People v. Hardy (Cal. Ct. App. - Feb. 24, 2021)

Lots of big cities have "Shotspotter" systems.  It's basically an automated system that listens for gunshots and sends out a notification to police once it hears them.

The Court of Appeal holds that in this case, the trial court should have conducted a Kelly/Frye hearing to determine whether the Shotspotter technology was scientifically reliable.  And, to be sure, that certainly wouldn't have hurt.  (I also suspect that the trial court would have easily found it to satisfy the relevant standards.)

But I wonder whether the failure to conduct that inquiry here was really all that prejudicial.  This was a case in which the police officers were already staking out the relevant location when the shots were fired and an officer testified that he personally saw the shooter fire the weapon.  That testimony -- plus the spent shell casings -- makes it seem pretty darn obvious that there was indeed a shooting.

Justice Stewart is right when she says that the evidence wasn't entirely clear about whether there were six or seven shots fired, which in turn reflects whether the gun was a revolver (which only holds six rounds) or a semiautomatic (which expels casings like the ones recovered at the scene).  And, yes, on that point, the evidence about Shotspotter was indeed fairly important, because that was by far the clearest evidence that there were seven shots fired, not six.

But it seemed to me that what was relevant there was simply the recording of the shooting that was stored in the system and played for the jury.  It was nothing more than a fancy tape recording; as to which, last I checked, there isn't really much of a Kelly/Frye dispute.  The prosecution didn't use the Shotspotter data to "prove" the sounds were gunfire.  It just essentially used the tape to confirm that, yep, those sound a lot like shots, and there were seven of them.

Could the defense have claimed that the recording was from another data set or altered or what have you?  I guess.  But it didn't, and there's absolutely no reason to believe that it was.  Given that fact, I'm not at all sure that we need to go down the whole Kelly/Frye path just to establish that, yes, we have the technology to record things, and here's the recording of the sounds recorded by the system on the night of the alleged shooting.  Any more than we need a Kelly/Frye hearing to admit surveillance videos, photographs, or any of the other recording systems that we daily submit to jurors for their review.

It'd be one thing if the defense said "These are just car backfires" and the prosecution said "No they're not, the Shotspotter system screens out that stuff."  But nothing at all like that went down here.  Given the facts here, I'm inclined to think that reversing the conviction here might go a bit overboard.  Since what really mattered was the officer's testimony -- and, yes, the recording helped, but it was simply the recording, not any "authentication" by the Shotspotter technology, that seems to me made the difference here.

People v. Barrios (Cal. Ct. App. - Feb. 23, 2021)

The defendant in this case had a fairly decent criminal plan.  Not novel or anything, but it works.  Take out a gun, approach a guy in a car, take the money in his wallet, tell him to drive you to an ATM and withdraw cash, and there you go:  "easy" money.

There was a slight twist here, though.  It was 10:30 p.m. when the defendant met up with the victim, and the victim subsequently withdrew his daily limit of $500 from the ATM.  But defendant thought that since it was nearly midnight, they could just wait a little bit and it'd then be "the next day" and the victim could withdraw another $500.  So they parked on a side street and waited for a little bit until midnight.

Which might have been a workable plan.  But defendant added a slight twist that made the whole thing fall apart.

While they were waiting for midnight, defendant decided to take a nap.

Yeah.  Generally not a good idea.  Particularly during a kidnapping.

The victim texted his friends, the police set up a roadblock, defendant was captured, and was sentenced to a long time in prison.

Maybe rest up before the kidnapping next time.  Or just take the original $500 and wallet.  Either way works better.

Or maybe not even commit the crime at all.

U.S. v. Olson (9th Cir. - Feb. 22, 2021)

Opinions like this are somewhat rare nowadays.  Virtually a relic of a bygone era.  Though I'm glad to see 'em make at least the occasional comeback.

