You can sue for negligent infliction of emotional distress when you watch a house burn (knowing that your daughter is in it) even though you don't know why the house burned; i.e., that it was the result of defendant's negligence as opposed to a candle, lightning, etc.
But you can't sue for NIED when you actively watch your husband die in a scuba accident if, at the time, you didn't know that it was the defendant's product that caused him to die (as opposed to, say, a heart attack).
So holds the Court of Appeal.
P.S. - So the winner in this case is Forvaltningsbolaget Insulan. Try saying that three times fast.
P.P.S. - One of the attorney losers in the case is Lars C. Johnson. Though the caption of the opinion lists him as "Lars Christian". Might want to change that.
Friday, January 11, 2013
Thursday, January 10, 2013
Arkansas Teacher Ret. Syst. v. Mozilo (9th Cir. - Jan. 10, 2013)
You see a fair number of Ninth Circuit cases certifying questions to the California Supreme Court, the Arizona and Nevada Supreme Courts, etc. Places in the Ninth Circuit. It even certifies questions on occasion to courts in the CNMI and the like.
But you rarely see the Ninth Circuit certify questions to courts outside the Ninth Circuit.
You have now.
The Ninth Circuit certifies this one to the Delaware Supreme Court. As you might imagine from the location (Delaware) and the caption -- litigation between a pension system and the former head of Countrywide -- it's a corporate shareholder (derivative) action. So Delaware law governs.
And the Ninth Circuit would like to know what it says. From the horse's mouth rather than figuring it out for itself.
Your move, tiny state that borders the Atlantic. A big state that borders that Pacific awaits your words.
But you rarely see the Ninth Circuit certify questions to courts outside the Ninth Circuit.
You have now.
The Ninth Circuit certifies this one to the Delaware Supreme Court. As you might imagine from the location (Delaware) and the caption -- litigation between a pension system and the former head of Countrywide -- it's a corporate shareholder (derivative) action. So Delaware law governs.
And the Ninth Circuit would like to know what it says. From the horse's mouth rather than figuring it out for itself.
Your move, tiny state that borders the Atlantic. A big state that borders that Pacific awaits your words.
Wednesday, January 09, 2013
Castrijon v. Garcia (9th Cir. - Jan. 9, 2013)
It's an immigration case. Sure, Judge Reinhardt's on the panel. He's even writing the opinion. So you have a keen sense from the get-go how the case is going to come out.
But the question presented is whether kidnapping is categorically a crime of moral turpitude. Kidnapping. Come on. Even Judge Reinhardt has to answer that question in the affirmative, right?
Nope.
Well then, certainly someone's going to dissent, right? Judge Clifton? Randy Smith?
Wrong again.
Which makes one -- or at least me -- say: "Really? Again: Kidnapping?! Not a crime of moral turpitude? Seriously?"
So I read the opinion. At the outset, pretty skeptically.
But, that said, I'm on board for a lot of what Judge Reinhardt says. Both in this opinion and in others he's authored. What counts as "moral turpitude" is totally vague. What counts as "categorically" an offense that involves such a quality is even more amorphous. We're talking about social mores here -- things that are in a constant state of change -- and inherently vague ones at that. So picking out some offenses amongst others and calling them "inherently' turpitudinous is really hard. That's how I initially approach the subject, and I'm sure Judge Reinhardt agrees.
But dude. We're talking about kidnapping here. Not sodomy. Not something that changes over time. We are talking about a crime that we've always -- always -- taken extremely seriously, and that I'm confident will always be a serious crime. Everywhere.
Still, we've got to remember that calling something a named offense isn't always accurate. Sometimes what you think a particular crime entails is actually far different from the statutory elements. So we have to look deeper. Which Judge Reinardt does.
But this just heightens my initial impression. Judge Reinhardt repeatedly notes that the statutory elements of simple kidnapping in California don't require that one "intend" to do harm to a victim, or intend to do bad things to them once you get them to where you're taking them. Fair enough. I get that.
The statute nonetheless requires that the defendant take the victim by force or by instilling fear. So we are talking about forceful kidnappings. Well, geeze. Seems to me those are wrong. Seriously wrong. When you force someone to do something against their will, I have a keen sense that's included in the category of offenses which the oldsters called malum in se and what we might generally call intrinsically wrong. Forcing someone to do something against their will: You can't get much more wrong than that, right? That's why we generally have big sentences for the underlying crimes.
Look, Judge Reinhardt is smart. He nonetheless starts to sway me a bit. He says -- correctly -- that these offense need to be really serious before they count as moral turpitude. Seriously serious. Does kidnapping really count? As I'm reading the opinion, I still tend to think so. But he compares it to murder. To things that are really, really serious. Which makes me think: Well, okay, maybe. "Simple" kidnapping may be bad, but I agree that one might view it as qualitatively different than those other offenses. Murder's worse than taking someone against their will. Though both are bad.
(Mind you, this argument only gets Judge Reinhardt so far. Murder's worse than kidnapping, which argues in favor of Judge Reinhardt's holding. But incest is a categorically turpitudinous crime -- presumably even consensual adult incest between 68 year old siblings who never met before they did the dirty deed -- and if you ask me whether kidnapping is "worse" than that, my answer's pretty clear. So the examples go both ways on that issue.)
So we've got to figure out the dividing line. One that separates the "bad" from the "really" bad. Judge Reinhardt has one, and it's the crux of his argument. He says that categorically turpitudinous offenses either involve vulnerable victims -- e.g., children -- or an intent to injure or an actual injury. That's indeed what Ninth Circuit precedent says. So Judge Reinhardt's best argument is that simple kidnapping doesn't always involve vulnerable victims (because even competent adults can be kidnapped), doesn't require an intent to injure (true), and doesn't necessarily involve injury either. So there you go. Doesn't fit the definition.
But hold on a second. What about that last part? Necessary injury.
What Judge Reinhardt says -- persuasively -- is that it still counts as kidnapping even if you don't (for example) cut the victim during a knife with the process. So if only physical harm counts as an injury, Judge Reinhardt seems right.
But I'm not at all sure that's in fact accurate. We routinely count emotional harm as an injury, and often seriously. Take rape, for example. Some rapes seriously injure the victim physically, to be sure. But the biggest impact may be psychological. How it makes the victim feel. The helplessness. The requirement that one do something without one's consent. The violation of autonomy. We think of those things as very serious consequences -- and (appropriately) very seriously punish such offenses -- and constantly call them "injuries".
Those same injuries inherently exist with kidnapping. Helplessness. Nonconsensual acts. Violation of autonomy. Every forceful kidnapping -- every single one that meets California's statutory requirements -- results in those harms to the victim.
This seems to me a big problem with the majority's analysis. The dividing line between offenses is a vague one, to be sure. But if you apply the line that precedent has drawn, and that Judge Reinhardt discusses at length, the "actual injury" portion seems pretty strongly to point in the direction of finding these offenses to be categorically qualify as crimes of moral turpitude. It seems to me that Judge Reinhardt's analysis assumes sub silentio that we're only talking about purely physical, demonstrable harm. But we're not.
