People v. Moore (Cal. Ct. App. - March 17, 2011)

The Court of Appeal repeatedly tells trial courts not to try to explain the concept of "beyond a reasonable doubt" because it just mucks things up and results in reversals.  Using the immortal words of Paul McCartney John Lennon (oops!) Court of Appeal repeatedly says:  "Let it be."  Read the instruction, let the jury use its common sense with respect to what this means, and move on.

In this case, the trial court -- Michael Knish, a temporary judge in San Bernardino -- didn't do that, and instead gave a lengthy series of examples to the jury about what wouldn't constitute "reasonable" doubt.  He started out by saying that even though the jury couldn't see all of the American flag behind him, since it was creased in various places, and hence it's possible that the flag had the judge's face on it or something, any doubt about whether this was indeed an American flag wouldn't be "reasonable".  He then says that if there was a jigsaw puzzle that looked like President Obama, but was missing a piece of his forehead, a piece for his chin, and a piece for one of his ears, any doubt that it was indeed President Obama similarly wouldn't be reasonable despite the missing pieces.  He finally said that if the jury was planning a party or something in San Bernardino in August at noontime, any doubt as to whether it would be higher than 50 degrees at that point wouldn't be reasonable.

Not exactly the "Let it be" traditionally expected by the Court of Appeal.

It's even worse than this.  There's a Court of Appeal case from 2009 that involved nearly an identical "explanation" in which the trial court similarly tried to explain reasonable doubt by reference to a jigsaw puzzle of the Statute of Liberty with six pieces but two pieces missing -- the face and the upper left corner.  Reversed.  Can't do that.

Plus, here, it's arguably even worse.  The big issue at trial is the judge's reasonable doubt instruction.  The defense counsel makes this issue a central point of his argument (since he's got, as in many cases, very little else to go on).  Saying that the judge was wrong about what counts as reasonable doubt, making arguments based on the judge's "American flag" analogy (claiming that he's actually snipped off a star), etc.  (Ignore for a moment whether it's a really effective defense strategy to take on the judge.)  The prosecution also makes a big deal about this stuff, saying that the defense is wrong, the judge is right, the law is what the judge tells 'em it is, etc.  So this is a central part of the trial.

So what does the Court of Appeal do?

Affirms.

It's a 2-1 vote.  With Justice Ramirez writing the majority opinion and Justice Miller dissenting.

See who you agree with.  And whether the trial court -- and/or the Court of Appeal -- should indeed have Let It Be.

People v. Lee (Cal. Supreme Ct. - Feb. 24, 2011)

One of the problems with killing people is deciding who lives and who dies.  We don't want this decision to be entirely arbitrary -- just left to the discretion of a particular 12-person jury -- so we establish rules.  But wholly apart from whether those rules are applied consistently across juries, there's also a question about the rules themselves.  Do they make sense?

Take this case, for example.

The dispositive issue is whether the murder here occurred during an attempted forcible rape.  If it did, Philian Lee gets killed.  If not, he lives.

There's little doubt that Lee attempted to rape the victim, Melemanunanilanililinokalani Kekaula ("Mele").  She was drunk, nearly passed out, said no, but Lee wouldn't stop (at least immediately).  That's an attempted rape.

But he didn't kill her during the rape.  She said no.  She pushed him off.  He removed himself .  Two witnesses in the same car saw everything.  But then Lee got out of the car, said he was going to "straighten [Mele] out," walked to the other side of the car where Mele was, pulled her out of the car, and moved her to the rear of the car.  The people in the car heard Lee and Mele talking, and heard Lee say something like:  "It's like that, huh?"  Clearly, Lee's not happy that Mele doesn't want to have sex with him.

So he pulls out a gun and shoots her in the head.  Repeatedly.  Killing her.

That's a horrific offense.  Terrible.  Amongst the worst of the worst.

But is it "during" the attempted rape?  Or after?  That's the difference between life and death for Lee.

It's a somewhat tough call.  Not for the California Supreme Court, mind you.  Which says, yep, it's during the rape.  Without dissent.

But let's ask the even tougher question.  Why should it matter?

We know why it does matter.  Because California's rules says it does.  It's special circumstance if it's during the rape.  It's not if it's not.

But why?  Extend the one minute time difference here into one day.  Imagine that Lee doesn't pull Mele out of the car right after the attempted rape, but instead waits an entire day, and kills her because she's refused his desire for sex.  You mean to tell me that's "better" -- less culpable -- than what happens here?

Let's rank order them.  Which of the following is worse:

(A)  During X's rape of Y, Y struggles, and X kills her.
(B)  X tries to rape Y.  X fails.  One minute later, X kills Y.
(C)  X tries to rape Y.  X fails.  One day later, X kills Y.
(D)  X asks Y to have sex.  Y says no.  X promptly pulls out a gun and kills Y.

Which of these is worse?  California says that (A) is death-eligible, the California Supreme Court says that (B) is death-eligible, but neither (C) nor (D) qualify.  You agree?

There are always line-drawing problems.  What's worth 2 years in prison versus 3?  But when the line is life versus death, the consequences of drawing the line in the wrong place multiply exponentially.

In Re B.T. (Cal. Ct. App. - March 16, 2011)

Here's something you don't see every day.

It's a statutory rape case.  Where Social Services takes away the resulting child.

Wait.  That's not that unusual.  So what's weird?

Reverse the genders.  Here the offender is Debra, a 38-year old woman married to someone else, who has sex with her 14- (or 15-) year old neighbor, who's a friend of Debra's elder son.  A child get conceived out of this unlawful union, and based on the statutory rape, Social Services takes the baby away from it mother.  Not only that, but it also takes away Debra's three other children, ages 17, 12 and 9, on the theory that the mother might sexually abuse them as well.  On the theory that if you sleep with your son's friend, you might well sleep with your son as well.

The juvenile court takes jurisdiction over the baby on the theory that he's at risk of sexual abuse, and decides to award full physical and legal custody to Miguel, with monitored visitation by Debra.  So the person who's going to actually raise this baby is his father.  Someone who spends most of his day at school.  In the tenth grade.  Who doesn't know the baby's birthday.  Who has no source of income.  Who has never taken the baby to the doctor and who did not know the name of his pediatrician.  Who, after school, spends two hours playing football and basketball during sports season.  That's the best parent.  Because the mother, after all, is a child molester.

The Court of Appeal reverses.  For reasons that I think are pretty clear.  Which I can't say any better than the author of the opinion, Justice Bedsworth.  So I'll just quote him:

"We reverse. After carefully examining the record, we cannot find substantial evidence to support the juvenile court's jurisdiction over B.T. [the baby] at the time the findings and orders were made. There was no evidence that Debra was likely to abuse or neglect B.T. On the contrary, she had an exemplary track record of child-rearing. While her relationship with Miguel certainly reflected poorly upon her judgment in one area, nothing suggested that it would cause her to neglect or abuse her baby daughter, especially since there was no evidence at all of any past abuse of her three other children, or of any other children. . . .

There is no evidence in the record that B.T. had suffered any serious physical harm or illness or any harm or illness at all while she was in Debra's care after her birth. B.T. was in fine shape when the social worker visited Debra's home on April 12, 2010, even though she was seven weeks premature. Debra's family had had no encounters with SSA before B.T. and the other children were detained. The record of Debra's visits with B.T. after she was detained confirmed that Debra is a loving and experienced mother, well able to take proper care of a small child. . . .

This record contains no evidence that Debra or anyone else ever sexually abused B.T. SSA, however, alleged that Debra's former relationship with Miguel placed B.T. at risk for sexual abuse.

SSA's position assumes an adult woman who has had a consensual sexual relationship with an unrelated 15-year-old boy will probably sexually abuse her infant daughter. This is, of course, a complete non sequitur, so it is not surprising that the record contains no evidence to support this assumption. There was, for example, no expert testimony to this effect. (Cf. In re Maria R. (2010) 185 Cal.App.4th 48, 68 [no scientific authority or empirical evidence cited to support conclusion that man who sexually abuses female child is likely to abuse male child].) If Debra were given to sexually abusing her children, she had three handy before B.T. was born, including two boys. All three older children denied ever being abused, sexually or otherwise; no evidence contradicted their denials or even called them into question. SSA presented no evidence of Debra‟s being accused of molesting another child in the past. The record is devoid of evidence of a risk to B.T. of being molested by Debra.

If Miguel's stories are credited, he was by his own admission a more-than-willing participant in the relationship, which is not surprising with an adolescent boy. Generally speaking, abused children do not repeatedly volunteer to put themselves in harm‟s way. This presents a situation far different from the one SSA proposed. It also presents a situation far different from the facts of the cases cited in SSA's brief to support its theory of threatened sexual abuse, all of which involved adults in some sort of parental role forcing themselves on unwilling and helpless children residing in their homes. [Citations]

We do not wish to be understood as excusing Debra's behavior or minimizing its gravity. In addition to being potentially a serious criminal offense, it was a many-faceted betrayal of people who had every right to trust her – her husband, her children, Elsa, and Miguel, to name the most obvious ones. The Penal Code statutes, designed to punish and deter, are in place to deal with her conduct.

Juvenile dependency proceedings, however, have a different focus: protecting children and serving their best interests, not punishing the parent.  Nothing supports the idea B.T. was at any risk of harm from Debra. Whatever her faults were with regard to Miguel, Debra has taken good care of her children. Her three older children, at least as far as this record reveals, do her and her husband great credit. No evidence presented at the time of the hearing suggested that B.T. would receive anything but the same upbringing and attention from Debra. On the contrary, the evidence showed that before SSA intervened, B.T. was thriving in her care. . . .

