworn expert testimony of (contingency fee attorney) Dana Hobart, who testifed -- in an attempt to justify the amount of hourly fees that the contingency fee plaintiffs should be entitled to recover -- that "because contingency fee lawyers’ fees depend on the outcome, they often spend many more hours than an hourly attorney would on a case, unconcerned about the mounting hours because the client will not be billed."

Now, I have no doubt whatsoever that this is sometimes the case. But, in my experience, the exact opposite is the usual rule. You can often tell how a lawyer's being paid by the type and amount of work he does. And the hard workers, churners, and others who devote massive time to a case are typically paid by the hour, not on a contingency. Similarly, the efficient attorneys, sluffers, and other who devote little effort are rarely paid by the hour, and typically instead work on a contingency.

This isn't to slam either group. There are, as one might expect, good and bad attorneys in both crowds. But the claim that contingency lawyers typically spend more hours on a case than those paid by the hour -- which is the upshot (if not the actual words) of the testimony -- seems just flatly wrong.

On the whole, an interesting case on which to round out the week. Enjoy the sunny weekend, all.

U.S. v. Abbouchi (9th Cir. - July 13, 2007)

Did you know that Louisville, Kentucky was right on an international border, thereby justifying an extensive border search (without any suspicion of criminal activity)?

It is.

Not that I disagree. This case is actually a good example of how application of the Constitution (here, the Fourth Amendment) can change in light of modern realities. In 1791, there's no way that a "border" search would have been allowed in Louisville, or anyplace else so far from the actual border. But airplanes, and international mail hubs, make the world a bit different from what it was in 1791. So the application of the Fourth Amendment changes with it.

Here, it results in a reduction of rights. By contrast, sometimes it goes the other way. That doesn't distress me. It instead seems about right.

Thursday, July 12, 2007

Christoff v. Nestle U.S.A. (Cal. Ct. App. - June 29, 2007)

Today's been a fairly boring day in the California courts. I assume that's because of the heat.

But there are still lessons to be learned. For example: This, among other things, is why you need to make sure that your expert knows the underlying law. Because if s/he doesn't, then the expert's testimony might not address the relevant legal issues, and if (as here) it's off target, even a fraction, any resulting damage award may well be reversed.

Which, in this case, costs Russell Christoff over $15 million. Oops!

Wednesday, July 11, 2007

Dunn & Black P.S. v. United States (9th Cir. - July 11, 2007)

When you're litigating against the United States, there are lots and lots of ways to lose. And even when you win, you may still lose. Like here.

Dunn & Black, a law firm in Washington State, represented Environmental Reclamation, Inc. ("ERI"). The Federal Highway Administration had terminated a contract with ERI, and Dunn & Black filed an action on behalf of ERI in the Court of Federal Claims seeking to recover over $1.7 million for alleged wrongful termination of the contract. Dunn & Black was initially "paid" hourly -- notice the quotation marks -- but when ERI wasn't actually paying these fees, Dunn & Black agreed to accept the first $140,000 of any recovery, which was the amount of fees already accrued, and 50% of any recovery above this amount.

Ultimately, the dispute was settled, and the Federal Highway Administration agreed to entry of judgment of $450,000 in favor of ERI. Sounds good, right? So Dunn & Black gets a fairly good payday -- $295,000 ($140,000 plus half of $450,000 minus $140,000) -- and ERI gets over $150,000 for its troubles. A good result for both, right?

Nope. Because what the U.S. (presumably) knows, and what ERI may well know, is that ERI already owes the IRS almost $600,000. So right after ERI obtains the $450,000 stipulated judgment, the IRS files an action against ERI, and seeks to collect against the $450,000. And ERI doesn't even bother to defend this suit, and a default judgment is entered.

So who gets screwed? Dunn & Black. Sure, the law firm files an action in which it alleges that it's entitled -- in equity, good conscience, and everything else under the sun -- to enforce its lien on the $450,000 judgment. After all, most of that money actually belongs to Dunn & Black, and they were the ones instrumental in creating it. But sorry, buddy. There's this little thing you may well have studied in law school that's spelled S-O-V-E-R-E-I-G-N I-M-M-U-N-I-T-Y. And, my friend, it's a biatch.

