First, Justice Groban's opinion. A portion of it struck me as the most anodyne way possible of setting forth the question presented. It sounded like the doctrinal language that professors in law school sometimes use when describing a subject. Language that's 100% accurate but somewhat obscures -- perhaps deliberately -- exactly what we're talking about. For example:
"Murder also requires an actus reus. . . . [T]he issue in this case is whether
Morris is precluded from making a prima facie showing for
resentencing relief under section 1172.6 as a nonkiller aider or
abettor of robbery and rape with intent to kill. . . . Morris claims
that, when a nonkiller acts with an intent to kill, the nonkiller
must aid the actual killer in the lethal act. . . . The
disagreement involves the actus reus requirement, specifically,
what acts are required to prove the actus reus under section 189,
subdivision (e)(2)."
This all makes sense. At least if you understand the lingo. Even though a different way of saying the same thing, rather than using terms like actus reus, would be to say something like: "Is someone eligible for resentencing under the relevant California statutory provision if he breaks into a home alongside another person, intended to rob it, and rapes a person therein while the other person murders the other resident?" We know that actual killers aren't eligible for resentencing, nor are people who actually help them kill, but what about situations like that?
You ultimately get from Justice Groban's opinion what he's talking about, but there's a lot of doctrinal lingo in there (including some in Latin) that you gotta get through first. (P.S. - The Court ultimately holds that, yeah, a person who doesn't actually help the person kill is potentially eligible.)
Second, Chief Justice Guerrero's concurrence. I can't tell you how surprised -- and excited -- I am to see a judge actually rely on the rule of lenity. That doctrine is almost always viewed as a throwaway these days. The constant -- and I mean, constant -- contemporary refrain is that you only interpret ambiguous criminal statutes in favor of the defendant if relevant interpretive rules are a tie, and in practice, judges never hold that it's a tie. So I was thrilled to see someone take and apply the doctrine seriously.
Finally, the dissent of Justice Yegan (sitting by designation). It's short: four pages. It makes some arguable points, and responds to both the majority opinion and the concurrence. But the thing that most struck me about this dissent (and, to be clear, several things struck me) was the penultimate sentence in its first paragraph, when Justice Yegan says "Salus populi suprema lex esto." Which is Latin for "The safety of the community is the
highest law."
I get that other opinions have sometimes said that. But personally, I never would. The highest law in a democratic society is, in my view, the law. That's what we follow. We're a society dedicated to the rule of law -- and certainly the judiciary is -- not act utilitarian philosophers. We follow the rule of law even when, in our view, doing so would reduce communal safety. Both because "safety" (while critical) is not the sole human (or governmental) objective and, more centrally, because appeals to "the safety of the community" are traditional and oft-employed incantation of fascistic rulers. Yes, we care about safety. Deeply. But no, the objective is not, in fact, the highest law -- nor even "law" in the first place. It is a goal and an objective, but we follow the law regardless. Even if we individually believe that the law in a particular instance might be counterproductive to public safety. That's what in means to live in a nation committed to the rule of law, and what makes America qualitatively different from a variety of other, lesser nations where "the safety of the community" is indeed the highest law.
So I just wouldn't use that phrase myself. It's not something in which I believe, and certainly not a principle that I would want to invoke or affirmative spread. FWIW.
