Thursday, July 31, 2014

Luckey v. Superior Court (Cal. Ct. App. - July 22, 2014)

If someone doesn't come in and object to this class action settlement -- which involves a FACTA suit (credit card expiration dates printed on receipts) against Cotton On stores -- I'll be stunned.

It's not an attractive settlement.  It's also an affirmatively ugly process.

Take a look.  See what you think.

Wednesday, July 30, 2014

U.S. v. Hurtado (9th Cir. - July 29, 2014)

Inserting pop culture references or funny little asides into opinions doesn't always work for me.  But I nonetheless liked what Judge Silverman did here.

Yeah, they were unnecessary.  But they seemed entirely apt and not unnecessarily distracting.  One of 'em even brought forth an audible chuckle.

Here's the first:

"Hector Hurtado appeals the 46-month sentence imposed by the district court following his guilty plea to intentionally and knowingly importing 11.64 kilograms of cocaine into the United States from Mexico in violation of 21 U.S.C. §§ 952 and 960. Hurtado was caught driving a truck loaded with cocaine across the border, for which he was paid $3,500. Hurtado argues that the district court erred when it held that he was not entitled to the 'minor role' reduction provided for in United States Sentencing Guideline § 3B1.2(b).

Hurtado’s argument is essentially this: Just as all children in Lake Wobegon are above average, all drug couriers are, by definition, below average and entitled to the minor role reduction. Like the district court, we reject that argument. We hold today that the district court applied the correct legal standard, did not abuse its discretion in its application of the guideline to the facts of the case, and did not clearly err when it found that Hurtado was a typical commercial drug smuggler – no better, no worse – and not entitled to a minor role reduction. The district court was not clearly erroneous in finding that although Hurtado may have been a cog in some larger wheel, he was an essential cog who, solely for a sizeable sum of money, knowingly smuggled a large quantity of narcotics into the United States via a hidden compartment in his truck."

Now, I'm not a monster Garrison Keillor fan, and know a personal detail or two about the guy from a firsthand source that aren't too flattering, but I nonetheless thought the reference meaningful as well as enlightening.

Here's the second:

"There’s an old saying:  Crime doesn’t pay, but at least you’re your own boss. In this case, Hurtado wasn’t even his own boss; he was paid by others to commit the crime. However, the mere fact that Hurtado may have been doing criminal work for hire does not itself establish that he was a minor participant. That Hurtado’s supervisors, organizers, recruiters, and leaders may have above-average culpability – and thus are subject to aggravating role enhancements under U.S.S.G. § 3B1.1 – doesn’t mean that Hurtado is “substantially less culpable than the average participant.” U.S.S.G. § 3B1.2 n.3(A) (emphasis added). The requisite comparison is to average participants, not above-average participants."

I smiled at how that paragraph began.  Good inclusion.

People v. Hernandez (Cal. Ct. App. - July 29, 2014)

I don't know all that much about Anders/Wende briefs.  I don't write them.  They very rarely lead to published opinions.  So perhaps you should take what I'm about to say with a grain of salt.

But when I read the three pages of content in this opinion, I was struck by just how internally inconsistent the articulated standards appear to be.

I definitely agree with Justice Rylaarsdam that counsel need not raise silly issues.  If they're clearly unmeritorious, you're not obligated to raise them.  So, as Justice Rylaarsdam quotes from a prior case, you're not obligated to "raise[] one or two frivolous issues, easily disposed of by the inspection of a few pages of transcript."  Absolutely right.

On the other hand, the other quote Justice Rylaarsdam uses seems absolutely wrong to me.  That quote says:  "We hold that an arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel’s professional opinion, is meritorious."  Not in my book.

If I'm appellate counsel, I am not the one to authoritatively conclude whether an argument is right or not.  I may have my opinion.  Truth be told:  I normally do.  But that's not my job.  I'm here to decide if an argument on my client's behalf is possibly meritorious.  If so, I raise it.  If not, I don't.  That's it.  Whether I think that the argument has merit is, in my view, beside the point.

Let's make this concrete.  Assume I've been appointed to represent a criminal defendant on appeal.  I have reviewed the record and the law, and have come up with four different possible arguments:

I believe that Argument One is (a) likely to prevail, and (b) right on the merits.  Clearly I have to raise that one.  We all agree.

I believe that Argument Two is (a) unlikely to prevail, but (b) is right on the merits.  Surely I should raise that one too.  The fact that the justices on the Court of Appeal may, in my estimation, not be as bright as I am, or may read the law the wrong way, shouldn't stop be from raising an argument that I believe correctly states the law.  If only because I may be wrong (and let's hope I am!) and they may well end up (rightly) agreeing with me.  So I'm hoping we all concur that I have a duty on behalf of my client to raise Argument Two.

I believe that Argument Three is (a) likely to prevail, but (b) wrong on the merits.  Now, come on.  I surely have to raise that one, right?!  It's going to get my client off.  So, on his behalf, I clearly have to raise it.  The fact that I might think it erroneously reads the law doesn't matter.  It's arguable; indeed, so arguable that my prediction will be that neutral judges buy it and write it into law.  At which point it is law.  The fact that I don't think it's, in fact, a proper reading of the law is irrelevant.  Surely we can agree on that too, right?  I'm the lawyer.  Not the judge.  My subjective belief is entirely irrelevant.

So that leaves us with Argument Four.  One that I believe is (a) unlikely to prevail, and (b) wrong on the merits.  My view is that (b) doesn't do any work here.  Only (a).  To put it differently, my belief as to the "merits" is a one-way ratchet.  If I think the law in fact says X, I've got to raise that issue, even if I don't think the Court of Appeal will agree (assuming that my argument isn't affirmatively foreclosed by precedent such that it's frivolous to make an argument that my position is in fact "the law" or a good faith argument for the modification or reversal of existing law).  By contrast, the fact that I've decided (internally) that the law doesn't really say X doesn't matter.  We already established that in Argument Three.  Instead, what's doing the work -- what's dispositive -- with respect to Argument Four is that this argument's unlikely to in fact prevail.

Which means we also need to drill down on (a).  What do we mean by "unlikely to prevail"?  Usual non-legal usage would mean below 50/50.  But that's not the appropriate legal standard.  I raise plenty of arguments that I think have less than a fifty percent chance of being accepted.  So does every single competent lawyer in the history of the universe.  'Cause guess what?  You may be wrong.

Moreover, collectively, even a low probability of success can result in a win.  Counsel A has three independent arguments, each with only a 30% chance of success.  Counsel B has one argument with a 60% chance of success.  Guess who prevails more often?  Counsel A.  Surely you can't tell me that Counsel A doesn't have a duty to raise these three arguments on his client's behalf just because he concludes that each one of them is unlikely to succeed.  Moreover, any such rule would clearly be regressive, since a rich client could (and would) ethically find a lawyer to make 'em, whereas the poor client with appointed counsel would be stuck with your silly rule and stay in prison while the rich guy goes free.  Such a rule simply isn't supportable.

So by "unlikely to prevail," I think we clearly mean at least "less than 30% likely to prevail".  Truthfully, a lot less.  Like in the single digits.  In my mind, what we mean to say is that this argument is basically "frivolous".  It's silly.  It has such a low (or zero) probability of success that you're under no duty to raise it.  Whether -- and this part is important -- your client is rich (and hence you're retained) or poor (and you're appointed).

So when Justice Rylaarsdam's opinion -- quoting Justice Garner -- says that "an arguable issue on appeal consists of two elements," the first of which is that "the issue must be one which, in counsel’s professional opinion, is meritorious," if we're giving the term "meritorious" it's normal meaning, that's an erroneous proposition, in my mind.  We've instead got to separate out the objective and subjective beliefs with respect to "merit" and process them along the metric delineated with respect to Arguments One through Four above.  Moreover, if we get down the line to Argument Four, we've then got to decide the standard -- which I think is darn near (if not at) frivolousness -- and apply it.

None of which Justice Rylaarsdam's quote does.  It instead just flatly says that an argument has to be "meritorious".  That's the wrong standard, in my view.  On a plethora of levels.

Justice Rylaarsdam, like Justice Garner before him, admits that even though he's saying that "the issue must be one which, in counsel’s professional opinion, is meritorious" in order to be raised, "[t]hat is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success."  Which is helpful, maybe, a tiny bit, but not at all sufficiently clear or adequate to dispel the normal meaning of the term "meritorious".

With respect to the the former caveat -- that the contention must not "necessarily" achieve success -- I think we can all agree that's a response to a complete strawman.  Obviously no one's saying (or has ever said) that counsel only has to raise issues that have 100% probability of success (i.e., will "necessarily achieve success").  That's just silly.  So thanks for saying that's not the standard, but that doesn't really help us very much.

