People v. Carter (Cal. Ct. App. - Feb. 26, 2010)

One of the things you can do as a criminal defendant is to try to gum up the works. Make a motion to represent yourself, then ask for a lawyer, then ask for another lawyer, then ask for a different lawyer, etc. That'll definitely make the prosecution a hassle, and take up time.

But in the end, you're exceptionally likely to be convicted at trial. In part because you're guilty, and in part because the prosecutor's hardly going to be inclined to give you a good deal. Plus, at the end, the trial judge may well remember what you've done. And sentence you to 11+ years.

When that all happens, sure, you've preserved some arguments for appeal. But the Court of Appeal will probably see -- and understand -- what was actually going on as well.

And will unanimously affirm.

So it's a strategy, to be sure. But perhaps not as lucrative as you originally contemplated.

Doody v. Schiro (9th Cir. - Feb. 25, 2010)

Judge Tallman, joined by Judges Rymer and Kleinfeld, opens the dissenting opinion carefully. It starts with the following initial paragraph: "I certainly understand the passion behind the majority’s distaste for the facts of this case. I can see how a lengthy overnight interrogation of a seventeen and one-half year-old high school student can be off-putting—perhaps so off-putting that were we reviewing this issue from scratch on direct appeal, we might be tempted to fashion rules that would afford relief. But that is not the posture of this case. We are collaterally reviewing Jonathan Doody’s conviction for the murder of nine people that was already upheld on direct review by the Arizona Court of Appeals, and our review is not de novo—as the majority treats it—but deferential." The rest of the dissent is somewhat less reluctant and moderate, but you get the point. It's not a "fire and brimstone" dissent. Which is not especially surprising given the underlying facts.

The majority opinion, by contrast, is authored by Judge Rawlinson, and doesn't leave many holds barred. Mind you, it easily could have been written even more strongly. And, with a different author, might well have been. But it nonetheless remains a pretty strong indictment of what transpired here.

Nor does the majority shy away from responding to the dissent. And scores a fair number of points in doing so. A typical footnote: "[T]he dissent describes the physical surroundings as

'what had been the office of a Maricopa County attorney, roughly ten feet by eighteen feet in size, well-lit, with carpeted floors and padded chairs . . .' Id. The dissent completely fails to mention that the chair where Doody was seated had a straight, immobile back. There was no table or desk on which Doody could lean or rest his head. For almost thirteen hours, Doody was required to sit completely upright while being interrogated by a tag team of officers."

Trust me, though, it gets a lot more responsive than this. Take this paragraph of the majority opinion: "Our colleagues in dissent chastise us for reaching these conclusions, accusing the majority of 'once again pay[ing] mere lip service to AEDPA and then proceed[ing] as though

it did not exist.' See Dissenting Opinion, p. 3032. The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye."

Wow. I don't know the last time I've seen the words "rubber stamp" and "pucker up" in the same sentence before. But it darn sure wasn't in a judicial opinion. Come on, Judge Rawlinson. Tell us how you really feel.

Judge Kozinski writes a separate concurrence that plods a middle ground. The majority finds both a violation of Miranda and, in a separate basis for reversal, concludes that the confession was involuntary. The dissent disagrees with both of these conclusions. Judge Kozinski, writing for a party of one, agrees with the former but disagrees with the latter.

Beyond his substantive points, Judge Kozinski also adds his classic writing style. Here's a snippet: "The warning given in this case was far worse than no warning at all. At least an un-warned suspect may know his rights without being told about them; many non-lawyers watch Cops and Law and Order. But a non-lawyer who knows about the right to counsel, and who might even be willing to invoke it without a warning, may well hesitate to ask for a lawyer after

being told that the right would only apply 'if you were involved.' After all, a request for a lawyer would be an admission that 'you were involved,' as only suspects who knowingly fall into that category would have a right to ask for one." And draws this analogy:

"Here’s a simple test of the warning’s adequacy: Suppose everything the officer said had been printed on a standardized waiver produced by the state. Since this was Arizona, the birthplace of Miranda, maybe police felt they were entitled to improve on the Supreme Court’s work; call it Miranda 2.0:

You have the right to an attorney present prior to and during questioning, provided you were involved in the crime. (If you were involved, then that right would apply to you.) Do you understand this right?

Yes______ No______

Now suppose Doody had initialed such a form. Would we uphold the warning just because it contained the magic words, 'You have the right to an attorney'?"

In the end, this is nearly a straight up party line en banc vote. 7-1-3. The seven Democratic appointees on the panel in the majority. The idiosyncratic Chief Judge Kozinski as the 1. Rounded out with the three conservatives on the panel -- two Bush I appointees alongside Judge Tallman -- in dissent.

Daniels v. Robbins (Cal. Ct. App. - Feb. 24, 2010)

Lawyers get sued for malicious prosecution. It happens. When they do, they almost invariably file anti-SLAPP motions. Rightly so.

There's some good stuff in this opinion for people on both sides of this equation -- both plaintiffs who sue (and then oppose the anti-SLAPP motion) and the defendant attorneys. Justice Ikola writes a good opinion that does a great job of analyzing and interpreting precedent, as well as (rightly) rejecting some discordant interpretations of the way in which the various malicious prosecution prongs work. On the law, it's a very good, and comprehensive, opinion.

Plaintiffs will like the fact that it's takes a tolerably pro-plaintiff interpretation of most of the factors. Not overly so, but it avoids the overly pro-defendant tilt of some prior precedent in this area. Mistakes that, in part, arise from an understandable desire to get rid of frivolous malicious prosecution lawsuits against lawyers. So on a variety of points, this is a pretty good opinion for plaintiffs: on what constitutes favorable termination, on what "probable cause" means, etc.

Nonetheless, in the end, the Court of Appeal affirms the grant of the anti-SLAPP motion, finding that the plaintiff can't prove malice. Which is almost always the hardest element for plaintiffs in malicious prosecution lawsuits against the lawyers (as opposed to the principals). On this point, the likely defendants -- which means us California lawyers -- are likely to find a great amount of solace.

