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

"Never give in.  Never surrender."

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

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

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  In 1998, the Ninth Circuit rejected this argument, in an unpublished opinion.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And that makes me sad.

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

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

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

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

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

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

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

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

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

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

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

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

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

Here you go.

A neat little story.

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

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

Ugh.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Ninth Circuit reverses.

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

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

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

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

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

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

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

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

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

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

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

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

He will be missed.

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

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

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

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

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

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

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

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

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

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

This couldn't be more right.

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

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

Easy case.

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

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

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

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

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

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

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

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

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

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

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

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

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

What?!  An actual Indian child?!

Yep.

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

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

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

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

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

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

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

Oops.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let me know if you want directions.

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

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

Must be a pretty cirtical and interesting case, eh?

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

Zzzzzzzzzz.

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

No.

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

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

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

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

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

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

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

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

So that's a public service.

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

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

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

In Re Brandon T. (Cal. Ct. App. - Jan. 24, 2011)

In California, it seems like everything is a "deadly weapon" (as in, "assualt with a deadly weapon").  A dirk.  A stick.  A pencil.  Virtually anything.  I wouldn't be surprised if the Court of Appeal held that my textbook in civil procedure was a deadly weapon.  No joke.

So imagine my surprise when the Court of Appeal holds that a knife isn't a deadly weapon.

Really?!

It's a butter knife, to be sure.  But I was still fairly stunned.  This holding is definitely an outlier.  I'd have bet dollars to doughnuts that the Court of Appeal would hold that a butter knife was a deadly weapon.  Especially when, as here, it was wielded at school by one youth against another across the latter's neck.

On the one hand, I'm impressed.  It takes guts to make such a ruling.  It's so much easier to just affirm a conviction and be "tough on crime."  So I like that.  I also appreciate the fact that the Court of Appeal raised this issue sua sponte -- the defendant's appointed counsel filed a Wende brief concluding that there were no nonfrivolous arguments that could possibly be raised.  So I'm happy the Court of Appeal thought otherwise.  Though the fact that appointed counsel missed this (and other) issues seems telling to me as well, and not in a good way.

On the other hand, I'm not totally sure that I agree that a butter knife isn't a deadly weapon, at least when it's used as it was here.  I'm completely on board for the Court of Appeal's holding that it's not a deadly weapon as a matter of law, and that it requires a factual inquiry.  True that.  But it seems to me that the Court of Appeal may put too much stock into the fact that the knife broke when pressure was applied.  Yes, that's nice, and yes, that meant that there wasn't much on the victim's neck besides bruises and welts.  But I'm not sure we can -- or should -- be so confident in the defective manufacture of our nation's butter knives.  What if it hadn't broken?  It seems quite plausible to me that the knife could have broken the skin and severed the victim's jugular.  Maybe I'd need some support for that -- I honestly don't know the strength of these things, and am not all that excited to test the hypothesis -- but my sense is that it's possible.  And it seems as if the defendant was at least making the effort.  That might be enough for me.  I admit it's a close call, but I'd have liked a little bit more analysis on this point.  If only 'cause I know for darn sure that no way is the TSA going to allow me on a plane with a butter knife.  Seems to me possible that it's a deadly weapon.

So a case worth reading.  If only because it bucks the trend, and concerns an issue on which reasonable minds could clearly disagree.

U.S. v. Lichtenberg (9th Cir. - Jan. 27, 2011)

An elderly client from Louisiana hires Andrew Lichtenberg, an attorney in Hawaii, to sell her interest in a piece of property on Kauai.  The client gives Lichtenberg $1800 and explicit instructions about what to do with the proceeds -- he trys to get her express power of attorney, but she's had a bad experience in this regard, and refuses to give it.

Lichtenberg sells the property, wires $375,000 to his client trust account, and promptly (1) wires $100,000 to a bank account in Indonesia, where his wife and family live, and (2) buys two $100,000 cashier's checks, made out to himself.  He then gets the proceeds from the cashier's checks, closes his law practice, gets a fake passport, and flees to Indonesia, which lacks an extradition treaty with the U.S.

He's eventually caught, and when he is, he screams and screams that he can't be validly extradited.  But he is, and after the jury convicts him, they calculate his guideline range as between 70 to 87 months.  But the district judge tells everyone that she's thinking about departing upwards, and is pondering 138 months (almost a dozen years).  After lots of stuff happens, including a successful appeal to the Ninth Circuit challenging his sentence of 126 months, he ultimately ends up getting resentenced to 112 months, at which point Lichtenberg again appeals.