So that leaves us with the fact that the argument "must have a reasonable potential for success".  Okay. If we can agree on what you mean by that, maybe we can reach consensus.  But two points:

(1) Notice that we're not talking at all about subjective beliefs here.  We're merely talking about the objective probability of success.  Two problems:  (A) That somewhat conflicts with the opening line that to be raised, an issue must "be one which, in counsel’s professional opinion, is meritorious."  So if you're really redefining the term "meritorious" here, you need to be more explicit that you're moving from the subjective to the objective; and (B) even so charitably interpreted, this redefinition still does not correctly resolve Argument Two -- the one that's objectively (you conclude) correct, but that you nonetheless conclude is objectively unlikely to prevail.  Moreover:

(2) You haven't told me what a "reasonable" potential for success is.  I infer that you don't mean 50 percent.  (Which is what your use of the term "meritorious" would normally mean in this context.  An argument is either a "meritorious" argument or an "unmeritorious" one, and the binary nature of that description necessarily implies a 50/50 dividing line.)  Is it 30 percent?  Ten?  Three?  That's where the rubber hits the road.  And you're not telling me pretty much at all what's rubber and what's road.

Moreover, I've got a keen sense that's what a "reasonable" potential for success to you isn't the same thing to me.  Justice Rylaarsdam publishes this opinion to make clear his view that arguments that he labels "arguable-but-unmeritorious" should not be raised.  Something that's "arguable but unmeritorious" sounds very much to me like an argument that's -- depending on whether we're talking objectively or subjectively -- (1) only ten percent (or so) likely to prevail ("arguable"), or (2) lacks actual merit (i.e., a "wrong" view of the law or facts).

If it's the former, we disagree -- sharply -- on the number.  If it's the latter, we disagree -- sharply -- on the relevant standards (see Argument Three).  And if, as I fear, Justice Rylaarsdam might perhaps mean both, well, that's a double whammy, isn't it?

So I like that Justice Rylaarsdam publishes this opinion.  Truly, I do.  There are a lot of these briefs.  It's an important thing.  We want to get the standards right.  If there's a practice going on that we think is a waste of resources or improperly applies the law, we should (1) make the law clear, and (2) root these things out.  Count me in.

But I'm not at all persuaded that Justice Rylaarsdam's opinion either (1) sufficiently clarifies things, or (2) articulates the right standard in any event.  To put it a different way, the opinion is unclear, and if it were actually clearer (and hence helpful), it might well be wrong.

I've got to say, however, that it's possible that Justice Rylaarsdam and I agree.  I'd love to hear (truly) his take -- or the take of the rest of the panel (Justices Bedsworth and Thompson) [heck, pretty much anyone's informed take] -- on Arguments One through Four.  Am I right that all of 'em get made, with the sole exception of Arguments Four that are frivolous?  Or do we disagree on only the standard for Four?  Or do we disagree on that as well as Two and/or Three?

That'd be totally helpful for appointed counsel to hear.  Because I think answering those questions would actually make things clear.

And yes, I know, we can totally achieve consensus, and all agree, on opinions that are sufficiently indeterminate and unclear that everyone can read into them whatever they want.  But that's not what we should be doing.  We should ask, and answer, the hard questions.

I hope that Justice Rylaarsdam -- and/or others on the Court of Appeal -- do precisely that.

Tuesday, July 29, 2014

People v. Leonard (Cal. Ct. App. - July 29, 2014)

At first glance, this just looks like your typical conviction for pandering.  Typical (depressing) facts, typical (depressive) life of the relevant prostitute, typical (exploitative) conduct by the pimp.  A typical relationship that began this way:

"In 2011, Leonard approached Cynthia Jordan along El Cajon Boulevard in San Diego. Jordan was working as a prostitute at the time, and she thought Leonard might be a potential client. After speaking with him, however, Jordan understood that Leonard was interested in becoming her pimp. Jordan told Leonard her life had been difficult lately, and Leonard offered her protection. Leonard said he could provide Jordan with a place to live and food to eat if Jordan continued to work as a prostitute and gave her earnings to Leonard. Jordan soon gave Leonard a $100 'choosing fee,' symbolizing her choice of Leonard as her pimp, and moved into Leonard's apartment the next day."

You see this all the time.  The prostitute needs protection.  The pimp provides it.  Then you routinely see stuff like this:

"Leonard controlled Jordan's activities. Leonard told Jordan how to speak to potential clients, how much to charge, when to demand payment, and how to avoid contact with other pimps. Leonard and Walser [Leonard's friend] supplied Jordan with methamphetamines to feed her severe drug addiction. Jordan worked out of the apartment and in hotel rooms. Leonard eventually rented the apartment next door to use for prostitution. Leonard often drove Jordan to out calls, and he waited nearby to make sure Jordan turned the payments over to him immediately afterwards. Walser, and sometimes other men, rode along with Leonard for protection."

There's a stable.  Another prostitute named Hanson.  With whom you see more of the typical stuff:

"If Hanson did not have a client's payment for Leonard, or if Hanson spoke in a way that upset Leonard, he would order Walser to beat her. Leonard would say, 'beat that bitch,' and Walser would do so. After Hanson became pregnant, she stood up to Leonard more often. She did not want to continue working so many hours as a prostitute. Leonard responded that 'his other baby's mother . . . was out there working the blade until she was ready to pop,' and the beatings increased in severity. In one instance, Hanson and Jordan got into an argument. To punish Hanson, Walser punched her. Hanson suffered a cracked tooth, a dislocated jaw, and a broken lip from Walser's beating. Hanson also beat and cut herself.

Eventually, Hanson left Leonard. She returned to El Cajon Boulevard to work the streets. One night, Leonard pulled up beside her in his Cadillac. Walser was in the car as well. Walser grabbed Hanson and threw her into Leonard's Cadillac. They drove to Leonard's apartment, where Walser led Hanson to Leonard's bedroom. Leonard told Hanson she should not have left and she needed to return to Leonard. Leonard instructed Walser to beat Hanson, and he complied. Walser kicked Hanson in the stomach, back, legs, and face. Leonard kicked Hanson in the face as well. Leonard confined Hanson to the bedroom until Hanson agreed to work for him again. When Leonard released her, she returned to the streets and sought out her new pimp, Kevin Smith. Hanson soon started bleeding profusely as a result of the beating. Smith drove her to a hospital emergency room, where she suffered a miscarriage."

All of this is worth mention.  Not because it's unusual.  But because it's nonetheless important to know the next time you might think that sex work is no big deal because it's performed between consenting adults.  There's a real underbelly here.  Not a pretty one.

But I mention this case for a different reason as well.

Picture in your mind the defendant, Leonard.  The big bad pimp.  Imagine what he looks like as he goes about his daily routine and interacts with his prostitutes.  Providing them "protection" and harming them in all the ways described above.  Got the picture in your head yet?

No, I'm not going to ask you what race he is.  I'm instead going to ask if the picture in your head is consistent with this description of Leonard's life:

"Because Leonard has muscular dystrophy and uses a wheelchair, Walser assisted Leonard with certain daily activities. Walser's duties included bathing and dressing Leonard, lifting Leonard into and out of his wheelchair, and placing Leonard in his car."

Not what you were thinking, huh?

People v. Redd (Cal. Ct. App. - July 28, 2014)

What do you think the going rate for a smart phone (i.e., a cell phone with internet access) is in prison?

Answer:  $1000.

Nice work, if you can get it.

Of course, you also risk -- as here -- an additional seven years in prison if you get caught.  So you've got to definitely be aware of that downside.

I also thought it was interesting that the defendant's name in this case was "Redd".  Given that the opinion involves smuggling things (here, cell phones and tobacco) into prison, it reminded me of The Shawshank Redemption.  In which a similar character, "Red", is a "man who can get things" (i.e., smuggle them into prison).  And does.

Except Red never got caught and busted for seven extra years.

More proof that crime in the movies is a lot more fun than crime in real life.


Monday, July 28, 2014

U.S. v. Szabo (9th Cir. - July 28, 2014)

I know you're tired of waiting for a doctor at the VA hospital, and want to get treated.  Especially with the well-publicized problems in this area, we're somewhat sympathetic to your plight.

But you can't do this.

U.S. v. Gowadia (9th Cir. - July 28, 2014)

Say you wake up one morning and find that the FBI is conducting a search warrant at your house.  But you've done nothing wrong, you figure.  So you talk to them.

There's got to be a mistake.  Talking to them will clear things up.  It'll be better than looking guilty.

Seems like you're right.  After six hours, they leave.  Don't arrest you, don't nothing.  They ask you if you'll continue the conversations the next day at a coffee shop.  You agree.

It's hard to talk there, so you continue the conversation at the Maui Police Department.  But, to repeat, you've done nothing wrong.  They repeatedly tell you you're free to leave.  And, indeed, at the end of the six-and-a-half hours of chatting, you leave of your own volition.

