Warren v. Merrill (Cal. Ct. App. - Sept. 21, 2006)

Those readers who live in Los Angeles: Take Heed. Do not use Hildegard Merrill (d/b/a Calabassas Realty) -- the self-described "Condo Queen" of the San Fernando Valley-- as your real estate agent. Because, well, yikes.

To use Justice Johnson's (understated) words, the buyer, John Warren, "had all sorts of problems," including Tourette's syndrome, failing faculties, a failing business, a terrible credit rating, and a pending divorce. But he nonetheless wanted to buy a condo, and went to an open house where Ms. Merrill was the agent for the seller.

Ms. Merrill first persuaded him to buy the condo. Fair enough. She then persuaded him that he could not get a mortgage at a reasonable rate, and suggested that because her daughter had okay credit, he should list her as a co-borrower and "technically" buy the house with her, at which point the title would be transferred into Mr. Warren's sole name. Uh, that's fraud. But okay, I guess. If you say so.

But instead of using her daughter asa co-borrower, Ms. Merrill decides to list her as the sole borrower. And, when Ms. Merrill fills out the loan forms for her daughter . . . . well, let me have Justice Johnson tell the story:

Through Charmaine’s and Merrill’s testimony it became apparent Merrill misrepresented the facts when she filled out Charmaine’s loan application. For example, Merrill stated the source of the proposed $77,000 down payment was a combination of savings and gifts [when, in fact, most of it actually came from Warren, and the rest came from her mother] The application stated Charmaine then resided in a condominium at 5800 Kanan Road in Agoura Hills, conducted catering and shuttle businesses out of the residence on Kanan Road, and had been doing so since 2001, earning a monthly income of $7,500 from those businesses. In reality, Charmaine had resided for years in Aspen, Colorado and had never lived at or conducted a business out of the 5800 Kanan Road residence. Also, the businesses Charmaine purportedly conducted had shut down sometime in 1990. Charmaine was instead employed as a waitress in Aspen, Colorado and periodically conducted her shuttle business there. She otherwise relied on her mother for support. Although Merrill indicated on the loan application Charmaine intended the condominium to be her primary residence, the parties’ plan all along was for Warren to live in the condominium instead. As Merrill later conceded in her testimony, she would never have gotten the loan had she been truthful in the loan application. [Footnote]:
The trial court was so alarmed by Merrill’s testimony and her apparent lack of concern about admitting she had committed a form of fraud on the lender, the court recessed the proceedings to permit Merrill to consult with counsel regarding her Fifth Amendment right not to incriminate herself."

Wow. But that ain't all. Then Ms. Merrill bribes her daughter's boyfriend to serve as a middleman to launder the down payment, and has Mr. Warren pay him $2,000 for these services. Then Ms. Merrill steals $6,000 from Mr. Warren by failing to mention that the seller contributed $6,000 to closing costs. Then Ms. Merrill doesn't even put the property into Mr. Warren's name as promised, and instead convinces Mr. Warren to put the property solely in the daughter's name. Then, when Mr. Warren has substance abuse problems and has to go to the Betty Ford clinic, Ms. Merrill evicts him, rendering him homeless and sleeping in the streets. Oh, she also takes all his property in the condo and puts it either into storage or in her own garage, and won't give it back to him; indeed, may even have bought it herself at a "lien sale" in which she was the successful (and likely only) bidder!

Anyway, the trial is a bench trial, and the judge (Judge Kaplan) concludes that Ms. Merrill is a total liar and that there is clear and convincing evidence that she deliberately defrauded Mr. Warren. Judge Kaplan issues an award of $15,000 in noneconomic damages, orders the defendants to transfer the property to Mr. Warren, and imposes punitive damages of $50,000 against Ms. Merrill. (Ms. Merill subsequently stipulates to return Mr. Warren's personal property in return for a dismissal of his conversion and other claims relating to these items). Oh, one more thing. Judge Kaplan awards Mr. Warren his costs and attorney's fees as well.

Does Ms. Merrill sound like the real estate agent you want to have representing you? No, thank you. I'll stick with someone at least marginally reputable, thanks.

I can summarize the final dozen pages of the opinion very quickly. Ms. Merrill appeals. Justice Johnson -- entirely properly -- affirms. And awards Mr. Warren costs on appeal. End of story.

Oh, one last thing. Mr. John Warren? He's the grandson of Earl Warren, former Governor of California and Chief Justice of the United States Supreme Court.

Pretty freaky, eh?

Border Business Park, Inc. v. City of San Diego (Cal. Ct. App. - Sept. 19, 2006)

I'm conflicted about this one.

My conflict doesn't arise, as is typically the case, from an uncertain view of the merits. But, unusually, I'm conflicted about this one instead for utterly results-oriented reasons.

On the one hand, I'm a citizen of -- and, perhaps more importantly, a taxpayer in -- the City of San Diego. As a result, I've got to say that I'm pretty happy that Justice McKinster decided to reverse a huge judgment that the De La Fuente family obtained against the City of San Diego. Huge as in $65.3 million in compensatory damages, $26.4 million in prejudgment interest, and probably another $20 million or so in postjudgment interest. In other words, over $100 million. Plus Justice McKinster affirms the grant of a new trial regarding a related breach of contract claim in which the jury awarded the De La Fuente family another $29.2 million, which (again) would probably be $40 million-plus after interest.

