Thursday, May 28, 2015

People v. Trujeque (Cal. Supreme Ct. - May 28, 2015)

It's not every day that you read a California Supreme Court decision that unanimously reverses a death sentence.  But today's such a day.

It's an unusual result, but it's also an unusual case.  For example, it's incredibly rare that the guy sentenced to death testified on his own behalf at trial.  But this guy did.  And didn't just testify.  He admitted the murders.  Didn't even offer a defense for doing what he did.  Here, for example, is what the defendant told the district attorney:  "[B]oth of those cowards deserved what they got: death and an early expiration in life, to say the least,” and that if he “had the opportunity to do it over I would cut off their heads and send 'em both to their family!"

Not something you typically see in a death penalty trial, eh?

This is essentially a "volunteer" case.  The guy had gotten away with the murders.  He was in prison and didn't like it there, so made a cold call to a detective and told him about the crimes and asked to be sentenced to death.  The jury ultimately obliged.

Which makes today's decision especially unusual.  Usually the California Supreme Court affirms the death sentence of a guy who doesn't want it.  Today it reverses the death sentence of a guy who seems like he wants it.

What a crazy world.

Wednesday, May 27, 2015

Doe v. Ayers (9th Cir. - May 27, 2015)

Back in March, the Ninth Circuit unanimously granted habeas relief in a California death penalty case.  This was itself unusual.  (Though less unusual given the composition of the panel -- Judges Pregerson, Reinhardt, and Wardlaw.)  But even more unusual -- indeed, as far as I can tell, unprecedented -- was the fact that the panel did so in an opinion that referred to the petitioner as "John Doe".

Remember:  This is a death penalty case.  High profile.  Yet the Ninth Circuit went to great lengths to keep the identity of the prisoner secret.  And I mean great lengths.  Omitting tons of procedural history, leaving out various case citations, etc.

Today, the Ninth Circuit publishes a lengthy order that expands on its reasons for this unprecedented act.  Its rationale makes a lot of sense.  The opinion reveals lots of information about the childhood sexual history of the prisoner.  Other prisoners read published Ninth Circuit opinions.  You can imagine what might happen to the one prisoner if other prisoners learned about this history.  So the panel says it makes sense to keep things (relatively) secret.  Notwithstanding the California Attorney General's strong objection thereto.

Those who believe that prisoners sentenced to death deserve to be raped in prison are exceptionally unlikely to be swayed the panel's reasoning.  Others might find it persuasive.  For me, I see only a marginal upside in publicizing the names and identities of the relevant individuals.  Though, at the same time, I wonder if there's really a huge risk of fellow prisoners acting on the information at issue.  At least at present.  Since I imagine that prisoners sentenced to death are fairly segregated as well as subject to a decent amount of supervision by guards.  (I recognize that this doesn't absolutely guarantee safety, and won't necessarily continue if the panel's opinion takes effect and the prisoner's sentence is reduced to life in prison.  But given the historical treatment by the Supreme Court of Ninth Circuit opinions that were authored by Judge Reinhardt in death penalty cases, I'm not at all confident that the prisoner here is getting off death row any time soon.)

Regardless, the Ninth Circuit does what it does.  And is motivated by good principles.  Regardless of whether you agree or disagree with the result.

I'm not going to frustrate the panel's desire to keep secret the identity of the prisoner at issue by revealing his name here.  But I do wonder whether all this effort is really worth it.

Despite extensive efforts at "sanitizing" the panel opinion of all unnecessary references, it still contains enough facts about the case for one to fairly easily identify the identity of the relevant prisoner.  Especially since this case has been the subject of numerous published opinions already, not only in the Ninth Circuit, but in the California Supreme Court and even in the U.S. Supreme Court.  All one has to do is to look up the various facts and cross-reference them to the death penalty cases in those courts.  It took me less than two minutes to find out the prisoner's name that way.  (For what it's worth, the panel's decision to keep the year of the murder in the opinion -- 1984 -- made it incredibly easy, and could probably have been left out.)

Plus, even without any identifying facts, since this same case has been bouncing around the Ninth Circuit for years, one could simply look up prior death penalty cases in the Ninth Circuit that had (as here) the panel of Judges Pregerson, Reinhardt, and Wardlaw.  Took less than 30 seconds to find out the prisoner's name that way.  Or, since the panel (necessarily) mentions that its prior habeas grant was reversed by the Supreme Court, even an unsophisticated party could look at the past several years of Supreme Court death penalty cases from the Ninth Circuit and find out the guy's name.  That way took about a minute.

Admittedly, prisoners don't necessarily have all the resources that those of us on the "outside" do.  So maybe it'd take them a bit longer.  Though it's worth remembering that it only takes one, and at that point, the prison gossip machine would undoubtedly disseminate the information across the yard fairly quickly.

Moreover, even if the only thing one ever saw was the Ninth Circuit's most recent opinion, I'd bet that the prisoners actually in San Quentin would know the guy's identity pretty much instantaneously.  They know from the opinion that it involves a guy sentenced to death for a particular murder, and also know it all went down in the mid-80s (indeed, in 1984), so it's someone who's been in S.Q. for 30 years.  That narrows it down a ton already.  Plus, the panel tells everyone that it's a guy who "grew up in the South" and who was incarcerated there in 1976 at the age of 17; e.g., a southerner who's now 56 years old.

I'd be stunned if the folks at San Quentin can't figure out which one of them that is.  Westlaw or no Westlaw. (P.S. - It's also the dude who previously had a huge party once the Ninth Circuit reversed his death sentence only to have it reinstated by the Supreme Court.)

In short, this is all a lot of effort for likely nothing.  Still well-intentioned.  But basically futile.  Even if people like me respect the Ninth Circuit's decision by not publicizing the name.  (And, on that front, there's utterly nothing that stops the state, a victim, a reporter, a rabid conservative, or pretty much anyone from cranking out a blog post or press release or even a letter to every single prisoner at San Quentin that encloses the opinion and includes a post-it with the guy's name.)

But my guess is that even all this is probably moot.  Because my money's on the Supreme Court granting certiorari here anyway.  As well as issuing an opinion on the merits that definitely uses the guy's actual name.

There are some secrets in this world that are built to last.  This ain't one of 'em.

