People v. Mays (Cal. Ct. App. - Feb. 28, 2007)

Here I was, sitting at my office, and I thought to myself: "Sure, Shaun, you know a lot of stuff. But, when you think about it, you're really quite ignorant about the differences between street prostitutes and prostitutes who work through escort services. That's a huge, gaping, hole in your knowledge base. Don't you feel like an idiot? Heck, I bet you don't even know what escort services charge, much less what they do for their money or what percentage of their customers have sex with the prostitutes. You moron!"

And then, voila, I read this case. Problem solved.

Let me share my new-found knowledge with you, my loyal readers. By telling you about "Exotic Secrets," which was an escort service down here in San Diego. And -- given the name -- I know that the following information will shock you. But, yes, "Exotic Secrets" was one of those "escort" services that, wouldn't you know it, often provided sex to its clients.

Here are the additional, juicy, details regarding street hookers versus hookers you find in the Yellow Pages:

"Mayo ran an escort service, Exotic Secrets. The escort service charged $150 to $300 for a one-hour 'private dance.' Six or seven out of every 10 customers requested sexual services. [Ed: That's all?! I'd have guessed at least 90%.] The fees for the sexual services ranged from $50 to $1,500 [!], depending on the services provided. The core group of women gave all their earnings to Mayo, including fees from sexual services, and he paid for all their living expenses, including rent, food, and cell phones used in the escort/prostitution business. Mayo provided a house for the women on Ewing Drive.

A San Diego police detective testified about the typical differences between street and escort prostitution. Street prostitutes usually have a pimp who provides the prostitutes with a hotel room and sometimes food and money for condoms, and in return the prostitutes give the pimp all the money they earn. In contrast, a person running an escort business typically builds a wall between himself and his escort prostitutes to make it appear they are independently engaging in prostitution. Escort prostitutes generally charge more money for sexual acts and less frequently have a pimp.

Typically, street prostitutes recruit other prostitutes for their pimp; this does not typically occur in escort prostitution. The women working for Mayo recruited other escort prostitutes. Escort prostitutes infrequently have sex with the person running the business, while street prostitutes often have sex with their pimps. Mayo regularly had sex with the women who worked for him. While street prostitutes have tattoos reflecting their pimp, this is not usually seen with escort prostitutes. Several of Mayo's escort prostitutes had tattoos of the logo for Mayo's business, Supreme Entertainment, on their lower backs and one woman was told if she stayed long enough and proved she was 'down' enough, she could earn a tattoo like the other women."

Another knowledge gap filled. Thank you, Justice McConnell.

Davis v. City of Las Vegas (9th Cir. - Feb. 28, 2007)

There's no one I'd rather have on the panel if I was the plaintiff in a police brutality case than Judge Reinhardt. And I'd positively salivate if I knew he was the one who was going to author the opinion.

Which he does here.

Who wins, you might ask? I'll give you a hint. Here's the first paragraph of the opinion:

"Once again we confront the question whether a police officer’s use of force during the arrest of an unarmed citizen was sufficiently excessive to violate the citizen’s clearlyestablished constitutional rights. Officer David Miller of the Las Vegas Metropolitan Police Department responded to a call from the Las Vegas Club Hotel & Casino informing him that security personnel had encountered Frankie Davis reading a magazine in an area of the Casino not open to the public. After Davis, who had been handcuffed by Casino employees and remained handcuffed throughout his encounter with Officer Miller, refused to consent to being searched by the officer,
Miller slammed him head-first into a wall several times, pinned him against the floor, and punched him in the face. At some point during this encounter, Miller fractured Davis’s neck. Davis was unarmed at all times."

Now, Judge Reinhardt doesn't expressly tell you in this paragraph who's going to win. But if you can't figure it out, well, honestly, you're just not that bright.

Truthfully, I think that Judge Reinhardt is correct, and that the officer doesn't have qualified immunity, or at least not sufficient to obtain summary judgment. And Judges Noonan and Thomas agree.

Apart from the merits, I guess the "new" Las Vegas is somewhat like the old Las Vegas. At least when it comes to getting slammed into the floor and having your neck broken. It happens. Don't mess with the casinos. Or the LVPD. That said, it's still somewhat different than the old Las Vegas, as nowadays there's potentially a legal remedy for the violation of your rights. You're not just buried in a hole in the desert.

Ah, progress.

U.S. v. Vartanian (9th Cir. - Feb. 28, 2007)

Judge Bybee is totally right here. Of course you can bounce a juror who repeatedly contacts the family and other people associated with the defendant. Even when you (accidentally) know that she's the lone holdout against a guilty verdict.

I'd have bounced the juror too. And would certainly affirm.

Alcala v. Superior Court (Cal. Ct. App. - Feb. 27, 2007)

I had two strong -- admittedly somewhat contradictory -- reactions to this case.

First, I can very easily see why the defendant was previously sentenced to death. Twice. And almost assuredly will be again. Read the six pages starting at page three and you'll see why. It's horrible, chilling stuff.

Second, when I read further, and dug a little deeper, I started to have very serious concerns about the manner in which Justice Sills presented the facts in his opinion. The most damning evidence that Justice Sills discusses that ties Alcala to the murder of Robin Samsoe came from Dana Crappa, a witness whose testimony Justice Sills details at pages three and four. Read how Justice Sills describes that testimony, which is presented in a very favorable (though somewhat strange) light.