The City has massive financial problems as it is. The last thing we need is to have to pay a $140 million+ judgment. Which it looked like we might well have to do; indeed, the City already offered to settle the case (alongside similar, related claims) for $50 million. But now those essentially all go away (or at least the meat of the cases) in light of Judge McKinster's holding that there was insufficient evidence to support a judgment, essentially holding that these sorts of claims are not cognizable. Whew!

On the other hand, at a different -- again, entirely personal -- level, I'm also a member of the faculty at the University of San Diego School of Law, which has a very tight connection to the counsel for plaintiff in this matter. Two of these attorneys -- Michael Fish and David Niddrie -- are graduates of USD Law School. And one of the (recently retired) named attorneys of the principal law firm for plaintiff -- Thorsnes, Bartolotta & McGuire -- is not only also a USD Law graduate, but is also a very strong (and admired) supporter of the institution.

The contingency fee on a $140 million+ judgment would have been a pretty penny. Even the fee on the $50 million+ settlement offer would have been darn nice. But then there's Justice McKinster's opinion. Darn it.

So there you have it. The City of San Diego is up $140 million+. Plaintiffs' attorneys whom I like are down $50 million+. For me, a mixed bag.

P.S. - One more tangential comment. With all due respect, California appeals are somewhat different. Counsel for plaintiff retained an incredibly smart consultant -- Professor Geoffrey Hazard of the University of Pennsylvania Law School -- to assist with the difficult civil procedure and other issues relevant to the appeal. Which is wise, especially for an appeal of this significance.

But, that said, legal disputes on appeal in Southern California are slightly different than what they may appear to be from the perspective of someone who resides in an ivory tower in Philadelphia. Not that there wasn't plenty of intellectual and local appellate firepower on the plaintiff's side already; after all, both Mr. Fish & Mr. Niddrie are certified appellate specialists. Still, in the end, hiring Professor Hazard -- at no small cost, I can assure you -- was money down the drain.

Sorry about that as well, guys. (At least you knew this was coming, since Division Two gives tentative rulings. Still, I'm sure it's a bummer to see it actually happen.)

People v. Matye (Cal. Ct. App. - Sept. 19, 2006)

I'm not as young as I once was. (That said, who is?) Accordingly, I don't always know the latest terminology.

Much less am I routinely cognizant of whatever hip street terms the kids are using these days. Though I can use the word "cognizant" in a sentence. Which has to count for something, right?

Regardless, I love learning new stuff in judicial opinions. They're a font of information, and often in areas you don't necessarily anticipate.

Like here. Until I read this opinion, for example, I didn't know what a "bag whore" was. It's just not a term with which I was familiar.

Fortunately, Justice Scotland helpfully explains that a "bag whore" is "a person involved in sex and drugs". (More accurately, I think, it's someone who trades -- formally or otherwise -- sex for drugs.) Which makes sense, once you think about it. I just had never heard the term used before. Now I have.

It turns out, by the way, that unlike many phrases, the term "bag whore" hasn't been used that often. At least in judicial opinions. So, for example, I could only find a single other case that has ever used the term. Justice Callahan used that phrase back in People v. Leonard in 2002. And Justice Callahan defined the phrase a bit less delicately -- and probably more accurately -- than Justice Scotland, and explained that a bag whore was someone who "was prostituting herself to make money for drugs."

But, other than that, no other references to bag whore. Contrast that discussion, by the way, to other -- more familiar -- euphemisms. So, for example, "motherf***er" appears 1317 times. Though that term is fairly self-explanatory, no? Or "crack whore", used 21 times. Or, more unusually, "gutter slut", used twice. (I especially liked the colorful use of that term in an opinion from the Supreme Court of Virginia, rendered just last week, in which the defendant wrote the prosecutor, among other things: "[F]**k you, you fat, c**ksucking, c*m guzzling, gutter slut. I guess I'll see your b*tch ass on Dec. 18 at trial because I'm not pleading to sh*t." Nice. )

But, unlike these terms, California has an exclusive patent on the term "bag whore". Only used twice, only in California, and only in the 21st century.

California. We lead the nation. In bag whores and in so, so many other things.

Klein v. San Diego County (9th Cir. - Sept. 18, 2006)

Sounds right to me.

I'm generally in favor of free speech. (Mighty big of me, eh?) So I'm hesitant to uphold statutes that limit it. Especially, as here, as regards core First Amendment speech in a public forum.

That said, Judge Pregerson's opinion convinced me that San Diego's ordinance that categorically bans targeted residential picketing within 300 feet of a residence is a constitutional time, place and manner restriction. Or, to put it more accurately, that this statute is not facially unconstitutional.

