U.S. v. Maier (9th Cir. - April 27, 2011)

Michael Maier is a police officer for the Navy.  He's stationed at the United States Naval Air Station at Lemoore, California.  He's bored.  He's lonely.  He's 26 years old.

He's also a huge fan of child pornography.  So when Yahoo! notices that he's been sharing some kiddie porn files, and notify ICE of this fact, they raid his dormitory room.  And discover lots of kiddie porn.

When he's arrested, Maier admits that the stuff is his, says that he's addicted to child porn, and says that his addiction disgusts him but that he's been unable to stop.  He says he'd made anonymous reports about other child pornography viewers who he came across in his porn-swapping activities in an effort to come to terms with his compulsive behavior.  But he's guilty, and pleads accordingly.

He provides agents with his computer passwords and user names and passwords for his online accounts.  His information leads to agents discovering seventy-four other people involved in child pornography with whom Maier conversed during a five-month period.  He pleads guilty without a deal:  He simply asks for mercy and forgiveness.

What's the appropriate sentence for this remorseful former Navy police officer with no prior criminal record for reviewing internet-only child pornography?

Seventeen and a half years in prison.

Hope you enjoyed half of your twenties.  See you when you're 43.

He'd have been better off murdering someone.

Forest Grove School Dist. v. T.A. (9th Cir. - April 27, 2011)

A student in Oregon is getting Cs and Ds in high school.  His parents get him tested, and while the school says the kid doesn't have any learning disabilities, they say he might have ADHD.  Seems reasonable.

Then things go downhill.  During his junior year of high school, the student starts baking.  Big time.  And I don't mean cookies.  He's getting stoned three or four times a day.  Sometimes so heavily that he can't get out of bed.  Oh, yeah.  He's also doing some coke.

But that's not all.  What's particularly fun when you're stoned and high?  Well, for this kid, it was calling 1-900 sex lines.  Racking up $1200 doing so.  Which his parents ultimately discover, and freak out.  Prompting the kid to run away from home.

At which point the parents realize:  Holy crap.  We've got to turn things around.  So they put the guy into a three-week treatment program, and then pull him out public school and send him to a private boarding school, Mount Bachelor Academy.  At $5,200 a month.  (Not that it matters, burt that school's got a pretty interesting, and troubled, history:  check it out here.)

This is a not-uncommon story.  But here's the rub:  The parents sue the school district for full reimbursement of the boarding school tuition (plus attorney's fees).  Claiming that they had to send him there because of his ADHD disability.

After multiple rounds of litigation, ultimately, the Ninth Circuit affirms the district court's conclusion that the parents aren't entitled to reimbursement because they sent their kid to boarding school because of depression and drug abuse rather than because of the learning disability.

I'm not nearly as hard core as Judges Bea and Rymer, and Judge Graber writes a decent decent.  But I'm with the majority in this one.  My own sense is that the district court was probably right on the merits.  But at the very least, it's a factual matter that could go either way.  So we gotta defer.  Yes, everyone feels sorry for the kid.  Hopefully he's doing better at this point.  But this was not because of the ADHD.  This was because the guy liked marijuana and pornography way too much.  Which is a perhaps a good reason to send a kid to boarding school -- and I hope my children are listening when I say that -- but not good enough to require the public schools to pay for it.

People v. Jaska (Cal. Ct. App. - April 27, 2011)

I wonder how one could use a business to commit pervasive tax fraud?

Oh.  Like this.

Now I get it.

People v. Schlimbach (Cal. Ct. App. - March 25, 2011)

When the police want to shut down a bar (or in this case, a cafe), one of the ways to do it is to go in and see if they're repeatedly serving intoxicated customers.

That can be good, or that can be bad.  It's good if the bar is indeed repeatedly serving drunks.  That creates a public nuisance.  It's bad if the bar isn't doing so, but you can bust them anyways.  By aggressively claiming that someone's "intoxicated" when they're not.

So let's ask the central question:  What does it mean to be "intoxicated"?

We know what it means for driving:  .08 BAC.  At least in California.

But that's for driving:  something that requires coordinated reflexes and that involves a serious danger of death or personal injury.  What about being "intoxicated" for purposes of just walking around?  What BAC are we talking about, for example, for being "intoxicated" in public?  Or, as in this case, for serving such people?

Let's take the extremes.  The cafe here was busted seven times for serving alcohol to an intoxicated person.  Each time the police took the BAC of the customer.  One of the times, the customer had a BAC of .24 and clear objective signs of that level of intoxication.

That's sloshed.  For a 200-pound guy, that's over ten beers, shots, glasses of wine, etc.  Even for a 120-pound woman, that's more than a six-pack.  You're intoxicated.  You can be arrested.  So can the bar.

But let's take the other extreme here as well.  One of the arrests at the bar was because they served a guy who was tested at .068.  That's three beers for a 200-pounder, or two for the 120-pounder.  I'm stunned that you'd say a person like that is "intoxicated."  Sure, they're feeling good after a couple of beers.  They probably shouldn't drive, but even then, they don't have a .08.  Heck, I've seen judges with above a .068.  Not just a few.  You mean to tell me they could validly be arrested for being "intoxicated" in public?!  Wow.

Then there's the group with above-.08 BACs.  One arrest was for a BAC of .127.  Another was for .14.  Four beers for your 120-pound female friend.  She surely can't drive.  But can she be arrested for public intoxication?  Sure, she's likely louder than usual.  Perhaps more fun, and potentially more frisky.  Does a BAC like that count as "intoxicated"?  Tough call.

You can punt on all of this and say:  "Well, it depends on their 'objective' signs."  But by "objective" you're really meaning "subjective".  Because what counts as "slurring" speech or an "unsteady" gait is very much in the eye of the beyolder at this level of drunkenness.  A disinterested observer may well say that the person is doing just fine, whereas a police officer looking to make a bust will say she's "clearly" drunk -- and be able to list off numerous "objective" signs of "obvious" intoxication.

It seems to me that there's at least some minimum at which we want to say that, as a matter of law, someone is neither "intoxicated" nor "obviously" intoxicated.  At least for purposes of standing up (i.e., being in public or being served in public); I leave for another day what the right rule should be for dangerous activities such as driving, where existing law has both a hard cap (.08) as well as a soft cap ("under the influence").  I think you should be entitled to know that you can have roughly X number of beers and be safe.  Or, if you're a bar or cafe, to know that you can serve a stone cold sober patron X number of glasses of wine without getting your license revoked.

To me, a BAC of .08 would be an easy number, though since that number's for driving, I'm not sure that a higher number (.10? .12? higher?) wouldn't be more appopriate for merely being present in public.  Clearly since they're busting people for .06's here, we need to have some limit, otherwise police discretion is virtually infinite, and everyone -- even judges and their families -- are at risk.