You would see in the old days various ways in which courts would make doctrinal shifts, both large and small.  Large ones like Marbury v. Madison and incorporation via the Fourteenth Amendment.  Smaller ones like Shelley v. Kraemer, the right to appointed counsel and Miranda.  There was a well-established legal regime but it was found wanting in various degrees, so the courts changed it.  In ways that were not doctrinally easy to establish, but which nonetheless worked -- and that (typically) obtained subsequent popular and legal approval.

So too here, I think.  Or at least it's a step in the right direction.

The question is when you get a right to counsel -- an attorney "appointed for you if you cannot afford one" (to use the typical television Miranda warnings).  The longstanding rule that's typically applied is that you get an attorney after you're criminally charged.  After all, that's typically when you need one, so it makes sense.

But there are problems at the margin, including but not limited to those underlying the present case.  Here, the United States informs the defendant that he's the "target" of a federal grand jury investigation and that they're definitely going to indict him, but also lets him know they're potentially willing to make a deal  -- and invites him to come on in and negotiate.

The defendant doesn't have his own lawyer, and also can't afford one.  But he's no idiot.  He knows he definitely needs an attorney if he's going to try to negotiate a plea deal.  So he asks the court to appoint one for him.

The question presented is this:  Does the defendant have a right to an attorney?  Or can the government legitimately say:  "Look, we're willing to discuss a plea deal, but if you don't have a lawyer and can't afford one, tough; you're either going to have to do it yourself or get criminally charged.   Nobody is entitled to a court-appointed lawyer until we actually decide to file charges, so if we hold off, no lawyer for you."

Hmmmm.

On the one hand, it seems fundamentally unfair to give rich people the superior ability to avoid an indictment and effectively negotiate a pre-charge plea deal while leaving poor people out in the cold.  But, hey, it's also a nice bright-line rule to say that you only get a lawyer after you're actually charged.  A bright-line rule that also tends to have a fair amount of historical doctrinal support.  Including but not limited to circuit precedent.

So what to do?

Judge Berzon writes a concurrence that essentially says "I think we're bound by circuit precedent on this issue, but in an appropriate case, I'd totally vote to take the matter en banc and hold that there's a pre-indictment right to counsel in cases similar to the present one.  It's just that this particular case does not qualify."  Chief Judge Thomas writes a concurrence that says:  "I actually don't think that circuit precedent forecloses a right to counsel in cases like this one, so we don't even need to take the issue en banc, but I do agree with you that the present case doesn't merit relief anyway."  And Judge Schroeder joins the per curiam opinion that says what everyone on the panel agrees:  that the defendant here, who did get a court-appointed attorney during plea negotiations -- but who then rejected the proposed pre-indictment plea deal and went to trial (and ultimately obtained a worse result therein) -- didn't establish any prejudice from the events at issue in his case.

So we all agree on what happens to the defendant here (Mr. Olson).  The larger issue regarding pre-indictment right to counsel remains undecided, but with a couple of judges making clear that they think that -- one way or another -- there should indeed be a right to counsel in settings like those here; e.g., where the government invites pre-indictment plea negotiations.  Judges Thomas and Berzon simply disagree on the means through which this result should be accomplished; i.e., through en banc review or otherwise.

Not only do I think that the concurrences make good points (and good law), but they also embody a fancy Marbury-like practical quality.  As you undoubtedly recall from law school, in that case, Chief Justice Marshall famously established judicial review while simultaneously holding that it could not provide Marbury with the relief he sought.  So there was no relief granted for the individual litigant at issue -- somewhat mitigating what might have been a political backlash to the underlying principle of judicial review -- but the court nonetheless established the broader doctrine for use in future cases.

So too here, albeit in a slightly different way.  Mr. Olson gets no relief.  But district courts are now told that there are at least two votes on the Ninth Circuit -- and likely plenty more -- for the right to counsel in certain pre-charge settings.  As well as the principled reasons supporting such a right.  Even the mere existence of those concurrences is likely to have an effect, notwithstanding the undeniable reality that neither of 'em constitutes controlling precedent.  District courts in the future are, I suspect, likely to be much more solicitous to requests for pre-indictment appointment of counsel in settings like these as a result of the two concurrences -- if only because no one wants to be reversed in some future case in the event a district court denies a request for counsel.  Similarly, since the defendant here gets no relief, it's extraordinarily unlikely that the government seeks (or that the Supreme Court would grant) certiorari over the present opinion, since, after all, the government won.

