You can strike one African-American juror from the pool. Or two. Or even three. But when you strike all six of the African-Americans in the pool -- and when the defendant is African-American as well -- well, that's raises some red flags. At least in some circles.
What's interesting about this case is, first, that the Ninth Circuit finds it so clear that the prosecutor engaged in a violation of Batson -- correctly, in my view -- that its grant the habeas petition notwithstanding (1) the strict limitations of AEDPA; (2) the fact that the district court denied relief; and (3) the fact that a very-non-leftie Judge Bea is both on the panel and, indeed, writes the opinion. That's pretty good evidence that there really was something untoward going on in state court. What's also interesting is that it's a good example of a case in which the court doesn't buy the prosecutor's purportedly race-neutral reasons for excusing the jurors in part due to the fact that the prosecutor seemed to examine the African-American jurors much more closely (in an attempt to obtain or support reasons to exclude them) than similarly-situated white jurors. That shows some keen insight on the part of the panel. And you don't see that view actually applied that often.
Finally, the Ninth Circuit's opinion is a testament to the wisdom of Justice Kline. Who -- way back in 2001 when this case was decided on direct appeal -- filed a dissent (albeit an unpublished one) in which he said that he agreed with the deference that his colleagues applied to the trial judge's finding that there were race-neutral reasons for the challenges but said, inter alia, that "a reviewing court is not a potted plant; the deference trial courts deserve does not require us to blind ourselves to the deprivation of an important constitutional right." And concluded -- as did the Ninth Circuit seven years later -- that the defendant should have been entitled to a new trial.
Vindication. At least for Justice Kline and the defendant. (Not so much for Justice Haerle, who wrote the majority opinion in the California Court of Appeal.)
Monday, July 21, 2008
Friday, July 18, 2008
U.S. v. Gonzalez (9th Cir. - July 18, 2008)
We take it seriously if you use your position of trust and authority as a police officer to sexually assault women.
As in 30 years in the slammer seriously.
The last paragraph of the opinion --which affirms the defendant's conviction -- is classic Judge Noonan. Who has a heart and doesn't lose sight of either the occasional imperfections of the system or the fact that we are dealing with real human lives here. The last paragraph is a virtual signature:
"Gonzalez, thirty-seven at the time of the crimes, was a graduate of California State University at Long Beach. He had been gainfully employed since he was 26. He had no criminal record. He had been a member of the Los Angeles Sheriff’s Department since 1997. To read his case is to read the story of a police officer inexplicably gone bad. His fall is great, his sentence hard. Bearing all this in mind and recalling that identifications are sometimes mistaken, we have reviewed the record and found that we cannot say that our confidence in the verdict has been shaken or that the convictions were produced by error. Accordingly, the judgment of conviction is AFFIRMED."
As in 30 years in the slammer seriously.
The last paragraph of the opinion --which affirms the defendant's conviction -- is classic Judge Noonan. Who has a heart and doesn't lose sight of either the occasional imperfections of the system or the fact that we are dealing with real human lives here. The last paragraph is a virtual signature:
"Gonzalez, thirty-seven at the time of the crimes, was a graduate of California State University at Long Beach. He had been gainfully employed since he was 26. He had no criminal record. He had been a member of the Los Angeles Sheriff’s Department since 1997. To read his case is to read the story of a police officer inexplicably gone bad. His fall is great, his sentence hard. Bearing all this in mind and recalling that identifications are sometimes mistaken, we have reviewed the record and found that we cannot say that our confidence in the verdict has been shaken or that the convictions were produced by error. Accordingly, the judgment of conviction is AFFIRMED."
Tekle v. Mukasey (9th Cir. - July 18, 2008)
Nice day for me today. Woke up early and went surfing. Finishing a law review article this morning and over lunchtime. Heading out to court for a hearing this afternoon. Going to eat a big steak with the wife and kids for dinner. Not a bad way to spend one's 40-something birthday. Not bad at all.
Plus, as a extra bonus, Judge Willie Fletcher let's me read this smackdown of an (unfortunately unnamed) IJ. By starting the opinion (after an introductory couple of paragraphs) with the following:
"We observe that immediately prior to Tekle’s testimony, the IJ offered the following comment for the record: 'I have one other comment, and again, I don’t care if the 9th Circuit wants to report this to my supervisor. The 9th Circuit does not comply with Supreme Court law with regard to asylum. While I am in the 9th Circuit and have to comply, I do note that they don’t really care what Immigration [J]udges do. If an Immigration [J]udge makes an adverse credibility determination, they will, in only one case out of every 250 to 300, affirm it. So I don’t play their game with regard to credibility determinations. In my view, an asylum merits hearing is analyzed on the basis of whether the claim itself is credible as opposed to testimony because that’s really the, the strength of it, because it’s very rare that an Immigration [J]udge can make and have withstand either with the Board or with the 9th Circuit, under applicable 9th Circuit case law, an adverse credibility determination.'
To clarify the record, we note that the IJ’s assertions about this court’s review of adverse credibility findings, even understood as hyperbole, are incorrect. According to statistics provided by the Ninth Circuit Staff Attorneys’ Office, in asylum cases decided between January 2005 and March 2008 the Ninth Circuit affirmed approximately 80% of all adverse credibility findings.2 Cases such as this one, in which the Ninth Circuit reverses an IJ’s adverse credibility finding, are the exception, rather than the rule."
Take that! Actual facts versus your selective perception/stereotypes! Sweet. Plus, I gotta say, I very much didn't like the IJ's attitude here. Either in the quote or as reflected by the facts in the rest of the opinion. It's one of those cases where you just get a gut sense that the IJ's completely out to scr*w the petitioner whatever the merits of her petition.
Now, mind you, if I were the IJ, I'd respond to Judge Fletcher's opinion by noting that the statistics that he's citing are from 2005-08, and hence postdate (and hence are not necessarily inconsistent with) the "1/300" statistic that the IJ threw out. But (1) even assuming a slight increase over the past three years in the rate at which the Ninth Circuit affirms adverse credibility findings -- which is possible but by no means certain -- I'm quite confident that the numbers that Judge Fletcher throws out are far closer to the truth, even back in the early 00s, than the IJ's, and (2) the IJ doesn't actually get to respond to the Ninth Circuit anyway, so this is all hypothetical.
Anyway, a great case. Thanks, Judge Fletcher. You didn't make my day, but you definitely made it a tiny bit better. I like to see this kind of stuff.
Plus, as a extra bonus, Judge Willie Fletcher let's me read this smackdown of an (unfortunately unnamed) IJ. By starting the opinion (after an introductory couple of paragraphs) with the following:
"We observe that immediately prior to Tekle’s testimony, the IJ offered the following comment for the record: 'I have one other comment, and again, I don’t care if the 9th Circuit wants to report this to my supervisor. The 9th Circuit does not comply with Supreme Court law with regard to asylum. While I am in the 9th Circuit and have to comply, I do note that they don’t really care what Immigration [J]udges do. If an Immigration [J]udge makes an adverse credibility determination, they will, in only one case out of every 250 to 300, affirm it. So I don’t play their game with regard to credibility determinations. In my view, an asylum merits hearing is analyzed on the basis of whether the claim itself is credible as opposed to testimony because that’s really the, the strength of it, because it’s very rare that an Immigration [J]udge can make and have withstand either with the Board or with the 9th Circuit, under applicable 9th Circuit case law, an adverse credibility determination.'
To clarify the record, we note that the IJ’s assertions about this court’s review of adverse credibility findings, even understood as hyperbole, are incorrect. According to statistics provided by the Ninth Circuit Staff Attorneys’ Office, in asylum cases decided between January 2005 and March 2008 the Ninth Circuit affirmed approximately 80% of all adverse credibility findings.2 Cases such as this one, in which the Ninth Circuit reverses an IJ’s adverse credibility finding, are the exception, rather than the rule."
Take that! Actual facts versus your selective perception/stereotypes! Sweet. Plus, I gotta say, I very much didn't like the IJ's attitude here. Either in the quote or as reflected by the facts in the rest of the opinion. It's one of those cases where you just get a gut sense that the IJ's completely out to scr*w the petitioner whatever the merits of her petition.
Now, mind you, if I were the IJ, I'd respond to Judge Fletcher's opinion by noting that the statistics that he's citing are from 2005-08, and hence postdate (and hence are not necessarily inconsistent with) the "1/300" statistic that the IJ threw out. But (1) even assuming a slight increase over the past three years in the rate at which the Ninth Circuit affirms adverse credibility findings -- which is possible but by no means certain -- I'm quite confident that the numbers that Judge Fletcher throws out are far closer to the truth, even back in the early 00s, than the IJ's, and (2) the IJ doesn't actually get to respond to the Ninth Circuit anyway, so this is all hypothetical.
Anyway, a great case. Thanks, Judge Fletcher. You didn't make my day, but you definitely made it a tiny bit better. I like to see this kind of stuff.
Thursday, July 17, 2008
Herrera v. Hernandez (Cal. Ct. App. - July 17, 2008)
I understand where Justice Mihara is coming from in this one. Much of what the appellant says is clearly wrong; for example, the claim that reversal is required because the juror obviously deliberately lied during voir dire. And the equities seem clearly to favor upholding the judgment below.
Let's be clear: it's not like the juror did anything at all untoward or wrong. The juror didn't realize that her ex-husband -- whom she divorced 20 years ago -- was the defendant's nephew until the defendant's daughter (whom the juror recognized) sat behind the defendant at trial. And, once she did realize that fact, the juror immediately notified the court and explained the scoop. The juror wasn't trying to hide anything. She barely knew the defendant. She could totally be fair. I completely agree.
Given all that, I can understand -- at least emotionally -- why Justice Mihara doesn't reverse the judgment.
The problem is this pesky little thing called the law. Section 229 of the CCP says that "a challenge for implied bias may be taken for one or more of the following causes, and for no other: (a) consanguinity or affinity within the fourth degree to any party . . . ." There's no doubt that the juror met this "fourth degree" criteria since she was married to defendant's nephew. That's not a blood relation, but it is a relation by "affinity"; i.e., by marriage. Hence she's subject to challenge for cause.
Justice Mihara holds, however, that the term "affinity" is present tense and hence that the divorce negated the challenge for cause. When I first read this holding, I thought it made sense, and it seemed totally persuasive.
But I also had this strange feeling in my gut -- and I usually don't get this feeling -- that something was amiss notwithstanding my agreement. And when I went back and looked at the stuff in more detail a little bit later, I was persuaded that Justice Mihara's holding, while well-intentioned, was both wrong and makes very bad law.
There are two problems with this view. First, as a matter of statutory construction, I don't think that "affinity" means what Justice Mihara asserts it means. He says it's present tense -- and hence only applies if the parties are still married -- because "affinity" is defined in Section 19(b)(9) of the CCP as "the connection existing in consequence of marriage" (emphasis hers). Hence, he argues, there's no "affinity" if there's been a divorce since that connection isn't "existing".
Let's entirely ignore for a moment the caveat of Section 19(b) that this general definition doesn't apply when the context reflects otherwise. I still don't think that what Justice Mihara asserts is true. Yes, Section 19 says "existing". But the full context of that word is as follows: "the word 'affinity,' when applied to the marriage relation, signifies the connection existing in consequence of marriage . . . ." In other words, yes, the connection has to exist, but that connection only need exist "in consequence" -- i.e., because -- of the marriage. Which it clearly does. The relationship was created exclusively due to the marriage; without that event having ever transpired, there'd have been no relationship. "Affinity" merely "signifies the connection existing in consequence of marriage". That connection exists here. The marriage created the connection, and the definition of "affinity" accordingly says nothing about that connection being terminated upon divorce. "In consequence" is the relevant term, and that's not limited to present tense.
But ignore grammar for a moment. Or even context. Because, sure, one could perhaps go the other way on those. Let's look at this thing more globally. Let's say that Justice Mihara is correct; that "affinity" is definitionally present tense and is dissolved once there's a divorce. Let's see what happens.
Let's say that a defendant's ex-wife of 6 months is called as a juror in his trial. Challenge for implied bias? Nope. Not according to Justice Mihara's definition. Since the juror no longer has an affinity with her ex-husband post-divorce. Nor can you satisfy paragraph (b) of Section 229 (since that's clearly present tense), and hence you'll have to show actual bias -- which will tough so long as the ex-wife says she can be perfectly fair. Regardless, you've got to categorical challenge for implied bias.
In other words, under Justice Mihara's view, Section 229 excludes for implied bias a juror who has a grand niece who's a witness (or a first cousin once removed) but not a juror who's the actual ex-spouse of a party. That doesn't make sense to me. And I do not think that's either the intent of the Legislature or the textual command of the statute. In each of these cases there's an "affinity" that was created by the marriage. So just like you can't be a juror -- or at least can be challenged for cause for implied bias -- if your stepdad is a party, so too can you be similarly challenged if your stepdad-until-yesterday-when-the-divorce-became-final is a party. For challenge purposes, there's an "affinity" there -- a relationship as a result of a marriage -- regardless of whether the divorce became final yesterday or becomes final tomorrow. And for good reason.
Similarly, by the way, I think that in common discourse, we say that you have an "affinity" with someone even if the marriage that created that affinity has run its course. Don't think so? Then it's okay to fool around with your ex-wife's daughter, right? Woody, I'm sure, will glad to agree. Ditto for your Dad's ex-wife. Totally cool.
First cousins once removed on a jury?! The Legislature in Section 229(a) clearly says "No way." Your ex-husband on a jury?! The Court of Appeal says "Fine by Section 229(a)."
I understand why. But having looked at it further, as a matter of grammar, structure, and purpose and intent, I'm going to have to respectfully disagree. I think there's a legitimate challenge for cause here pursuant to the express provisions of Section 229(a). And wouldn't want the statute to be interpreted otherwise. E.g., in the manner in which the Court of Appeal defines it here.
Let's be clear: it's not like the juror did anything at all untoward or wrong. The juror didn't realize that her ex-husband -- whom she divorced 20 years ago -- was the defendant's nephew until the defendant's daughter (whom the juror recognized) sat behind the defendant at trial. And, once she did realize that fact, the juror immediately notified the court and explained the scoop. The juror wasn't trying to hide anything. She barely knew the defendant. She could totally be fair. I completely agree.
Given all that, I can understand -- at least emotionally -- why Justice Mihara doesn't reverse the judgment.
The problem is this pesky little thing called the law. Section 229 of the CCP says that "a challenge for implied bias may be taken for one or more of the following causes, and for no other: (a) consanguinity or affinity within the fourth degree to any party . . . ." There's no doubt that the juror met this "fourth degree" criteria since she was married to defendant's nephew. That's not a blood relation, but it is a relation by "affinity"; i.e., by marriage. Hence she's subject to challenge for cause.
Justice Mihara holds, however, that the term "affinity" is present tense and hence that the divorce negated the challenge for cause. When I first read this holding, I thought it made sense, and it seemed totally persuasive.
But I also had this strange feeling in my gut -- and I usually don't get this feeling -- that something was amiss notwithstanding my agreement. And when I went back and looked at the stuff in more detail a little bit later, I was persuaded that Justice Mihara's holding, while well-intentioned, was both wrong and makes very bad law.
There are two problems with this view. First, as a matter of statutory construction, I don't think that "affinity" means what Justice Mihara asserts it means. He says it's present tense -- and hence only applies if the parties are still married -- because "affinity" is defined in Section 19(b)(9) of the CCP as "the connection existing in consequence of marriage" (emphasis hers). Hence, he argues, there's no "affinity" if there's been a divorce since that connection isn't "existing".
Let's entirely ignore for a moment the caveat of Section 19(b) that this general definition doesn't apply when the context reflects otherwise. I still don't think that what Justice Mihara asserts is true. Yes, Section 19 says "existing". But the full context of that word is as follows: "the word 'affinity,' when applied to the marriage relation, signifies the connection existing in consequence of marriage . . . ." In other words, yes, the connection has to exist, but that connection only need exist "in consequence" -- i.e., because -- of the marriage. Which it clearly does. The relationship was created exclusively due to the marriage; without that event having ever transpired, there'd have been no relationship. "Affinity" merely "signifies the connection existing in consequence of marriage". That connection exists here. The marriage created the connection, and the definition of "affinity" accordingly says nothing about that connection being terminated upon divorce. "In consequence" is the relevant term, and that's not limited to present tense.