Tuesday, May 26, 2015

In Re Quantification Settlement Agreement Cases (Cal. Ct. App. - May 26, 2015)

Justice Robie publishes an opinion to say:  "We love that the parties have finally settled this long-running dispute, which has seen no less than eight different proceedings in the Court of Appeal over the past dozen years.  Thanks for that.  But next time, do it earlier.  Way earlier.  Especially since our tax dollars are paying for the whole thing."


Kumaraperu v. Feldsted (Cal. Ct. App. - May 26, 2015)

A bank account is owned by X, but Y says that the money in it belongs to Y.  So Y writes a check on the account, payable to Y, and signs X's name on it.  Assume that Y is right that the money belongs to Y.

Is the act of signing X's name to the check, without X's authorization, forgery?

The Court of Appeal says "No."

Fascinating opinion.

Friday, May 22, 2015

Shoen v. Zacarias (Cal. Ct. App. - May 22, 2015)

Justice Hoffstadt certainly makes a persuasive case in the opening paragraph of this opinion.  He says:

"A trial court has the power to issue an equitable easement authorizing a trespasser to continue her trespass in exchange for paying damages, but only if, among other things, the hardship on the trespasser in ceasing the trespass is “greatly disproportionate” to the hardship on the land’s owner in losing use of the trespassed-upon portion of her land. [Cites] Here, we address what constitutes a “greatly disproportionate” hardship, and conclude that a trespasser’s hardship in having to remove her portable patio furniture does not qualify. We accordingly reverse the trial court’s issuance of an equitable easement, and remand for further proceedings."

Plus, when you read the opinion, that conclusion seems to make a lot of sense.  At issue is a 500 square foot piece of flat land that sits between two adjacent parcels on a hillside.  One of the hillside property owners ("Ms. Wrong") thinks it's on her piece of land because her property has a set of stairs that goes up there.  So she puts some portable stools, a chaise lounge, and some other miscellaneous -- easily movable -- stuff up there.  Just to hang out on occasion and chill.

But Ms. Wrong is wrong.  The plot of land is actually pretty much entirely on "Ms. Right's" property.  Even though Ms. Right doesn't actually have access to this flat land because there's no real way to get up there from Ms. Right's side of the steep hillside.

Initially, Ms. Wrong and Ms. Right deal with things as reasonable neighbors should.  Ms. Right lets Ms. Wrong hang out there, but says that she reserves the right to change her mind and to kick Ms. Wrong out whenever she feels like it.

Fair enough.  Things go fine like that for seven years or so.

But then Ms. Right changes her mind and wants to kick out Ms. Wrong.  Litigation ensues.

The Court of Appeal ultimately holds -- as presaged by the opinion's opening paragraph -- that the trial court erred by letting Ms. Wrong continue to use the property.  It'd only cost Ms. Wrong $275 to move the chairs and miscellaneous stuff that's on the property off the land.  Justice Hoffstadt holds that's not enough of a "grossly disproportionate" burden to justify letting Ms. Wrong keep using the property belonging to Ms. Right.

Again, when I first read the thing, that made sense to me.  Justice Hoffstadt's right that the doctrine that lets wrongdoers continue a trespass (as long as they pay for it with damages) was an historical development designed to stop illegitimate rent-seeking.  (The Court of Appeal calls this principle "legal extortion", but I'm going to use the contemporary academic term "rent-seeking" instead.)  The classic case is when a fixed structure -- e.g., a garage or home -- is situated barely over a property line.  If we always let the "righteous" property owner (e.g., Mr. Right) get an injunction in such a setting, he'd have inequitable power over the innocent wrongdoer (Mr. Wrong), since the cost to move (or demolish) the structure would be huge.  So Mr. Right could demand a ton of money from Mr. Wrong to waive injunctive relief -- thereby saving Mr. Wrong of the duty to move the structure -- even though the burden on Mr. Right of having the structure a tiny bit over the line is incredibly strong.

We (rightfully) don't like creating such suboptimal incentives.  Hence the rule that if the burden on Mr. Wrong is grossly disproportionate to the burden on Mr. Right, we're not going to grant injunctive relief.  We'll instead just require Mr. Wrong to pay damages.

Fair enough.

Justice Hoffstadt, however, says that in the present case, requiring Ms. Wrong to pay a measly $275 to move the chairs -- a piddling amount -- isn't anything like having to move a house or the like.  It's a tiny sum.  So it's not "grossly disproportionate" to Ms. Right's benefit.  Hence the Court of Appeal reverses the trial court's ruling.  Allowing Ms. Right to potentially win on remand and recover the use of her precious 500 square feet of flat land.

You get it, right?  I certainly did.  Made sense.

But the more I think about it, the more I think that the Court of Appeal may actually be wrong.  Even though Justice Hoffstadt persuaded me at the outset that the result he reached was right both legally and as a matter of basic fairness.

What I ultimately understood -- and what's really critical to understanding both the doctrine as well as the proper result in the present case -- is that we're exclusively talking about relative burdens here.  Yes, Justice Hoffstadt is right that the the burden on Ms. Wrong \-- i.e., the $275 she'd have to spend to move the furniture, plus maybe the loss of her ability to quietly enjoy the 500 square feet of land -- is not especially high.  No where near as high as in your classic "move the house six inches" case.

But that's not dispositive.  To reiterate:  We're talking about relative burdens here, not the "absolute" nature of the burden.  To justify only requiring damages (and not granting an injunction), the burden on Ms. Wrong must merely be "grossly disproportionate" to the burden on Ms. Right.  So we have to compare the burden on Ms. Wrong to the burden on Ms. Right.

Admittedly, the fact that the burden on Ms. Wrong here is so small (e.g., $275) makes it fairly easy for Ms. Right (at least in most cases) to establish that this tiny burden is not grossly disproportionate to hers.

So let's check what the burden is on Ms. Right.

The correct answer to which is:  Absolutely none.  Not a burden in the slightest.

Admittedly, normally, you'd say that the burden on Ms. Right is that she doesn't get to use herself the property that's being used by Ms. Wrong.  True enough.

But the critical fact here is that it's undisputed that Ms. Right can't use the property herself even if Ms. Wrong is kicked out.  Ms. Right doesn't have a stairway to the property.  The only stairway to it is on Ms. Wrong's property.  And the hillside's too steep to walk up.

So if Ms. Wrong doesn't use it, nobody uses it.  No one at all.