Yet it'll still have the practical effect of getting counsel to a variety of defendants in various pre-indictment settings.  Even though "precedent" won't compel it.

A neat little trick.

Sure, nothing stops a district court from saying "Well, I don't agree that there's such a right, so I'm not appointing any pre-charge attorneys; go ahead and reverse me if you can."  But the concurrences still advance the ball both intellectually and practically.

Which is cool.

Brown v. LAUSD (Cal. Ct. App. - Feb. 18, 2021)

I certainly can't wax as poetic as Justice Wiley.  But I can perhaps summarize the points he makes in his concurrence fairly briefly:

(1) Everybody loves the Internet.  So while the majority is right that you can't dismiss the complaint here at the pleading stage, it's going to be a pain in the butt for everyone if people get to file suit in California claiming that they need accommodations at work because they allegedly get super sick when exposed to WiFi.

(2)  Experts are prostitutes.  They'll say anything.

(3)  Given (2), trial courts should think a ton about appointing a neutral expert.  That'll get the case settled, I bet.

There you have it.

Tabares v. City of Huntington Beach (9th Cir. - Feb. 17, 2021)

I'll offer two somewhat tangential comments about this opinion from the Ninth Circuit today.

First, personally, I always blanch a bit whenever I read things that (in my view) grossly exaggerate the alleged unprecedentedly awesome nature of American history and/or leaders.  Was the founding of an American democracy great?  Yep.  Did our elders create a novel nation?  Definitely.  Was it a material advancement for humankind in general?  Sure.

But let's not deify the thing.  The people who did it were human.  Flawed.  As we all are.  Our founders were often racist and sexist in totally unacceptable ways.  Indeed, let's not forget that several held other human beings in chattel slavery.  Not good.

These people -- and the nation they created -- were not perfect.  At all.  And, yeah, as for our founding, we beat the British, and that was a huge win.  But only in the same way North Vietnam subsequently beat us.  (Plus we had the huge advantage of the French on our side; no small help.)  In a fair one-on-one fight on neutral soil, we'd have been crushed.  (And, indeed, sort of got our butts kicked a quarter-century or so later by that selfsame enemy in the War of 1812.)

All of that's a frame of reference for my reaction to the second paragraph of today's opinion, which says:

"The Constitution is a “singular and solemn . . . experiment” created by one of the finest group of statesmen ever assembled. The Federalist No. 40 (James Madison). It was born of a hard-fought struggle that against all odds wrested a fledgling nation from oppression by the then-greatest empire on earth."

Okay, yeah, I get it.  I know that we love our country, and wax poetic about American exceptionalism on occasion.  I just want to remind everyone that the actual reality is much more gray.  The same Constitution that -- awesomely -- created democratic institutions simultaneously ensured continued enslavement of a huge portion of the country as well as continued disenfranchisement of the majority of the population thereof (e.g., women).

It was a product of its time.  With all the wonder and all the flaws.

But, okay, Judge Nelson wants to point out only the good stuff, and thinks that our particular founders were amongst "the finest group of statesmen ever assembled."  That's one take on it.  At the same time, just don't forget that we're talking about an all-white, all-male group in which half of 'em held others in permanent bondage.  There's probably an even more venerable lot somewhere in history.  But, okay, if you want to go the U.S.A.-chanting route, that's your right; just know that, to me, the actual history seems a fair piece more complicated.  Which -- like our awesomeness -- is worth a reminder from time to time as well.

My second reaction was to one of the footnotes that Judge Nelson drops.  A reference that -- like the second paragraph -- was both sort of random (i.e., orthogonal to the actual case) and that I thought reflected Judge Nelson's particular take on the world.