One other thing as well. Which, in a concrete way, somewhat highlights this point.
To support his position, Judge Reinhardt has to come up with actual ("non-hypothetical") kidnapping offenses in California that wouldn't count as moral turpitude. He does. His primary example is a protest case in 1972 in which black students at a college forcibly surrounded some school administrators and led them across the campus (against their will) to talk to the college president. Judge Reinhardt notes that the California judiciary affirmed the defendants' conviction in that case, and accordingly argues that the statutory elements of the crime in California thereby include conduct that doesn't involve vulnerable victims or actual injury.
One could certainly take that view. The school administrators in that case were indeed physically unharmed. No one hit them or punched them or sliced them with a knife.
But Judge Reinhardt notes, in passing, that some students "pushed" the administrators, and also "made threats" to make them continue moving. These acts are of no small importance, since remember that the statute categorically requires the use of force and/or threats of physical harm.
Which made me go back and look up the underlying case. Which mentions that the "threats" to which Judge Reinhardt obliquely refers to entailed the students telling the administrators that "if the man comes in, we're going to do you" (i.e, if the police come in, we're going to kill you) and, during the forced march, telling the victims "move along whitey or we're going to stick you" (i.e., keep moving or we will stab you). (That the victims took these threats seriously was no surprise, and in fact, during the forced trek, one black student in fact punched a white student in the jaw.)
Now, one could say -- as Judge Reinhardt does -- that since the students did not actually stab or kill the victims, there was no actual injury, and that the example establishes that simple kidnapping need not entail a "serious" crime. But think about it another way. From the perspective of the victim. You're taken against your will by a crowd of students that's actively threatening to kill you. You fear for your life. Reasonably.
What about that as "injury"? I wouldn't be surprised in the slightest if you had trauma. PTSD. Might not even be able to work as a teacher ever again. And even if you "toughed it out," being subjected to such incredible stress and the underlying inherent violation of your autonomy is injury. Always. Every time. A violation that I think does, in fact, count as a serious injury.
So I'm not sure I take away from Judge Reinhardt's examples what he wants me to take away. (The same, by the way, goes for his other example, which involves a parent kidnapping his adult child who has gone to live with her boyfriend against his wishes. Yeah, there's no intent to injure. But from the perspective of the 18-year old victim, who had a right to live with -- and perhaps even marry -- her boyfriend if she wanted, and without her father's consent, there's definitely injury nonetheless. Inherently.)
All of this is a very long way of saying that I wonder if the panel really gets this one right. Judge Reinhardt recognizes at the end of his opinion that his result might be somewhat counterintuitive, and I give him props for that. He's right. He's also right that just because something might seem wrong at first glance doesn't mean that it is. That's why we reason these things out. That's why we think deeply.
But I've done so, I think. And despite the fact that, at points, Judge Reinhardt's opinion had me persuaded (or nearly so), in the end, I think he might be wrong. I agree the line's fuzzy. Very much so. But if the line is what it appears to be, then I think kidnapping might well fall on the other side of it.
Which is a different way of saying that sometimes one's initial impressions are wrong. But sometime's they're actually right.
P.S. - Let me end with a simple point. One that someone tracks the above analysis. Everyone agrees that rape is a crime of moral turpitude. What about sexual assault? Someone grabbing someone's breasts or crotch over their clothes. It can happen to adults, and both genders, so no vulnerable victim, and might also occur from a person who doesn't intend harm and not involve "physical" injury. Does only rape counts as a turpitudinous offense, or does sexual assault count as well? They seem darn similar to me, despite the fact that the latter may well involve less physical harm. The offense is the assault on bodily integrity. That's why it's malum in se. Ditto, in my view, for kidnapping.
But the question presented is whether kidnapping is categorically a crime of moral turpitude. Kidnapping. Come on. Even Judge Reinhardt has to answer that question in the affirmative, right?
Nope.
Well then, certainly someone's going to dissent, right? Judge Clifton? Randy Smith?
Wrong again.
Which makes one -- or at least me -- say: "Really? Again: Kidnapping?! Not a crime of moral turpitude? Seriously?"
So I read the opinion. At the outset, pretty skeptically.
But, that said, I'm on board for a lot of what Judge Reinhardt says. Both in this opinion and in others he's authored. What counts as "moral turpitude" is totally vague. What counts as "categorically" an offense that involves such a quality is even more amorphous. We're talking about social mores here -- things that are in a constant state of change -- and inherently vague ones at that. So picking out some offenses amongst others and calling them "inherently' turpitudinous is really hard. That's how I initially approach the subject, and I'm sure Judge Reinhardt agrees.
But dude. We're talking about kidnapping here. Not sodomy. Not something that changes over time. We are talking about a crime that we've always -- always -- taken extremely seriously, and that I'm confident will always be a serious crime. Everywhere.
Still, we've got to remember that calling something a named offense isn't always accurate. Sometimes what you think a particular crime entails is actually far different from the statutory elements. So we have to look deeper. Which Judge Reinardt does.
But this just heightens my initial impression. Judge Reinhardt repeatedly notes that the statutory elements of simple kidnapping in California don't require that one "intend" to do harm to a victim, or intend to do bad things to them once you get them to where you're taking them. Fair enough. I get that.
The statute nonetheless requires that the defendant take the victim by force or by instilling fear. So we are talking about forceful kidnappings. Well, geeze. Seems to me those are wrong. Seriously wrong. When you force someone to do something against their will, I have a keen sense that's included in the category of offenses which the oldsters called malum in se and what we might generally call intrinsically wrong. Forcing someone to do something against their will: You can't get much more wrong than that, right? That's why we generally have big sentences for the underlying crimes.
Look, Judge Reinhardt is smart. He nonetheless starts to sway me a bit. He says -- correctly -- that these offense need to be really serious before they count as moral turpitude. Seriously serious. Does kidnapping really count? As I'm reading the opinion, I still tend to think so. But he compares it to murder. To things that are really, really serious. Which makes me think: Well, okay, maybe. "Simple" kidnapping may be bad, but I agree that one might view it as qualitatively different than those other offenses. Murder's worse than taking someone against their will. Though both are bad.
(Mind you, this argument only gets Judge Reinhardt so far. Murder's worse than kidnapping, which argues in favor of Judge Reinhardt's holding. But incest is a categorically turpitudinous crime -- presumably even consensual adult incest between 68 year old siblings who never met before they did the dirty deed -- and if you ask me whether kidnapping is "worse" than that, my answer's pretty clear. So the examples go both ways on that issue.)
So we've got to figure out the dividing line. One that separates the "bad" from the "really" bad. Judge Reinhardt has one, and it's the crux of his argument. He says that categorically turpitudinous offenses either involve vulnerable victims -- e.g., children -- or an intent to injure or an actual injury. That's indeed what Ninth Circuit precedent says. So Judge Reinhardt's best argument is that simple kidnapping doesn't always involve vulnerable victims (because even competent adults can be kidnapped), doesn't require an intent to injure (true), and doesn't necessarily involve injury either. So there you go. Doesn't fit the definition.
