Don't send sexually explicit IMs to thirteen- and fourteen-year old girls. Even if they seem like they're into it. And especially if they don't. Otherwise, several years in prison awaits.
As Michael Richardson discovers here.
P.S. - One more thing, on this last day of May. I appreciate the effort, Ninth Circuit and California Court of Appeal. But slow down, my friends. Or at least spread the stuff out. You guys have published more than fifty opinions in the last three days. Even for someone like me, that's a lot of reading. Pace yourself.
Thursday, May 31, 2007
People v. Kinney (Cal. Ct. App. - May 31, 2007)
This case might make a good student law review article.
Defendant exercises his right to represent himself at his first criminal trial and makes various statements during closing argument that, let's say, are less than well-advised (e.g., are incriminating). Assume that first trial ends in a mistrial -- or, as here, the conviction is reversed on appeal. During the retrial, the prosecution wants to introduce into evidence defendant's statements during closing argument in the first trial.
Permissible? Or a violation of (or impermissible burden upon) the guy's right to represent himself?
For comparison's sake, the United States Supreme Court held in Simmons that a defendant's incriminating statements in support of a motion to suppress on Fourth Amendment grounds (e.g., an admission that he owned the suitcase in which the drugs were found) weren't admissible at trial, holding that it's "intolerable that one constitutional right should have to be surrendered in order to assert another.”
What do you think? Justice Morrison thinks -- indeed, holds -- that it's permissible to introduce the closing argument into evidence. No constitutional violation. And writes a decent defense of that position.
Agree?
On a (much) less intellectual level, if you're wondering what the street price of methamphetamine is in Placer County -- perhaps you're comparision shopping amongst dealers -- Justice Morrison's got that for you as well: "[T]he market rate for methamphetamine in Placer County was a fifth of a gram for $20; .875 of a gram (a “half-teener”) for $40 to $50; a sixteenth or 1.75 grams for $80 to $100; an eight-ball, 3.5 grams for $140 to $150; a fourth of an ounce, 7 grams, for $240 to 250; a half-ounce, 14 grams, for $300 to $400; and an ounce, 28 grams, for $600 to $ 800. The price depended on the quantity available and quality."
Thanks for that, Fred.
Defendant exercises his right to represent himself at his first criminal trial and makes various statements during closing argument that, let's say, are less than well-advised (e.g., are incriminating). Assume that first trial ends in a mistrial -- or, as here, the conviction is reversed on appeal. During the retrial, the prosecution wants to introduce into evidence defendant's statements during closing argument in the first trial.
Permissible? Or a violation of (or impermissible burden upon) the guy's right to represent himself?
For comparison's sake, the United States Supreme Court held in Simmons that a defendant's incriminating statements in support of a motion to suppress on Fourth Amendment grounds (e.g., an admission that he owned the suitcase in which the drugs were found) weren't admissible at trial, holding that it's "intolerable that one constitutional right should have to be surrendered in order to assert another.”
What do you think? Justice Morrison thinks -- indeed, holds -- that it's permissible to introduce the closing argument into evidence. No constitutional violation. And writes a decent defense of that position.
Agree?
On a (much) less intellectual level, if you're wondering what the street price of methamphetamine is in Placer County -- perhaps you're comparision shopping amongst dealers -- Justice Morrison's got that for you as well: "[T]he market rate for methamphetamine in Placer County was a fifth of a gram for $20; .875 of a gram (a “half-teener”) for $40 to $50; a sixteenth or 1.75 grams for $80 to $100; an eight-ball, 3.5 grams for $140 to $150; a fourth of an ounce, 7 grams, for $240 to 250; a half-ounce, 14 grams, for $300 to $400; and an ounce, 28 grams, for $600 to $ 800. The price depended on the quantity available and quality."
Thanks for that, Fred.
U.S. v. Kayser (9th Cir. - May 31, 2007)
At the risk of being a pest, I'm going to point it out again.