Then they ask you if you'll fly to Honolulu to continue your chats.  They'll even pay.  You agree.  It's been going reasonably well.  They seem to understand.  No arrest.  Nothing.  You're explaining things.  It's all a misunderstanding.  Once they get it, they'll leave you alone.  And, again, you're totally free to leave.

The next week is a blur.  Seven sessions.  Around 7 hours each day.  You explain and explain and explain.  But, again, they're treating you right.  They seem to get it.

Finally, one day, you arrive via taxi for yet another conversation.  At which point they arrest you.

Next thing you know, you're being sentenced to 32 years in prison for selling military secrets to China and a plethora of other offenses.

Now, maybe you should have thought more deeply about things before you made those six trips to China and charged that government six figures for telling them "how a Chinese cruise missile, if modified with [your] designs, would perform against a United States AIM-9 class missile."  That's conduct that we somewhat frown upon.  Surprising, I know.

But we nonetheless appreciate your willingness to talk with the FBI seemingly forever without ever getting an attorney involved.  It makes things so much more efficient when you're willing to dig your own grave.

Friday, July 25, 2014

Daubert v. Lindsay USD (9th Cir. - July 25, 2014)

I was wondering when I read the caption of this opinion where the Lindsay Unified School District was located.  I had never before heard of it.  But Judge Milan Smith anticipates my curiosity and tells me in the first couple of paragraphs:

"Lindsay, California is a small town located in the Visalia-Porterville Metropolitan area. The town has a total area of 2.6 miles and a population of under 12,000. Approximately 1,100 students attend Lindsay High School."

There you have it.  It's also pretty interesting that a town of 12,000 has over a thousand students in its high school.

Given the sports programs at "city" schools -- those with which many readers may have experience -- it's enlightening to read this opinion and learn all about the football field at Lindsay High School.  Let's just say it's . . . not exactly fancy.

But it complies with the ADA.  Principally because the thing was built in nearly a half-century ago and hasn't changed since.

In Re J.G. (Cal. Ct. App. - July 25, 2014)

I guess I can buy the officer's testimony that he decided to drive his car over to talk to 15-year old J.G. -- who was walking across a parking lot towards his brother, D.G. -- for absolutely no reason, merely because he "stops and talks to people all the time."  The officer asks the boys what they're doing, and they say they're going to a party.  Fine.  I'll view that as a nice, consensual, friendly talk.

It gets less friendly when Officer Woelkers asks for their identification.  Less friendly when another police car drives up and a different officer gets out to monitor the situation.  Less friendly when the officers run a record check on the boys.

Still, no reason to suspect anything, right?  Just a "nice friendly chat" for "no particular reason".

Then the officer asks the boys if he can search them.  Presumably because he does that all the time too, right?  That's certainly my experience as a 48-year old white male.  The police are constantly stopping me in parking lots, asking what I'm up to, requesting my identification, and then asking me if they can pat me down.  For no reason.

The boys say yes, and the officers search them.  Nothing.  Meanwhile, another cop car arrives, and two more police officers join the fun.  That makes three police cars and four officers.  For a nice little chat.  Because they "stop and talk to people all the time."

Then the officers ask the kids if they'd be willing to sit on the curb.  Which they do.  Again, the police ask me to sit on the curb all the time.  Then they ask permission to search the backpack.  And the boys say yes.

Lo and behold, there's a gun in it.  The fifteen-year old gets arrested.

On the one hand, clearly Officer Woelkers suspected that something was up, and it's great police work.  He suspected that the kids were up to no good, might even have a weapon, and rather than just driving around all day, decided to do something about it.  Great job.  That's the kind of guy I want to hire.  As opposed to a guy who'd rather sit around in a parking lot, or at a doughnut shop, talking to his fellow officers or surfing the internet on his cell phone all day.

On the other hand, I'd also appreciate a little honesty.  Particularly when placed under oath.  We tend to care about that from those in authority.  Officer Woelkers didn't (IMHO) just stop these kids because they were merely one of many people he talks to every day, no different than any of the others.  He instead had some sort of suspicion.  Maybe based on their ages.  Maybe based on their race.  Maybe based on what they were wearing.  Maybe just based upon an inchoate "hunch".  But there was a reason why he stopped them.  Of that I'm confident.

But he didn't want to testify to that.  Because that might get the search suppressed.  So he instead said that he stopped them because he "talks to people all the time."  No particular reason.

Yeah, right.

I'd prefer forthright testimony as moral matter.  It also may be more efficacious.  Because the search here gets suppressed.

Great police work.  Stuff I appreciate.

Except for the stuff that came after.

Thursday, July 24, 2014

People v. Boyce (Cal. Supreme Ct. - July 24, 2014)

I don't think I need to tell you what sentence the jury returned for this offense:

"Shayne York and his fiancée, Jennifer Parish, were both Los Angeles County deputy sheriffs. On August 14, 1997, they were planning a trip to Las Vegas for Jennifer's birthday. Around 7:30 p.m., they went to the DeCut salon in Buena Park where Jennifer's sister, Amy, had agreed to style their hair. The three were alone in the salon. All neighboring businesses were closed.

Suddenly, Willis entered the shop wielding a semiautomatic handgun. Defendant followed closely behind, also carrying a handgun. When Willis yelled, 'Get the fuck on the ground, whiteys,' the three victims complied. . . . Defendant demanded York's wallet, kicking him when he did not respond quickly enough. Meanwhile, Willis yanked Jennifer off the ground, searched her pockets, and took her watch and engagement ring.

While searching York, defendant discovered his sheriff's badge and said, 'Well, well, well. Look what we have here, a mother fucking pig.' Defendant demanded to know where York worked. York replied, 'Wayside' and 'East Facility.' Defendant, who previously had been incarcerated there, asked York if he 'liked to treat nigger Crips like shit in jail?' York responded, 'No, sir.' Defendant retorted, 'No, I know you like to treat us nigger Crips like shit in jail.' York again responded, 'No, sir.' Defendant demanded and received the personal identification number (PIN) for York's automated teller machine (ATM) card.

One of the robbers said, 'Fuck the whitey,' and a shot was fired. York collapsed, bleeding profusely. Someone then declared that he had always wanted to kill a cop and that he hoped this one died. Neither Jennifer nor Amy saw the gun being fired, but both women believed that defendant had shot York based on the relative positions of the robbers."

You guessed it.  Defendant is sentenced to death.  The California Supreme Court unanimously affirms.

You may ask:  Wasn't there any mitigating evidence?  Of course there was.  Take, for example, this touching display, which transpired immediately after the robbers shot York:

"As York lay dying, Willis rummaged through Jennifer's purse looking for her ATM card. Discovering her badge, he announced, 'We've got another mother fucking pig in here.' He asked which of the two women was the 'other fucking white pig,' and Jennifer raised her hand. Willis said, 'Don‟t worry, bitch. We're not going to shoot you. You're a fucking woman.'"

Proof, I guess, that chivalry's not dead.  Even amongst the most evil and heartless of men.

I'll add, however, that there are other factors that might stop Boyce's execution.  His IQ may well be below 70.  We'll find out more on habeas.  He had a fever and seizure when he was two years old, and as a result, did not speak again until he was five.  "Defendant's first grade teacher in North Carolina described him as
the most learning disabled student she had encountered in 30 years of teaching."

None of which, I'll add, excuses his conduct.  But it nonetheless is relevant to the next phase of this already-long (sixteen years and counting) process.

Wednesday, July 23, 2014

Los Angeles USD v. Superior Court (Cal. Ct. App. - July 23, 2014)

"The Los Angeles Unified School District (the District or LAUSD) has developed a statistical model designed to measure a teacher’s effect on his or her students’ performance in the California Standards Tests (CST). This model yields a result—known as an Academic Growth Over Time (AGT) score—which is derived by comparing students’ actual CST scores with the scores the students were predicted to achieve based on a host of sociodemographic and other factors. These AGT scores are calculated at various levels—by individual teacher, by grade, by school, and by subject matter."

That's wonderful.  Getting data is good.  This is a piece (albeit only a piece) of relevant information about teacher quality.  The LAUSD should be applauded for obtaining and evaluating this data.

The LAUSD, however, wants to keep this data to itself.  It's willing to let the public know (pursuant to the Public Records Act) the various scores; e.g., that there's a teacher out there with X score and Y score and the like.  But that's all.  It refuses to tell the public which teacher has what score.

You might ask:  "Why?"  The Superintendent of the LAUSD, John Deasy, is happy to explain.  He says that releasing these scores "would (1) spur unhealthy comparisons among teachers and breed discord in the workplace, leading to resentment, jealousy, bitterness and anger, and proving counterproductive and demoralizing to some teachers, (2) discourage recruitment of quality candidates and/or cause existing teachers to leave the District, (3) allow competing schools to steal away the District’s teachers with high AGT scores, (4) disrupt a balanced assignment of the teaching staff — which is essential to the operations of the District — because parents would battle to ensure that their own children be assigned to the highest-performing teachers, and away from the lower-rated teachers, (5) undermine the authority of teachers with low AGT scores because parents and students alike would lose confidence in them, undercutting their ability to receive and accept guidance and perform their jobs, and (6) adversely affect the teacher disciplinary process because teachers subject to such proceedings could compare their AGT results with those of other teachers."