Dunn & Black loses in the district court on this basis and loses in the Ninth Circuit as well. So it's now out the entire $300,000 plus all the effort and expense in the district court and on appeal.

Not a good day for Dunn & Black. And an important reminder that when you're litigating on behalf of a client against the government, make sure your client doesn't owe any back taxes. Otherwise it's you that may well be the one getting hosed.

Tuesday, July 10, 2007

U.S. v. Horvath (9th Cir. - July 10, 2007)

I like how Judge Rymer begins her dissent in this case, which begins: "This is a tough issue. Given that the majority sees the statute differently from the way I do, I take comfort in its effort to craft a narrow rule." That's an accurate, collegial, and fair opening gambit. Not every disagreement has to be personal.

Monday, July 09, 2007

U.S. v. Jernigan (9th Cir. - July 9, 2007)

Rarely do I read a case in which I think that the defendant may well be actually innocent. But this is one of them.

You've got to read the whole opinion to get a real sense of whether Rachel Jernigan was rightly convicted of the bank robberies for which she was sentenced to 168 months in prison. One can briefly say that there was pretty much no evidence whatsoever against her other than the fact that the bank robber was fairly unique -- a short (five foot tall) Hispanic or Asian woman, which is not your typical culprit in these types of crimes -- and that Jernigan fits this description.

Apart from the wholesale lack of any hard evidence against her, what really makes one think that Jernigan may well be innocent -- and I'm ignoring, as did the Ninth Circuit, the fact that she passed a lie detector test with flying colors -- is that, immediately after she was incarcerated, someone else (Juanita Rodriguez-Gallegos) who was a five-foot tall Hispanic woman robbed multiple banks in the same area allegedly robbed by Jernigan, including one of the very same banks.

This is a Brady case. The U.S. admits that this information was known to it but not disclosed to the defense -- or presented to the jury. So the only question is whether this information was material; i.e., whether it might have made a difference at the trial. Again, you've got to read the whole opinion to understand fully why it might well have, but a couple of sentences in footnote six of the majority opinion go a long way in this regard: "The question is whether a reasonable probability existed that the jury would have arrived at a different result if provided with the excluded evidence. More specifically, the question is whether the jury, when presented with nothing more than shaky, cross-racial eyewitness identifications, unsupported by any physical evidence, would have arrived at a different result when informed that a woman described in uncannily similar terms — terms describing a most unlikely bank robber — was robbing banks in the same area just days after Jernigan’s incarceration."

It's, again, pretty unusual that I leave a case thinking: "Wow, I think there may well be an innocent person in prison here." But that's where I stood at the end of this one. For what it's worth, I also imagine that I'm not alone. Which is the only reason, in my view, why this utterly fact-specific case -- with no novel legal issues whatsoever -- was taken en banc. As well as why the vote comes out the way it does, and Rachel Jernigan provided with a new trial.

One final thing. I occasionally (though only occasionally) appreciate dissents that, for lack of a better phrase, somewhat insult the majority. That don't just say that the majority is wrong, but that do so in a way that's a bit attacking; in some cases, that are even smarmy. So I'm definitely no shrinking violet when it comes to what's in a dissent.

That said, if you're going to be a little bit of a jerk about it, a decision that's -- as here -- 13-2, with you as half of the 2, is typically not your best vehicle. Which is something that Judge Bea, who writes the dissent here, doesn't seem to particularly appreciate. Yes, I know, as usual, he's not very happy that the majority orders a retrial for the criminal defendant. And, sure, he can (and does) articulate reasons for his position.

But if it's a criminal case, and the only person you can get to join your side is Judge O'Scannlain, and if there are not only 13 votes on the other side, but (critically) those judges voting to grant relief to the criminal defendant include (as here) Judges Kozinski, Rymer, Bybee, and Callahan, you may want to tone your dissent down a bit. When that's the lineup, and when some judges are voting quite the opposite of what you might expect, you may well want to think that maybe they've got a real point. And, sure, dissent if that's what you believe. But perhaps write the thing a little less smugly. Because it may not be the 13 that's totally missing the point here.