Seven days ago, Judge Trott issued this opinion for the en banc court in which he wrote: "The principle problem with the government's defense is that . . . ." Which was an error obvious even to a grammar idiot such as myself. Even though it apparently escaped the attention of the entire en banc panel. So I promptly posted about it here, assuming that this would successfully enlighten the universe regarding the difference between "principle" and "principal".
Not so, apparently. Today, Judge Ikuta issued this opinion. In which, on the third page of the opinion, she writes: "This theory was supported by two principle pieces of evidence."
I ain't no genius. I don't even spell so good. But come on. If even I can know this rule, so can everyone else. (Especially Judge Ikuta, who's extremely bright.)
So there. I'm sure this post will finally do the trick. Or, more plausibly, that the Ninth Circuit can at least make it past a week before making the same basic mistake again.
Seven days ago, Judge Trott issued this opinion for the en banc court in which he wrote: "The principle problem with the government's defense is that . . . ." Which was an error obvious even to a grammar idiot such as myself. Even though it apparently escaped the attention of the entire en banc panel. So I promptly posted about it here, assuming that this would successfully enlighten the universe regarding the difference between "principle" and "principal".
Not so, apparently. Today, Judge Ikuta issued this opinion. In which, on the third page of the opinion, she writes: "This theory was supported by two principle pieces of evidence."
I ain't no genius. I don't even spell so good. But come on. If even I can know this rule, so can everyone else. (Especially Judge Ikuta, who's extremely bright.)
So there. I'm sure this post will finally do the trick. Or, more plausibly, that the Ninth Circuit can at least make it past a week before making the same basic mistake again.
Garcia-Jimenez v. Gonzales (9th Cir. - May 30, 2007)
Unusual.
Judge Silverman authors an opinion on January 3, 2007 that's (allegedly) so simple that it doesn't even require oral argument, and that unanimously upholds the deportation of Garcia-Jimenez.
Nothing strange there. Happens every day.
Garcia-Jimenez petitions for rehearing (and en banc review). No one calls for an en banc vote. Par for the course on both counts.
But Judge Pregerson, who originally joined the panel opinion, now changes his mind and dissents. And his dissent appears to be based on the exact same arguments that Garcia-Jimenez made in his original briefs, and that the panel (including Judge Pregerson) originally rejected.
There's no explanation in the dissent -- or at least nothing that I recall -- as to why exactly Judge Pregerson changed his mind. Or exactly what went down here that resulted in Judge Pregerson's dissent from an opinion with which he originally (at least apparently) agreed.
Strange.
Judge Silverman authors an opinion on January 3, 2007 that's (allegedly) so simple that it doesn't even require oral argument, and that unanimously upholds the deportation of Garcia-Jimenez.
Nothing strange there. Happens every day.
Garcia-Jimenez petitions for rehearing (and en banc review). No one calls for an en banc vote. Par for the course on both counts.
But Judge Pregerson, who originally joined the panel opinion, now changes his mind and dissents. And his dissent appears to be based on the exact same arguments that Garcia-Jimenez made in his original briefs, and that the panel (including Judge Pregerson) originally rejected.
There's no explanation in the dissent -- or at least nothing that I recall -- as to why exactly Judge Pregerson changed his mind. Or exactly what went down here that resulted in Judge Pregerson's dissent from an opinion with which he originally (at least apparently) agreed.
Strange.
Wednesday, May 30, 2007
U.S. v. Trimble (9th Cir. - May 30, 2007)
"The Bill of Rights was ratified in 1791. The United States produced its first automobile in 1877, and the first traffic ticket issued in 1904."
That's the first paragraph of Judge Berzon's opinion in this case. Which gives you a hint as to how the rest of it is going to read.
It's a tiny little matter, involving seventy-five whole dollars in fines that Trimble had to pay for various traffic tickets but that others did not -- basically all because the U.S. had two different forms, old ones (that were still being used) that didn't refer to the additional $25/ticket fine and new ones that did. The panel decides that's an equal protection violation, even under rational basis review, and that result seems plausible (though I can imagine other defenses that the panel doesn't discuss).