The Court of Appeal affirms the license suspension here, and since the cafe is serving multiple people in a very short time span with .20+, I have little problem with the result.  But the Court of Appeal's silence with respect to both a definite limit as well as the arrests of patrons for as little as .06 disturbs me.  I would have wanted something more here.  Something in the other direction than what the Court of Appeal does, which (in footnote 6) is to say that one patron was "in fact" obviously intoxicated because he had a .14.

There's value, to me at least, in a limit that's understandable and gives fair notice.  Particularly for situations such as drinking that are confronted by a large portion -- indeed, a majority -- of the population.  One should not be forced to guess whether it's okay to have three beers with dinner, under penalty of arrest if your view is inconsistent with an officer's.  When objective measures are possible (as here), they should set a cap.

Digerati Holdings v. Young Money Ent. (Cal. Ct. App. - April 26, 2011)

Did you watch The Carter?  Did you even know it existed?  Do you know who Dwayne Michael Carter, Jr. is?  Have you ever heard of Lil' Wayne?

For me, the answer to all these questions except the last one is "No."  And even with respect to the single "Yes," I couldn't provide you with many details.  Rap star.  That's the extent of my knowledge.

But if you answered "Yes" to more of those questions, or just like it when celebrities have appeals, then this is the case for you.  It's an anti-SLAPP motion arising out of litigation between the dude who made the movie that documented Lil' Wayne's life, on the one hand, and Lil' Wayne on the other hand, who didn't much like the movie -- particularly various scenes that made him look bad in ways connected with the criminal charges against him.

Ah, celebrity.

U.S. v. $186,416 in U.S. Currency (9th Cir. - April 26, 2011)

The U.S. wins.

Not too surprising.  But what is perhaps surprising is the underlying issue:  whether attorney fee awards under the Civil Asset Forfeiture Recovery Act (CAFRA) are payable to the attorney or the client.

The usual rule is that attorneys fees are payable to the client, in part because most fee-shifting statutes say that fees are recoverable by the prevailing party, and in part because the Supreme Court has said so.  But a few statutes provide fee awards to the "attorney" in the proceeding.  So how should one read a statute like the CAFRA, which contains neither of these provisions and instead simply says that the U.S. is liable for fees without directing (implicitly or otherwise) to whom those fees should flow?

The Ninth Circuit, in an opinion written by Judges Hawkins and Clifton, say they go to the client.  This seems reasonable to me.  That's the prevailing rule, and there are a decent number of arguments to support it.

Judge Berzon dissents, arguing that district courts should have discretion to award them to either clients or attorneys on a case-by-case basis.  This seems plausible as well, though ultimately I find the majority's view more persuasive.

The Ninth Circuit's holding also seems to me to avoid deadweight losses.  The principal reason it matters who you pay the fees to is because in many cases (including many cases under CAFRA), the party owes the government lots of money already, so if the fee award goes to the client, it gets taken right back in payment of the debt.  Judge Berzon argues that this is a bad thing, and I see her point, but it seems to more more of a good thing.

For example, take a debtor who owes the government $200,000 and who alleges that $100,000 was illegally seized.  If the debtor has no intention of ever paying the debt (or no realistic ability), it's probably best -- or at least most efficient -- to just leave things be.  Sure, they could get back the $100,000, but the government would just take it back to satisfy the $200,000 debt.  Litigation would be a deadweight loss.

If a fee award was payable to the client, there'd be no incentive to sue in such settings.  Even if the client got a $50,000 fee award, the government would still claw the whole thing ($100,000 + $50,000) back.  But if the attorney might get the fee, now there's an incentive to sue:  even though the client won't get any money, the attorney will.  An attorney-sponsored suit like that has some value (e.g., deterring misconduct and putting a more accurate value on the debt), but in most cases, I think, not enough to justify the transaction costs.

So the majority's bright-line rule may properly limit litigation to cases in which it matters:  in which getting the forfeited assets and/or attorneys fees might obviate the debt or reduce it to a sum that might actually be paid.  That seems like a reasonable objective.  For that reason, I'm more inclined to support the majority's view than Judge Berzon's.  Notwithstanding the latter's decent arguments to the contrary.

Doe v. Superior Court (Cal. Ct. App. - April 20, 2011)

I agree.  When you allow someone to sue as a Doe in order to preserve her identity -- here, for darn good reasons, since she's suing someone for damages for raping her -- she doesn't have to verify her discovery responses by signing her actual name.  She can sign as "Shawna Doe".  That's just fine.  (And I also agree with the caveat by the Court of Appeal that if she's sanctioned, and refuses to pay the sanctions, there may be trouble with enforcing the sanction unless we modify the order to refer to her real name, but that we can cross that bridge if and when we come to it.)

The Court of Appeal also adds an interesting footnote, which reads:  "In Elizabeth Luster's briefs, she repeatedly refers to Doe as an 'alleged rape victim.' The fact that Andrew Luster raped Doe has been established beyond a reasonable doubt in a court of law. While we can understand a mother's continued desire to believe in her son's innocence, referring to Doe as an 'alleged' rape victim is offensive both to Doe herself, and the court system which convicted Andrew Luster."

Strong stuff.  Largely appropriate, in my view.  Though remember that it's not the mother who's doing the briefing and using that language.  It's her attorney.  So some of the comment might be directed that way as well.

But there's also an interesting factual backdrop to that comment.  This was a high-profile rape, and the perpetrator was Andrew Luster, the great-grandson of cosmetics founder Max Factor and an heir to the Max Factor fortune.  He raped multiple women by drugging them with GHB, including Shawna Doe.  Not only that, but he videotaped himself doing it.  So pretty shocking, and clearly an item of television interest.

But that's not all.  Luster also skipped town (and the country) during his trial.  Which in part may explain the use of the "alleged" terminology, because while Luster was indeed convicted, that transpired in absentia, and his appeals were dismissed based on the fugitive disentitlement doctrine.

But there's more!  Luster was eventually caught in Mexico and brought back to serve his sentence (his 124-year sentence, I might add).  By who, you ask?  Not by Mexican authorities.  But rather by bounty hunter Duane "Dog" Chapman.  Yeah, that's the one -- the funny looking guy who's got his own television show on A&E.  This is the famous grab that got him that show.  Oh, yeah.  And arrested and prosecuted by Mexico for illegally kidnapping Luster in that nation.  (Charges that were ultimately dropped. Though not after Dog and his crew were held without bail in Mexico for a nontrivial period of time and had to endure various U.S. extradition proceedings.)

So a Doe with a story, for sure.

People v. Varela (Cal. Ct. App. - March 29, 2011)

The question is whether a "pocket bike" counts as a "motor vehicle" for purposes of a statute that criminalizes fleeing from the police on a motor vehicle.  Seemingly straightforward.

Except for one thing.  I have no idea what a pocket bike is.