People v. Smith (Cal. Ct. App. - June 29, 2007)

I'm no fan of people who molest their 13-year old stepdaughter. At all. And I found it a little shocking, to be honest, when I read that the defendant was simply sentenced to probation for that offense, rather than some actual jail time. As I said, I'm no fan of child molesters.

But, notwithstanding my predispositions, Justice Vogel is totally and completely right in this opinion. The Los Angeles County Probation Department was acting totally unreasonably here. And Kenneth Smith was, in my mind, clearly entitled to the relief ordered by the Court of Appeal.

Friday, July 06, 2007

U.S. v. Forrester (9th Cir. - July 6, 2007)


In a case of first impression, the Ninth Circuit holds here that the government is permitted to tap into your computer and record (1) the IP addresses of all the web sites you visit, and (2) all of the e-mail addresses to whom you send and receive e-mail. Without probable cause. Or, presumably, any reason whatsoever. As, according to the Ninth Circuit, obtaining that information isn't even a "search" under the Fourth Amendment.

I think that's scary. It's not the kind of intrusion I think most people would expect the government to be able to perform merely on a whim.

I admittedly understand the seemingly facile analogies that lead Judge Fisher to conclude that this is okay. He thinks that recording IP addresses is no different than recording phone numbers -- an act that the Supreme Court held (in a 6-3 opinion back in 1979) doesn't constitute a search. And he concludes that recording all your e-mail addresses isn't any different than recording the addresses that are printed on the outside of your snail mail, which isn't a search either.

But, in my view, these things are different. Even if a pen register isn't a search (and I think that the dissent in Smith back in 1979 made a pretty good argument to the contrary), obtaining a list of all the IP addresses that someone visites gives you a lot more information than merely recording telephone numbers. So the privacy invasion -- and potential for abuse -- is manifestly larger. And my view is that footnote 6 of the Ninth Circuit's opinion, in which Judge Fisher says that recording the actual URLs perhaps might be a search, is a distinction without a difference. Once the government records that I'm going to the IP addresses for NAMBLA and High Times and Bondage.com, the fact that they won't (initially) know which particular page of those sites I choose to view hardly matters. They've already invaded my privacy, and know a boatload about me that I'd rather not reveal to the government, TYVM. And, yes, in theory, e-mail addresses arguabley might be seen as the same as addresses on a snail mail envelope. But they're viewed as more private, and rightly so, and I think the Fourth Amendment shouldn't be (and isn't) blind to that reality.

I'm sure there are some people out there who'd be happy for every single IP address they ever visit to be instantly captured by the government and broadcast to the public. But I'm fairly confident that lots of other people wouldn't be similarly thrilled. And by holding that capturing IP and e-mail addresses aren't a search, I think the Ninth Circuit's decision here is extremely dangerous. And, in my view, wrong.

Thursday, July 05, 2007

Corder v. Corder (Cal. Supreme Ct. - July 5, 2007)

I thought that both the majority and the dissenting opinions in the Court of Appeal were better -- and more persuasive -- than the unanimous decision of the Supreme Court here.

As I said before, it's a tough case. The central issue (Section C of the Supreme Court's opinion) concerns how one allocates a substantial settlement in a wrongful death action when the two recipients of the settlement are (1) the adult sister, who had little contact with the decedent, and (2) the decedent's wife, who (the evidence showed) was prostituting behind the decedent's back and whom the decedent was allegedly about to leave. Neither one seems like she should get a lot of money, but those are the only two choices. What to do?

Ultimately, Justice Baxter writes an unpersuasive (at least in my mind) opinion that concludes that a remand is necessary because the multiple witnesses who testified that the decedent intended to divorce his wife and that the decedent "felt that his marriage was a mistake because his wife had continued to work as a prostitute despite her promises to stop" were insufficient as a matter of law to prove that divorce was likely. Really?! Multiple witnesses who testify -- entirely credibly -- that a husband says that he's going to divorce his wife because she continues to be a whore notwithstanding her promises to stop seems more than enough to me. Especially when, as here, the trial court -- the only one to actually see and hear that testimony -- finds those witnesses credible and bases a factual finding thereupon.