But hold on a second. What about that last part? Necessary injury.
What Judge Reinhardt says -- persuasively -- is that it still counts as kidnapping even if you don't (for example) cut the victim during a knife with the process. So if only physical harm counts as an injury, Judge Reinhardt seems right.
But I'm not at all sure that's in fact accurate. We routinely count emotional harm as an injury, and often seriously. Take rape, for example. Some rapes seriously injure the victim physically, to be sure. But the biggest impact may be psychological. How it makes the victim feel. The helplessness. The requirement that one do something without one's consent. The violation of autonomy. We think of those things as very serious consequences -- and (appropriately) very seriously punish such offenses -- and constantly call them "injuries".
Those same injuries inherently exist with kidnapping. Helplessness. Nonconsensual acts. Violation of autonomy. Every forceful kidnapping -- every single one that meets California's statutory requirements -- results in those harms to the victim.
This seems to me a big problem with the majority's analysis. The dividing line between offenses is a vague one, to be sure. But if you apply the line that precedent has drawn, and that Judge Reinhardt discusses at length, the "actual injury" portion seems pretty strongly to point in the direction of finding these offenses to be categorically qualify as crimes of moral turpitude. It seems to me that Judge Reinhardt's analysis assumes sub silentio that we're only talking about purely physical, demonstrable harm. But we're not.
One other thing as well. Which, in a concrete way, somewhat highlights this point.
To support his position, Judge Reinhardt has to come up with actual ("non-hypothetical") kidnapping offenses in California that wouldn't count as moral turpitude. He does. His primary example is a protest case in 1972 in which black students at a college forcibly surrounded some school administrators and led them across the campus (against their will) to talk to the college president. Judge Reinhardt notes that the California judiciary affirmed the defendants' conviction in that case, and accordingly argues that the statutory elements of the crime in California thereby include conduct that doesn't involve vulnerable victims or actual injury.
One could certainly take that view. The school administrators in that case were indeed physically unharmed. No one hit them or punched them or sliced them with a knife.
But Judge Reinhardt notes, in passing, that some students "pushed" the administrators, and also "made threats" to make them continue moving. These acts are of no small importance, since remember that the statute categorically requires the use of force and/or threats of physical harm.
Which made me go back and look up the underlying case. Which mentions that the "threats" to which Judge Reinhardt obliquely refers to entailed the students telling the administrators that "if the man comes in, we're going to do you" (i.e, if the police come in, we're going to kill you) and, during the forced march, telling the victims "move along whitey or we're going to stick you" (i.e., keep moving or we will stab you). (That the victims took these threats seriously was no surprise, and in fact, during the forced trek, one black student in fact punched a white student in the jaw.)
Now, one could say -- as Judge Reinhardt does -- that since the students did not actually stab or kill the victims, there was no actual injury, and that the example establishes that simple kidnapping need not entail a "serious" crime. But think about it another way. From the perspective of the victim. You're taken against your will by a crowd of students that's actively threatening to kill you. You fear for your life. Reasonably.
What about that as "injury"? I wouldn't be surprised in the slightest if you had trauma. PTSD. Might not even be able to work as a teacher ever again. And even if you "toughed it out," being subjected to such incredible stress and the underlying inherent violation of your autonomy is injury. Always. Every time. A violation that I think does, in fact, count as a serious injury.
So I'm not sure I take away from Judge Reinhardt's examples what he wants me to take away. (The same, by the way, goes for his other example, which involves a parent kidnapping his adult child who has gone to live with her boyfriend against his wishes. Yeah, there's no intent to injure. But from the perspective of the 18-year old victim, who had a right to live with -- and perhaps even marry -- her boyfriend if she wanted, and without her father's consent, there's definitely injury nonetheless. Inherently.)
All of this is a very long way of saying that I wonder if the panel really gets this one right. Judge Reinhardt recognizes at the end of his opinion that his result might be somewhat counterintuitive, and I give him props for that. He's right. He's also right that just because something might seem wrong at first glance doesn't mean that it is. That's why we reason these things out. That's why we think deeply.
But I've done so, I think. And despite the fact that, at points, Judge Reinhardt's opinion had me persuaded (or nearly so), in the end, I think he might be wrong. I agree the line's fuzzy. Very much so. But if the line is what it appears to be, then I think kidnapping might well fall on the other side of it.
Which is a different way of saying that sometimes one's initial impressions are wrong. But sometime's they're actually right.
P.S. - Let me end with a simple point. One that someone tracks the above analysis. Everyone agrees that rape is a crime of moral turpitude. What about sexual assault? Someone grabbing someone's breasts or crotch over their clothes. It can happen to adults, and both genders, so no vulnerable victim, and might also occur from a person who doesn't intend harm and not involve "physical" injury. Does only rape counts as a turpitudinous offense, or does sexual assault count as well? They seem darn similar to me, despite the fact that the latter may well involve less physical harm. The offense is the assault on bodily integrity. That's why it's malum in se. Ditto, in my view, for kidnapping.
Tuesday, January 08, 2013
U.S. v. Olsen (9th Cir. - Jan. 8, 2013)
This opinion is exceptionally timely. For me, anyway.
It's a neat little habeas case. Kenneth Olsen gets convicted in 2003 of knowingly possessing a biological toxin for use as a weapon. No small crime, and certainly not a routine one. Olson gets sentenced to over a decade in federal prison.
Most of the facts of the case are undisputed. Essentially, Olsen gets keenly interested in stuff like the Anarchist's Cookbook and stupidly leaves a printout of the Terrorist Encyclopedia at his work, which his co-workers find and freak out. His employer then cans him after a search of his desk reveals a ton of other printouts, plus some test tubes full of various stuff. Including castor beans. Which is used to make ricin, a potent toxin. (Fans of Breaking Bad will note many parallels here, as various episodes have chemist Walter White making ricin as well.) So the FBI gets involved, charges are brought, and we are where we are.
Olsen's defense is a simple one. He admits to making the stuff and doing lots of internet searches, but says that he was just intellectually interested in the stuff. Creepy, perhaps, but not a felony. He didn't posses the ricin "for use as a weapon" -- and that's what he's charged with. Yes, he looked at how to make it, how various poisons are undetectable, etc. But he wasn't actually going to use it. That's his defense, and if he's right, he's innocent.
But the U.S. has a pretty good piece of evidence against him. One they play up a lot during the closing argument. The U.S. has an expert who says that he tested an Equate pill that was found in Olsen's possession and that pill tested positive for ricin. Why put the ricin on a pill if you're not in fact intending to slip it to someone? Gotcha. You're guilty.
You can see why the U.S. highlights this testimony. 'Cause making ricin itself might be a lark, but putting it on a delivery system -- well, that's more than just curiosity.
