People v. Dunckhurst (Cal. Ct. App. - May 30, 2014)

Defendant is a "three-striker" who gets sentenced in 2005 to 33 to life for a "nonviolent" offense.  In 2012, the voters passed Proposition 36, which changed the three strikes law and permitted a ton of currently sentenced three-strikers to file a motion to recall their sentence.  The purpose of Prop. 36 was to provide relief for many people given life sentences for nonviolent offenses.

But there were exceptions.  If your third strike was a violent offense, or if one of your prior offenses was for a really big crime (e.g., murder), you couldn't recall your sentence.  You remained in jail for life.

Under this regime, everyone agrees that if, say, your first strike was for burglary, your second strike was for murder, and your third strike was for grand theft, you don't get relief.  The statute says that your "prior" conviction for murder precludes relief.

But what about here?  Defendant doesn't have any prior strikes that are from "superserious" offenses, and he was nonetheless sentenced to life in 2005 for a nonviolent offense.  But five years later, in 2010, he assaults another inmate with a deadly weapon.  Which counts as a "superserious" offense.

But is it a "prior" offense?  After all, we're talking about whether his 2005 nonviolent conviction gets reduced from life.  Does a 2010 offense count as a "prior" offense?

The California Court of Appeal holds that it does.  Because while it may not be a "prior" offense to his actual conviction, it's an offense "prior" to the filing of his petition to recall his sentence.

Even though that's not at all what we usually mean by "priors" in the criminal context.

No one ever said the English language was determinate.  Especially when everyone's got a lawyer.

POSTSCRIPT - Then, several hours later, the Court of Appeal comes out with this opinion.  Different panel, different district, different issue (albeit another three-strikes recall case), and strikingly different type of legal analysis (and result).

People v. Rose (Cal. Ct. App. - May 29, 2014)

I'm not sure why I've seen a rise in the number of cases in which the sentence seems unduly lenient.  But here's another one.

Defendant gets probation.  For deliberately hitting a police officer (who was in the middle of trying to arrest someone else) with a chair.  Twice.  Not to mention the fact that the defendant had earlier told the officer's family as well as other police officers.

The fact that defendant was part of Occupy Oakland seems relevant, but hardly sufficient to justify probation.

In Good Will Hunting, the judge tells Matt Damon:  "You know, another judge might care, but you hit a cop.  You're going in."

Guess that's just fiction.

Lewis v. Superior Court (Cal. Ct. App. - May 29, 2014)

Reasonable people should know that whenever you get a prescription filled, any law enforcement officer -- or any administrative officer with the state -- is entitled to know upon request what drugs you take.  Without a warrant.  Without reasonable suspicion.  Without anything.  Whether it's codeine or Viagra or whatever, the state's entitled to find out what drugs you take at its leisure.  Unlike actual medical records, which are legitimately private.

So holds the California Court of Appeal.

In Re Christopher R. (Cal. Ct. App. - April 28, 2014)

Mother and Baby test positive for cocaine at birth.  Baby also tests positive for amphetamine and methamphetamine.

Mother admits that she used cocaine when she was 16 -- seven years previously -- but claims to have stopped a year later.  As for how she (and the Baby) nonetheless test positive, Mother says that during the eighth month of her pregnancy, she picked up a small container of cocaine for someone else, and then tasted a tiny bit of it to make sure it was cocaine.  (Let's leave entirely to one side the wisdom of this purported explanation.)  Baby was born three days later.

Baby weighed a little over five pounds at birth.  She needed IV feeding and oxygen, and was in the hospital for 25 days.

You can figure out what happens.

U.S. v. Rangel-Guzman (9th Cir. - May 28, 2014)

It's a nice, sunny day here in San Diego, and that alone is enough to bring a smile to my face.  But my smile got a little brighter when I read this introductory paragraph of an opinion by Judge Kozinski:

"It is said that every dog has its day. Unfortunately for Kevin Rangel-Guzman, the drug detection dog at the Otay Mesa Port of Entry was having a fine day on September 5, 2011, when Rangel-Guzman and a friend attempted to reenter the United States. The dog alerted to their vehicle, and Customs and Border Protection officers conducted a search. Officers found 91.4 kilograms of marijuana, hidden in a compartment behind the backseat."