I admit that I was somewhat disinclined to adopt such a conclusion prior to reading his opinion. Moreover, wholly beyond my initial intuitive reaction, not only did the Supreme Court in Madsen strike down a similar 300 foot residential picketing rule (though that one was an injunction, not a statute, and was directed solely towards anti-abortion protesters), but several other courts have struck down more permissive statutes than San Diego's (for example, the Eighth Circuit struck down a 200 foot residential picketing statute in Kirkeby). So I wasn't the only one who might have initially viewed the San Diego statute with suspicion.

But that's just a testament to how powerfully Judge Pregerson writes. This opinion isn't bombastic, it's not polemic, and it's not distorted or one-sided. It's a very moderate, measured opinion, and that may well be (at least in part) why I found it so persuasive.

In the end, Judge Pregerson persuades me that my initial reaction was probably wrong. And, especially on sensitive constitutional issues such as these, that ain't a particularly easy thing to do.

A great opinion.

Comer v. Schriro (9th Cir. - Sept. 13, 2006)

This is a fascinating opinion. But it's also one that probably won't be around that long. So read it while you can -- or, at least, while it's still good law. Which may not give you that much time.

It's a death penalty case. It also involves a "volunteer"; in other words, an inmate who wants to die.

Normally, those appeals get dismissed and the sentence carried out. But the court here not only decides to adjudicate the merits, but also grants relief, and reverses the imposition of the death sentence on the merits.

Perhaps most interesting is why the court reverses the death sentence, as it does so on the ground that the circumstances of its imposition "shock the conscience" -- something that you definitely don't see every day. But, then again, neither do the facts, of which I'll give you only a brief taste: "We hold that Comer’s sentence was invalid and hereby grant the writ of habeas corpus based on the violation of Comer’s due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted."

Sounds like something worth reading, huh? Here's another taste: "Comer was presented to the sentencing court not only in shackles, but nearly naked, with only a blanket covering his genitals, and slumped to one side in a wheelchair with blood oozing from his head wounds." Oooh!

The case is definitely unusual, which is, I think, in large part why the court reaches this (fairly unusual) result. You don't see these kinds of facts in a lot of cases.

Oh, yeah, maybe -- just maybe -- the composition of the panel might have had something to do with it as well. The panel consists of Judges Ferguson, Pregerson, and Rymer. If you can't figure out which one of these three dissents -- pretty darn strongly -- I'm sending you back to Ninth Circuit school. Immediately.

Anyway, as I said, for better or worse, I don't think this case has staying power. The majority may perhaps be right that, doctrinally, this case may be different than the previous volunteer cases. And, sure, on the merits, some of the facts of the case are both unique and bad. But, on the other hand, as for procedural bars, he's still a volunteer. And, on the merits, he was sentenced by a judge, not a jury, and we generally aren't as worried about prejudical effects on the former.

So, in the end, I think that either the Ninth Circuit will take this one up en banc or the Supreme Court will grant certiorari and reverse, either procedurally or on the merits (or, very potentially, both). Is the case worthy of certiorari? Probably not, particularly given its very unique factual and procedural setting. But, notwithstanding that fact, the opinion is a classic example of the "crazy" Ninth Circuit liberals running amok. And the Supremes don't like that. Trust me. They don't.

Still, a fascinating opinion while it lives.

Grassilli v. Barr (Cal. Ct. App. - Sept. 13, 2006)

Think that organized police harassment of and retailiation against private citizens doesn't happen? Especially in San Diego? Ever wonder what it would look like if it did?

If so, read the first eighteen pages of this opinion. It's a fairly chilling tale of the organized, five-year police harassment and abuse of Steven Grassilli, a resident of and small business owner in Santa Ysabel, by various members of the California Highway Patrol. It's a deeply disturbing story, and the fact that Mr. Grassilli ends up -- after five more years of litigation -- winning a lawsuit against the defendants for violating his civil rights only partially makes up for the wholesale abuse of govenmental police power in the first place.

Two other tangential points. First, interestingly, although she admits that the defendants' conduct was highly reprehensible, and also affirms the jury's actual (compensatory) damage awards that total $500,000, Justice Haller simultaneously reverses the jury's $4,000,000 punitive damages award as constitutionally excessive. Such an award, which involves an 8-1 ratio, would facially seem permissible. But not only does Justice Haller hold that it's constitutionally excessive, but further holds that the maximum permissible punitive damages award would total $55,000 -- in other words, that a ratio of appoximately 1-10 would be the most allowed by the Constitution!

This is a fairly novel holding. Although I appreciate (and agree with) her view that the salary of the individual defendant is relevant to the permissible amount of punitive damages, I'm not at all sure that I agree that when a defendant deliberately and repeatedly abuses his power to violate critical constitutional liberties (and also causes a half-million dollars in actual damages), the Constitution definitively says that the defendant can -- at the absolute extreme -- only be ordered to pay six months of his salary in punitive damages. That just strikes me as a bit wrong.

Less importantly, on page nine of the opinion, the word "citation" ends in an n. Let's catch those typos in published opinions, my friend.

An interesting opinion, to be sure.