Couldn't Ms. Right just build a staircase to the thing?  Yep.  She could.  But the parties agree both how much that'll cost as well as how much it'd be worth.  The 500 square feet of land is worth $5000 without a staircase to it and $15,000 with access via a staircase.

But it'd cost Ms. Right over $100,000 to build a staircase to it.  A $100,000 staircase to a $15,000 piece of land.

Which makes no rational economic sense.  Which means it won't happen.

Ms. Right will thus never use the property.  So what's the burden on Ms. Right resulting from Ms. Wrong's use of the property?

Absolutely zero.  Nada.  Nothing.  $0.

So now lets compare the relative burdens.  The burden on Ms. Wrong of having to move the chairs is $275.  The burden on Ms. Right of having no access to the property is $0.

To put it differently, the burden on Ms. Wrong is literally an infinitely greater multiple than the burden on Ms. Right.

Which means, in my mind, that the burden on Ms. Wrong is indeed "grossly disproportionate" than the burden on Ms. Right.  Which in turn means that the trial court was right and the Court of Appeal is wrong.  Ms. Wrong should be able to continue to use the property -- property that would not in any event be used by Ms. Right -- so long as she pays for it.

The limited relief granted by the trial court only makes its decision even more equitable.  The trial court didn't let Ms. Wrong use the property forever.  She only let her use it for 15 years.  And it also made her pay for it.  The full value of the property, no less.  The 500 square feet are worth $5000 to Ms. Right (since she doesn't have stairs to it).  The trial court makes Ms. Wrong pay Ms. Right this entire amount -- the full value of the property -- merely for 15 years of access.

So Ms. Right is out literally nothing.  She gets paid the full value of the property.  Property she can't use anyway.  Plus she gets the property back in 15 years.

The more I think about it, the more I'm convinced that's the right result.  The socially optimal result, no less.  We want property to be used.  To be enjoyed.  Only Ms. Wrong can do that.  So we should let her.  As long as she compensates Mr. Right.  Who's not injured anyway (since she can't use the land in any event).  And who we pay the full value of the land anyway.

That's a win-win.  For the landowners.  For society.  For everyone.

It's true that such a result stops Ms. Right from having full "legal ownership" of her land.  But every single one of these equity cases do the same thing.  When, as here, the benefit to the landowner isn't nearly as great as the benefit to the innocent wrongdoing party, we balance the equities.  And, here, to me, that means that Ms. Wrong should get access, Ms. Right doesn't lose access (since she'll never have it anyway since she doesn't have stairs), and Ms. Right gets fully paid.

The only thing that Ms. Right can't do is to seek rent from Ms. Wrong.  But that's precisely what we want to avoid in the first place.

So it's a great opinion by Justice Hoffstadt.  One that makes a ton of sense.

The only problem with it is that it's actually wrong.


Thursday, May 21, 2015

Leeman v. Adams Extract & Spice Co. (Cal. Ct. App. - May 21, 2015)

Plaintiff files a Prop. 65 (toxic chemicals warning) case, and -- predictably -- it settles for a tiny amount of civil penalties plus a much larger amount of fees.  The trial court isn't happy with the stipulated $72,500 in fees, and thinks it's too high.  Particularly the hourly rates, which go up to $895/hour.  For a straightforward Prop. 65 case.

So the trial court whacks the requested fee award in half.  Plaintiffs move ex parte to modify this award to the stipulated amount.  The trial court says no.  Plaintiffs then file a noticed motion to do the same thing.  Same result.  The trial court refuses.

The trial court -- Judge Goldsmith up in San Francisco -- never explains at any of these hearings precisely why he's reducing the requested fees.  Or provides a justification for doing so.

So the Court of Appeal reverses.  Telling the trial court that it can't just whack the fees for no reason, and that it also can't approve the settlement but reduce the fees, since the entire thing stands or falls as a whole.

But I wonder if Judge Goldsmith doesn't have the last laugh.

I wonder if a part of him was thinking:  "You bastards.  You know full well this was a shakedown, and that the $72,500 fee award was excessive.  You think I can't do anything about that.  And you're largely right.  I'm not going to keep a crappy case in my court (by disapproving the settlement) just to stop you from getting your fees.  But you know what I can do?  I can make it hard for you.  I can slash you fee award.  Once.  Twice.  Thrice.  Make you file three motions.  Make you prosecute an appeal.  Make you wait a couple of years.  And, yeah, you'll get your $72,500.  But you'll at least have to work for it."

Wednesday, May 20, 2015

People v. Therman (Cal. Ct. App. - May 20, 2015)

Defendant says that the trial court erred by imposing a no-contact order with the victim for five years.  The Attorney General agrees, and confesses error.

The Court of Appeal says:  Wrong.

Justice Robie says:  "You guys forgot about the amendment.  You're right that Section 136.2 only authorized prejudgment no-contact orders, and this one was post-judgment.  But the statute was amended in 2012, two years before this guy's conviction and sentence.  After the amendment, the statute now authorizes post-judgment no-contact orders too.  End of story."

That's why we have the Court of Appeal take its own look at things, eh?

In Re Sena (Cal. Ct. App. - May 19, 2015)

Richard Sena is serving a sentence of 16 to life for second degree murder.  He was convicted in 1992, and has been in prison ever since.

In November 2011, the Board of Parole Hearings granted him parole.  But on April 26, 2012, the Governor reversed that decision.

Mr. Sena filed a writ, arguing that the Governor's decision was not supported by substantial evidence.  The trial court agreed, and granted the writ on September 18, 2012.  Its opinion ordered Mr. Sena to be released on parole "within 5 days".

Free at last!  Free at last!

The Governor has an opportunity, of course, to appeal the trial court's decision.  But on October 3, 2012, the Governor informed the Board that he would not appeal.

So after two full decades in prison, Mr. Sena will finally get out.

Maybe it was the excitement.  Maybe it was finally time to celebrate.  Whatever the reason, on the same day that the Governor said that he would not appeal, Mr. Sena made a decision of his own:

He exposed his penis to a female guard and masturbated in front of her.


The trial court held that this didn't matter.  Mr. Sena was supposed to be released in September.  He shouldn't have even been in prison.  So his subsequent decision to expose himself there doesn't change his entitlement to parole.

The Court of Appeal reverses.  Holding that it doesn't matter.  The Board gets to take subsequent acts into account.  So Mr. Sena gets denied parole notwithstanding the trial court's unappealed order.