But let me add one more thing. Seventy five dollars. For that we appoint a public defender and have a U.S. attorney and the P.D. brief and argue an entire appeal? We can't just save some money by confessing error and refunding the piddly seventy-five bucks?
That's the first paragraph of Judge Berzon's opinion in this case. Which gives you a hint as to how the rest of it is going to read.
It's a tiny little matter, involving seventy-five whole dollars in fines that Trimble had to pay for various traffic tickets but that others did not -- basically all because the U.S. had two different forms, old ones (that were still being used) that didn't refer to the additional $25/ticket fine and new ones that did. The panel decides that's an equal protection violation, even under rational basis review, and that result seems plausible (though I can imagine other defenses that the panel doesn't discuss).
But let me add one more thing. Seventy five dollars. For that we appoint a public defender and have a U.S. attorney and the P.D. brief and argue an entire appeal? We can't just save some money by confessing error and refunding the piddly seventy-five bucks?
Ministry of Defense of Iran v. Cubic Defense Systems (9th Cir. - May 30, 2007)
It's not every day you see the Ministry of Defense of Iran (technically, "The Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran, as successor in interest to the Ministry of War of the Government of Iran") as the plaintiff-appellant in a Ninth Circuit appeal. But it happens here.
It's a complex matter, both procedurally and substantively. Basically, in 1990, Iran assassinated Dr. Cyrus Elahi in Paris, and his brother subsequently got a default judgment against Iran in federal district court in D.C. for $311.7 million. Then, of course, came the tough part: collecting. The brother did a variety of things, and got some money from the U.S. government, but then -- and this is what gave rise to the appeal -- sought to attach a $2.8 million judgment that Iran had obtained in the ICC against Cubic (for, not surprisingly, refusing to deliver weapons to the new government after the Iranian revolution).
I'll spare you the complicated procedural history (including a trip up to the Supremes), though it's actually an interesting case. In the end, Judge Betty Fletcher decides that the attachment was valid under section 201 of the Terrorism Risk Insurance Act of 2002, and Judge Fisher dissents.
Not your usual, run-of-the-mill appeal.
P.S. - How'd you like to go around and tell your friends "Guess who I represented today? The Ministry of Defense of Iran." Not many attorneys can (truthfully) say that. But Anthony J. Van Patten and Mina Almassi (whose last name is misspelled by the Ninth Circuit as "Amassi") have precisely such a client.
Which kicks my butt. The largest foreign government I ever represented was Gabon. Though, in my defense, unlike here, I won. That said, the Gabonese Republic is perhaps a tiny bit more sympathetic than the Ministry of Defense of Iran.
It's a complex matter, both procedurally and substantively. Basically, in 1990, Iran assassinated Dr. Cyrus Elahi in Paris, and his brother subsequently got a default judgment against Iran in federal district court in D.C. for $311.7 million. Then, of course, came the tough part: collecting. The brother did a variety of things, and got some money from the U.S. government, but then -- and this is what gave rise to the appeal -- sought to attach a $2.8 million judgment that Iran had obtained in the ICC against Cubic (for, not surprisingly, refusing to deliver weapons to the new government after the Iranian revolution).
I'll spare you the complicated procedural history (including a trip up to the Supremes), though it's actually an interesting case. In the end, Judge Betty Fletcher decides that the attachment was valid under section 201 of the Terrorism Risk Insurance Act of 2002, and Judge Fisher dissents.
Not your usual, run-of-the-mill appeal.
P.S. - How'd you like to go around and tell your friends "Guess who I represented today? The Ministry of Defense of Iran." Not many attorneys can (truthfully) say that. But Anthony J. Van Patten and Mina Almassi (whose last name is misspelled by the Ninth Circuit as "Amassi") have precisely such a client.
Which kicks my butt. The largest foreign government I ever represented was Gabon. Though, in my defense, unlike here, I won. That said, the Gabonese Republic is perhaps a tiny bit more sympathetic than the Ministry of Defense of Iran.