Too funny.  Judge Kozinski ends this paragraph by saying "Good dog!"  But I liked the introduction even better without it.  (Though, to be sure, the dog definitely deserved congratulations.  As well as a treat.)

The opinion is also worth noting -- even beyond its humorous introduction -- because it's a great (perfect, really) lesson about what a U.S. Attorney should do when (1) s/he's got a case in front of the Ninth Circuit, (2) in which the AUSA might well have committed misconduct.  Especially when that panel contains, amongst others, Judge Kozinski.

Don't fight it.  Don't try to say that what the prosecutor did was perfectly fine.  Go ahead and confess error.  Do more, even.  Promise it won't happen again.  You can still try to salvage the conviction.  But take your lumps and admit that what transpired should not have occurred.

Because only then will you have a chance of getting paragraphs like this one from Judge Kozinski:

"After oral argument before us, the United States Attorney 'concede[d] that [the] cross-examination of defendant was error' and advised us that she 'has instituted—in addition to existing training—a semi-monthly training update for the Criminal Division regarding pre-trial and trial phases . . . in which prosecutorial error may occur.' We commend the United States Attorney for the Southern District of California for her forthrightness and hope that her example will be followed by prosecutors across the circuit."

What's more, look at the result.  Conviction affirmed.  Harmless error.

Even when you're in your 50s, a lesson that you probably learned as a child still applies:

Saying "Sorry" often goes a long way.

People v. Burrows (Cal. Ct. App. - May 28, 2014)

Defendant has one DUI.  Defendant gets a second DUI.  Defendant then gets a third DUI.

Defendant then gets busted again for DUI.  Alongside driving with a suspended sentence.

You know what's coming, right?  A lengthy prison sentence.  We take these things seriously.  At least the fourth time.

Nope.  Defendant simply gets probation.

This (surprising) sentence isn't even at issue in the appeal.  It's instead whether she's entitled to have the charges dismissed (and probation terminated) after completing drug court.  The California Attorney General successfully persuades the Court of Appeal that that's not permissible here.  At least until they are given the statutory two-day notice of such a motion.  Notice that wasn't given here.

So now the state will get notice.  And, almost certainly, the result will be the same.  Charges dismissed.

I've seen a lot of multiple-DUI cases in my time.  I don't recall seeing any in which the consequences were as light as those here.

Maybe things are different in Glenn County.  Because I have a keen sense that a four-time DUI loser isn't going to get probation virtually anywhere else in California.

Piccinini v. California Emergency Mgmt Agency (Cal. Ct. App. - May 27, 2014)

Can you really state all the relevant facts of an appeal, as well as cogently identify the relevant legal principles, in a case of first impression in under four-and-a-half double-spaced pages?

Yes.

The Court of Appeal reverses the trial court and holds that a would-be state employee can permissibly sue when he applied for a state job, completed the application process, was told he was hired, quit his current job, and then received a telephone call the Friday before he was to start work on Monday and told that he should stay at home because his position had been eliminated by budget cuts.

Justice Siggins does all the heavy lifting in an incredibly concise opinion.

Justice need not be prolix.

U.S. v. Guerrero-Jasso (9th Cir. - May 27, 2014)

Judge Berzon writes a good opinion.  She simultaneously authors a darn good concurrence.

The concurrence expansively discusses Ninth Circuit precedent and argues that the court went awry on a particular Apprendi issue.  It's a neat discourse.  One of the upsides of having very smart people on a court is that they can not only resolve particular cases, but also examine more broadly whether existing doctrine seems right and, if it's not, what went wrong (and when).

It seems pretty clear that Judge Berzon's going to call for en banc review.  Of her own opinion.

We'll see where that goes.

U.S. v. Ezeta (9th Cir. - May 23, 2014)

When we think about criminal statutes that governing obtaining money by fraud, we generally have an idea that they cover someone getting money for themselves.  But I think the Ninth Circuit is correct in this case when it holds that "obtain" doesn't necessarily mean "obtain for yourself".  It can also mean obtain for a third party.  Accordingly, the district court's dismissal of the indictment here was indeed erroneous.