The lesson, of course, is to keep it in your pants.  At least until you're released from prison.

At which point you can "celebrate" to your heart's content.  In the privacy of your own home.

Tuesday, May 19, 2015

U.S. v. Mageno (9th Cir. - May 19, 2015)

"In August 2014, this panel issued lengthy published opinions, including a dissent [here], vacating Mageno’s conviction based on the (apparent) prosecutorial misstatements that the government had brought to the court’s attention. See Mageno, 762 F.3d 933. Although Mageno had not raised the issue in her opening brief, the court held in the majority opinion that it had discretion to reach the issue because the government had sufficiently addressed it in its answering brief and would not be prejudiced by our doing so. See id. at 939–43 (citing United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992)). The court then concluded that the standard for plain error was satisfied, holding that the “comments at closing clearly misstated evidence, by explicitly and implicitly stating, five times in all, that Burgos testified that Mageno knew he was previously deported for drug trafficking.” Id. at 945. It further held that “the government’s misstatements likelyprejudiced the outcome of Mageno’s trial,” and that the “error seriously impeded the jury’s ability to function as an impartial fact-finder, thereby affecting the fairness and integrity of judicial proceedings.” Id. at 947. Accordingly, the court vacated Mageno’s conviction “so that she may have an untainted shot at maintaining her innocence without the prosecution’s damaging misstatements.” . . .

Shortly after we issued those decisions, one of the government prosecutors who had handled the trial contacted Elizabeth O. White, Appellate Chief and Assistant United States Attorney for the District of Nevada, to say that he distinctly recalled Burgos testifying that Mageno knew why he had been deported.4 He advised White he was certain that neither he nor the other prosecutor had misstated Burgos’ testimony. In light of the prosecutor’s recollection, the government sought and obtained an order from the district court to review the audio recording of Burgos’ testimony. Mageno did not oppose the motion.

White compared the audio recording to the official transcript and discovered several material omissions in the transcript. Most significantly, the audio recording revealed that Burgos not only had been asked whether Mageno knew why he was deported but had answered the question affirmatively. The audio recording showed, therefore, that the prosecution had not misstated the evidence during closing arguments, and that our opinion vacating Mageno’s conviction was based on an erroneous factual premise. . . .

The government then filed a petition for panel rehearing, asking us to vacate our published opinion and affirm Mageno’s conviction. See Fed. R. App. P. 40. It argued rehearing was appropriate because “material errors in the reporter’s transcript led the government – and, in turn, the Court – to misapprehend what actually occurred at trial.” It acknowledged that “these unfortunate consequences for the Court and the trial attorneys could have been avoided if the appellate division had consulted with the trial attorneys before inserting this issue into the appeal,” but it assured us that “the U.S. Attorney’s Office has instituted new procedures for reviewing appellate briefs to ensure this type of error will not happen again.”


The Ninth Circuit ultimately agrees with the government, and vacates the prior opinion and affirms the defendant's conviction.

A clusterfart to be sure.  But one that worked out in the end.

Monday, May 18, 2015

Garcia v. Google, Inc. (9th Cir. - May 18, 2015)

I won't say much about the merits of this case, since it's high-profile and will get substantial attention without me.  Plus, everyone agrees that its factual context is exceptionally unusual, so the precedent it establishes is unlikely to be routinely cited.  In the end, the Ninth Circuit reverses course and lets the trailer for the film Innocence of Muslims be available on YouTube.  That's the opposite of what the Ninth Circuit did fifteen months ago, when a three-judge panel reversed the district court's refusal to enter a preliminary injunction against the dissemination of the trailer.

Judge Reinhardt writes a concurring opinion that says that the en banc court didn't go far enough, and should have expedited the matter so it didn't violate the First Amendment during the past year or so.  Judge Watford writes a concurring opinion that says that the en banc court went too far, and should have issued a more limited opinion that largely resolved the present (unusual) case and no more.  Judge Kozinski dissent and says that the en banc court got it all wrong, and that he was right in the first place when he wrote the (divided) opinion for the three-judge panel.

In the end, though, these authors write for themselves.  No one else joins these opinions.

I'm particularly interested in what Judge Kozinski thinks about this outcome.  It's a well-known case.  It's gotten a huge amount of attention.  In the end, he's outvoted.  11-1.  Not a single judge on the en banc panel thinks he got it right.

I can say with confidence that Judge Kozinski's ego is far from fragile.  Moreover, he's more than happy to be a voice crying out in the wilderness.

But I nonetheless wonder if it doesn't make even Judge Kozinski sit down for a moment and think about things when ten of his fellow judges -- including several he knows to be incredibly bright -- believe that his opinion is insufficiently attentive to the needs of the First Amendment.  A clause of the Constitution about which Judge Kozinski cares, I think, fairly deeply.

I'm confident that, if asked, Judge Kozinski would undoubtedly say:  "Nope.  Doesn't make me hesitate in the slightest.  I'm right, everyone else is wrong."  He's definitely that type of guy.

I nonetheless wonder if there aren't at least a couple of reflective neurons, perhaps firing deep down in the frontal load of his cerebral cortex, that would oppose such a sentiment.

Friday, May 15, 2015

Williams v. Superior Court (Cal. Ct. App. - May 15, 2015)

You're a plaintiff's lawyer doing a wage and hour representative action against Marshalls.  You ask 'em for the contact information for all of their statewide employees, but Marshalls refuses.  You file a motion to compel, but the trial court denies it.  You file a writ with the Court of Appeal, claiming that this information is vital and discoverable.

To your surprise, the Court of Appeal doesn't respond with the usual postcard denial of your petition.

Instead, it agrees to hear your writ!  Victory!!

It's true that many times, if the Court of Appeal's interested enough to hear your writ petition, they're interested enough to grant it.

But not always.

Here, the Court of Appeal decides to hear the writ, but denies it on the merits.  Agreeing with the trial court that the requested discovery is premature at this point.  And publishing the opinion to make its views known to other trial courts as well.

So remember:  When you avoid the dreaded postcard denial, that's a great sign.

But hardly conclusive.

Riley v. McDaniel (9th Cir. - May 15, 2015)

Even before reading the opinion, I saw that it was a published death penalty case with Judge Reinhardt as the author.  With no dissent.

Doesn't take a genius to figure out which way that one comes out.