Tuesday, May 29, 2007
Urzua v. Gonzales (9th Cir. - May 29, 2007)
Sometimes it doesn't pay to be a truthful person.
Take Neftali Urzua Covarrubias, for example. He wants to stay in the United States. Here's his scoop: "There is no dispute that Urzua has met the requirements of continuous presence and extreme hardship to himself and to his son. Urzua has been in the United States for almost eighteen years. During this time, Urzua has worked for the same employer and has paid taxes. He learned English and is active in his church and in his community. He and his brother own a house together. Urzua coaches a children’s soccer team, and he is very close to his extensive family residing in California, including four siblings, aunts, uncles, nieces, nephews, and
cousins. Urzua also plays an important role in the life of his elevenyear-old U.S.-born citizen son whom he supports emotionally and financially. Although his son does not live with him, Urzua spends part of nearly every day with his son, provides him with medical insurance, and pays child support."
The problem, however, is that when Neftali was asked about his brother at the immigration hearing, Neftali volunteered that he had paid $1200 to help get his brother over the border. Oops! As the youngsters say nowadays, "TMI". As the immigration judge said below: "“I do believe that [Urzua] is statutorily ineligible to establish good moral character because of having helped his brother enter the United States illegally. I think part of the problem is that he, [Urzua], is such a[n] honest person, that he just volunteered a little too much information.”
Judge Tallman affirms. Judge Pregerson dissents.
All the guy had to do was lie and I'm sure they'd have never found out about helping out his brother. We tell our children that the truth will set you free. Not here. Unless by "free" we mean "deported".
Take Neftali Urzua Covarrubias, for example. He wants to stay in the United States. Here's his scoop: "There is no dispute that Urzua has met the requirements of continuous presence and extreme hardship to himself and to his son. Urzua has been in the United States for almost eighteen years. During this time, Urzua has worked for the same employer and has paid taxes. He learned English and is active in his church and in his community. He and his brother own a house together. Urzua coaches a children’s soccer team, and he is very close to his extensive family residing in California, including four siblings, aunts, uncles, nieces, nephews, and
cousins. Urzua also plays an important role in the life of his elevenyear-old U.S.-born citizen son whom he supports emotionally and financially. Although his son does not live with him, Urzua spends part of nearly every day with his son, provides him with medical insurance, and pays child support."
The problem, however, is that when Neftali was asked about his brother at the immigration hearing, Neftali volunteered that he had paid $1200 to help get his brother over the border. Oops! As the youngsters say nowadays, "TMI". As the immigration judge said below: "“I do believe that [Urzua] is statutorily ineligible to establish good moral character because of having helped his brother enter the United States illegally. I think part of the problem is that he, [Urzua], is such a[n] honest person, that he just volunteered a little too much information.”
Judge Tallman affirms. Judge Pregerson dissents.
All the guy had to do was lie and I'm sure they'd have never found out about helping out his brother. We tell our children that the truth will set you free. Not here. Unless by "free" we mean "deported".
Friday, May 25, 2007
Blue Cross v. Rubin (9th Cir. - May 25, 2007)
Ever see a published opinion in which the opinion itself is less than 5 pages but the caption is almost three times as large? Now you have.
P.S. - Can't we eliminate at least two pages, since pages 6225 and 6226 of the caption are nearly blank? The trees would thank us, I'm sure.
P.S. - Can't we eliminate at least two pages, since pages 6225 and 6226 of the caption are nearly blank? The trees would thank us, I'm sure.
U.S. v. Curtin (9th Cir. - May 24, 2007)
Fifteen informed, incredibly well-educated judges, each of whom reads -- and the majority of whom sign onto -- the majority en banc opinion. At least fifteen incredibly educated clerks as well.
Yet, the very first sentence of the paragraph on page 6158 reads: "The principle problem with the government's defense is that . . . ."
Principle vs. principal. When even I can spot a grammar error, you know it's pretty obvious.
The eighth sign of the apocalypse.