[T]he kids were all right. The three older children were well cared for and displayed every indication of having had a secure family life. They gave no hint of feeling any need to be protected from their mother. [Debra's husband], who was understandably angry at both Debra and Miguel, had nevertheless rallied round to protect the children in this crisis. The baby was doing fine. The most searching interviews and home inspections revealed no evidence of any kind of child abuse or neglect, any domestic violence, any drugs, any previous trouble with the law or with social services. SSA, however, became so busy demonizing Debra that it abandoned its role as protector of children and preserver of families. SSA took all four children away, exacerbating the existing family turmoil. The older children were sent to live with their paternal grandparents, who speak no English. (The older children speak no Spanish.) The baby, not yet five months old, went to a county facility, then to Elsa and Miguel's home. . . .

Medical professionals caring for B.T. quite probably would listen more to the mother of three healthy children than to a 16-year-old boy without prior parental experience who believes – as Miguel testified – that a body temperature above 93 indicates fever and who would treat a fever by putting the baby down to rest. Would anyone focused on B.T.’s best interests oppose such a preference? . . . .

Debra made a grave mistake, regardless of whether she or Miguel is telling the truth about their relationship. But depriving B.T. of her mother's care as punishment for this mistake is not in keeping with the purpose of the dependency statutes and is inexplicable in any terms other than misplaced moral outrage."



Though I wonder if Justice Bedsworth's -- or my -- reaction would be different if everything were the same except the genders.  Imagine that it's a 38-year old male and a 14-year old girl.  Same result?

Tough question.  Even for me.Strong stuff.  But also powerful.  To me, anyway.

Khatib v. County of Orange (9th Cir. - March 15, 2011)

Last year, Judge Trott authored an opinion holding that an extremely large pretrial holding facility ("jail") in Orange County was not an "institution" governed by the federal Religious Land Use and Institutionalized Persons Act and that it was thus not a potential violation of that Act to force a Muslim woman to remove her hijab (headscarf).  Judge Wardlaw joined the opinion, and Chief Judge Kozinski authored a characteristically entertaining dissent.  I discussed both the holding as well as the dissent here.

Later that year, the case was taken en banc.  Which I noted was a pretty telling sign, and wrote that I anticipated that the panel's holding would (rightly) be reversed.

Which it indeed was.  Chief Judge Kozinski was -- of course -- on the panel, so you know his vote already.  But it wasn't even close.  11-0.  On a panel that included people like Judges O'Scannlain and Ikuta.  And that didn't include either of the two members of the majority on the panel (Judges Trott and Wardlaw).

It didn't take long, either.  Oral argument was December 13th.  The en banc opinion comes out on March 15th.  Three months.  Which is light speed for an en banc adjudication.

Plus, the en banc opinion isn't authored by Chief Judge Kozinski.  Nor does it use much of his stuff.  That's the downside of authoring something that's idiosyncratic.  Can't cut-and-paste much from it even when the en banc court totally agrees with you.  Judge McKeown instead has to write it herself.  (With a little help from her clerks, of course.)

So some speedy justice here.  In an outcome that's (1) utterly predictable, and (2) that even the Supreme Court would have a hard time reversing.

Helman v. Alcoa Global Fasteners (9th Cir. - March 11, 2011)

Four quick things about this case:

(1)  It's a really well-written opinion.  I'm usually dubious about opinions that say "This is an easy case.  The plain text of the statute is clear."  Usually appeals are more difficult than that.  Especially when, as here, there is another circuit that has expressed a holding on the issue, in a split opinion.  Even more so when, as here, the district court certified the question for appeal as being a close one.

Notwithstanding this prejudice, I'm persuaded by Judge Betty Fletcher's opinion.  Not only is it well-written, but it entirely persuades me.  The statutory language does indeed give you the correct answer.  (Though I concede that the "backup" arguments about legislative history, amendments, etc. definitely helped me to reach this conclusion -- one which I would not have so readily reached had the mere language been the sole genesis of the opinion.)  Well done.

(2)  It's an example of the randomness of life (and litigation).  A Navy helicopter crashes in the Pacific, killing three people.  Everyone agrees that if it crashes three miles or less offshore, the decedents get to sue (under state law).   Everyone agrees that if it crashes twelve miles or more offshore, the decedents can try to sue (under admiralty law), but that's incredibly harder.  Everyone disagrees about what law applies when the crash is between three and twelve miles offshore after Reagan extended our territorial boundary from three to twelve miles in 1988.  So whether plaintiffs win or lose depends upon the happenstance of just how far out to sea they were when they smashed into the water.  Here, 9.5 miles.  A fact also happenstance because this is the distance not to the California coastline, but to Catalina Island.  This is the stuff that matters.

(3)  The next time someone says you can't interpret a statute to make words in the statute meaningless, this holding is a pretty good rejoinder.  Because that's exactly what the Ninth Circuit does.  The statute says that state law is preempted when a crash occurs "on the high seas beyond three nautical miles from the shore of the United States."  Plaintiffs say that it's not the "high seas" because it's within the expanded U.S. territorial limits.  The Ninth Circuit says, nope, the words "on the high seas" are meaningless.  As long as it's beyond three nautical miles, the statute applies.  Sometimes words are indeed redundant.

(4)  Why write dissents, you might ask?  Because sometimes other courts follow them.  Particularly when you are subsequently elevated to the Supreme Court.  Which may make your reasoning sound even more persuasive.  The Ninth Circuit rejects the Second Circuit's holding in the TWA Flight 800 case.  Electing to follow instead then-Judge Sotomayor's dissent.

Lessons of the day.

In Re Marriage of Urbany (Cal. Ct. App. - March 14, 2011)

You'd think that the Court of Appeal wouldn't have to remind a trial court that before you impose sanctions, you have to (1) provide at least some notice, and (2) have the sanctions supported by the record.

But apparently a reminder is indeed necessary.

People v. Smith (Cal. Ct. App. - Feb. 28, 2011)

I had various reactions to this one.

I first read the initial seven pages of the opinion, involving an appeal filed by a serial rapist who was sentenced to life in prison. Those first pages discuss the facts of the rapes.  My reaction?  "I'm incredibly happy they caught this guy and put him in prison.  Hopefully forever."  That feeling persists.

Then I read the next dozen or so pages, involving a legal discussion of the Confrontation Clause and the obligation (or not) to put on the testimony of the actual person(s) who conducted the DNA testing.  This is an incredibly messy area.  The Court of Appeal does a decent job of trying to sort it out.  Including parsing out which Supreme Court justices said what -- and the implications thereof -- in the relevant precedent.  Dry stuff, but important.  So I thought:  "Pretty good.  Especially on a tough topic."  Though you can somewhat tell that there's a bit of a thumb on the scale towards doing whatever needs to be done to uphold this guy's convictions and keep him in prison.

Then I read the next half-dozen pages, starting at page 19.  Which involves a discussion of alleged prosecutorial misconduct in various arguments made by the government during the defendant's trial.  At which point I think:  "Holy crap.  The thumb on the scale is way, way heavy here.  Too heavy.  Not only is the prosecutor doing really bad stuff, but both the trial court and the Court of Appeal are letting him/her get away with it.  Holding that what, to me, are clear errors aren't errors, or that certain statements don't "necessarily" mean what they obviously do, etc.  None of that's pleasing.  At all.  Maybe some of these errors are harmless (or maybe not), but saying that they're okay is just wrong.  Both on the merits as well as because it encourages similar conduct in the future.  So for those eight to ten pages, I'm really not happy with the Court of Appeal and the trial court.  Which I assume is how the opinion is going to end.

But then I get to the final couple of pages of the opinion.  In which, IMHO, the Court of Appeal finally gets it -- as did the trial court -- and does something about it.  Below, the defense counsel moved for a mistrial based on a variety of things the prosecutor said, the vast majority of which the trial court allowed.  That's usually totally a totally useless motion, and even here, the trial court denies the motion.

But the trial court nonetheless says that some of the prosecutor's arguments were indeed "troubling," adding that "no attorney should get so wrapped up in winning that they forget their professional obligations."  It then stated that, for the first time in 17 years on the bench, she felt that the misconduct was sufficiently serious to warrant a curative instruction to the jury.  And, accordingly, instructed the jury:

“Ladies and gentlemen of the jury, before I give you your final set of instructions, I need to clarify certain matters.

As I told you before, statements that the attorneys make during argument [are] not evidence. Your decision must be based on the evidence. The attorneys may properly comment on the evidence and suggest how you should view the evidence, but they must do so in an appropriate fashion.

On several occasions, the District Attorney improperly attempted to appeal to your passions and sympathies. For example, the District Attorney . . . suggested to you that Jane Doe . . . 1 has lived with fear for 15 years and she would now finally get peace. The District Attorney also improperly suggested that we in society have a special place in the criminal justice system for people who rape children.

Moreover, the attorneys may not knowingly misstate the law to you. The District Attorney improperly suggested that you should ignore the law regarding applying the standard of proof beyond a reasonable doubt, telling you that it is a shield for the innocent and not a loophole for the guilty. The determination of guilt must be based upon application of the reasonable-doubt standard, and you cannot separate your determination of guilt from that standard.

As I also mentioned at the outset, this is an emotional case. Your job is to set aside your emotional reaction to the charges and, quite frankly, to set aside any conduct by the lawyers, to view the evidence objectively, to determine if the charge has been proved beyond a reasonable doubt, and then reach your decision regarding the defendant‟s guilt based upon your consideration of the evidence and the law.”
 