That said, Carlos Ezeta is not your "usual" criminal.  He's a professor at the College of Southern Nevada, a community college.  Various students would come into his office for help getting registered for classes.  At which point he would occasionally, without their knowledge, fill out fraudulent FAFSA forms on their behalf so that they could get federal financial aid.  The students were eligible because they hadn't graduated from high school or gotten a GED.  But Professor Ezeta filled out forms on their behalf that said otherwise.

That's fraud.  It's (rightly) illegal.  Ezeta should be punished.

But, come sentencing time, the fact that Professor Ezeta had good motives -- and was trying to help others (rather than himself) -- seems exceptionally relevant to me.

But that's at sentencing.  Not at the indictment stage.  The guy's got to face a trial.  Or simply plead guilty.  Which I'd strongly recommend.

While the Ninth Circuit gets the right result, I think it goes too far, and Judge Tallman's opinion reads a little bit too much like an advocate's brief once you hit the last couple of pages.  Particularly weak, in my view, is Judge Tallman's tangential -- and unnecessary -- claim in the penultimate paragraph of the opinion that Professor Ezeta purportedly "benefit[ted]" from his misconduct because it resulted in the payment of money to the college that employed him and allegedly "enhanced his reputation" because he was a popular teacher at the school.

Not.  The school would be paid either way; the only question is whether the student would pay it out of pocket or get a loan.  Plus, even if the money did matter, it's just silly to say that Professor Ezeta would personally benefit from the fact that the school got another $8,000 (or even $37,000) in tuition.  It's not like the money's going to him (either directly or indirectly), nor would such trivial funds stop him from being laid off, nor would the silent receipt of such aid enhance his reputation.  It's not for him.  He did it to help people he thought needed help.  That's criminal, but that's where the opinion should stop.  It's not necessary to "backstop" this argument by saying that, in any event, Ezeta did in fact benefit from these funds.  He didn't.  He might have felt better because he thought he was doing good, and hence maybe slept better at night.  (At least until he was caught.)  But that's it.  The opinion's unnecessary argument to the contrary just makes the otherwise entirely reasonable and moderate opinion seem like it's desperate to justify its result.

So I think this opinion gets it right.  But should have stopped before it tried way too hard.

In Re Alonzo J. (Cal. Supreme Ct. - April 3, 2014)

The next time someone tells you that the client has the ultimate say over whether or not to plead guilty, tell 'em about this unanimous opinion of the California Supreme Court.  Which holds to the contrary.

The Court holds here that a juvenile -- here, a 13-year old -- can't plead guilty if his attorney doesn't consent.  The Court ends its opinion by saying that "[n]ot before us are questions concerning how attorneys should exercise the authority to give or withhold that consent, and we express no view on those separate issues of attorney ethics."  Which is a neat way of sidestepping what are to me major questions about the validity -- not to mention the wisdom -- of the underlying rule.

But the Court holds that the Legislature has, and is permitted to, force a juvenile defendant to go to trial notwithstanding the fact that he wants to plead guilty (and/or no contest) and go home.  Even when, as here, the attorney admits that there's more than enough evidence to convict the client at trial.

Whether to plead guilty is not the client's decision.  It's the attorney's.

Cottini v. Enloe Medical Center (Cal. Ct. App. - May 21, 2014)

This is why you make your expert disclosures on time.  Even in state court.  Even if you think you've got a "good" reason not to do so.

It's bad not to have any expert witnesses allowed to testify.  Especially in a case against a medical center.

Very bad.

Beauchamp v. City of Long Beach (9th Cir. - May 21, 2014)

In September, Ninth Circuit thought it needed to certify a question to the California Supreme Court.  But I thought the answer was pretty darn clear.  Particularly given the equities.

Apparently the parties saw the writing on the wall as well.  They promptly settled the case.

Appeal dismissed.  Homework to California Supreme Court withdrawn.

ProtectMarriage.com v. Bowen (9th Cir. - May 20, 2014)

For federal courts scholars, this is a neat discussion of standing.  But at 50 pages, unless you're fascinated by mootness issues, the debate between Judges Milan Smith and Wallace is probably, well, moot.