The losing party's brief in the case called a particular argument by the other side a "Hail Mary," and since Judge Nelson ultimately agreed with that particular argument, obviously, he didn't think it was a "Hail Mary" at all.  Judge Nelson went ahead and explained in the footnote was a "Hail Mary" was in this context, quoting a First Circuit opinion that said that "A Hail Mary pass in American football is a long forward pass made in desperation at the end of a game, with only a small chance of success.”

Now, if it were you and me writing the opinion, and you wanted to give an example of an actual Hail Mary pass, what example would you give?  The Doug Flutie pass for Boston College?   The Aaron Rodgers pass (the longest Hail Mary in NFL history)?   The Stanford Band play (not technically a Hail Mary, but the same idea)?  The original Hail Mary -- the 1975 Roger Staubach pass?  There are surely lots of possible choices.  Lots of super-famous catches.

Which one does Judge Nelson choose?  The only one that he mentions is "the 41-yard touchdown pass as time expired in BYU’s 1980 'Miracle Bowl' victory."

Which is perhaps not surprisingly the most memorable such pass for a double BYU graduate like Judge Nelson.

Metal Jeans, Inc. v. Metal Sport, Inc. (9th Cir. - Feb. 16, 2021)

Judge VanDyke gives a nicely concise three-paragraph description of the underlying facts behind today's Ninth Circuit opinion:

"Gary Topolewski is the owner of Metal Jeans and the former president and owner of Topolewski America, Inc. (“TA”). In 1990,1 Topolewski began selling METALbranded clothing and initially marketed these products through hard-rock music magazines. Over the years, Metal Jeans has promoted its apparel to a variety of consumer segments, including motorcyclists, skaters, snowboarders, lumberjacks, “head-bangers,” and (naturally) those who “drop[] napalm on the enemy.”

TA obtained the METAL mark for use on jeans, shirts, and boots in 1999. In 2005, Topolewski told the U.S. Patent and Trademark Office (“PTO”) that TA had continuously used the METAL mark on jeans, shirts, and boots since 1999. That turned out to be untrue—as to boots—and in a separate 2008 proceeding, Topolewski’s false statement led the PTO to cancel TA’s registration of the METAL mark. Topolewski immediately reapplied for the mark, but this time, through Metal Jeans. Metal Jeans obtained the METAL registration in 2013.

Metal Sport, on the other hand, is the exclusive licensee of a stylized “METAL” mark featuring a blocky, rough-edged font. Owned by retired Finnish powerlifter Ano Turtiainen, the mark is Turtiainen’s own creation. He drew the stylized mark sometime around 1997 and thereafter began selling specialized powerlifting apparel, gear, and accessories featuring his design. Turtiainen registered the stylized mark in August 2016."

So Metal Jeans sues Metal Sports in 2015 for trademark infringement.  The case gets litigated for four years, at which point the district judge grants summary judgment to the defendant on an unclean hands defense.  The Ninth Circuit reverses, so the case goes back to the district court for yet more litigation.

It's a tiny, niche blue jeans company suing a tiny, niche powerlifting company for trademark infringement.  My keen sense is that the parties have spent -- and now will continue to spend -- infinitely more on legal fees than this thing could ever possibly be worth.

But oh well.  It's America.  You're entitled to spend as much money on lawyers as you'd like.

And we'll happily take your business, thank you very much.  

People v. Kidane (Cal. Ct. App. - Feb. 10, 2021)

One reads -- as one might suspect -- a fair number of DUI cases in the Court of Appeal.  Particularly when, as here, someone's killed, so the charge is vehicular manslaughter (or worse).

Usually the accidents happen on the highway, on a residential street, or the like.  They usually don't happen in the parking lot of the Superior Court in Santa Monica.

Yikes.

I can't tell from the opinion what the defendant was doing in the parking lot.  Was he there for a hearing?  Was he just parking there?  Who knows.  But what I do know is that he rammed through a control arm parking gate and, according to the car's black box, hit the victim at 53.4 miles per hour.  To reiterate:  He hit that speed in the parking lot.

Yeah.  You're going to get convicted for that.  Especially when you're under the influence of marijuana at the time and, once you're caught, a body cam shows you telling the officer:  "I just want to smoke some weed."