There's only one problem. It comes to light long after Olsen's conviction that the expert who tested the pill is a hack. He's got tons of problems with his tests, and his tests (e.g., DNA tests) have been conclusively shown to have put innocent people in prison. Plus, it turns out that the relevant AUSA knew about the ongoing investigation into this expert at the time of Olsen's trial, but didn't reveal all he knew. Hence there's a very strong Brady claim. One made even stronger by the fact that Olsen has an expert on habeas who says that the expert almost certainly cross-contaminated the Equate pill with ricin, hence leading to the erroneous finding.
So the central question for the Ninth Circuit becomes: Is this damning to Olsen's conviction? It is a "reasonable possibility" that destroying the expert's credibility about this crucial piece of evidence may have changed the result of the trial?
The Ninth Circuit says: "No." The evidence against Olsen, the panel says, was "overwhelming". What was overwhelming about it? His lengthy -- super lengthy -- research over the internet. Only someone who was actually planning to kill someone would have done that. No way that someone does all this stuff merely because they're (weirdly) curious about this stuff. No way at all.
To which I have two things to say.
First, I'm far from sure about this. That may seem super weird for Ninth Circuit judges. Who likely do not share similarly morbid curiosities. But there are a lot of strange dudes out there, my friend. A plethora. With weird interests that you can't possibly imagine. People do strange stuff in their spare time. Things you can't comprehend. Is it really the case that no one would take it upon themselves to make ricin just to see if they could? Who would spend hours and days researching the internet just to see if they could make an undetectable poison? No one? Beyond a reasonable doubt?
Don't forget, by the way, that as far as I can tell, the prosecution presented no evidence whatsoever about anyone who Olsen had a grudge with. No one that he actually disliked or wanted to kill. It's possible, of course, that Olsen had hidden hatreds, or grandiose plans. But couldn't a reasonable jury perhaps find that he did all these internet searches about undetectable poisons just because he was (in whatever way) crazily curious about the subject matter? Not because he was actually planning on killing someone? There's not even a chance that a reasonable jury could have so concluded? Really?
Which brings me to my second point. Why this case is so personally timely for me.
Yesterday afternoon, I read this story, which was on the front page of Yahoo!. About a million-dollar lottery winner who died the day after he cashed his lottery ticket. The coroner who conducted the resulting autopsy ruled that this death was caused by hardening of the arteries, and into the ground the guy went. Many months went by and, for whatever reason, a relative kept pushing for more tests on the body. Finally the authorities relent, and -- just to shut the relative up -- they do more tests, and throw in a random test for cyanide into the mix. Bingo. He guy was indeed killed by a fatal dose of odorless, colorless cyanide. Murder.
Which made me think: Wow. What a series of events. Amazing.
But it also made me think: Who committed the murder? A wife? Business partner? Stranger? Who has access to cyanide? Seems like a pretty tough thing to get a hold of, right. Or to make.
So what do I do?
Search the internet. For a fairly lengthy period of time. About how to make cyanide. About what places (allegedly) sell it. About whether a determined person with minimal scientific training could in fact get their hands on cyanide in order to kill someone. And about whether (and how) a death by cyanide would be revealed in standard -- or even ordinary expanded -- autopsy.
In other words, if you looked at my internet logs for yesterday afternoon, I bet you that they would look stunningly like Olsen's internet logs. Coincidentally enough.
So much so, in fact, that as my wife and I were driving home from dinner last night (it was our "date night"), I randomly mentioned to her that I was doing a lot of research into cyanide that afternoon, so that if anyone actually died as a result of it anytime soon, I was worried -- I said jokingly -- that I'd be the primary suspect.
Then I read today's Ninth Circuit opinion. Freaky.
The point is, I had -- and have -- utterly no intent to kill anyone, anywhere when I did my "extensive" internet search yesterday on the practicalities of how to manufacture cyanide and whether it works as an undetectable poison. None. But that same evidence, the Ninth Circuit says today, constitutes such "overwhelming" evidence of an intent to use a product as a weapon that there's no possibility at all a jury could possibly come to an opposite conclusion.
Are there some difference between what Olsen did and what I did? Sure. I spent an afternoon, and he spent a year. I didn't actually make the stuff, and he did.
But in my view, that may well simply goes to the extent of the intellectual (or morbid) interest, not to intent. I was only slightly interested in cyanide, whereas Olsen was clearly very interested in ricin.
But interest doesn't necessarily equate to a desire to kill someone. Or at least a jury might want to hear evidence about who the defendant allegedly might have wanted to kill before concluding that, beyond a reasonable doubt, a defendant did indeed secretly want to kill someone.
And if they learned that the Equate pill that the U.S. said was indeed full of ricin did not, in fact, have any ricin on it, a jury might just conclude that they're not morally certain that the defendant intended to kill someone by slipping them that pill.
Am I say that Olsen's unquestionably innocent? Nope. Maybe he's a potential mass murderer. Or single murderer. Maybe -- despite having a year to make ricin -- he just finished actually making it and the authorities grabbed him up just before he was about to kill someone.
But maybe -- just maybe -- he was a tinkerer. He searched the internet and made the stuff and thought of himself as a modern Walter White, but never actually intended to kill anyone.
One thing I'm confident about. The fact that your internet logs demonstrate extensive searches into a particular undetectable poison and the means to manufacture it don't prove that you're out to kill someone.
That I know. Firsthand.
It's a neat little habeas case. Kenneth Olsen gets convicted in 2003 of knowingly possessing a biological toxin for use as a weapon. No small crime, and certainly not a routine one. Olson gets sentenced to over a decade in federal prison.
Most of the facts of the case are undisputed. Essentially, Olsen gets keenly interested in stuff like the Anarchist's Cookbook and stupidly leaves a printout of the Terrorist Encyclopedia at his work, which his co-workers find and freak out. His employer then cans him after a search of his desk reveals a ton of other printouts, plus some test tubes full of various stuff. Including castor beans. Which is used to make ricin, a potent toxin. (Fans of Breaking Bad will note many parallels here, as various episodes have chemist Walter White making ricin as well.) So the FBI gets involved, charges are brought, and we are where we are.
Olsen's defense is a simple one. He admits to making the stuff and doing lots of internet searches, but says that he was just intellectually interested in the stuff. Creepy, perhaps, but not a felony. He didn't posses the ricin "for use as a weapon" -- and that's what he's charged with. Yes, he looked at how to make it, how various poisons are undetectable, etc. But he wasn't actually going to use it. That's his defense, and if he's right, he's innocent.
But the U.S. has a pretty good piece of evidence against him. One they play up a lot during the closing argument. The U.S. has an expert who says that he tested an Equate pill that was found in Olsen's possession and that pill tested positive for ricin. Why put the ricin on a pill if you're not in fact intending to slip it to someone? Gotcha. You're guilty.
You can see why the U.S. highlights this testimony. 'Cause making ricin itself might be a lark, but putting it on a delivery system -- well, that's more than just curiosity.