Martinez v. Superior Court (Cal. Ct. App. - Sept. 12, 2006)

Ah, I love our political and democratic process. So pristine. So pure. So pretty.

On November 7, 2006, the voters of Los Angeles get to decide whether to adopt Measure R. Measure R does a number of different things (which is deliberate, in part in order to obscure its central function), but the most important -- and controversial -- portion of the measure is to increase from two to three the number of terms that a city councilmember may permissibly serve. So it basically waters down term limits by 50%.

Who passed this proposed amendment to the city charter for submission to the voters, you might ask? The city council, of course. So the've basically proposed to increase their own ability to get reelected.

Which is fine. If that's what the voters want, that's what they should get. No one disputes that fact.

The only issue in this case is how we're going to describe this measure on the official, nonpartisan ballot summary distributed to voters. You may then further inquire: Who's in charge of preparing this official summary, which is required by law to be neither false nor partisan to one side? You'll be happy to know that the answer is: the City Council.

So the L.A. City Council decides that the neutral way to summarize this measure, which (again) increase the length of the permissible term of city councilmen, is to describe it as follows: "COUNCIL MEMBER TERM LIMITS OF THREE TERMS. . . . Should the Charter be amended and ordinance adopted to [] change Councilmember term limits to three terms. . . ."

Now, that's pretty darn neutral, huh? There's no way anyone's going to read that and think that the measure imposes terms limits, right? Nah. That's not at all what the City Council is doing. They're really trying to be fair and impartial. They could have said: "LENGTHENING COUNCIL MEMBER TERM LIMITS. . . . Should the Charter be amended and ordinace adopted to [] lengthen Councilmember term limits to three terms." That'd be a ton, ton clearer, right?

But, nah, the City Council says: "I like it the way I wrote it. I like not mentioning that we're increasing the term limits; indeed, to instead imply that we're actually imposing term limits. That's totally neutral and nonpartisan. That's how I'd write it if I was totally disinterested in the outcome. I promise. It's a totally neutral description, as required by law."

When an interested voter files suit to change the official ballot summary, the trial court, Judge O'Brien, laughs off the City Council's purported justification and orders the ballot summary changed to the neutral language referred to above. But Justice Rubin, in this opinion, grants a writ and reverses the order, holding that the language adopted by the City Council is indeed neutral and nonpartisan as required by state law.

What a pretty picture. As exemplified by this case, I'm so, so pleased with our democratic process.

It's as pure as the driven slush.

Jorgelina E. v. Superior Court (Cal. Ct. App. - Sept. 12, 2006)

Listen to these facts from an opinion (and child's death) down here in San Diego:

"Jorgelina lived with her boyfriend, Enrique, their baby daughter, Stephanie, then age 10 months, and her son Jorge, then age 6 years. The household also included Jorgelina's sister, Alma V., and Alma's daughter, Dayanara, a 22-month old toddler. On the afternoon of December 14, 2005, Alma was home with Dayanara; Jorgelina was away from the home at work. At approximately 3:45 p.m., Alma left the home on an errand,
leaving Dayanara with Enrique, Jorge, and Stephanie. At 4:09 p.m. Enrique telephoned Alma on her cellular telephone and told her Dayanara had fallen off a bed and was hurt. Alma immediately returned home and found Dayanara limp and unresponsive. Alma and Enrique took her to the hospital.

When they arrived at Children's Hospital, Dayanara was in cardiac arrest. Doctors placed her on life support and determined she was suffering from a skull fracture, severe brain trauma, a ruptured pancreas, and extensive internal bleeding. She had a number of bruises on her body. On December 15, 2005, after a neurosurgical evaluation confirmed there was no hope for recovery, medical personnel removed life support systems and Dayanara died.

The medical examiner listed Dayanara's death as homicide caused by blunt force trauma to her head and abdomen. Police arrested Enrique and charged him with first degree murder, assault on a child causing great bodily injury and felony child abuse. Enrique denied hitting Dayanara but admitted she was injured while in his care. He said he disciplined the three children by placing hot chili peppers into their mouths and did the
same to Jorgelina and Alma when they objected to his treatment of the children. Enrique acknowledged he previously hit Dayanara with a small horsewhip and his bare hands and, at another time, placed her in a cold water bath until she turned blue. He admitted sexually abusing Alma."

Depressing, huh?

Plus, here's the lingering (and pending) question: What you do you do with the other kids at this point? Do you take them away from the mother? (The boyfriend is obviously out of the picture at this point, and will be in prison for an indefinite period.) Section 300(f) allows the court to take away the children if "the child's parent . . . caused the death of another child through abuse or neglect." The mother says -- and assume you believe her -- that she was (substantially) unaware of the ongoing abuse, but simultaneously admits that she knew about some of it (for example, after the boyfriend horsewhipped some of her children, she objected, and thereafter hid the horsewhip).

Does doing nothing (or little) to stop her boyfriend's abuse justify/authorize the court to take the children away from their mother? What are the best interests of the children? What rights does/should the mother have? Can you take away children because a parent has somewhat tried, but has been partially unsuccessful, in preventing their abuse, and that abuse and previously led to a child's death?