Let's hear it for that.  Actually doing something about misconduct rather than simply justifying -- and ratifying -- it.  Even in a big case in which the defendant truly deserves incarceration.  Let's tell the jury what's up and trust it to do the right thing even knowing that what the prosecutor has done is wrong.  I like it.  I liked it a lot.
 
Moreover, just as the trial court was somewhat redeemed in my eyes, so too was the Court of Appeal.  Which added, albeit in a footnote, the following:

"We are not in any way condoning the prosecutor‟s misconduct discussed in Section C. The trial judge was rightfully troubled by the manner in which the prosecutor argued the case. She stated that for the first time in 17 years on the bench, she felt the misconduct was serious enough to warrant a curative admonition to the jury. In three prior appeals, of which we took judicial notice, the same prosecutor was criticized for improper conduct, including the observation in People v. McKenzie (Aug. 1, 2007, A112837) [nonpub. opn.], page 1 that the prosecutor had engaged 'in a troubling and extensive pattern of misconduct.' We direct the clerk of the court to send a copy of this opinion and the Request for Judicial Notice with copies of the three prior opinions of which we took judicial notice to the Alameda County District Attorney Nancy O‟Malley so that she can personally address this matter with the prosecutor so that this type of misconduct does not reoccur."

Good job.  Exactly right.  I might have liked the Court of Appeal to say the same thing without some of the ratification that I saw in Section C.  But at least the footnote was a start.  As well as an express recognition that something was wrong here and worthy of correction.  Both in this case as well as in others.

So lots of thoughts when I read this one.  Some good stuff as well.

California School Boards Ass'n v. State of California (Cal. Ct. App. - Feb. 9, 2011)

Want to see why California state government is such a nightmare?  Here you go.

The contemporary state budget is a shell game.  It's worse than street three-card monte.  If only because it blatently violates the California Constitution, in addition to its inherent dishonesty and horrible consequences.

That the Governor(s) and Legislature have gone along with stuff like this is embarrassing.  Truly.

But, as one might expect, the judiciary isn't going to solve the problem.  Separation of powers and all.

Oh well.  Let's just watch as the state runs itself into the ground.  It's not like this concerns anything important.  Like the education of our nation's youth.

Oops.

In Re Marriage of Kochan (Cal. Ct. App. - March 9, 2011)

I get what Justice Bigelow is saying here.  And agree.  You generally can't "impute" income to a spouse (in a divorce case) just because s/he could make more money doing a different job.  Sure, if they're not doing anything, that's one thing.  But you can't say, for example, that a superior court judge -- to take an setting near and dear to many of our hearts -- can have extra income inputed to him just because he could easily retire and take a better-paying job with JAMS.

There are, however, exceptions.  You can't deliberately underemploy yourself.  You can't leave your doctor job and become a janitor just to spite your wife and reduce your support obligations.  So the "no-imputation" rule isn't nearly as categorical as one might think.  We do indeed impute income on occasion.

Now, for me, I think the dividing line is that a spouse should be able to stay at their existing job if they want.  Maybe there is a limited exception; for example, if -- without good reason -- a spouse refused to accept an obvious promotion, I might be willing to impute income there as well.  So the actual rule is:  "Imputation sometimes.  No imputation other times."  With the general caveat that you get to stay put.

But this is a case that seriously tests that proposition.  Perhaps even justifying another caveat.

Roman Kochan was (and is) the Dean of Library Services at Cal State Long Beach.  He's been at CSULB since 1969, and we know what that means.  Big pension.  One that's worth over $1.5 million.

But that's not all.  It also means that Kochan can retire and still collect a hefty chunk of his salary.  Under a collective bargaining agreement available to Kochan, Kochan is entitled to (1) retire, and thereby draw his full retirement benefits; (2) have those benefits untaxed by Social Security (unlike his current salary); (3) stay at CSULB as a senior librarian, performing the same duties he's doing now, working half-time and obtaining half pay, as well as obtaining benefits.

But Kochan has an even bigger incentive to do so.  If he continues to work, his retirement benefits actually decrease, since he's already maxed out on years of service and is just getting older every day (which thus reduces the value of his benefits).  So there's a huge reason to retire, go half time, and still do your job.

Except for one big thing.  Retiring helps his ex-wife.  Conversely, staying on the job screws her.  Which is what he feels like doing.  Reducing the value of his retirement benefits hoses his ex-wife because she owns part of those benefits, whereas any salary he earns at this point is all his.  Plus, if he retires now, she's fine if he dies.  But if he doesn't retire, and then he dies, she gets a huge decrease in benefits.  So by continuing to work, his last thought on his death bed will be how he's stuck it to his ex-wife one last time.

You may say to yourself:  "Shaun, you're being overly harsh on Kochan.  I'm sure that's not his thought process."  Because who would ever want to harm financially their former spouse, right?  As for whether Kochan's that kind of guy, see if this gives you a little insight:  He recently stopped paying all his debts (including his community debts), and filed bankruptcy.  After the bankruptcy was over, he also stopped paying his mortgage, and still doesn't pay it, figuring he could live in it rent-free until the bank foreclosed on the house.  His ex-wife -- who owned part of the house -- was desperate for him to sell it, but he testified he just "never got around to it."  Oh, and he could pay the mortgage on the house if he were to retire and use his enhanced salary to do so.  But he just doesn't feel like it.

The Court of Appeal reverses the trial court and holds that it can't impute income to Kochan for his failure to retire and obtain an increase in salary on the theory that you can never "force" someone to leave their job for another one.  I understand the principle.  But this may be -- or at least comes darn close -- to an exception.  It'd be one thing if Kochan's retirement stopped him from working.  But he can retain nearly the exact same job even after retiring due to the collective bargaining agreement, albeit half-time.  And you know what?  If he wants to work full-time, go right ahead.  Don't tell me that CSULB will say:  "Since we're only paying you to be here two and a half days, we're not going to let you work all five."  University libraries would love for a little volunteer work.

When the only reason you don't maximize your income is to game the process (or out of spite), I'm not sure that imputation is inappropriate.

U.S. v. Eriksen (9th Cir. - March 9, 2011)

Judge Smith begins his opinion by saying:  "Defendants-Appellants Sigmund Eriksen and Raymond Eriksen appeal their convictions stemming from their misappropriation of employee 401(k) contributions to pay their company’s operating expenses."

Which made me think:  "Hmmm.  I wonder what their sentences will be?  Personally, I think that stealing from your employees' retirement plans is pretty darn serious.  A lot more serious than other crimes; e.g., stealing a slice of pizza.  I bet the ERISA criminal penalty provisions are pretty harsh.  Rightly so."

So I was perhaps surprised to learn, halfway through the opinion, that they were only sentenced to two years of probation, a $20,000 fine, and 240 hours of community service.

I was perhaps even more surprised that, by the time I reached that part of the opinion, I didn't necessarily think that sentence was overly light.  Certainly wasn't too harsh.  But maybe not all that evil.

Check out the facts and see if you agree.

Gould v. Corithian Colleges (Cal. Ct. App. - Feb. 22, 2011)

Want to see concise, speedy, entirely equitable justice?  Here you go.

I couldn't agree more with Justice Gilbert's opinion.  Short.  Fair.  Right.

Love it.

Salomaa v. Honda Long Term Disability Plan (9th Cir. - March 7, 2011)

Fair warning:  I'm about to be a jerk.  But a principled one.

There's a complicated ERISA case.  It gets briefed by the parties and argued in May 2009.  The panel is split.  Two judges write a majority opinion, and one writes a dissent.

It takes a while.  Over a year, actually.  But finally, things are just about finished.  There's some tinkering with the opinions that still needs doing, but it's minor stuff.  Things will be ready to file in mere days.

Then one of the judges dies.

What do you do?  What can you do?

You obviously can draw a new judge.  But all that time and effort has already gone into writing the opinions.  Do we really have to reinvent the wheel?

Does it matter whether the deceased judge was one of the two judges in the majority or not?  Can you count her vote even when she's no longer with us?  Wholly apart from whatever the rules and/or statutes say, does Article III of the Constitution provide an independent limitation on the courts?  Appeals have to be heard and decided by such judges:  Would counting the vote of a deceased member violate Article III?  Do you cease to be an Article III judge upon death?  (The text of the Constitution says that judges shall hold office during "good behavior" -- there's nothing about termination upon death, or whether dying counts as bad behavior.)

Those were my thoughts, anyway.  I'm not sure that I had a fully worked-out vision of Article III constraints.  But I do think that there may be something there.  Take an extreme case:  Three judge panel, briefs and oral argument happen, two judges say they're voting for plaintiff and one says he's voting for defendant, and after nearly finishing the opinion the two plaintiff votes die in an automobile accident.  Would the Constitution allow an appellate court to say that the two votes prevail and hence plaintiff wins?  Would that be a decision by an Article III court, when the only current Article III member voted the other way?

I could go on and on about this (and probably already have), but my tentative conclusion is that (1) there's a constitutional minimum here somewhere, but (2) there's also some degree of flexibility, assuming the creation of rules in advance, about what counts as a "final" decision.  I think that a court could, consistent with Article III, say that dead judges get a vote, as long as their decision was sufficiently clear in advance pursuant to specific rules that said that certain acts weren't merely "tentative" and were intended to be final even in the face of an intervening death.

Why did I think all this, you might ask?  Am I simply feeling a keen sense of mortality today?

No.  I had all those thoughts when I read this opinion.