This just seems a cop-out by the California Supreme Court. And a not very credible one. I'd have much preferred the Court to adopt either the majority opinion by Justice Ikola or the dissent by Justice Sills. Both of which were more persuasive, coherent, and (for what it's worth) well-written than the opinion by the California Supreme Court.

Tuesday, July 03, 2007

People v. Boyson (Cal. Ct. App. - July 3, 2007)

Elsie Boyson and her husband, Robert Boyson, were both murdered (shot in the head) in their Oceanside home in 1980. There were no signs of forced entry. Their son, David, was having serious financial problems at the time of the murder, stood to inherit a significant sum of money as a result of their death, and refused to cooperate with police. He became the focus of the murder investigation.

Notwithstanding some extremely incriminating evidence against David provided by his wife, Linda, in 1982, the district attorney declined to prosecute David -- or anyone else -- for the murders.

Over twenty years later, in 2003, the San Diego District Attorney's Office created a Cold Case Homicide Unit. On the theory, I imagine, that if it's good enough for television, it's good enough for San Diego. The Cold Case reinvestigated the Boyson homicides, found some additional evidence against David, and in 2004, the district attorney prosecuted David for the murders.

David's attorneys moved to dismiss the prosecution based upon the 24-year delay between the murders and the prosecution. The trial judge, Joan Weber, granted the motion and dismissed the information. And, in this opinion, the Court of Appeal unanimously affirms the dismissal.

Sometimes television does not reflect reality. Shocking, I know.

United States v. Gonzalez (9th Cir. - July 3, 2007)

I like the opening paragraph of this opinion by Judge McKeown, which begins:

"Southwest Airlines Flight 2466, bound for Ontario, California, from Las Vegas, Nevada, had an uneventful takeoff. Before long, the cabin was in total chaos. Passenger Salvador Gonzalez became hysterical, demanded that the plane land, made statements about a bomb and, according to a flight attendant, said, 'I’m blowing the plane up.' The crew and passengers tried to subdue him. He eventually was handcuffed and the plane was diverted back to Las Vegas."

Doesn't sound like a typical flight from Vegas, huh? Or a flight I'd especially like to be on. I much prefer the ones where the passengers silently rue their gambling losses. Or ponder what they'll significant other about why they weren't in a position to answer all those calls to their hotel room in the middle of the night. "What happens in Vegas stays in Vegas" doesn't really suffice as an explanation to one's spouse or girl/boyfriend, I imagine.

What's also nice about the way that Judge McKeown begins the opinion is that it encourages the reader to come out the same way she does -- which is to affirm a two-plus year prison sentence for Mr. Gonzalez for interference with a flight crew member, and, in particular, the essential doubling of his sentence under the guidelines because his conduct allegedly "recklessly endangered the safety of the aircraft." Judge Tashima dissents, so it helps to have Judge McKeown essentially paint Mr. Gonzalez as a quasi-terrorist in an attempt to get the reader on her side. It have been a much different beginning, for example, had Judge McKeown began the opinion as follows:

"Shortly after take off from Las Vegas, passenger Salvador Gonzalez began to have severe medical problems consistent with a massive heart attack. He asked the flight attendant for oxygen and, in light of his apparent heart attack, began saying 'We have to get on the ground. We have to land.' When there was no sign that the plane was in fact returning to Las Vegas to land, Mr. Gonzalez, convinced that he would die in the air, became increasingly distraught. Precisely what Mr. Gonzelez said is undisputed; it is clear that he said 'Do I have to say I have a bomb to get this plane on the ground?' But some witnesses said they heard only the words 'I have a bomb' from Mr. Gonzalez. Regardless of what was actually said, various passengers began punching Mr. Gonzalez, and they wrestled him to the ground, after they heard whatever words were spoken. The sentence of Mr. Gonzalez -- who had no bomb or other device -- was essentially doubled because his conduct allegedly ''recklessly endangered the safety of the aircraft,' and he appeals."

That'd give a different flavor to the opinion, right?