Thursday, May 14, 2015

County of Nevada v. Superior Court (Cal. Ct. App. - May 14, 2015)

Lawyers are generally free to meet with their clients in jail (or prison) in person, without the barriers or other sorts of restrictions that sometimes accompany "regular" visits.  I like that.  My (admittedly limited) experience meeting with clients in prison is that it's infinitely more convenient and effective to actually sit next to them than it is to have to talk over the phone through a glass partition.

That said, I freely admit that if a prison wants to do otherwise, that's only a fairly limited restriction on the right to counsel protected by the Sixth Amendment.  I could imagine a plethora of reasons why a prison might be compelled to limit attorney contact.  Maybe they're worried about attorneys handing over contraband -- as I'm sure they do on occasion.  (Though the better alternative here would simply be to check the inmate after the visit.  Something I'm confident prisons do.)  Maybe they're worried about escapes.  Or assaults.  Low risks, to be sure.  But if there's evidence of it, I could see allowing a prison to constrain the ways attorneys meet with their clients.  Either generally or in specific cases.

But I nonetheless agree with Justice Mauro here.  The County of Nevada's blanket restriction on attorney contact visits -- making all counsel talk over the phone and through glass partitions -- is way overbroad.  Especially given the pathetic nature of the facilities there.  They've got crappy phones that you basically have to scream into to be heard.  No soundproofing on the prisoner's side; only porous cinder block.  A little mail slot for passing over documents that needs to be individually opened upon request by the jail staff.

That's no way to meet with a client.  That's not conducive to the preparation of an effective defense.

When, as here, there's not even a strong reason for limiting contact visits with attorneys, the fact that it's slightly easier on prisons (or jails) to not have to "worry" about in-person attorney visits simply is not enough to justify the restriction.  Yes, I agree, it's a little more burdensome to actually let lawyers meet with their clients like real people.

But lots of rights under the Constitution are like that.  A little burdensome.  But worth it.

Wednesday, May 13, 2015

U.S. v. Brown (9th Cir. - May 13, 2015)

What do you do when (1) a retained criminal defense attorney takes $50,000 from the defendant to represent him, (2) (allegedly) doesn't prepare at all for the upcoming trial, but instead simply tries to persuade the defendant to plea, and then (3) on the eve of trial, both the defendant and counsel express displeasure with the resulting situation, with the attorney moving to withdraw (because the defendant won't take a plea) and the defendant asking to fire his attorney because he took the money yet still has not prepared for trial?

Judge Jones, to his credit, is not pleased with the resulting situation.  He orders the attorney to get it together (and threatens to order a refund of the entire $50,000), continues the trial for a month, and then presides over the resulting trial.

The Ninth Circuit reverses.

Judge Berzon holds that the client has a virtually unlimited right to fire a retained lawyer and go with the public defender.  Regardless of the reasons why.  Even if the firing would result in a delay in the trial, that wasn't a good enough reason here to do what the district court did, since there was a delay anyway and since the district court didn't rely on the delay (as opposed to the defense counsel taking the money and not getting ready) as a reason for its conduct.

What you'd really like to do is to tell the defense attorney in advance to get his act together.

But what you end up having to do is to allow the guy to be fired and replaced by a public defender.

Golden State Water Co. v. Casitas Water Dist. (Cal. Ct. App. - May 13, 2015)

I mentioned when the original opinion came out last month that I thought that Justice Perren's opinion was particularly enthusiastic.  Comparing the appellant to, among other things, King George III.  In the opening paragraph, no less.

Today, Justice Perren tones it down a bit.  Amending the opinion to remove the references to King George III and monopolists.

It's still a strong opinion.  Don't get me wrong.

But the rhetoric is less over the top.

Tuesday, May 12, 2015

Comstock v. Humphries (9th Cir. - May 12, 2015)

Judge Owens writes a strong opinion this morning.  Rightfully so.  Stephen Comstock gets convicted of stealing a ring.  But the owner of the ring told the prosecution that he might have left it outside of his apartment when he washed his motorcycle; e.g., lost it, rather than had it stolen.  But the prosecutor never disclosed this information to the defense.

That's a Brady violation.  It justifies habeas relief.

Fair enough.

But without really arguing the merits, I just want to push back a tiny bit on the vigor of Judge Owens' opinion.

Judge Owens ends the opinion by saying:  "This is the rare criminal case where the entire prosecution rested on the shoulders of one man—Randy Street."  That's sort of true.  Street was the owner of the ring, and he said he rarely wore it, and when he did, he took good care of it.  And when the detective told him that they'd found his ring, Street was surprised:  he thought it was still in a seashell in his apartment.

Okay.  So that's some decent evidence that the ring was indeed stolen.

But it was hardly the only evidence against Mr. Comstock.  Comstock did, in fact, pawn the ring.  A distinctive ring at that:  one with not only Street's name engraved on it, but also Street's success as the '91-'92 National Wrestling Champion.  Comstock lived near Street.  Moreover, Comstock did maintenance work at Street's apartment complex; indeed, had been in Street's apartment at some point in the past.  There'd also been a rash of burglaries at that complex.  Oh, and Comstock appears to be a serial thief; the police were actively monitoring him, and he was sentenced as a habitual criminal.  To round things off, Comstock's story to the police about how he obtained the ring was radically different than his story at trial.

So to say that "the entire prosecution rested on the shoulders of one man -- Randy Street" may be a bit strong.  There was plenty of other evidence as well.

One more thing.  The undisclosed testimony from Street was hardly as lock-solid devastating as one might initially think.  Sure, he said that he "might" have left the ring outside his apartment while cleaning his motorcycle, since he "didn't remember putting it back on" after taking it off.  But his actual testimony at trial was quite a bit more incriminating than this prior statement.  And remember that, at the time, Street thought that his ring was still in the seashell; i.e., not left outside.

And then there's the matter of timing.  When did Mr. Street submit a note to the judge saying that "to have a clear conscience" he "ha[d] to bring up the possibility" that the ring was lost instead of stolen?  Only after Mr. Comstock was convicted and faced an incredibly long 10-25 years in prison.  I think it's possible that Street was taken aback by the sentence.  A possibility reflected even in Street's note to the judge, which expressly referred to Comstock's sentence and said that "[h]e’s probably served enough time for not asking nearby tenants if they were missing the ring."