It's not an extreme case like the two-death example I articulated earlier.  But it did raise the issue.  Since it's very much like the example I started with.  Two judges remain (Judges Kleinfeld and Silverman), and the one who dies is Judge Hall, whose long battle with cancer ended February 26, 2011.

Nine days later, Judges Kleinfeld and Silverman do what one might expect in this situation.  Particularly since they agreed and Judge Hall was the one who dissented.  They publish both their opinion as well as Judge Hall's dissent.  Noting Judge Hall's passing, and her instructions to publish her dissent, in a footnote.

Which is a sweet thing, and entirely appropriate.  They were, after all, already in the majority.  Two judges is a quorum.  The case was decided.  No need to let Judge Hall's wisdom be wasted.

But was it right?

On this I'm of mixed thoughts.  On the one hand, it's a dissent.  So it doesn't "mean" anything anyways.  It's not a holding.  It's just some ideas.  Presumably that's just fine.

Plus, as a practical matter, you and I both know that nothing was going to change in the next nine days.  The case had been under submission for almost two years.  The opinions were written.  All that was left was the final proofreading.  They were essentially as "final" as they were ever going to be.

On the other hand, where do you draw the line?  What about a judge who expresses a view at oral argument and then promptly dies.  Do those votes count as well?  Does it matter which way the vote goes?  Does it matter if this judge never, rarely or often changes his mind?  What about a judge who expresses a view in a bench memo prior to oral argument?  Does that count?  At what point do we invest a decision with sufficient finality so that even when the judge dies, we recognize that vote?  We know what the rule is for juries:  After polling.  What's the appropriate rule in the Court of Appeals?

So those are my theoretical issues.  Backed up, again, by Article III concerns.  We know that we can (and often do) replace a judge who has died with another judge.  I've seen that time and time again in the Ninth Circuit (and elsewhere):  someone dies, a new judge is drawn, the new judge listens to oral argument, and a new vote is taken.  The tougher question is when you can do otherwise.  Was what Judges Kleinfeld and Silverman did here right?

Let me add just one additional piece to the puzzle.  Perhaps the most troubling one.  We actually have a rule about this in the Ninth Circuit.  It's General Order 3.2(g).  Which says:  "If a member of a three-judge panel becomes unavailable by reason of death, disability, or departure from the court and the case is under submission, the Clerk shall draw a replacement by lot."  The case here was clearly under submission.  So it seems like, if you follow the rule, you have to draw a replacement.

Not only that, but there's also a Ninth Circuit opinion about this as well -- one that was generated after Judge Ferguson's sudden death in 2008.  There, Judge Ferguson joined Judge Reinhardt to hold (briefly) that X was unconstitutional (but defendant entitled to qualified immunity), Judge Smith concurred (arguing that X wasn't unconstitutional), the opinion issued, Judge Ferguson died, a replacement was drawn, the replacement (Judge Tallman) agreed with Judge Smith, and Judge Smith (over the objection of Judge Reinhardt) vacated the prior opinion wrote a new one (joined by Judge Tallman) holding that X wasn't unconstitutional.  In that opinion, Judge Smith defended the changed result by arguing that the collaberative process -- including the evaluation of petitions for rehearing -- "strengthens the final quality of those opinions," and cited Ninth Circuit precedent noting that no decision is final until the conclusion of "the period in which either party may petition for rehearing."  Those same principles, as well as General Order 3.2(g), arguably equally apply with respect to Judge Hall.

Don't get me wrong.  I'm not saying that Judges Kleinfeld and Silverman did anything wrong.  They could have said:  "We're deciding the case.  Here's our opinion.  We attach some contrary thoughts from a friend and former colleague.  Consider them if you'd like."  There's no rule, after all, about attachments or exhibits.  There's similarly no pragmatic rule about how an Article III judge decides.  The Ninth Circuit could have drawn a replacement, and that replacement could permissibly say:  "I may have my own views.  But I've decided to articulate Judge Hall's and vote the way she would.  Here's her dissent, which I adopt as my own."  That's clearly a decision by an Article III could, and done according to the rules.

So I thought it worth considering whether Judge Kleinfeld and Silverman's decision was the same one that I would have adopted in their shoes.

U.S. v. Williams (9th Cir. - March 7, 2011)

Dude.  You were convicted of sexual assault when you grabbed a nine-year old and thirteen-year old girl in 2000.  After you were released from your subsequent conviction, your supervised release was revoked when you skipped sex offender treatment sessions and got a job at a fair frequented by children.

Thereafter, you were busted for possession of child pornography that depicted incest and child rape.  Which you admitted turned you on.  A crime for which you were sentenced to the mandatory minimum (fifteen years in prison) plus a lifetime of supervised release.

Did you really think that you had even the slightest chance when you appealed to the Ninth Circuit claiming that subjecting you to a lifetime of supervised release was "cruel and unusual" punishment?  Seriously?

Not a chance.  Not even if Judge O'Scannlain hadn't been the one writing the opinion.  This sentence not only fails to be "grossly disproportionate," but seems just about entirely right.  Indeed, any lesser sentence would raise issues with me.  Not this one.  At all.

Affirmed.

McCollough v. Johnson, Rodenberg & Lauinger (9th Cir. - March 4, 2011)

Sometimes it takes a very fancy attorney to take on a law firm.  Sometimes it doesn't.

Johnson, Rodenberg & Lauinger -- a North Dakota law firm -- files lots of debt collection lawsuits.  For example, in Montana, the firm files an average of five a day.  One of these Montana suits was against Tim McCollough, a former school custodian.  McCollugh opened a credit card with Chemical Bank (which was later purchased by Chase) and fell behind in his payments, ultimately resulting in a charge-off of $3,000.

So the debt gets sold (per se usual) by "Collect America" -- nice name -- which is now known as SquareTwo Financial.  Which hires the law firm to collect.

Most of the firm's lawsuits result in default judgments.  Which is why it's a pretty productive practice.  Perhaps for that reason, the law firm doesn't just sue for $3,000.  But instead sues for almost $10,000, which includes the account balance, interest, attorney's fees, etc.

But this one doesn't end in a default.  Barely.  McCollough files a "response" to the lawsuit, pro se, that says:  "FORGIVE MY SPELLING I HAVE A HEAD INJURY AND WRITING DOSE NOT COME EASY
(1) THE STACUT OF LIMITACION’S IS UP, I HAVE NOT HAD ANY DEALINGS WITH ANY CREDITED CARD IN WELL OVER 8½ YEARS (2) I AM DISABLED I GET 736.00 A MONTH
S.S.I. . . ."  You get the point.  Not exactly the greatest answer in the universe.
 
But guess what?  That does the trick.  Because, indeed, the stacut of limitacions -- or something like that -- has indeed expired.  As a result, not only is the law firm eventually forced to dismiss the lawsuit (with prejudice), but McCollough sues 'em, and obtains statutory damages of $1000, $60,000 in punitive damages, and $250,000 in damages for emotional distress.  As well as costs, attorney's fees, etc.  A judgment the Ninth Circuit affirms.
 
Admittedly, McCollough isn't able to do this entirely on his own -- had he stayed with all-caps pleadings and the like, instead of getting a lawyer, I'm entirely confident the result would have been the exact opposite of what it turned out to be.  So lawyers are important; indeed, critical.
 
But it all started with that first response.  Without which this would be yet another successful debt collection case by a law firm.

People v. Troyer (Cal. Supreme Ct. - Feb. 22, 2011)

I'd have liked the California Supreme Court to at least address the policy consequences of its decision here.

Seems to me that one consequence of this holding is to deter people in an emergency from calling 911.  The 911 call recounted a shooting in which a person had been shot by suspects driving a two-door Chevrolet, and the police responded.  When they got to the house, they saw an injured woman on the front porch who had been shot.  The suspect's vehicle was nowhere in sight, but the owner of the house was tending to the shot woman.  The police ask the owner what happened to the suspects, at which point the owner responds that they fled westbound in a two-door Chevy Tahoe.

The police then ask if anyone's inside the house.  The owner waits for a while in responding, and eventually says "I don't think so."  The police then ask again, and the owner stares at the police for a long time, and then says:  "No."

The police then ask for permission to search the premises.  The owner expressly says "No."

Why do you think he's saying "No?"  The police have a keen idea.  So they search the house anyway, without consent and without getting a warrant.  Allegedly looking for other victims or other people in the house.  But in fact finding drugs.

The Court of Appeal hold the search to be a violation of the Fourth Amendment.  The California Supreme Court reverses.  With Justices Kennard and Moreno dissenting.

Remember that rule the next time you're thinking about calling 911.  There's an upside:  the injured person may receive vital treatment.  But there's also a big downside:  the police may also search your home without your consent.  And when you've got marijuana in there, that may potentially result (as here) in a prison term.

Which may make someone think twice.  Which the relevant social consequences.  Which seems to me to be something at least worth mention.

Gularte v. Pradia (Cal. Ct. App. - March 3, 2011)

Even if it's not signed by two witnesses (as required by the Probate Code), if you dictate a will to someone, they write it down, you sign it, and several people see you do all this, that's enough for a valid will.  So holds the Court of Appeal.

Now, admittedly, in the present case, the testator did something else as well.  In front of the witnesses, he also got out a copy of his old will, urinated on it, and burned it.

But I'm pretty sure that's optional.

Cabrera v. E. Rojas Properties, Inc. (Cal. Ct. App. - Feb. 24, 2011)

Here are some bar examination questions for you.  Not a real ones.  I made them up.  (Okay, they're a real questions.  With real answers.  But as far as I know, they're not on the Bar.)  See if you can get them all correct:

P is injured by D.  P goes to the hospital, which bills P $50,000 for the medical services it renders.  P sues D, and the jury finds that D is entirely responsible for the medical expenses incurred by P.  No other damages are alleged or sought.