But I wonder if Justice Ikola's fully right on this point. Sure, here, the lawyers don't have any personal (non-financial) stake in the outcome, and hence the usual type of "malice" arguments don't apply. But they did file a barebones complaint. And they did utterly fail to support it with any actual facts -- which ultimately led to its dismissal. I agree with Justice Ikoa that the initial filing of the complaint seemed fine, as I presume the lawyers relied on the client. But I also agree with him that the continuation of a lawsuit can give rise to malicious prosecution, and on this point, I wonder if the plaintiffs haven't made out a case.

The lawyers here, after all, only gave a bare-bones affidavit in support of the summary judgment motion. It'd be one if the lawyers declared "Our clients told us X, and we relied on X, and the lawsuit was dimissed only because the client kept refraining from producing discovery and letting us prove X at trial, notwithstanding our repeated requests." If that's the case, I'm totally on board for no malice. But the lawyers here don't say that; indeed, what they don't say in this regard seems more significant than what they do say. If a client keeps refusing to provide any discovery, even after repeated court orders, and you still don't have any facts, and you still continue to prosecute the suit, that seems like that might well constitute malice to me.

I'd have to know a little more about the facts to know whether that definitely transpired here. But the one deficiency I found in Justice Ikola's opinion was the part in which he deals with this point and essentially says "Just because you don't have any facts doesn't mean you can't still sue someone." I'm not entirely persuaded by that. If the reason you could file suit in the first place was because your client said X, and yet your client repeatedly -- and after multiple court orders -- refuses to produce X, at some point, it seems to me that you can no longer rely on X. At that point, continuing the suit might indeed constitute actionable malice. Even if the only type of "malice" we are talking about here is the willingness to deliberately continue to sue someone in order to get a contingent fee from a case that you now know lacks merit.

Again, this is a very good opinion from the Court of Appeal. I have an issue with one portion of it. But that shouldn't take away from the remainder. Which remains outstanding.

In Re Christopher C. (Cal. Ct. App. - Feb. 22, 2010)

What a nightmare.

A husband and wife have seven children: Christopher (who's now 16), twins William and Kayle (who are 11), and quadruplets (who are 9). Here's just a snippet of their family situation, which has been in the dependency court for the past six years:

"As the investigation unfolded, some of the children alleged that Father sexually abused them and that their siblings engaged in substantial sexual conduct. One accused his brother of sexually abusing him in Father's presence. The children who did not accuse Father of abuse claimed that Mother physically abused them and coached them to tell lies against Father. What followed was a series of inconsistent statements that left the juvenile court at a loss when it tried to determine whether any of the allegations were true. . . .

With respect to the family's history with DCFS the social worker wrote: . . . . 'It is tremendously disturbing that the immense discord between the mother and father has continued for so many years despite the obvious adverse effects that their broken relationship has had on each of the children. In an interview with the father, father described the child William as having "a fractured mind" as a result of the mother's relentless manipulation. After a thorough review of this family's history, it is clear that each of the seven children have, in the past, and now continue to suffer with fractured minds due to the parents' juvenile ways. . . .

[The trial court] noted that virtually every professional who had contact with the parents concluded they were in an 'alternative universe' that infected the family. The court noted the tortured and conflicting testimony offered by the children and concluded, '[t]hey are so damaged by this ongoing fight that they don't even know what's true and not true anymore. And that's just obscene."

I'll spare you the details of the various allegations and how twisted the whole family appears to be as a result. Suffice it to say that when the parents get this crazy, the kids suffer. A ton.

Yuk.

Robinson v. Schiro (9th Cir. - Feb. 22, 2010)

It's a death penalty habeas case out of Arizona. The panel consists of Judges Betty Fletcher, Marsha Berzon, and Johnnie Rawlinson.

Three women and three Democratic appointees, I might add. Which reminds me that the twentieth anniversary of the first all-female Ninth Circuit panel is coming up next year -- a panel that Judge Fletcher was also on, even those many years ago (alongside Judge Dorothy Nelson and Judge Judy Keep, the latter sitting by designation).

So let's test your predictive powers. With a multiple choice test; one that's not too hard even with the limited information I've presented.

The result is a 2-1 opinion. The majority opinion:

(A) Affirms the conviction and death sentence.
(B) Affirms the conviction but reverses the death sentence.
(C) Reverses the conviction but affirms the death sentence.
(D) Reverses both the conviction and the death sentence.

Related bonus question: Which judge dissents?

(A) Judge Fletcher.
(B) Judge Berzon.
(C) Judge Rawlinson.

Check your answers. If you got 'em both correct, you've got a pretty good grip on the Ninth Circuit.

P.S. - There was another death penalty habeas opinion from the Ninth Circuit that was amended this morning -- Harrison v. Gillespie. That one had an all-male panel of Judges Hug, Reinhardt and Silverman. Same result as Robinson, and if you can't figure out the lineup in that one after looking at the answers to Robinson, deduct two letter grades from your score.

Christian v. Frank (9th Cir. - Feb. 19, 2010)

The Ninth Circuit graciously reminds us this morning that it's not 1973.

Let's go back for a moment to that point in history. President Nixon takes the last troops out of Vietnam. Tower Two of the World Trade Center opens. Vice President Spiro Agnew pleads no contest to tax evasion charges and resigns. And the October War occurs, one result of which is to raise the price of oil from $1.50 a barrel to over $11.50 a barrel.

Meanwhile, the Supreme Court decides not only Roe v. Wade, but also a lesser-known opinion called Chambers v. Mississippi, in which it holds that the Due Process Clause was violated when a Mississippi court refused to permit a criminal defendant charged with murder from presenting hearsay evidence that another person had confessed to the crime. The Chambers decision was virtually unanimous, and was joined by even such pro-prosecution justices as Warren Burger. The sole dissenter was Justice Rehnquist, who asserted only that the defendant failed to raise the constitutional claim and thus did not reach the merits (though he'd likely have dissented on that point as well, I think). The Court ended its opinion by being expressly deferential to the state supreme court, but nonetheless reversed the conviction in order to allow the introduction of critical evidence that someone else confessed to the offense.

