Thursday, April 29, 2021

People v. Powell (Cal. Ct. App. - April 28, 2021)

This opinion by Justice Murray is eminently notable for a variety of non-substantive reasons.

First, it's incredibly long.  I mean:  LONG.  It's not just that it tops out at 95 (!) pages.  But it's also intensely detailed and -- with respect -- a bit plodding.  The statement of facts alone consists of over 25 pages of text; longer than the entirety of most opinions.  When you're done with that, you've only got 70 or so pages of legal and factual analysis to slog through.  Whew.

Second, Justice Murray refers to many of the individuals in the case by their initials.  So throughout the 90+ pages of text you've got to keep from mixing up J.P., J,D., J.S., T.B., S.H., and T.G. (plus anyone else whose initials I can't happen to recall right now), as well as all the other various named participants.  (It doesn't help that lots of the main players in the opinion have initials that begin with "J.")  To take but one example from the opinion, here's one representative paragraph:  "Thereafter, Langlois, Powell, J.D., J.P., and T.B. left the Papaya Drive house in T.B.’s Volkswagen bug. T.B. was driving, J.D. was in the front passenger seat, and Powell, J.P., and Langlois were in the back seat. J.D. told T.B. where to go."

That's a lot of initials for any opinion.  Particularly a 95-pager.

I get why Justice Murray does this. California Rule of Court 8.90 asks courts to "consider" using initials (or first names and last initials) for victims in criminal proceedings, and the California Supreme Court and Style Manual make similar suggestions for minors and victims of sex crimes.  But this isn't a sex crimes case, and for lots of the victims here, I'm not sure it really matters if they're named.  At the very least, I'd have used first names and initials to try to make things clearer, particularly given the length.  This might be a good example of an opinion in which the best of intentions ends up going overboard, and at the expense of readability.

Third, Justice Murray does something with one of the initials that I think I've seen before, but that's undoubtedly rare.  One of the initials -- "J.D." -- is made up.  It stands for "John Doe."  That's not the person's name (or initials), but Justice Murray explains that he's using those initials because "Doe" took a plea deal and testified for the prosecution, and is now incarcerated.  In short, he's a snitch, and Justice Murray is worried that referring to him by his name might potentially result in harm to him in prison.

Okay, I get it.  Again:  Great intentions, no doubt.  But I'm not really sure that using his actual initials would have ratted the guy out; they're not unusual (e.g.,, "X.Z.") or anything.  Or, at a minimum, if we are calling the guy Doe, maybe just call him "Doe" rather than "J.D." -- particularly given all the other "J." initial people in the opinion.  I get the "consistency" point, but this one cries out for an exception.

Plus, honestly, I don't really think there's really much utility here.  This was a murder case, and one that was reported in the press a fair bit.  (The murderers accidently killed the wrong guy, so it was one that's a bit memorable, even if not particularly high profile.)  Anyone who cared even in the slightest could easily find out the real name of "J.D." in about ten seconds from any of the numerous published press stories about the murder and/or prosecution.  So, yes, "J.D." will be in prison until at least 2037, and we don't want extrajudicial "justice" dispensed therein.  But I'm not sure we're really accomplishing much by calling him a "Doe" and adding yet more initials to the puzzle.

Finally, particularly given all the dizzying array of initials (alongside the full names of a huge number of participants), I found one decision by Justice Murray to be fairly unsupportable.  It's a murder case, which means (by definition) that someone was killed.  Yet Justice Murray doesn't mention the victim's name even once.  Or even use initials.  He's simply referred to as "the victim".  Period.  A reference that appears over a hundred times in the opinion.

That's not right, IMHO.  The victim is dead.  He's not going to be harmed by mention of his name.  If anything, his name deserves mention, because he's a person, and he's gone.  So no initials.  Full name.  Out of respect for the dead.  

And that's not just my rule, either.  The California Supreme Court has issued a clear policy statement to the appellate courts that "Anonymity . . . is inappropriate for homicide victims, who are to be identified whenever possible."  Even before this -- as one of my astute readers once wrote to me -- "[t]he ironclad rule forever was that murder victims must be named in court opinions, if for no other reason than to give them dignity."  

True that.

The victim's name was Jack Swaim.  I understand why Justice Murray leaves it out, since the opinion repeatedly refers to the victim's son as "J.S." -- so if you know the victim's name is Jack Swaim, you know that the "S" stands for "Swaim" and can probably figure out that his son Jimmy is the "J.S." in the opinion in short order if that's what you're looking for.  (Plus, if you refer to the victim as "J.S.", then there are two J.S.'s in the opinion, which is even more confusing than the thing is already.  Following Justice Murray's reasoning, maybe you could then refer to the son as "John Roe" and use "J.R." or something, but see how crazy this is getting?)

But, again, while I understand the intent, if it's me, I'm definitely naming the victim.  As I do in this post.  It's more readable that way as well as infinitely less impersonal.  Mr. Swaim's last words appear in the opinion; so should his name.