Question (1):  Assume that P has heath insurance and that P's insurance company pays the hospital $50,000 in full satisfaction of the debt.  P's out-of-pocket losses are thus $0.  Given these facts, P will be entitled to how much at trial?
(A)  $50,000.
(B)  $0.

Question (2):  Assume that P has health insurance and that P's insurance company pays the hospital $30,000 in full satisfaction of the debt.  P's out-of pocket losses are thus $0.  Given these facts, P will be entitled how much at trial?
(A)  $50,000.
(B)  $30,000.
(C)  $20,000.
(D)  $0.

Question (3)  Assume that P has no health insurance, but that she is able to negotiate with the hospital, which accepts $25,000 from P as full payment for the medical services it provided.  Given these facts, P will be entitled to how much at trial?
(A)  $50,000.
(B)  $25,000.
(C)  It depends on whether the negotiation took place before or after trial.

Got your answers?

I hope you got (1) right.  The correct answer is (A).  That's the collateral source rule.  Could even be on the Bar.

Question (2) is more difficult.  The Court of Appeal holds here that the answer is (B).  But that seems troubling to me.  Not necessarily wrong, but maybe wrong, particularly for what such a holding would mean for Question (3).  A similar issue is currently pending before the Califonria Supreme Court in Howell.  Seems to me like the Court of Appeal might have wanted to hold the present case pending Howell rather than reasoning from first principles and incurring transaction costs to both the judiciary as well as the parties.

Question (3) seems the toughest.  The collateral source rule suggests that the right answer is (A).  The Court of Appeal's decision seems to suggest that the right answer is (B).  But under the Court of Appeal's decision, in practice, the correct answer is probably (C).  Since if the negotiation is before trial, we know that the losses are only $25,000, so (as here) the recovery should only be this same amount, since the hospital was willing to accept this amount in full satisfaction.  Just like with insurance.  But if the negotiation is after trial, there's been no deal yet, so P gets $50,000.  In which case (C) is the right answer.  Moreover, it suggests that what we should instruct the jury at trial is not to decide how much the hospital billed, but "What is the amount that you find that P will likely have to pay as a result of this bill?  Will she be able to settle the bill for a lesser amount?  How good of a negotiator is she?"  Which in turn seems silly.

Did you get all the answers right?

They're tough questions.  Even for those of us that have been in practice for a while.  They don't seem quite fair.  Even for a bar examination like California's that's the toughest in the nation.

We'll see how the California Supreme Court answers Question (2) shortly.  But for now, it's (B).  And if the Supreme Court agrees, I hope it has the guts to answer Question (3) as well.

Sonic-Calabassas-A, Inc. v. Moreno (Cal. Supreme Ct. - Feb. 24, 2011)

You get more 5-4 decisions in the United States Supreme Court than 4-3 decisions in the California Supreme Court.  Here's a classic example of the latter.

It's about "Berman" hearings; basically, wage claims by an employee in front of the Labor Commissioner.  There are lots of advantages of such hearings.  At least for the employee.  So the question is whether you can waive those rights as part of an arbitration agreement, or whether such a waiver is instead against public policy.

The Court holds in favor of the employee, concluding that they're invalid.  Given that holding, you can guess who are the 4 and who are the 3.  The latter being Justices Chin, Baxter and Corrigan.

The majority opinion is authored by Justice Moreno.  Likely his last 4-3 opinion, and perhaps one of his last opinions ever.

Holding in favor of -- fittingly enough -- a guy named Moreno.

People v. Superior Court (Salter) (Cal. Ct. App. - Feb. 24, 2011)

George Salter gets committed to Atascadero State Hospital.  After he's served his time, the medical director at Atascadero seeks to keep him there, believing him to be a mentally disordered offender.  So the State files the appropriate charges.  Thereafter, Salter gets reviewed by two independent experts.

The first expert says, nope, Salter's fine.  He should be released.  Though a second expert disagrees.

At which point the medical director at Atascadero says, after reading the expert's reports, well, I guess we were wrong about Salter.  I agree that at this point, he should be released.

So most everyone thinks he should be freed.  Including the director of the hospital.  So the trial court lets him go.

The Court of Appeal reverses.

Nope.  Even though the evidence may be fairly strongly one way, the People are still entitled to a trial.  And to keep Salter in involuntary treatment in the meantime.  (Which is also why the Court of Appeal granted a stay of Salter's release.)

U.S. v. Watson (9th Cir. - Feb. 23, 2011)

I'm not going to complain about Judge Milan Smith's opinion in this case. which holds that you're still a fugitive (for purposes of the period of federal supervised release) even if you're arrested on state charges.

But I would like to say that I'm not all that impressed with federal supervised release if federal authorities fail to supervise -- or catch -- you when, as here, you're arrested eleven different times during this period.

Sure, these arrests were by state (rather than federal) authorities.  Still.  The federal government's incapable of running the record of a guy who's on supervised release to see if he's been arrested anywhere?  Really?  Wow.

Impressive.

Alaimalo v. United States (9th Cir. - Feb. 28, 2011)

"Never give in.  Never surrender."

That's generally something that Winston Churchill is thought to have said.  His actual quote was somewhat different.  But expressed a similar thought.  (That quote does come from Galaxy Quest.  A dweeb movie favorite.)

I thought of that quote because it should be the new motto for Vaatausili Alaimalo.  Who was convicted of importing methamphetamine into the United States and given a life sentence.

You might think that would bring someone down.  As I'm sure it did.  But that didn't stop Alaimalo.  He filed a direct appeal, claiming that he wasn't guilty because he just "imported" meth from Guam to California, and since both of those places are in the United States, that doesn't count as "importing" the drug.  But he lost on direct appeal.  In 1998, the Ninth Circuit rejected this argument, in an unpublished opinion.  (This was not at all surprising, since there was a Ninth Circuit case on point that said that that this still counts as importation.)

But Alaimalo isn't deterred.  He files a pro se habeas petition in 1999.  He loses in the district court.  The Ninth Circuit affirms -- this time in a published opinion -- in 2002.

Then, in 2003, the Ninth Circuit rules en banc that shipping drugs from one U.S. location to another doesn't count as "importation," overruling several prior Ninth Circuit decisions to the contrary.  Prompting, no doubt, a loud cheer from all the California prisoners with the first name of Vaatausili.

So, in 2005, Alaimalo files another habeas petition.  Seeking relief based on the new Ninth Circuit case.  A holding that makes him "actually innocent" of the offense for which he was convicted.

But the district court dismisses the petition because he didn't raise it in his first habeas petition, the one that the Ninth Circuit dismissed in 2002 (there, he raised only ineffective assistance of counsel claims, and didn't raise the "importation" issue, which was the subject of binding adverse Ninth Circuit precedent).  Alaimalo tries to appeal this dismissal, but his appeal is untimely, and the Ninth Circuit dismisses the appeal in 2006.

But Alaimalo isn't going to let six straight adverse decisions -- three from the district court, three from the Ninth Circuit -- stop him.  So later in 2006, he files another habeas petition.  Raising the same "importation" claim.  Seventh time's a charm?

Nope.  District court dismisses it, holding that Alaimalo could have (but didn't) raise those claims in his first habeas petition.  Alaimalo appeals.  Eighth time's the charm, right?

Not for him.  Ninth Circuit affirms in September 2008, in a three-paragraph unpublished disposition.

Some people would give up at this point.  Not my man Alaimalo.  Who files yet another habeas petition.  Raising the same claim.  District court again dismisses it (Number Nine), and then refuses to grant Alaimalo a certificate of appealability.  So he's surely done at this point.

Not quite.  He appeals yet again.  And, this morning on Time Number Ten, prevails.  The Ninth Circuit holds that he's in fact "actually innocent" of the offenses he's identified and wasn't required to raise this issue in previous habeas petitions because there would have been no point -- there was adverse controlling precedent on point, and we don't require people to bang their heads against the wall (or clog up the courts) just to preserve issues on the miniscule chance there will eventually be an en banc decision overruling that authority.  So Alaimalo wins.

Prompting, no doubt, an even bigger cheer from Vaatausili.  As well as reminding me of another movie line:

"Defendant:  But you graduated law school six years ago. . . . What have you been doing since?
Lawyer:  Studying.  For the Bar.
Defendant:  That's a lot of studying.
Lawayer:  Well, to be honest with you, I didn't pass it on my first time out.
Defendant:  That's okay, you probably passed it the second time.
Lawyer:  Nope.
Defendant:  Third time's a charm?
Lawyer:  Not for me it wasn't.  For me, six times was the charm."

But, as with Alaimalo, everything works out in the end.  My Cousin Vinny obtains an acquittal.

So you can remember whichever quote you'd like.  Sometimes persistence pays off.  Don't necessarily take nine straight rejections as the final word on the matter.  Particularly when you're serving a life sentence in prison and have very little else to do.

Don't think, however, that there's not another side to this story.  There is.  For one thing, there's a dissent:  Judge Korman, sitting my designation from the Eastern District of New York, doesn't like the grant of relief.  So even in victory, there are still some naysayers.

But even beyond this, Alaimalo doesn't exactly get everything he's looking for.  Sure, he gets several life sentences for importation reversed.  Which is nice.  But he's a three-striker who's got other life sentences for simple distribution.  Those are final and not reversed.  So he gets relief after ten tries.  But it's somewhat small solace.