The trial court (Judge Kelty) takes the kids away. The Court of Appeal (Justice McDonald) reverses.

A tough case to read. And even tougher case, at least in my mind, to decide.

Wilson v. Merritt (Cal. Ct. App. - Sept. 12, 2006)

Listen to what Justice Moore says in this opinion regarding the defendant's claim, in this medical malpractice action, that the trial court properly granted summary judgment on the basis of causation because the plaintiff would (allegedly indisputably) have undergone the operation even had he been informed of the relevant risks:

"A jury reasonably could determine that an adult paraplegic who was suffering some problems with stiffness and flexibility, but was functional in his then current condition, who was seeing some improvement in his condition through physical therapy, who had suffered devastating damage from surgery in the past, and who was so concerned about the potential risks associated with the recommended procedure that he took his mother with him to question the medical doctor on the topic, would indeed turn down the opportunity for the procedure if informed that it could result in a loss of his remaining mobility due to a torn rotator cuff or a fractured bone. . . . [T]here is an order of magnitude in the difference in the quality of life of a paraplegic, who is at least able to get to the toilet by himself, and that of a functional quadriplegic, who cannot
even to that. We reverse and remand."

Sounds right to me.

Kesser v. Cambra (9th Cir. - Sept. 11, 2006)

The makeup, and result, of this en banc panel is darn interesting. It's one of the last 11-member en bancs, as the Ninth Circuit went to a 15-member panel starting January 1, 2006 (and this case was argued on December 15, 2005). (The Ninth Circuit will allegedly evaluate the 15-member composition after two years; however, I can already tell you now that there's no chance they'll go back.)

The panel draw was also statistically interesting. The Ninth Circuit, as you know, tilts 16-10 towards judges appointed by Democrats, and it was 16-8 -- two-third Democrats -- when this panel was drawn. However, the panel drawn for this criminal habeas case was a 7-4 Republican majority, and that's even after the automatic inclusion of the chief judge (the Carter-appointed Judge Schroeder). So the random draw pulled both Reagan appointees (Kozinski and O'Scannlain), both Bush I appointees (Rymer and Kleinfeld), and three-quarters of the existing Bush II appointees (Bea, Bybee and Callahan), while pulling none of the Carter appointees and only three of the thirteen Clinton appointees (Wardlaw, Paez, and Berzon). Statistically, that's both highly unlikely and very interesting. Moreover, from a practical perspective, if you're the defendants in this criminal habeas case -- which challenged the California prosecutor's allegedly race-based use of peremptory challenges -- you've got to be totally crying in your beer once you hear the panel. Meanwhile, in the California Attorney General's Office, the announcement of the panel had to have been cause for rousing cheers and multiple high-fives.

Finally, perhaps most interesting -- particularly in light of the above -- is the result. The defendant wins, and the panel reverses the murder convictions on a 6-5 vote. As probably expected, especially given the facts of the case, the defendants win all of the four Carter appointees. But they also win Judge Kozinski as well as, in a somewhat surprising outcome, Judge Bybee. The rest of the Republican appointees dissent.

What's perhaps most fascinating about this case is to ponder whether the panel composition actually made a difference -- if only at a low (and perhaps subconsious level) -- to Judges Kozinski and Bybee. Particularly in light of the swirling controversy about potentially splitting the Ninth Circuit. To my knowledge, there has never been a successful full-court en banc call. But had this case gone the other way -- had Judge Kozinski and/or Judge Bybee gone the other way -- I think there'd have been a serious possibility that this case would have been the first. Because I have no doubt how it would have come out had the entire court reviewed the matter.

Given those facts, I can't help wondering whether the result in this case wasn't altered on several different levels by the composition on the panel. It's a really intriguing case study, and so definitely worth mention.

People v. Smith (Cal. Ct. App. - Sept. 7, 2006)

Read the ten paragraphs that begin on page three of this opinion and see if you aren't happy that Curtis Smith will spend the next twenty-plus years in prison. His domestic assault on his spouse was truly a chilling and vicious crime.

Sure, Smith was clearly out of his mind at the time. But still. You gotta be put away -- for a long, long time -- when you do something like this.

Sass v. California Board of Prison Terms (9th Cir. - Aug. 31, 2006)

Slim, slim pickings today.

The Ninth Circuit published only two opinions today. The first, Feibusch, involves an incredibly fact- and contract-specific analysis of whether the disability benefits of a particular administrative assistant who allegedly was injured and could no longer type were properly terminated. Fascinating.

The second, Verizon California, consists of 29 single-spaced pages dedicated to the eye-poppingly boring issues surrounding whether, and to what degree, Verizon California is allowed under the Telecommunications Act of 1986 to collect call origination charges for internet-bound and pager calls (and calls that appear to the customer to be made within a local area code but in fact are not) as well as whether Pac-West is entitled to reciprocal compensation for "Virtual Local" or "VNXX" traffic. My goodness. I'm sure that someone cares, deeply, about these issues. But not me. I could barely keep my head off the desk as I struggled to avoid taking a nap and (mercifully!) reach the end of the opinion. ("Affirmed in part and reversed in part" was really all I needed to hear.)