Justice Gilbert helpfully explains it to me at the beginning of the opinion.  "A two-wheeled device with a motor and a seat for a driver is called a 'pocket bike.'"

Okay.  Got it.

Except hold on.  What exactly are we talking about?  That definition includes motorcycles, right?  But surely those are motorcycles, not pocket bikes.  Are we talking instead about those motorized bicycles that I am increasingly seeing around town?  Those are probably "motor vehicles" (since they have a motor and are vehicles).  But why call them "pocket" bikes?  They're regular sized.  Why not "motorized" bikes?  Or would that be too close to "motor bikes".  Which is, yet again, something else entirely.

Even as I finish the opinion, I still don't know what the darn things are.  I get it, I get it:  They're "motor vehicles" regardless of what they are.  So I guess I don't have to know what they actually look like.  The holding's still right.

But I'm curious.  So I look it up.

Ah.  Those things.

Got it.  I'd have thought they were called "kiddie bikes" or "tiny motor bikes," but what do I know.

"Pocket bikes."  My education is now complete.

Perez-Mejia v. Holder (9th Cir. - April 21, 2011)

It's not that Judge Wolf (sitting by designation from Massachusetts) gets this one wrong.  He doesn't.  Perez-Mejia was convicted of a deportable offense.  He gets removed.  End of story.  Should have thought about that before you decided to sling dope.  That's for citizens.  Enjoy Mexico.  For the rest of your life.

One nonetheless feels a little bad for the guy.  Or at least I do.  He gets convicted in 1997 of possession with intent.  Oops.  Not the first person that's ever happened to.  He serves his sentence.  He's married to a U.S. citizen and has two children.  He petitions to become a legal permanent resident, full disclosing his prior conviction.  His petition is granted, and he becomes a LPR.  So he's allowed in the country.  Thereafter, he goes on a trip, and doesn't do anything illegal.  But when he arrives back, an immigration officer at LAX notices his prior conviction, and seeks to deport him notwithstanding the fact that he's a legal resident.

And gets him deported.  An act which the Ninth Circuit affirms.

Why's that okay?  Because the INS made a mistake.  They shouldn't have granted him residence in the first place given his prior conviction, which made him ineligible.  So he shouldn't have been here, and so we're not going to allow him to be.  Even though he's a middle-aged guy at this point.

That's the right rule.  But still.  One feels bad for the guy.  Even more so for his U.S. citizen wife and children.  He made a mistake, but paid for it.  He thought he was okay.  He would have never left the country if he thought he wouldn't be allowed back.  Only the mistaken grant of LPR resulted in his trip, and this trip directly resulted in this permanent exclusion from his adopted home.

One other tangential style point.  After the first couple of introductory paragraphs, Judge Wolf writes:  "For the reasons stated below, the petition is being denied."  It's funny how you get used to certain things.  Here in the Ninth Circuit, we don't usually write that sentence that way.  We use the active voice.  Something like:  "For the reasons stated below, the petition is denied."  We are doing it.  It's not "being" denied.  It is denied.

Not that Judge Wolf is necessarily doing it wrong.  But that's the way it's done out here.  On the Best Coast.

Bonfigli v. Strachan (Cal. Ct. App. - March 25, 2011)

"This court's [] February 23rd opinion is modified to add the word 'not' to the second sentence of the first full paragraph on page 15 to read: 'The jury, however, was erroneously instructed; hence, we cannot conclude that it would not have found fraud on the evidence before it or that the jury would not. . . .'  There is no change in the judgment."

Those double-negatives are indeed toughies.

Ceja v. Rudolph & Sletten (Cal. Ct. App. - April 19, 2011)

What do you think about this one?

It's a fairly simple legal inquiry.  California allows a "putative spouse" to sue for wrongful death.  To be a "putative spouse" one has to have a "good faith belief" that your marriage is valid (even though it's not).  Is that a subjective or objective test?  In other words, what if you in fact believe that your marriage is valid, but any reasonable person would have believed otherwise?  Can you sue for wrongful death to your paramour if your belief that you were married to him was unreasonable?  That's the issue.

Of course, there's a factual underpinning.  Robert marries Christine in 1995.  They have two kids, and then separate (and share custody).  In 1999, Robert meets Nancy.  He tells her that he's married but separated.  All true.  Two years later, they start living together, and Robert files for divorce.  That's reasonable.  Nancy and Christine know each other and see each other at various events.

Another two years hence, in 2003, Robert and Nancy get a marriage license.  Which is a problem, since Robert's not yet divorced.  But there's an easy way around that, right?  The marriage license asks the parties if they've ever been married, and if so, how it ended.  Robert says he's never been married before, and both Robert and Nancy sign the license.  Three days later, they get married in a big ceremony.

We call that fraud.  We also call it bigamy.

Two months later, Robert moves along the divorce proceedings by filing various papers, and on December 26, 2003, Robert obtains a divorce.  Merry Christmas.

Of course, you were married in September, so your first (bigamous) marriage is void.  Robert never corrects this, or tries to remarry Nancy.  In 2004, Nancy forwards Robert's divorce papers to his union so she could be added to his insurance.

Robert gets killed in an accident at work in 2007.  Nancy sues, but the fraud is discovered, and defendant moves for summary judgment, claiming that Nancy wasn't an actual or putative spouse.  Nancy says, as one might predict, that she never looked at the part of the marriage license where Robert said he had never been married and didn't look at the divorce papers either when she forwarded to the union.  And that Robert said never to talk about the prior marriage.  So she believed it was valid.

The trial court grants summary judgment, holding that Nancy's belief that she was married (even if true) wasn't objectively reasonable.  It does so following various cases that have expressly held that you're not a putative spouse merely because you subjectively believe that you're married.  That belief must be reasonable, and here, it wasn't.

The Court of Appeal reverses.  It disagrees with this prior precedent, and holds that only subjective belief matters.

Justice Rushing writes a particularly historical opinion, and does a good job analyzing the development of precedent.  As is often the case with Court of Appeal opinions, it's a bit long in the tooth when it comes to extended discussion of prior precedent, but that's what you often get when you turn your bench memoranda into the actual opinion.  Justice Rushing holds that the right rule is the one that existed long ago; that only the actual beliefs of the alleged putative spouse matter.

I'm not entirely persuaded.  Not totally unpersuaded, but not completely persuaded either.  Justice Rushing articulates his view well, and deals with the principal arguments on both sides, the best one in favor of existing precedent being that the Legislature has amended the statute many times since the Court of Appeal held that objective good faith is required and never overruled this holding (suggesting that it's right), and the best one in favor of changing precedent being that the old (common law) rule was that only subjective good faith was required and so when the Legislature codified this rule, that was the codification, and the Court of Appeal had no ability to modify this statutory principle.