So maybe the analogy isn't really to Churchill saying "Never give in, never surrender . . .," since that guy eventually won the war.  Maybe it's more like Hitler saying the same thing as he's heading to the bunker.  Uplifting, I guess, but not necessarily of much practical or normative assistance.

So learn whatever lesson you'd like from today's opinion.  Like many things, it's open to interpretation.

Hibbs v. Allstate Ins. Co. (Cal. Ct. App. - Feb. 24, 2011)

An insured's car gets damaged, and the damage is covered by insurance.  The insurer says it'll cost $6,200 to repair the vehicle.  The insurance policy says that the insurer can either pay the $6,200 or repair the vehicle.  The insured says she'd rather have the money than the banged-up (albeit repaired) vehicle.  The insurance company doesn't car.  It repairs the car and gives it back to the insured, rather than giving them the money like they wanted.

The Court of Appeal explains that there's an 1867 case from New York that says this is just fine:  that the insurer can do whatever it wants.  However, it also notes that "modern cases,"including cases in the twentieth century from Missouri and Colorado, hold that the insured has a right to get the money if she prefers, notwithstanding the policy language.  The insured should be able to get the money rather than have that money spent on a repair she doesn't want.

I very much liked one part of the Court of Appeal's opinion.  Where Justice Gilbert says:  "The parties cite no California case on point, and we have found none.  There will be one now."

Awesome.  Love it.  Caused a visible grin to appear on my face.

But I don't like the Court of Appeal's holding.  Which agrees with the New York case from 1867.  Letting the insurer do whatever it wants even if it is against the interest of the insured.

Justice Gilbert doesn't give a persuasive reason, in my view, for allowing such a result.  Sure, the policy says so.  But that didn't stop Colorado and Missouri.  And we find tons of things against public policy.  Particularly when insurance policies are at issue and when what the insurer wants frustrates the legitimate desires of the insured.  The only thing beyond the mere policy that Justice Gilbert comes up with is an unelaborated thought that an insurer might want to repair a vehicle rather than giving an "unsafe" (unrepaired) vehicle to the insured.  But come on.  They're not going to drive this thing, which couldn't be driven anyway.  And even if they did, no way the insurance company would be liable.  That's not an actual reason.

By contrast, I could think of tons of reasons why the insured might prefer the money.  And why, for public policy reasons, we should prefer to allow such recovery (instead of repair) as socially beneficial.  Perhaps the insured fears that the repairs won't be safe, and so won't drive the vehicle even if repaired.  Perhaps the insured thinks that the insurer has erroneously valued the vehicle, and rather than file a lawsuit (with resulting transaction costs), thinks he can recover more for the car if she takes the repair money and sells the unrepaired car for scrap than accepting a repaired car and selling it to someone else.  Perhaps the insured can repair the vehicle himself for less than the $6200, or has a friend that can do it for less, and wants to pocket the difference.  None of these things hurt the insurer.  All help the insured.  They should be allowed.  So this is one of those rare instances where California law, rather than leading the pack, radically lags behind it.  Following an outdated, anti-consumer opinion from 1867 in New York rather than the weight of modern -- pro-consumer -- authority.

And that makes me sad.

So I liked the thought.  Just didn't like the result.

P.S. -  Wanted to also mention that, two paragraphs after the paragraph I liked, the court begins a sentence with:  "Th court stated . . ."  Oops.  Even spell-check should have caught that one.

U.S. v. Lynn (9th Cir. - Feb. 23, 2011)

You can look at this case in one of two ways.

The first way is the government's way.  The defendant downloaded child porn.  He's a sicko.  He deserves whatever punishment he receives.  The trial court sentenced Lynn to 17 and a half years in prison.  Entirely appropriate.  Could (and perhaps should) have been even more.

The second way would take a different approach.  The defendant indeed downloaded child porn off of Limewire.  But he says that he was downloading tons of porn, and that he just accidentally downloaded kiddie stuff.  A possibility, though maybe he was actively looking for it instead.  Regardless, the guy is 21 years old.  Not a scumbag.  Criminal history I.  No record.  Sentenced to 17 and a half years in prison.  Almost as long as he has been alive.  Plus federal supervised release for life.  For downloading free stuff the download of which didn't directly contribute to anyone being harmed.

Which of these views you take, I think, affects your resolution of the doctrinal inquiry at issue in the appeal.  Lynn moves for acquittal because he says there's no proof that the files moved through interstate commerce, which is an element of the federal offense (and likely a constitutional requirement as well).  On the theory -- an undeniably true one -- that it could have been his next-door neighbor's computer he got the files from, or someone in-state; on Limewire, it's almost impossible to tell.  So no proof beyond a reasonable doubt.

The Ninth Circuit rejects that argument.  Holding that even if this file didn't travel in interstate commerce, it's sufficient to show that the original video was once shipped interstate.  Even though that happened long ago and it's not that video, but rather a distinct file, that the defendant is charged with possessing.  So the fact that the child was videotaped in a different state is alone sufficient to prove movement in interstate commerce.

The Ninth Circuit's holding, in my view, is motivated by a political belief and a practical reality.  The belief is that child pornography is a big problem.  The practical reality is that if we require more that what the Ninth Circuit does, it's difficult or impossible to prove guilt.

Now, whether that should matter to the interpretation of a statute -- backed by constitutional dictates -- is a different question.  But I think it's clear that it in fact does.  Perhaps the Ninth Circuit shouldn't have been as worried as it clearly was, since after all, defendants like Lynn could always be charged under state law.  But that wasn't enough.  The panel wants the federal law to be effective.  It isn't repelled by the sentence.  It's not willing to rely on state prosecutions.  It's willing do what's necessary in order to make sure the federal law is effective.

One could have different views on whether that's the right approach.  But I think, if everyone's honest, that's what's surely transpiring here.  Were this not a child pornography case, I'm not at all sure the Ninth Circuit would have the same willingness to manipulate the statutory/constitutional requirement.  Maybe it would.  But I think it's a lot easier to do so when it's kiddie porn.  Which has few defenders.  As amply reflected by both the sentence and holding here.

Fleischer Studios v. AVELA (9th Cir. - Feb. 23, 2011)

Want to know the history of the "Betty Boop" character, as well as its current copyright status.

Here you go.

A neat little story.

P.S. - So is the appeal.  Be sure to check out the trademark section of the opinion.  Notice that the court repeatedly finds dispositive controlling Ninth Circuit authority that neither side cited.  Ouch.

People v. Murtishaw (Cal. Supreme Ct. - Feb. 22, 2011)

Ugh.

This one continue's today's theme of being of two minds.

On the one hand, you have defendant's offense.  A triple murder.  Senseless.  Horrible.  Despicable.  The victim impact evidence is particularly disturbing.  That's pages 2 through 8.

One the other hand, you have the mitigation evidence.  A genuine religious conversation.  A perfect disciplinary record -- incredibly unusual -- for 24 solid years.  A radical change from the mentally disordered drug abuser (who's family history was replete with institutionalizations and mental problems) who killed those three person.  A seemingly different person now that he's not using PCP.

But, as one might imagine, the offense and victim's impact evidence is more compelling to the jury.  To the first jury, who sentenced Murtishaw to death in 1978.  A sentenced reversed by the California Supreme Court in 1981.  To the second jury, who sentenced Murishaw to death again on remand.  A sentenced affirmed by the California Supreme Court but reversed by the Ninth Circuit on habeas in 2001.  And, finally, to the third jury, who yet again sentences Murtishaw to death.

Needless to say, the California Supreme Court unanimously affirms.  And so Murtishaw remains on death row for 33 years and counting.

Estate of Bernard Shapiro v. U.S. (9th Cir. - Feb. 22, 2011)

I occasionally teach a class called "The Law of Love."  If I taught a class called "The Tax Law of Love," this would assuredly be a case I'd assign my students.

Thankfully, I don't.  Especially because even after thinking about it for quite a bit, I'm not sure what the right answer should be.

It's your basic palimony case, but with a twist.  Bernard Shapiro and Cora Jean Chenchark live together for 22 years but never married.  When Bernard steps out with another woman, they break up.  At which point Cora files a palimony suit.  Needless to say, Bernard's rich, and supported Cora during the relationship, and feels like Cora's already gotten her due (and more).  Whereas Cora feels like she cooked, cleaned up after the maid, and provided love and support under an express and implied contract that they'd pool their assets.

The case goes to trial.  The jury finds for Bernard.  Cora appeals.  While the appeal's pending, Cora settles for a million bucks.

You'd think that'd be the end of it.  But here's the twist:  Bernard died prior to the palimony trial.  And the settlement was to dismiss the palimony claim as well as Cora's challenge to Bernard's will.  Now, you might still think that none of this matters.  The lawsuit's over.  True enough.

But Bernard's estate paid estate tax.  Of over $10 million.  After the whole thing with Cora was concluded, the estate filed a federal tax refund claim for approximately $5 million.  Claiming that the estate was actually worth less because Cora had a claim against the estate -- her palimony suit -- that diminished the value of the estate.

The trial court granted summary judgment to the U.S. on multiple grounds, holding (1) Cora never had a valid claim since all she gave was love and support, and that's not adequate consideration; (2) that there was in fact no contract between the parties (consistent with the jury's verdict); and (3) that the estate was in any event judicially estopped from arguing otherwise since all of the above was exactly what they claimed in the underlying state court palimony trial.  Successfully.

The Ninth Circuit reverses.

Judge Silverman writes the majority opinion, holding that Cora's cooking etc. constitutes valid consideration under Nevada law and that there's a genuine issue of material fact about the value of Cora's claim, which may in fact entitle the estate to a refund.  Judge Tashima dissents, contending that regardless of state law, federal tax law doesn't allow deductions for palimony claims where the only contribution is (as here) the type of stuff one normally gives to one's companion.