Meanwhile, the California Court of Appeal has been utterly no help. They haven't published a single opinion today; moreover, the California Court of Appeal and the California Supreme Court have published a grand total of two opinions since September 1. As a reminder, it's now September 7. Let's pick up the pace, my friends.

So, in light of the foregoing, I decided that rather than remain silent today, I'd instead both (1) insult the various participants (done!), and (2) write briefly about an opinion on August 31st that I didn't previously have the opportunity to mention. And (2) is really just a shorthand for (3) insult my old boss.

Okay, so "insult" would be a strong term. How about "mildly disagree with"?

The underlying case is at least a tiny bit interesting, and is about whether Brian Sass should get out of prison on parole. He was convicted in California in 1988 of second degree murder because he killed someone when he was driving while intoxicated, and was sentenced to 15 years to life. So now his 15 years are up (and he even gets a fair amount of time off for good behavior) and he's trying to get parole. But the parole board keeps repeatedly denying him parole, and he files several habeas petitions alleging that's not right, arguing that he's no longer a danger to society nor was his offense unusually cruel. But the district court denies the petition and the majority opinion, written by Judge Goodwin, affirms.

What's most interesting about the case, however, is Judge Reinhardt's dissent. It's classic Judge Reinhardt, and is one of those cases that he's clearly very into -- indeed, that I'm quite confident he was more and more into with every one of the (very many!) drafts that I'm certain were prepared. It's one of those dissents that utterly slams the members of the majority opinion and that, while ostensibly doing so respectfully, is both ruthlessly hardhitting as well as very easy to take personally. It's worth reading the whole dissent, because this is a perfect example.

Alternately, if you're (somewhat) lazy, you can also get a brief glimmer of what I'm talking about from the last two sentences of the dissent. Which read as follows: "Regretfully, I conclude that what the majority has produced is a decision without a rational foundation or a legal justification. I firmly believe that one day my colleagues, who are both able jurists, will come to recognize and regret the erroneousness of their decision and the injustice it perpetuates."

The first sentence is an entirely accurate recitation of his beliefs, and he really does think that the opinion is utter crapola and doesn't even attempt to justify its findings. Whereas the second sentence is classic Judge Reinhardt.

With due respect to my former employer, I'm quite confident that Judges Goodwin and Hawkins will -- notwithstanding what Judge Reinhardt says -- never recognize the alleged errors of their ways and regret their decision. They think the decision is right. They continued to think it was write even after reading the dissent, and almost certainly always will. It's not that they lack compassion, or intelligence, or that they're temporarily confused and mistaken. They just disagree.

Sure, in a way, it's somewhat kind to say -- and really believe -- "I think you guys are great, and really do think that you'll come to see the error of your ways in this particular case eventually." But in another way, such an attitude can easily be taken as condescending.

See what you think. It's an opinion, and dissent, that's a lot more interesting than the snoozers that came out today!

U.S. v. Washington (9th Cir. - Sept. 6, 2006)

It's almost like a bad joke. Eric Washington gets convicted of bank robbery. He's got no priors as an adult, so (under the guidelines) he's looking at 41-51 months in prison. But the district court includes his juvie priors to increase his criminal history to category V, which results in a sentence of 77-96 months.

What are the juvenile convictions for, you might ask? Why does he get 3+ extra years in prison? Well, for, among other things, stealing candy from a baby. Or, more accurately, stealing candy from fellow children when Washington was nine years old.

Judge Hug, however, says: "Uh, I think not." If only because you don't have a right to a jury trial in juvenile court. So he remands for resentencing. (Plus, throwing someone in the clink for an extra three years because, among other things, they stole candy from children when they were nine years old seems totally harsh.)

Still. Stealing candy from a baby. It reads like an absurd law school hypothetical. And yet it's all too real.

In Re Tobacco II Cases (Cal. Ct. App. - Sept. 5, 2006)

Sorry, California smokers. You took it on the chin. Again.

Not surprising, I know. But in this opinion, Justice McConnell affirms the refusal to certify a class of California smokers who sought to bring class claims under the unfair competition law regarding allegedly misleading marketing and advertising activities by the defendants (e.g., "lights", "low tar", "all natural", and "no additives") in California.

Sorry, Justice McConnell says. She holds that Judge Praeger -- down here in San Diego -- correctly ruled that because Proposition 64 was retroactive, and hence required members of the class to show reliance upon the allegedly misleading statements, the common claims don't predominate over the individual claims, and hence class certification was inappropriate. So smokers can sue individually. Which means, of course, that -- in fact -- no one will sue at all.

As a random aside, especially in this season of law firm hiring, the composition of the attorneys are worth at least brief mention. Want to become an associates at a major law firm? Why not join Munger Tolles, which represents Phillip Morris? Or Jones Day, which represents Brown & Williamson. Or DLA Piper, which represents Lorillard. Or -- and this is my favorite -- Loeb & Loeb, which represents The Council for Tobacco Research.