Then read this opinion by Judge Dorothy Nelson of the Ninth Circuit. Which discusses and analyzes Ms. Crappa's devastating testimony at length (particularly at pages 8735, 8746-52, and 8760-62).

Let's just stay that Justice Sills' description of this central testimony against the defendant is extremely unbalanced. To say the least. It's a type of biased, results-oriented presentation that I wouldn't even expect in a prosecutor's brief, at least from a good one. Much less do I expect something like this from the opinion of a neutral judge.

Mind you, the actual holding of the case concerns only venue issues, so it's not like the one-sided factual recitations technically "matter" to the holding. Still, I didn't like what I read here. I want to trust that what I'm reading from the Court of Appeal is a balanced presentation of the matter and one that I can both rely upon and trust. And I didn't get that feeling in this case.

P.S. - What's perhaps most surprising about this opinion is that it comes from Justice Sills. As loyal readers may recall, I've been almost uniformly effusive about his work product. This is a classic example of my reaction to the opinions by Justice Sills (e.g., "I wish that I could write half as well as he does," "I don't recall ever strongly disagreeing with one of his published opinions," and "Want to see the type of enlighted, well-written, equitable, and incredibly reasonable opinion that I wish were the norm rather than the exception? Here it is."). And this one. And this one too. Sure, Justice Sills may occasionally be a bit harsh. Or, rarely, a little sloppy.

But I typically find myself incredibly impressed by his opinons. Except for this one. Which didn't have to be that way. Especially on a largely irrelevant point.

Maybe this simply further evidence -- yet again -- that death penalty cases often tend to bring out the worst in people. Even incredibly good judges.

U.S. v. Castillo-Basa (9th Cir. - Feb. 26, 2007)

They both have a good point.

When I first read the facts of the case, my reaction was the same as Judge Trott's. A defendant can be convicted of perjury even if he's acquitted at the underlying trial. They're two separate offenses. They have distinct elements. Double jeopardy doesn't apply. So, I thought, when X takes the stand and says "Y isn't true", X can thereafter properly be convicted of perjury when Y is true and X knew it. Even if X got off at the original trial.

But, upon reflection, I think that Judge Reinhardt has a point. He argues that, at least in some cases, double jeopardy should bar the subsequent perjury prosecution. Because, otherwise, the government could basically commence multiple prosecutions over the same basic offense. And, though he doesn't make this point, the regression here could potentially be infinite. X gets up at his trial for murder and testifies "I didn't do it." He's acquitted. Then the government brings a perjury prosecution, claiming that X lied when he said he was innocent. X then takes the stand at the second trial and says "I didn't lie; I really didn't do it," is acquitted, and the government then brings a third prosecution. Ad nauseum.

So I originally thought that, had O.J. testified, a perjury prosecution would have been entirely proper. Now, after reading Judge Reinhardt's opinion, I'm not so sure.

Mind you, this would all be irrelevant if thecourts properly applied collateral estoppel principles to criminal cases. But we don't. At all. Starting with Blockburger in 1932 and up to the present era. Hence we have the double jeopardy problem here.

In the end, like Judge Wardlaw, my own views on the subject probably come closer to Judge Reinhardt than Judge Trott. I'd have written a slightly different opinion than my former boss (including, ironically enough, that I wouldn't have been nearly as defensive as he was, though I imagine that some of that was probably just for Judge Wardlaw's comfort). But, in the end, I would probably have come out the same way.

P.S. - Another small difference. Unlike Judge Reinhardt, I wouldn't have gratuitiously slammed -- hard -- the prosecution in the O.J. Simpson case. Make sure to read the conclusion of footnote 6 (on page 2107) for Judge Reinhardt's comment about "the unprecedented imbalance in legal skills between the Dream Team and the prosecution" therein. Oh, and, unlike Judge Reinhardt, I wouldn't have made reference to the fact that "the glove didn't fit". I'm pretty damn sure that it did.

People v. Robles (Cal. Ct. App. - Feb. 27, 2007)

Yes, Virginia. You do indeed have a right to admit probation violations. Even if your counsel keeps telling you that this is a horrible -- horrible -- idea.

So, for example, when James Robles gets pulled into court for allegedly violating his probation, and his attorney requests a hearing date to contest the violation, Robles is permitted to say (as he does): "No, I'm going to go ahead and get sentenced. I want to. I will just go ahead. And I have a drug problem . . . and I want to go ahead if it's all right. I admit to my violations." We will, in fact, give effect to this request. Especially when -- as here -- Robles, after conferring at some length with counsel, who again requests a hearing date, again interjects "I don't want to continue this. I admit my violations. I tested dirty – positive for methamphetamines [sic]. I have a drug problem. I admit my violations. . . . I don't want to go to prison."

You have that right, Mr. Robles. But can I offer this tiny, tiny suggestion. Both to Mr. Robles and to anyone else who might in the future have a similar sentiment.

Listen to your lawyer. You may think you're doing the best thing for your own welfare. But, trust me, your judgment is often, shall we say, clouded. You may well be making a big, big, big mistake.

Don't believe me? Just ask Mr. Robles. Who, the next day, once he finally understood the consequences of his admission (e.g., three years in the pokey), tried to withdraw it.

Sorry. Tough luck. You had a right. You exercised it. You're bound.

Lesson for the day. Worth repeating:

Listen to your lawyer.

U.S. v. Majia-Pimental (9th Cir. - Feb. 26, 2007)

I'd have been reluctant to sign onto the opinion of Judge Paez in this case.