Flash forward to 2010. We're now fighting two, rather than one, tough-or-impossible-to-win guerilla wars, and President Obama has committed more troops to the war in Afghanistan while not (yet?) having pulled out the troops fighting the war in Iraq. Vice President Biden commits multiple gaffes and errors, but so far seems to be doing fine on his taxes. The replacement for Tower Two of the World Trade Center has yet to be built, or even really substantially started, a full nine years after it was destroyed. And there's no war in the mideast, but oil is at $70+ a barrel.

Meanwhile, the Ninth Circuit decides a case called Christian v. Frank. In which it unanimously reverses a district court that had granted the habeas petition of a criminal defendant charged with murder who had been prevented from presenting hearsay evidence that another person had repeatedly confessed to the crime. In an opinion written by a judge (Judge Beezer) who was appointed by a former movie star who in 1973 was the governor of California, but joined by two non-right-wingers (Judges Fisher and Graber) appointed by president who in 1973 had finished his "not inhaling" years and graduated from Yale Law School while dating a future senator. The opinion ends by stating that while the panel "sympathizes" with the defendant's understandable desire to present critical evidence that someone else had confessed to the murder, it is bound by the deference granted to state court decisions and hence cannot grant relief notwithstanding Chambers.

The times they are a changin'.

Zetino v. Holder (9th Cir. - Feb. 18, 2010)

You see a relatively high amount of incompetence in immigration court. Cookie-cutter petitions. Excessive fees for doing nothing. Horrible briefs. Missed deadlines.

Not uniformly, of course. But this is definitely a problem area.

There's one place, however, where I've never seen a problem: Law school immigration clinics. When they agree to take the case, you generally get incredibly dedicated (though inexperienced) advocates and outstanding supervision. All delivered for free.

It's like hitting the attorney lottery.

But even Superman and Superwoman combined can only do so much.

Here, Ronald Zetino gets picked up by la migra in May 2001. He can't afford bail, having been in the U.S. for less than 18 months. So he gets to stay in prison . . . for the next six years.

He also can't afford a lawyer, so he files pro se briefs and the like, all to no avail. Finally, and virtually inevitably, Zetino gets deported. Equally inevitably, he eventally blows a deadline; in this case, a November 30, 2007 deadline for the incarcerated Zetino to file an appellate brief before the BIA.

Five days after this deadline, Zetino hits the lottery and gets the USC law clinic to take his case. Nine days later, the students and supervisors at USC file a motion to file a late brief and for an extension of time in order to "accommodate student exams and the ensuing winter break." (I don't entirely understand why this took nine full days, or why at least a pro forma brief couldn't have been cranked out rather than a mere extension of time, but maybe there's a reason.)

The BIA says "no". USC then appeals. And loses there too. Fancy due process and related claims notwithstanding.

U.S. v. Borowy (9th Cir. - Feb. 17, 2010)

Don't use Limewire if you have kiddie porn on your computer. Or any other peer-to-peer network, for that matter.

It's not a Fourth Amendment violation for the government to sign on and check out other people's computer. Even if you tried (but failed) to turn off that feature on Limewire.

You don't have a reasonable expectation of privacy in such cases. And it's such an easy way to investigate, you'll almost surely get caught.

You'll also spend around four years in prison. Where, I'm fairly certain, people won't think that your offense is at all "cool". Plus, no pirated movies.

U.S. v. Edwards (9th Cir. - Feb. 16, 2010)

There's only one published opinion from the Ninth Circuit today. The first one, I might add, in almost a week. Fortunately, it's one that's definitely worth reading.

Reasonable minds might approach this case from a variety of different perspectives. Which is evidenced in part by the fact that the panel is divided.

The issue surrounds what sentence should be given to Duncan Edwards, who was convicted of bankruptcy fraud as well as making a false statement to a bank. The district court sentenced him to five years of probation and seven months of house arrest. The question is whether that sentence is substantively unreasonable.

On the one hand, there's Judge Bea's dissent. Which most assuredly has a point, both globally as well as in this particular case. Both of which are also expressed exceptionally well; this is really a great job by Judge Bea.

As to this particular case, Judge Bea forcefully contends that it's totally unreasonable to sentence Edwards to no prison time. And there are plenty of good arguments in favor of that position. To take but one, the guidelines call for two to three years of prison. For another, it's important (to me, at least) that Edwards committed his current offenses while on probation for another set of offenses. And equally important (again, to me) is that those prior offenses were darn similar to the criminal offenses for which he was earlier convicted in Arizona before moving to Montana; essentially, we have a guy here who really, really likes to lie to banks (and, thereafter, to the bankruptcy court). Indeed, one reason why Edwards was convicted in the second round was because he lied to a bank because, when getting a loan, he failed to tell the bank that he had previously been convicted for lying to a bank in order to get a loan!

In short, you've got a serial felon who clearly hasn't learned in Round I -- and who's fradulently obtaining a pretty large amount of money as a result (hundreds of thousands, if not millions, of dollars). That's a guy who, in general, we should want to incarcerate. A conclusion that Judge Bea supports by rightly noting the need for general deterrence and the need to avoid having "white collar" criminals given a slap on the wrist while sentencing more downtrodden souls to lengthy prison terms for less serious offenses.

Judge Bea also makes a more global point, beyond this particular case, that the Ninth Circuit is unusually lenient in this regard. He aggressively labels this tendency both a "circuit split" as well as an "intra-circuit split," which I think is wrong, but I agree that the Ninth Circuit has an overall take on these "outside the guidelines" cases, and it's generally not one of being overly harsh.