Probably not the best thing to say.

Anyway, in the future, be careful in a courthouse parking lot.  It might seem like a fairly safe place.  But apparently there's no such thing.

Kipp v. Davis (9th Cir. - Feb. 8, 2021)

You can't get any closer than this.

It's a death penalty case in the Ninth Circuit, so you know (or at least suspect) it's going to be (1) hotly contested, and (2) potentially result in a politically-splint judgment.  Which, indeed, happens here.

It's a fairly unique set of underlying facts, and those facts explain in part why the case went down as it did here.  Martin Kipp is accused of committing two different murders.  He gets tried for and convicted of both of them, and in both cases, he's sentenced to death.  He eventually files habeas petitions regarding both convictions, and those petitions eventually reach the Ninth Circuit.

Back in August, the single panel (1) affirms the denial of one habeas petition, thus leaving his conviction and death sentence intact, but (2) reverses the denial of the other.  So now Kipp is merely sentenced to be executed once rather than twice.

Judge Nguyen -- who was on the panel -- dissented from the opinion that granted the one habeas petition.  And a judge on the Ninth Circuit, predictably, requested a vote to take the case en banc.

Now, in a normal case, the state (here, California) would also file a petition to take the case en banc.  After all, it lost, and wants to execute the person.

But, here, there's already an intact death sentence.  For the other murder.  The state sees no need to have two death sentences.  Plus, the Attorney General doesn't think that the fact-specific nature of the panel's decision meets the en banc standards in any event.  So even though the Ninth Circuit expressly invites the state to file for en banc review, it files a brief that says, nah, the state doesn't think it's right and/or worth it to take the case en banc.

Now, that doesn't stop the court itself from taking the case en banc if it wants.  So the vote goes forward.  Albeit in light of the state's own view that it doesn't feel that en banc review is warranted.

And the vote is close.  Super close.  15-14.  Against taking the case en banc.

The line-up is largely predictable, albeit with a few -- telling -- exceptions.  Every Clinton and Obama appointee votes against en banc review, except Judges Nguyen (obviously) and Owens.  Something to remember, for sure.

That gets you 14 votes against en banc review.  But you need (at least) one of the Bush and/or Trump appointees to get you to 15, a majority.

Every Republican appointee votes for en banc review.  Except Judge Miller.

There's No. 15.

Judge Miller writes his own concurrence to explain his vote.  He says that he thinks that the panel was wrong on the merits -- stating that "Judge Ikuta and Judge Nguyen have persuasively argued" that the panel erred -- but that these errors were fact-specific and didn't meet the en banc standards, especially in light of the facts noted above.  And, interestingly, seven Democratic appointees join this concurrence as well.

There's another separate concurrence that responds to Judge Miller, but the vote's the vote.  In the end, Kipp only gets sentenced to die once.

Today's votes nonetheless give you some insight into both how closely the Ninth Circuit is split between left- and right-leaning judges, as well as how the votes of particular judges may be critical in the future direction of the court.  Overall, it's a razor's edge.  This is not your Ninth Circuit of a decade (or even five years) ago.  Much less the Ninth Circuit of the 1980s and 90s.

Manderson-Saleh v. Regents of the UC (Cal. Ct. App. - Feb. 5, 2021)

This is the kind of lawyer I do not want to be.

Overly long -- and only tangentially (but still) relevant -- backstory first.  It's 20-some years ago, and I'm a 2L interviewing for summer associate positions.  I grew up in Virginia, so my preference was to get a job in D.C.  Tons of lawyer jobs there, obviously.  And I was not worried about just "finding a job" at the time since I had just won the Harvard Law School's Sears Prize (awarded to the two students with the highest grades in the first-year class), so I my focus instead was on finding a job that I thought I would like and that "fit" me.  (I was ultimately successful in that objective, though not the way I had intended; I ended up splitting the summer with two firms in D.C., and discovered most definitively that neither one of 'em worked for me. But in the end it worked out just fine, and after clerking ended up at a place that was most definitely to my liking.)