Admittedly, after reading the underlying precedent and statutory language, I understand why the panel comes out the way it does. (Though I thought that Judge Paez could have written the opinion a little better in this regard, including but not limited to refraining from putting a lot of the important discussion/distinctions in the footnotes rather than the text). So, in the end, maybe he's right, and maybe I'd have climbed on board.

It nonetheless still bothers me that we're interpreting the statute that clearly permits a defendant to game the system -- to refuse to provide relevant information until his third sentencing hearing (which was six full years after he was charged with the offense) and then "come clean" and satisfy the safety valve requirements with a complete disclosure only after everyone else had already been convicted and/or pled out, at which point his information is useless. It's clear that Majia-Pimental initially lied in order to protect his uncle, and only told the truth after the truth could no longer help the government. While in an unusual case that might be okay, waiting until six years -- and multiple appeals -- have transpired to make a full disclosure, and doing so only when this disclosure is useless, is hardly what I think Congress was thinking about when they enacted the safety valve to the mandatory minimums.

Nonetheless, I understand that the statute doesn't expressly establish a good faith requirement; moreover, that precedent apparently allows each new sentencing hearing to essentially wipe the slate clean and allow another shot at everything, including the safety valve. So, okay, maybe the case has to come out the way it does.

Still, even if I'd have come out his way in the end -- and I'm still not positive I would -- I'd have likely written a much more moderate opinion on the subject than Judge Paez. I'm far from convinced that this case advances a just and equitable result.

Yoo v. Jho (Cal. Ct. App. - Feb. 23, 2007)

There's no better example of California law being inconsistent with Solomonic justice than this case.

Plaintiff buys a retail business from defendant and pays $400,000. Defendant fraudulently represents that the business grosses $700,000 and nets $500,000 when she knows that isn't the case.

Sounds like a good case of fraud, and authorizes rescission, right?

The complicated part is that between 30-70% of the business involves the sale of knock-off -- e.g., counterfeit -- merchandise (i.e., fake Louis Vuitton and Gucci bags). And both parties to the contract know that. Plaintiff still was lied to, right? Still gets to rescind the purchase, which was based on fraud, right?

Nope. Because we don't enforce a contract to engage in illegality (e.g., the sale of counterfeit goods). Even if that part of the contract might be only a portion (e.g., 30-70%) of the deal.

That part I get. At least as a matter of precedent. And that's precisely what Justice Klein says in holding that plaintiff can't recover anything.

But, honestly, I liked -- fairly a lot -- more what Judge Buckley did in the trial court. He basically said: "Yeah, there was fraud, but there was also misconduct on both sides, so I'm going to split the baby and award plaintiff $125,000 0f the $400,000 purchase price." Sort of like that guy. (No, not that guy.)

So I agree with Justice Klein that California law (apparently) doesn't allow such an intermediate approach, and instead insists upon a more categorical imperative. But I'm not entirely sure that's the most just approach.

Plus, if that's indeed the law, does that mean I can go out tomorrow and enter into fraudulent contracts to buy and sell all sorts of retail establishments that are engaged in (at least partially) illegal acts: department stores, head shops, etc., obtain $500,000 a pop, and then keep the money with no recourse to the other side? Sure, the law deters such contracts by refusing to enforce them. But I promise you I can find people that'll enter into them. So if that's really okay, please let me know. 'Cause I got some shopping to do.

People v. Zapisek (Cal. Ct. App. - Feb. 22, 2007)

Paul Zapisek is a 63-year old man who was found legally insane after he attacked a stranger -- whom he mistook for Satan -- a decade ago.

Do I believe that, after ten years of treatment, and at 60-plus years of age, Mr. Zapisek is a huge danger to himself or the public? Not especially.

But when you're the only witness on your behalf, and when this is what you have to say, you're going to stay in. Even when the evidence adduced by the state in support of your commitment is somewhat lame. And the Court of Appeal will -- and does -- affirm:

"Zapisek [] testified that he believed, although it might be a delusion, that he had 'inherited a great fortune of money.' He read a prepared statement, in which he asserted that he had appealed his case to the California Supreme Court, which had referred it to the United States Supreme Court. The case somehow infuriated the president, who fired, or tried to fire, the Supreme Court. He thought that President Bush was aware of him, and that 'my close to coming out is probably on his mind and he’s started drinking again.' Zapisek denied that he ever said he would hurt the president. . . . Zapisek also indicated that he would act in 'self defense' if necessary in the future, stating 'if somebody’s coming after me, I have to defend myself somehow so that’s why I’ve hired guards – bodyguards.' When asked about taping over certain equipment at the hospital, Zapisek said he thought they were bugs, and that he was raised in a house that was bugged for sound."

Yikes. I'm pretty sure that those things you taped up weren't designed for evesdropping, Mr. Zapisek. Just like I'm pretty sure you didn't inherit a great deal of money and that Bush didn't threaten to fire the Supreme Court over your "case". Whether the guy's drinking more nowadays; hey, your guess is at good as mine.

Young v. McCoy (Cal. Ct. App. - Feb. 21, 2007)

Wait. Let me see if I get this right.

Brother A shoots Brother B in the home of Mother. Brother A is promptly convicted of attempted premeditated murder of Brother B and sentenced to 12 years in prison.

Mother then creates a testamentary trust which leaves everything to . . . . Brother A?! The attempted murderer of her son?! And not only cuts Brother B out of the will, but also orders the trustee never to let Brother B into her home again?!

Wow. I guess the rich are better than us.