But ignore grammar for a moment. Or even context. Because, sure, one could perhaps go the other way on those. Let's look at this thing more globally. Let's say that Justice Mihara is correct; that "affinity" is definitionally present tense and is dissolved once there's a divorce. Let's see what happens.
Let's say that a defendant's ex-wife of 6 months is called as a juror in his trial. Challenge for implied bias? Nope. Not according to Justice Mihara's definition. Since the juror no longer has an affinity with her ex-husband post-divorce. Nor can you satisfy paragraph (b) of Section 229 (since that's clearly present tense), and hence you'll have to show actual bias -- which will tough so long as the ex-wife says she can be perfectly fair. Regardless, you've got to categorical challenge for implied bias.
In other words, under Justice Mihara's view, Section 229 excludes for implied bias a juror who has a grand niece who's a witness (or a first cousin once removed) but not a juror who's the actual ex-spouse of a party. That doesn't make sense to me. And I do not think that's either the intent of the Legislature or the textual command of the statute. In each of these cases there's an "affinity" that was created by the marriage. So just like you can't be a juror -- or at least can be challenged for cause for implied bias -- if your stepdad is a party, so too can you be similarly challenged if your stepdad-until-yesterday-when-the-divorce-became-final is a party. For challenge purposes, there's an "affinity" there -- a relationship as a result of a marriage -- regardless of whether the divorce became final yesterday or becomes final tomorrow. And for good reason.
Similarly, by the way, I think that in common discourse, we say that you have an "affinity" with someone even if the marriage that created that affinity has run its course. Don't think so? Then it's okay to fool around with your ex-wife's daughter, right? Woody, I'm sure, will glad to agree. Ditto for your Dad's ex-wife. Totally cool.
First cousins once removed on a jury?! The Legislature in Section 229(a) clearly says "No way." Your ex-husband on a jury?! The Court of Appeal says "Fine by Section 229(a)."
I understand why. But having looked at it further, as a matter of grammar, structure, and purpose and intent, I'm going to have to respectfully disagree. I think there's a legitimate challenge for cause here pursuant to the express provisions of Section 229(a). And wouldn't want the statute to be interpreted otherwise. E.g., in the manner in which the Court of Appeal defines it here.
Berglund v. Arthroscopic & Laser Surgery Center (Cal. Supreme Ct. - July 17, 2008)
Justice Kennard (and the rest of the California Supreme Court) couldn't be more right. Arbitrators have the statutory power to compel discovery by nonparties. And nonparties should be required to argue first to the arbitrator -- primarily for efficiency reasons -- that they shouldn't be compelled to produce the discovery. But a nonparty is thereafter entitled to full judicial review of any such discovery order. Because the nonparty has not agreed to be bound by the arbitrator's decision, and hence remains able to seek judicial review. Exactly right.
So I agree with everything Justice Kennard says, and think that's exactly right. However -- and perhaps this is a nit, but I think it may be a little more than that -- if I were writing the opinion for the court, I might have also done a little more to describe the precise nature of the judicial review which the Court (rightly) holds remains available in such discovery disputes. For example, I assume that judicial review of the arbitrator's decision is de novo since the arbitrator has no consensual power to bind, and I'd expressly say so. I'd also make express that both the arbitrator and judiciary have the power (but not the obligation) to stay the discovery and/or the underlying arbitration during the pendency of judicial discovery review. I might also have provided at least a minimial degree of insight into how judicial review of such arbital discovery orders should be accomplished as a matter of procedure, since the arbitration statutes themselves delineate how final judicial review is obtained but nowhere explain how interlocutory review may be sought.
Finally, I'd have also answered the obvious -- but lingering and unaddressed -- question regarding whether the party to the arbitration proceeding also has an unlimited right to judicial review of adverse discovery orders vis-a-vis a nonparty. On the one hand, the party has agreed to bind itself to the arbitrator's ruling, and hence the constitutional and statutory basis for judicial review does not exist as applied to parties. On the other hand, it would seem anomalous -- and unfair -- for nonparty discovery to be a one-way rachet in which the nonparty possesses the right to judicial review of an adverse discovery ruling while a converse ruling would be immune from similar review. Sure, the party (unlike the nonparty) has agreed to the finality of arbitration, but I don't think they should be held to have agreed to finality vis-a-vis a nonparty that's not similarly bound.
I'm not sure that Justice Kennard (or anyone else on the Court) disagrees with what I've said above. Though perhaps they -- or at least some -- might. Regardless, given the obvious (and important) implications of the Court's holding, as well as the widespread use of nonparty discovery in arbitration proceedings, I think that it would be extremely helpful to address at least the most central of the resulting issues at the outset, rather than create a mess for the Court of Appeal to sort out over the next several years. In this area, at least, a minimal degree of certainty and guidence might be warranted.
So I agree with the Court. I'd have just done a little more to give parties, arbitrators and lower courts a bigger heads up.
So I agree with everything Justice Kennard says, and think that's exactly right. However -- and perhaps this is a nit, but I think it may be a little more than that -- if I were writing the opinion for the court, I might have also done a little more to describe the precise nature of the judicial review which the Court (rightly) holds remains available in such discovery disputes. For example, I assume that judicial review of the arbitrator's decision is de novo since the arbitrator has no consensual power to bind, and I'd expressly say so. I'd also make express that both the arbitrator and judiciary have the power (but not the obligation) to stay the discovery and/or the underlying arbitration during the pendency of judicial discovery review. I might also have provided at least a minimial degree of insight into how judicial review of such arbital discovery orders should be accomplished as a matter of procedure, since the arbitration statutes themselves delineate how final judicial review is obtained but nowhere explain how interlocutory review may be sought.
Finally, I'd have also answered the obvious -- but lingering and unaddressed -- question regarding whether the party to the arbitration proceeding also has an unlimited right to judicial review of adverse discovery orders vis-a-vis a nonparty. On the one hand, the party has agreed to bind itself to the arbitrator's ruling, and hence the constitutional and statutory basis for judicial review does not exist as applied to parties. On the other hand, it would seem anomalous -- and unfair -- for nonparty discovery to be a one-way rachet in which the nonparty possesses the right to judicial review of an adverse discovery ruling while a converse ruling would be immune from similar review. Sure, the party (unlike the nonparty) has agreed to the finality of arbitration, but I don't think they should be held to have agreed to finality vis-a-vis a nonparty that's not similarly bound.
I'm not sure that Justice Kennard (or anyone else on the Court) disagrees with what I've said above. Though perhaps they -- or at least some -- might. Regardless, given the obvious (and important) implications of the Court's holding, as well as the widespread use of nonparty discovery in arbitration proceedings, I think that it would be extremely helpful to address at least the most central of the resulting issues at the outset, rather than create a mess for the Court of Appeal to sort out over the next several years. In this area, at least, a minimal degree of certainty and guidence might be warranted.
So I agree with the Court. I'd have just done a little more to give parties, arbitrators and lower courts a bigger heads up.
U.S. v. Miranda-Lopez (9th Cir. - July 17, 2008)
Want to see an opinion that's a great example of statutory interpretation? In which both the majority and dissent write excellent opinions, each of which is eminently reasonable? And an opinion in which the rule of lenity isn't merely addressed as a throwaway, but rather is treated seriously?
Here it is.
Were similar analytical skills evident in similarly situated opinions, the output of the judiciary would be much improved. Good job Judges Silverman and Bybee.
P.S. - Good job also by San Diego attorney -- and USD law graduate -- Keith Rutman, who wins this one on behalf of the defendant.
Here it is.
Were similar analytical skills evident in similarly situated opinions, the output of the judiciary would be much improved. Good job Judges Silverman and Bybee.
P.S. - Good job also by San Diego attorney -- and USD law graduate -- Keith Rutman, who wins this one on behalf of the defendant.
Wednesday, July 16, 2008
People v. Endacott (Cal. Ct. App. - July 16, 2008)
This is another one of those cases -- this time, from the California Court of Appeal -- holding that it's totally okay for customs to look through the contents of your laptop at the border (here, at LAX) even without any reasonable suspicion of a crime. The Ninth Circuit had held the same thing here and here, and it's not at all surprising that the California Court of Appeal goes the same way.
Still, I gotta say, Part I of the opinion (which was the relevant portion) was way too flip for me. I think there are good counterarguments. Or at least decent ones. That should at least be addressed.
I forthrightly admit that I'm in the minority on the merits here. Nonetheless, I don't think that this issue is so clearcut and unimportant that it requires only perfunctory discussion.
One person's view, anyway.
Regardless, practical counsel: (1) Don't put kiddie porn on your laptop. Especially when reentering the U.S. And especially when reetering from Thailand. (2) Don't put anything -- anything -- on your laptop (letters to your spouse, financial data, attorney-client communications, etc.) that you bring back to the U.S. that you're not totally willing to give the government free rein to examine.
Still, I gotta say, Part I of the opinion (which was the relevant portion) was way too flip for me. I think there are good counterarguments. Or at least decent ones. That should at least be addressed.
I forthrightly admit that I'm in the minority on the merits here. Nonetheless, I don't think that this issue is so clearcut and unimportant that it requires only perfunctory discussion.
One person's view, anyway.
Regardless, practical counsel: (1) Don't put kiddie porn on your laptop. Especially when reentering the U.S. And especially when reetering from Thailand. (2) Don't put anything -- anything -- on your laptop (letters to your spouse, financial data, attorney-client communications, etc.) that you bring back to the U.S. that you're not totally willing to give the government free rein to examine.
Howell v. Polk (9th Cir. - July 16, 2008)
You're right, of course. Yes, it may well be unreasonable for the police to wait only five seconds or so after knocking before starting to bash your door in. Especially when it's 6:30 a.m. Not many people are going to get to the door within five seconds at 6:30 in the morning. Ain't gonna happen.
But a jury found the other way. And that's plausible. Maybe the search wasn't reasonable. But maybe it was. You gotta defer to the jury on this one, which found the latter. Right or wrong.
But a jury found the other way. And that's plausible. Maybe the search wasn't reasonable. But maybe it was. You gotta defer to the jury on this one, which found the latter. Right or wrong.
Conrad v. Ace Property & Cas. Co. (9th Cir. - July 14, 2008)
"We consider whether the standard Adjusted Gross Revenue Insurance Policy, a policy which provides crop revenue insurance pursuant to the Federal Crop Insurance Act, incorporates and mandates the claim adjustment procedures set forth in the Federal Crop Insurance Corporation’s Adjusted Gross Revenue Standards Handbook."
I'm interested in a plethora of different legal areas. But as to this particular issue, I can confidently state: Better you than me.
I'm interested in a plethora of different legal areas. But as to this particular issue, I can confidently state: Better you than me.
Tuesday, July 15, 2008
Styles v. Mumbert (Cal. Ct. App. - July 15, 2008)
It's bad enough to be defending a legal malpractice claim. It's worse when your alleged malpractice allegedly resulted in a $730,466 default judgment being entered against your client. Especially when you've "admitted on the record that [you] did not have time to devote to the case."
You've apparently tried a creative way, however, to get out of the resulting problem -- namely, by purchasing the claim of the plaintiff and then attempting to substitute yourself as the respondent in the subsequent appeal from the default judgment against your client (the one suing you for malpractice). There's only one problem. You have now arguably dug yourself in deeper. And have a published opinion by the Court of Appeal that not only mentions you by name, but that also holds that your efforts "violate[] multiple rules of Professional Conduct as well as the Business and Professions Code."
Such is the life of California attorney Anthony Pagkas. Who didn't have a very good day today.
You've apparently tried a creative way, however, to get out of the resulting problem -- namely, by purchasing the claim of the plaintiff and then attempting to substitute yourself as the respondent in the subsequent appeal from the default judgment against your client (the one suing you for malpractice). There's only one problem. You have now arguably dug yourself in deeper. And have a published opinion by the Court of Appeal that not only mentions you by name, but that also holds that your efforts "violate[] multiple rules of Professional Conduct as well as the Business and Professions Code."
Such is the life of California attorney Anthony Pagkas. Who didn't have a very good day today.
Sunset Skyranch Pilots Ass'n v. County of Sacramento (Cal. Ct. App. - July 2, 2008)
When Justice Sims presented the central question in this case -- whether the denial of a request to renew a conditional use permit is a "project" that requires a study under the California Environmental Quality Act -- and answered it in the affirmative (hence reversing the trial court), I thought he was wrong. That didn't seem right to me, and I thought that such a holding would unjustifiably (and untenably) expand the scope of CEQA review requirements.
But then I got to page 40, at which point Justice Sims begins to analyze this issue (after dispensing with a variety of ancillary points). And you know what? Justice Sims is correct. Or at least I'm persuaded.
It takes a pretty darn good opinion to convince me that my initial impressions of a case are wrong. Justice Sims does so here.
Well done.
But then I got to page 40, at which point Justice Sims begins to analyze this issue (after dispensing with a variety of ancillary points). And you know what? Justice Sims is correct. Or at least I'm persuaded.
It takes a pretty darn good opinion to convince me that my initial impressions of a case are wrong. Justice Sims does so here.
Well done.
Monday, July 14, 2008
Redding v. Safford Unified School Dist. (9th Cir. - July 11, 2008)
It's a Section 1983 case against a school district that strip searched a 13-year old girl in a futile attempt to find a pill of prescription-strength ibuprofen. The Ninth Circuit takes the case en banc after the panel issues a majority opinion authored by a Bush II appointee (Judge Clifton) that finds no constitutional violation over the dissent of a Clinton appointee (Judge Thomas). At which point the en banc court reverses the panel on a 6-5 vote.
Clearly, draws matter. The conservatives predictably went one way and the liberals another. Right?
Wrong.
The three dissenters on the en banc panel who contended that the strip search was totally okay (and hence didn't violate the child's rights) consisted of (1) a Reagan appointee (Chief Judge Kozinski), (2) a Bush II appointee (Judge Bea), and (3) a Clinton appointee (Judge Hawkins). The two dissenters who contended that the strip search was a constitutional violation, but that this violation wasn't clear and hence the defendants had qualified immunity, consisted of two Clinton appointees (Judges Gould and Silverman). And the six judges on the majority, who found that there was both a violation and no qualified immunity, admittedly consisted of a Carter appointee (Judge Pregerson) and three Clinton appointees (Judges Wardlaw, Fisher, and Paez), but it was the swing votes of two of the most recent Bush II appointees -- the Judges Smith -- that made the difference.
Yes, draws matter. But justice doesn't entail merely voting along the lines of the person who appointed you. Especially in cases like this one, the wisdom and judgment of the particular judge matters. Sometimes a lot.
Clearly, draws matter. The conservatives predictably went one way and the liberals another. Right?
Wrong.
The three dissenters on the en banc panel who contended that the strip search was totally okay (and hence didn't violate the child's rights) consisted of (1) a Reagan appointee (Chief Judge Kozinski), (2) a Bush II appointee (Judge Bea), and (3) a Clinton appointee (Judge Hawkins). The two dissenters who contended that the strip search was a constitutional violation, but that this violation wasn't clear and hence the defendants had qualified immunity, consisted of two Clinton appointees (Judges Gould and Silverman). And the six judges on the majority, who found that there was both a violation and no qualified immunity, admittedly consisted of a Carter appointee (Judge Pregerson) and three Clinton appointees (Judges Wardlaw, Fisher, and Paez), but it was the swing votes of two of the most recent Bush II appointees -- the Judges Smith -- that made the difference.
Yes, draws matter. But justice doesn't entail merely voting along the lines of the person who appointed you. Especially in cases like this one, the wisdom and judgment of the particular judge matters. Sometimes a lot.
Berger v. City of Seattle (9th Cir. - July 14, 2008)
I hate to see really good opinions (and dissents) go away after a case gets taken en banc. Especially in this case, which I briefly discussed here.
That said, (1) I'm not at all surprised that this one got taken en banc today-- it's an important (and close) issue, and (2) I have a keen sense that you'll see these same arguments -- and, assuming an appropriate draw, perhaps virtually the same opinions -- reappear after the en banc process concludes.