Ah, my dream jobs. Damn me for leaving private practice.

People v. Nelson (Cal. Ct. App. - Aug. 31, 2006)

I think that Justice Scotland gets this one right. It's admittedly difficult to defend yourself against a murder charge for something that happened 26 years ago. As a result, sometimes, we shouldn't allow such belated prosecutions.

But when the reason you're eventually charged is because you've been definitively linked, though newly available DNA evidence, to a brutal rape and murder, you're legitimately subject to prosecution. Yes, the crime occurred in 1976. Which is a long time ago, not only temporally (and culturally!), but also as regards the availability of witnesses, evidence, and the like.

Quite frankly, however, my instinctive reaction is that this is simply yet another good reason not to commit a murder. Or any other criminal offense with a long -- or infinite -- statute of limitations. Because, eventually, the police may catch up with you. Which, quite frankly, I hope they do. And when they do, we're not going to let you off merely because you've remained free during the past 26 years. By contrast, and just as a reminder, the victim has remained dead that whole time. So, honestly, even with the belated prosecution, you still got the far better end of the deal.

Yes, yes, I know: Maybe the defendant is actually innocent, and the delay in bringing him to court will allow an innocent man to be incarcerated. But my strong sense is that there wasn't much of a risk of that happening here; or, at a minimum, that the delay here didn't make it especially likely for Nelson to be convicted even if he was in fact innocent any more than in the usual case (e.g., as a result of inevitable human fallibility).

It's obviously a particularized inquiry. But, here, I'm happy that Nelson was prosecuted, and think that the result reached by Justice Scotland was the correct one.

Sometimes you can't, in fact, get away with murder. At least forever.

Funky Films, Inc. v. Time Warner Ent. Co. (9th Cir. - Aug. 29, 2006)

Let's play a game. I'll give you a quote. You read it, and tell me where it came from. Ready? Here goes:

"'Six Feet Under' explores the intimate lives of each member of the Fisher family by examining each character’s complex psyche and his or her interpersonal interactions and emotional attachments. . . . [The series] is not so much a story about death as it is about the way the characters struggle with life in the wake of the cataclysmic death of the father. . . . [It] is a neo-realistic, postmodern account of family and romantic relationships, without any overarching religious themes or overtones. Themes of love, romance, death, and sexuality are explored entirely through the characters’ complex interactions. The story focuses on the characters’ longing for connection, their insecurities, and their complaints." (emphasis in original)

Does this quote come from:

(A) TV Guide.
(B) A reader review of the series on imdb.com.
(C) The back of the box DVD set of "Six Feet Under -- The Complete First Season".
(D) A judicial opinion by Judge Fletcher.

(A) through (C) are all reasonable choices. Though the correct answer -- surprisingly enough -- is (D).

Though I wouldn't be at all surprised to see (D) promptly reprinted on any of (A) through (C).

Nice side job you have there, Judge Fletcher. I'm looking forward to the development of a weekly television show -- tentatively called "Epert and Fletcher" -- sometime soon.

See you at the movies!

People v. Gonzalez (Cal. Ct. App. - Aug. 29, 2006)

Here's another reason not to hunt animals. Sure, the deer won't shoot you. They can't pull a trigger. No opposable thumbs, after all.But what about that guy with a shotgun who -- unbeknownst to you -- is growing a big field of marijuana near where you're stomping around hunting. He probably has not one, but two thumbs. And, more importantly, a trigger finger as well. And even before you spot the marijuana, he may elect -- without warning -- to blow you, and your three year old son, away.

Which is what happens here. Thankfully, both the father and the son survive. But it wasn't pretty.

Just remember that the next time you go out into the wildnerness looking for prey. You might not be the only one out there with a gun. And you might, unknowingly, be prey as well.

People v. Massie (Cal. Ct. App. - Aug. 29, 2006)

I disagree with Justice Scotland. Yes, the facts of this case are deeply, deeply disturbing. But, respectfully, there was not "overwhelming" evidence of torture.

Nonetheless, this is a good example of the simple reality that certain facts inevitably have an effect on human beings, including judges. It's a horrible rape. There's a three year old child in the other room. When the defendant pushes his way into the bathroom and enters with a knife, after a brief struggle, the victim says "Fine, take me, just don't kill me." Defendant then assaults the victim both sexually and violently, and, after another brief struggle, starts to cut the victim with broken glass from a picture frame. And after defendant starts cutting the victim's neck and wrists, the victim -- convinced that defendant is trying to kill her -- tells the defendant: "Jesus loves you. If you kill me, he's going to forgive you if you ask him." A statement to which the defendant responds by becoming even more violent towards the defendant.

Those kind of facts get you sentenced to life in prison. Twice. And lead a Court of Appeal to affirm your conviction for torture.

There's a reason Justice Scotland includes in the opinion -- and is clearly affected by -- the victim's statements. Even though they're, legally, entirely irrelevant to whether or not the violence inflicted on the defendant is sufficiently large to establish torture.

Facts matter. Emotional reactions matter. And they did here.