There's only one problem. It comes to light long after Olsen's conviction that the expert who tested the pill is a hack. He's got tons of problems with his tests, and his tests (e.g., DNA tests) have been conclusively shown to have put innocent people in prison. Plus, it turns out that the relevant AUSA knew about the ongoing investigation into this expert at the time of Olsen's trial, but didn't reveal all he knew. Hence there's a very strong Brady claim. One made even stronger by the fact that Olsen has an expert on habeas who says that the expert almost certainly cross-contaminated the Equate pill with ricin, hence leading to the erroneous finding.
So the central question for the Ninth Circuit becomes: Is this damning to Olsen's conviction? It is a "reasonable possibility" that destroying the expert's credibility about this crucial piece of evidence may have changed the result of the trial?
The Ninth Circuit says: "No." The evidence against Olsen, the panel says, was "overwhelming". What was overwhelming about it? His lengthy -- super lengthy -- research over the internet. Only someone who was actually planning to kill someone would have done that. No way that someone does all this stuff merely because they're (weirdly) curious about this stuff. No way at all.
To which I have two things to say.
First, I'm far from sure about this. That may seem super weird for Ninth Circuit judges. Who likely do not share similarly morbid curiosities. But there are a lot of strange dudes out there, my friend. A plethora. With weird interests that you can't possibly imagine. People do strange stuff in their spare time. Things you can't comprehend. Is it really the case that no one would take it upon themselves to make ricin just to see if they could? Who would spend hours and days researching the internet just to see if they could make an undetectable poison? No one? Beyond a reasonable doubt?
Don't forget, by the way, that as far as I can tell, the prosecution presented no evidence whatsoever about anyone who Olsen had a grudge with. No one that he actually disliked or wanted to kill. It's possible, of course, that Olsen had hidden hatreds, or grandiose plans. But couldn't a reasonable jury perhaps find that he did all these internet searches about undetectable poisons just because he was (in whatever way) crazily curious about the subject matter? Not because he was actually planning on killing someone? There's not even a chance that a reasonable jury could have so concluded? Really?
Which brings me to my second point. Why this case is so personally timely for me.
Yesterday afternoon, I read this story, which was on the front page of Yahoo!. About a million-dollar lottery winner who died the day after he cashed his lottery ticket. The coroner who conducted the resulting autopsy ruled that this death was caused by hardening of the arteries, and into the ground the guy went. Many months went by and, for whatever reason, a relative kept pushing for more tests on the body. Finally the authorities relent, and -- just to shut the relative up -- they do more tests, and throw in a random test for cyanide into the mix. Bingo. He guy was indeed killed by a fatal dose of odorless, colorless cyanide. Murder.
Which made me think: Wow. What a series of events. Amazing.
But it also made me think: Who committed the murder? A wife? Business partner? Stranger? Who has access to cyanide? Seems like a pretty tough thing to get a hold of, right. Or to make.
So what do I do?
Search the internet. For a fairly lengthy period of time. About how to make cyanide. About what places (allegedly) sell it. About whether a determined person with minimal scientific training could in fact get their hands on cyanide in order to kill someone. And about whether (and how) a death by cyanide would be revealed in standard -- or even ordinary expanded -- autopsy.
In other words, if you looked at my internet logs for yesterday afternoon, I bet you that they would look stunningly like Olsen's internet logs. Coincidentally enough.
So much so, in fact, that as my wife and I were driving home from dinner last night (it was our "date night"), I randomly mentioned to her that I was doing a lot of research into cyanide that afternoon, so that if anyone actually died as a result of it anytime soon, I was worried -- I said jokingly -- that I'd be the primary suspect.
Then I read today's Ninth Circuit opinion. Freaky.
The point is, I had -- and have -- utterly no intent to kill anyone, anywhere when I did my "extensive" internet search yesterday on the practicalities of how to manufacture cyanide and whether it works as an undetectable poison. None. But that same evidence, the Ninth Circuit says today, constitutes such "overwhelming" evidence of an intent to use a product as a weapon that there's no possibility at all a jury could possibly come to an opposite conclusion.
Are there some difference between what Olsen did and what I did? Sure. I spent an afternoon, and he spent a year. I didn't actually make the stuff, and he did.
But in my view, that may well simply goes to the extent of the intellectual (or morbid) interest, not to intent. I was only slightly interested in cyanide, whereas Olsen was clearly very interested in ricin.
But interest doesn't necessarily equate to a desire to kill someone. Or at least a jury might want to hear evidence about who the defendant allegedly might have wanted to kill before concluding that, beyond a reasonable doubt, a defendant did indeed secretly want to kill someone.
And if they learned that the Equate pill that the U.S. said was indeed full of ricin did not, in fact, have any ricin on it, a jury might just conclude that they're not morally certain that the defendant intended to kill someone by slipping them that pill.
Am I say that Olsen's unquestionably innocent? Nope. Maybe he's a potential mass murderer. Or single murderer. Maybe -- despite having a year to make ricin -- he just finished actually making it and the authorities grabbed him up just before he was about to kill someone.
But maybe -- just maybe -- he was a tinkerer. He searched the internet and made the stuff and thought of himself as a modern Walter White, but never actually intended to kill anyone.
One thing I'm confident about. The fact that your internet logs demonstrate extensive searches into a particular undetectable poison and the means to manufacture it don't prove that you're out to kill someone.
That I know. Firsthand.
Monday, January 07, 2013
Furtado v. State Personnel Bd. (Cal. Ct. App. - Jan. 7, 2013)
If you want to work in a prison, you have to be able to beat prisoners with a baton. Hard.
Which is a nontechnical way of saying that if you can't lift a baton over your head with two hands -- as Bruce Furtado can't (as the result of an automobile accident) -- you cannot be a peace officer in a prison. The Court of Appeal holds that it's not an "accommodation" to excuse Mr. Furtado from this requirement, but rather would fundamentally change the nature of a peace officer.
You can see why. Sometimes inmates need to be beaten. And even if your usual job is filing papers, during a riot, we'll need all the beat-sticks we can muster.
Which is a nontechnical way of saying that if you can't lift a baton over your head with two hands -- as Bruce Furtado can't (as the result of an automobile accident) -- you cannot be a peace officer in a prison. The Court of Appeal holds that it's not an "accommodation" to excuse Mr. Furtado from this requirement, but rather would fundamentally change the nature of a peace officer.
You can see why. Sometimes inmates need to be beaten. And even if your usual job is filing papers, during a riot, we'll need all the beat-sticks we can muster.
So v. Shin (Cal. Ct. App. - Jan. 3, 2013)
No D&C is fun. But some are bigger nightmares than others. This one's definitely up there.
I'm not sure how the trial court could get this one so wrong. Glad the Court of Appeal was able to step in.
I'm not sure how the trial court could get this one so wrong. Glad the Court of Appeal was able to step in.
Jayne v. Sherman (9th Cir. - Jan. 7, 2013)
How long after oral argument does it take to issue an opinion that simply adopts the district court's opinion as your own?
Two months.
Two months.
Friday, January 04, 2013
J.R. v. D.P. (Cal. Ct. App. - Dec. 21, 2012)
Nothing from the Ninth Circuit today. Nothing from the California Court of Appeal either. A lazy Friday in 2013.