As Judge Bea correctly notes, there have been several cases in which the Ninth Circuit has reversed outside-guidelines sentences as subjectively unreasonable for being overly long, and yet -- despite several opportunities (and over several dissents) -- has almost never reversed a below-guidelines sentence for being unreasonable. I say "almost never" because even in the Ninth Circuit there's what we might call the "terrorist exception" to that rule, an exception that arises from that court's recent decision in Rassam (which I discuss here) that held that even a 22-year sentence was unreasonably low for the would-be Millenium Bomber. But, in general, I think that Judge Bea is correct that the Ninth Circuit has a particular take on these cases. I'm quite confident that this "take" generally entails generalized deference to district courts, mind you, perhaps even more so than other circuits. But I also agree that, beyond this, there's a slight tendency for the Ninth Circuit to be more lenient than, say, the Fifth Circuit.

So that's the one hand. And I think Judge Bea presents it fairly well.

On the other hand, there's Judge Pregerson's opinion. Which, as you might imagine, does a decent job of vetting the other side. Basically, Judge Pregerson repeats the consistent refrain of deference. Plus points out the particular reasons why this sentence may well not be so absurd. Like the fact that the district court expressly found that Edward's claim to be a "different man" nowadays was credible, and hence that he was unlikely to do it again. In part due to his current health problems, in part to his change of careers, and in part because the district court judge simply thought that was the case, saying: "I've been doing this long enough and I can tell, I think, when people are genuine . . . . I find . . . his statement, his allocution, to be very credible. I don't think there's a chance in hell that he's goin to engage in this again in the future." If we give district courts discretion (and we do), it seems to me that findings like these are precisely why.

Judge Pregerson (i.e., the "other hand" also has one other extra-legal thing going for him as well: the fact that Judge Milan Smith joined the opinion. This not only makes it precedent as a realpolitik matter, but also lends it credibility, as Judge Smith is hardly a namby-pamby leftie looking to coddle criminals. I'm sure that Judge Pregerson had to water down what he might have otherwise written in the opinion in order to keep Judge Smith on board. But the fact that, in the end, Judge Smith agrees that the sentence here was reasonable says something.

Let me just add one additional thought. My initial impression of the case, even after reading Judge Pregerson's opinion and before reading the dissent, was that the sentence seemed a bit low. Maybe not "abuse of discretion" low, but low. However, what immediately came to mind for me -- beyond what was in the existing opinions -- was my recollection of other white collar case in which the defendants engaged in much more serious criminality and were also sentenced to house arrest. The one that instantly jumped to my mind was the sentence of Sothby's CEO DeDe Brooks to six months of house arrest for price-fixing that resulted in tens of millions of dollars in direct loss to customers, an offense that (in my mind, at least) was much worse than the offense here. And not only did Brooks get less house arrest time, as well as fewer years of probation, but she also got to serve her house arrest in a multi-million dollar New York City penthouse that, I'm quite confident, was far from the place where Edwards spent his time in Montana. If that's an appropriate sentence for CEOs like Brooks (and I'm not saying it was), it seems to me that the disparity point that Judge Bea makes seems less powerful, and that a judge firmly convinced of rehabiliation might indeed come out the way the district court did here.

So there you have it. Some thoughts on sentencing as we begin our shortened week.

California Correctional Peace Officer's Ass'n v. California (Cal. Ct. App. - Feb. 11, 2010)

Nothing from the Ninth Circuit in two days. Nothing from the California Court of Appeal today. It's a lazy, lazy four- or five-day weekend, apparently.

Yesterday, at least, we learned that even if you're one of the most powerful unions in the nation, you don't always win in the Court of Appeal.

Life's tough all over, I guess.

Which reminds me of a presentation I gave at the Reagan library a couple of weeks ago. Which I noticed was guarded by no less than a half-dozen federal marshals, maybe more. (I only saw six of them, but I imagine more were around I didn't see.)

Which made me think: Is this really the most efficient use of taxpayer dollars? I mean, I guess terrorists could be interested in hitting a presidential library. But do we really need more than a token well-paid federal marshal, maybe supplemented by some quite lower-priced rent-a-cops?

Or maybe I'm underestimating the threat to Reagan's belt buckles.

People v. Ayala (Cal. Ct. App. - Feb. 11, 2010)

Here's the first paragraph of the factual section of this opinion earlier today:

"The Sureños and Norteños are rival street gangs. Defendant joined the Sureños around 1996, when he was 12 years old. In 1997, at age 13, defendant committed assault with a deadly weapon—he stabbed someone in the back at school. In 1998, at age 14, defendant gave a gun to another Sureño to shoot at a car full of Norteños, and defendant‟s accomplice fired four or five shots at the vehicle. The juvenile court held defendant responsible for attempted murder and placed him in the California Youth Authority. Defendant remained incarcerated until February 2005, when he was 20 years old. Five months after his release, he participated in the gang shooting at issue here."

Yeah. That last sentence was a total surprise ending. (*Dripping Sarcasm*)

Nunez v. Holder (9th Cir. - Feb. 10, 2010)

Rarely do I change my opinion as radically as I did when I read this case.

I'll describe my reaction temporally. The first thing I notice is that the respondent's name is Holder, which means it's an immigration case, and the second thing I see is that Judge Reinhardt authors the majority opinion and Judge Bybee dissents. Which gives you a rough outline of what's likely coming up.

Then I read the first two paragraphs of Judge Reinhardt's opinion. Remember: Judge Reinhardt is far from a shrinking violent. And yet his majority opinion begins with what can perhaps best be described as something like an apology -- an introduction that's radically atypical for him. This is not the usual firebrand opening gambit. It's the exact opposite.

But even after reading the first two paragraphs of the opinion, you still don't know exactly what the case is about. You know it's about whether a particular offense counts as "moral turpitude" under the immigration laws, and that morality varies from neighbor to neighbor, and that our precedent in this area is somewhat fuzzy. All well and good. And we hear Judge Reinhardt say not to be surprised if you're surprised by the results, ending the introduction with: "As some in today’s society might say, and with good reason, 'Go figure.'"

Only in Part III of the opinion (!) do we learn precisely what the case is about. Only then does Judge Reinhardt tell us that the offense we're talking about is indecent exposure, and hence that the opinion is going to be all about whether wagging your genitals in public counts as a crime of moral turpitude. And given that we already know the lineup of the opinion, we also know how the majority's coming out. Which in turn hinted to me precisely why Judge Reinhardt started out so meekly. Because of course indecent exposure is a moral turpitude offense! And yet I know he's going to hold it's not. Hence the unusually cautionary opening.