The Ninth Circuit affirms.  Thankfully, in my view. 

Here's a great case for departing upwards, in my view.  Sleazy lawyer preying on elderly victim, brazenly stealing money with no pretense whatsoever and then fleeing the country, thinking he'll get away with it.  Couldn't be happier to see the extra several years in prison.

R.P. v. Prescott USD (9th Cir. - Feb. 4, 2011)

Whew.

It's an IDEA case involving a young autistic child, and his parent sue, claiming the school system isn't doing him right.  Chief Judge Kozinski's opinion starts out by noting that the parents not only lost, but had a $140,000 fee award imposed against them.  And, as you're reading the opinion, watching the Ninth Circuit reject all the parents' arguments on the merits, you're thinking -- if you're me, anyway -- "Holy goodness.  Is the Court of Appeals really going to affirm the huge fee award?  Poor parents (and kids).  I'm sure they were just trying to do the right thing by their kid."

But, in (and at) the end, the Ninth Circuit affirms the dismissal of the lawsuit, but reverses the fee award.  A result with which I'm pretty comfortable.

The Ninth Circuit:  Not So Mean.  At least on Fridays.

U.S. v. Smith (9th Cir. - Feb. 3, 2011)

Reasoning from first principles, I'd have thought that when a police officer sees you, activates his siren, pulls his car to the curb, and demands that you stop walking and come to the front of his police cruiser, that constitutes a "seizure" under the Fourth Amendment.  The police have certain authority.  Backed up by law, and substantial punishment for disobeying the commands of the police.  My guess would be that 99% of people who are stopped in such a fashion would feel themselves obligated to obey the officer's commands.  In short, that a reasonable person would not feel free to leave.

But let's imagine that the person doesn't stop.  That he continues walking.  Or, indeed, that when he's initially reluctant to stop, he sees the police officer start to reach for his gun, he starts running.  Perhaps because he doesn't want to have a gun pointed at him and potentially get shot.  Surely if there's no probable cause -- or even reasonable suspicion -- to stop, it's a Fourth Amendment violation to order the stop, right?

Nope.  That's the problem with reasoning from first principles.  The Supreme Court decided back in 1991 (in Hodari D.) that in such circumstances, since there was no "submission" to the officer's orders, there's no Fourth Amendment "seizure."  The officer's orders go entirely unreviewed.

There's a good dissent to Hodari D., but it's the law.  So lower courts have to follow it.  For this reason, when the Ninth Circuit holds this morning that the commands described above, which were made to Jermaine Smith, weren't a seizure it's right.  I might have been less enthusiastic than Judge Gould about so holding.  But it's the right result.  The present case is materially indistinguishable from Hodari D.  So Part II of the opinion is right.

But what about after Smith starts running?  He's definitely "seized" once the police officer runs after him and tackles him.  So at that point, the Fourth Amendment unquestionably applies.  Was there reasonable suspicion to do so?  In short, can the goverment tackle someone -- i.e., seize them hard -- on the mere basis that they refuse to assent to a police officer's order and run away?

Well, sometimes, running away, when combined with other things, clearly constitutes reasonable suspicion.  Officers get a description of a suspect, see someone, order him to stop, and he runs away.  Yep.  Reasonable suspicion.  Or officers see a transaction on a street corner that looks like a drug deal, order a stop, and the suspect runs.  Yep.  They can tackle him.  I'm on board for flight being a relevant factor under appropriate circumstances.

But what about the case involving Smith.  In that case, there was nothing that directed the officer's attention to Smith other than that he walked in front of their patrol car (at least, according to footnote 1 of the opinion).  Nothing.  When the police ordered Smith to stop, they had nothing on him.  No reasonable suspicion.  No particular offense.  Nothing.  He was just a guy they felt like stopping.  Perhaps for the audacity of legally walking in front of them.

So what about that?  When Smith flees, is that alone reasonable suspicion?

Well, again, we can't reason from first principles.  The Supreme Court decided a case in 1990, Illinois v. Wordlaw, in which the Supreme Court held in a 5-4 opinion that, yep, flight alone counts as reasonable suspicion.  At least when it occurs in a "high crime" area.  So if you're rich or white enough to reside and do your business in a "low crime" area, you can flee.  But if you're not, well, tough.  You've got to stop.  And if you don't, you can permissibly be tackled.  That's the law.