I'm surprised he didn't add (7) human sacrifice, dogs and cats living together, and mass hysteria.

The Court of Appeal agrees with Superintendent Deasy's assessment.  The balance of public interests weighs against releasing this data.  Because '[o]ne would certainly expect that if told the AGT scores of each teacher in their child’s grade, many parents would attempt to have their child assigned to the teacher with the higher score and/or away from the teacher with the lower score."

What a nightmare.

It's worth noting that both colleges and law schools routinely collect and distribute individual-level teacher evaluations to their students.  Schools do it themselves, and private entities add to the mix as well.  Yet, somehow, some way, colleges and graduate schools manage to survive; indeed, to flourish.

I'm a teacher.  I get it.  No one likes bad reviews.  We're okay with dishing out bad scores/grades to our students, but we don't like getting bad grades ourselves.  Much less letting other people see 'em.

But guess what?  We'll survive.  And flourish.  Yes, having other people see your bad grades can be discouraging.  It can also be encouraging.  Motivating.  Yes, having other people see good grades can lead to teachers moving.  We call that competition for quality.  That's a good thing, not bad.

I say that knowing full well that AGT scores are hardly the be-all and end-all of teacher assessments.  I might add, however, that the exact same is true for student evaluations in law schools.  Sometimes a really good professor gets bad evaluations.  Sometimes a poor professor gets good evaluations.  It's an imperfect world.  Scores are imperfect fits.

But that things aren't perfect isn't a reason to keep them secret.  The much better policy is to reveal this stuff and to educate people about their limitations.  Obtaining the good while minimizing the bad.

Of course, it's a lot easier just to hide stuff.  Keep information to yourself.  Don't let the ignorant masses (i.e., parents) have access to the stuff that only you are sophisticated enough to understand.

That's one approach.  Lots of countries adopt it.

But I'm not really sure it's appropriate here.

Wood v. Ryan (9th Cir. - July 23, 2014)

Joseph Wood certainly has had a busy week.

He killed his ex-girlfriend and her father in 1989, and was sentenced to death.  The usual appeals and habeas petitions followed.  Finally, in 2012, the Ninth Circuit affirmed the denial of his federal habeas claims.

Fast forward to last week.  It's about time to execute the sentence.  On Friday, the Ninth Circuit enters a couple of orders (here and here).  Then, on Saturday, the Ninth Circuit grants a preliminary injunction.

On Monday, a plethora of judges dissent from the denial of rehearing en banc. As well as predict that the Supreme Court will soon reverse.

They're right.  The next day (Tuesday), the Supreme Court reverses.  The same day, the Ninth Circuit denies Wood's latest appeal and his request for a stay.

Then, this morning, the Supreme Court also denies his request for a stay.

Which means that Wood's busy week is about to end.  Forever.  Since he's scheduled to be executed today.

And will be.

Tuesday, July 22, 2014

Gotterba v. Tavolta (Cal. Ct. App. - July 22, 2014)

When I saw the caption to this opinion, I figured it'd be about that Travolta.  Sure enough, it is.

Which is not all that surprising.  According to the Census Bureau, there are fewer than 100 people with the last name of Travolta in the entire United States.  Presumably only a portion of those are involved in lawsuits in California.  And it's not like the most famous Travolta is litigation-shy.  He's had some prior experience with the civil and criminal justice system here.  So the guess that this is yet another foray in this field was a pretty good one.

The case is also fairly significant even beyond mere star-watching.  Not because of the resulting legal doctrine articulated by the Court of Appeal, however.  But rather for two reason:

(1)  It highlights just how frivolous some anti-SLAPP appeals are. Here, someone who wants to write a book about his experiences with Travolta files a declaratory relief action seeking a declaration that he's not bound by a purported confidentiality clause.  At which point Travolta and his legal minions file an anti-SLAPP motion, claiming that the lawsuit arises out of protected activity.

That's absurd.  It's a pure declaratory relief action.  It arises entirely out of a purported contract.  The trial court held that this isn't a SLAPP suit.  The Court of Appeal agreed.  Which is not surprising.  As it's a no-brainer.  Travolta's argument that the lawsuit "arises out of protected activity" because his attorneys sent threatening letters to the plaintiff in advance of the lawsuit is frivolous.  You don't turn a contractual declaratory relief action into a SLAPP lawsuit merely by hiring lawyers to shoot off a letter.


(2)  It also highlights how you can win an anti-SLAPP motion even if you lose.  Plaintiff filed his action for declaratory relief so he could quickly obtain a determination of whether he was permitted to publish his book.  Travolta lost his anti-SLAPP motion, to be sure.  But just by filing (and losing) it, he delayed the lawsuit -- and hence the book -- by at least two years.  So plaintiff has to sit on his butt while this meritless motion (and appeal) works its way through the system.

Strike up another example of the power of tactical anti-SLAPP motions.

Given these tactical consequences, alongside the obvious lack of merit of Travolta's appeal, I was somewhat surprised not to see any consideration given to sanctions.  They might well have been appropriate.  (Reading between the lines, it may be that the Court of Appeal didn't feel like imposing sanctions because, in truth, it looks like plaintiff's lawsuit isn't particularly strong on the merits.  He's claiming that an unsigned "draft" contract is the "real" contract and a later signed contract -- the one with the confidentiality clause -- is a "fake".  I'm not especially impressed with that position.  Sure, the lack of underlying merit of plaintiff's claim is technically irrelevant to whether the defendant's appeal of an anti-SLAPP motion denial is frivolous.  But sometimes even doctrinally irrelevant things actually make a big difference.  Perhaps including here.)

In the meantime, Travolta loses.  But, in the larger scheme of things, he still wins.

Gonzalez v. Planned Parenthood (9th Cir. - July 22, 2014)

Lefties generally don't decry the Supreme Court's heightened pleading standards in Iqbal and Twombly.  But I'll bet dollars to doughnuts they'll like the applications of those standards by the Ninth Circuit in this case.  Applied to dismiss a qui tam lawsuit against Planned Parenthood for allegedly overbilling the government for contraceptives delivered to low-income women.

Let the internal conflict begin.

People v. Chavez (Cal. Ct. App. - July 22, 2014)

I certainly don't blame Justice Benke.  Nor do I think that the relevant brand needs to get any more publicity.

But in four different places in this opinion, Justice Benke refers to one of the victims as exclusively smoking "Marlborough cigarettes".  When even I -- someone who's never smoked a cigarette in his life -- knows that it's actually spelled "Marlboro".

We in the United States kill ourselves with products spelled differently than their British origins, thank you very much.

Monday, July 21, 2014

U.S. v. Liera-Mendoza (9th Cir. - July 21, 2014)

"In 2011, Liera-Morales unlawfully entered the United States with the assistance of a human-trafficking ring and later began working for the trafficking ring to pay off his remaining smuggling fee. As a part of his duties, Liera-Morales participated in at least one smuggling operation. In December 2011, he picked up three undocumented immigrants in the Arizona desert and helped transport them to a trailer house in Tucson, Arizona."

Oh, great.  Now human smugglers have discovered the power of multilevel marketing.

We're doomed.

Thursday, July 17, 2014

Velasquez v. Superior Court (Cal. Ct. App. - July 17, 2014)

There are worse things you can do than combining drinking and riding a bicycle.  But Justice Aldrich is correct.  It's still not a good thing.  As well as illegal.

Mind you, there's pretty darn good reason to believe that Jorge Velasquez, Jr. was not, in fact, guilty of the offense for which he was charged.  Mr. Velasquez was enjoying some alcoholic refreshment at Dodger's Stadium on -- appropriately enough -- April Fool's Day of 2013 when he decided to ride his bicycle home.  A bicycle with no brakes.  Did I mention it was April Fool's Day?

The good thing for Mr. Velasquez was that he wasn't drunk driving.  Plus he had just watched Clayton Kershaw beat the hated San Francisco Giants with a four-hit shutout on Opening Day.  Not bad.  Not bad at all.

The dark cloud behind this silver lining, however, was that a car pulled out in front of Mr. Velasquez on a downhill portion of his ride home, and when he swerved into the opposite lane to avoid the car, he smashed into a pedestrian, Sudha Russell, who broke several bones in her face and lost consciousness for ten days.  Suffice it to say that Mr. Kershaw had a much better April 1 -- and 2013 -- than Ms. Russell.