I mention this not because Mr. Comstock shouldn't get out of prison.  (Though it bears mention that he is not, in fact, still in prison, and is presently out on parole.)  Nor does any of this mean that the prosecutor shouldn't have disclosed the relevant information.  S/he should have.  Definitely.

But if the subsequent question -- as may be the case -- is whether Mr. Comstock should prevail in a civil suit, and get $50,000 or so a year for every year he was incarcerated, I do think it's worth taking a look at the complete picture.  Because even if Nevada has a slim desire to retry Comstock at this point -- which may well be the case since he's already served his entire sentence, wholly apart from the difficulties of prosecuting a decade-old case in which the victim, Mr. Street, is now deceased -- it is perhaps worth noting that Mr. Comstock may well not be entirely innocent.  Indeed, even under his own version of the facts, Mr. Comstock was almost certainly guilty of a crime (misappropriation of lost property) anyway.  And that's assuming you buy his story at trial.  Which there's every reason to discount.

So I'm on board for how Judge Owens resolves this one.  I just want to mention the equities on the other side as well.

Monday, May 11, 2015

In Re Marriage of Horner (Cal. Ct. App. - May 6, 2015)

The Court of Appeal kicks a dead horse, but for a good cause:

"Because we affirm the judgment, there is no need to discuss Penny’s argument that the case should be remanded for retrial before a different judge. However, to the extent Penny insinuates Judge Mayfield was less than impartial, we must disagree. In fact, the judge explained at some length in her statement of decision dated April 19, 2012, the cogent reasons why she found some of Penny’s evidence was not credible. Significantly, Tom’s daughter testified that Penny said she wanted to make the divorce as expensive as possible so Tom would not want to go through with it and they could be reunited. The judge’s doubts about Penny’s conduct were grounded in the evidence, not prejudice. Judge Mayfield also fully explained her finding that Penny’s attorneys had engaged in “obstreperous and unprofessional conduct,” and had unnecessarily increased the cost of litigation. We are satisfied the judge’s rulings did not reflect a lack of impartiality.

The judgment is affirmed. Tom is awarded his costs on appeal."

In short, Penny should stop complaining about the trial judge.  The fault was hers, not Judge Mayfield's.

Thursday, May 07, 2015

Davis v. Sentinel Weekly News (Cal. Ct. App. - May 7, 2015)

Justice Miller writes a steady, coherent, intelligible opinion about whether the Press-Enterprise is a newspaper of "general circulation" in the City of Corona.  The Press-Enterprise certainly qualifies as a newspaper of general circulation in Riverside County, and has been since 1878.  But did that survive with respect to Corona when that city incorporated (out of Riverside County) in 1896?

This matters because lots of notices -- e.g., foreclosure notices -- are required to be published in a newspaper of general circulation.  Which is also why the Sentinel, a competing paper in Corona, goes to great lengths to oppose Riverside's application.  Because there's big money at stake.  All the cash that goes along with getting those statutorily required foreclosure notices published in the local paper.

Go ahead and read the entire opinion if you want to see who wins.

But also realize that the whole statutory scheme is absurd.  Utterly nonsensical in the modern era.

Nobody reads this stuff.  Nobody.  Whether it's a foreclosure notice or a summons via publication in a local newspaper, we don't even pretend that this is "real" notice to anyone.  We just do it because it's required.  It's a meaningless formality, and everyone knows it.  It's not like people actually read those dense notices and say "What?!  I've been sued (or my house is being foreclosed)?!  I never knew that.  Thank goodness I've got nothing better to do in life than read the boilerplate notices in (typically) an unseen section of (often) a virtually unread newspaper!"  Doesn't happen.

So why does this practice survive?  Two reasons, I think.

First, money.  Newspapers make a mint off of these (expensive) advertisements.  It's an especially critical revenue source in the contemporary lean times for newspapers.  Newspapers have lobbyists.  Politicians need both cash and good press.  The statutory publication requirement is thus good for everyone.  Everyone except, of course, the people who need to pay the resulting costs; e.g., the public.

Second, frustration.  We typically require publication as a last-ditch effort when other methods of service have failed.  Can't find the defendant.  Can't hand-serve 'em.  Things like that.  Due Process probably requires us to at least try to notify them of the lawsuit.  So, as a last ditch effort, we throw up our hands and require the one thing that we have left:  publication.  We know it doesn't actually work.  But we're out of other options.  So this way we can at least say we've tried.  Hence satisfying the Due Process Clause.

The first excuse is obviously not an actual excuse.  Never was.  The second may have been a valid reason thirty years ago.  But no longer.

We can publish these things on the web.  Have a central location -- maybe as part of the superior court's web site -- where all these notices can be made.  It'd be (super) cheap.  It'd be easy.  It'd assuredly be at least as successful as publication in an unread local newspaper, and probably more so.

As a bonus, we'd also avoid silly disputes like the one at issue in today's opinion.  Which wouldn't matter once there was a centralized, residual place where you could go to see whether you've been sued.  Maybe it'd even be (gasp!) searchable.  Unlike those dense, expensive notices in newspapers.

A rational, fairer, more efficient world would have adopted such a regime by now.  It's not like the internet is a new thing, or suddenly became ubiquitous last month.  Whatever the flaws of publication through the internet, they're insubstantial compared to the flaws of publication in a local newspaper of general circulation.

That we don't have such a dominant system -- e.g., that we have opinions like the one today -- speaks volumes about the deficiencies of our overarching political and legal system.


Keep Our Mountains Quiet v. County of Santa Clara (Cal. Ct. App. - May 7, 2015)

To its credit, the Court of Appeal plays this one straight up.

It's about a homeowner who has some weddings on her property in the hills of Santa Clara County, and some neighbors who don't like the resulting noise, complained, and then challenge the County's grant of a permit without requiring a full-scale environmental impact report.  Ultimately, the annoyed neighbors largely win, including obtaining an award of attorney's fees for acting in the public interest.

Left largely unspoken -- at least expressly -- in the Court of Appeal's opinion is just how rich many of the people involved in this dispute are.  The closest the Court of Appeal comes is its reference to the area at issue as a place that includes "vineyards for the Redwood Ridge Estates Winery, llama and alpaca grazing land, [and] barns."  Perhaps a reminder that we're talking about the hills about Santa Clara County; i.e., the expensive (and beautiful) hillsides above Silicon Valley.