So, again, if that's the law -- and it is -- we can critique it, but lower courts have to follow it.  As Judge Gould does.  So it's the law in the Ninth Circuit and elsewhere.  That's Part III of the opinion.  Which Judge Gould again articulates without critique.  And, of course, he's under no obligation to do anything else.

But Judge Gould does do something that's helpful, beyond merely following precedent.  He notes that there would indeed be a Fourth Amendment violation if Smith "simply continued to go about his business, or walked away."  It was the act of running that suddenly allowed the seizure; e.g., the tackling.

Which is exactly right, at least under the Supreme Court's precedents.

But it seems a bizarre rule.  In "average" or rich neighborhoods, you've got the right to run or walk without being stopped.  In poor neighborhoods, you have the right to walk, but not run.  Whether there's "reasonable suspicion" thus depends on not only the wealth (and, correlatively, the race) of the person stopped, but also how bright they are.  If they do what most people do when they see a gun -- run -- they're toast.  But if they've read the relevant cases, and simply walk away, there's no longer reasonable suspicion.

That the presence of reasonable suspicion depends on whether the offender knows the relevant Fourth Amendment jurisprudence just seems facially bizarre to me.  That just seems really strange.

But indeed that's the law.  So know it.  And, perhaps, if you're up for it, subject it to a little skeptical critique.

So the next time the police order you to stop, look around.  Is the place rich?  If so, feel free to take a little jog.  Regardless, feel free to walk away.  My strong sense is that the police aren't going to like that, and will promptly get in your face and compel you to stop.  Which means that your alleged "freedom" to leave in the first place didn't exactly exist.  But you'll be within your rights.

It's okay to flee by walking.  Just not by running.  That's the law.

In Re Brittany C. (Cal. Ct. App. - Jan. 20, 2011)

I don't know how someone can do family law cases their entire career.  At least if they're all like this one.

Or, more accurately, I couldn't do it.  And accordingly have a great deal of respect for people who do so and do it well.

It's a nightmare.  Father and Mother have seven children, in three groups:  Chris (who was born by himself), "the twins" (William and Kyle), and "the quadruplets" (Brittany, Heidi, Collette and Wesley).  And I thought having four kids was tough.  Father and Mother split up.  They've now had three different cases in the Court of Appeal, and DCFS has had thirty referrals about the family.  Yikes.

Some of the kids say that Father sexually abused them and that some children had sexual contact with some of the other children.  Some of the kids say Father sexually abused Chris in their presence.  (Chris, by the way, is now 16, and was born with male chromosones but has "taken on a female persona.")  Other children say that Mother physically abused them and coached them to tell lies about Father.  Needless to say, Father and Mother can barely be in the same room with each other, much less raise a family together.

Mother loves the twins, who say bad things about Father, and doesn't care much about the quadruplets, who say bad things about Mother (like that she's "evil" and that she "hates us and does mean things to us when no one is looking") and who plead with the social worker not to be taken back to her.  Father, in turn, doesn't care much for the twins, and has problems even with the quadruplets -- several of his visits with them had to be ended because he started screaming uncontrollably at them, including one in which Father screamed at the monitor (who was trying to calm him down):  "I have a PhD, damnit!  You need to show me some kind of respect!"  Nice.  Eventually even the quadruplets don't want to return to Father, though they want to be with Mother even less -- they beg to be stay with their foster mother, which shocks the social worker, who says that kids almost always want to go home regardless of the severity of the abuse.

The children start literally kicking and screaming every time they are dragged to a visitation with the parent(s) they don't like.  They draw pictures of sharks eating their parents, writing "F[] you" on them.  During attempts to give visitation, they throw things, turn over tables, etc.  Some of the kids start accusing Mother of sexually assaulting them.  The kids start screaming at the other kids.  Some of the children start literally running away from even the supervised visits, and have to be picked up by the police.

Your basic nightmare.

What you do in a situation like this is beyond me.  A family that is likely irretrievably broken, and yet we're desperate -- for good reason -- to try to get people back together and give them their rights.  The system is simply not set up for situations like this.  Everything we try to do seems either unsuccessful or affirmatively counterproductive.  We're basically just trying to hold tight until the kids reach the age of majority and can do whatever they want.  At which point they'll likely be so massively messed up that it's too late.

Like I said:  How one can deal with cases like this -- as an advocate, as a social worker, or as a judge -- is beyond me.  I just can't imagine coming from days like this thinking:  "You know what:  I did really good today."  All that you could legitimately say is that the day might have been an even bigger disaster without you.  Small solace, unfortunately.

So here's to those with a stronger constitution and mental toughness than me.  I envy your strength.  Truly.