Not that Mr. Velasquez gets off scot free.  The police come and, according to the Court of Appeal's opinion, "Velasquez’s blood alcohol content was 2.18."  To be honest, I'm not really sure what Justice Aldrich means by that.  Maybe it's a typo.  Maybe it should read ".218".  'Cause the usual way we talk about these things is .08 for being per se DUI, .20 for being totally blotto, .50 for being dead, etc.  So on the usual scale, 2.18 would mean that Velasquez is four times the lethal level.  Or maybe Justice Aldrich is using something other than the usual scale.

Anyway, that confusion aside, the point is the Mr. Velasquez is intoxicated.  While biking.  Let's call it BUI.

So they charge him with a felony.  Under Section 23105 of the Vehicle Code.  Which covers "driving" while intoxicated and causing specified serious injuries.

You see the problem, right?  He ain't "driving".  Not the way we usually think, anyway.  Not a car.  (That's also putting entirely to one side the fact the prosecution erroneously charged him under Section 23105 even though that's actually the statute that sets forth the penalty, not the offense.  The actual statute they intended to charge him with is 23103.  "Reckless Driving".  With the relevant penalty then calculated under 23105.)

But he's "driving" a bike, so the statute allegedly applies, right?  You drive a car.  You drive a bike (sort of).  No problem.  (-Ish)

Except for one thing.  The relevant statute only covers someone who recklessly drives "a vehicle".  A vehicle, in this context, is usually a car.  So does it apply to bicycles?

You textualists out there may well say:  "Of course is does, Nimrod.  'Vehicle' means car, bike, scooter, Big Wheel, pretty much anything like that.  Common language."

Okay.  I hear you.  Let's perhaps agree to disagree on just how far a "vehicle" goes according to the plain -- and perhaps purportedly "unambiguous" -- meaning of that term.  (For example, a vase is a "vehicle" in which to hold flowers, but I'm pretty sure that's not what the statute covers.)

Because, fortunately, we don't have to resort to common language.  The Legislature helpfully expressly defined that term for us.  Section 23103 of the Vehicle Code says you're guilty if you "drive[] a vehicle upon a highway" in certain settings.  Section 670 of the Vehicle Code then defines the term "vehicle" as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

You see the problem now.  Bicycles are (or at least Mr. Velasquez's was) clearly "moved exclusively by human power".  Which means they're not "vehicles".  Which means that Section 23103 doesn't apply to him.  Which means he's not guilty of this offense.

Straightforward.  Couldn't be clearer.

Except the Court of Appeal holds that it's not true.

You see, using definitions is all well and good, but Justice Aldrich notes that there's a different statute (Section 21200) in the Vehicle Code that says that “[a] person riding a bicycle . . . upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle by this division, including, but not limited to, provisions concerning driving under the influence of alcoholic beverages or drugs."  And clearly, a driver can't drink and drive.  So, according to this statute, neither can a dude on a bicycle.

So the definition says it doesn't apply to bikes.  But a different statute says it does.  Which do you use?

The Court of Appeal holds that you apply the statute that makes Velasquez guilty of a felony.  Justice Aldrich's opinion persuasively applies both textual modes of interpretation as well as legislative history to establish that, yeah, the Legislature meant to permit prosecutions under 23103 to guys on bikes.  A fact complicated -- but not displaced -- by the pesky detail that the Legislature neglected to actually change the words (and definitions thereof) employed in that statute.

Justice Aldrich says that the more specific statute prevails over the more general definitions section.  I find that conclusion, and interpretive mode, eminently reasonable.  Justice Aldrich doesn't cite anything to support that conclusion.  But I'd refer to the maxim articulated by Section 3534 of the Civil Code -- "Particular expressions qualify those which are general" -- as entirely applicable.  Ditto for the caveat in Section 100 of the Vehicle Code, which says that “Unless the provision or context otherwise requires, these definitions shall govern the construction of this code."  Here, the statutory context requires a conclusion contrary to the identified dictionary application of the specified word.

So even though the statute requires a vehicle, and even though the statute says a bike's not a vehicle, it's still a vehicle.

Proof positive that textual interpretation doesn't merely require opening up a dictionary.  Or even the relevant provisions of the Code.

People v. Arevalo (Cal. Ct. App. - April 14, 2014)

If your DNA is found on a rock used to smash a window, and that's how a burglar got into a building, is that evidence alone sufficient to prove that you're guilty of burglary?  In other words, does the fact that your DNA is at a crime scene establish your guilt beyond a reasonable doubt?

The California Court of Appeal says "No."

Wednesday, July 16, 2014

Merritt v. Countrywide Financial Corp. (9th Cir. - July 16, 2014)

I'm not too super sympathetic towards Judge Kleinfeld's contention that the pro se complaint was, at 68 pages, way too long.  Especially since, the same day, a different panel issues an opinion in a case involving a represented party in which the complaint is three hundred pages long.  With nary a word about the duty to be "short and plain".

Nor am I compelled by Judge Kleinfeld's horror that the plaintiffs caused the defendants and their attorneys to prepare two whole 12(b)(6) motions to dismiss.  The horror.

But the best part of Judge Kleinfeld's dissent comes when he's winding it up.  Where he says:

If plaintiffs had what looked like a strong claim that ought to be adjudicated on the merits, judicial creation of a complaint for them might not be so unfairly prejudicial. But they do not. What they appear to be saying in their 398-paragraph complaint is that they bought a $729,000 house, and borrowed $739,000 for it, because the seller lowballed them into thinking they were going to get the house for $719,000. They seem to be saying that Countrywide’s agent persuaded them to lie, which they did, in their loan application, such as by saying that Mrs. Merritt was employed when she was actually receiving disability payments (later terminated). And they seem to be saying that because they were minorities they were offered a more ample adjustable rate mortgage instead of a less ample fixed rate mortgage loan than they would otherwise be entitled to.

Were we limited to 12(b)(6) dismissal, we would have to assume for purposes of decision that the plausible factual statements (but not the legal conclusions and editorializing rhetoric) in the complaint were true. We are not so limited under Rule 8 analysis, which I suggest ought to be applied. Under Rule 12 analysis, some of the claims are plausible at least in part. Obviously, if Countrywide did not properly provide the loan papers to the Merritts, a claim if timely could be made. Tender of the full amount received is not in all circumstances a sine qua non for a pleading claiming rescission, though some sort of equitable judgment requiring tender must be made if rescission is granted, to assure that the plaintiff does not get to keep what it bought and also get all the money back.

It is hard to say whether plaintiffs even seek a rescission remedy that could be allowed. The prayer in their complaint seeks a return of all the money they have “invested in their property,” plus compensatory damages, plus $2,000,000 in punitive damages, plus a “prime loan at current market rates” (far lower than the housing bubble interest rates that prevailed when they bought their $729,000 house), or for them to be able to walk away with the reimbursements and damages. Their appellate brief is more modest, but was not before the district court.

Their pleading seems to say that they have been living in a $729,000 house for what is now almost six years without paying anything toward the price. If they got past their Rule 8 problems, and their Rule 12 problems, their equities appear to be weak. The Merritts have had five chances to state this claim. Prejudice and futility counsel against giving them a sixth try. We ought to let the dismissal with prejudice stand."

That part tugs at my heartstrings a lot more than the thought that Countrywide's lawyers had to prepare two brief, incredibly easy motions.

Tuesday, July 15, 2014

People v. Bradford (Cal. Ct. App. - July 15, 2014)

I will express no opinion about the merits of Justice Nicholson's concurrence in this case, in which he argues that the vast majority of the Court of Appeal's opinion is unnecessary and unhelpful.

He's surely right, however, that the most important part of this opinion -- to the litigants, anyway -- is its core finding that a guy convicted of having wire cutters while shoplifting from a store isn't carrying a "deadly weapon" such that he's categorically ineligible for potential relief for his resulting three strikes (25 years to life) prison sentence.  Proposition 36 says that you're never able to get your life sentence reduced thereunder if “[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.”  The prosecutor at Bradford's shoplifting trial said during closing argument:  “You got wire cutters. You’re going to snip the sensor tags off the merchandise.”  The trial court held that the fact that Bradford was "armed" with these wire cutters meant he was "armed with a deadly weapon".

Thank goodness the Court of Appeal was more rational.

Sure, we classify a boatload of things as "deadly weapons" here in California.  A crazy patchwork of crazy things.

But come on.  There's no way the voters thought that a guy who uses a wirecutter to snip off sensor tags has should invariably stay in prison for life whereas a guy who snips 'em off with his bare hands should be let go.

Just not plausible.

Lee v. Hanley (Cal. Ct. App. - July 15, 2014)

Isn't it wonderful when the first couple of paragraphs of an opinion tell you the vast majority of what you need to know about the case?  Absolutely.

Hence my love for Justice Moore's opinion in this case.