So, by Part III, I'm thinking: "No way I'm getting on board for this one. Moreover, no way the Supreme Court's not going to summarily reverse. It's just too much to hold that something like indecent exposure -- a classic moral turpitude offense -- isn't in fact moral turpitude." And that remains my exceptionally strong take even as I start to plow through not only Part III, but also the vast majority of Part IV. Come on. It has got to be moral turpitude. I'm definitely going to be with Judge Bybee on this one, and he's going to have to infinitely better of the argument.

But then I get to Part IV(C). Which takes me a while -- 14 single-spaced pages, to be exact -- but at that point, I'm all of the sudden not so sure. Because, remember, we adopt a categorical approach to these things. And Judge Reinhardt starts to persuade me that California's crime of indecent exposure sure covers things that constitute moral turpitude -- showing your genitals to a group of children, masturbating in public, etc. -- but also criminalizes lots of other things that may be qualitatively different as well. For example, "flashing" people at a bar who want you to flash them. (Think "Girls Gone Wild") Or people engaging in consensual oral sex through a glory hole in a bathroom -- people have been convicted for indecent exposure for doing that as well, even when no one else sees (or is supposed to see) it happening.

Once Judge Reinhardt tells me that California has extended its statute that far, as well as reminds me that consensual private sodomy -- now constitutionally protected -- used to be a classic "moral turpitude" offense as well, I start to be persuaded that his "harm others" line for moral turpitude offenses makes some sense.

Indeed, totally surprisingly, once Judge Reinhardt persuades me that he's actually right, I start to question -- crazily enough -- the tentative way the opinion begins. Because you know what? The problem here, I'm persuaded, is not that "morality" is too diffuse or uncertain, but rather that California has simply expanded its definition of indecent exposure too far, hence making an offense that typically does entail moral turpitude into something that may not. Moreover, the correct object of one's ire extends not only to the relevant state, but also to the judicial doctrine that created the categorical approach in the first place -- that's what causes the anomolous (and, to a degree, unjust) result here.

Plus, the government's to blame as well. Given what the doctrine says -- both the categorical approach as well as the expansive state law doctrine of indecent exposure -- why didn't the government introduce evidence that satisfied the modified approach and proved that Nunez was convicted (as I'm sure he was) of a true moral turpitude offense rather than due to his appearance on "Boys Gone Wild" or on one side of a glory hole?! Sure, I'm confident that Judge Bybee is correct when he says that "[w]hatever Ocegueda[-Nunez] did to get himself convicted of indecent exposure, we can be fairly confident that it involved more than being a nude dancer at a bar or a 'tasteless prank.'" But why didn't the government simply show that?! And if it somehow couldn't (and I'm not at all sure it couldn't), isn't that an indictment of the underlying doctrine (the "categorical approach"), not the result here?

So at the end of the day, I'm not only persuaded by Judge Reinhardt's opinion, but actually think it could legitimately have been more strident. Which was far, far from my reaction at the outset.

I, by the way, may well not be the only one who had their initial impressions altered by thinking this thing through and reading Judge Reinhardt's analysis. Notice, for example, that Reinhardt's opinion is joined by Judge Milan Smith. Who's hardly either a lefty or someone especially looking to help out perverts. Now, maybe Judge Smith is just a lot quicker than I am, so caught the right result even at the outset. If so: Congratulations to him, as well as to Judge Reinhardt. In any event, the fact that Judge Smith joins the opinion may also strongly suggest that notwithstanding my first impression, the majority opinion not only has persuasive power, but staying power as well.

I'm happy to admit it when I'm wrong. At least once I realize it. Here, I'm persuaded that my first reaction was misguided. And that ultimately, Judge Reinhardt is correct.

Good job getting the right result a lot, lot faster than I would (or potentially could) have.

P.S. - A random personal anecdote. The reference to the status of "glory holes" in California reminded me of a "Welcome to USD" party we once gave to an incoming colleague who had just joined us as a junior faculty member. (Fear not: Notwithstanding the overall topic, this not a "Penthouse Stories" tale.) To make a long story short, after a lengthy evening, the four of us -- all young professors -- ended up at 2:00 a.m. in a fairly seedy bar in downtown San Diego, the bathroom of which we soon discovered was replete with fully functional, and clearly well-used, glory holes. This, mind you, after we had spent the previous many hours inventing a new nickname -- "J. Lo." -- for our new colleague, and consistently referring to him by this new appellation. (As we occasionally do to this day.) At which point, I can only imagine, our new colleague must have wondered: "Precisely what type of faculty have I gotten myself into here?" Anyway, Judge Reinhardt's discussion reminded me of that younger, rowdier era.

Bull v. City and County of San Francisco (9th Cir. - Feb. 9, 2010)

They say -- okay, even I say -- that the en banc draw doesn't always matter. Which I believe, if only because I say it.

But sometimes it does. Here's one of those times.

It's a set of opinions that you'd want to read wholly apart from the vote lineup. Both because it's a sensitive issue as to which there are strong opinions on both sides and also because the opinions are all quite well-written. Each does a very good job of articulating their particular vision of the proper resolution of the issue.

I'll save my comments on the substance of the opinions for now. Let me simply say that I think a different -- more representative -- draw might well have changed the result.

The vote was 6-1-4: Six votes for finding routine strip searches of prisoners to be constitutional, one vote for finding this practice to be unconstitutional (but protected in this particular case by qualified immunity), and four votes for finding the practice unconstitutional and finding liability. The six votes on the topside generally consisted of the conservatives: Chief Judge Kozinski and Judges Rymer, Clifton, Ikuta, and Randy Smith, plus Judge Gould. So a Reagan, a Bush I, and three Bush II's, plus a Clinton. Whereas the four and one votes were all Clinton appointees.

Let's assume the case went full en banc. What's the likely vote? To put it another way: What's the result if the limited en banc court was representative of the court as a whole? Which is the central purpose of the limited en banc court in the first place, after all.