Nor does the Court of Appeal say even a word about the identity of the homeowner at issue:  Candice Clark Wozniak.  Though perhaps you recognize the last name, which is a fairly unusual one.  Yes, it's the same Wozniak.  She's the former wife of Apple co-founder Steve Wozniak.  So let's just say she's not exactly poor.

Nor is she a slouch.  Among other things, she was a gold medalist in the K-1 Slalom team event at the 1973 ICF Canoe Slalom World Championships.

But even with all these talents, she takes it on the chin here.

Rich people problems.

Wednesday, May 06, 2015

ACLU v. Superior Court (Cal. Ct. App. - May 6, 2015)

Today's opinion is technically about a Public Records Act request, not about the merits of the underlying program.  But for those unfamiliar with the scope of contemporary surveillance -- especially those who drive in Los Angeles -- I thought that several paragraph of the opinion bear repetition:

"Real Parties [the LAPD and the LA Sheriff's Department] each maintain an ALPR [Automatic License Plate Recognition] system that consists of several high-speed cameras mounted on fixed structures and patrol cars that automatically capture an image of every passing vehicle’s license plate in their immediate vicinity. The system uses "character recognition software” to read the license plate’s number from the image and “almost instantly” checks the number against a list of “known license plates” associated with suspected crimes—or a “hot list”—to determine whether a vehicle may be stolen or otherwise associated with a crime, AMBER alert or outstanding warrant. If a mobile ALPR unit detects a license plate on the hot list, officers are notified of the “hit” by an audible alert and notation on their patrol car’s computer screen. ALPR fixed positions similarly notify a central dispatch unit when a hit is detected.

In addition to extracting the license plate number, the ALPR system records the date and location where it captured the plate’s image. The system transmits this “plate scan data” to an ALPR server within Real Parties’ confidential computer networks. LAPD estimates it records plate scan data for approximately 1.2 million cars per week; LASD estimates that figure to be between 1.7 and 1.8 million plate scans for its ALPR system. LAPD retains plate scan data for five years under its current policy. LASD retains the data for two years, although it would prefer to retain the data indefinitely."

So in Los Angeles alone, the authorities record the real-time location of approximately three million vehicles every week, and store that information in a central database for years.  Three million people who've done nothing wrong.  Every week.

There are definitely benefits to this system.  You catch some criminals.  You help close some cases.

But it's a pretty heavy inroad into a pervasive surveillance state, eh?

Could be good.  Could be bad.

But definitely worth knowing -- and thinking -- about.

In Re J.W. (Cal. Ct. App. - May 6, 2015)

"Appellant produced some evidence that he had turned his life around. Appellant had improved his behavior, finished high school, and was taking a class at a community college. We find this admirable. But the trial court was well within its discretion in concluding that the seriousness of the offenses and their recent commission precluded a finding that appellant was rehabilitated. As the trial court acknowledged, the passage of time works in his favor, and if appellant furthers his rehabilitation, he will in the future have the opportunity to ask the trial court to seal his records."

Sounds right to me.

I'll nonetheless add that it's now the middle of 2015.  Petitioner turned 18 in October of 2012, and moved to seal his juvenile file shortly thereafter.  That was over two and a half years ago.

Counsel for J.W. should advise him to try again.  If he's stayed clean, my money's on the motion to seal being granted at this point.

Tuesday, May 05, 2015

Davis v. Devanlay Retail Group (9th Cir. - May 5, 2015)

Do these two statutes mean the same thing:

(A)  "A person located on a public sidewalk and engaged in the residential picketing of a residence shall not request, or require as a condition of leaving the sidewalk, the provision of money from the homeowner."

(B)  "A person located on a public sidewalk and engaged in the residential picketing of a residence shall not request or require as a condition of leaving the sidewalk, the provision of money from the homeowner."

To put it a different way:  Does the placement of the first comma in (A) make a difference?

As a matter of both English grammar as well as statutory interpretation, I would think that (A) is clearly different than (B).  (A) says that you (1) can't request money from the homeowner, and (2) can't demand money from the homeowner for certain acts.  In (A), the clause "require as a condition of leaving the sidewalk" is independent from the first clause, something that we make clear by the setting off of this clause by commas.  By contrast, in (B), the clause isn't set off by commas, so the phrase "as a condition of leaving the sidewalk" applies to both antecedent verbs -- both "request" as well as "require".

So they mean different things.  That's standard English.

The Ninth Circuit, however, isn't entirely convinced.  This morning, it certifies a nearly identical issue to the California Supreme Court.  The statute at issue has both commas -- like (A) -- and says (in relevant part):

"[N]o person, firm, partnership, association, or corporation that accepts credit cards for the transaction of business shall . . . [r]equest, or require as a condition to accepting the credit card as payment in full or in part for goods or services, the cardholder to provide personal identification information . . . ."

The Ninth Circuit wants to know whether that means that a store that accepts credit cards can't request personal information at all, or whether the store is prohibited from requesting (or requiring) such information only "as a condition to accepting the credit card."

Again, as a matter of simple English, I think the answer's clear.  There's a comma in the statute.  It means something.  That meaning grammatically clear.  It means that the clause between the commas -- "require as a condition to accepting the credit card" -- is independent, and doesn't modify the verb "request".  Which in turn means that the store can't request such information.  Regardless of whether it's required.

Just as in the hypothetical I posed at the outset of this post.

So if you're a textualist -- say, someone with the last name "Scalia" or "Thomas" -- the answer should be clear.  The statute means what it says.  The store's liable.  No need to certify.  Don't need to look at legislative history, purpose, or anything else.  End of story.

Me:  I've got a different last name.  I'm not such a strict textualist.  I think it makes sense to look at the entire statute.  Context, purpose, etc.  So I'm willing to consider things like the fact that the Legislative Counsel's Digest of the statute said that “[t]his bill would provide that the merchant in such a transaction may neither request personal identification information, nor require that information as a condition to acceptance of the card."  Seemingly supporting a view that a request would violate the statute even if it wasn't required as a condition to accepting the card.

I'd also be willing to look at purpose.  I'd find plausible a claim that the Legislature might have wanted to create a bright-line, easily enforced rule that prohibited even a "request" for personal identification information so as to avoid disputes about whether, say, a cashier's statement "Can I please have your address?" was a "demand" for credit card information, or whether statements like these were sometimes okay (e.g., before the credit card was handed over by the customer, or after it was returned by the cashier), sometimes not (e.g., right as the card was being transferred), and maybe sometimes might depend on how the question was asked, the sophistication of the customer, etc.