But I wish Justice Rushing had discussed policy a bit more than he did.  For example, since both actual and putative spouses can sue, the Court of Appeal's holding increases defendant's exposure to multiple lawsuits, potentially unjustifiably.  Moreover, because one can only rarely grant summary judgment when the inquiry surrounds subjective intent, this holding opens the door for plaintiffs to simply say -- as Nancy essentially does here -- "Oh, I thought I was married," and hence get to trial before a sympathetic jury, even under factual circumstances that suggest (as here) that the bigamy was pretty much well known.  Justice Rushing says that summary judgment is a drastic remedy anyway, but I'm not sure that's entirely responsive.  One benefit of objective tests is that they screen out cases in which we don't trust juries.  For example, where longtime partners die and there's a grieving widow who, oops, didn't actually get married and so cannot sue.  We know what juries will tend to do in those types of cases.  Objective tests stop that.

Now, if you trust juries, and/or if you're a fan of Big Love, then sure, a subjective test (or no test at all) makes sense.  But the analysis here requires an assessment of these things.  I don't think it suffices to say merely that the Legislature has said X and hence the judiciary is powerless to change that.  It said "good faith".  Saying what that means is a permissible judicial function.

Won't be surprised if this one goes up to the California Supreme Court.  It should.  Since whether you get to sue shouldn't matter on what panel you draw in the Court of Appeal.

In Re Christopher F. (Cal. Ct. App. - April 18, 2011)

There's a dispute as to whether Christopher F. is competent to assist his defense in juvenile proceedings accusing him of threatening to kill his high school dean.  The defense expert says that he may not be competent, noting that Christopher reads at a third grade level (remember:  he's in high school), his language functioning is at the retarded level, and his verbal performance was at the level of an eight-year-old.  But it's also undisputed that Christopher got a "B" in geometry, a "B" in world history, and a "D" in English.

Which says a lot about the malleability of expert testimony and/or the quality of our public schools.

U.S. Fidelity & Guarantee Co. v. Lee Investments (9th Cir. - April 18, 2011)

Want to see an appellant get absolutely crushed in an opinion?  Here you go.

Judge Thomas is relentless.  There must be twenty or so different arguments that the defendant makes that get rejected -- many summarily -- by the Ninth Circuit.

I sort of feel bad for them.  Except that Judge Thomas is right.

Glaser Weil v. Goff (Cal. Ct. App. - April 15, 2011)

Today was an up-and-down day for many people.  On the upside, even though it's April 15, your taxes were not due.  That's cool.  Thank you, D.C. Emancipation Day.  Though, on the downside, for many people, that just means that the weekend is taken up with doing taxes.  Ugh.

But at least your day wasn't as bad as the day for Glaser, Weil, Fink, Jacobs, Howard, Achven & Shapiro (Firm Motto:  "Now With Extra Name Partners!").  Because today they learned that the Court of Appeal vacated the $800,000-plus fee award that they obtained against a former client in arbitration.  Triple-ugh.

It's an helpful case for lawyers who might use the L.A. County Bar Association's mandatory fee arbitration program.  Complete with both a majority opinion as well as a dissent.  So one worth reading.  Even if your firm doesn't have seven people in its name.

U.S. v. Ewing (9th Cir. - April 7, 2011)

You're a police officer.  You stop a car with expired tags.  There's a driver and two passengers.  You ask the occupants whether any of them is on probation or parole.  (The opinion doesn't say what prompted this question, but I've got a pretty good idea.)  The passenger says, yeah, he's on parole.  He's also twitchy, nervous, and appears under the influence of narcotics.

You go over to the passenger's side of the car to talk to the parolee.  At which point you notice several folded bills stuffed in between the right passenger door and the weatherstripping of the window.  You ask the passenger -- and this question seems pretty darn reasonable to me -- "Why is there money sticking out of the window?"  He says he doesn't know.

So you unfold the bills and look at them.  Promptly realizing that several have the same serial numbers.  Which leads you to ask for consent to search the car, which you get, which leads to the discovery of two suitcases full of counterfeit $20 bills and counterfeiting equipment and ultimately a confession.

Sounds like pretty good police work to me.  When the passenger says "You didn't have probable cause to unfold the bills," I agree with the Ninth Circuit that he's wrong.  There's a parolee who's nervous and under the influence and money in a totally weird place that no one claims is theirs.  Nine times out of ten that's drug money or counterfeit.  There's a crime afoot.  It's cool to unfold -- or even sniff (which the officer didn't do, but I would have) -- the cash.

Nice arrest.

R.S. v. PacificCare Life & Health Ins. Co. (Cal. Ct. App. - April 12, 2011)

This is why you need to pay attention in Civil Procedure when the professor is talking about res judicata.

I know.  It's Latin.  It's confusing.  It's hard.

But it matters.

Franzen v. United States (9th Cir. - March 24, 2011)

You learn something new every day.

I teach my students about interpleader.  A wonderful remedy.  But I didn't know until reading this case that California also has an alternative procedure in foreclosure cases called a "declaration" -- a process similar in lots of material respects to interpleader, but with a different name.

Neat stuff.  At least for civil procedure nuts.

Which matters, because the United States can only remove "interpleader" claims against it to federal court pursuant to 28 USC 2410.

But the Ninth Circuit correctly holds that if it walks like a duck and quacks like a duck . . . .

People v. Brunette (Cal. Ct. App. - April 13, 2011)

Michael Vick's got nothing on Robert Brunette:

"This macabre case involves appalling animal cruelty. There are parallels between aspects of it and Joseph Conrad's novella Heart of Darkness: cruelty, the abandonment of civilized norms, and apparent madness; remote locations that discouraged outside investigation; and arranged displays of severed heads.

In 2008, responding to a neighbor's complaint, Santa Cruz County Animal Services Authority employees and sheriff's deputies visited defendant's property, located deep in the woods in a remote part of Santa Cruz County. They found defendant standing in the midst of a canine charnel house. Some dogs lay dead or dying. Most of the rest, in the dozens, were skin and bones from starvation, suffering from infection, flea-ridden to a life-threatening degree, worm-infested, panting in cages exposed to the remote area's high temperature that day, putrefying with open sores, malnourished, injured, and/or battle-scarred from fights over food. One employee witnessed dog-on-dog predation firsthand. As he stood talking with defendant through a fence, 10 or 15 dogs began to attack another dog, 'just ripping it apart.' Defendant managed to fend off the attacking dogs, then removed the victim dog from the animal control employee‟s sight and pronounced that it was fine. The property exuded odors of excrement and septic putrefaction. The authorities found one dog that they estimated had been confined in a pickup truck cab for a month or more. The truck's windows were closed and the air temperature was in the nineties that day.

Defendant had mounted a display of aligned dog skulls at one location. Over time, the sun had bleached the skulls. At another, defendant had fastened a dog's head to the top of a trimmed tree trunk.
 