Bono v. David (Cal. Ct. App. - Feb. 21, 2007)

The Ninth Circuit makes it a five-day weekend and (again) publishes nothing. Nice.

Meanwhile, this case reminds us that it's all about context. So, for example, when the opinion repeatedly refers to what "Bono" has done, I had to keep reminding me that it's not that Bono. Or even that one. Rather, we're talking about Julia Bono. No relation, I assume. And Justice Haerle's opinion doesn't mention it -- and there's no reason to -- but I assume that the "Julia Bono" who's representing herself in this appeal is the same Julia Bono (or should I say, "Reverend Julia Bono") of the Rainbow Church of Living Light. Not exactly one of the world's most popular religions. But, hey, whatever floats your boat.

But then I learned: Maybe it is the "real" Bono. Or, at a minimum, that the name "Bono" almost inevitably leads one into a career in music. Because Julia -- uh, Reverend -- Bono appears also to be the precussionist in that wildly popular band Rockinova. Rock on!

I guess I should have expected that the players in this appeal were, shall we say, somewhat interesting when I read this sentence in footnote 2 of the opinion: "Van Donk is described in some of the pleadings before us as a 'master,' but at oral argument it was explained that he is a 'master of martial arts,' not a professional
mediator, and also not an attorney."

I can just see the underlying conversation now. "Let's get a professional mediator. No, wait. This case is way too important for that. Let's get a master. A Kung Fu Master. That'll solve our problems ASAP."

If only regular lawsuits could be solved so easily.

People v. Santos (Cal. Ct. App. - Feb. 20, 2007)

Nothing published by the Ninth Circuit today. Gotta love those four-day weekends.

A couple of published cases from the California Court of Appeal, including this one. I'd have written the opinion differently than Justice Kriegler did. But I'd nonetheless have probably come out the same way.

I can see why the jury might want to slink out the back door and not talk to anyone after rendering their verdict. Mind you, I'm not positive that that's an especially good practice. But I agree it's not structural error.

So while I might have gotten there slightly differently -- probably in a more nuanced fashion that is shown in this opinion by a long-time prosecutor -- I think that Justice Kriegler properly affirms.

People v. Scott (Cal. Ct. App. - Feb. 14, 2007)

This just in: Having sex with your daughter at her 18th birthday party isn't okay. Even if the jury deadlocks (twice) on the rape charges. It's still incest. You still go to prison. Even in San Berdoo.

Defendant makes a claim that Lawrence provides constitutional protection for the practice. Shockingly (not), Justice King rejects that contention. Consensual sex between adults is one thing. Dorking your teenage daughter is another. Know the difference. Learn it. Be it.

Brady v. PPL Montana (9th Cir. - Feb. 14, 2007)

"Dear Montana Supreme Court:

We love you. We've always loved you. Even when you break our heart.

We've twice asked you to the prom. Actually, our little brother -- the district court -- did. And twice you turned us down. By 'prom', of course, I mean the certified questions we posed to you. Both times you told us shut up and leave you alone.

Now we're asking you ourselves. Please answer our questions. It's your state constitution. We'd love to know how you'd apply it. We hate to bother you. We know you're busy with tons of other suitors. But give us a shot, baby. We'll be your bestest friend in the world if you say "Yes". You won't regret it.

Third time's a charm?

Looking forward to your affirmative response, we are,

Sincerely,

The Ninth Circuit"

That, in a nutshell, is the Valentine's card that the Ninth Circuit sent to the Montana Supreme Court here.

We'll soon see whether love -- or strike three -- blossoms from this affair.

People v. Bell (Cal. Supreme Ct. - Feb. 15, 2007)

Reason No. 34,638 not to date and live with a crackhead in the same house as your 11-year old son.

Phillips v. Hust (9th Cir. - Feb. 13, 2007)

Think it's easy to litigate a case behind bars? Think again.

This is one of the very, very few cases in which I've ever seen a prisoner actually win their pro se lawsuit; e.g., recover damages. And the only one I've ever seen in which damages were imposed for (1) alleged denial of access to legal material, in which (2) the only rsulting loss was a petition for certiorari to the U.S. Supreme Court, which was almost certain to be denied anyway.

Admittedly, the damages recovered weren't all that great: $1500. And the Ninth Circuit remands for a redetermination/explanation of that amount anyway.

Still, a win's a win, and it's pretty unusual. And even a tiny victory -- or tiny amount of money -- is a huge success for a prisoner. I bet $1500 will buy you a lot of love in prison. (Remember, it's a family blog, so I'm not talking about that kind of "love".)

After reading the facts, I didn't think that the prisoner could, would or should win this one. That said, Judge Browning writes a good opinion. At the same time, I think that Judge O'Scannlain's dissent is pretty darn persuasive as well.

Interesting case.

U.S. v. Hernandez (9th Cir. - Feb. 14, 2007)

This is one of the best opinions I've ever read from Judge Gould. It's concise, cogent, and ruthlessly persuasive. I can't fathom a better resolution of the case.

I agree with Judge Gould that the U.S. improperly introduced the defendant's post-arrest, pre-Miranda silence in its case-in-chief. And I'm no huge fan of the harmless error doctrine, which is routinely overapplied, but I also agree with Judge Gould that the error in this case was harmless beyond a reasonable doubt. The dude was caught crossing the border with a quarter-plus pound of meth in his front left pocket. His story that these drugs were "planted" on him by the driver is laughable. (What moron, by the way, drives from Mexico into the U.S. with a quarter-pound of methamphetamine in his pocket? I mean, come on.)