Yet, the very first sentence of the paragraph on page 6158 reads: "The principle problem with the government's defense is that . . . ."
Principle vs. principal. When even I can spot a grammar error, you know it's pretty obvious.
The eighth sign of the apocalypse.
Thursday, May 24, 2007
Rotolo v. San Jose Sports & Ent. (Cal. Ct. App. - May 24, 2007)
I agree with the majority opinion (written by Justice Bamattre-Manoukian) in this one. It's tragic that the 17-year old plaintiff went into cardiac arrest and died while playing ice hockey at Logitech Ice in San Jose. It is even more tragic, and sad, that there was at least one automatic external defibrillator (AED) on the wall near the penalty box, but that no one knew that the AED was there, and as a result, it wasn't used on the plaintiff. It might well have saved his life.
But there's an express California law that governs AEDs, and you can't (typically) be liable for having or not having an AED. And I agree with the majority that, yes, it would have been infinitely better for the facility to let participants know about the existence of the AED (e.g., post larger signs, give handouts, etc.) and to have a more concrete plan about what to do in the event they're needed. And maybe, even, that part of the AED law should be changed to require things like this. But I'm persuaded that that's not currently the law (statutory or common), and hence that summary judgment was properly granted to the defendant.
Justice McAdams writes a brief dissent, but I find the majority opinion more persuasive on this one. Even though reasonable minds could definitely disagree.
But there's an express California law that governs AEDs, and you can't (typically) be liable for having or not having an AED. And I agree with the majority that, yes, it would have been infinitely better for the facility to let participants know about the existence of the AED (e.g., post larger signs, give handouts, etc.) and to have a more concrete plan about what to do in the event they're needed. And maybe, even, that part of the AED law should be changed to require things like this. But I'm persuaded that that's not currently the law (statutory or common), and hence that summary judgment was properly granted to the defendant.
Justice McAdams writes a brief dissent, but I find the majority opinion more persuasive on this one. Even though reasonable minds could definitely disagree.
People v. Lancaster (Cal. Supreme Ct. - May 24, 2007)
Read the first eight pages of this opinion. Then see if you agree with me as regards the following maxim:
When you're clearly guilty of murder, put on no evidence at the guilt phase, and have prior convictions for both the forcible rape of a 9-year old girl as well as a home invasion robbery, don't repeatedly make (and get caught with) shanks and jail-made handcuff keys in your cell while you're awaiting trial. Because the jury at the penalty phase will hear about that stuff. And sentence you to death. And the California Supreme Court will unanimously affirm.
Oh, also. Don't testify at the penalty phase if this is what you're going to say: "Defendant testified, accusing the witnesses against him of lying. He did not trust attorneys or psychiatrists. He said he would not ask the jury to spare his life because only God can give life. Defendant disparaged Dr. Romanoff’s testimony, telling the jury, 'this antisocial syndrome bull stuff, don’t fall for that.'"
That ain't gonna help either.
When you're clearly guilty of murder, put on no evidence at the guilt phase, and have prior convictions for both the forcible rape of a 9-year old girl as well as a home invasion robbery, don't repeatedly make (and get caught with) shanks and jail-made handcuff keys in your cell while you're awaiting trial. Because the jury at the penalty phase will hear about that stuff. And sentence you to death. And the California Supreme Court will unanimously affirm.
Oh, also. Don't testify at the penalty phase if this is what you're going to say: "Defendant testified, accusing the witnesses against him of lying. He did not trust attorneys or psychiatrists. He said he would not ask the jury to spare his life because only God can give life. Defendant disparaged Dr. Romanoff’s testimony, telling the jury, 'this antisocial syndrome bull stuff, don’t fall for that.'"
That ain't gonna help either.
U.S. v. Orman (9th Cir. - May 22, 2007)
Orman: "Do you find Chief Orman attractive?"
Jack: "You're a striking figure, yes."
Orman: "Do you like South Pacific?"
Jack: "Doesn't everybody?"
Miyagi: "Oh, everybody."