It nonetheless gives us a chance to try to resolve difficult problems. Like this one:
Biological Father (BF) is married to Wife. Biological Mother (BM) is living with Boyfriend. BM is having an affair with BF but also sleeping with Boyfriend, and gets pregnant. BF and BM get a paternity test that shows that BF is the father, but BF says that can't be true because he's had "an operation" so wants a new (more accurate) paternity test after the child is born.
BF and BM break up, the kid is born, and BM marries Boyfriend. Boyfriend doesn't know about any of this, and signs a voluntary declaration of paternity in the hospital when BM represents (in writing on the relevant form) that no one else but Boyfriend could be the father; i.e., that she was not sleeping with anyone else. BM and Boyfriend raise the kid together.
Then Wife -- presumably upon learning of the affair -- tells Boyfriend about the test results. Boyfriend is profoundly bummed, but still wants to raise the kid as his own. But BF now wants joint custody of the child. So sues. Whereas BM and Boyfriend don't want BF involved.
I have no idea the right thing to do in a case like that. No idea. It's just a monster clusterfart.
Here's what, in fact, we do.
Whether that's the right thing? Best for everyone (especially the child)?
No clue.
It nonetheless gives us a chance to try to resolve difficult problems. Like this one:
Biological Father (BF) is married to Wife. Biological Mother (BM) is living with Boyfriend. BM is having an affair with BF but also sleeping with Boyfriend, and gets pregnant. BF and BM get a paternity test that shows that BF is the father, but BF says that can't be true because he's had "an operation" so wants a new (more accurate) paternity test after the child is born.
BF and BM break up, the kid is born, and BM marries Boyfriend. Boyfriend doesn't know about any of this, and signs a voluntary declaration of paternity in the hospital when BM represents (in writing on the relevant form) that no one else but Boyfriend could be the father; i.e., that she was not sleeping with anyone else. BM and Boyfriend raise the kid together.
Then Wife -- presumably upon learning of the affair -- tells Boyfriend about the test results. Boyfriend is profoundly bummed, but still wants to raise the kid as his own. But BF now wants joint custody of the child. So sues. Whereas BM and Boyfriend don't want BF involved.
I have no idea the right thing to do in a case like that. No idea. It's just a monster clusterfart.
Here's what, in fact, we do.
Whether that's the right thing? Best for everyone (especially the child)?
No clue.
Thursday, January 03, 2013
People v. Stender (Cal. Ct. App. - Jan. 3, 2013)
This (among other things) is why you shouldn't have anything to do with a suspended and/or disbarred attorney.
It can create a world of trouble. A morass from which you shall struggle mightily to ever recover.
It can create a world of trouble. A morass from which you shall struggle mightily to ever recover.
U.S. v. Xu (9th Cir. - Jan. 3, 2013)
Defendants are four Chinese nationals who embezzle a huge -- and I mean, huge -- amount of money from the Bank of China. They get caught and flee to the United States using fake immigration documents, and are prosecuted in federal court. They're unhappy about their conviction in the United States for extraterritorial conduct they performed in China, as well as their sentences -- a decade to twenty five years in prison for the various participants, plus a restitution order to repay $482 million.
The Ninth Circuit reverses the restituion order but affirms everything else.
Judge Goodwin's opinion seems right to me. I'll also add that despite the defendant's unhappiness with the result in the United States, they should be darn happy that the U.S. doesn't have an extradition treaty with China. Because I'm quite certain of the sentence they would have received there.
One day in prison, and a restitution order for a single bullet.
The Ninth Circuit reverses the restituion order but affirms everything else.
Judge Goodwin's opinion seems right to me. I'll also add that despite the defendant's unhappiness with the result in the United States, they should be darn happy that the U.S. doesn't have an extradition treaty with China. Because I'm quite certain of the sentence they would have received there.
One day in prison, and a restitution order for a single bullet.
Wednesday, January 02, 2013
U.S. v. Yi (9th Cir. - Jan. 2, 2013)
How much time in prison -- if any -- should a defendant receive if he knows some ceiling tiles contain some asbestos but has a work crew scrape the ceilings wearing white masks instead of respirators (i.e., treats the job as containing no asbestos)?
The sentencing guidelines say: "Around a decade in prison." After some downward departures, the district court gives the defendant four years.
Affirmed.
Overly harsh? Overly lenient? Just about right?
The sentencing guidelines say: "Around a decade in prison." After some downward departures, the district court gives the defendant four years.
Affirmed.
Overly harsh? Overly lenient? Just about right?
Monday, December 31, 2012
Nalwa v. Cedar Fair (Cal. Supreme Ct. - Dec. 31, 2012)
One bad thing about being in academia is that you don't have a keen sense of when (or if) "regular" people work over the holidays. Do people really work on Monday, December 31?
Though I guess you could easily call that a good thing as well.
Fortunately the California Supreme Court lets me know. Yes, Virginia, some people are indeed at work on New Year's Eve. Cranking out opinions so the winners have something extra to celebrate and giving the losers an even bigger excuse to drown their sorrows on this particular evening.
It's a case about bumper cars and primary assumption of the risk. The California Supreme Court has led the state courts in a relentless expansion of this doctrine in the sports context, applying the doctrine to immunize defendants in a wide variety of settings. It does so again today, making clear that the doctrine doesn't just apply to "sports" (however expansively defined), but applies equally to a plethora of activities more broadly defined as "recreational" instead. Barring a lawsuit, here, for injuries sustained in a bumper car accident.
Justice Kennard has been a vocal opponent of the expansion of this defense, and -- not surprisingly -- dissents here as well. Repeating and expanding upon the arguments she's made in prior dissents.
But I think this is a bad case for Justice Kennard, and one in which it's difficult to articulate persuasively her position. Instead, I think that Justice Werdegar's majority opinion is quite powerful. Seemingly spot on, at least to me. And this from someone who's somewhat sympathetic to Justice Kennard's reservations.
Justice Werdegar just seems right that the whole bumper cars is to bump, and that allowing liability for bumping accidents might indeed chill the underlying recreational activity. Could a defendant institute technological limitations on, for example, head-on bumping -- for example, by only allowing one-way travel by the bumper cars -- or, as here, more rigorously enforce its internal policy against this practice? Sure it could. And, yes, such efforts might well have prevented the fracture here.
But it nonetheless seems right to me that when you get into a bumper car that allows multi-directional travel and in which some head-on bumping might occur, that's a classic example of assumption of the risk. I also agree that there's a downside to chilling this practice. Some people -- myself included -- may like the ability to slam (and be slammed) head on. To impose liability -- or to permit post hoc explanations of subjective intent be largely dispositive -- would indeed risk elimination of this particular recreational practice. That's not socially beneficial. So creating a primary assumption of the risk defense in this context makes sense to me.
Could you obtain some of these benefits through more traditional (and limiting) doctrines? Sure. Some. Not all. Are there difficult lines to be drawn regarding what's "inherent" in a sport and what's not? Yep. Definitely.