I also agree with Judge Gould that the district court erroneously failed to instruct on the lesser included offense of simple possession (as an alternative to the count of possession with intent to distribute on which the defendant was convicted), and I similarly agree with Judge Gould that this error wasn't harmless. Admittedly, I'm no expert. And a quarter-pound seems like a lot to me. But Judge Gould does an outstanding job of arguing that a jury might well have found that defendant went to Mexico to stock up on meth for his own consumption, and that the quantity (which, at least according to the government's witness, was between 48-96 doses -- and I'm in no position to disagree with that assessment) wasn't so out of bounds to be clearly for sale. I'm sure some people go through 48-96 doses pretty darn fast. (Sadly, I think I know one person like that fairly well.) Since a jury might have concluded that defendant was part of that group as well, the failure to instruct on the lesser included offense wasn't harmless. Hence we vacate the conviction (and the resulting 10-year minimum) and remand for a new trial.

The opinion by Judge Gould is really impressive. My summary doesn't do it justice. Great, great job, Ron.

Hahn v. Mirada (Cal. Ct. App. - Feb. 13, 2007)

The first paragraph of an opinion sometimes makes a great deal of sense. Particularly when it's a case like this one, and is published (after initially not being published) near Valentine's Day.

Here's how Justice Jones begins her opinion:

"In this appeal from a ruling on a demurrer, we consider this factual predicate: a woman is told she has a particularly aggressive form of breast cancer. She undergoes chemotherapy and has a radical mastectomy in an attempt to save her life. The pathology report prepared after the surgery shows the woman did not have cancer at all. The woman’s doctors learn their patient did not have cancer, but they do not tell her. As a result, the woman lives for more than two years believing she has a fatal disease. We hold these facts can support her husband’s independent cause of action for loss of consortium."

Makes sense to me.

People v. Pedroza (Cal. Ct. App. - Feb. 13, 2007)

Here's an opinion by Justice Suzukawa, who's fairly new to the Court of Appeal (he's been there for a little less than a year). It's a criminal case, and the victim, who was allegedly set on fire by her spouse (and subsequently died), made two sets of statements that incriminated her husband.

I agree with Justice Suzukawa that the first statement was admissible hearsay under the spontaneous utterance rule, even though it wasn't all that spontaneous -- indeed, was made under police questioning. I also agree that the second set of statements involves a "closer" question (though I'd hardly say, as Justice Suzukawa does, that it's only "slightly" closer).

But, unlike Justice Suzukawa, I think the better view is that the second set of statements weren't spontaneous utterances. Yes, the victim had been recently burned, and continued to moan and shake. But she made the statements only after five minutes of questioning by the police, during which time she also both asked the police different questions herself (e.g., how she looked) and requested that the police do various things (e.g., hold her hand). I find it difficult to conclude that statements made after five minutes of consistent police questioning are really spontaneous.

I don't know whether the statements are admissible as dying declarations -- an issue that Justice Suzukawa doesn't reach since he admits them as spontaneous utterances. But, for me, I'd rather hang my hat on dying declaration grounds than spontaneous utterances, which I think isn't really true here.

As an aside, the defendant said two random, interesting things to the police once they caught up with him immediately after the fire. First, when they initially asked him who he was, he replied: "Elmer Fudd". Funny. I guess you don't lose your sense of humor -- as it were -- just because you recently set your wife on fire. Second, in a darker vein, once defendant's arrested and taken to the police station for questioning, he eventually says: "“[J]ust put me in a cell by myself with my belt and I’ll take care of it," and, later, "[C]ome on, just take me out back and just put a bullet in my head.” Sad. And very much like an episode of NYPD Blue, as I recall.

Adams v. State of California (9th Cir. - Feb. 13, 2007)

Two quick points about this case. First, for those profoundly interested in civil procedure (and who isn't?), it contains a neat discussion of the doctrinal prohibition on duplicative suits, which is a different doctrine than claim preclusion but intimately related in its details. So it's a quick primer on something you occasionally see but that we typically don't talk about much in law school.

Second, on the less academic front, did you know that California food and drug inspectors carry a gun?! I did not. But apparently they do. The State of California Department of Health Services decided that they did not especially want Avril Adams to be employed in that position, she sued, lost at trial, filed another suit, got it dismissed, filed an appeal, and lost again. All of which seemed right to me.

Parenthetically, given the brief glimpse into Ms. Adams's conduct contained in Judge Thompson's opinion, I'm somewhat pleased that she's not carrying a gun. Or, perhaps more accurately, one provided by the state. It sounds like she may have some "issues" -- as we say down here in SoCal -- that may well include some anger management problems. To which packing heat probably isn't an especially great solution.

The Lands Council v. Martin (9th Cir. - Feb. 12, 2007)

Sometimes I critique -- good-naturedly, of course -- the Ninth Circuit for dispensing justice a bit slowly. Sometimes way too slowly.

Not this time. I thought the panel did a fairly good job of both speeding this case up as well as resolving it quickly (e.g., issuing an opinion, with an immediate mandate, a week after the oral argument).

To the benefit of some trees that are technically "alive" but that might die. Regardless of the merits, about which reasonable minds might disagree (Judge Graber writes an opinion that's fairly persuasive, if hardly irrefutable), I liked how the court responded, fairly rapidly, to this appeal.

Even if the defendant -- whose last name was "Martin" (no relation) -- partially lost. It happens.