Defendant was operating a dog-breeding facility. He called it Gladiator Cane Corso. A would-be customer, William George Fritz, IV, testified that in 2006 defendant showed him two puppies that were in appalling condition. One of the dogs had swollen and bleeding paws. They had lost much of their hair and were emaciated, with rib cages and backbones showing. Defendant appeared indifferent to their plight. Fritz told defendant that the dogs were dying and defendant replied that he had abandoned them to their fate.

The next day, Fritz went back and rescued the dogs. He paid defendant $200 for each one. The dogs were so weak that he had to carry them to his truck. They were covered with mites, had sores, and smelled bad."

But at least they finally arrested and punished him, right?  Sure.  After about a year.  Before that, "[e]arly in 2007, Fritz complained to various agencies, including the Animal Services Authority, and each entity said that the area of defendant's property did not lie within their jurisdiction."

Nice.

POSTSCRIPT - And timely.  Since, speaking of convicted sports felons, Barry Bonds was just found guilty of obstruction of justice (but the jury hung on the perjury counts).

People v. Murdoch (Cal. Ct. App. - April 12, 2011)

Want to see someone who's crazy, but who nonetheless was allowed to represent himself at trial?

Here you go.

This is not a guy who was faking it.  Everyone agreed he had a serious mental illness, but the trial court thought he was competent to stand trial -- as well as to represent himself -- once he was medicated.  He wanted his trial.  Desperately.  He wanted to prove his innocence.  He only asked to represent himself once his attorney asked for a continuance.  The trial judge let him.

What was his defense?  He was accused of assault and battery.  On a person.  So his defense was that the victim was not a "person" and was instead an angel.  So no crime.  Prior to opening statements, he told the court he was going to introduce various pages from the Bible, and that these were relevant because:

"What I have to do here is I have to demonstrate that there's something else going on in this world that people are aware of. I'm going to make allegations about the plaintiffs [victims] in this case that they aren't even human . . . . [W]hat I‟m going to ask is [if] these individuals are from Sodom and Gomorra. They're individuals that are among us that are not human. There's a saying,'when pigs fly.' Shoulder blades are symbolic of angelic beings.  These two that are going to be taking the stand do not have shoulder blades. Okay?  All I need to do, okay, if my assertion of their anatomy is correct, they have a bone that runs from here to here. They cannot shrug their shoulders. That's all I'm asking."

Uh, yeah.  That's an awesome defense.  Can't wait to see how that works out for you.

True to form, the defendant only asked one question of the witness on cross-examination:  "Can you shrug your shoulders like this?"  Trying to have his "Perry Mason Moment" when he proved, beyond a shadow of doubt, that the victim was indeed a nonhuman angel.

Stunningly, it didn't work out.  The victim shrugged.  Defendant said, essentially:  "Oops.  I may have the wrong person."  The jury, undeterred by the defendant's brilliant legal strategy, convicted.

The Court of Appeal reverses.  The dude was incompetent.  Or at least there was sufficient evidence to require at least a hearing as to his competence.  Which didn't happen.

Oh, and if the guy's faking it, he's totally committed.  After the trial, "he believed he saw aliens crawl out of his skin and used a blow torch to burn off what he believed were tentacles growing out of his body, suffering second and third degree burns to his neck and arms in the effort."  'Cause maybe nonhuman aliens were infesting his body as well.

The crazy guy's name, by the way, is Murdoch.  Like the crazy guy on the A-Team.  Except for this one's actually crazy.

U.S. v. Apodaca (9th Cir. - April 12, 2011)

Child pornography is the new crack cocaine.

By that, I don't mean it's incredibly addictive.  (Though with voyeurs with a penchant for this stuff, perhaps that's true as well; I just don't know.)  I instead mean that it's the latest area in which the federal courts have begun to realize and articulate that the sentencing guidelines are just plain wrong -- and unjust -- and have started to respond accordingly.  And, as with crack cocaine, I believe that you'll see institutional changes as well as changes at the case-specific level.

We used to punish crack cocaine incredibly more severely than powder.  Why?  Because it was minorities who got the raw end of the deal, so we didn't care.  But eventually, the law responded.  After, mind you, a plethora of people were incarcerated for excessive periods.

We currently punish what we call "internet only" child pornography fans the same way.  If you're convicted of possession of child pornography because you're caught looking at this stuff over the internet, the guidelines generally tell judges to throw you into jail for six to nine years, as well as to impose a lifetime of supervised release where, for example, you can't have any contact with any children.  Ever.  These sentences may make sense for certain sex offenses, like child molestation, where there's an incredibly high recidivism rate.  But the Sentencing Commission simply assumed that sex crimes result in sex crimes; e.g., that someone who's caught looking at child porn over the internet is likely to actually molest children later.  Except that it's just not true; in fact, an incredibly small number of offenders in fact so reoffend.

Federal judges have started to realize this.  At least the ones who care.  And at least after the guidelines became advisory (remember; formerly, they were essentially mandatory).  Resulting in numerous departures from the guidelines.  Including the one at issue in this case, where the guidelines called for six to eight years in prison but Judge Pregerson only have two.

Two problems.  First, not all judges are nearly as sympathetic -- or informed -- as Judge Pregerson.  Or as willing to depart downward from the guidelines, especially in these types of cases.  (And let me assure you that the number of downward departures in kiddie porn cases would be far lower if, as in California state court, federal judges were subject to contested elections.)

Second, even when you've got a sympathetic judge, even they may go along with at least part of what the guidelines say; for example, here, the lifetime supervised release requirement.  So you might think that people like Apodaca would be thankful that he only got two years in prison, as opposed to eight or nine.  And I'm sure he is.  But he's still bummed that he can never talk to anyone under eighteen again.  So he files an appeal, arguing that this sentence is grossly disproportionate to his crime, particularly given the truth about reoffenders in the "internet-only" category and the studies on this issue.

But he loses.  Not because the Court of Appeals is unsympathetic.  It is.  Judge Cudahy -- sitting by designation from the Seventh Circuit -- writes a majority opinion (joined by Judge Wardlaw) that makes clear that the punishment recommended by the guidelines seems harsh.  Judge Willie Fletcher writes a separate concurrence that makes this point even more strongly.  If you want to see opinions that do a great job of using empirical studies and publicly-available social science information to inform their views, read these two.  They're extremely good.

But even for these judges -- and there are many more judges on the Ninth Circuit who'd be less willing to express sympathy with a kiddie-porn defendant than Judges Cudahy, Wardlaw and Fletcher -- that's not a basis to reverse.  The guidelines say X.  Procedure was followed here.  It may be overly harsh, and even in a case like this, potentially unjust.  But it's not unconstitutional.  So the only thing they can do is to advise the Sentencing Commission to get its act together on this issue sooner rather than later.  As it did, again, with crack cocaine.  Another area in which the fact that the individuals victimized by an overly harsh sentencing scheme were "others" that we didn't care all that much about.