Stay tuned.
That said, (1) I'm not at all surprised that this one got taken en banc today-- it's an important (and close) issue, and (2) I have a keen sense that you'll see these same arguments -- and, assuming an appropriate draw, perhaps virtually the same opinions -- reappear after the en banc process concludes.
Stay tuned.
Friday, July 11, 2008
Classic Media v. Mewborn (9th Cir. - July 11, 2008)
This was one of the sleepier weeks in the Ninth Circuit and California Court of Appeal. There were cases, to be sure. Including some interesting ones. But the drama wasn't there as much.
Judge Wardlaw ends the week with a case that probably falls along those same lines. One that's not doctrinally all that fascinating -- unless you get really hot and bothered by some fact-specific copyright renewal disputes -- but that nonetheless manages to pique one's interest, if only at the margin.
I liked reading the opinion for two reasons. First, it concerns who owns "Lassie Come Home". And who doesn't like Lassie? It also gives Judge Wardlaw the opportunity to both describe the history of the series in some detail (e.g., "Eric Knight authored the beloved children’s story, “Lassie Come Home,” about a boy and his dog who, when sold to a rich duke by the boy’s poverty-stricken family, makes an arduous journey to return home to her original owner. Inspired by the harsh realities of life during the Great Depression, the story of the fearless collie, Lassie, and the boy who loved her was first published in the December 17, 1938 issue of The Saturday Evening Post . . . .") as well as to make neat little side references like describing the subsquent copyright fight with the line "This began the Lassie Works’ difficult journey home . . . ." Ho ho ho!
Second, Judge Wardlaw also includes snippets of totally irrelevant -- but nonetheless interesting and informative -- exchanges between counsel below. This portion of the opinion begins (and I liked this part, as to both substance and style) by noting that "counsel on behalf of the parties—but predominantly Classic—spewed acrimonious charges, threats and demands over the rights to the works in a series of correspondence of not much relevance, but nonetheless included in the record before us." Then she goes on to describe the content of some of these exchanges, and I especially liked the line in which Judge Wardlaw says: "Classic’s counsel responded with a vituperative gem of a letter dated March 29, 2005, accusing Mewborn of “extortion,” threatening to sue Mewborn and her counsel “personally,” and claiming that “[t]he damages to which Classic will hold you accountable are enormous . . . [and] irreparable.”" Nice! Especially the "vituperative gem" part! Plus, she ends the paragraph with "This bombastic correspondence did little to further communication or deter litigation." Which I'm quite confident is entirely correct.
Sure, all this stuff is irrelevant. But it makes the opinion interesting to read. And, more importantly, it also gives one the keen sense that even judges on the Court of Appeals -- rightly, in my view -- don't like it when the parties or their lawyers are total jerks. Even if their being a bunghole isn't technically relevant to the appeal. It reminds lawyers, in a subtle but very real way, that there may well be consequences to litigating a case in the hyperaggressive (and totally counterproductive) manner in which lawyers all-too-often perform their jobs. And that even if you get away with it in the district court, or in one case, eventually, this type of stuff may well come back to haunt you.
In short, the case reminds one that, even for lawyers, karma's a bitch. And rightly so.
Judge Wardlaw ends the week with a case that probably falls along those same lines. One that's not doctrinally all that fascinating -- unless you get really hot and bothered by some fact-specific copyright renewal disputes -- but that nonetheless manages to pique one's interest, if only at the margin.
I liked reading the opinion for two reasons. First, it concerns who owns "Lassie Come Home". And who doesn't like Lassie? It also gives Judge Wardlaw the opportunity to both describe the history of the series in some detail (e.g., "Eric Knight authored the beloved children’s story, “Lassie Come Home,” about a boy and his dog who, when sold to a rich duke by the boy’s poverty-stricken family, makes an arduous journey to return home to her original owner. Inspired by the harsh realities of life during the Great Depression, the story of the fearless collie, Lassie, and the boy who loved her was first published in the December 17, 1938 issue of The Saturday Evening Post . . . .") as well as to make neat little side references like describing the subsquent copyright fight with the line "This began the Lassie Works’ difficult journey home . . . ." Ho ho ho!
Second, Judge Wardlaw also includes snippets of totally irrelevant -- but nonetheless interesting and informative -- exchanges between counsel below. This portion of the opinion begins (and I liked this part, as to both substance and style) by noting that "counsel on behalf of the parties—but predominantly Classic—spewed acrimonious charges, threats and demands over the rights to the works in a series of correspondence of not much relevance, but nonetheless included in the record before us." Then she goes on to describe the content of some of these exchanges, and I especially liked the line in which Judge Wardlaw says: "Classic’s counsel responded with a vituperative gem of a letter dated March 29, 2005, accusing Mewborn of “extortion,” threatening to sue Mewborn and her counsel “personally,” and claiming that “[t]he damages to which Classic will hold you accountable are enormous . . . [and] irreparable.”" Nice! Especially the "vituperative gem" part! Plus, she ends the paragraph with "This bombastic correspondence did little to further communication or deter litigation." Which I'm quite confident is entirely correct.
Sure, all this stuff is irrelevant. But it makes the opinion interesting to read. And, more importantly, it also gives one the keen sense that even judges on the Court of Appeals -- rightly, in my view -- don't like it when the parties or their lawyers are total jerks. Even if their being a bunghole isn't technically relevant to the appeal. It reminds lawyers, in a subtle but very real way, that there may well be consequences to litigating a case in the hyperaggressive (and totally counterproductive) manner in which lawyers all-too-often perform their jobs. And that even if you get away with it in the district court, or in one case, eventually, this type of stuff may well come back to haunt you.
In short, the case reminds one that, even for lawyers, karma's a bitch. And rightly so.
Thursday, July 10, 2008
People v. Parson (Cal. Supreme Ct. - July 10, 2008)
It's not the usual death penalty case where the defendant forthrightly admits to killing the victim. But it's also not surprising that's the case here, since the evidence against the defendant was stunningly overwhelming.
Sound strategy, I guess. Didn't work though. Still sentenced to death. And unanimously affirmed. Albeit after 14-plus years.
Sound strategy, I guess. Didn't work though. Still sentenced to death. And unanimously affirmed. Albeit after 14-plus years.
Brazil Quality Stones v. Chertoff (9th Cir. - July 10, 2008)
You'll be happy to know that it's not exclusively poor people and criminals who are deported. So there's an equality there, I guess.
Wednesday, July 09, 2008
Schwartz v. Lawson (Cal. Ct. App. - July 9, 2008)
What a day.
For me, mind you. By contrast, for the California Court of Appeal, it was largely error-correction day. Check out, for example, the following two orders, both of which came out today and both of which were issued by Division Three of the Second District.
The first, in Schwartz v. Lawson, says (in its entirety): "On page 19, second sentence of the first full paragraph, the word “Labow” is inserted after the word “Respondent” so the sentence reads: Respondent Labow shall recover costs of appeal. [This modification changes the judgment.]" Oops. Apparently there was more than one respondent. Our bad.
The second, issued minutes later, in State Farm v. Superior Court, says (again in its entirety): "On page 15, third sentence of the first full paragraph, the words “Petitioner is” are changed to “Petitioners are” so the sentence reads: Petitioners are to bear the costs of this writ proceeding. [This modification changes the judgment.]" Again: Oops. We were definitely having problems with plural parties on June 26th, when we issued both of these opinions. We're having a better July, though. We hope.
For me, mind you. By contrast, for the California Court of Appeal, it was largely error-correction day. Check out, for example, the following two orders, both of which came out today and both of which were issued by Division Three of the Second District.
The first, in Schwartz v. Lawson, says (in its entirety): "On page 19, second sentence of the first full paragraph, the word “Labow” is inserted after the word “Respondent” so the sentence reads: Respondent Labow shall recover costs of appeal. [This modification changes the judgment.]" Oops. Apparently there was more than one respondent. Our bad.
The second, issued minutes later, in State Farm v. Superior Court, says (again in its entirety): "On page 15, third sentence of the first full paragraph, the words “Petitioner is” are changed to “Petitioners are” so the sentence reads: Petitioners are to bear the costs of this writ proceeding. [This modification changes the judgment.]" Again: Oops. We were definitely having problems with plural parties on June 26th, when we issued both of these opinions. We're having a better July, though. We hope.
In Re A.B. (Cal. Ct. App. - July 8, 2008)
"Angelique has a lengthy history of mental illness and substance abuse. Before she and Leonard moved to California they lived in the State of Washington, where child protective services received approximately 600 referrals on her [!] and she lost custody of two daughters. . . . A.B. was born here in the fall of 2006 when Angelique was on a 72-hour hospital hold. She and Leonard were homeless and she was found 'wandering off a freeway.' . . . She was not taking medication for her bipolar disorder, seemed out of touch with reality, exhibited childlike behavior, such as thumb sucking, and tested positive for cocaine.
Oh yeah. I definitely want you raising a child. Doing crack and sucking your thumb. Nice combination.
Tuesday, July 08, 2008
In Re Marriage of Falcone & Frye (Cal. Ct. App. - July 8, 2008)
Justice Premo begins this opinion with the following line: "This is one in a series of 10 appeals or writ petitions filed in this court by Kathey Fyke, the respondent in a dissolution matter initiated by her former husband Richard Falcone in 2003." You can figure out where it's going from there. It's one of those classic divorce proceedings from hell. Fortunately, both the trial court and the Court of Appeal responded accordingly. And imposed -- and affirmed -- over $64,000 in sanctions against the ex-spouse who just couldn't stop.
Glad to see it. Indeed, if it were me, I might -- only might, but would have been sorely tempted -- to award sanctions against Ms. Fyke on appeal.
The marriage is over. Stop fighting. Just move on.
Glad to see it. Indeed, if it were me, I might -- only might, but would have been sorely tempted -- to award sanctions against Ms. Fyke on appeal.
The marriage is over. Stop fighting. Just move on.
U.S. v. Fuller (9th Cir. - July 8, 2008)
Sure, college students sometimes have fake identification (e.g., to buy alcohol). And sometimes really little kids make up "badges" and pretend to be a sheriff or the like. But when you get, say, in your 30s, it's time to stop those little games. Because, really, what's the point?
So why, for example, would someone create a fake badge for the (alleged) "Special Response Unit" of the State Department? Especially when the only thing you seem to be using it for is to drop your gun off at a Customs Office locker before you head up to Canada. You can't just leave your gun at home? Or in a private locker? You really think it's wise -- or worth it -- to flash a fake badge and risk a federal felony rap just for the ease of dropping off your six-shooter at Customs?
Only in Idaho.
P.S. - The fake identification actually sounds like it was pretty well done. Except, of course, for the fake name of the nonexistent agency. Oh, and what's on the back of the attached identification card. Which carries the following oath: "I, acting as an agent of the United States Special Response Department, promise to uphold the integrity of the Constitution of the United States. My priority as an agent is to act in bravery to protect the United States citizens against criminal injustice and to ensure due processing of our justice system." Now, to the average person, that may perhaps sound like an oath that a law enforcement agency might make its agents take. But come on. In the real world, we don't give people oaths "to act in bravery" against "criminal injustice". And I'm sure you got the part about ensuring "due processing of our justice system" by some loose analogy to the Due Process Clause. But you sort of missed the point -- and syntax -- on that one.
So why, for example, would someone create a fake badge for the (alleged) "Special Response Unit" of the State Department? Especially when the only thing you seem to be using it for is to drop your gun off at a Customs Office locker before you head up to Canada. You can't just leave your gun at home? Or in a private locker? You really think it's wise -- or worth it -- to flash a fake badge and risk a federal felony rap just for the ease of dropping off your six-shooter at Customs?
Only in Idaho.
P.S. - The fake identification actually sounds like it was pretty well done. Except, of course, for the fake name of the nonexistent agency. Oh, and what's on the back of the attached identification card. Which carries the following oath: "I, acting as an agent of the United States Special Response Department, promise to uphold the integrity of the Constitution of the United States. My priority as an agent is to act in bravery to protect the United States citizens against criminal injustice and to ensure due processing of our justice system." Now, to the average person, that may perhaps sound like an oath that a law enforcement agency might make its agents take. But come on. In the real world, we don't give people oaths "to act in bravery" against "criminal injustice". And I'm sure you got the part about ensuring "due processing of our justice system" by some loose analogy to the Due Process Clause. But you sort of missed the point -- and syntax -- on that one.
Monday, July 07, 2008
Molski v. Arciero Wine Group (Cal. Ct. App. - July 7, 2008)
It doesn't bode well for you when the very first paragraph of the Court of Appeal's factual statement includes the following two sentences: "[Plaintiff] has filed in excess of 400 such actions in state and federal court, and has been declared a vexatious litigant in both jurisdictions. His present counsel has represented him in many of these actions and is also subject to a prefiling order in federal court." Sort of gives you a sense of where the Court's going, eh?
The Court of Appeal ends up affirming the award of over $30,000 in attorney's fees against the plaintiff, Jarek Molski. As well as imposes a cost award against him on appeal. And entirely rightly so on both counts.
Not a good day for Mr. Molski. Or his attorneys, Thomas E. Frankovich (a Southwestern graduate) and Jennifer L. Steneberg (a Golden Gate graduate).
But a good day for justice and equity. IMHO, anyway.
The Court of Appeal ends up affirming the award of over $30,000 in attorney's fees against the plaintiff, Jarek Molski. As well as imposes a cost award against him on appeal. And entirely rightly so on both counts.
Not a good day for Mr. Molski. Or his attorneys, Thomas E. Frankovich (a Southwestern graduate) and Jennifer L. Steneberg (a Golden Gate graduate).
But a good day for justice and equity. IMHO, anyway.
People v. Towne (Cal. Supreme Ct. - June 26, 2008)
Don't pick up male prostitutes in Hollywood.
That said, regardless how you spent your three day weekend, I hope it was fun, and filled with family, fireworks, friends, and food. And any other applicable word along those lines.
Welcome back.
That said, regardless how you spent your three day weekend, I hope it was fun, and filled with family, fireworks, friends, and food. And any other applicable word along those lines.
Welcome back.
Thursday, July 03, 2008
People v. Johnson (Cal. Ct. App. - July 3, 2008)
It's the typical story. One that appears in the pages of the California Appellate Reporter many, many times. A husband and wife are estranged, and have a seriously deficient relationship. The husband allegedly beats and injures the wife, and he's forced to move out of the family home. He then starts stalking her, and chasing her in his car, and calling her a "whore" and a "bitch". Later, he catches his wife, puts a gun to her head, and says that he's going to have sex with her "because she was still his wife and as long as she was his wife, he could have sex with her." The wife eventually secures her release by convincing him that she might reconcile with him. Two days later, she rents a U-Haul and starts to secretly move out of the house to escape her abusive husband. The next morning, the husband comes to the house, discovers his wife's deception, says "Bitch, you lied to me," and shoots her dead.
It's your usual -- albeit sad -- fare. With one exception. The husband -- George Edward Johnson -- is 64 years old.
Proof positive that profound irrationality knows no defined bounds.
It's your usual -- albeit sad -- fare. With one exception. The husband -- George Edward Johnson -- is 64 years old.
Proof positive that profound irrationality knows no defined bounds.
Hearns v. San Bernadino Police Dep't (9th Cir. - July 1, 2008)
I can't think of a better case to read regarding the requirement of Rule 8(a) that pleadings contain a "short and plain" statement of the claim than this one. It concerns a clear, but verbose, 81-page complaint. It involves a district court who warned the plaintiff (and her counsel) that the complaint was too long, and ordered a new complaint to be filed, to which the plaintiffs essentially responded by merely changing the size of the margins so the same complaint only took up 68 pages. There are strong arguments on both sides: the best argument in favor of the dismissal is the steadfast reluctance to remedy the clear verbosity, but the best argument against the dismissal is that the complaint was clear and more than adequate to provide notice. Finally, both of these positions are exemplified in the case: Judge Hart (sitting by designation from the Northern District of Illinois) writes the majority opinion and reverses the trial court's dismissal of the complaint, and Judge Kleinfeld pens a dissent on this point. Perfect. For a civil procedure professor, you couldn't ask for any better teaching tool.