Swartz v. KMPG (9th Cir. - Feb. 12, 2007)

I know that it's legally irrelevant to the merits. Nonetheless, when I read opinions like this one, I have a hard time figuring out which one I abhor more: the disgraceful rich people (like Swartz) who purchase these abusive tax shelters or the disgraceful rich people (like KMPG) who create and sell them.

Tough call.

U.S. v. Blanton (9th Cir. - Feb. 12, 2007)

The panel consists of Judges Kozinski, O'Scannlain, and Bybee. Judge O'Scannlain writes the opinion. It's a criminal case. The government has argued that the district court applied the wrong law and, on that basis, erroneously concluded that a particular sentencing enhancement didn't apply. The defendant argues that the Double Jeopardy Clause precludes the government from making that argument on appeal.

Judge O'Scannlain's opinion commences with a crisp and neutral recitation of the issue presented. He goes through the facts. He starts applying the law. The opinion starts to read like some of the defendant's claims aren't so crazy. Judge O'Scannlain doesn't expressly say that he agrees with these arguments, but the way the first four or so pages are written, it sounds like he's presenting the defendant's arguments as at least a tiny bit persuasive. Were the opinion written by a different author, on a different panel, you'd be thinking that it looks like the defendant's going to win.

But come on. This is Judge O'Scannlain. Alongside Judges Kozinski and Bybee. A criminal defendant's dream panel this is not. Especially on issues such as these. You know that the other shoe is inevitably going to drop sometime soon. You know that, down the road, the opinion is going to contain that critical paragraph that begins "However, . . . ." and that, at that point, the government's going to win. You turn the pages just waiting to read how Judge O'Scannlain is going to distinguish -- or critique -- existing precedent on this issue in order to find that the defendant's arguments are mistaken. It's a mystery that keeps you riveted, and keeps you reading and turning the pages.

Except for one thing. The other shoe never drops. Judge O'Scannlain finds for the defendant, and the panel unanimously concludes that the Double Jeopardy Clause does precisely what defendant claims that it does. And the government's appeal is accordingly dismissed.

Sometimes you can figure out where the panel's going just by who's on it. Other times, you can't. This is a darn good example of the latter.

P.S. - I loved, by the way, that the opinion was written this way. I really did keep turning the pages, waiting for the "But" that never came.

Nguyen v. Garcia (9th Cir. - Feb. 9, 2007)

For what it's worth, I think that Judge Bea not only gets this one right, but also writes a moderate and reasonable -- and persuasive -- opinion.

Yes, when defendants invoke the right to counsel, we can't use that against them at trial or to defeat their insanity defense. But, Judge Bea (rightly, in my view) holds, at least under California's bifurcated procedure, we can use the fact that they invoked as evidence that they may not be incompetent to stand trial; e.g., that they're capable of helping in their defense.

I think that the two stages are sufficiently different to justify the differential treatment. So I'm on board for this one.

People v. Goodwilly (Cal. Ct. App. - Feb. 9, 2007)

Because it's the lowest form of juvenile humor, even though it was the only opinion published today by the California Court of Appeal, I promised myself I wasn't going to comment about the caption in this case.

But then, on page four, I read this line by Justice Aaron: "Ralph saw Goodwillie put something down his pants. . . ."

Resistance is futile. I submit.

U.S. v. Ross (9th Cir. - Feb. 8, 2007)

Not every servicemember in Iraq is someone you'd be happy to meet in a dark alley. Much less do they uniformly represent the ideals we'd like to propogate abroad.

Take James Douglas Ross, for example. He was separated from the Army when he was caught trying to mail a submachine gun from Iraq to his father's home in Spokane. Then the Military Police find a cache of white supremacist paraphernalia, alongside several weapons, hidden behind ceiling tiles in Ross's military quarters. Then, after he's discharged, Ross starts passing out flyers from the National Alliance, which is a neo-Nazi organization that hates minorities and Jews and that advocates the violent overthrow of the U.S. government.

I'll spare you the remainder. Suffice it to say that he's not a nice guy.

Jones v. Lodge at Torrey Pines (Cal. Ct. App. - Feb. 8, 2007)

It only took Justice McConnell three days to figure it out, but it's still a tiny bit embarrassing.

Today she made this edit to this opinion, which basically says -- without actually saying it -- "Oops. Did I really cite a case that was granted review by the California Supreme Court? Sorry about that. Delete the citation."

The most embarassing part, honestly, is that review was granted in the case she cited way back in November. So you'd have thought that the clerk (or judge) would have noticed that little red flag on Westlaw, or that the case wasn't officially published. Assuming, of course, that they read the case before citing it.

Plus, since review was granted even before the opposition and reply briefs were filed, it makes one wonder: Why didn't one side or the other point this out, and when exactly was the draft written? Hopefully not before review was granted, right?!

Another case that peers a little bit behind the curtain. No biggie, but still interesting.

P.S. - As it happens, I was randomly watching a clip that included Justice (then-Judge) McConnell on YouTube last night. Check it out!

Butz v. Mendoza-Powers (9th Cir. - Feb. 1, 2007)

Sometimes you wonder what type of lawyers habeas petitioners can afford. Remember, they're poor, incarcerated, vulnerable, and often desperate. Then you find out. And you're horrified.