Here's the first page, which tells you almost all that you need to know:

"Plaintiff and appellant Nancy F. Lee hired Attorney William B. Hanley to represent her in certain civil litigation. After the litigation settled, Lee sought a refund of unearned attorney fees and unused expert witness fees she had advanced to Attorney Hanley. Not having received a refund, Lee hired Attorney Walter J. Wilson and terminated the services of Attorney Hanley. Attorney Hanley thereafter refunded certain expert witness fees, but no attorney fees. More than a year after hiring Attorney Wilson, Lee filed a lawsuit against Attorney Hanley seeking the return of attorney fees.

Attorney Hanley filed a demurrer to Lee’s second amended complaint, based on the one-year statute of limitations contained in Code of Civil Procedure section 340.6.1 The court sustained the demurrer and dismissed the action with prejudice. Lee appeals. We reverse.

Section 340.6 provides the statute of limitations for an action based on “a wrongful act or omission, other than for actual fraud, arising in the performance of professional services . . . .” According to the plain wording of the statute, to the extent the wrongful act or omission in question arises “in the performance of professional services,” the statute applies; to the extent the wrongful act or omission in question does not arise “in the performance of professional services,” the statute is inapplicable.

This notwithstanding, it seems that almost any time a client brings an action against his or her attorney the wrongful act in question is construed as one arising in the performance of legal services, such that section 340.6 applies. But surely it cannot be the case that every conceivable act an attorney may take that affects his or her client is one arising in the performance of legal services. For example, if a client leaves her purse unattended in the attorney’s office and the attorney takes money from it, would we say that act arose in the performance of legal services? How different is it if, when the legal services have been completed and the attorney’s representation has been terminated, the attorney keeps the unearned fees belonging to the client? To steal from a client is not to render legal services to him or her. We hold that, to the extent a claim is construed as a wrongful act not arising in the performance of legal services, such as garden variety theft or conversion, section 340.6 is inapplicable."

Love it.

By the way, statute of limitations aside, this seems like a fairly decent lawsuit.  Backed up by the (likely inadmissible) fact that the State Bar has also charged Mr. Hanley with misconduct based on these same events.  As well as, in Count Four, a little problem concerning a forged letter that Mr. Hanley allegedly submitted to the State Bar.

So the world gets to find out a little more detail about whether this particular Newport Beach attorney made off with tons of money from his client or whether that client gave that cash to him as a "bonus" for a job well done.

One thing's for sure:  The client is definitely not happy now.

Monday, July 14, 2014

In Re Misconduct Complaint (9th Cir. - July 14, 2014)

During his tenure, Chief Judge Kozinski decided to publish all of his misconduct decisions.  Transparency, openness, and similar good stuff.  As a result, once every couple of months or so, you'll see yet another "In Re Complaint of Judicial Misconduct" caption.

They all get resolved the same way.  Short.  Two or three pages.  Brief recitations of the facts and then a conclusion that the allegations aren't even sufficient to investigate.  Dismissed.

Which, to be honest, is exactly right.  I imagine that most of these things are filed by frustrated litigants or lawyers.  Many of whom need to take a chill pill.  So it's become a routine:  get the complaint, prepare a cursory decision explaining why X, Y and Z isn't really "misconduct" under the statute (or why there's no evidence submitted to support the allegation), and then publish the thing.

So when I saw this decision earlier today, I said out loud:  "I wonder when one of these things will actually say something."

Today's the day.

Don't get me wrong.  Chief Judge Kozinski still dismisses the complaint.  But, for pretty much the first time ever, the opinion takes the allegations seriously.

That's in part because this one's slightly different.  You can complain about a judge under Section 351 on the ground that the judge "engaged in conduct prejudicial to the effective and expeditious administration of justice," and that's precisely the basis for the overwhelming majority of complaints.  But you're also allowed to complain that a judge "is unable to discharge all the duties of office by reason of mental or physical disability."

The complainant here does the latter.  He knows a bankruptcy judge in the Ninth Circuit that he thinks is showing signs of dementia.  Something that he's familiar with because he's taken care of a family member with similar issues.  So he tells the Chief Judge.

I like that.  With life tenure, it's a serious issue.  It should be taken seriously.

And Chief Judge Kozinski does.  Expressly noting that -- presumably in contrast to the usually frivolous "misconduct" complaints -- such complaints "are welcome and encouraged."  Moreover, unlike the quick, dismissive way in which the usual misconduct complaint is dismissed, Judge Kozinski (1) actually makes a (limited) investigation of the facts here, and (2) writes an opinion that clearly reflects that he truly cares about this stuff.

In the end, after talking with some other judges, Judge Kozinski dismisses the complaint.  He says that none of his colleagues has identified a similar problem with this judge.  So, for now, see ya.  Complaint dismissed.

Although I very might like the serious way Judge Kozinski treats this issue, there's one part of the opinion that rang hollow for me.  Judge Kozinski's opinion somewhat critiques the complainant because he didn't "provide any transcripts or audio in support of his allegations."  Like that's routinely available.  Or, even if it was, like a transcript will show painfully slow reaction times and the like.  Similarly, not providing "dates" of particular events seems eminently understandable to me.  You diagnose dementia not from a snippet of facts on particular dates, but from a lengthy pattern of conduct.  So, yes, it'd perhaps be wonderful to have written transcripts of conduct on particular dates.  Would also be wonderful to have the judge confess in writing that s/he's senile.  But the absence of these things hardly a strong basis for concluding, as Judge Kozinski does, that "[w]ithout more specific facts, complainant's allegations are insufficient to raise [even] an inference that a disability exists."

Moreover, requiring more detail also seems a bit inconsistent with the text of the statute itself -- something that Judge Kozinski typically cares about, and yet that's not even mentioned in the opinion -- which expressly requires only a "brief statement of the facts constituting such conduct."  Would the lack of a transcript and dates fail to satisfy FRCP 8, which requires a similar "brief statement of the facts"?  No way.  We'd inquire further.  We'd conduct an "actual" investigation.  Seems to me that the burden that Chief Judge Kozinski is imposing may be a bit high.  Notwithstanding what I agree are slight difficulties in investigating because the complaint doesn't include a transcript or dates.  At a minimum, were it me, I'd at least pick up the phone and try to call the complainant to find out additional details.  Dates and the like.  Stuff like that.

Nonetheless, in the end, I get it.  You do what you can.  You talk to your friends.  Things seem reasonably fine.  So you dismiss the complaint.  While nonetheless telling everyone -- truthfully -- that you really do take these things seriously.

I'll bet you dollars to doughnuts that, as a direct result of this opinion, you see a tenfold rise in the number of disability complaints under Section 351 in the next several years.  Few lawyers know about this provision.  It reflects a serious problem that actually exists.  One that's not just in the minds of losing lawyers and litigants.

So, as they say in the subways, "If you see something, say something."

And, after today, I bet people will.

Friday, July 11, 2014

U.S. v. Ruiz (9th Cir. - July 11, 2014)

At 4:20 in the morning, two armed men knock on the door of a trailer, struggle with its occupant, and end up shooting him in the kneecap before fleeing.  The police interview the victim and his girlfriend at the trailer after the shooting.  The girlfriend "seems evasive".  The police are shocked -- shocked, I tell you -- to find (after searching the trailer) methamphetamine and a pipe with burnt residue.  Who could believe that someone who lives in a trailer in rural Idaho and uses methamphetamine?

The police officers, not being idiots, come to the conclusion that the 4:20 a.m. forced entry into a trailer that contains methamphetamine might not have been random.  So the police use an undercover cop to make a controlled buy from the girlfriend of the shooting victim at the trailer later that same day; i.e., promptly after her boyfriend's been shot.  And the girlfriend, being an idiot, makes the sale.

Which, not surprisingly, leads to a more than a little pressure being applied on the girlfriend to help the police.  There's ultimately a search warrant, the discovery of a shotgun in the home of a felon, etc. etc.

Your typical day.

In the Ninth Circuit, the question is whether the warrant's valid.  Judge Christen writes the majority opinion.  Judge Gould dissents.  Guess which side think's the warrant's okay?


The majority says it is.  Judge Gould says it isn't.

Thursday, July 10, 2014

In Re G.P. (Cal. Ct. App. - July 10, 2014)

Like the Court of Appeal (and the trial court), I have no doubt that Mother loves her kids.  Truly.

But if she really loved them -- seriously, with all her heart -- she'd have gotten off the meth.  As well as not have done all the other stuff that's reflected here.

Avila v. LAPD (9th Cir. - July 10, 2014)

Judge Hurwitz surely describes the facts of this case in a way that's extremely persuasive.  He says:

"Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, deemed Avila insubordinate for not claiming overtime and fired him.

Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, deemed Avila insubordinate for not claiming overtime and fired him."

Well, geeze.  I agree.  That's totally outrageous.  I'm not at all surprised the jury found in his favor, and that the Ninth Circuit affirms.  Way to go.