To be fair, though, the standing issue arises in the context of Proposition 8.  That's the biggest pitch in favor of reading this otherwise technical opinion.  The question is whether it's unconstitutional for the state to make public donors to that Proposition.  You can readily understand the arguments of both sides.  The disclosure proponents say the state has a legitimate anti-corruption and electoral interest in letting the public know who is funding ballot measures.  The disclosure opponents say that it allows contributors to be harassed and thus burdens their right to associate and participate in elections.

But the majority says that dispute's moot since the names here have already been disclosed for five years, and nothing can take that back.  Judge Wallace, by contrast, agrees, but argues that the capable of repetition yet evading review exception applies.

Beyond this doctrinal debate, there are two tiny portions of both opinions that bear brief mention.  First, in the majority opinion, Judge Smith says that in light of the prevailing mootness principles, "we advise courts to exercise the utmost caution at the early stages of actions concerning the disclosure of sensitive information, and to consider this 'mootness Catch-22' when assessing whether the denial of preliminary relief will likely result in irreparable harm."  The latter statement seems right, but not necessarily the former.  Whether there's effective appellate review surely affects the irreparable harm inquiry.  But even though I too care deeply about the compelled disclosure of sensitive information, apart from the irreparable injury point, it seems too far to say that courts must "exercise the utmost caution" in preliminary injunction disputes involving such data.  There's no "thumb on the scale" in such cases; rather, the usual rules (assess the likely success on the merits, etc.) would seem to properly apply.  The fact that mootness might preclude appellate review is (I agree) a good reason to grant an injunction if you think the plaintiff is likely to succeed on the merits.  But if you think they're unlikely to succeed on the merits, the fact that mootness might prevent timely review doesn't seem all that relevant to me (beyond the preexisting irreparable injury point), especially since most of these cases are affirmed on the merits anyway.

Now, I'd totally agree with Judge Smith if what he was saying was that in scheduling motions for preliminary relief, courts should "exercise the utmost caution".  That seems indisputably right, and an entirely proper thing to consider in light of the Ninth Circuit's mootness holding.  This case is a perfect example.  There was a pending statutory deadline to disclose names.  Plaintiff filed suit and requested preliminary relief.  But if such relief was denied, the plaintiff might well be compelled to disclose this information, and this would make any appeal of the injunction ruling moot.

In light of this fact, rather than setting the hearing on the motion for a preliminary injunction on the very last (or next-to-last) day before the disclosure was due -- which district courts are notorious for doing -- the much better course would be to set the hearing (if at all possible) a week or two earlier.  That would enable the plaintiff to effectively file a quick notice of appeal and request for a stay with the Court of Appeals in an effort to avoid the mootness problem.  (And if such an early hearing wasn't possible because the plaintiff unjustifiably delayed filing the lawsuit until right before the deadline, well, that's their fault, so the fact that mootness might negate effective appellate review in the event plaintiff's motion is denied doesn't bother me exceptionally much.)

But Judge Smith's "utmost caution" line doesn't read that way.  It sounds like it's talking about assessing the merits, not procedural scheduling.  Which is not, I think, the right way to think about these things.  At least as far as "utmost caution" is concerned.

The other tangential point that merits brief mention is the last footnote of Judge Wallace's dissent.  Which consists of a very long discussion (albeit in a footnote) of something that is entirely irrelevant to the appeal, but that Judge Wallace includes because he's clearly not happy about the fact that the California Attorney General decided not to defend Proposition 8 on appeal, so he feels like (1) saying so, and (2) suggesting that California pass legislation requiring the Attorney General to support such laws in the future.

The footnote's more than a little out of place.  Yes, it's perhaps a little bit of "background" (of a sort) about the dispute.  But even for someone like me -- who's on record as worried about related standing issues -- it is nonetheless a bit much.  That debate's already been fully played out in appeals that directly involved and raised that issue.  Reaching to to say the same thing in a case in which it's relevant only as "background" just seems too much of a stretch.  Especially when the footnote consists of four paragraphs and spans two pages of the dissent.