That'd make sense to me.

But there are arguments on the other side as well.  It might be overbroad -- and perhaps even silly in some contexts -- to stop a store from "requesting" personal information just because it accepts credit cards.  What about requests in the parking lot?  And while there's some legislative history in favor of a broad interpretation, there's some the other way as well.  And I'm not sure that we really want to put much stock anyway in how various committees used commas in their descriptions of the statute when I'm not persuaded that even the Legislature itself thought a lot about the comma's meaning when they dropped it in there.

The one thing I'm confident about is that strict textualists are silly.  They'd have a clear answer to this question.  At least if they were honest about it.  Though, in truth, since many textualists wouldn't like the result that'd arise from such a view in the present case -- i.e., a ruling in favor of the plaintiffs -- I think lots of 'em would find ways to make the statute suddenly "unclear".  Even though, as a matter of pure text, it's not.

But, in my view, textualism doesn't entirely answer the question.  So the California Supreme Court should do more.  Yes, I think that text matters.  A lot.  If the Legislature's intent is unclear, even after looking at all the things we should, I think it makes a ton of sense to follow what the statute actually says.

But text nonetheless is not a be-all-and-end-all.  This case, in my view, is a perfect example.

Monday, May 04, 2015

People v. Lopez (Cal. Ct. App. - May 5, 2015)

"Defendant has had a substance abuse problem since he was 14 years old. He completed three substance abuse treatment programs between 1986 and 1997, but his substance abuse continued unabated. He was convicted of theft in 1988 and incurred two burglary convictions, his two strikes, in 1989. Defendant has a long history of violence. During one of the 1989 burglaries, the victim awoke to find defendant trying to steal his stereo. Defendant tried to “gouge the victim’s eyes,” but fled when the victim escaped his grasp. Also in 1989, when the police contacted defendant after it was reported that “he was challenging passersby to fight,” defendant assaulted the police. While serving a jail term, he escaped by force. In 1992, while driving a stolen car and trying to evade the police, defendant “rammed an occupied police car.” In 1996, defendant assaulted and injured his girlfriend. When the police arrived, he threatened and assaulted them and damaged their patrol car. In addition to his violent offenses, defendant was convicted of driving under the influence in 1989 and again in 1993. He has served multiple prison terms, and his performance on parole has been dismal. He lied to his parole officer, made no effort to obtain employment, and continued to use drugs and commit crimes while on parole.

Defendant was on parole with a warrant out for his arrest in August 1997 when he was stopped by the police. Defendant had been seen dropping an object on the ground after seeing a police officer. He provided a false name to the officer. The object he had dropped was retrieved, and it was found to be a wallet containing five packages of methamphetamine and defendant’s California Identification Card. He was arrested and found to be both drunk and under the influence of methamphetamine. Defendant was convicted of possession of methamphetamine for sale and sentenced to 25 years to life in 1998.

Since 1998, defendant has spent most of his time in the Secured Housing Unit (SHU) at Pelican Bay State Prison due to his involvement in the Northern Structure prison gang. He has been disciplined for battery on a peace officer and mutual combat in 2000, possession of inmate-manufactured alcohol in 2003 and 2004, possession of contraband in 2003, possession of a deadly weapon in 2010, and gang activity in 2012."

Given these facts, to say that Mr. Lopez will not successfully challenge his three-strikes sentence -- notwithstanding the passage of Proposition 47 -- is an understatement.  The trial court validly found that he poses an "unreasonable risk of danger to public safety".

Patterson v. Wagner (9th Cir. - May 4, 2015)

This morning's case highlights that even well-considered treaties, crafted by sophisticated international lawyers on both side, may still be totally ambiguous.  The ambiguity here is from an extradition treaty with South Korea that says that if the statute of limitations in the receiving party for the crime has already expired, that party "may" refuse to extradite the requested person.

So imagine, as here, that South Korea asks the U.S. to extradite someone for second degree murder, but the statute of limitations for this crime here -- five years -- has already expired.  Does that mean that (1) the request should be denied, (2) that the judiciary can decide whether to deny the request, or (3) that only the State Department gets to decide whether to deny the request.

The Ninth Circuit says it's (3).

Which is exactly my view of the language as well.  "May" means may.  The U.S. can extradite the person if it wants.  But it need not, pursuant to the treaty, if it doesn't feel like it.

The only problem with this view is that there's a fair amount of legislative history that suggests that the relevant decision makers thought that "may" meant "shall".  In other words, that if the limitations period had expired, there'd be no extradition.  Notwithstanding what the Ninth Circuit holds today.

I agree with Judge Fletcher that this history isn't crystal clear, and that contrary arguments can be made.  So it makes sense to go with what the actual language naturally says.

But it's far from a no-brainer.  Notwithstanding the substantial intellectual firepower than undoubtedly went into drafting the treaty in the first place.

Friday, May 01, 2015

U.S. v. Brown (9th Cir. - May 1, 2015)

I didn't know that you could be convicted in federal court by an 11-person jury.  Apparently you can.

Or at least you can in the modern era.  In the old days, you had a right to a verdict by a 12-person jury in federal court, even though the Constitution doesn't require it.  So if a juror got sick during deliberations, you got a new trial.  (Prior to the conclusion of World War II, we dismissed alternate jurors once the jury retired to deliberate.)

Unbeknownst to me, however, in 1983, the federal rules of criminal procedure were amended to allow a judge to go forward with 11 jurors in this situation.  Thereafter, in 1999, the rules were amended again to allow alternates to stick around even after deliberations have started.  Which means that nowadays, if a juror gets sick during deliberations, the judge has the option to draft an alternate.  Deliberations start over, but the defendant still gets to have his fate decided by twelve apostles -- err, jurors.

But the Ninth Circuit says that federal judges have a choice.  The parties can stipulate to 11.  The judge can put in an alternate.  Or the judge can simply force the parties to accept 11.  Her call.

That does indeed seem to be what the rule says.  I think it might be nice to have the full 12-member jury, as this is a time-honored tradition, and some dude's liberty is at stake.  After a year or so waiting for the trial, an extra day or so of deliberations (from starting anew) doesn't seem a complete debacle.

But if the district judge sees things otherwise, so be it.