So one of the places at which I interview is Arnold & Porter.  Nice, traditional D.C. firm.  Well-known.  I like the people I talk with there.  They seem to be very good lawyers, with nice personalities and tell good stories about their lives.  Great.

At the end of the day, I go to this one partner's office for one of the final interviews.  The first thing that I notice -- the thing that no one could help but notice -- is the huge pyramid of cigarette packs, about 8 feet or so high, carefully and deliberately stacked in a corner of the office as a display.  This guy's the tobacco industry's attorney.  And he definitely wants you to know that fact.  He's proud of it; it's high-paying, complicated work.  That's what he wanted to do with his life.

That's the instant I decided that there was no way I was ever working at Arnold & Porter.  It's not that I disliked the guy or thought he was evil.  Yep, everyone needs an attorney.  Regardless of what they've done.  It just doesn't need to be me.  I had a great conversation with the guy, never mentioned to him (or anyone else) my internal decision-making, and just turned down the summer job offer sub silentio once A&P made it.  No fight, no fuss.  It's just not the kind of lawyer I wanted to be -- or, honestly, even to have in a firm of which I was a part.  Not my cup of tea.  At all.

Today's case involves another dispute where I would most definitely not elect to be on one of the two sides.  It's not a sexual assault or toxic dumping or any of your "classic" types of cases where perhaps people have the usual reaction.  But it's one that struck me very solidly as something I'd want to have no part of whatsoever, even though I suspect the vast majority of attorneys would have zero problem representing either side in the thing.

It's a simple pension dispute.  One from San Diego, as it turns out.  There's a nurse who's living her life and working at UCSD.  He's an oncology nurse, in fact.  So she dedicates the vast majority of her days to improving the lives of those with cancer.  Works there for a long time.

In 2014, she discovers that she herself has cancer.  Which I'm certain was devastating for her.  She gets (I presume) the very best, most informed treatment, and for a while, it works.  But after a couple years, the cancer starts to get the upper hand.  And by April 2016, the game's all but over.  She knows she's going to die.  It's inevitable.

Since she's worked at UCSD for a while, she's got a pension.  So in April, knowing she's dying, she asks to retire from her job.  Which makes sense, since she's never going to work again -- she's simply sitting at home during her final days.  She's only got one family member -- her daughter -- so she wants the daughter to be the beneficiary of her pension.  Fine.  That's the way things work.  You die, the kids get your survivor benefits.

She's way too sick to fill out all the forms herself -- plus I suspect she's got tons of better things to do with her few remaining days -- so she fills out a power of attorney for her daughter.  Again, totally fine, and totally permissible.  Her daughter fills out the forms and sends 'em in.  Her employer, UCSD, has no problem with that.  It knows -- understandably -- that she's dying, and is totally willing to have the daughter with the power of attorney fill out the forms.  They all get sent in, and everything's good.

Then UCSD sends some forms back, and the daughter fills 'em out and sends 'em in.  Then UCSD sends some other forms, and the daughter again dutifully fills them out and sends them back.  Then on September 16, UCSD sends yet some more forms back to be filled out.  Everyone knows full well what the dying person wants; UCSD just keeps sending more and more forms.  Bureaucracy.  Fair enough.

Sadly, four days after UCSD sends their final forms -- around a full month after the whole paper-shuffle process commenced -- the cancer finally wins, and the mother dies.  The daughter grieves, does all the things you need to do when your parent dies, and six days after her death, returns the final form.

At which point UCSD says:  Screw you.  Because she died before the final form got turned in, we're not paying anyone a penny.  We're keeping the entire pension ourselves.  No one gets anything.  Ha!

The daughter eventually finds a lawyer, who files a claim for both writ of mandate and breach of contract against UCSD.  UCSD in turn finds a lawyer who convinces a court that, yep, even though it's crystal clear what the mother wanted, and filled out all the forms, since the final one in UCSD's lengthy bureaucratic process didn't get submitted until just after she died, her pension entirely disappears.

The Court of Appeal reverses.  There's a thing called substantial compliance.  And we don't even need a remand to decide whether that transpired here.  It did.  Pay the deceased woman's daughter her pension.