Here's my (very strong) prediction: 14-13. The other way; e.g., finding the practice to be unconstitutional (albeit, by a slim margin, protected by qualified immunity).

Let me give you some additional teaser data to support my conclusion that panel draws matter. If I'm right about the likely votes of each of the judges, this case is one of those rare instances in which the draw is the critical thing that matters. Before conducting the draw, the probability of finding the practice to be unconstitutional in the limited en banc court is exactly 50/50. Hence the panel draw is the most important thing that matters.

One more statistic. Assume the Ninth Circuit still had 15 member en banc panels. What's the probability that this case goes the other way? Almost 40 percent.

In short: Draws matter. As do rules and procedures. Sometimes critically.

U.S. v. Vongxay (9th Cir. - Feb. 9, 2010)

You're a police officer who sees a group of people hanging out in gangland in typical gang colors and, believing that one of them might well be carrying a gun, approach one of them and ask for consent to do a pat-down search of his waist. At which point the individual responds by placing his hands on his head.

Does that mean yes, no or maybe?

To me -- and the district court -- it means yes. And the Ninth Circuit agrees that's a reasonable conclusion.

For you Second Amendment folks out there, the opinion also contains a lengthy discussion of that particular amendment and why it doesn't (at all) provide a constitutional right for felons to carry firearms. Basically because the Supreme Court has expressly said as much, even in Heller. So the discussion on that point is worth a read as well.

Mansourian v. Regents of the Univ. of Calif. (9th Cir. - Feb. 8, 2010)

Most people know what Title Nine entails. At least generally. So much so that even the women's apparel manufacturer with that name gets a nod in Judge Berzon's published opinion. (Which, I might add, would be a good way to create future judicial income through paid product placement mentions.)

But to see how a Title Nine case actually progresses, as well as for a pretty good history of women's sports at U.C. Davis, check this one out.

This is a darn solid pro-plaintiff opinion. Not many caveats. Sure, we're viewing all inferences in favor of the non-moving party (here, the plaintiffs). But one also gets a keen sense that's also the side on which some very strong preferences reside.

So take a look. If only to see how women's wrestling fares up in Davis.

Haight v. Catholic Healthcare West (9th Cir. - Feb. 4, 2010)

Sometimes being smart is a bad thing.

Here, for example, Oakland attorney Jeremy Friedman files a potentially lucrative qui tam suit against Catholic Heathcare West, alleging that a big federal grant that scientist Michael Berens got from the NIH to study brain cancer in beagles was based upon false statements. Friedman litigates the case for many years, including a successful appeal before the Ninth Circuit that gets the case remanded back down, only to see summary judgment granted against his client.

So Friedman appeals, and files his notice of appeal 51 days after the trial court granted summary judgment. Which seems fine to Friedman, since although the usual rule is 30 days, because qui tam cases are technically filed on behalf of the government, there's a Ninth Circuit case on point that says the 60-day rule applies, even if the government declines to intervene.

Which was, indeed, the law. And Friedman knew it.

But here's the catch. After the appeal was filed, the Supreme Court decided a case that held that the Ninth Circuit was wrong, and that the 30-day rule applies, not the 60-day rule. Which then makes Friedman's appeal untimely. Plus, the Supreme Court declined to make its holding only apply prospectively, saying that this was always the law.

Which totally hoses Friedman. He then makes a million arguments to the Ninth Circuit about how he reasonably relied on the Ninth Circuit's express holding, and how the court should thus allow him to make various procedural moves to save his appeal, but Judge Graber -- although sympathetic -- rightly rejects all of them. They just don't work. Sometimes equity has to be subordinate to the law, and this is one of those cases.

So I started this post with the concept that it sometimes doesn't pay to be smart; here, rather than follow the typical 30-day rule, Friedman was smart enough to know about the exception in qui tam cases under Ninth Circuit precedent that gave him another 30. If he'd have been less bright, and simply thought the regular 30-day rule applied, ironically, he'd have done better.

But, more accurately, I might say that the real lesson to be learned is not that it doesn't pay to be smart, but rather that it sometimes pays to be either dumb or very smart -- moderation in intelligence here is the thing that gets ya. Friedman either needed to be stupid and not know about the Ninth Circuit case or very smart and realize that even though there was a case on point, even that's not necessarily the law, since there's a higher court. And acted accordingly -- and conservatively -- by filing his notice of appeal within 30 days rather than 60. Which would have been quite easy to do.

So get smart or get stupid; that's the lesson of the day. Or at least be careful.

Chase Manhattan Bank v. Texel (9th Cir. - Jan. 28, 2010)

Judge Kleinfeld does a good job of making this somewhat complicated bankruptcy case clear, and writes concisely and persuasively.

But I'll give a shot at writing something even shorter. "When you're Chase Manhattan Bank, and you refi a loan, make sure you record the deed of trust. If you inexplicably forget this extremely important task, and the debtor files bankruptcy, your bad. Get in line."

I think that's about right.

Dotson v. Amgen, Inc. (Cal. Ct. App. - Feb. 3, 2010)

I'm glad the Court of Appeal (eventually) elected to publish this one. Because it's right, and if trial courts are holding otherwise -- as one did below here -- I think they need to be told they're doing it wrong.

I'm all for finding arbitration provisions to be unconscionable in appropriate cases. But the key words are "appropriate." In the present case, we've got Amgen convincing attorney Darrell Dotson to leave Howrey & Simon in return for $170,000/year plus a $35,000 signing bonus, stock options, an executive incentive plan, etc. That's hardly an unsophisticated person, and he's hardly someone who doesn't know what he's signing.

Sure, the (very short) contract has an arbitration provision, and further says that the presumptive rule in these arbitrations will be one deposition as well as depositions of any experts. But that's fine, and consistent with making these things streamlined. Plus, the arbitrator can allow more. Presumably s/he'll do so if the need at all arises.

So you've got virtually minimal (if any) procedural unconscionability and minimal substantive unconscionability. Hardly a reason to invalidate the agreement. Even less so a reason to hold -- as the trial court did here -- that the discovery provisions are unseverable and hence the whole arbitration agreement falls.