Orman: "Can they really bust me if I stuff a gun into my boot before entering the Paradise Valley Mall in Phoenix and am a convicted felon?"
Ninth Circuit: "Yes."
Jack: "You're a striking figure, yes."
Orman: "Do you like South Pacific?"
Jack: "Doesn't everybody?"
Miyagi: "Oh, everybody."
Orman: "Can they really bust me if I stuff a gun into my boot before entering the Paradise Valley Mall in Phoenix and am a convicted felon?"
Ninth Circuit: "Yes."
Wednesday, May 23, 2007
Powell v. Kleinman (Cal. Ct. App. - May 23, 2007)
Who says the Court of Appeal doesn't -- at least occasionally -- dig deep, immerse itself in the facts, and issue detailed and very specific rulings based upon a heafty analysis of the facts?
Sure, it doesn't happen all the time. But it happens here. I very much enjoyed Justice Gomes's analytical evaluation of the evidence here, which seems entirely correct to me. Some of the expert declaration was admissible, and some of it wasn't. I'm persuaded.
Maybe there's a little bit too much introductory stuff at the outset of the opinion; e.g., lengthy discussions of the most basic evidentiary and procedural principles. But that's what naturally happens (albeit sadly) when opinions are derived directly from bench memoranda.
Still, on the merits, some excellent heavy lifting. Great job.
Sure, it doesn't happen all the time. But it happens here. I very much enjoyed Justice Gomes's analytical evaluation of the evidence here, which seems entirely correct to me. Some of the expert declaration was admissible, and some of it wasn't. I'm persuaded.
Maybe there's a little bit too much introductory stuff at the outset of the opinion; e.g., lengthy discussions of the most basic evidentiary and procedural principles. But that's what naturally happens (albeit sadly) when opinions are derived directly from bench memoranda.
Still, on the merits, some excellent heavy lifting. Great job.
People v. Oropeza (Cal. Ct. App. - May 23, 2007)
Don't cut someone off on the 805.
Oh, also: Don't shoot someone just because they cut you off on the 805. Or you may, as here, get 80 years to life.
Oh, also: Don't shoot someone just because they cut you off on the 805. Or you may, as here, get 80 years to life.
Baker v. Exxon Mobile (9th Cir. - May 23, 2007)
I like it when an opinion is somewhat entertaining. But, sometimes, the judge/clerk is simply trying way too hard.
Like this nautically-themed dissent by Judge Kozinski from the denial of a petition for rehearing en banc.
Like this nautically-themed dissent by Judge Kozinski from the denial of a petition for rehearing en banc.
Tuesday, May 22, 2007
In Re Sandra Lawrence (Cal. Ct. App. - May 22, 2007)
Fourth time's a charm.
Davis wins rounds one and two. Schwarzenegger wins rounds three. But loses round four.
So Sandra Lawrence gets out of prison. Unless the California Supreme Court intercedes.
Interesting facts. And an interesting dispute between the majority and the dissent. You can definitely see where both sides are coming from on this one.
Davis wins rounds one and two. Schwarzenegger wins rounds three. But loses round four.
So Sandra Lawrence gets out of prison. Unless the California Supreme Court intercedes.
Interesting facts. And an interesting dispute between the majority and the dissent. You can definitely see where both sides are coming from on this one.
Eight Unnamed Physicians v. Medical Exec. Comm. (Cal. Ct. App. - May 22, 2007)
I got a late start reading opinions today. Sometimes the fact that I have a real job (okay, make that "real job") gets in the way, sadly.
But even the first, tiny little amended opinion I read today made me smile. For example, when Justice Marchiano says: "The first full sentence on page 13 is modified to read: Moreover, cost conscious, creative lawyers with today’s technology and law firm resources should be able to economize in a manner that does not jeopardize an adequate defense." All I could think of was that this sentence would be equally valid were it to read: "Moreover, creative lawyers with today's technology and law firm resources should easily be able to pad their bills in a manner that does not substantially advance the defense."