The case also sheds a little bit of personal insight into the trials and tribulations (as well as the lives) of two of the plaintiff's attorneys: Danuta Tuszynska (a Riverside sole practitioner and Western State graduate) and Letitia Pepper (a Hastings graduate who also practices in Riverside). You can read the opinion for the details, but I can summarize them by saying (1) that I'm sure that this was not their favorite case, and (2) from the looks of it, most of us would probably not trade our legal career for theirs.
The case also sheds a little bit of personal insight into the trials and tribulations (as well as the lives) of two of the plaintiff's attorneys: Danuta Tuszynska (a Riverside sole practitioner and Western State graduate) and Letitia Pepper (a Hastings graduate who also practices in Riverside). You can read the opinion for the details, but I can summarize them by saying (1) that I'm sure that this was not their favorite case, and (2) from the looks of it, most of us would probably not trade our legal career for theirs.
State of Alaska v. EEOC (9th Cir. - July 3, 2008)
What did I say back in November, when the panel's opinion came out? "Don't be surprised -- at all -- if this one's taken en banc."
What did the Ninth Circuit do today? Took the case en banc.
I'll submit my application to the Psychic Friends Network posthaste.
P.S. - There was one judge who recused himself from the en banc call. Can you guess who? (Here's a hint: It's the State of Alaska v. EEOC.) Yep. Him.
What did the Ninth Circuit do today? Took the case en banc.
I'll submit my application to the Psychic Friends Network posthaste.
P.S. - There was one judge who recused himself from the en banc call. Can you guess who? (Here's a hint: It's the State of Alaska v. EEOC.) Yep. Him.
People v. Holloway (Cal. Ct. App. - June 26, 2008)
What a nightmare. For everyone -- everyone -- involved.
Justice Kane correctly decides the merits, and writes a good opinion to boot. But even more than the legal analysis, the underlying facts -- in what would is facially just a simple DUI with injury case -- are bizarre and depressing.
I am glad that I merely read about, rather than live, that world.
Justice Kane correctly decides the merits, and writes a good opinion to boot. But even more than the legal analysis, the underlying facts -- in what would is facially just a simple DUI with injury case -- are bizarre and depressing.
I am glad that I merely read about, rather than live, that world.
Wednesday, July 02, 2008
The Lands Council v. McNair (9th Cir. - July 2, 2008)
When it's an environmental case, and you're on the side of the environment, you're pretty happy to see Judges Reinhardt and Ferguson drawn for your panel. Which is exactly what transpired last year, and the result was a reversal of the district court, which had refused to enter a preliminary injunction on behalf of the plaintiffs.
But, as they say, it ain't over until the fat lady sings. And, in this setting, the "fat lady" is a group of eleven Ninth Circuit judges. Which promptly reverses the panel's decision. On a vote of 11-0.
Talk about a crush.
P.S. - Judge Milan Smith: Did you deliberately issue the opinion exactly one year to the day after the panel's original opinion (of July 2, 2007)? If so: Nice touch!
But, as they say, it ain't over until the fat lady sings. And, in this setting, the "fat lady" is a group of eleven Ninth Circuit judges. Which promptly reverses the panel's decision. On a vote of 11-0.
Talk about a crush.
P.S. - Judge Milan Smith: Did you deliberately issue the opinion exactly one year to the day after the panel's original opinion (of July 2, 2007)? If so: Nice touch!
U.S. v. Davis (9th Cir. - June 30, 2008)
I'm just a poor boy who grew up attending public schools in a semi-rural community in Virginia. So I don't know a lot of fancy words. Or even, often, how to spell the easier ones.
As a result, my ears perked up when I got to the end of the first paragraph of this opinion by Judge Randy Smith. In which he uses the phrase "omniscient honesty." A phrase that I had never heard before, and sounded very cool, but as to the meaning of which I remained a little unclear even after thinking about it for a while.
I understood from the context what he meant (and means), since the full sentence in which this phrase appears is as follows: "While officers were executing the search warrant on the Davis’s property, Jeffrey Davis’s brother, Richard Davis, drove onto the property through a locked gate and, when asked, told officers in a moment of omniscient honesty that he knew 'everything' about the marijuana growing operation."
I get it. He was totally honest. Completely honest. Omnisciently honest, I guess.
But I was still a little fuzzy. I mean, I know what omniscient means. Or at least I thought I did. Having total knowledge. Like God and stuff. Freaking knowing everything.
But what does that have to do with honesty? I mean, I understand, he was totally honest about everything. Everything. And "everything" and "omni" do indeed seem related. So is that from whence the phrase arises?
But I still don't get it. Yes, he was honest about everything, but that's just "total" or "complete" honesty. It has nothing to do with the scope of knowledge, right? You can be totally honest even if you know exceptionally little, as long as you tell the truth about what you know. So I don't get what the "omniscient" part adds. At least if taken literally. As opposed to just sounding cool.
But then, I thought: Well, maybe Judge Smith is making reference to the fact that Davis said he knew "everything" about the marijuana grow, and knowing everything is omniscience, right? So if Davis is omniscient, and honest, then he was being omnisciently honest when he spoke. Now I get it! And it's sort of a cool, backhanded phrase. Neat.
So I thought I understood it. But is that really "omniscient honesty"? Ignore for a moment that Davis wasn't even claming to be omniscient; the only thing he knew "everything" about was the marijuana grow, which hardly makes one omniscient. Otherwise I'm omniscient because I know everything about how many fingers I'm currently holding up. But even if we don't take the point literally, is it really "omniscient honesty" to tell the truth about everything you know, even if you know everything. That seems like, at best, "honesty by an omniscient," or maybe "omnipresent honesty." But not "omniscient honesty".
But let's be honest. What do I know? Every little. And the phrase sounds cool.
Plus, I checked it out. That phrase has never before appeared in the Federal Reporter. Or in any published or unpublished judicial decision in the United States. Even cooler! Judge Smith has invented a new term for posterity. One that doesn't even appear in even the hippest (or unhippest) of law review articles -- again, I checked. Indeed, apparently nowhere in any of the legal databases I checked does "omniscient" even appear within two words of "honesty." So talk about a hip phrase! It sounds cool, imparts knowledge, and has at least a fuzzy meaning, but at the same time has never before been uttered in this context. Sweet.
I'm calling it Judge Smith's most important contribution to the English language. Others can disagree. I care not. I'm being omnisciently honest on this one.
As a result, my ears perked up when I got to the end of the first paragraph of this opinion by Judge Randy Smith. In which he uses the phrase "omniscient honesty." A phrase that I had never heard before, and sounded very cool, but as to the meaning of which I remained a little unclear even after thinking about it for a while.
I understood from the context what he meant (and means), since the full sentence in which this phrase appears is as follows: "While officers were executing the search warrant on the Davis’s property, Jeffrey Davis’s brother, Richard Davis, drove onto the property through a locked gate and, when asked, told officers in a moment of omniscient honesty that he knew 'everything' about the marijuana growing operation."
I get it. He was totally honest. Completely honest. Omnisciently honest, I guess.
But I was still a little fuzzy. I mean, I know what omniscient means. Or at least I thought I did. Having total knowledge. Like God and stuff. Freaking knowing everything.
But what does that have to do with honesty? I mean, I understand, he was totally honest about everything. Everything. And "everything" and "omni" do indeed seem related. So is that from whence the phrase arises?
But I still don't get it. Yes, he was honest about everything, but that's just "total" or "complete" honesty. It has nothing to do with the scope of knowledge, right? You can be totally honest even if you know exceptionally little, as long as you tell the truth about what you know. So I don't get what the "omniscient" part adds. At least if taken literally. As opposed to just sounding cool.
But then, I thought: Well, maybe Judge Smith is making reference to the fact that Davis said he knew "everything" about the marijuana grow, and knowing everything is omniscience, right? So if Davis is omniscient, and honest, then he was being omnisciently honest when he spoke. Now I get it! And it's sort of a cool, backhanded phrase. Neat.
So I thought I understood it. But is that really "omniscient honesty"? Ignore for a moment that Davis wasn't even claming to be omniscient; the only thing he knew "everything" about was the marijuana grow, which hardly makes one omniscient. Otherwise I'm omniscient because I know everything about how many fingers I'm currently holding up. But even if we don't take the point literally, is it really "omniscient honesty" to tell the truth about everything you know, even if you know everything. That seems like, at best, "honesty by an omniscient," or maybe "omnipresent honesty." But not "omniscient honesty".
But let's be honest. What do I know? Every little. And the phrase sounds cool.
Plus, I checked it out. That phrase has never before appeared in the Federal Reporter. Or in any published or unpublished judicial decision in the United States. Even cooler! Judge Smith has invented a new term for posterity. One that doesn't even appear in even the hippest (or unhippest) of law review articles -- again, I checked. Indeed, apparently nowhere in any of the legal databases I checked does "omniscient" even appear within two words of "honesty." So talk about a hip phrase! It sounds cool, imparts knowledge, and has at least a fuzzy meaning, but at the same time has never before been uttered in this context. Sweet.
I'm calling it Judge Smith's most important contribution to the English language. Others can disagree. I care not. I'm being omnisciently honest on this one.
SEC v. Talbot (9th Cir. - June 30, 2008)
As a stylistic matter, I'd have written this opinion a little bit differently. And would have added a bit more on the doctrinal side as well.
Nonetheless, I think that Judge Wardlaw is exactly right that a defendant can be found liable for insider trading even if s/he is a relative outsider to the transaction; for example, as here, was on the Board of a company who was informed of a potential acquisition because the company was a significant investor whose approval would have been needed for the transaction. Sure, some of the doctrinal reasoning behind insider trading prohibitions apply less directly in such a setting. But they still apply. Including several that, quite frankly, are more direct than the generic "fair game" rationale upon which Judge Wardlaw centrally focuses.
Regardless, I think that Judge Wardlaw clearly reaches the correct result. And was right to reverse the contrary (and, quite frankly, somewhat surprising) holding of Judge Morrow below.
Oh, yeah. One more thing. The Ninth Circuit holds that the defendant, J. Thomas Talbot, has successfully avoided summary judgment through his own deposition testimony, which raises a genuine issue of material fact as to materiality. But hear me now, Tom. That's a hollow victory. I read the facts. You're going to get the living crap beat out of you at trial. Trust me.
Time to settle.
Nonetheless, I think that Judge Wardlaw is exactly right that a defendant can be found liable for insider trading even if s/he is a relative outsider to the transaction; for example, as here, was on the Board of a company who was informed of a potential acquisition because the company was a significant investor whose approval would have been needed for the transaction. Sure, some of the doctrinal reasoning behind insider trading prohibitions apply less directly in such a setting. But they still apply. Including several that, quite frankly, are more direct than the generic "fair game" rationale upon which Judge Wardlaw centrally focuses.
Regardless, I think that Judge Wardlaw clearly reaches the correct result. And was right to reverse the contrary (and, quite frankly, somewhat surprising) holding of Judge Morrow below.
Oh, yeah. One more thing. The Ninth Circuit holds that the defendant, J. Thomas Talbot, has successfully avoided summary judgment through his own deposition testimony, which raises a genuine issue of material fact as to materiality. But hear me now, Tom. That's a hollow victory. I read the facts. You're going to get the living crap beat out of you at trial. Trust me.
Time to settle.
Tuesday, July 01, 2008
Donell v. Kowell (9th Cir. - July 1, 2008)
This is an outstanding -- simply outstanding -- opinion by Judge Bybee. It's clear. It's incredibly well-written. It exhaustively analyzes the various competing arguments. It's entirely persuasive. And it achieves justice in a setting in which justice is indeed difficult to achieve.
I'm impressed. I'm jealous. I'm green with envy. On my best days, with massive effort, I can only write a third as well.
It's not, mind you, that Judge Bybee does anything different -- or reaches a different result -- than precedent or other courts. He doesn't. But he does it so well, and so smoothly, that I couldn't help but be awed.
On the merits, by the way, this is another reason not to invest in a Ponzi scheme. Because if it sounds too good to be true, it almost assuredly is. And even if you are innocent, and even if you win (e.g., make money) in the scheme, the whole thing can still come back to bite you in the end.
So don't be greedy. Don't be taken for a fool. If it's an unbelieveable investment, don't believe it.
And write like Judge Bybee does here. Because it's awesome.
I'm impressed. I'm jealous. I'm green with envy. On my best days, with massive effort, I can only write a third as well.
It's not, mind you, that Judge Bybee does anything different -- or reaches a different result -- than precedent or other courts. He doesn't. But he does it so well, and so smoothly, that I couldn't help but be awed.
On the merits, by the way, this is another reason not to invest in a Ponzi scheme. Because if it sounds too good to be true, it almost assuredly is. And even if you are innocent, and even if you win (e.g., make money) in the scheme, the whole thing can still come back to bite you in the end.
So don't be greedy. Don't be taken for a fool. If it's an unbelieveable investment, don't believe it.
And write like Judge Bybee does here. Because it's awesome.
County of San Diego v. State of California (Cal. Ct. App. - July 1, 2008)
San Diego v. California. San Diego wants the money that the State of California is constitutionally obliged to pay it for unfunded mandates. So it files suit. Alongside Orange County. The trial judge (Judge Bloom, down here in San Diego) agrees with plaintiffs, and awards San Diego and Orange County over $40 million and $70 million, respectively. California appeals.
Guess who wins? Yep. Just our luck. California. Justice Benke says that the Court of Appeal is "sympathetic" to the plight of the counties. Which are, again, definitely owed the money. But separation of powers concerns prevents the judiciary from granting relief.
But fear not. We "trust the integrity of the Legislature to comply with its constitutional and statutory obligations." So we're sure the counties "will be fully reimbursed on their subject claims within the time alloted" under the California Constitution.
Notice the quotation marks. Which do, indeed, demark quoted lines. But they also demark sarcasm. Sure you're sure. I'm sure too. I definitely trust the integrity of the Legislature to pay what's owed. Totally. As certain as I am that tomorrow the sun will rise -- as it does every day -- in the West.
Guess who wins? Yep. Just our luck. California. Justice Benke says that the Court of Appeal is "sympathetic" to the plight of the counties. Which are, again, definitely owed the money. But separation of powers concerns prevents the judiciary from granting relief.
But fear not. We "trust the integrity of the Legislature to comply with its constitutional and statutory obligations." So we're sure the counties "will be fully reimbursed on their subject claims within the time alloted" under the California Constitution.
Notice the quotation marks. Which do, indeed, demark quoted lines. But they also demark sarcasm. Sure you're sure. I'm sure too. I definitely trust the integrity of the Legislature to pay what's owed. Totally. As certain as I am that tomorrow the sun will rise -- as it does every day -- in the West.
People v. Salcido (Cal. Supreme Ct. - June 30, 2008)
Here, in incredible brevity, are the relevant crimes:
"The evidence established that in the early morning hours of April 14, 1989, defendant drove his three young daughters, Sofia, Carmina, and Theresa to an isolated gulch used as a dumping site, where he cut their throats and left them, resulting in the deaths of Sofia and Theresa. Defendant drove to the residence of his mother-in-law, Marion Louise Richards, where he stabbed to death Marion and her daughters Ruth Bernadette Richards and Marie Ann Richards. Defendant returned home, where he shot to death his wife Angela. He proceeded to his workplace at Grand Cru Vineyard, where he shot to death his supervisor, Tracey Toovey, and then drove to the residence of another supervisor, Kenneth Butti, whom defendant shot and injured. The crimes took place within a period of approximately three hours."
The details are even more chilling.
Needless to say, the California Supreme Court unanimously affirms the resulting death sentence.
Which is what you'd expect. Even if, in the process of doing so, the California Supreme Court feels compelled to hold -- as it indeed does here -- that sentencing someone to death is fine even if the U.S. gets around the extradition treaty with Mexico (which refuses to extradite any of its citizens who's facing the death penalty) by falsely telling Mexican officials that the defendant is a U.S. citizen.