So I agree with Justice Perren. And am glad we reverse, and publish the reversal of, the trial court. Dotson still gets to sue, and to argue that he shouldn't have been fired. But he gets to do so before an arbitrator.

U.S. v. Rassam (9th Cir. - Feb. 2, 2010)

Here's another case that will go en banc.

It's a high-profile case, involving high profile issues: Here, what sentence should be given to Ahmed Rassam, the "Millennium Bomber" who plotted to detonate explosives at LAX on December 31, 1999. Rassam cooperated with the government for two years, but then stopped (and retracted his prior statements). The district judge sentenced Rassam to 22 years, and the latest appeal basically involves the U.S. saying "that's too little," since it's a downward departure from the guidelines.

It's an exceptionally fact-specific case, so normally it wouldn't get taken en banc. But it's high profile. Terrorism, guidelines, and the like. Plus, the majority's pretty hard core here. It both reverses the sentence and remands the case to a different judge, notwithstanding (or perhaps in part due to) the fact that he's been doing the thing for the past decade.

But what especially makes the case likely to go en banc is the lineup. The majority opinion is written by Judge Alarcon and joined by the sole active judge on the panel, Judge Clifton. But Judge Fernandez -- a Bush I appointee, and hardly someone who's "soft on crime" or "pro-terrorist" -- dissents.

Judge Alarcon writes a 70+ page, single spaced opinion. Judge Fernandez's dissent spans only a tiny bit more than two pages. And basically says precisely why the case will be reviewed.

Here are the money lines:

"We are required to give due deference to a district court’s sentencing decisions. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). That does not mean a grudging deference; it means that even if we would prefer a different sentence, we may not reverse. Id. In fact, “[e]ven if we are certain that we would have imposed a different sentence had we worn the district judge’s robe, we can’t reverse on that basis.” United States v. Whitehead, 532 F.3d 991, 993 (9th Cir. 2008). As I see it, that requires us to approach our review of a substantive reasonableness issue with a great deal of humility. It is not always easy to avoid consulting oneself about what one would do if one were the sentencing judge. A case like this is especially tempting in that regard, and I fear that the majority has not resisted the temptation into which it has been led.

The record here makes it apparent that the district court, which lived with this case for many years, considered the materials placed before it and touched all of the procedural bases. . . . So where does that leave the majority? Simply put, it seems to me that the majority just does not like the fact that this terrorist is to sit in prison for a mere twenty-two years. What number would the majority choose; who knows? But although many federal sentences are even more draconian, twenty-two years seems like a long time to me, whether a defendant is young or old to start with. It is not a mere slap on the wrist, especially if the confinement conditions will be especially harsh, as the district court predicted they would be. Yet, when all is said and done, the majority simply does not like the way the district court weighed the evidence before it; obviously

the majority would have done it differently.

Would I give Ressam that “light” a sentence? I somehow doubt it, but that is not the point. The point is that there are many sites within the borders of reasonable sentencing territory, and our job is to patrol those borders to assure that the district court has not slipped over them and into the land of abusers of discretion. That will rarely happen; it did not happen here. Unfortunately, this case is not just about what befalls Ressam; it reflects another entry by appellate courts into territory that always lures them, but is always forbidden to them. Society, we, and the district courts will someday regret the results of our case-by-case trespassing onto lands we should stay out of; the day this decision becomes law will, indeed, be a dies infaustus.

In short, the sentence was neither procedurally erroneous nor substantively unreasonable. [Cite] Even if we have to grit our teeth to do so, we should let it be."

That strikes me as precisely right. I, too, am not at all sure that I would have given Rassam 22 years; particularly given the fact that he's recanted everything he's previously said, and seems to have turned (for perhaps explicable reasons) from a pro-government witness into someone who (again) affirmatively detests the United States, I'm not at all confident that 22 years is long enough, or that the downward departure extended to him is something that I would do.

But that's not the point. Discretion means sometimes -- often times -- letting things go by when you think they're wrong. I might not give the guy 125 years either; maybe I'd want to hold out hope that he would, in his old age, again change his attitude and, in any event, not be a very good (or dangerous) terrorist at, say, age 70. But if the district court took a contrary approach, while I would disagree with that, it seems to me within the realm of reason. As does 22 years.

Sometimes being a judge means admitting that you're not necessarily right; that other judges may -- on occasion -- possibly be more informed, or at least entitled to deference. This is one of those cases.

So I think that Judge Fernandez gets it exactly right. And his point about humility strikes a definite chord with me.

So my prediction is that this one gets taken en banc. And rightly so.

U.S. v. Leow (9th Cir. - Feb. 2, 2010)

The Ninth Circuit's web site lists the "case origin" for every published opinion; basically, what district it came from. You could just say "Central District of California" or "District of Arizona," but the Ninth Circuit provides additional information as well that's not on the caption; namely, what particular division (i.e., city) the district court was in. So, for example, in the Central District of California, we regularly see opinions in cases coming from the "Los Angeles District Court" as well as the "Santa Ana District Court."

Which is great. More information is always good.

But sometimes you see things that you're not used to seeing. Particularly when you're out of state.

So this morning, for example, we get this opinion. That the Ninth Circuit lists as coming from the "Moscow District Court."

Wow. I mean, I knew the Ninth Circuit had pretty expansive jurisdiction, including the CMNI and Alaska. But Moscow?! That's amazing.

Reminds me of the old days, when the Ninth Circuit had jurisdiction over appeals from China.

Now, those in the know may realize that Moscow's also a city in Idaho. Appropriately enough, I might add, given the weather there. Nonetheless, it does give one an initial double-take (Unless you're a fan of The Cassandra Complex, which has a famous song about the place. But I gotta say that whenever I hear that thing I feel incredibly old. It's all just bothersome noise to me.)

You don't see this often. The Ninth Circuit only issues a "Moscow" published opinion around once a year; indeed, the last one was from back in 2008. So enjoy.