Better, I think, to simply let the "tangent" go and focus on the appeal at hand.

Vega v. Ryan (9th Cir. - May 19, 2013)

Back in November, the Ninth Circuit issued an opinion in an ineffectiveness assistance of counsel case that clocked in at just under ten pages.  Judge Beistline, sitting by designation from the District of Alaska, authored the opinion.

After I read the thing, I said at some length that I thought that there was a much stronger prejudice argument than the one that Judge Beistline made.  One that focused on the fact that the recantation of molestation claims to a priest may be much stronger evidence than a similar recantation to someone else.

This morning, the Ninth Circuit amended the prior opinion.  Bulking it up from ten pages to over thirty.  As well as redesignating it as per curiam.

Check out the final half-dozen pages of the opinion.  Which articulate the "But He's a Priest!" argument that I made after the initial opinion came out.

I couldn't have said it better myself.

The modified opinion is much more solid and persuasive than the original one.

Well done.

Hurles v. Ryan (9th Cir. - May 16, 2014)

I must say that the first things I noticed about this death penalty opinion were the dates.  The opinion came out today, May 16, 2014.  The case was argued in the Ninth Circuit on October 7th.  Of 2010.

What the heck took so long?!

Fortunately, Judge Ikuta's dissent anticipated my question.  Her very first footnote says:  "A reasonable person may wonder why the majority has reissued this opinion for the third time, almost four years after the case was submitted on October 7, 2010, particularly when doing so will vacate a prior version of the opinion which has been the subject of a cert petition pending before the Supreme Court for nearly a year."  She then goes on to describe all of the various twists and turns in this one.

What a saga.  One that, I might add, is far from over.  Because you've still got en banc proceedings and then the very real chance the Supreme Court takes an interest in this one.

Plus, even if things stay as they are now, on remand, there will have to be an evidentiary hearing.  Then a new appeal to the Ninth Circuit (regardless of who wins).  More en banc petitions.  Another petition for certiorari.  And so it goes.

This for someone who was convicted of murder and sentenced to death two decades ago.

Sometimes the wheels of justice grind even more slowly than usual.

In Re Valli (Cal. Supreme Ct. - May 15, 2014)

What a wonderful set of opinions.

It's not that the issue is extraordinarily complicated.  The question is whether a life insurance policy on a spouse that was purchased with community property remains community property despite the fact that the sole beneficiary is the other spouse.  The answer is "Yes".  Everyone on the California Supreme Court agrees.  Despite the fact that Court of Appeal went the other way.

What's somewhat unusual -- and wonderful -- about the opinion is that a large portion of its opening legal analysis involves a lengthy discussion of a hypothetical in which a husband purchases a diamond necklace for his wife, discussing whether such a purchase would involve separate property if the husband hadn't yet given the necklace to his wife.  I liked this because I found the hypothetical enlightening and because it reminded me of lectures in law school.  It's community property.  Whether you buy the property from "third parties" or not, unless you've affirmatively transmuted the thing, it belongs to the couple.  Simple as that.

So I thought that Justice Kennard's opinion was great.  So too for Justice Chin's concurrence.  He's fully on board Justice Kennard's opinion, but writes separately to discuss at length a different statutory provision that has confused various appellate courts in dissolution case, and does a great job of providing guidance.  Two other justices expressly join this concurrence as well, and I liked the effort.  It's as if Justice Chin is taking on extra work just to make things easier for his subordinate colleagues.  I love that attitude.

Smart, helpful opinions.  What more can you ask for?

P.S. - Plus, as a bonus, there's a little "star factor".  Since the husband who purchased the policy here (and whose divorce is at issue) is none other than Frankie Valli.

In Re Isabella F. (Cal. Ct. App. - May 14, 2014)

Remember what I said last month about spanking children?  That (among other things) there's a fine line between "legitimate" physical discipline of children and child abuse?  All of that in a case in which the Court of Appeal reversed the trial court, which thought that the mother had stepped over the line.

I could say the exact same things about this opinion.

So I'll simply incorporate my prior comments by reference.