I'm optimistic you'll see changes.  In part due to opinions like these.  But as with many things, those changes will take time.  With overly harsh sentences in the interim.

So, in short, don't view kiddie porn.  Not only because it's wrong to do so.  Which, parenthetically, it totally is.  They're kids, for goodness sake.  That sort of stuff should gross you out, not turn you on.

But if for some reason your brain is erroneously wired, resist the temptation.  Not worth the time in prison.  Especially not now, and even after eventual changes in the guidelines, not worth it then either.

U.S. v. Arizona (9th Cir. - April 11, 2011)

I won't comment much about the merits of the Ninth Circuit's decision this morning that invalidated (over a partial dissent) the core portions of Arizona's 2010 anti-immigration statutes as preempted by federal law.  It's a topic about which much ink, virtual and otherwise, has already been spilled, and you'll see additional stories throughout the blogosphere and mainstream media.  No reason to pile on.

I'll just add two tangential points.

First, the opinions here are a good example of the value of diversity with a big D.  By that, I don't mean narrow, exclusively race-based diversity, but rather the value of a diversity of experiences and backgrounds and intellectual (including political) approaches, of which race is undeniably a part, but only a part.  The panel drawn here -- randomly, I might add -- is very good for Diversity amongst middle-of-the-road Ninth Circuit judges.  Writing the majority opinion, striking down the Arizona statute, is Judge Paez, a left-of-center judge of Mormon upbringing who's Mexican-American.  Joining him -- and writing a separate concurrence-- is Judge Noonan, a profoundly Catholic and morally-centered judge who's a Reagan appointee and who taught at Boalt.  Partially dissenting is Judge Bea, a Spanish-born, Cuban-raised emigrant who is conservative and was appointed by President Bush (43).

Three very different judges.  Three very different perspectives.  Three opinions that unambiguously reflect the attitudes, background and approaches of their authors.

Second, I'm not entirely certain where the case goes from here.  Petition for rehearing will go nowhere, of course.  Petition for rehearing en banc will undoubtedly be filed, and someone will request a vote.  I'm not certain whether it prevails.  The case is important enough, that's for sure.  But I also think the majority of the court will agree with the panel's resolution.  As well as happy with its composition.  So I tend to think the en banc call will fail.  With, undoubtedly, a dissent from the denial filed by someone who wants to tee it up for the Supremes.

At which point I don't know what happens.  Probably they take the case.  Too high profile not too.  Which then results in a profoundly split opinion.

That's the weather forecast for this Arizona case.  Hot.  Red hot.

City of Los Angeles v. Superior Court (Cal. Ct. App. - March 25, 2011)

Some people lately like to talk about how government employees are overpaid (at least when pensions and benefits are taken into account) and allegedly have "cushy" jobs.

But without taking a position on that debate, do you know any other job where your employer is permitted to breach (1) his contract with you, and (2) an express a collective bargaining agreement, and not pay you (as well as thousands of other employees like you) despite these employment promises?

That's the fate of government employees.

Sullivan v. Centinela Valley Union High School District (Cal. Ct. App. - April 7, 2011)

Michael Sullivan was a probationary teacher at Hawthorne High School and taught business classes.  The District decided not to retain him (i.e., grant him "tenure"), and had a deadline to formally tell him that by March 15.

On March 10, the District's HR Director called Sullivan into a meeting and told him that the District would recommend to the Board of Education that he not be retained.  Sullivan was bummed.  He called in sick on March 11 and 12.

On March 13, the Board formally met to consider Sullivan's reappointment.  The District indeed said that it didn't want him anymore.  Sullivan showed up and asked to be reappointed.  Also appearing on Sullivan's behalf was his "friend" Milton Kerlan, Jr, who also spoke.  And who just so happens to be an attorney.  But Sullivan saw the writing on the wall once the Board went back into deliberate.  So ditched the meeting at that point, and stepped outside the room.

Which meant that when the Board returned to deliver the bad news, they couldn't give Sullivan "notice" of its decision.  They told his attorney friend, Milton Kerlan.  But he later said that he didn't "represent" Sullivan, so that's allegedly not formal notice either.

But Sullivan knows he's going to be served with notice the next day at school.  So on March 14, he again calls in sick.  So the Board sends him a certified letter.  There's precedent that says that if you refuse to sign for a certified letter, that counts as notice.  So Sullivan doesn't do that.  Instead, he stays away from his house on March 15th, and has Rita Sullivan sign for the letter.  Which Sullivan reads on March 16th, one day after the notification deadline.

At which point Sullivan says that Milton wasn't his attorney, Rita wasn't authorized to accept service on his behalf, and that since he wasn't formally notified by March 16th, he's automatically granted tenure.

Creative legal mind.  The dude should go to law school.

Except if he did, he'd know that this won't work.  Not even close.  The trial court says that when you evade formal notice like this, failure to notify you after the deadline doesn't grant you tenure.  The Court of Appeal affirms.  In a case that's totally easy.

There's a fine line between knowing the law and "knowing" the law.  This is a perfect example.  Anyone who knew the law -- e.g., a good attorney -- would tell you how this one would undeniably come out.

People v. Morgan (Cal. Ct. App. - April 7, 2011)

In 2000, William Morgan brandishes a hammer.  That's a misdemeanor.  But he does it as part of a hate crime.  Oops.  That's a felony.  He pleads guilty.

By 2008, Morgan has learned his lesson.  He no longer brandishes a hammer.  This time, he assaults the victime with a knife.

Oops.  That's a felony too.  Assault with a deadly weapon.  It also doesn't help that he did this while on bail.  We don't like that.  Twelve years in prison.

By 2020, I assume Morgan will have learned his lesson again.  And use a gun this time.

In Re Borlik (Cal. Ct. App. - April 6, 2011)

You say you were sentenced to six years in prison for driving drunk and running over a 72 year old cyclist, killing him?  Sucks to be you.

You say that case law entitled you to work and good conduct credits so you only had to serve three years (as long as you did everything that was required)?  Fair enough.  So the Department of Corrections told you your parole date would be October 9, 2008?  Well then, I guess it is.

Wait a minute.  The California Supreme Court took up a case and changed the rule?  So now you don't get released until July 28, 2011?  Wow.  Sorry about that.

But surely the new rule articulated by the California Supreme Court can't be retroactive, can it?  Yes, the Court of Appeal holds, it is.

But surely that doesn't apply to you, since you relied on the prior calculation and can prove that the only reason you went (and performed admirably) at work camp was to get the extra credits -- credits that the Court of Appeal now says you don't get?  Nope.  Your proof is irrelevant.  Guess you shouldn't have relied on either the calculations or the then-existing law.

But surely you aren't going to make me go back to prison, are you?!  I was released from prison in August 2009, after the Court of Appeal vacated a stay.  I've been living a crime-free life since then. I've done all I have to do.  Surely you're not going to make me report back to prison after being released?