So, in the end, from my perspective, anyway, an equitable, just and happy result.

But there's zero way I'd have represented UCSD in this one.

Pay the pension.  Don't piggishly keep it.  It's not that you'll be wasting tons of money on legal fees and the like -- though you surely will.  It's simply the right thing to do.  She's an oncology nurse who earned a pension working for you and who died of cancer, for Christ's sake.  Just give her only daughter the freaking pension benefits to which the mother was entitled.  I care not in the slightest that the cancer killed your employee days before she was able to return the last of the innumerable forms you sent her.  You knew she was dying, you knew she was retiring, there's zero doubt who she wanted her pension to go to, and I'm sure she tried her hardest not to die before you sent her the last form.

Just give her the money.  Don't hire lawyers and mightily litigate whether this dying woman gets the pension that she earned for her decade-plus of work with you.  It's literally a relative pittance.  Pay it.  Don't keep the money she earned for yourself.

Does UCSD have a right to fight the thing?  Sure.  Is UCSD entitled to a lawyer?  Definitely.  Does UCSD have a non-frivolous claim?  Definitely.  It convinced the trial court (Judge Taylor, down here in San Diego, who's very bright but also definitely a stickler for details), after all.  And if UCSD wants to fight even though the lawyer recommends that they simply pay (or settle), yep, that's their right.

But I most definitely would not do it.  Whether on my deathbed or in my daily life, I don't want to spend my own days working mightily to make effective someone's desire to stiff the daughter of a dying oncology-nurse mother her pension benefits.

Your preferences may perhaps vary.  Not mine.  Not here.

FWIW.

P.S. - Happy birthday to my grandmother today.  She turns 99.  Though I suspect she'd be horrified if she knew I was disclosing he actual age. 

POSTSCRIPT - Someone reached out to tell me that the dispositive substantial compliance issue wasn't raised by the parties either below or in the Court of Appeal -- it was raised by the justices themselves, at which point the parties submitted letter briefs on the point.  I'm personally happy the Court of Appeal did so; it gets to the right result.  Though it's unfortunate that this issue wasn't raised earlier, since to me, it's indeed the dispositive legal principle.

People v. Clements (Cal. Ct. App. - Feb. 4, 2021)

There's wasn't anything from the Ninth Circuit (at all) or the Court of Appeal until late this afternoon.  But then out came this one.  Which recounts events that I definitely hadn't seen before in a published opinion.

And I've seen a lot.

Here's the first paragraph of the statement of facts:

"In January 1988, Clements and her ex-husband located the victim at a juvenile facility in New Mexico. Clements and the victim, who were brother and sister, had been separated during childhood. The three traveled some and eventually settled in Texas, during which time sexual relations took place between Clements and the victim, and between all three at once."

I'm fairly confident that it's a super bad idea to have a three-way with your sibling.  Fairly.

Mind you, I didn't expect that the consequences of these consensual events would be that the sister and the ex-husband killed the brother.  But, yep, that's what in fact went down here.

More proof that you can see something new every day.

Momox-Caselis v. Donohue (9th Cir. - Feb. 3, 2021)

It's only five sentences in the opening paragraph of this opinion, but it nonetheless consists of a densely-packed tale of depressing woe for everyone involved:

"Sergio and Maria Momox-Caselis are the natural parents of deceased infant M.M. The Department removed M.M. and her siblings from their home in 2013 based on long-term neglect by the parents. The County removed M.M. from her initial placement after receiving a report that the foster parents had abused another foster child, and it placed M.M. with new foster parents, Joaquin and Maira Juarez-Paez (collectively, the Juarez-Paez family). A few months after her new placement, M.M. died from an overdose of allergy medication administered by her foster father. Joaquin Juarez-Paez committed suicide shortly thereafter, and his suicide note stated that he had accidentally killed M.M."

My goodness.

People v. Collins (Cal. Ct. App. - Feb. 2, 2021)

This one certainly tugs at the heartstrings in different directions.