People v. Acosta (Cal. Ct. App. - May 12, 2014)

It's a testament to the depths to which we sunk during the housing bubble (and its aftermath) that in the 91 years since California enacted the relevant provisions of Section 502.5 of the California Penal Code Section, there wasn't a single appellate decision that reviewed a conviction thereunder for wilfully removing fixed improvements from a piece of encumbered (e.g., mortgaged) real estate.

Until this one.

The case involves precisely the type of abhorrent conduct that transpired -- and, to a degree, continues to transpire -- during the housing crash.  Conrad and Monique Acosta were a married couple who took out a $700,000 mortgage when they refinanced their absolutely beautiful home in San Diego.  It was a stunner.  Stone work, wood gate, courtyard, patio, fireplace, swimming pool with waterfall and spa, exterior shower, custom wet bar with built-in wine racks; in short, all the trimmings.

Three years later, the Acostas stopped paying their mortgage.  So the lender went to foreclose.  At which point Mrrs. Acosta demanded money in order to vacate the premises.  Going so far as to e-mail the lender and say:  "$10,000 plus will maybe get me and my aunt to move out of this home in good condition!!!"  You can certainly read that as chutzpah.  As well as an implicit threat.

When the lender refused to give the Acostas the demanded ten thousand dollars to "maybe" vacate the premises, they deliberately destroyed the property.  Mrs. Acosta cut down a tree in the back yard and pushed it into the swimming pool.  She put black dye on the master bedroom grout.  The Acostas pulled up plants in the back yard.  Mr. Acosta took a sledgehammer to iron posts on the staircase.  The hot tub suffered a similar fate:  sledgehammered to oblivion.  The kitchen lost its cabinet doors, drawers, countertops and appliances.  Half of the rock facing on the house disappeared.  Ditto for the garage door.  When the lender finally arrived, there was "total destruction".  Every appliance was gone, every plumbing pipe was broken, every outlet was smashed in, the pool was destroyed, etc.

At which point the lender called the police.  The Acostas denied injuring the property and feigned surprise at the damage and theft.  But the police searched some storage units rented by the Acostas and found numerous items missing from the property.  Plus there were the couple of Craigslist ads that had air conditioning units (which were missing from the property) listed for sale.  With Mr. Acosta's phone number on them.

Not surprisingly, the lender took a bath.  They could only sell the "destroyed" $700,000-plus property "as is".  For less than $179,000.

Did I mention that both Mr. and Mrs. Acosta were real estate agents?  Yep.  They were.  Both of 'em had their license.

One more thing.  Which the Court of Appeal doesn't mention, but which is icing on the cake.  Mr. Acosta is a former officer of the San Diego Police Department.

Defendants get sentenced to probation plus 270 days in jail.  They claim that their conviction is invalid because there's no way they could have known that what they did was illegal.

No dice.  Convictions affirmed.

U.S. v. Preston (9th Cir. - May 12, 2014)

Last year, the day the original panel opinion came out, I said that I thought the dissent by Judge Noonan was nothing short of a masterpiece.  Even though Judge Farris (joined by Judge Bybee) had authored what was a facially plausible way of affirming the conviction, Judge Noonan's dissent really struck me as a powerful -- and ultimately persuasive -- rejoinder.  Indeed, one that persuaded me that the defendant might actually be innocent of the alleged offense.

One of the audiences of a dissent is history.  Another is one's colleagues.  Particularly on the Ninth Circuit, which (unlike some other circuits) has a robust en banc practice.

Proof of the power of Judge Noonan's dissent comes from this en banc decision.  Which agrees with the result reached by Judge Noonan.  Unanimously.  11-0. 

Judges Graber and Gould write concurring opinions that express various points, both of which articulate a slightly different analysis than the majority opinion.  But on the whole, everyone agrees that the confession here -- extracted from a mentally disabled teenager -- was involuntary, and that the conviction must thus be reversed.

Of course, obtaining a unanimous result was a lot easier once the ten judges drawn for the en banc panel included not only the panel dissenter (Judge Noonan), but also not a single Republican appointee.

Still.  Barring a bizarre draw, I think this one was coming out the way it did anyway.

Due in no small part to the power of Judge Noonan's original dissent.