Yes, we are.

Vukmirovic v. Holder (9th Cir. - April 6, 2011)

It's unusual.  But sometimes a panel changes its mind.

Judge Schroeder wrote a majority opinion last year in which she held that Vukmirovic's in absentia deportation should be reversed for "exceptional circumstances" -- namely, the fact that he was deported because he had changed addresses and thus wasn't notified of the renewed proceedings against him.  Judge Rawlinson dissented.

The United States petitioned for rehearing en banc.  Reading between the lines, there was a decent chance of review being granted.

So, today, the panel reverses itself.  Unanimously.  Holding that there weren't exceptional circumstances and that Vukmirovic didn't have a very good claim on the merits anyway.

Which I'm sure makes Vukmirovic sad.  He thought he got to stay in the United States.  Now he finds out he can't.

But don't cry too much.  Vukmirovic's immigration proceedings have already lasted two decades.  And he's been in the United States the whole time (ever since he fled the former Yugoslavia in 1991).  So while these long-running proceedings are now largely over, they've still got to catch Vukmirovic and send him back.  A task that might not be all that easy.  Especially after 20 years.

People v. Shockman (Cal. Ct. App. - April 5, 2011)

My education continues apace this morning:

(1)  I learned that a good place to score methamphetamine is in Old Town.  Approximately 4000 yards away from my office at the University of San Diego.  That's convenient.

(2)  I learned that trademarks aren't just relevant to legal enterprises.  Here, for example, the methampetamine dealer made the quality of his product known by ensuring that it was always wrapped not only in plastic, but then further wrapped in a black cocktail napkin.  Classy.

(3)  I learned not to conduct drug deals entirely by text messages.  Because sometimes, when the police bust someone for drugs, they send out a text message to all of the contacts in the arrested person's cell phone that says, simply, "Can you bring me some?"  And if one of those contacts is stupid enough to respond, they continue text messaging the person, set up a drug deal, and bust 'em.  So you should first do for a drug deal the same thing I imagine you should do when you meet a stranger you met on Craigslist for a casual encounter.  Voice verify.

(4)  I learned not to make your co-defendant angry with you.  Here, there are two defendants, and the prosecutor offers a "package" plea deal to them; i.e., they both have to accept, or no deal.  The defendant who was caught red-handed wants the deal, but the other defendant -- who has a quite reasonable defense -- doesn't.  So they go to trial.  The clearly guilty defendant doesn't even put on a defense:  here's his entire closing argument:

"Ladies and gentlemen, I want to thank you for your patience and for your close attention to this case. It's seldom that I stand up in front of a jury, as seldom as never, and say 'What can I say?' I mean, you have the evidence. I hope you don't think that Mr. Peary and I wasted your time. You may wonder why we're here. But that's not relevant to your decision. And I'm going to say two words, and then I'm going to sit down. Two words that will not [a]ffect your decision but might have [a]ffected Mr. Peary's life. I want you to take that away from this experience. And that is 'adequate healthcare.' Thank you."

So he doesn't have much of a chance.  But what can he do?  Screw his co-defendant.  Because there's some incriminating evidence against his co-defendant -- evidence that the court has ruled that the prosecution is not allowed to introduce.  So what does the defendant do?  He moves to introduce that evidence against the co-defendant himself.  Evidence that wouldn't help him at all, but that will hose his colleague.  And the trial court allows this.  So does the Court of Appeal, albeit over Justice Aaron's dissent.

Oh, one more thing.  After he introduces the evidence against his co-defendant, and after he makes the non-closing statement, the prosecution offers him the same (now non-package) plea deal they offered before.  He takes it, leaving only his co-defendant to face the jury.  Congratulations.  You have your reward.

In short, there are lots of helpful things you can learn from the pages of the California Appellate Reporter.

Samayoa v. Ayers (9th Cir. - April 4, 2011)

The California Court of Appeal has been quiet lately.  No new opinions published either today or Friday.

But the Ninth Circuit doesn't disappoint.  Here's what it publishes today.

Over a year in the making (oral argument was in August 2010).  It shows.

Here are the first four paragraphs of Judge Silverman's opinion:

"It is undisputed that on December 18, 1985, appellant Richard Samayoa beat Nelia Silva to death with a wrench in the course of burglarizing her home. Samayoa also beat to death Nelia’s two-year-old daughter, Katherine. The pathologist estimated that Nelia was struck in the head 24 times. The jury heard testimony that the faces of both mother and daughter were smashed in, their skulls crushed, and fragments of bone penetrated their brains. It is undisputed that Samayoa left Nelia and Katherine naked from the waist down — he said he did that to make the crime look like a rape — and then he stole jewelry from the Silva house that he gave away as gifts to members of his family. The mutilated bodies of both victims were found by Rolando Silva, Nelia’s husband and Katherine’s father. Photos of the decedents and of the bloody crime scene were introduced into evidence.

Nine years earlier, Samayoa had raped and sodomized a woman with multiple sclerosis, who begged him, 'Please don’t rape me. I’m a cripple.' He was convicted of burglary and rape and sentenced to prison. Five years later, while staying overnight at a friend’s home, Samayoa entered the bedroom of the friend’s sister and smashed a flower pot in her face in an effort to rape her. She suffered a laceration of her face that penetrated to her cheek bone. He was convicted of assault with a deadly weapon and again sentenced to prison. Samayoa also had a prior conviction for another burglary. Altogether, he had been sentenced to prison three separate times.

At the trial of the double Silva murders, which Samayoa conceded he committed, defense counsel presented testimony from three psychologists and a written report from a fourth to the effect that Samayoa suffers from, among other diagnoses, an organic brain disorder that could explain his violence. In addition, at the penalty phase of the trial defense counsel presented evidence that Samayoa had been a compliant prisoner during his previous incarcerations, proving that he can be safely incarcerated. They also presented evidence from his mother and sisters to the effect that they loved him and hoped his life would be spared.

The jury returned a penalty phase verdict of death after about 80 minutes of deliberation."

Judge Silverman holds that even if the defense lawyers had introduced testimony about Silva's terrible childhood, it would not have made a material difference.  Maybe the jury would have deliberated for 82 minutes instead of 80.  But given the undisputed facts of the case -- he beat a two-year old child to death, for goodness sake -- and the defendant's history, this is a guy who's going to be sentenced to death.  So the trial court was right, particularly when the California court's decision is viewed with AEDPA deference.

When I finished reading that opinion, I readily said:  "Seems totally right to me.  No jury -- particularly one in San Diego -- is going to be persuaded by this stuff.  He's going to die."

I noticed, of course, that Judge Reinhardt dissented from Judge Silverman's opinion.  But that's not surprising, right?  It's a death penalty case.  He'll make whatever arguments he can.