Except for one thing.

Judge Vinson -- sitting by designation from Florida -- gives a little more color to those facts in his dissent.  Color that's darn persuasive as well.  He says:

"The majority repeatedly states that Avila and two fellow officers, Romney and Anderson, were disciplined only after they testified in the Maciel litigation. See, e.g., Maj. Op. at 5 (“[The] termination occurred only after Avila had testified in [the Maciel suit.]”); accord id. at 5 (“The evidence at trial was that the only officers disciplined . . . were those who testified against the LAPD in the Maciel suit[.]”). Although technically true, the substance of their Maciel testimony is critical, as Avila, Romney, and Anderson were also the only officers who had openly admitted to insubordination while they testified. Specifically, they admitted that for several years they failed to report overtime — and failed to report supervisors who allegedly told them to do so — even though they knew it was “serious misconduct” for which they could be fired. Accordingly, when the majority says “the only officers singled out for discipline were those who testified at the Maciel action”, id. at 16, it is more complete and factually accurate to say that “the only officers singled out for discipline were those who testified at the Maciel action and who admitted under oath that for years they knowingly and repeatedly violated policies that they were specifically told would subject them to termination.”"

Well, shucks.  That does make it more complicated, doesn't it?

Imagine, for example, a situation in which one police officer files a wrongful termination suit, saying that he shouldn't have been fired for accepting bribes, and three other officers testify therein that they routinely accept bribes as well:  that everyone does, and everyone knows about it.

Is it really illegal to fire those officers given their admission that they're doing something illegal?  Even if you only fire them?  Why isn't it okay to fire the class of people who admit to illegality?  Even if that class is composed entirely of people who testified at trial, and the only evidence of that illegality is that testimony?

Sure, you should fire everyone who commits illegal acts, not just those who testify about it.  But I'm sure that the department would say that that's exactly what they did.  And wouldn't it be rational to at least start with the firing of the people against whom the evidence is overwhelming -- i.e., those who admitted to the misconduct -- and then potentially go after the remainder?  Moreover, maybe there's a reason you stop after firing the self-confessed criminals:  maybe the evidence against the others (given the absence of a confession) is too ambiguous, the required prosecutorial resources too great, the risk of litigation too high, etc.  Might not that make sense?

Mind you, I have a keen suspicion -- as does Judge Hurwitz, I imagine -- that there are other things at work here.  I'm inclined to believe that the LAPD was pissed at the officers for testifying adversely to the department.  So when it decided to "target" these people, I think there might well have been a direct reaction not just to the content of their testimony, but also to the mere fact that it was made.  "Breaking the Code of Silence" and all.  Not "supporting" the Department.

But it's tough to create a real standard here.  Imagine that the testimony is not just about taking bribes, but also beating suspects and killing innocent people.  Same rule?  Just have to show that the LAPD's anger at breaking the Blue Wall was a substantial motivation in terminating the people?  Really?!  Isn't it sufficient just to say:  Hey, this is serious stuff.  You can't keep your job once you admit to things like this.  Even if it's possible that other, non-testifying, officers also might commit similar offenses (but have not confessed to them) and not be punished.

One other point.  In other areas of the law involving police, we don't care about subjective motives.  For example:  Did they really pull you over because you had tinted windshields, or was their true motivation just to search your car?  We don't care.  We only care that there was an objective basis for what the police did.

Here, by contrast, there's no doubt an objective basis for what the police department did.  But we're spanking them anyway.

Interesting dichotomy.

Wednesday, July 09, 2014

People v. Juarez (Cal. Ct. App. - July 9, 2014)

You can only file a felony complaint twice.  That stops the prosecution from (1) getting around the speedy trial rules, and (2) forum-shopping for a different judge.  So you can file a felony complaint once, and dismiss it (or have it dismissed by an unsympathetic judge), and then refile it yet again.  But after that, you're done.  No refiling it a third time.

The Court of Appeal nonetheless holds here that it's okay under this rule to, for the same set of facts, (1) file a murder charge, (2) dismiss it, (3) file another murder charge (the same offense), (4) dismiss it, (5) file a conspiracy to commit murder charge, (6) dismiss it, (7) refile the conspiracy charge, (8) dismiss it, (9) file an attempted murder charge, (10) dismiss it, (11) file another attempted murder charge, (12) dismiss it, (13) file a charge of voluntary manslaughter, (14) dismiss it, (15) file another voluntary manslaughter charge, (16) dismiss it, (17) file attempted voluntary manslaughter, (18) dismiss it, (19) refile it, (20) try conspiracy to commit voluntary manslaughter, etc. etc. etc.  (I think I could get up to around sixty or so major charges, but you get the point.)

That's okay.  It's permissible under the statute.  "Our hands are tied."

Tuesday, July 08, 2014

People v. Guillen (Cal. Ct. App. - July 7, 2014)

"On September 14, 2006, John Derek Chamberlain was arrested for possession of child pornography . . . . [He was sent to] Theo Lacy Jail in the City of Orange (TLJ) . . . .

Inmates at TLJ, as well as at other Orange County jails, form race-based groups called 'CARs,' Classification According to Race. The CAR system is an inmate-generated hierarchy divided along racial lines that has existed since the 1950s. In October 2006, the CAR system was present in all Orange County jails and the majority of California jails.

In F West there were three CARs each with its own management hierarchy. The three CARs were the Woods, the Paisanos, and the South-Siders. The Woods were the Caucasian inmates, the Paisanos were the Mexican national inmates, and the South-Siders were the Hispanic-American inmates, who were primarily gang members and were the most dominant CAR. Most inmates were members of one of the CARs. Each CAR had a leader, a “shot caller,” a second in command, a “right-hand man,” an
enforcer, a “torpedo,” and a person waiting in command, a “mouse.” There was also a “house mouse” for the entire barracks who is in charge of cleaning the barracks, distributing commissary slips, and communicating with the deputies about the barracks’ needs. Inmates were aware of who occupied the roles and when a change occurred after someone left the barracks.

The shot caller and the right-hand man were responsible for determining which inmates were disciplined or “taxed.” Taxing was a form of punishment that included assaults, cleaning duties, squats, or providing items from the commissary. A common form of taxing was “the wall” where two inmates held an inmate against a wall for a specified period of time and hit him below the neck and above the waist while the inmate submitted to the punishment. The shot caller authorized the taxing of inmates who did not follow the jail rules and inmate rules. The shot caller used torpedoes to carry out the taxings.

A CAR mouse would typically approach a new inmate and ask to see the inmate’s court documents or “paperwork” to learn the inmate’s charges. It was common for inmates to assault other inmates with “sensitive charges” such as child molesters (called “Chesters”) and informants (called “Rats”). If inmates became suspicious about an inmate’s charges, they attempted to find out the charges often with the help of a third party by checking a public Web site or calling the jail’s public information line. All the CARs viewed the assault of inmates perceived to be child molesters or informants favorably. Inmates who failed to produce their paperwork were taxed.

For the Woods on October 5, 2006, Petrovich was the shot caller, Aguilar was the right-hand man and torpedo, and Carlstrom was the mouse. Petrovich and Aguilar recently assumed their positions within the Woods. For the Paisanos on that date, Villafana was the shot caller, Salvador Garcia (Chava) was the right-hand man, and Guillen was the mouse. That same day, Deputy Kevin Taylor, Deputy Jason Chapluk, and SSO Philip Le were assigned to F Barracks. Taylor was in command of F Barracks. 

OCSD does not condone deputies utilizing the CAR system in the course of their duties. Although inmates tried to hide the workings of the CARs from deputies, deputies, including Taylor and Chapluk, are aware of the CAR management structure. However, deputies are not supposed to authorize or sanction CARs. Deputies are trained that no inmate should have more power than any other inmate. Deputies are trained to treat all inmates equally and not allow any particular inmate to believe he is exempt from the rules. However, because of the number of inmates, deputies used the shot callers to control the inmates because the inmates did not always follow the deputies’ orders but they feared the shot callers. Taylor met with the shot callers almost daily and used them to control the barracks, discuss issues, and obtain information. When the deputies had a problem with an inmate, they would likely address the problem with a shot caller or other CAR representative. The deputies would tell the shot caller that a particular inmate was not “‘staying with the program’”—i.e., the inmate was making the deputies’ job difficult. Deputies did this knowing the shot caller would tax the inmate. Shot callers generally complied with the deputies’ directives and were rewarded with additional day room time or extra food. The CARs would have meetings in the day room to disseminate information. The deputies were more tolerant of rule violations by those higher up in the CAR management structure than by other inmates, including cube hopping, which is moving from cube to cube. . . .