Admittedly, the facts here are pretty unique, including both the depravity of the crime as well as the fact that the defendant himself (stupidly) went on live television in Mexico and said that he was a U.S. citizen. Those facts, mind you, don't justify the deliberate lies of the U.S. officials. But bad facts sometimes result in bad acts. As well as bad law. So what the California Supreme Court -- and perhaps Mexico and U.S. officials -- did here is entirely understandable. It's the nature of the beast. Right or wrong.
"The evidence established that in the early morning hours of April 14, 1989, defendant drove his three young daughters, Sofia, Carmina, and Theresa to an isolated gulch used as a dumping site, where he cut their throats and left them, resulting in the deaths of Sofia and Theresa. Defendant drove to the residence of his mother-in-law, Marion Louise Richards, where he stabbed to death Marion and her daughters Ruth Bernadette Richards and Marie Ann Richards. Defendant returned home, where he shot to death his wife Angela. He proceeded to his workplace at Grand Cru Vineyard, where he shot to death his supervisor, Tracey Toovey, and then drove to the residence of another supervisor, Kenneth Butti, whom defendant shot and injured. The crimes took place within a period of approximately three hours."
The details are even more chilling.
Needless to say, the California Supreme Court unanimously affirms the resulting death sentence.
Which is what you'd expect. Even if, in the process of doing so, the California Supreme Court feels compelled to hold -- as it indeed does here -- that sentencing someone to death is fine even if the U.S. gets around the extradition treaty with Mexico (which refuses to extradite any of its citizens who's facing the death penalty) by falsely telling Mexican officials that the defendant is a U.S. citizen.
Admittedly, the facts here are pretty unique, including both the depravity of the crime as well as the fact that the defendant himself (stupidly) went on live television in Mexico and said that he was a U.S. citizen. Those facts, mind you, don't justify the deliberate lies of the U.S. officials. But bad facts sometimes result in bad acts. As well as bad law. So what the California Supreme Court -- and perhaps Mexico and U.S. officials -- did here is entirely understandable. It's the nature of the beast. Right or wrong.
Monday, June 30, 2008
Stathoulis v. City of Montebello (Cal. Ct. App. - June 30, 2008)
We know that it's possible to sue a City if you trip on a crack in the sidewalk. But can you sue if you trip on a similarly-sized pothole in the road?
Yep.
Read the whole thing if you want to learn the common law about sidewalk and (now, at least) tiny-pothole tripping. Apparently if cracks or potholes are less than an inch or so, they're trivial, so you're out of luck. But if they're larger, or if you can get to a sympathetic jury, you can potentially get paid.
Ah, the life of the common law.
Yep.
Read the whole thing if you want to learn the common law about sidewalk and (now, at least) tiny-pothole tripping. Apparently if cracks or potholes are less than an inch or so, they're trivial, so you're out of luck. But if they're larger, or if you can get to a sympathetic jury, you can potentially get paid.
Ah, the life of the common law.
Mardardo F. v. Superior Court (Cal. Ct. App. - June 30, 2008)
It's a depressing reflection of the world in which we live when the Court of Appeal is called upon to decide whether a statute that denies family reunification services when "a parent [] of the child has caused the death of another child through abuse or neglect" applies to a 27-year old father who raped and murdered a 13-year old girl when he was 15. Legally, yes, the statute's ambiguous: does the statute's reference to "another" child mean another child of the parent, or merely any other child in the world? And what about parents who, as here, only become parents after they committed the offense and served their time for the crime? Does the statute still apply?
So, legally, I totally understand why the Court of Appeal has to resolve the case. And rightly so.
Still. Doesn't the mere existence of this dispute bring you a fair piece down?
P.S. - Justice Davis holds that the statute applies to all children and even to parents who were not parents at the time of the death. Though calls the latter issue a "tough nut to crack".
So, legally, I totally understand why the Court of Appeal has to resolve the case. And rightly so.
Still. Doesn't the mere existence of this dispute bring you a fair piece down?
P.S. - Justice Davis holds that the statute applies to all children and even to parents who were not parents at the time of the death. Though calls the latter issue a "tough nut to crack".
Friday, June 27, 2008
Brown v. Uttecht (9th Cir. - June 27, 2008)
The California Court of Appeal is having a server problem today, so no opinions from them. But the Ninth Circuit keeps cranking them out.
Including this one.
It's a death penalty case post-remand from the Supreme Court. A case in which the panel originally granted habeas relief -- though beginning the opinion with the memorable sentence "Cal Brown is not a nice man." -- but the Supreme Court (shockingly) viewed the merits differently. On a 6-3. (Stevens, Souter, and Breyer on the bottom)
So now the case is back down, for resolution of the remaining issues. Same panel on the Ninth Circuit, though. Kozinski, Reinhardt and Berzon. All three of whom were up for granting habeas relief in the original opinion.
Post-remand, however, it's -- predictably -- a different story. Two of the three judges say "Thanks, I'm done being reversed, thank you very much. Death penalty affirmed." One, however, says "I think not. I'll still vote to reverse the death sentence." Knowing full well, I believe, that he'd totally be smacked down by the Court if the case went up again. Which, of course, it would have had habeas relief again been granted by the panel. (At least if the case didn't get reversed en banc first!)
So who's the dissenter? Duh. I said "he" in the last paragraph, so that's one (totally unnecessary) hint. Here's another one: It's not Chief Judge Kozinski.
Like the remaining guy cares if he's reversed in a death penalty case. Add it to the list.
Including this one.
It's a death penalty case post-remand from the Supreme Court. A case in which the panel originally granted habeas relief -- though beginning the opinion with the memorable sentence "Cal Brown is not a nice man." -- but the Supreme Court (shockingly) viewed the merits differently. On a 6-3. (Stevens, Souter, and Breyer on the bottom)
So now the case is back down, for resolution of the remaining issues. Same panel on the Ninth Circuit, though. Kozinski, Reinhardt and Berzon. All three of whom were up for granting habeas relief in the original opinion.
Post-remand, however, it's -- predictably -- a different story. Two of the three judges say "Thanks, I'm done being reversed, thank you very much. Death penalty affirmed." One, however, says "I think not. I'll still vote to reverse the death sentence." Knowing full well, I believe, that he'd totally be smacked down by the Court if the case went up again. Which, of course, it would have had habeas relief again been granted by the panel. (At least if the case didn't get reversed en banc first!)
So who's the dissenter? Duh. I said "he" in the last paragraph, so that's one (totally unnecessary) hint. Here's another one: It's not Chief Judge Kozinski.
Like the remaining guy cares if he's reversed in a death penalty case. Add it to the list.
State Farm v. Superior Court (Cal. Ct. App. - June 26, 2008)
Justice Aldrich begins this opinion by saying: "If an insured throws someone into a swimming pool intending to get the other person wet, but by mistake does not throw hard enough and so the latter lands on the pool’s cement step and suffers injuries, is the incident an 'accident' within the meaning of insurance law?" He then adds "We conclude it is."
To which I'd have added the following sentence immediately thereafter:
"Duh."
To which I'd have added the following sentence immediately thereafter:
"Duh."
Thursday, June 26, 2008
People v. Page (Cal. Supreme Ct. - June 26, 2008)
Tahisha Clay, a six-year old girl, and her nine-year old brother Stefan were tossing a ball back and forth to each other in the apartment complex in which they lived when the ball rolled down a hill. When Tahisha went down the hill to retrive the ball, her mother called for her and Stefan to go back into the apartment, and Stefan did so.
Needless to say, the story goes downhill from there. Six-year old Tahisha was never seen alive again.
A chilling tale. And a death sentence unanimously affirmed.
Needless to say, the story goes downhill from there. Six-year old Tahisha was never seen alive again.
A chilling tale. And a death sentence unanimously affirmed.
Guidiville Band v. NGV Gaming, Inc. (9th Cir. - June 26, 2008)
You recall, I'm confident, the classic line from Bill Clinton's deposition during the Monica Lewinski days: "It depends upon what the meaning of the word 'is' is." A line that was -- perhaps entirely justifiably -- roundly mocked as laughably absurd.
And, yet, guess what the entire dispute in this case -- which lasts for 45 single-spaced pages -- surrounds? You guessed it. What the meaning of the word "is" is.
It's an awesome dispute, especially given this historical context. Particularly since there's both a majority and dissenting opinion -- in other words, the dispute is actually a darn close one. I was especially interested in this fight because the dispute resolved by the Ninth Circuit is essentially identical the one that Clinton proffered as a defense of his deposition testimony.
Clinton maintained that "is" is a present tense term, and hence that his statement that "there's nothing going on with us" was accurate, since, at that point, the relationship had ended. To quote the now-infamous defense of President Clinton: "It depends on what the meaning of the word 'is' is. If the -- if he -- if 'is' means is and never has been, that is not -- that is one thing. If it means there is none, that was a completely true statement. . . . Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true." I could put it a bit more articulately: "I testified that there 'is' nothing between us. 'Is' is a present tense word, so since there wasn't anything going on at the time, it was true."
The Ninth Circuit case revolves around a similar -- and dispositive -- dispute surrounding the meaning of the term. Section 81 of Title 25 requires approval by the Secretary of the Interior for certain contracts that relate to "Indian Lands," and defines that term as "lands the title to which is held by the United States in trust for an Indian tribe or lands the title to which is held by an Indian tribe subject to a restriction by the United States against alienation." So the question is whether "Indian Lands" include only those lands held as of the date of passage of Section 81 or includes future lands obtained as well. In other words, is "is" a present tense verb?
So the Ninth Circuit held . . . [the excitement builds] . . . that "is" is indeed a present tense verb, so the covered lands are only those held at the time. In essence, that Clinton was correct. Indeed, the majority held that "is" is only present tense -- according to the "unambiguous" language of the statute, no less -- even notwithstanding the language of the Dictionary Act (1 U.S.C. sect. 1), which states that unless the context indicates otherwise, "words used in the present tense include the future as well."
So pretty interesting, huh? Judge N. Smith dissents, arguing that lands acquired in the future are included as well. But -- sadly, to my eyes -- never draws the analogy (or even mentions) to the Clinton dispute. Which, in my mind, would be a pretty decent argument. As well as, perhaps more importantly, funny.
So what does "is" mean, my friends? Was Clinton, in fact, correct? Did he, in fact, testify truthfully? Don't forget that the Supreme Court held in Bronston that an answer that is literally true -- even if intentionally misleading -- doesn't count as perjury.
If I'm Clinton's lawyer, I would definitely cite today's case from the Ninth Circuit as strong support for his position. And if I was on the Ninth Circuit, you can bet your bottom dollar that I'd draw the analogy in the present dispute. Because it's an interesting -- and perhaps enlightening -- one.
And, yet, guess what the entire dispute in this case -- which lasts for 45 single-spaced pages -- surrounds? You guessed it. What the meaning of the word "is" is.
It's an awesome dispute, especially given this historical context. Particularly since there's both a majority and dissenting opinion -- in other words, the dispute is actually a darn close one. I was especially interested in this fight because the dispute resolved by the Ninth Circuit is essentially identical the one that Clinton proffered as a defense of his deposition testimony.
Clinton maintained that "is" is a present tense term, and hence that his statement that "there's nothing going on with us" was accurate, since, at that point, the relationship had ended. To quote the now-infamous defense of President Clinton: "It depends on what the meaning of the word 'is' is. If the -- if he -- if 'is' means is and never has been, that is not -- that is one thing. If it means there is none, that was a completely true statement. . . . Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true." I could put it a bit more articulately: "I testified that there 'is' nothing between us. 'Is' is a present tense word, so since there wasn't anything going on at the time, it was true."
The Ninth Circuit case revolves around a similar -- and dispositive -- dispute surrounding the meaning of the term. Section 81 of Title 25 requires approval by the Secretary of the Interior for certain contracts that relate to "Indian Lands," and defines that term as "lands the title to which is held by the United States in trust for an Indian tribe or lands the title to which is held by an Indian tribe subject to a restriction by the United States against alienation." So the question is whether "Indian Lands" include only those lands held as of the date of passage of Section 81 or includes future lands obtained as well. In other words, is "is" a present tense verb?
So the Ninth Circuit held . . . [the excitement builds] . . . that "is" is indeed a present tense verb, so the covered lands are only those held at the time. In essence, that Clinton was correct. Indeed, the majority held that "is" is only present tense -- according to the "unambiguous" language of the statute, no less -- even notwithstanding the language of the Dictionary Act (1 U.S.C. sect. 1), which states that unless the context indicates otherwise, "words used in the present tense include the future as well."
So pretty interesting, huh? Judge N. Smith dissents, arguing that lands acquired in the future are included as well. But -- sadly, to my eyes -- never draws the analogy (or even mentions) to the Clinton dispute. Which, in my mind, would be a pretty decent argument. As well as, perhaps more importantly, funny.
So what does "is" mean, my friends? Was Clinton, in fact, correct? Did he, in fact, testify truthfully? Don't forget that the Supreme Court held in Bronston that an answer that is literally true -- even if intentionally misleading -- doesn't count as perjury.
If I'm Clinton's lawyer, I would definitely cite today's case from the Ninth Circuit as strong support for his position. And if I was on the Ninth Circuit, you can bet your bottom dollar that I'd draw the analogy in the present dispute. Because it's an interesting -- and perhaps enlightening -- one.
Monroy v. City of Los Angeles (Cal. Ct. App. - June 25, 2008)
It's rare to read an opinion regarding a trial in a routine civil case -- here, an automobile accident involving the LAPD -- in which (1) the Court of Appeal reverses the jury's finding of no liability on multiple grounds, all of which are fairly pedestrian (application of requests for admission, limitation of cross-examination, whether a percipient witness deposition was admissible because the witness was unavailable, etc.), and (2) I find myself repeatedly saying to myself "Yes. Right. Yes. Correct. I completely agree." Usually, I think that the trial court not only gets these issues right, but the deference that's given to the judgment makes reversal unlikely.
But here, yet again, is the exception that proves the rule. The opinion by Justice Aldrich seems entirely persuasive to me. I agree with him on every point; so much so, that it's hard to see why the trial court made the findings it did (especially on the deposition issue).
It's a good case to read for civil trial lawyers. Especially since it manifests how pretrial discovery may be exceptionally relevant to how a case ultimately gets resolved at trial.
Plus, on a more pedestrian level, it's also interesting to read how the LAPD works with regard to responses to "Code 1" through "Code 6" backup requests; e.g., how the police decide whether to respond to a request by obeying traffic laws or, alternately, turning on their lights and siren and speeding through town.
Interesting stuff.
But here, yet again, is the exception that proves the rule. The opinion by Justice Aldrich seems entirely persuasive to me. I agree with him on every point; so much so, that it's hard to see why the trial court made the findings it did (especially on the deposition issue).
It's a good case to read for civil trial lawyers. Especially since it manifests how pretrial discovery may be exceptionally relevant to how a case ultimately gets resolved at trial.
Plus, on a more pedestrian level, it's also interesting to read how the LAPD works with regard to responses to "Code 1" through "Code 6" backup requests; e.g., how the police decide whether to respond to a request by obeying traffic laws or, alternately, turning on their lights and siren and speeding through town.
Interesting stuff.
Wednesday, June 25, 2008
Morgan v. Mukasey (9th Cir. - June 25, 2008)
You can get Judge Noonan angry. And, like Bruce Banner, you won't like him when he's angry.
Here's proof.
Here's proof.
Espinosa v. United Student Aid Funds, Inc. (9th Cir. - June 24, 2008)
Looking for a good law review article? Either because you're a student or want to crank out some publications to hopefully get a cushy academic job? Interested in the crushingly boring (but important) area of bankruptcy law as applied to civil procedure? Or merely looking to have impact on a legal issue on which the Ninth Circuit is the lone holdout and will soon -- perhaps very soon -- revisit the issue, perhaps with a subsequant foray into the Supreme Court?
Then here's a good topic. Which the per curiam opinion totally tees up.
Then here's a good topic. Which the per curiam opinion totally tees up.
Tuesday, June 24, 2008
Duncan v. Ornoski (9th Cir. - June 24, 2008)
It's a death penalty habeas case. Judge Reinhardt writes the opinion.
Need I say more? Okay, if you can't figure out what happens, go ahead and read the opinion.