The opinion itself isn't all that worth reading. Except maybe to help one realize that life as a district judge in Moscow may be little different (again, apart from the weather) than elsewhere. Stalking cases, methamphetamine cases, etc. Rural places ain't that different than the rest of America as far as federal crime's concerned.

Brown, Winfield & Canzoneri v. Superior Court (Cal. Supreme Ct. - Feb. 1, 2010)

Not all 4-3 decisions in the California Supreme Court are actually close. At least in my mind. And, in the end, I don't think this one necessarily is as well.

That said, I probably come out somewhere slightly in between the opinion of Chief Justice George, who authors the majority opinion, and Justice Werdegar, who authors the dissent.

The California Supreme Court here is basically discussing what should happen with writ petitions. Usually this is no problem; someone files a writ and it gets a postcard denial. Sometimes they get granted, and even then, this is usually no problem; the Court of Appeal invites briefing, decides the thing, etc. Easy, regular stuff.

But what sometimes happens is that the Court of Appeal wants to act quickly. At which point it issues a Palma notice that basically says: "We're thinking about issuing a writ, and doing so in the first instance. So you better get on it."

But sometimes -- allegedly rarely, but I've seen 'em with increasing frequency -- the Court of Appeal issues what's called a "suggestive" Palma notice. Which is a slight misnomer, since it's more than just a little bit suggestive. Those notices essentially say: "We think this case is so freaking clear that we're thinking about granting writ relief even without an opposition unless the trial court reverses itself. So do you really want to make us pull the trigger?"

When one of those things comes out, guess what often happens? Exactly what happened in the present case; namely, within 24 hours, the trial court reversed itself. Thereby mooting the writ.

The problem, of course, is that all of this often transpires before the respondent has written even a single word in opposition to the writ. They could -- but typically don't -- write an opposition to the writ itself. And there's nothing to "oppose" once the suggestive Palma notice comes out, as the trial court's reversal isn't technically required, but is instead done on its own.

So the California Supreme Court grants review to decide whether this practice is okay, either as a matter of due process or simply as a matter of fairness and equity.

Chief Justice George holds that this practice is okay, but (1) reiterates that it should be rare, and (2) holds that before the trial court sua sponte reverses itself, it needs to provide notice and an opportunity to be heard. Justice Werdegar, by contrast, doesn't think this goes far enough, and would use the California Supreme Court's supervisory powers to ban suggestive Palma notices.

If I had to choose, I think that Justice Werdegar has the better of the argument. Chief Justice George is right that suggestive Palma notices are somewhat akin to tentative rulings, so there's no due process bar to their use. Justice Werdegar rightly responds that with tentatives, you at least have a chance to argue against the tentative to the court that issued it. Whereas here, the adverse party can't even argue its position to the Court of Appeal because the trial court will moot everything by reversing itself in light of the suggestive notice.

This same problem is inherent in Chief Justice George's holding that the trial court has to give notice that it's going to reverse itself. The problem being: What's the point? Sure, this may be "due process" of a sort. But what's a party going to say? Even if they defend the merits in the trial court, the trial court will almost certainly say: "But the Court of Appeal clearly doesn't see it your way." All that this holding does is give a party the opportunity to argue the matter to the lower court -- a court that now knows which way the wind blows because the Court of Appeal has expressly told 'em. Without, mind you, any opposition.

Plus, as a practical matter, if we're going to require (as the California Supreme Court does) that a party be allowed to file an opposition before the lower court reverses itself, why don't we at least let that opposition be filed in the Court of Appeal? Let the rule be: "Before the Court of Appeal issues a suggestive Palma notice, they've got to at least give the adverse party a couple of days to write a brief in a last ditch effort to persuade 'em otherwise." After all, if we're going to delay things, we might as well delay them in the right tribunal -- the one where the briefing at least has a chance of making a difference.

That's probably where I would come out. Admittedly, if forced to choose between the majority and the dissent, I would go with the latter. Especially since I think that Justice Werdegar has a very good point that the possibility of suggestive Palma notices to which parties will not be able to effectively respond may well lead them to inefficiently front-load work and oppose a petition at the outset for fear that this may be their only shot.

But at the same time, I do think there may perhaps be a value to allowing suggestive Palma notices in at least some cases. Sometimes, reversal does seem totally clear and warranted, and delay of anything more than a couple of days a needless waste. So I'm not sure that I would completely agree with Justice Werdegar that we should categorically abolish the option. For me, if we could strongly curtail the use of such a response -- and I'm completely in agreement with the view that several divisions currently go way overboard with suggestive Palma notices -- as well as provide a limited ability of the parties to file an opposition in the Court of Appeal, that's the option I might go with. Even at the risk of creating "Brown Winfield" notices.

But, if forced to choose, I'd be with the 3 here, not the 4. And think they've got clearly the better of the argument.

State Bar v. Findley (9th Cir. - Feb. 1, 2010)

Apparently the good thing about being a sovereign is that if you don't like a judicial decision, you can change it.

The question here is whether a cost award in favor of the California State Bar is dischargeable in bankruptcy. California attorney John Findley gets disciplined and spanked with a mandatory $14,000 award of costs in favor of the Bar. But he goes bankrupt. Now, the Ninth Circuit held in 2001 -- in a ruling identical to the holding of every other court to consider the issue -- that state bar cost awards were dischargeable. So that would seem to answer the question about whether Findley has to pay the costs.

But in response to that 2001 ruling, the State Bar of California amended the rule. Did it change the cost award? Nope. Did it change the amount? Nah. Instead, it simply changed the verbiage. The Bar got the Legislature to add a paragraph to the relevant statutory provision that essentially says: "The award of these costs are penalties, for a public purpose."

Does that really work?! It's still a cost award, and still calculated on the same basis. It's not actually a fine, since it's a set amount, and (unlike a fine) doesn't at all vary depending on what the person did. So the question is simply whether an express award of "costs" isn't actually an award of costs as long as you declare that they're instead penalties.

And the Ninth Circuit unanimously concludes: Yep. Now the cost award isn't dischargeable.