But even the first, tiny little amended opinion I read today made me smile. For example, when Justice Marchiano says: "The first full sentence on page 13 is modified to read: Moreover, cost conscious, creative lawyers with today’s technology and law firm resources should be able to economize in a manner that does not jeopardize an adequate defense." All I could think of was that this sentence would be equally valid were it to read: "Moreover, creative lawyers with today's technology and law firm resources should easily be able to pad their bills in a manner that does not substantially advance the defense."
Monday, May 21, 2007
People v. Superior Court/Decker (Cal. Supreme Ct. - May 21, 2007)
I know that some of our youngest readers are starting to study for the bar exam this week.
Maybe this will help.
It's a good review of the elements of solicitation and attempt; in particular, as applied to attempted murder. It's not that long, and it's got a dissent, so you can see the various arguments that a person might make one way or the other.
But, according to the majority, what does it take for an "attempt"? Not much. Basically, just the tiniest thing. Just add a tiny little bit of movement (e.g., a downpayment) to a solicitation and, boom, you've got an attempt.
P.S. - Don't call Russell Wafer at the Lock, Stock & Barrel in Temple city if you want your sister whacked. Because that "John" dude he'll set you up with is actually a cop.
P.P.S. - That last part probably won't be on the Bar.
Maybe this will help.
It's a good review of the elements of solicitation and attempt; in particular, as applied to attempted murder. It's not that long, and it's got a dissent, so you can see the various arguments that a person might make one way or the other.
But, according to the majority, what does it take for an "attempt"? Not much. Basically, just the tiniest thing. Just add a tiny little bit of movement (e.g., a downpayment) to a solicitation and, boom, you've got an attempt.
P.S. - Don't call Russell Wafer at the Lock, Stock & Barrel in Temple city if you want your sister whacked. Because that "John" dude he'll set you up with is actually a cop.
P.P.S. - That last part probably won't be on the Bar.
People v. Cervantes (Cal. Ct. App. - May 16, 2007)
Wilfredo Cervantes wants to appeal his drug conviction. But the court reporters says that due to a "technical malfunction" (really?!), she can't prepare a transcript of the evidence at trial. The trial court recalls nothing about the case. The appellate counsel for Cervantes weren't trial counsel, so don't know what went on there either. So what to do?
The prosecutor says "Here's what the evidence was . . . ." and prepares a draft settled statement. Appellate counsel for Cervantes make some minor changes, and the trial court then approves the statement.
Justice Gilbert says "Wait a minute. I think not." He does the tiniest bit of digging and discovers that the trial counsel for defendant (Mark Stein), while no longer with the PD's office, is still a member of the Bar. So wisely, in my view, vacates and remands to see if the parties can get Stein's input on the settled statement. And also says that, if they can't, that Cervantes gets a new trial. Yeah, that's a pain, but it happens incredibly rarely, and it's better to retry than to deprive someone of an appeal because the state/court reporter screwed up.
A very short opinion; only five doubled-spaced pages. Eminently reasonable. My only objection is that the last sentence ends with two periods. :-)
The prosecutor says "Here's what the evidence was . . . ." and prepares a draft settled statement. Appellate counsel for Cervantes make some minor changes, and the trial court then approves the statement.
Justice Gilbert says "Wait a minute. I think not." He does the tiniest bit of digging and discovers that the trial counsel for defendant (Mark Stein), while no longer with the PD's office, is still a member of the Bar. So wisely, in my view, vacates and remands to see if the parties can get Stein's input on the settled statement. And also says that, if they can't, that Cervantes gets a new trial. Yeah, that's a pain, but it happens incredibly rarely, and it's better to retry than to deprive someone of an appeal because the state/court reporter screwed up.
A very short opinion; only five doubled-spaced pages. Eminently reasonable. My only objection is that the last sentence ends with two periods. :-)
Friday, May 18, 2007
U.S. v. Smiskin (9th Cir. - May 18, 2007)
I assume this means that members of the Yakima tribe don't have to pay stop at highway toll booths either.
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