But I think the judiciary can do that. We all have -- or can fairly readily obtain -- some experience with the underlying recreational concepts. We can draw lines between what's "inherent" in a sport and what's not in a way that preserves the utility of the underlying act. Judges can likely do so better than episodic juries who are confronted by episodic cases involving sympathetic, uniformly injured participants.
So even if you're not a bumper car, or primary assumption of the risk, devotee, I think there's still a lot to be said for Justice Werdegar's opinion here. Which is something I could (and would) readily sign onto.
But if you're headed out to an amusement park with your kids during the New Year, watch out for those bumper cars. They might just get a tiny bit more violent after today.
Goodbye 2012. Welcome 2013.
Though I guess you could easily call that a good thing as well.
Fortunately the California Supreme Court lets me know. Yes, Virginia, some people are indeed at work on New Year's Eve. Cranking out opinions so the winners have something extra to celebrate and giving the losers an even bigger excuse to drown their sorrows on this particular evening.
It's a case about bumper cars and primary assumption of the risk. The California Supreme Court has led the state courts in a relentless expansion of this doctrine in the sports context, applying the doctrine to immunize defendants in a wide variety of settings. It does so again today, making clear that the doctrine doesn't just apply to "sports" (however expansively defined), but applies equally to a plethora of activities more broadly defined as "recreational" instead. Barring a lawsuit, here, for injuries sustained in a bumper car accident.
Justice Kennard has been a vocal opponent of the expansion of this defense, and -- not surprisingly -- dissents here as well. Repeating and expanding upon the arguments she's made in prior dissents.
But I think this is a bad case for Justice Kennard, and one in which it's difficult to articulate persuasively her position. Instead, I think that Justice Werdegar's majority opinion is quite powerful. Seemingly spot on, at least to me. And this from someone who's somewhat sympathetic to Justice Kennard's reservations.
Justice Werdegar just seems right that the whole bumper cars is to bump, and that allowing liability for bumping accidents might indeed chill the underlying recreational activity. Could a defendant institute technological limitations on, for example, head-on bumping -- for example, by only allowing one-way travel by the bumper cars -- or, as here, more rigorously enforce its internal policy against this practice? Sure it could. And, yes, such efforts might well have prevented the fracture here.
But it nonetheless seems right to me that when you get into a bumper car that allows multi-directional travel and in which some head-on bumping might occur, that's a classic example of assumption of the risk. I also agree that there's a downside to chilling this practice. Some people -- myself included -- may like the ability to slam (and be slammed) head on. To impose liability -- or to permit post hoc explanations of subjective intent be largely dispositive -- would indeed risk elimination of this particular recreational practice. That's not socially beneficial. So creating a primary assumption of the risk defense in this context makes sense to me.
Could you obtain some of these benefits through more traditional (and limiting) doctrines? Sure. Some. Not all. Are there difficult lines to be drawn regarding what's "inherent" in a sport and what's not? Yep. Definitely.
But I think the judiciary can do that. We all have -- or can fairly readily obtain -- some experience with the underlying recreational concepts. We can draw lines between what's "inherent" in a sport and what's not in a way that preserves the utility of the underlying act. Judges can likely do so better than episodic juries who are confronted by episodic cases involving sympathetic, uniformly injured participants.
So even if you're not a bumper car, or primary assumption of the risk, devotee, I think there's still a lot to be said for Justice Werdegar's opinion here. Which is something I could (and would) readily sign onto.
But if you're headed out to an amusement park with your kids during the New Year, watch out for those bumper cars. They might just get a tiny bit more violent after today.
Goodbye 2012. Welcome 2013.
Friday, December 28, 2012
Alocozy v. USCIS (9th Cir. - Dec. 28, 2012)
We won't deport Aloczy because he attempted to rape someone. But we won't let him become a citizen either.
Thursday, December 27, 2012
Damman v. Golden Gate Bridge (Cal. Ct. Appeal - Dec. 20, 2012)
Next time you drive over the (beautiful) Golden Gate Bridge, and stare into the traffic that's going the other way -- with drivers perhaps distracted by the wonderful view -- it may be worth knowing that (1) there's an easy way to stop head-on collisions on that bridge, one that's been used with great success on other bridges (including the Coronado Bridge down in San Diego), but (2) even though it's been strongly recommended that California install such a device on the bridge for over a decade, California hasn't felt like doing so. With numerous serious injuries as a result.
But that's okay. No liability.
Whether that's the correct moral choice, of course, is a separate question.
But that's okay. No liability.
Whether that's the correct moral choice, of course, is a separate question.
People v. Frazier (Cal. Ct. App. - Dec. 27, 2012)
Do you have a mental disorder -- e.g, are you subject to involuntary committment as a Sexually Violent Predator -- if you are an older man who finds teenage girls attractive?
What if you're an older man who finds teenage boys attractive?
What if you're an older man who finds teenage boys attractive?
Wednesday, December 26, 2012
U.S. v. Phillips (9th Cir. - Dec. 26, 2012)
Don't steal from a pizza place. That can get you twenty five to life, and will only net you (at best) some pepperoni pizza.
Steal from shareholders instead. That can get you several millions, and you'll only have to spend a few years in prison.
One more thing. If you're caught stealing, definitely don't pay the money back. You'll have to forfeit anything you bought with the stolen money, and even if you've already reimbursed the company, that reimbursement is not a defense to the forfeiture.
In short, if you steal, go big.
A timely post-Christmas lesson.
Steal from shareholders instead. That can get you several millions, and you'll only have to spend a few years in prison.
One more thing. If you're caught stealing, definitely don't pay the money back. You'll have to forfeit anything you bought with the stolen money, and even if you've already reimbursed the company, that reimbursement is not a defense to the forfeiture.
In short, if you steal, go big.
A timely post-Christmas lesson.
Friday, December 21, 2012
National Elevator Industry Pension Fund v. VeriFone Holdings (9th Cir. - Dec. 21, 2012)
I think the internal e-mails in this securities class action are even more damning than Judge McKeown does. Either way, the dismissal of the complaint must be reversed.
Read the opinion if you invest in stocks and wonder if companies engage in accounting tricks to manipulate earnings numbers. The focus on hitting a "target" regardless of the means employed appears overwhelming.
Frightening.
Read the opinion if you invest in stocks and wonder if companies engage in accounting tricks to manipulate earnings numbers. The focus on hitting a "target" regardless of the means employed appears overwhelming.
Frightening.
Thursday, December 20, 2012
Giraldin v. Giraldin (Cal. Supreme Ct. - Dec. 20, 2012)
I won't discuss the merits of this case. Perhaps because I only dimly understand trusts and estates, a class I never took in law school (nor studied in preparation for the bar).
I instead just want to ask a question.
The case is about a trust set up by William Giraldin. An early line of Justice Chin's opinion says: "William was a successful businessman and inventor and accumulated a substantial fortune."