P.S. - Before this opinion, I didn't recall seeing the Ninth Circuit refer to the professional status of counsel for the parties, as it does here when it refers to counsel for the defendant as "Professor Keith Swisher."  (Prof. Swisher does indeed teach at Arizona Summit Law School, and was formerly a clerk for Judge Canby.)

Yeh v. Martel (9th Cir. - May 13, 2014)

Judge Farris writes the majority opinion, joined by Judge Hurwitz, holding that the petitioner wasn't entitled to equitable tolling in a habeas case -- or even an evidentiary hearing on the issue -- even though (among other things) he didn't have a lawyer, didn't speak English and had a history of mental illness.

Judge Bright, sitting by designation from the Eighth Circuit, dissents.  Judge Bright concludes his dissent by saying:  "[T]he pro se petitioner in this case alleges a lack of English proficiency, a history of severe mental
impairment, and confinement in administrative segregation during the period in which he was required to file a federal habeas petition. If that person, Yeh, is not entitled to an evidentiary hearing on equitable tolling, then who is?"

My sense is that if everyone's cards were laid on the table, the majority would respond that the problem is that if we give evidentiary hearings to everyone in prison who doesn't have a lawyer, doesn't speak English and has a history of mental illness, we'd have to give way too many hearings.  Because a nontrivial portion of those incarcerated in our prisons have precisely such attributes.

Wolfson v. Colcannon (9th Cir. - May 9, 2014)

Judge Paez writes the majority opinion.  Judge Berzon pens a concurrence.  Judge Tallman authors the dissent.

Here's one more thought.  Not directly expressed by any of the judges in their nearly 50 single-spaced pages of collective discourse:

These problems are yet additional good reasons why the direct election of judges is a bad idea.

Garcia v. PacifiCare of California (9th Cir. - May 8, 2014)

You lost your hands and legs when you were an 11-year old girl with meningitis, and now your prosthetic devices are failing and you want a replacement, eh?  And you have the audacity to want ones that actually work?

No dice.  We excluded those from your policy.  So you're stuck with whatever pieces of plastic we feel like providing rather than your fancy ones that actually allow you to live a life.

The decision says a lot about the insurer, PacifiCare of California.  One way to view its decision is as totally heartless.  The other way to view it is as sacrificing the quality of life of one of its insureds so that the premiums of its others are diminished by an infinitesimal fraction of a penny each year.

Either way, for truth in advertising purposes, perhaps it should change its name to PacifiDoesn'tCare.

Lindsay v. Bowen (9th Cir. - May 6, 2014)

Here is another classic Kozinski opinion.  Tight, coherent, to the point, and with plenty of contractions.

I think it says something about your political party that the person you choose to run for President is indisputably not qualified to take the office.  Regardless, the Ninth Circuit holds that it does not violate the Constitution for elections officials to leave you off the ballot if you concede you do not satisfy the age qualifications set forth in that same document.

The Peace and Freedom party tilts at a windmill.  The windmill stands.

People v. Weeks (Cal. Ct. App. - March 18 2014)

On the one hand, correctional officers found some marijuana and a weapon in defendant's locked foot locker in prison.  That's pretty good evidence that it was his.

On the other hand, as the opinion reflects, the possession of locks in prison isn't nearly as orderly as one might think it would (and assuredly should) be.  Apparently it's not totally unknown for prisoners -- who aren't idiots -- to hide stuff in another inmate's locker.  Especially when they know the lock's combination because the lock was passed down from a previous inmate to the new one.  And the weapon in this case was indeed hidden reasonably well:  right underneath the lip of the locker, with a magnet to attach it.  Pretty clever.

So you'd think that defendant had a decent case that the stuff wasn't his.  Especially since he says -- quite credibly -- that since he only had eight months on his sentence, there was no way he'd be so stupid as to jeopardize that status for a little weed.

Which makes sense.  The only problem being that defendant also admitted that he smoked marijuana "whenever he could".  And said that he was "sure he'd come up dirty" from the drug test he took the day before the search.  Facts that strongly -- very strongly -- suggest that despite the fact that he's right that it'd be incredibly stupid to jeopardize his eight months remaining with serious charges, he is, in fact, precisely that stupid.