I fear that this case is all-too-common. George Butz gave a cashier's check for $5,000.00 to Tarzana attorney Henry Halpern to write a first habeas petition on his behalf. Halpern cashed the check and then (allegedly) promptly did nothing -- no petition, no filing, no return telephone calls, nothing. Eventually Butz writes the State Bar and gets his money back, but meanwhile he's now in "second petition" land, which is neigh impossible. And my keen sense is that this is not the first time that attorney Halpern -- a certified criminal law specialist with the State Bar, by the way -- has gotten his clients into trouble; he's been disciplined at least three separate times by the Bar, and twice has been ineligible to practice law as a result.

The panel here at least gives Butz a glimmer of hope that he might not be totally hosed as a result of his attorney's conduct, and that he might possibly be able to file a Rule 60 motion to solve the problems that resulted from Halpern's conduct. But, of course, Butz will probably have to again scrape up another $5,000 or so -- beyond what he's already paid his new counsel -- in order to do so. Which is no small task for someone in Butz's (or Butz's family's) position. And then pray that new habeas counsel doesn't mess it up like the old one did.

Sometimes when you peer behind the curtain you don't like what you see. Even when, as a legal matter, things might turn out okay. This is one of those times.

In Re Walker (Cal. Ct. App. - Feb. 5, 2007)

Who'd you rather have writing your successive habeas petition? Someone who you paid $5000 and never did anything for you? Or Latham & Watkins, which has taken your case pro bono?

The latter. Obviously.

Beth Collins-Burgard and Daniel Seltzer team up and get the Court of Appeal to change its mind and to grant Hudie Walker a new trial for killing her husband in a chilling murder in 1990.

Justice Perluss writes an excellent opinion. And I'm sure that he received excellent, and diligent, briefs as well.

Just don't think that this is your typical habeas case.

Bravo-Pedroza v. Gonzales (9th Cir. - Feb. 6, 2007)

Rarely do I have the opportunity to congratulate the Ninth Circuit on writing an entirely persuasive and outstanding opinion that's also incredibly concise. But that's precisely the case here.

Judge Noonan writes a short, three-page opinion that basically says "When the INS moves to deport you, and loses, they can't thereafter move to deport you again on those same grounds. That's res judicata, even if the law has changed in the meantime. Moreover, the relevant regulations say you can't do this either. You lost; get over it. You can't keep relitigating in the hopes that you'll eventually win." Judge Noonan says it far more persuasively than I just did, but the basic message is the same.

This is an excellent opinion. I can't think of a single paragraph I'd cut out or a single paragraph I'd add. And that's saying something. P.S. - It also achieves the right result.

Stephanie-Cardona LLC v. Smith's Food & Drug Centers (9th Cir. - Feb. 6, 2007)

Why do you read the entire rule, and not simply the first clause? That's why.

I know it seems simple. I know it's something that hammer into the heads of 1Ls (and thereafter). But it's still something that doesn't always take.

Here, it results in a dismissal of a notice of appeal (and, as an aside, the cross-appeal). Because FRAP 4(a)(4) does give you more time to file your appeal if the other side files a motion for attorney's fees. But, as the last clause of the relevant subparagraph reveals, that's only "if the district court extends the time to appeal under Rule 58." Which didn't happen here. Hence, waiting until the fee motion was decided (six months later) and thereafter filing your notice of appeal isn't good enough. Appeal dismissed.

From the facts of (and various filings in) the case, you can perhaps see why appellant's counsel got confused. Still, you gotta file your notice of appeal at the right time. Get some help if you need it. 'Cause it's important (as in, jurisdictionally important) to get it right.

People v. Freeman (Cal. Ct. App. - Feb. 5, 2007)

I'm typically pretty harsh when it comes to attorneys who commit misconduct, commit felonies, and are in general utterly insane. And why not? These are not good qualities.

So when I read this case, which involves the various activities of California attorney Marilyn Freeman, my initial reaction was that I was very glad that, at least for the present, she's no longer entitled to practice law. I'm not a big fan of beating your daughter, stalking her foster parents, and being convicted of solicitation to commit kidnapping, residental burglary, stalking, child endangerment, and battery. From anyone, and much less from someone we entrust to be an officer of the court.

That said, the more I read about Ms. Freeman, the more that my reaction was tempered by compassion. Don't get me wrong; you can't -- can't -- do the stuff she's done here. She's completely, utterly nuts. And engaged in conduct that's totally intolerable. Nonetheless, I couldn't help feeling that a lot of this insanity was caused by something that might make many people go off the deep end as well: the perceived loss of a child. As a result, my thoughts here were a little more nuanced than the harsh reaction that I usually have to the variety of inexcusable acts that are too-often performed by counsel.

Admittedly, even beyond the (horrible) nature of her offenses, there were other facts in here that made Ms. Freeman less amenable to compassion; for example, the fact that, in my mind, she continued to be a whack job even when removed from the situation, and during her criminal prosecution. Moreover, my weak sense was that there was some tactical stuff going on here in an attempt to get her conviction reversed -- including (but by no means limited to) conduct that, in the end, does indeed get her conviction reversed.

Justice Haller holds -- in a very interesting opinion -- that Judge O'Neill, who initially recused himself from the action due to Ms. Freeman's alleged stalking of his friend, Judge Elias, shouldn't have been reassigned to the matter merely because the district attorney concluded that no such stalking had transpired; moreover, that Ms. Freeman preserved (albeit, at most, barely, in my mind) this issue for appeal. There's some more stuff in the opinion on the merits that is both factually intriguing (e.g., the crazy stuff that Ms. Freeman was doing here, and hence why the evidence at trial was sufficient to convict her) as well as informed me of some doctrine of which I was not previously aware (e.g., that while child abduction is a crime, there's no crime of solicitation to commit child abduction in California).