On September 14, 2006, Chamberlain was arrested for possession of child pornography and booked into Santa Ana jail. On September 18, 2006, Chamberlain was arraigned. On October 2, 2006, Chamberlain appeared in court and his trial was scheduled for October 24, 2006. His defense counsel was Case Barnett. Because of the nature of the charges, Chamberlain was brought into court by himself and not given paperwork to take to jail. Chamberlain was instructed that his charges were sensitive and to not tell other inmates. 

On October 3, 2006, Chamberlain was transferred to TLJ and assigned to F West. Carlstrom, the Woods’ mouse, approached Chamberlain, and asked him for his paperwork but Chamberlain said he did not have any. Chamberlain told other inquiring inmates he was in custody for violating a restraining order. Later that day, Chamberlain called his girlfriend to tell her that he was worried because inmates were asking him why he was in custody. Chamberlain’s girlfriend called Barnett and left him a message stating Chamberlain was afraid because inmates were asking for his paperwork. She left a second message on October 4, 2006. . . .

Andrew Corral, a South-Sider, was on his bunk in D cube playing cards when Aguilar told him to leave because they had business to conduct. Corral moved to the other side of D cube. Corral overheard Petrovich tell Aguilar they were going to beat a “‘Chester’” who admitted he likes them young, and Aguilar left D cube. Petrovich, the Woods shot caller remained in D cube, while Villafana, the Paisanos shot caller, and “Stretch,” the South-Siders shot caller arrived in D cube. Corral heard them say they were going to beat and rape Chamberlain. They said there was an incentive of 10 commissary items to anyone who raped him. Aguilar went upstairs to J cube to bring Chamberlain to D cube. Aguilar escorted a fully dressed Chamberlain to D cube. As they entered D cube, Aguilar pushed Chamberlain to the floor and the attack began. 

Multiple witnesses observed about four groups, totaling at least 30 inmates, enter D cube and assault Chamberlain for about 20 to 45 minutes.

Luis Palacios, a Paisanos, was watching a baseball game about 30 feet away from D cube and saw inmates going in and out of D cube, three or four groups of three or four inmates, taking turns hitting and kicking Chamberlain. Palacios saw Petrovich hit Chamberlain first. Palacios saw Aguilar grab hold of a bunk, elevate himself about three feet, and stomp on Chamberlain. Aguilar also hit him. Palacios described Aguilar as “ruthlessness.” Palacios also saw Guillen enter D cube, get on his knees, and make a couple downward striking motions during the beginning or middle of the attack. Guillen was in D cube for at least two minutes. The noise from the barracks muffled Chamberlain’s screams and cries for help. Palacios went upstairs and when he looked down he saw Chamberlain trying to crawl under a bunk as inmates continued to hit and kick him. Inmates pulled down Chamberlain’s pants, spanked him with a shoe, and spit on him. After Petrovich told Palacios to “‘keep walking don’t look down[,]’” Palacios returned downstairs. Palacios heard an inmate say Chamberlain “‘passed out.’” Aguilar threw water on Chamberlain to wake him up and beat him more. Palacios saw Villafana make multiple trips between working out in E cube and going into D cube. 

Robert Mayfield witnessed four waves totaling at least 12 inmates assault Chamberlain; the first few waves each lasted a couple minutes but the last wave lasted a “ridiculous” amount of time. The first wave was the Woods. Aguilar struck downward with his fists and used the bunk for leverage as he stomped up and down on something behind a short wall. Aguilar and other inmates put rubber-soled jail shoes over their hands before hitting Chamberlain. Carlstrom held onto the bunk while he violently jumped up and down on something behind the wall. The second wave included Villafana and two South-Siders. Villafana threw two punches with a closed fist. Aguilar, and another inmate Carlstrom handed water to, threw water on Chamberlain to wake him up. 

Corral, who was still in D cube, saw inmates hit Chamberlain, spill hot coffee on him, urinate on him, and insert a spoon in his rectum. He saw Villafana hitting and kicking Chamberlain on his head and torso. He also saw Aguilar hitting, kicking, and stomping Chamberlain. After Corral left D cube, he saw Aguilar repeatedly exit D cube, speak with Petrovich, and return to D cube. Aguilar took Chamberlain’s clothes outside of D cube when the assault ended."

Needless to say, Chamberlain's dies.  Of horrific injuries.  Several perpetrators get convicted of second-degree murder.  Their convictions are affirmed.

History is going to judge our prison system favorably.  Right?

P.S. - Don't forget that Chamberlain was simply arrested.  Not convicted of anything.  (Not that a conviction would have made it all right.)

Monday, July 07, 2014

City of LA v. County of Kern (Cal. Supreme Ct. - July 7, 2014)

I'm a little surprised that this opinion is unanimous.

There are three different possible interpretations of the part of the federal supplemental jurisdiction statute, 28 USC 1367(d), that says that state limitations periods are "tolled" during the pendency of a federal action (and for thirty days thereafter) if the federal court ultimately exercises its discretion to dismiss supplemental state law claims.  Justice Werdegar cogently lays out the competing views:  the "suspension" position, the "grace period" interpretation, and the "substitution" approach.  This issue has confounded state courts pretty much everywhere:  around half have adopted the "suspension" approach and the other half the "grace period" position.

Justice Werdegar notes that the text of the federal statute seems to most naturally support the "suspension" approach.

So the California Supreme Court unanimously adopts the competing "grace period" interpretation.

With the various courts roughly evenly split, you'd facially expect seven state court justices to be split fairly evenly themselves.  Yet here you have it:  A unanimous opinion.

Maybe everyone simply sees it the same way.  Or maybe this is a pretty good example of the justices preferring to speak with a unified voice.  Especially when the matter is relatively unimportant (at least in the scheme of things) and it's more critical to have a solid, articulated rule than it is for that rule to be precisely right.

Right or wrong, until the United States Supreme Court speaks, or until Congress amends the statute, the rule in California is now clear.  If you've got supplemental claims that were dismissed, you've got thirty days after dismissal to refile 'em in state court (or the original limitations period, if longer).  Even if you filed your original lawsuit well in advance of the expiration of the limitations period.  You don't get that extra time back after dismissal.

That's the rule.  Not in lots of states.  But -- as of today -- definitely here.

Thursday, July 03, 2014

U.S. v. Dharni (9th Cir. - July 2, 2014)

In January, I said that Judge Wallace was right.

I was wrong.

To be clear, so was pretty much everyone else.  Judge Wallace's opinion held that it wasn't reversible error to temporarily kick spectators out of the courtroom because there was a shortage of seats.  The key limitation being "temporary".  Once seats became available, people were invited back in.

Or so we thought.

In the amended opinion, it turns out that the closure wasn't necessarily temporary.  The closure may well instead have been for the entire time.  In which case maybe the result should be different.  This wasn't clear from the original briefing, so the panel decides to remand the case to the district court for fact-finding. Was the closure indeed temporary?  Or was it for the entire voir dire?

This makes eminent sense to me.  Indeed, I give credit to the panel.  It's not a natural tendency for judges on the Court of Appeals to admit that they may have made a factual error, and to accordingly change their result.  People get invested in their decisions.  Amending them involves work, as well as confessing error.  It makes me proud when judges to so.  Justice is more important than keeping to one's original path.

Judge Wallace dissents.  He'd retain the original result.

Kudos to Judges Fisher and Berzon.

Wednesday, July 02, 2014

Young v. WCAP (Cal. Ct. App. - June 25, 2014)

You're entitled to worker's compensation benefits if you're overweight, middle-aged, and are doing jumping jacks on your own time at your home.

If you're a cop.  (Or, as here, a jail booking officer.)

People v. Robinson (Cal. Ct. App. - June 24, 2014)

Life is not a porn flick.  A fact that Lee Robinson will have many, many years in prison (although not the full twelve for which he was originally sentenced) to consider.

Tuesday, July 01, 2014

Nevarez v. Tonna (Cal. Ct. App. - July 1, 2014)

I'm not exactly sure why this one is in the "published opinions" pile.  Since it says on the top that it's unpublished.

But it does give everyone a chance to be reminded that "no" means "no".  As in, "No, I don't want to see you any more."

Take the hint.  Way, way earlier than what went down here.

U.S. v. Bonds (9th Cir. - July 1, 2014)

No one can bat a thousand, right?  Not even a major leaguer.

Surely that's true for even Barry Bonds.  Yeah, he won in the Ninth Circuit four years ago, in a split opinion that made his prosecution for making false statements to a grand jury extraordinarily difficult.

But even the best hitters get out two times out of three.  So it should perhaps come as to surprise that his conviction for obstruction of justice was affirmed by the Ninth Circuit last year.

Game over, presumably.

Except you forgot.  MLB has instant replay.  The Ninth Circuit has en banc review.

And even though last year's opinion (1) was unanimous, and (2) involved three Ninth Circuit judges (not anyone sitting by designation), today, the Ninth Circuit takes the case en banc.

That Barry Bonds.  Amazing.  On so many different levels.