But as they say, in death penalty cases, neither snow, nor rain, nor sleet, nor the decisions of the California Supreme Court or district court below . . . .
Need I say more? Okay, if you can't figure out what happens, go ahead and read the opinion.
But as they say, in death penalty cases, neither snow, nor rain, nor sleet, nor the decisions of the California Supreme Court or district court below . . . .
California Nat'l Bank v. Woodbridge Plaza LLC (Cal. Ct. App. - June 20, 2008)
Judge Rylaarsdam writes a completely persuasive resolution. I agree with pretty much everything substantive he says.
Mind you, the fact-specific analysis therein -- which concerns the meaning of various terms of a particular bank's rental agreement with its landlord -- wouldn't qualify the opinion for publication (in my view, at least). But I agree with the merits. Which is surely the more important part.
Mind you, the fact-specific analysis therein -- which concerns the meaning of various terms of a particular bank's rental agreement with its landlord -- wouldn't qualify the opinion for publication (in my view, at least). But I agree with the merits. Which is surely the more important part.
Monday, June 23, 2008
In Re Rothwell (Cal. Ct. App. - June 23, 2008)
It's possible to send heroin to a prisoner on a postcard?! Yes, it is.
Oh, and if the heroin gets intercepted by an astute guard before it reaches you, you're also not guilty of possession. Maybe something else. But not possession.
Imagine the progress that society could achieve if we could somehow harness the creative energy of addicts in search of a fix.
Oh, and if the heroin gets intercepted by an astute guard before it reaches you, you're also not guilty of possession. Maybe something else. But not possession.
Imagine the progress that society could achieve if we could somehow harness the creative energy of addicts in search of a fix.
People v. Roberts (Cal. Ct. App. - June 16, 2008)
It's rare to see a 1-1-1 decision in the Court of Appeal. And even rarer for such a split to be unpublished. So even though I don't usually comment on unpublished decisions, this one surely deserves mention.
The question revolves pretty much exclusively around what sort of sentence Marcus Lee Roberts should receive. He was a 22-year old African-American male whose sexual knowledge was fairly immature, and during the summer of 2004, he briefly dry-humped two teenage mentees who were sleeping at his home. That's a crime, for sure. The question is only how -- and how much -- he should be punished for it.
He's got no criminal record. The court-appointed psychologist concludes that Roberts is not a pedophile or sexual predator, that appropriate local treatment is available, that Roberts would succeed if treated, and is a good candidate for probation. Roberts was also a "model inmate with no disciplinary record" who "t[ook] advantage of the services offered to him" while he was in prison for the crime. Finally, Roberts "admitted culpability early on" and "expressed genuine remose and regret."
So what sentence? Probation's a possibility. Or, if you're going to put him in prison, you've got three choices: the low, mid, or upper term (4, 6, or 8 years, plus 2 more years for the second victim). What's your choice?
The trial court says: Upper term. Worse than your typical case. 10 years in prison.
Justice Raye writes the "majority" (of 1) opinion. Saying, in part, that "This is indeed a sad and troubling case. A young man with an unblemished record admitted to sex crimes involving young boys he mentored. As . . . we see reguarly in the cases before us, his conduct, while represensible, was less egregious than many section 288 [the crime that Roberts committed] offenses." But concludes that, sorry, for the next decade, Roberts gets to be "rehabilitated" (with no treatment) in prison. After a decade in prison, Roberts will surely come out of there much, much better than when he went in, I'm sure. And society then gets to deal with the results of that lengthy incarceration for the remaining 50 years of Roberts' life. Nonelessless, Justice Raye says: Affirmed. Not our job -- or role -- to do otherwise.
Justice Robie writes a separate opinion. That states, in its entirety: "In my opinion the sentence imposed in this case is too harsh and I would not have imposed it were I the trial judge. Nevertheless, the sentence does not constitute an abuse of discretion and I concur."
Justice Sims dissents in part, and agrees that there was no abuse of discretion in denying probation but dissents from imposition of the upper term, stating that the latter "shocks my conscience." Money quote from Justice Sims: "In my 25 years on the Court of Appeal, these events were among the least serious violations of Penal Code section 288, subidivision (d), that I have encountered. . . . Considering all these circumstances [no prior record, conclusions of the court-appointed psychologist, quick acceptance of responsibility and remorse, model prisoner, etc.] and comparing this case with other molest cases that have come through this court, I find imposition of the upper term shocking."
As an aside, Justice Sims also uses -- accurately, I might add -- the phrase "dry humping" to describe the crime that Roberts committed. A phrase that, a little research reveals, has not yet graced the pages of the California Reporter. Which -- wholly aside from the keenly interesting dispute between the justices -- would have been a good reason to publish the case. Even though, last time I checked, I'm pretty sure that's not one of the actual criteria in Rule 8.1105(c). Sadly.
It's a great dispute. One that concerns role, responsibility, and justice. So even though it's unpublished, it deserves a read. As well as serious reflection.
The question revolves pretty much exclusively around what sort of sentence Marcus Lee Roberts should receive. He was a 22-year old African-American male whose sexual knowledge was fairly immature, and during the summer of 2004, he briefly dry-humped two teenage mentees who were sleeping at his home. That's a crime, for sure. The question is only how -- and how much -- he should be punished for it.
He's got no criminal record. The court-appointed psychologist concludes that Roberts is not a pedophile or sexual predator, that appropriate local treatment is available, that Roberts would succeed if treated, and is a good candidate for probation. Roberts was also a "model inmate with no disciplinary record" who "t[ook] advantage of the services offered to him" while he was in prison for the crime. Finally, Roberts "admitted culpability early on" and "expressed genuine remose and regret."
So what sentence? Probation's a possibility. Or, if you're going to put him in prison, you've got three choices: the low, mid, or upper term (4, 6, or 8 years, plus 2 more years for the second victim). What's your choice?
The trial court says: Upper term. Worse than your typical case. 10 years in prison.
Justice Raye writes the "majority" (of 1) opinion. Saying, in part, that "This is indeed a sad and troubling case. A young man with an unblemished record admitted to sex crimes involving young boys he mentored. As . . . we see reguarly in the cases before us, his conduct, while represensible, was less egregious than many section 288 [the crime that Roberts committed] offenses." But concludes that, sorry, for the next decade, Roberts gets to be "rehabilitated" (with no treatment) in prison. After a decade in prison, Roberts will surely come out of there much, much better than when he went in, I'm sure. And society then gets to deal with the results of that lengthy incarceration for the remaining 50 years of Roberts' life. Nonelessless, Justice Raye says: Affirmed. Not our job -- or role -- to do otherwise.
Justice Robie writes a separate opinion. That states, in its entirety: "In my opinion the sentence imposed in this case is too harsh and I would not have imposed it were I the trial judge. Nevertheless, the sentence does not constitute an abuse of discretion and I concur."
Justice Sims dissents in part, and agrees that there was no abuse of discretion in denying probation but dissents from imposition of the upper term, stating that the latter "shocks my conscience." Money quote from Justice Sims: "In my 25 years on the Court of Appeal, these events were among the least serious violations of Penal Code section 288, subidivision (d), that I have encountered. . . . Considering all these circumstances [no prior record, conclusions of the court-appointed psychologist, quick acceptance of responsibility and remorse, model prisoner, etc.] and comparing this case with other molest cases that have come through this court, I find imposition of the upper term shocking."
As an aside, Justice Sims also uses -- accurately, I might add -- the phrase "dry humping" to describe the crime that Roberts committed. A phrase that, a little research reveals, has not yet graced the pages of the California Reporter. Which -- wholly aside from the keenly interesting dispute between the justices -- would have been a good reason to publish the case. Even though, last time I checked, I'm pretty sure that's not one of the actual criteria in Rule 8.1105(c). Sadly.
It's a great dispute. One that concerns role, responsibility, and justice. So even though it's unpublished, it deserves a read. As well as serious reflection.
U.S. v. Gonzalez (9th Cir. - June 19, 2008)
Sure, defendants routinely claim that police officers steal money or drugs from them after they bust them. But it never really happens, right? I mean, come on. It's just absurd to think that a police officer would do so.
Unless, of course, it's caught on videotape.
Unless, of course, it's caught on videotape.
Friday, June 20, 2008
Roberts v. Assurance Co. (Cal. Ct. App. - June 20, 2008)
"When you put my name in print, I don't care what you say. Just spell it correctly."
A matter of interest to Esther Holm -- not Hom -- at Lewis Brisbois. And Justice Rylaarsdam (belatedly) obliges.
A matter of interest to Esther Holm -- not Hom -- at Lewis Brisbois. And Justice Rylaarsdam (belatedly) obliges.
Leppind v. Mukasey (9th Cir. - June 20, 2008)
Sometimes you author a dissent for the ages. Sometimes you author a dissent to persuade other circuits, or even the Supreme Court. And sometimes you write a dissent to "persuade" lower courts.
But usually you write a dissent in response to something contrary that was written by the majority. They say that X is true, so you write that X is false. Makes sense.
But to every rule there's an exception. As Judge Ikuta demonstrates here.
The majority enters a bold and unprecedented order referring the action to voluntary mediation. At the suggestion of the parties. Shocking, I know. They then write an order saying that they do so because there's an intervening case that might -- just might -- affect the resolution of the case, and rather than remand the matter for the BIA's initial take, the government suggested that mediation might do wonders instead, at which point the Ninth Circuit says: "Sure."
Judge Ikuta, however, dissents. And writes a lengthy opinion in which she argues that the intervening case is distinguishable from the present dispute. Recall that the majority never said that it wasn't. Just that it may or may not be. Hence the order. And the (hardly fanciful) hope that a successful mediation might moot the need to resolve the matter.
So you've got a case that may well be successfully and efficiently mooted out, a majority that doesn't decide a thorny judicial question, and an order that merely send the case the mediation to see if it can be resolved. In light of all that, why dissent? And why write a dissent now, as opposed to when (and if) the case comes back in the event the mediation is unsuccessful?
The answer, of course, depends upon who your audience is, and what you're trying to accomplish. If you are trying to resolve a particular dispute, both efficiently and without the need to address potentially unnecessary disputes, then you don't author a dissent, in my view. At least at this point. The majority has merely said that an intervening case may be relevant -- not that it's dispositive -- and that mediation might help. You can sign onto both those statements as well as the resulting reference to mediation even if you believe the intervening case to be distinguishable.
By contrast, if you're worried that the present dispute might, in fact, settle at mediation -- or want to influence the BIA in another (or intervening) case raising the same issue, or the influence the outcome of the mediation -- or are worried that this case might be your only opportunity to personally opine about the merits of the legal dispute at issue, you write a dissent now. One that makes sure to get across your personal opinion about the issue that the majority on the panel expressly does not reach. For anyone who might want to listen.
An interesting decision.
I'm not saying that I'd never do that. In an appropriate case, I might well. But I wouldn't do it here. Especially given the particular context -- mediation -- as well as the underlying legal issue, I'd have definitely been with Judge Wardlaw and Judge Fogel (sitting by designation) on this one.
But usually you write a dissent in response to something contrary that was written by the majority. They say that X is true, so you write that X is false. Makes sense.
But to every rule there's an exception. As Judge Ikuta demonstrates here.
The majority enters a bold and unprecedented order referring the action to voluntary mediation. At the suggestion of the parties. Shocking, I know. They then write an order saying that they do so because there's an intervening case that might -- just might -- affect the resolution of the case, and rather than remand the matter for the BIA's initial take, the government suggested that mediation might do wonders instead, at which point the Ninth Circuit says: "Sure."
Judge Ikuta, however, dissents. And writes a lengthy opinion in which she argues that the intervening case is distinguishable from the present dispute. Recall that the majority never said that it wasn't. Just that it may or may not be. Hence the order. And the (hardly fanciful) hope that a successful mediation might moot the need to resolve the matter.
So you've got a case that may well be successfully and efficiently mooted out, a majority that doesn't decide a thorny judicial question, and an order that merely send the case the mediation to see if it can be resolved. In light of all that, why dissent? And why write a dissent now, as opposed to when (and if) the case comes back in the event the mediation is unsuccessful?
The answer, of course, depends upon who your audience is, and what you're trying to accomplish. If you are trying to resolve a particular dispute, both efficiently and without the need to address potentially unnecessary disputes, then you don't author a dissent, in my view. At least at this point. The majority has merely said that an intervening case may be relevant -- not that it's dispositive -- and that mediation might help. You can sign onto both those statements as well as the resulting reference to mediation even if you believe the intervening case to be distinguishable.
By contrast, if you're worried that the present dispute might, in fact, settle at mediation -- or want to influence the BIA in another (or intervening) case raising the same issue, or the influence the outcome of the mediation -- or are worried that this case might be your only opportunity to personally opine about the merits of the legal dispute at issue, you write a dissent now. One that makes sure to get across your personal opinion about the issue that the majority on the panel expressly does not reach. For anyone who might want to listen.
An interesting decision.
I'm not saying that I'd never do that. In an appropriate case, I might well. But I wouldn't do it here. Especially given the particular context -- mediation -- as well as the underlying legal issue, I'd have definitely been with Judge Wardlaw and Judge Fogel (sitting by designation) on this one.
Thursday, June 19, 2008
Barona Band v. Yee (9th Cir. - June 18, 2008)
Kudos to Judge Wardlaw. For writing an opinion that not only makes sense on the merits (though I admit that I totally see the other side as well), but also contains a funny line with the perfect level of subtlety. Not too much, but definitely not too little.
The case involves whether the Barona Band of Mission Indians, who have a big casino down here in San Diego (and nice golf course too, I might add), can immunize non-Indian contractors from paying California sales tax on purchases of construction materials from non-Indian vendors through a particular complex (but elegant) arrangement designed to do just that. The Barona Band convinces the district judge (Judge Sabraw) that this scheme succeeds, but Judge Wardlaw holds that it doesn't. Sorry.
The relevant funny line -- which really did make me both smile and let out a little chuckle -- comes fairly early on in the opinion. Here's the setup, which is the second paragraph of the opinion:
"After nearly two centuries of displacement of the Barona Band of Mission Indians by European and then American encroachment, the United States enacted legislation to provide a tract of land in rural San Diego County to serve as a reservation for the Tribe. Until the early 1990s, however, the Tribe suffered from deep structural economic difficulties. Following the nationwide trend of Native Americans seeking to infuse economic life into depressed reservations, the Tribe opened up a casino in 1996: the Barona Valley Ranch Resort & Casino — 'Where The Real Players Play, and Win.'"
Then comes the punch line, which is first sentence of the third paragraph:
"By 2001, enough of these real players had played and lost for the Tribe to plan a $75 million expansion to the casino floor and hotel, replete with a new wedding chapel, parking structure and other resort amenities."
I admit that I don't fully know why I loved that line so much. But I did.
The case involves whether the Barona Band of Mission Indians, who have a big casino down here in San Diego (and nice golf course too, I might add), can immunize non-Indian contractors from paying California sales tax on purchases of construction materials from non-Indian vendors through a particular complex (but elegant) arrangement designed to do just that. The Barona Band convinces the district judge (Judge Sabraw) that this scheme succeeds, but Judge Wardlaw holds that it doesn't. Sorry.
The relevant funny line -- which really did make me both smile and let out a little chuckle -- comes fairly early on in the opinion. Here's the setup, which is the second paragraph of the opinion:
"After nearly two centuries of displacement of the Barona Band of Mission Indians by European and then American encroachment, the United States enacted legislation to provide a tract of land in rural San Diego County to serve as a reservation for the Tribe. Until the early 1990s, however, the Tribe suffered from deep structural economic difficulties. Following the nationwide trend of Native Americans seeking to infuse economic life into depressed reservations, the Tribe opened up a casino in 1996: the Barona Valley Ranch Resort & Casino — 'Where The Real Players Play, and Win.'"
Then comes the punch line, which is first sentence of the third paragraph:
"By 2001, enough of these real players had played and lost for the Tribe to plan a $75 million expansion to the casino floor and hotel, replete with a new wedding chapel, parking structure and other resort amenities."
I admit that I don't fully know why I loved that line so much. But I did.
