Nothing published from the California judiciary today (at least thus far). And nothing published by the Ninth Circuit today either; or, for that matter, yesterday. Slow September.
But the gap did let me go back a couple of days and reread this opinion from Tuesday. There's a little bit of a substantive fight between the majority opinion and the partial dissent that's at least marginally interesting. But I wanted to talk instead about Justice Wiley's opinion style instead.
Justice Wiley is often incredibly concise. I talked about that earlier this week, and have noticed it in several of his opinions. But, on rare occasions, he perhaps sacrifices substance for brevity. For example, when he decides that trial counsel might have failed to object to a particular instance of alleged prosecutorial misconduct, he makes some good points ("Many sound reasons could explain the decisions not to
object to these comments. Counsel may have figured
counterargument held more rhetorical promise than a mere
objection. Or the jury may have looked bored, and the stimulus
of an objection may have awakened the jurors’ interest in a
counterproductive way."), but then simply adds: "And so forth."
I'm always intrigued when I see ten-character sentences in a judicial opinion. Particularly those that lack a verb. But, on this occasion, I think you have to actually articulate -- not merely assume -- the hypothetical reasons for the purportedly "tactical" decision not to object. "Etc." doesn't really cut it.
Mind you, in other areas, Justice Wiley's brevity strikes me as brilliant. For example, the entirety of Section II.C. of the opinion consists of a single sentence: "There was no cumulative error because there were no
errors to cumulate." You see a plethora of opinions say the exact same substantive thing. But Justice Wiley's way of saying it struck me as notably pithy and memorable. Moreover, as far as I can tell, he's the only person who's described a holding that particular way: at a minimum, there are no published or unpublished opinions that ever use that same sentence. So i'm impressed that Justice Wiley can come up with a new -- and arguably better -- way of saying something that a plethora of opinions have said over a century or so of jurisprudence. Well done. I'm hoping that someone will follow up on that example and use this same sentence sometime in the future. 'Cause I like it.
One other minor point about Justice Wiley's writing style. The first sentence of this opinion reads: "A jury convicted Juan Ramirez of a shotgun murder." That's sort of a funny way to say it, right? "A shotgun murder." I mean, simply saying that the guy was convicted of "murder" is probably all you need to say. Putting in "shotgun" doesn't really add anything. Particularly since there's nothing substantive in the opinion about whether the weapon was a shotgun, finding the shotgun, ballistics from the shotgun, or the like ("so forth").
Plus, what's the deal with the article. "A shotgun murder." That just sounds funny. Old school, in a way. So I looked up whether other people (judges, anyway) say the same thing. On this front, Justice Wiley isn't as original as his earlier "cumulative error" styling. But it's still pretty rare. I could only find ten or so instances of where a judge has said that there was "a shotgun murder," and that's after looking at every reported and unreported opinion from all across the nation (state and federal) over the past century. So, yep, other people have used the same term. But it nonetheless remains a fairly funky way of saying it.
Anyway, having joined the Court of Appeal only last year, Justice Wiley is quickly making his mark, if only as a matter of writing style. Which is perhaps not that surprising, given his background as a long-time law professor at UCLA. The guy knows a thing or two. And says it in an artful way.