Which led me to think: What exactly is a "substantial fortune?" A million dollars? Five million? Twenty million? One hundred million? A billion? If you had to guess, what amount of money are we talking about -- in the context of a person's net worth -- when we say that someone has obtained over their lifetime a "substantial fortune?"
I ask because, as it turns out, William was worth (according to Justice Chin's opinion) around six million dollars. So, for Justice Chin, that amount of money is a "substantial fortune."
Which I thought was low. I was thinking it'd be a lot more. But I wondered if my thoughts on this topic were distorted, or at least out of line with what common parlance would dictate when a speaker in this context says "substantial fortune." So I thought I'd ask. Am I off base here?
I'm not saying that six million dollars isn't a ton of money. It is. And if anyone would like to give me such a sum for Christmas -- or even a healthy fraction of it -- I'll happily provide my address.
But a "substantial fortune?" My guess is that a nontrivial number of members of the California appellate judicary have "substantial fortunes" that meet or exceed this figure. For example, Justice Baxter has himself has amassed (and currently owns) multiple millions. Ninth Circuit judges are often even wealthier. Judges Berzon and Gould, for example, respectively have seven figure positions in the Fidelity and Vanguard mutual funds alone, as well as tons of other investments. Judge McKeown owns a healthy amount of stock in just about every major publicly traded corporation. And is there anything that Judge Wardlaw doesn't own?!
So I don't know what the precise dividing line is between "a boatload of money," an "obscene amount of cash," and "a substantial fortune."
But I thought that the last of these required more than what it cost to repair Steve Austin.
I instead just want to ask a question.
The case is about a trust set up by William Giraldin. An early line of Justice Chin's opinion says: "William was a successful businessman and inventor and accumulated a substantial fortune."
Which led me to think: What exactly is a "substantial fortune?" A million dollars? Five million? Twenty million? One hundred million? A billion? If you had to guess, what amount of money are we talking about -- in the context of a person's net worth -- when we say that someone has obtained over their lifetime a "substantial fortune?"
I ask because, as it turns out, William was worth (according to Justice Chin's opinion) around six million dollars. So, for Justice Chin, that amount of money is a "substantial fortune."
Which I thought was low. I was thinking it'd be a lot more. But I wondered if my thoughts on this topic were distorted, or at least out of line with what common parlance would dictate when a speaker in this context says "substantial fortune." So I thought I'd ask. Am I off base here?
I'm not saying that six million dollars isn't a ton of money. It is. And if anyone would like to give me such a sum for Christmas -- or even a healthy fraction of it -- I'll happily provide my address.
But a "substantial fortune?" My guess is that a nontrivial number of members of the California appellate judicary have "substantial fortunes" that meet or exceed this figure. For example, Justice Baxter has himself has amassed (and currently owns) multiple millions. Ninth Circuit judges are often even wealthier. Judges Berzon and Gould, for example, respectively have seven figure positions in the Fidelity and Vanguard mutual funds alone, as well as tons of other investments. Judge McKeown owns a healthy amount of stock in just about every major publicly traded corporation. And is there anything that Judge Wardlaw doesn't own?!
So I don't know what the precise dividing line is between "a boatload of money," an "obscene amount of cash," and "a substantial fortune."
But I thought that the last of these required more than what it cost to repair Steve Austin.
U.S. v. Yepez (9th Cir. - Dec. 20, 2012)
It's an en banc criminal case in the Ninth Circuit. One side argues for giving respect to the actions and determinations of state courts. Comity's a good thing, they say. The other side says, no, federal courts should enforce federal law. Don't let states get in the way. A classic liberal-conservative split.
Except the sides are opposite from what you'd usually expect. Here's it's the liberals arguing for comity and the conservatives saying that we should ignore what the state court did. Because unlike the typical habeas case, here, the state courts have diminished the sentence of a criminal defendant.
So the liberals argue for comity and the conservative say that value's overblown.
Nah. These things aren't political or results-oriented.
Just calling balls and strikes.
Except the sides are opposite from what you'd usually expect. Here's it's the liberals arguing for comity and the conservatives saying that we should ignore what the state court did. Because unlike the typical habeas case, here, the state courts have diminished the sentence of a criminal defendant.
So the liberals argue for comity and the conservative say that value's overblown.
Nah. These things aren't political or results-oriented.
Just calling balls and strikes.
Wednesday, December 19, 2012
V & P Trading v. United Charter (Cal. Ct. App. - Dec. 19, 2012)
I love this strategy.
When you're sued by a corporation, find out if the corporation's charter has been suspended (for nonfiling, nonpayment of taxes, etc.). If you find out they're indeed suspended, do not raise the corporation's lack of capacity as a defense in your answer. Nor should you file a demurrer or motion for judgment on the pleadings. That would only notify defendant of the problem, and they'll obtain a revivor by paying their taxes, filing the relevant documents, etc. That'll let the lawsuit go forward.
Here's what you do instead: assert only a statute of limitations defense in your answer. Wait for the limitations period to expire. THEN file a motion to dismiss (or summary judgment motion, etc.) on limitations grounds. Because at that point, plaintiff's screwed. They can still get a revivor, but the fact that they were suspended mean the filing of the lawsuit didn't toll the limitations period. So they lose. Even if, on the merits, they're right.
I'm not saying that defendant deliberately did this here. Indeed, in light of the defendant's somewhat inexplicable discovery strategy, there's some reason to believe they didn't.
But they should have. And so should you.
And when you do, cite this case as proof that the strategy works. With a footnote citing this post as proof that your approach isn't sleazy, but rather a product of zealous advocacy that totally rocks.
Because -- as I half-jokingly tell my students -- a procedural victory is often even sweeter than a victory on the merits. Because it proves you're the better lawyer. Even if your case stinks.
When you're sued by a corporation, find out if the corporation's charter has been suspended (for nonfiling, nonpayment of taxes, etc.). If you find out they're indeed suspended, do not raise the corporation's lack of capacity as a defense in your answer. Nor should you file a demurrer or motion for judgment on the pleadings. That would only notify defendant of the problem, and they'll obtain a revivor by paying their taxes, filing the relevant documents, etc. That'll let the lawsuit go forward.
Here's what you do instead: assert only a statute of limitations defense in your answer. Wait for the limitations period to expire. THEN file a motion to dismiss (or summary judgment motion, etc.) on limitations grounds. Because at that point, plaintiff's screwed. They can still get a revivor, but the fact that they were suspended mean the filing of the lawsuit didn't toll the limitations period. So they lose. Even if, on the merits, they're right.
I'm not saying that defendant deliberately did this here. Indeed, in light of the defendant's somewhat inexplicable discovery strategy, there's some reason to believe they didn't.
But they should have. And so should you.
And when you do, cite this case as proof that the strategy works. With a footnote citing this post as proof that your approach isn't sleazy, but rather a product of zealous advocacy that totally rocks.
Because -- as I half-jokingly tell my students -- a procedural victory is often even sweeter than a victory on the merits. Because it proves you're the better lawyer. Even if your case stinks.
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