I'm torn.  On the one hand, Judge Silverman seems right that we look towards Nevada law to see if Cora had a potentially valuable claim, which (at the time of Bernard's death) she did.  She might, after all, have won at trial.  If she had a claim, intrinsically, that diminishes the estate.  Hence the tax rightly due.

On the other hand, Judge Tashima seems right that federal tax law could easily take a different approach than state palimony law, and prefer (as it manifestly does) marriages.  It's one thing, Judge Tashima says, to say on the merits that palimony should be a valid cause of action.  That protects the companion, effectuates the intent of the parties, etc.  But it's another thing to provide a tax deduction for that sort of stuff.  Federal law might well not do so.  Perhaps for very good reasons, including the fact that allowing such claims would open up a vast area of potential tax-minimizing collusion.  You and I live together for 20 years, I find out I have a terminal illness, you file a palimony lawsuit (which I promptly settle), and boom, no estate tax.  Or do the same thing after I die.  Seems to me like creative and/or loving companions could find pretty good ways to avoid taxes if these sorts of things indeed create deductions.

Now maybe that's the inherent nature of taxes.  Rife for collusion.  But I'm not sure.

Given my uncertainty, I inherently struggle with trying to create a "solution" -- even if it's a nonjudicial one.  But can't come up with anything rock solid.  For example, one thought I had would be to create various presumptions.  Like "The rule is that you automaticaly split your assets (or income) after five years of living together unless you contract in writing otherwise."  Or perhaps have a "check-the-box" form that you have to file as part of your taxes (and disclose to the other side) if you claim to own someone else's assets/income as part of a palimony contract that you believe exists. 

There's part of me that wants to solve this problem in advance.  When the parties are actually together.  To force them to expressly confront -- and mutually disclose -- the difficult problem of "What happens if we split up?  What's our agreement?"  Because they should.  Even though it may be a difficult conversation.  If only because the alternative -- which is having that agreement after you split up, or (as here) catch your partner with another person -- is much worse (and much less accurate) than dealing with the issue in advance.

But is the candle worth the wick?  It's the rich person's fault if they don't get a signed contract, right?  Their bad.  At the same time, don't we want to protect the poorer partner if in fact there's an agreement, if only to make sure it's in writing and hence clearly going to be enforced?  Don't we also want to avoid unjustly enriching people (perhaps like Cora here) who didn't, in fact, have a contract, but who are able to get past summary judgment and/or persuade a jury and/or extort a settlement?  In short, aren't their public policy interests even beyond the private interests of the parties?  Don't we want to do what's right?

As I said in the beginning, and as one can surely see, I'm torn.  I'm not sure what the answer is.  Either in the present case or more generally.

Which makes it interesting.  Even if I'm not, in fact, teaching The Tax Laws of Love.

In Re David R. Thompson (9th Cir. - Feb. 21, 2011)

I haven't seen the news reported anywhere -- and checked both the wires and the Ninth Circuit's web site --but I learned this morning (from a reliable source) that Judge Thompson apparently died over the weekend.

This is a great loss.  Judge Thompson spent his career in San Diego, practicing law here for almost thirty years (after getting out of the Navy) before being appointed to the Ninth Circuit in 1985.  I didn't always agree with Judge Thompson, but I nonetheless often respected his approach.

He will be missed.

POSTSCRIPT - The Ninth Circuit confirms Judge Thompson's passing here.  More, presumably, on Tuesday.

Borger v. DMV (Cal. Ct. App. - Feb. 17, 2011)

A statute (and related regulation) says that you can't drive with a blood alcohol content of .08 or more. When a chemical test says that your number is .08 or above, that creates a rebuttable presumption that you've violated the law.

A guy gets stopped and blows a .08.  His expert testifies, without rebuttal, that the particular test used here has a range of .02; in other words, that someone who blows a .08 might actually have a .06 (or .10).  The trial court credits that expert's testimony and, on that basis, concludes that there's insufficient evidence that the guy actually drove with .08 or more.

The Court of Appeal reverses.  It holds that since the regulations allow the particular testing device used here, to hold otherwise would conflict with this approval and require everyone to essentially blow a .10 rather than a .08.

It's an interesting holding.  My first thought was that it was silly.  The mere fact that a device is approved doesn't mean that its results are automatically valid, much less precise.  After all, everyone admits that the guy might well have driven with a .06.  The Court of Appeal's holding essentially rewrites the statute to say that it's illegal to drive with a .06 or more as long as a particular test says that it's a .08.  Plus it inherently means that some individuals who are in fact innocent will be found guilty.  Imagine, for example, that the .06-.10 range is evenly spaced; in other words, of those who the test kicks back a .08, twenty percent actually have a .06, twenty percent have a .07, etc., all the way up to a .10.  That means that the Court of Appeal's holding will result in innocent people being found guilty 40% of the time.  Wow.  That just seems way, way too much.  The whole ten (or a hundred) guilty people going free before one innocent person is convicted and stuff.

But my second thought was, well, if the Legislature feels like doing that, it can, right?  Which arguably is exactly what it did when it created the presumption.  My complaint, I thought, is perhaps with the presumption, not the Court's holding.  And the presumption is rebuttable, after all.  So maybe the only thing the Court is saying is that if the only thing you have is the inherent error, that doesn't suffice to rebut the presumption.  Mind you, that will result in all the untoward consequences I identified.  But that's a complaint to the Legislature, not the Court.  Maybe that's right.

But then my mind went off on a third tack.  Okay, so if the way to defend the Court's holding is to focus on the statutory presumption (and I think that's indeed the only way one could defend it), then what are we really accomplishing here?  Presumably in the vast majority of cases there's something other than the mere expert's testimony.  The testimony of the police officer in what she saw, the testimony of a defendant as to how much he drank, etc.  Imagine that the officer says that the guy blew a .08, the expert testifies that there's a .02 range, and the defendant says (as I imagine they all would) that "I felt fine. I only had two or three drinks."  At that point, it seems to me that the presumption doesn't do the work required to sustain a guilty finding.  Everyone admits the .08 could be a .06.  There's some evidence (from the defendant) that it was actually a .06 and .07.  And we know that it's true a huge number of times; if the error is linear, as much as 40% of the time.  At that point we'd have to acquit, right?  Prompting all the consequences the Court of Appeal flees from.  (As well as making even more dubious its decision to review this stuff de novo rather than for substantial eveidence.)

So my last thought is either that the Court of Appeal's decision is either dubious or holds only in the rare case in which there's no evidence at all other than the test results.  Which is perhaps what it should be.  Because we should be wary, I think, of convicting and punishing innocent people.  Even if doing so advances administrative ease.

Baccei v. United States (9th Cir. - Feb. 16, 2011)

This couldn't be more right.

I'd usually not be too psyched about the IRS piling on a $60,000 penalty in addition to another $70,000 of interest.  Particularly when they result from an alleged mistake in filling out a form.

But here it seems entirely appropriate.  At least to me.

Easy case.

Rosencrans v. Dover Images (Cal. Ct. App. - Feb. 16, 2011)

What's the difference between negligence -- which you can waive in advance -- and gross negligence, which you can't?

The best definition we can come up with is that gross negligence requires an "extreme" departure from the reasonable standard of care.  Which doesn't really help much.  It's a total "I know it when I see it" standard.  Sure, we give it a label:  "extreme" negligence.  It's "extreme".  But we might as well just say "gross".  Means the same thing.  Whatever we say.

It gets even more complicated, as here, in the primary assumption of risk setting.  Where ordinarily you can't sue anyway, and we put an added layer of difficulty on top by adding the advance release.

Not that I think there's anything wrong with the Court of Appeal's holding.  Or even inherently vague common law standards.  But I do think it's worth noting that there are a nontrivial number of areas in the law where our best definition of a concept is one that's essentially meaningless.  The obscenity definition advanced by Justice Stewart gets insulted all the time.  But we nonetheless use essentially that same principle about as often -- all the time.

In Re Marriage of Cantarella (Cal. Ct. App. - Jan. 11, 2011)

I always thought that to get legally married in California, you had to (1) get a license, (2) perform the ceremony, and (3) mail in your certificate.

Apparently I was wrong.  Or so holds the Court of Appeal.  Even when you deliberately don't do (3), you're still married.

This case arises because Joseph and Tanya Cantarella got "married" in 1991 in front of a judge, and all was well with the thing, except after they mailed in their certificate and had it twice rejected for various defects, Joe and Tanya decided that rather than send it in a third time and have it accepted, they'd "stay" formally unmarried in order to get the tax benefits.  So they never registered the marriage.  A decade later, they got married "for real" and registered this time.  Then in another decade, they got divorced, and the question arose regarding how long they'd been "actually" married -- since this mattered for spousal support.  Joe said they'd only been "really" married since 2000, whereas Tanya says the 1991 ceremony did the trick.

The Court of Appeal agreed with Tanya.  Sending in your certificate, and registering your marriage, is helpful.  But even if you deliberately refrain from doing so -- and even if you get material benefits therefrom, including claiming that you are "single" on your tax return -- the marriage still counts.

So maybe here's another money-making possibility as well.  Get married, have the ceremony, and get all the benefits.  But don't mail in the form, at which point the state doesn't know that you're married, and claim to be single on your tax returns.  Thus obviating the marriage penalty while still getting all the benefits.

You just have to make sure you're spouse is up for it.  Which, at least on my end, I'm quite positive is not the case.  Sandy's no Tanya.