So he gets an additional dozen years in prison.  For having 1.2 grams of marijuana and a nail between two pieces of taped together wood.

Pretty harsh.  But, not surprisingly, we're pretty harsh on these sorts of things.

People v. Chism (Cal. Supreme Ct. - May 5, 2014)

Calvin Chism gets some good news from the California Supreme Court today.  But also some bad news.

The good news is that he's entitled to 96 days more custody credits than the trial court gave him.  So three less months in prison.  Yipee!

The bad news, however, is that his death sentence is affirmed.

So he might get out three months early.  But it'll be in a box.

People v. Gutierrez (Cal. Supreme Ct. - May 5, 2014)

It's a unanimous opinion by the California Supreme Court.  With a concurrence that has the support of four justices.  In other words, a majority.

No one said assigning opinions and gathering coalitions was easy.  Even when everyone agrees on the proper result.

U.S. v. Black (9th Cir. - May 2, 2014)

This dissent from the denial of rehearing en banc begins:

"Th[ese] cases arise from a profoundly disturbing use of government power that directly imperils some of our most fundamental constitutional values. An undercover government agent in Phoenix sent a paid confidential informant (CI) to randomly recruit “bad guys” in a “bad part of town” to help rob a non-existent stash house. While trolling in a bar, the paid CI successfully tempted a randomly-selected person to participate in the (fictional) crime by offering him the opportunity to obtain a huge financial benefit. After the CI put the participant in touch with the government agent, the agent urged the participant to bring others into the plot, played the principal role in devising and executing the imaginary crime, and then walked the defendants through a script that ensured lengthy prison sentences for committing a crime that did not exist.

Th[ese] cases require us to address the limits on how our government may treat its citizens. They pose the question whether the government may target poor, minority neighborhoods and seek to tempt their residents to commit crimes that might well result in their escape from poverty. Equally important, these cases force us to consider the continued vitality of the outrageous government conduct doctrine itself. The majority opinion decides all of these issues incorrectly. Further, despite its claims to the contrary,
the majority’s reasoning does virtually nothing to caution the government about overreaching. Instead, it sends a dangerous signal that courts will uphold law enforcement tactics even though their threat to values of equality, fairness, and liberty is unmistakable. I therefore dissent from the court’s decision not to rehear these cases en banc."

When the panel opinion came out, I too found persuasive much of what Justice Noonan said in his dissent.  But was ultimately persuaded by the majority opinion.

Not so for the judges who dissent today from the denial of rehearing en banc.  Unfortunately for the defendants, you can count those judges on two fingers.  Best-buds-for-life -- and somewhat strange (but quite frequent) bedfellows -- Judges Reinhardt and Kozinski.

Korab v. Fink (9th Cir. - April 1, 2014)

Anyone requiring proof that Judge Bybee was a former law professor need not resort to Wikipedia.  They can simply read his concurrence in this case.

I've read tens of thousands of cases in my time.  I have never -- never -- read something that reads so much like a law review article.  Ever.  I could cut-and-paste Judge Bybee's opinion, remove the caption, and send it in to law reviews and it'd be accepted within a week.  Beyond a shadow of a doubt.

Normally, comparing an opinion to a law review article might be seen as a bad thing.  But I don't mean it that way at all.  Judge Bybee's approach is informed, scholarly, and creative.  He recognizes that he's bound by Supreme Court precedent, but that doesn't stop him from critiquing it and proposing an alternative.  He's got a wonderful way of writing and does an outstanding job on the historical side.  I can say with certainty that the majority of law review articles aren't nearly as good as Judge Bybee's concurrence.

Which does not necessarily mean that I'm persuaded by Judge Bybee's approach.  It's got a lot going for it, but it also suffers from some flaws.  But that one law professor might be able to critique another professor's work doesn't mean that it's not still really, really good.

Here's another example of the many benefits one can obtain when one adds diversity, broadly defined, to the bench.  There's a place for academic discourse even within the confines of adjudicating particular Article III disputes.  It can inform the law.  It can potentially shape it.

Few judges on the Ninth Circuit could have written anything like Judge Bybee's concurrence.

Well done.