So, all in all, an opinion worth reading. If only to remind yourself: "Stay sane. Don't do stuff like this. It's not good."

People v. Smith (Cal. Supreme Ct. - Feb. 5, 2007)

Sometimes good news isn't really all that good. So, for example, take what attorney Scott F. Kauffman might have told his client after the California Supreme Court's opinion in this case:

"Robert, I've got some great news for you: I got your conviction reversed! Congratulations! Justice Moreno held that you couldn't be convicted of receiving stolen property for that gun in your possession, and the rest of the justices agreed with him. So goodbye conviction!

Now, to be totally honest, the California Attorney General's Office conceded that point. Also, the only reason you're conviction on that count was reversed is because you couldn't be convicted of receiving stolen property when you were also convicted of actually stealing that property -- you can't simultaneously be punished for both. So I guess the win was pretty easy.

Still, that's two years off your sentence! How about that, my friend?

Oh, I almost forgot. One more thing. About that first degree murder conviction, all the other convictions, and the resulting death sentence? The California Supreme Court unanimously affirmed all those. Sorry."

U.S. v. Valle-Montalbo (9th Cir. - Feb. 2, 2007)

Some opinions seem incredibly obvious. Like this one.

Is possession of methamphetamine for sale a drug trafficking offense? Yes.

That's about all there is to this one.

Judge Callahan's opinion is relatively brief, but many judges, I think, could have made this seven-page opinion six pages shorter.

Vivid Video, Inc. v. Playboy Entertainment Group (Cal. Ct. App. - Feb. 1, 2007)

You might think from the caption that this would be an exciting case. But you'd be wrong. Unless arcane procedural issues regarding the appealability of motions to compel arbitration really get your heart racing. In which case: See a doctor.

Yeah, yeah, on the merits, the case involves a dispute between Justice Turner (who authors the majority opinion) and Justice Mosk (who dissents). But that's still not good enough. Even for a person like me who's abnormally into civil procedure.

Move along. Next opinion, please.

Shandralina G. v. Homonchuk (Cal. Ct. App. - Feb. 1, 2007)

Thinking about retaining Dr. Charles F. Landers (down here in San Diego) as an expert witness in your medical malpractice case? Wondering what might happen to you if your expert doesn't run a proper conflict check before talking to you? Then read this case.

Briefly put, here, defendant retained Dr. Landers as a consulting expert, and thereafter, without knowledge of his employment by defendant, plaintiff's counsel contacted Dr. Landers to retain him as a testifying expert. Plaintiff's counsel asked Dr. Landers if he had a conflict, but Landers replied that he didn't. Plaintiff's counsel then sent Dr. Landers some documents, and designated him as a testifying expert, at which point defendants moved to disqualify plaintiff's counsel. And Judge Hayes granted the motion.

Ultimately, Justice McDonald reverses the disqualification order. But this was a major hassle (and distraction) for plaintiff's counsel, and could (and should) have been avoided.

Lesson of the day: Make sure that your expert doesn't have a conflict. Especially when you're hiring someone (like Dr. Landers) who serves as an expert a lot. Otherwise you could be in a world of trouble.

P.S. - Hat's off to Robert Martin Daniels, a recent graduate of USD Law, who was part of the team that got the disqualification order reversed. Ditto for Kenneth Mendel -- a less recent graduate of USD -- for getting the order in the first place. It makes my day as a professional responsibility professor to see two USD students battle it out in an ethics fight!

People v. Zachery (Cal. Ct. App. - Feb. 1, 2007)

I've got to run off to class, so I'll post more about this one in a bit. But you should read it even before I do.

This is the "kangaroo court" case, which I previously discussed here and here, in which Judge Saiers seemed to call the California Court of Appeal a kangaroo court, and to which Justice Sims responded with a hearty bench slap.

But now the opinion gets amended to -- largely -- take out the slams on Judge Saiers, in large part because the Court of Appeal accepts the word of the San Joaquin District Attorney, who writes a pretty persuasive letter that says that Judge Saiers was referring to him (and his "strike team") rather than the Court of Appeal.

The revised opinion by Justice Sims continues to contain some artfully-worded critiques of Judge Saiers, but they're far more subtle (and moderate) than the ones in the original opinion.

More later. But what a fun day already.

People v. Dolly (Cal. Supreme Ct. - Feb. 1, 2007)

Everyone agrees on the result, but the California Supreme Court splits three different ways as to why.

This is another big case (the other being Wells) in which the Court holds that anonymous tips are sufficient to authorize the police to detain someone. Wells was about a drunk driving tip; this one's about a person with a gun. There was a dissent in Wells, but this time, with respect to the result here, the Court is unanimous. It's another case that, as a practical matter, both increases the authority of the police to combat crime as well as provides a powerful tool for individuals to harass their enemies. Just report to the cops that they're driving drunk or have a gun and watch the guns-drawn fun.

The fact that everyone agrees on the result here doesn't mean there's substantial agreement, and Justice Kennard writes a separate concurrence, as does Justice Werdegar (joined by Justice Moreno), to explain their disagreement with many of the arguments adopted by the majority. But that's not too surprising, since all three dissented in Wells. Justice Baxter, who didn't participate in Wells, is in the majority, but that's not too surprising as well.

Different perspectives on anonymous calls, but the result is that, at least in California, they authorize a seizure.