In Re Jack C. (Cal. Ct. App. - Feb. 15, 2011)

What?!  An actual Indian child?!

Yep.

I've probably read over a thousand ICWA (Indian Child Welfare Act) dependency cases over the years.  This is the first one I can recall in which the child was actually an eligible member of a Tribe.

It's rare.  But it happens.  Which is why we have the statute.

In Re Price (Cal. Supreme Ct. - Feb. 14, 2011)

Forgive me if you've heard this one before:  A prosecutor in a death penalty case is sitting at a bar . . . .

Oh, wait.  It's not a joke.  That's actually the entire subject of this opinion.

The prosecutor at a death penalty case was indeed sitting at a bar -- more accurately, the bar at the Waterfront Cafe in Eureka -- with a friend (the wife of another deputy DA).  This was during the trial of a death penalty case being tried by the prosecutor.  Sort of a wind down, I guess.

The prosecutor and his friend's wife had some martinis and some appetizers, and during their 90 minutes or so at the bar, one of the jurors in the pending death penalty case -- who was working as a cook at the restaurant -- handed the duo some menus.  The prosecutor recognized the juror, and didn't talk to him.  But after a little alcoholic lubrication, as he was leaving the bar, the prosecutor paid his tab to the bartender, added a $10 or $20 tip, and said:  "Here, split this with [the juror] for a guilty verdict."

Oops.

He probably shouldn't have done that.  Make that:  He definitely shouldn't have done that.  Even though I'm positive he was joking, and had a big smile on his face.  If only because Eureka's a small town.  And, small town or not, people talk.  And when people talk, other people listen.  Which is why the story quickly gets back to the defendant's attorneys, from multiple different sources.  Leading the defendant to file a habeas petition once he gets sentenced to death.

Ultimately the California Supreme Court unanimously concludes that it was a joke and wasn't prejudicial.  A holding that can easily be understood.

Particularly in the context of the case at hand.  In which the defendant was sentenced to death because he killed, among other people, the father of an inmate who had testified against the Aryan Brotherhood.  Can't get to the inmate (who's in protective custody), kill his family.  Nice.  Gonna get you sentenced to death every time.  Particularly when you send a note to your Aryan Brotherhood leader after the murder that says:  "That's took care of.  Everything went well."

Oh yeah.  Defendant also previously stabbed an African-American inmate while incarcerated in San Quentin who had been disrespectful to the Aryan Brotherhood.  And had previously engaged in robbery, escape and kidnapping.  Plus, to top things off, in addition to killing the father, the defendant had beaten a woman to death during a burglary.

Yeah.  The defendant's really going to get a lot of sympathy.  From both the jury and from the California Supreme Court.  Definitely want to give that guy relief.

So the lesson for today is not to bribe a juror.  Or even to joke about it.  Especially in a death penalty case.

Because even if the California Supreme Court ultimately rejects the habeas petition, guess what?  It'll be a long -- as well as expensive -- process.  The habeas petition here was filed in 1998.  It took until today for the Court to reject the petition.  So over a dozen years of delay in execution of the sentence.  Not even counting what will assuredly be the lengthy delays that will additionally arise from the inevitable federal habeas petition.

The joke is less funny when it results in twenty years of contested litigation, I figure.  Not worth it.  Just pay the bill and leave.

County of Los Angeles v. Hill (Cal. Ct. App. - Feb. 10, 2011)

It doesn't matter that a permit costs $11,500, that Los Angeles has never (ever) approved a permit, that the permitted zones are only in inaccessible places, and a plethora of other facts don't prove that Los Angeles County's permitting regulations for medical marijuana clinics are preempted by the Compassionate Use Act.  So holds the Court of Appeal.

I don't know why the plaintiffs could possibly think that Los Angeles County is simply refusing to allow clinics anywhere they'd be viable, in violation of the Compassionate Use Act.  I'm sure that Los Angeles is simply trying to zone them in the most appropriate places. 

Which is presumably also why, five weeks before oral argument on the appeal, Los Angeles County passed another ordinance -- effective twelve days before the argument -- that expressly declares that if the Court of Appeal holds its permitting scheme to be preempted or otherwise unlawful, Los Angeles County hereby categorically bans all permits for medical marijuana clinics.

Oh, wait.  That just totally shows their true intent in the existing permitting scheme.  Never mind.  Not relevant, according to the Court of Appeal.

P.S. - Another interesting fact:  In light of the passage of the new ordinance, all parties -- both plaintiff and defendants -- moved to dismiss the appeal.  But the Court of Appeal denied this unopposed joint request.  A fact that is mentioned nowhere in the opinion, and that is evident only from examination the last several entries on the docket sheet.

In Re Alexander A. (Cal. Ct. App. - Feb. 10, 2011)

A juvenile vandalized a 1992 Honda Accord LX.  At the time of the restitution hearing, there's that exact model for sale on Craigslist for $1,795.  And that's the asking price.  For the whole entire car.

The average nondealer purchase price for that vehicle in good condition is $2,605.  If it's in awesome condition (yeah, right; remember, it's a 1992 Honda), maybe you could get $4,205.  The highest price that anyone can make up for a brand new 1992 Honda Accord LX is $5,300.  In short, to get a totally pristine new vehicle to completely replace your vandalized car would be, at most, $5,300.  And getting a totally new entire vehicle that was like the one the kid vandalized would probably run you around $2,000.

But the owner of the car gets an "estimate" to "repair" the vehicle that's for over $8,200.  So that's what the trial court orders in restitution.  And requires the kid's parents (not just the kid) to pay this amount.  Despite the fact that a totally new car would cost less than this, and despite the fact that the owner admits that he has no intention of actually getting the car repaired.  Which would, after all, be economically irrational.

The kid (and his parents) appeal.  And the Court of Appeal holds, yep, that's a totally fine restitution order.  It doesn't at all result in a "windfall" to the victim.  Even though he's getting over $8200 for a vandalized car that was probably worth less than $2000.

It's a case from San Diego.  So that's apparently the law.

In light of that fact, I'd just like to tell anyone who happens to be listening that my current ride is a 2000 Nissan Maxima GXE, and it's parked just outside the University of San Diego.  It's in crappy shape, has over 100,000 miles on it, and even Kelly Blue Book says it'll only fetch around $2,000 at trade-in.

So if you'd like to vandalize it, and pay me over $8,000 to "repair" it (even though I totally won't), feel free.  Don't worry.  It's not a windfall.  Just listen to the Court of Appeal.

Yep.  Getting $8,000 for a $2,000 car wouldn't feel like a windfall to me at all.

Let me know if you want directions.

UPS Supply Chain v. Quantas Airlines (9th Cir. - Feb. 10, 2011)

You see the caption, and then you see that there are not one, not two, but four different amicus briefs.  From places as diverse as Washington DC, Los Angeles, Seattle, and Buenos Aires, Argentina.

Must be a pretty cirtical and interesting case, eh?

Then you read the first paragraph of the opinion.  "We must decide whether the Montreal Convention’s two-year statute of limitations on 'the right to damages' in connection with international air cargo shipments applies to suits seeking indemnification and contribution."

Zzzzzzzzzz.

Unfortunately, the rest of the opinion is about as exciting as the first paragraph.  Fortunately, however, I can summarize the court's holding in one word:

No.

So there you have it.  The most critical case decided by the Ninth Circuit this year.  If not this century.

In Re Joshua S. (Cal. Ct. App. - Feb. 8, 2011)

I just got back from San Francisco last night.  During my (limited) free time there, I occasionally found myself wondering:  "Where's the best place in this town to get some seafood?"  To answer that query, there are a number of different sources; Zagats, Yelp, etc.

But for those visitors with slightly different interests than mine, perhaps they occasionally wondered:  "Where's the best place in this town to get some crack?"  There are, however, few publicly-available sources that provide such information.  For example, putting "Best Places To Buy Crack in San Francisco" into Google provides a variety of hits about Best Buy stores in that city.  Helpful if you want to add some personal electronics to your crack purchase, but presumably not what the searcher is generally looking for.  So where to go to find the desired information?

Fear not.  The Court of Appeal now gives everyone the answer.

Justice Kline writes an opinion in a juvenile probation case.  It's otherwise unremarkable, but it contains the following on page three, at which point the Court of Appeal relates that -- according to San Francisco police officers -- "more base rock cocaine gets sold and used in that area, that corner (the northwest corner of Ellis and Jones), that intersection than any block in San Francisco."

Wow.  The Court of Appeal even tells you which corner at Ellis and Jones has the most sales.  Talk about precision!

Here's a map.  (You can also street-level-view the thing.   And notice that even as the Google camera passes, in broad daylight, there's a healthy number of people "hanging out" on that corner.)

So that's a public service.

It's also an amazing coincidence.  Because during my trip to San Francisco, I stayed at a hotel on Nob Hill, and yesterday morning, decided to walk (rather than take a cab) to do my oral argument at the California Supreme Court.  The Court is on McAllister Street, so I walked up California Street, took a left on Jones, and about halfway down, guess which intersection I unwittingly transgressed?  Yep.  Ellis and Jones.  The crack cocaine capital of San Francisco.

I don't recall whether I was on the Northwest or Northeast corner.  I can attest, however, that this particular part of the Tenderloin is, well, a bit run-down.  I can't personally affirm that it's Crack Central, since that's not the way I choose to get amped up for an oral argument.  All I can say is that there weren't a lot of other people there dressed in suits.

So a neat little factoid published by the Court of Appeal.  On the same day I walked right past where it's talking about.