Wednesday, June 18, 2008
People v. Wilkinson (Cal. Ct. App. - June 18, 2008)
Obviously, you shouldn't use your roommate's webcam to secretly record her (and your third roommate) having sex. Not right. Morally or otherwise. Like you can't get better porn on the regular internet anyway? (And, no, I will not provide a hyperlink, thank you very much.)
If you nonetheless disagree, let me warn you: It's 180 days in a world with a lot less interesting sexual action if you're caught.
So that's the purient take on this case. Here's the legal angle:
I know that the relevant precedent on this point is pretty bad. But my personal opinion is that when (1) a police officer volunteers to a roommate that the officer can't search the defendant's room because there's no probable cause -- nudge nudge, wink wink -- and; (2) the roommate responds by getting the "crazy idea" (from I wonder where) that maybe the roomate should search the defendant's room himself and give the evidence to the police; and (3) asks the police officer if he can do so, to which the officer admits he responds "Well, you can do whatever you want. It’s your apartment. . . . But keep in mind, you cannot act as an agent of my authority. I
cannot ask you to go into the room, nor can you go into the room believing that you’re doing so for myself." (the most obvious nudge nudge in the universe, IMHO); and (4) the roommate does so and provides the evidence to the police, well, that's an illegal search. Sure, it's a fact-intensive inquiry. But I find it entirely uncredible -- to the point of absurd -- that the police officer in such a scenario isn't actively encouraging the search.
When someone asks a police officer if they can illegally enter another person's private room and shuffle through (and take) their possessions, the routine (and legitimate) response would be "No, you can't. That'd be trespassing, theft, and a variety of other crimes." When, instead, the officer admits that he says "Well, you can do whatever you want," and goes on to say that they can't tell you to perform the search that because that'd be an illegal search, we all know full well what the officer's really saying. And a finding to the contrary is blind to reality. As well as a similar type of distortion -- though admittedly not nearly as egregious -- regarding what's really going on as the underlying nudge itself.
On the other side of the equation, however, I couldn't agree more with the following language from the outset of Justice Robie's opinion:
"Defendant first contends he had a reasonable expectation of privacy in the contents of the compact discs located in his room. The People disagree, contending he 'did not have a
legitimate expectation of privacy in the stolen images of his roommates’ private sex life.' According to the People, 'While [defendant] may subjectively have expressed an interest in keeping the disks private by keeping them in his room and asking people to stay out, the voyeuristic images are not the kind of material that society is willing to recognize as a legitimate
privacy interest.'
We find the People’s argument rather startling, inasmuch as acceptance of it would largely obliterate the Fourth Amendment, because whenever a criminal prosecution is premised on
contraband discovered during a warrantless search, the search that led to discovery of the contraband could always be justified on the ground the defendant did not have a legitimate
expectation of privacy in the contraband. We know of no authority that supports such a broad proposition. Certainly that proposition is not supported by the only two cases the People cite. [Powerful and entirely accurate discussion of those cases then ensues.]"
I think it's entirely right to quote -- and then pound -- silly and/or dangerous legal arguments advanced by a party. Keeps 'em honest. Or, hopefully, will at least make 'em think twice about articulating such positions.
If you nonetheless disagree, let me warn you: It's 180 days in a world with a lot less interesting sexual action if you're caught.
So that's the purient take on this case. Here's the legal angle:
I know that the relevant precedent on this point is pretty bad. But my personal opinion is that when (1) a police officer volunteers to a roommate that the officer can't search the defendant's room because there's no probable cause -- nudge nudge, wink wink -- and; (2) the roommate responds by getting the "crazy idea" (from I wonder where) that maybe the roomate should search the defendant's room himself and give the evidence to the police; and (3) asks the police officer if he can do so, to which the officer admits he responds "Well, you can do whatever you want. It’s your apartment. . . . But keep in mind, you cannot act as an agent of my authority. I
cannot ask you to go into the room, nor can you go into the room believing that you’re doing so for myself." (the most obvious nudge nudge in the universe, IMHO); and (4) the roommate does so and provides the evidence to the police, well, that's an illegal search. Sure, it's a fact-intensive inquiry. But I find it entirely uncredible -- to the point of absurd -- that the police officer in such a scenario isn't actively encouraging the search.
When someone asks a police officer if they can illegally enter another person's private room and shuffle through (and take) their possessions, the routine (and legitimate) response would be "No, you can't. That'd be trespassing, theft, and a variety of other crimes." When, instead, the officer admits that he says "Well, you can do whatever you want," and goes on to say that they can't tell you to perform the search that because that'd be an illegal search, we all know full well what the officer's really saying. And a finding to the contrary is blind to reality. As well as a similar type of distortion -- though admittedly not nearly as egregious -- regarding what's really going on as the underlying nudge itself.
On the other side of the equation, however, I couldn't agree more with the following language from the outset of Justice Robie's opinion:
"Defendant first contends he had a reasonable expectation of privacy in the contents of the compact discs located in his room. The People disagree, contending he 'did not have a
legitimate expectation of privacy in the stolen images of his roommates’ private sex life.' According to the People, 'While [defendant] may subjectively have expressed an interest in keeping the disks private by keeping them in his room and asking people to stay out, the voyeuristic images are not the kind of material that society is willing to recognize as a legitimate
privacy interest.'
We find the People’s argument rather startling, inasmuch as acceptance of it would largely obliterate the Fourth Amendment, because whenever a criminal prosecution is premised on
contraband discovered during a warrantless search, the search that led to discovery of the contraband could always be justified on the ground the defendant did not have a legitimate
expectation of privacy in the contraband. We know of no authority that supports such a broad proposition. Certainly that proposition is not supported by the only two cases the People cite. [Powerful and entirely accurate discussion of those cases then ensues.]"
I think it's entirely right to quote -- and then pound -- silly and/or dangerous legal arguments advanced by a party. Keeps 'em honest. Or, hopefully, will at least make 'em think twice about articulating such positions.
Tuesday, June 17, 2008
Long v. Century Ins. Co. (Cal. Ct. App. - June 17, 2008)
It's rarely a good sign when the Court of Appeal quotes your brief in its opinion. Because usually that means that they're just teeing your argument up to take a huge whack at it.
As here.
Which is not fantastic news for Incline Village attorney (my wife says: "Nice life!") Jay B. Long. Who's not only the attorney representing the appellant on appeal, but who's also the appellant. Oh, yeah. Also the loser.
So off to arbitration for you, Jay. Think of it as a sort of "legal roulette" thing akin to some of the stuff you see on the Nevada side of Lake Tahoe. Though a lot less fun.
As here.
Which is not fantastic news for Incline Village attorney (my wife says: "Nice life!") Jay B. Long. Who's not only the attorney representing the appellant on appeal, but who's also the appellant. Oh, yeah. Also the loser.
So off to arbitration for you, Jay. Think of it as a sort of "legal roulette" thing akin to some of the stuff you see on the Nevada side of Lake Tahoe. Though a lot less fun.
Monday, June 16, 2008
Gribben v. UPS (9th Cir. - June 16, 2008)
Maybe it's just because I've been on the East Coast -- sweltering in heat and humidity -- for the past week. It makes certainly makes me sympathetic. But regardless of the reason, even on the merits, I was interested to learn from this opinion by Judge Thompson that the ADA can require an employer to provide air conditioning in the vehicle that its employee drives.
On so many levels, it makes me long for the cool, ocean breezes of San Diego ASAP. Where, as we speak, wedding bells toll across the State.
On so many levels, it makes me long for the cool, ocean breezes of San Diego ASAP. Where, as we speak, wedding bells toll across the State.
Thursday, June 12, 2008
Cadle Company II v. Fiscus (Cal. Ct. App. - June 12, 2008)
It's a hot, steamy night in North Carolina. (Yeah, I know, sounds like the opening sentence of a pulp romance novel.) And I had to walk a huge distance until I could find a house that allowed me to pimp their wireless access. But neither rain nor sleet, as they say.
Not that I was too thrilled when I saw the rewards for my dedication. Not the most thrilling of days in California appellate land.
This opinion, for example, was probably the most interesting. Even then, it probably kept my attention only because it's a personal jurisdiction case and I'm a procedural guy by interest and occupation. In a parallel universe, I might perhaps have slept through it.
It's not a hard case. The question is whether you need renewed personal jurisdiction (i.e., minimum contacts with California subsequent to the original judgment) in order to file an independent action to renew a prior state court judgment. The clear answer, BTW, is "No." Which both several non-California cases have already reached and which Justice O'Leary correctly concludes as well. You had jurisdiction originally. That jurisdiction extends to a renewal of the judgment, even in an independent action.
Still, better to get an easy case right than to get it wrong. And right to publish it so it's clearly the law in California. Just so no one else makes a silly (albeit nonfrivolous) argument to the contrary in the future.
Not that I was too thrilled when I saw the rewards for my dedication. Not the most thrilling of days in California appellate land.
This opinion, for example, was probably the most interesting. Even then, it probably kept my attention only because it's a personal jurisdiction case and I'm a procedural guy by interest and occupation. In a parallel universe, I might perhaps have slept through it.
It's not a hard case. The question is whether you need renewed personal jurisdiction (i.e., minimum contacts with California subsequent to the original judgment) in order to file an independent action to renew a prior state court judgment. The clear answer, BTW, is "No." Which both several non-California cases have already reached and which Justice O'Leary correctly concludes as well. You had jurisdiction originally. That jurisdiction extends to a renewal of the judgment, even in an independent action.
Still, better to get an easy case right than to get it wrong. And right to publish it so it's clearly the law in California. Just so no one else makes a silly (albeit nonfrivolous) argument to the contrary in the future.
People v. Ramos (Cal. Ct. App. - June 9, 2008)
I'm in North Carolina today. But the California Court of Appeal has a simple message that's universal:
Do blow, kill your mother.
Presumably not invariably.
Do blow, kill your mother.
Presumably not invariably.
Wednesday, June 11, 2008
Derek Andrew, Inc. v. Poof Apparel Corp. (9th Cir. - June 11, 2008)
Plaintiff is an apparel company named Derek Andrew, Inc. that sells a high-end (read: expensive) clothing line called "Twisted Heart" at Nordstrom, Saks Fifth Avenue, and Neiman Marcus. Defendant, by contrast, is a competing apparel company named (of all things) "Poof Apparel" that sells low-end (read: cheap) clothing with a label nearly identical to the "Twisted Heart" label at places like T.J. Maxx and Marshall's.
That's about all you need to know to explain why plaintiff sues defendant and successfully obtains a Lanham Act award of almost $700,000 -- plus an additional $300,000 or so in attorney's fees.
In short, Poof Apparel goes poof.
That's about all you need to know to explain why plaintiff sues defendant and successfully obtains a Lanham Act award of almost $700,000 -- plus an additional $300,000 or so in attorney's fees.
In short, Poof Apparel goes poof.
In Re Attorney Discipline (9th Cir. - June 10, 2008)
Alex: What, I'm a huge slouch?!
Just kidding. Rory's an outstanding choice.
POSTSCRIPT: Sorry to read about the huge blowup today on that other thing, A. Not great timing.
Just kidding. Rory's an outstanding choice.
POSTSCRIPT: Sorry to read about the huge blowup today on that other thing, A. Not great timing.
Tuesday, June 10, 2008
People v. Manchel (Cal. Ct. App. - June 10, 2008)
I thought that Justice Zelon penned an extremely well-written opinion in this case. It flows, it's breezy, and it's persuasive. I wish that law review articles -- or at least the ones I write -- could be similarly smooth.
On the merits, she does a great job distinguishing the principal authority on which the defendant relies. Yes, it's true, she says, that the California Supreme Court held in Hofsheier that it violates equal protection when a defendant is subject to mandatory lifetime registration as a sex offender for engaging in oral copulation with a minor but less than that for full-on intercourse. And that might facially seem the case here as well.
But, she explains, you were 10+ years older than your 15-year old partner. Which, under the statute, means that you engaged in a "lewd and lacivious act" -- a felony with mandatory registration -- regardless of which of the two sex acts (oral copulation or intercourse) you performed. Hence there's no equal protection violation since the "lesser" (oral sex) isn't treated differently than the "greater" (sex).
Well done. Especially since this seems to be an argument -- one that seems right to me, I might add -- that a prior panel and/or attorney missed in the Second District earlier this year, which went the other way.
Sometimes you read an opinion and say: "Look, I don't know much about the specific statutes the Court of Appeal is talking about, but from what the author says, she seems entirely right." This is one of those cases.
On the merits, she does a great job distinguishing the principal authority on which the defendant relies. Yes, it's true, she says, that the California Supreme Court held in Hofsheier that it violates equal protection when a defendant is subject to mandatory lifetime registration as a sex offender for engaging in oral copulation with a minor but less than that for full-on intercourse. And that might facially seem the case here as well.
But, she explains, you were 10+ years older than your 15-year old partner. Which, under the statute, means that you engaged in a "lewd and lacivious act" -- a felony with mandatory registration -- regardless of which of the two sex acts (oral copulation or intercourse) you performed. Hence there's no equal protection violation since the "lesser" (oral sex) isn't treated differently than the "greater" (sex).
Well done. Especially since this seems to be an argument -- one that seems right to me, I might add -- that a prior panel and/or attorney missed in the Second District earlier this year, which went the other way.
Sometimes you read an opinion and say: "Look, I don't know much about the specific statutes the Court of Appeal is talking about, but from what the author says, she seems entirely right." This is one of those cases.
Liberty Mutual Fire Ins. Co. v. LoL Administrators, Inc. (Cal. Ct. App. - June 10, 2008)
Form interrogatories. Sure, it's fun to respond with meaningless answers. But do it too much and you may face terminating sanctions. And the Court of Appeal will affirm.
Monday, June 09, 2008
Gueyffier v. Ann Summers, Ltd. (Cal. Supreme Ct. - June 9, 2008)
A British retailer of lingerie and sex toys. A French citizen who opens a franchise in the Beverly Center shopping mall. Thrown tomatoes. Arbitration. The California Supreme Court. "What Lies Beneath".
It's a titillating drama that, sadly, isn't at all exciting as a judicial opinion. But at least it's a short one.
It's a titillating drama that, sadly, isn't at all exciting as a judicial opinion. But at least it's a short one.
ISKC v. City of Los Angeles (9th Cir. - June 9, 2008)
The Ninth Circuit wants to know if LAX is a public forum under the California Constitution. So asks the California Supreme Court to let it know. Which makes sense.
I mention the case primarily becuase it involves the Krishnas soliciting funds at LAX. Which reminded me of that scene in Airplane! in which Ted Striker struggles his way through a variety of people (including Krishnas) as he attempts to catch Elaine's flight. Classic. And up for grabs, apparently, in the present case.
Parenthetically, I loved Kareem Abdul-Jabbar's involvement in that film. Including his wonderful lines when the little kid visits the cockpit and keeps insisting that he's Kareem instead of "Roger Murdock". Lines that are especially timely since the Lakers are, yet again, in the playoffs.
Life imitates art which imitates life.
I mention the case primarily becuase it involves the Krishnas soliciting funds at LAX. Which reminded me of that scene in Airplane! in which Ted Striker struggles his way through a variety of people (including Krishnas) as he attempts to catch Elaine's flight. Classic. And up for grabs, apparently, in the present case.
Parenthetically, I loved Kareem Abdul-Jabbar's involvement in that film. Including his wonderful lines when the little kid visits the cockpit and keeps insisting that he's Kareem instead of "Roger Murdock". Lines that are especially timely since the Lakers are, yet again, in the playoffs.
Life imitates art which imitates life.
Franco v. Dow Chemical Co. (9th Cir. - June 9, 2008)
They take attorney discipline very seriously on the Ninth Circuit. Especially if you're dealing with Chief Judge Kozinski and Judges Reinhardt, Berzon and Tashima.
Don't believe me? Take a look at this. As well as (if you have time) this.
The attorneys named in the caption, by the way, are no slouches. Including but by no means limited to Tom Girardi.
Interesting stuff, to be sure.
Don't believe me? Take a look at this. As well as (if you have time) this.
The attorneys named in the caption, by the way, are no slouches. Including but by no means limited to Tom Girardi.
Interesting stuff, to be sure.