First, there's the horrible crime.  You're not at all sympathetic to the defendant:

"Dontrell Collins drove his car at nearly 100 miles per hour and collided into a vehicle carrying three young women; two of them died. A test of his blood revealed the presence of alcohol and phencyclidine (PCP). . . . California Highway Patrol Officer Boshers first noticed Collins’s vehicle and registered it on his radar at 95 miles per hour. Boshers made a “U-turn” to follow the vehicle but was unable to catch up. Multiple other people witnessed the same. One witness described Collins’s vehicle “driving really, really fast.” The witness saw Collins swerve and almost lose control. He believed Collins drove through a red light at over 90 miles per hour. Another witness estimated Collins’s vehicle was traveling about 120 miles per hour. The car was moving so fast it was “wobbl[ing] ….” The car drove straight through a red light with other vehicles at the intersection. Yet another person witnessed Collins’s vehicle speeding at “about a hundred miles an hour, jump[] up on the center divider, and then c[o]me down off the divider and r[u]n into the back of another car” that was slowing for a red light. The collision “caus[ed] both vehicles to explode,” engulfing the rear-ended vehicle in flames. Two young women died in the fire and a third survived but with serious, long-term injuries and anguish."

Oh, yeah, and (1) Collins' girlfriend "warned him not to drive 'high' on a near daily basis; (2) Collins had prior strikes and previously served time in prison, and (3) when asked by an officer how often he drove drunk, Collins responded: "Too many times."  Not good.

The Court of Appeal is (understandably) just fine with his substantive conviction for murder, but there's a Batson problem.  The prosecutor struck an African-American woman from the jury, and the Court of Appeal concludes that there's a decent reason to believe that it was on account of her race. 

Not good either.

Yet even here, one's heart -- and head -- may be tugged in two different directions.

After all, I can see lots of reasons why a prosecutor might not want this particular individual on the jury.  Here's what the judge and prosecutor said below:

"The court added, “[B]ased on the direct observations that the Court had in having the opportunity to question Ms. [S.], it did appear to the Court that not only based on her profession does she have some understanding of potential evidence that might be presented in this case, even though she can set it aside, but just as importantly, if not more importantly, she herself was prosecuted for petty theft, as she put it, when she was younger, and she also has cousins that have been incarcerated, two in particular, that she shared with us, one being a result of assaulting his or her mother and another for assaultive allegations.”

The prosecutor agreed with the court and added, “[S]he indicated that one of her relatives … was convicted of charges as a result of an assault that resulted from what she termed a mental breakdown, which is psychologically similar, but not the same situation as the defense is arguing in this case.” He also noted that “prospective juror number one [was] also African-American and the People accepted the panel with her on it.”"

Okay.  You can see why this might not be the most pro-prosecution juror in the universe, right?  If only due to the prior criminal prosecution against her plus the experience of her relatives with the criminal justice system.

On the other hand, take a look at other jurors who the prosecution accepted on the jury:

"Juror 4237967’s brother was arrested for a crime. . . . Juror Micheal B. himself was involved with a crime. He answered he was convicted and the case was dismissed. . . . Juror Betty B. had two sons with cases involving DUI charges. One of her sons was twice imprisoned. She believed she could set aside their experiences and serve fairly as a juror. Juror 4301270’s stepson was arrested once. Her own son was convicted of a DUI by plea. She formed no opinion on whether they were treated fairly and could set their experiences aside and serve impartially. . . . Juror 4552487 was previously convicted of a DUI. . . . Juror John V. himself was convicted of DUI by plea. . . . Juror 4462349’s parents were involved with a crime."

Well, now.  Somewhat hard to distinguish the juror struck from the ones left on.  Or at least there's no explanation for it on the record below.  Which the Court of Appeal thinks might well suggest that the real difference was the color of the relevant juror's skin.  So the case gets remanded back to the trial court for more factfinding  Because, yes, Mr. Collins did a terrible, terrible thing.  But that's not the be-all-end-all in our criminal justice system.  The process needs to be fair also.  Including but not limited to not being discriminatory.