But then I read Judge Reinhardt's dissent.  And if Judge Silverman's opinion is -- standalone -- a persuasive assessment of the case, so too is Judge Reinhardt's.  As with Judge Silverman's opinion, if your only exposure to the case was reading the dissent, I think the majority of readers would be persuaded.  Here's the opening of Judge Reinhardt's dissent:

"This is a capital case in which the trial defense counsel, for reasons that are impossible to fathom, deliberately and knowingly refused to investigate the capital defendant’s abusive family background, the type of mitigating evidence that the Supreme Court has repeatedly emphasized is highly relevant to a jury’s decision whether to impose the death penalty. See, e.g., Wiggins v. Smith, 539 U.S. 510, 535 (2003). In fact, in this case it was the only mitigating evidence by which counsel would have had any realistic chance of persuading the jury to spare his client’s life.

Because Richard Samayoa’s trial counsel refused to investigate the circumstances of his client’s upbringing, the jury that sentenced him to death never learned that he was raised under unimaginably horrific conditions: that he was the victim of constant and severe physical and psychological abuse, that his family environment was rife with sexual abuse of children, and that he had drugs pushed upon him by abusive adult relatives starting at an extremely young age. Samayoa’s counsel had no strategic justification for failing to obtain such evidence and present it to a jury, especially as, in light of Samayoa’s brutal offense and his past brutal crimes, the only hope of persuading the jury to spare his life was to explain his criminal behavior as a product of the truly depraved conditions which from the outset shaped his existence. The failure to introduce that evidence probably made his death sentence inevitable.

The mitigation case presented by Samayoa’s trial counsel not only failed to provide the jury with a single reason to spare Samayoa’s life, but likely contributed to some degree to its decision to order him executed. The incompetence of the
psychological experts upon whom the defense relied to attempt to prove that Samayoa suffered from organic brain damage must have been evident to all, including the jurors: the 'experts' made basic mathematical errors in tabulating test results, diagnosed Samayoa with a non-existent psychological condition, [Footnote: Specifically, one of Samayoa’s experts, Dr. Saul Saddick, testified that Samayoa suffered from 'Organic Rage Reaction.' A government rebuttal expert noted that 'Organic Rage Reaction' is not a condition recognized by the American Psychological Association. Even today, more than
twenty years later, a Google search for 'Organic Rage Reaction' returns only three results, all of which are documents arising from Samayoa’s litigation that note there is no such condition as 'Organic Rage Reaction.'] and presented the jury with a mislabeled, upside-down diagram of the human brain. The testimony of the prison guards called by the defense was equally without import: the guards simply testified that Samayoa was 'above average,' for a prison worker. And the testimony of Samayoa’s mother and two sisters was of no assistance to him whatsoever: they testified that they loved Samayoa and would feel guilty if he were executed, because they helped turn him in. One sister stated that she would 'understand' if the jury sentenced him to death, and both testified that until they learned Samayoa was the culprit they had believed that whoever committed the murders for which he was convicted should be executed."

Here's a snippet of the underlying evidence that Judge Reinhardt concludes might have made a difference at trial:

"Samayoa was raised in a savagely violent family environment. Adult members of his extended family viciously beat one another bloody in front of children at family gatherings “pretty much every weekend.” The declarations of Samayoa’s cousins paint a picture of brutal, senseless violence among family members on a basis so routine as to amount to a ritual of sorts: Samayoa’s uncles beating their father (Samayoa’s grandfather) in front of his grandchildren; outsiders at family gatherings being set upon and beaten, parties that 'always ended up with major fights and blood on the walls.' Not surprisingly for a family in which '[v]iolence was a way of life,' Samayoa himself was regularly and severely beaten by his father, who did not work and spent his family’s welfare benefits on liquor. One family member recalls that, '[Samayoa’s] dad would beat the shit out of the boys,' and that Samayoa drew a disproportionate share of his father’s beatings, apparently because he refused to cry. That relative states that, '[w]hen . . . [Samayoa] was thirteen or fourteen years old, I saw him get beat five to ten times a month.' Another relative recounts that Samayoa’s father would lie on the family’s couch with a belt rolled up at his side, so that he would be able to beat his children with its buckle at a moment’s notice. Nor were belt buckles his only means of brutalizing his children: Samayoa’s mother recounted that, '[o]nce, when my husband was very angry with Richard, he put Richard’s hands in a flame to punish him.'"

Plus, because it's an opinion by Judge Reinhardt, no one gets off scot free.  Not only do Samayoa's lawyers get tagged, but Judge Reinhardt is not shy about sharing his opinions about his colleages either, saying (among other things):

"To be sure, a truly determined and creative jurist could engage in speculation and conjure up fanciful strategic justifications for Popkins’s refusal to investigate Samayoa’s background. One could, if one were particularly imaginative,
speculate that Popkins was concerned that questions as to Samayoa’s childhood would alienate his family, and result in their refusal to testify. In such case, the jurors would not have heard that although his family had initially felt that the perpetrator of Samayoa’s offense deserved to be executed, they appreciated the greeting cards he occasionally sent them from prison. Or perhaps Popkins felt that he could not afford to divert his focus from the correctional officers who would testify that Samayoa was an above-average worker. However, even if such flights of fancy could provide a minimally colorable strategic rationale for counsel’s refusal to investigate Samayoa’s background (which they plainly cannot),
Samayoa’s lead counsel did not provide any statement to that effect, and second counsel stated that no such strategic calculation justified the refusal to investigate. On the basis of the record before us, it would be nigh impossible for a fairminded jurist to deny that the 'decision not to investigate [Samayoa’s background] did not reflect reasonable professional judgment.' Porter, 130 S.Ct. at 453."

You gotta love the third and fourth sentences of that snippet.  You rarely see judges write things that are deliberately sarcastic.  Love it.

So when you read both opinions, you have a much better sense of what's at stake.  As well as the merits of both sides.  Personally, I think that it's very difficult to tell how juries decide to sentence people to death, which -- alongside the review of the evidence -- is the most persuasive part of Judge Reinhardt's opinion.  That stuff might well have made a difference to one or more jurors.  By contrast, the most persuasive part of Judge Silverman's opinion is the recitation of the undisputed facts, which do indeed make Samayoa out to be a monster, which is how most jurors would indeed view him.  If that's the case, it doesn't matter at all what made him a monster.  He is one.  Jurors would want to put him down.

So a fascinating debate.  That ultimately revolves around how people decide who will live and who will die.  With life-changing (indeed, life-ending) consequences for Richard Samayoa.

Judge Kozinski votes with Judge Silverman.  So unless the case gets taken en banc, Samayoa gets killed.

U.S. v. Fasthorse (9th Cir. - April 1, 2011)

Don't have sex with someone who's passed out.  Even if she's been partying with you.  Otherwise you'll go a decade without partying and sex.

No, that's no April Fool's joke.  It's good advice.