Friday, June 06, 2008
TJX Companies v. Superior Court (Cal. Ct. App. - June 6, 2008)
Oops. There are a couple of very minor problems. The most central of which is that he's actually a she.
And, at least to my knowledge, always has been.
Amended accordingly.
And, at least to my knowledge, always has been.
Amended accordingly.
People v. Carrasco (Cal. Ct. App. - June 6, 2008)
Two things.
First, doesn't it seem strange for someone to walk into a sheriff's station and ask if anyone has change for a dollar? Aren't stores and such a more likely candidate for this type of function? And isn't it even stranger to then follow up the resulting silence by singling out a particular deputy sheriff and asking "Do you have change, bitch?" Not really a smart thing to say. Nor is it wise to follow up with various additional curse words and thereafter resist arrest. Especially when you've got a nearly full gasoline container in the duffel bag that you brought with you to the station and a couple of gasoline-soaked rags. That's a good way to get convicted of arson (in addition to resisting arrest). And spending a healthy portion of the rest of your life in prison.
Second, for yet another thing you don't see very much, check out the following dialogue once the jury was polled (after finding the defendant guilty):
"The court then asked each juror whether the verdicts reflected his or her individual verdict. Juror No. 2 initially gave no response. The court asked again, Juror No. 2 paused and then answered, “Yes.” The remaining jurors left the courtroom, and the court engaged in the following colloquy with Juror No. 2:
“THE COURT: . . . [¶] Juror No. 2, you hesitated answering, and you teared up; and it appears that when you did give an answer, ‘yes,’ it was in a soft voice and you appear to be obviously emotionally distraught. [¶] Is the verdict that you rendered by saying yes to guilt as to counts 2, 3 and 4, is that your verdict? Is that your decision?
"JUROR NO. 2: No.
“THE COURT: All right. And it took Juror No. 2 some time to answer the question. [¶] Did you decide to vote the way you did because of the fact that you felt compelled because the other jurors were voting that way?
“JUROR NO. 2: Yes.
“THE COURT: Okay. So that is not your true intent to vote guilty for -- I’m not going to designate which count, but your guilty verdict was because you felt compelled or pressured because the other jurors were voting that way; is that correct?
“JUROR NO. 2: (No response.)
“THE COURT: Go ahead and explain to me that -- nobody will know about, the other jurors won’t know about our discussion here -- but I want to know what went on in the jury room that made you come up with a guilty verdict when you’re now indicating that that was not really your desire or intent.
“JUROR NO. 2: I had reasonable doubt.
Whoa. A conversation sufficiently rare that even the defense cousel, during this dialogue, said: "Your Honor, I have to confess I’ve never had this situation before," to which the trial court responded: "I don’t think any of us have."
Read the rest of the opinion for what subsequently transpires. With the following spoiler: the conviction is upheld (over the dissent of Justice Flier).
First, doesn't it seem strange for someone to walk into a sheriff's station and ask if anyone has change for a dollar? Aren't stores and such a more likely candidate for this type of function? And isn't it even stranger to then follow up the resulting silence by singling out a particular deputy sheriff and asking "Do you have change, bitch?" Not really a smart thing to say. Nor is it wise to follow up with various additional curse words and thereafter resist arrest. Especially when you've got a nearly full gasoline container in the duffel bag that you brought with you to the station and a couple of gasoline-soaked rags. That's a good way to get convicted of arson (in addition to resisting arrest). And spending a healthy portion of the rest of your life in prison.
Second, for yet another thing you don't see very much, check out the following dialogue once the jury was polled (after finding the defendant guilty):
"The court then asked each juror whether the verdicts reflected his or her individual verdict. Juror No. 2 initially gave no response. The court asked again, Juror No. 2 paused and then answered, “Yes.” The remaining jurors left the courtroom, and the court engaged in the following colloquy with Juror No. 2:
“THE COURT: . . . [¶] Juror No. 2, you hesitated answering, and you teared up; and it appears that when you did give an answer, ‘yes,’ it was in a soft voice and you appear to be obviously emotionally distraught. [¶] Is the verdict that you rendered by saying yes to guilt as to counts 2, 3 and 4, is that your verdict? Is that your decision?
"JUROR NO. 2: No.
“THE COURT: All right. And it took Juror No. 2 some time to answer the question. [¶] Did you decide to vote the way you did because of the fact that you felt compelled because the other jurors were voting that way?
“JUROR NO. 2: Yes.
“THE COURT: Okay. So that is not your true intent to vote guilty for -- I’m not going to designate which count, but your guilty verdict was because you felt compelled or pressured because the other jurors were voting that way; is that correct?
“JUROR NO. 2: (No response.)
“THE COURT: Go ahead and explain to me that -- nobody will know about, the other jurors won’t know about our discussion here -- but I want to know what went on in the jury room that made you come up with a guilty verdict when you’re now indicating that that was not really your desire or intent.
“JUROR NO. 2: I had reasonable doubt.
Whoa. A conversation sufficiently rare that even the defense cousel, during this dialogue, said: "Your Honor, I have to confess I’ve never had this situation before," to which the trial court responded: "I don’t think any of us have."
Read the rest of the opinion for what subsequently transpires. With the following spoiler: the conviction is upheld (over the dissent of Justice Flier).
Thursday, June 05, 2008
People v. Mauch (Cal. Ct. App. - June 3, 2008)
I can reduce the holding of this opinion to a single sentence. Albeit one that only criminal lawyers in California -- or those cognizant of this field -- would find interesting, or (potentially) even understand:
If it ain't a wobbler, or at least a stealth wobbler, you can't knock it down to a misdemeanor.
Read Justice Aronson's opinion for the nine-page version.
Wednesday, June 04, 2008
People v. Laborde (Cal. Ct. App. - June 4, 2008)
Don't take drugs on a cruise. Especially if you've got a criminal record. Because, if the feel like it, it's a routine border search when you return. And the police just so happen to target people with criminal -- especially drug -- records for "random" suspicionless searches of their cabin.
U.S. v. Giberson (9th Cir. - May 30, 2008)
I agree with Judge Wallace.
They validly stopped you because your plates expired. At which point they saw your false identification, which properly subjected you to arrest. At which point they validly searched you incident to the arrest and discovered evidence that you were evading your child support allegations. Which is not only wrong, but is particularly interesting since you used to be the person in charge of section of the Minnesota Department of Human Services that ensured that other people paid their child support.
At which point they validly got a warrant to search your home for evidence relating to your evasion of child support. During the execution of which they saw in plain sight stuff that you clearly used to make fake identification documents from your computer. At which point they validly got a search warrant for your computer to look for further evidence relating to that stuff. During the execution of which they properly stumbled across some child pornography while looking for the false identification stuff. Which validly led them to get a second warrant to look for child pornography on the computer, of which there was a vast quantity. Which put you in the pokey for five years.
So expired plates = false identification = evasion of child support = child pornography. It's an unlucky chain of events as far as you're concerned, but it's entirely proper. Every step of the way.
Yet another reason not to drive around with expired plates, or make and carry false identification, or evade child support if you're a huge afficianado of child pornography. Or anything else illegal, for that matter.
They validly stopped you because your plates expired. At which point they saw your false identification, which properly subjected you to arrest. At which point they validly searched you incident to the arrest and discovered evidence that you were evading your child support allegations. Which is not only wrong, but is particularly interesting since you used to be the person in charge of section of the Minnesota Department of Human Services that ensured that other people paid their child support.
At which point they validly got a warrant to search your home for evidence relating to your evasion of child support. During the execution of which they saw in plain sight stuff that you clearly used to make fake identification documents from your computer. At which point they validly got a search warrant for your computer to look for further evidence relating to that stuff. During the execution of which they properly stumbled across some child pornography while looking for the false identification stuff. Which validly led them to get a second warrant to look for child pornography on the computer, of which there was a vast quantity. Which put you in the pokey for five years.
So expired plates = false identification = evasion of child support = child pornography. It's an unlucky chain of events as far as you're concerned, but it's entirely proper. Every step of the way.
Yet another reason not to drive around with expired plates, or make and carry false identification, or evade child support if you're a huge afficianado of child pornography. Or anything else illegal, for that matter.
Tuesday, June 03, 2008
Ferguson v. Coregis Ins. Co. (9th Cir. - June 3, 2008)
It's fun to read an opinion in which a particular sentence or analogy appears in its midst totally from left field. Like here.
The case involves insurance coverage, and the question revolves around the appropriate coverage amount. The policyholder says it's $2,000,000, the amount listed on the declarations page. The insurance company says it's $500,000 pursuant to a particular clause that says that, for certain claims, the amount listed on the declarations page is replaced by the "limit of liability per the amount indicated by the Idaho Code § 6-924," which in turn provides that the minimum (but not maximum) amount of coverage is $500,000.
The Ninth Circuit holds that the insurance company's position is erroneous because Section 6-924 doesn't establish a "limit of liability" at all, since it contains no limits, only minimum coverage. Hence the attempt to establish an alternative limit doesn't work.
Here's the random line. And I think it's a great one:
"Section 6-924 simply does not contain any limit of liability any more than would a contract to price season tickets 'per the amount indicated' for Los Angeles’s professional football team."
Psyche! Because, of course, L.A. doesn't have a football team anymore. Which is an awesome -- and totally parenthetical -- slam on the City of Angels.
It's also, I might add, a huge insult -- albeit assuredly unintended -- on the Los Angeles Avengers (and their players!), who are in the Arena Football League and assuredly consider themselves a "professional football team" in Los Angeles.
I'm sure the panel meant by "professional" to mean "NFL". Which was a drafting (or knowledge) error that was particularly funny since the panel held against the insurance company here based upon unclear language (even though, from reading the exclusion, I knew exactly what the insurance company was trying to do) and yet then used unclear and/or erroneous language itself.
Regardless, I loved the "where'd that come from" analogy to the absence of the Rams, Raiders, or any other NFL team in the Second Largest City in America. I wish I knew which judge wrote the per curiam opinion in this one. Because I love the gratutious football reference. Love it.
The case involves insurance coverage, and the question revolves around the appropriate coverage amount. The policyholder says it's $2,000,000, the amount listed on the declarations page. The insurance company says it's $500,000 pursuant to a particular clause that says that, for certain claims, the amount listed on the declarations page is replaced by the "limit of liability per the amount indicated by the Idaho Code § 6-924," which in turn provides that the minimum (but not maximum) amount of coverage is $500,000.
The Ninth Circuit holds that the insurance company's position is erroneous because Section 6-924 doesn't establish a "limit of liability" at all, since it contains no limits, only minimum coverage. Hence the attempt to establish an alternative limit doesn't work.
Here's the random line. And I think it's a great one:
"Section 6-924 simply does not contain any limit of liability any more than would a contract to price season tickets 'per the amount indicated' for Los Angeles’s professional football team."
Psyche! Because, of course, L.A. doesn't have a football team anymore. Which is an awesome -- and totally parenthetical -- slam on the City of Angels.
It's also, I might add, a huge insult -- albeit assuredly unintended -- on the Los Angeles Avengers (and their players!), who are in the Arena Football League and assuredly consider themselves a "professional football team" in Los Angeles.
I'm sure the panel meant by "professional" to mean "NFL". Which was a drafting (or knowledge) error that was particularly funny since the panel held against the insurance company here based upon unclear language (even though, from reading the exclusion, I knew exactly what the insurance company was trying to do) and yet then used unclear and/or erroneous language itself.
Regardless, I loved the "where'd that come from" analogy to the absence of the Rams, Raiders, or any other NFL team in the Second Largest City in America. I wish I knew which judge wrote the per curiam opinion in this one. Because I love the gratutious football reference. Love it.
Chen v. Mukaskey (9th Cir. - June 3, 2008)
Sure, the panel remands this case back to the BIA to make some findings. But the lesson is clear:
Don't lie on your asylum application. And, if you do, definitely don't admit to lying. Continuing to lie is a much, much better strategy.
Don't lie on your asylum application. And, if you do, definitely don't admit to lying. Continuing to lie is a much, much better strategy.
Monday, June 02, 2008
People v. Masotti (Cal. Ct. App. - May 28, 2008)
Not much from the Ninth Circuit and California Court of Appeal today. Or at least not much that I'm desperately itching to talk about. A couple of opinions by both; we'll see what the late afternoon brings (if anything) from the latter.
By contrast, here's an opinion from a couple of days ago about which I definitely had a reaction. And as to which I'm more than willing to shed some paragraphs of virtual ink. Notwithstanding the fact that others may well have -- perhaps entirely validly -- a distinctly contrary view.
To start with: Yes, it's a crime. And we gotta enforce the laws. I agree with all that. Which says a lot.
Still. Can we think of nothing better to do with our lives than to prosecute a Vietnam War veteran who suffers pain in his knees and hip, gets a valid medical marijuana card under California law, grows his own stuff in very limited quantities permitted by the statute, but who makes a mistake and gives a tiny amount of pot to a friend (slash informant) who stops by his house one day and asks for a tiny amount of weed on the grounds that it's his birthday?
I admit that I may be overly sympathetic with the defendant in this one on the legally irrelevant ground that even after the friend/informant offered to pay for the stuff, the defendant refused to accept his money. And the fact that the friend/informant subsequently left a grand total of ten whole dollars on the table (and, later, another five American greenbacks for another "buy") hardly convinces me that this is a guy that we must take down hard lest our nation be inexorably led into the pits of hell. Nor does the fact that the defendant has a grand total of $189 in cash in his entire house lead me to believe that he's the Arellano Felix of marijuana up there in Modoc County.
Fifteen dollars worth of pot from a disabled Vietnam veteran. Ranks right up there with murder and poverty in the scale of obvious social priorities.
By contrast, here's an opinion from a couple of days ago about which I definitely had a reaction. And as to which I'm more than willing to shed some paragraphs of virtual ink. Notwithstanding the fact that others may well have -- perhaps entirely validly -- a distinctly contrary view.
To start with: Yes, it's a crime. And we gotta enforce the laws. I agree with all that. Which says a lot.
Still. Can we think of nothing better to do with our lives than to prosecute a Vietnam War veteran who suffers pain in his knees and hip, gets a valid medical marijuana card under California law, grows his own stuff in very limited quantities permitted by the statute, but who makes a mistake and gives a tiny amount of pot to a friend (slash informant) who stops by his house one day and asks for a tiny amount of weed on the grounds that it's his birthday?
I admit that I may be overly sympathetic with the defendant in this one on the legally irrelevant ground that even after the friend/informant offered to pay for the stuff, the defendant refused to accept his money. And the fact that the friend/informant subsequently left a grand total of ten whole dollars on the table (and, later, another five American greenbacks for another "buy") hardly convinces me that this is a guy that we must take down hard lest our nation be inexorably led into the pits of hell. Nor does the fact that the defendant has a grand total of $189 in cash in his entire house lead me to believe that he's the Arellano Felix of marijuana up there in Modoc County.
Fifteen dollars worth of pot from a disabled Vietnam veteran. Ranks right up there with murder and poverty in the scale of obvious social priorities.
People v. Jackson (Cal. Ct. App. - May 28, 2008)
You might well be troubled by cold-hit DNA cases, as well as peremptory challenges suspiciously directed towards a particular gender or racial group. I know I am.
Nonetheless, I think that Justice Cantil-Sakauye not only is entirely correct in this one, and that defendant's conviction was rightly upheld, but that the underlying case in the trial court is a good example of what should happen in these types of cases. It's a very reasonable, forthright opinion in the Court of Appeal that resolves a case in which the concerns below were carefully considered and addressed by the trial court.
So I liked it. It made me feel good about the system. Notwithstanding the absurd sentence of "160 years to life" awarded to the defendant. Whichever comes first, I guess.
Nonetheless, I think that Justice Cantil-Sakauye not only is entirely correct in this one, and that defendant's conviction was rightly upheld, but that the underlying case in the trial court is a good example of what should happen in these types of cases. It's a very reasonable, forthright opinion in the Court of Appeal that resolves a case in which the concerns below were carefully considered and addressed by the trial court.
So I liked it. It made me feel good about the system. Notwithstanding the absurd sentence of "160 years to life" awarded to the defendant. Whichever comes first, I guess.
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