Allen v. Bayer Corp. (9th Cir. - Aug. 29, 2006)

Want to be a district court judge? Seems like a good job, you say? Tolerable salary. Life tenure. Law clerks to do some of the work for you. Get to wear a robe during the day. Sounds pretty cool, eh?

Just to be sure, read this opinion, and get a sense of what it must be like to be Judge Rothstein in the Western District of Washington. In what I can only imagine was punishment for evils in a previous life -- and resulting bad karma -- Judge Rothstein was assigned the 3300 MDL cases alleging injury from phenylopropanolamine ("PPA"), which was used in many decongestants and weight-control products until the FDA discovered that it potentially increased the risk of stroke.

The opinion gives a keen sense of three things. First, the procedural nightmare -- and judicial streamlining and short-circuiting -- that necessarily accompanies these mass MDL cases. Second, the critical nature of active judicial involvement in providing individualized structure to the litigation of such disputes. Finally, the opinion reflects just how poorly some (and perhaps many) lawyers litigate these MDL cases, and the large numbers who fail to perform even the most simple tasks and even after dire and repeated warnings that their cases will be dismissed if they fail to comply.

This is undoubtedly the case only for a portion of the claimants. But one nonetheless gets a strong sense that at least some portion of the lawyers in these case are merely pushing paper around -- and not even doing that! -- in a effort to obtain a quick buck in the hope that they can file a facile claim in a mass tort action and obtain a contingency without actually providing much (if any) service to their clients.

There are assuredly lawyers in these MDL cases that do massive amounts of work, and are justly rewarded for their efforts. But then there are the lawyers, and cases, discussed at length in this opinion. Which do not look good.

Admittedly, in some cases, perhaps the clients are also to blame. Perhaps the clients are the ones (or are also) looking for easy money without any actual effort or demonstration of harm. But I can't help thinking that, for at least most of the cases mentioned in this opinion, the cases were dismissed largely due to the incompetence of counsel.

Which is unfortunate.

Anyone who hasn't been personally associated with an MDL case will get a keen sense of (parts of) them by reading this opinion. It's both informative and enlightening.

Priebe v. Nelson (Cal. Supreme Ct. - Aug. 28, 2006)

Here's a case that should be of interest to anyone who, like me, has a dog. At least if you have a dog that might bite someone. (And, in the proper circumstances, pretty much any dog can bite.)

Justice Baxter's opinion holds two things. First, he holds that even though there's a strict liability statute (Section 3322 of the Civil Code, commonly known as the "dog bite" statute) that makes the owner of a dog strictly liable for any dog bites -- even if s/he didn't have reason to know that the dog might bite -- that law doesn't apply to kennel workers; e.g., when your dog bites someone at a dog kennel. Dog bites in such settings are, the majority holds, instead governed by a beastly version of the "firefighter rule" -- a/k/a, in the animal context, the "veterinarian rule" -- which says that since the victim basically contracted to take on the risk of injury, there's no duty (or at least, no strict liability). Second, notwithstanding the inapplicability of the strict liability statute in such settings, Justice Baxter holds -- in a single paragraph at the end of the opinion -- that a kennel worker can still assert a common law strict liability claim against a dog owner who knowingly keeps a domestic animal with vicious propensities.

As to the central holding, I agree with Justice Baxter, and disagree with Justice Kennard's dissent. Justice Kennard thinks that the majority is disregarding the statute by creating a common law defense. But, in my view, the common law does that all the time; indeed, that's both the power and the wisdom of the common law. The Legislature doesn't think of everything, nor do its categorical pronouncements necessarily envision coverage in all possible scenarios. For example, the Legislature may say (indeed, has said) that everyone is responsible for their own negligence. But such a statute doesn't stop -- nor should it stop -- the judiciary from creating common law rules such as primary assumption of the risk, laches, etc. So I think that Justice Baxter's opinion does something that's both entirely legitimate as well as advantageous from the perspective of public policy. It does indeed seem to me that a kennel worker who has contracted to take care of an animal shouldn't be able to sue if, in taking care of that animal, s/he is bitten. That danger is inherently part of the job.

The only (somewhat marginal) problem that I have with Justice Baxter's opinion is the final paragraph, which holds that kennel workers still may be a common law strict liability claim for harboring a vicious animal. This conclusion seems inconsistent with the preceding analysis. If, as Justice Baxter clearly holds, the owner of an animal has no duty to a kennel worker with respect to injuries that might result from a dog -- or if (again, as Justice Baxter also holds) the kennel worker has contracted to undertake the risk of injury -- then I'm not sure it makes sense to allow a common law strict liability claim even if the dog is vicious. That's the danger of working in a kennel and agreeing to board a dog, no? And, if there's no duty to a kennel worker, then where did the common law duty come from that creates strict liability in such settings?

I'd have liked to see that final -- important -- paragraph explored a bit more. But otherwise, I'm on board for both the analysis and the result. Good job, Marvin.

People v. Bradley (Cal. Ct. App. - Aug. 24, 2006)

Ah, the life of a public official in Compton. Which, as far as I can tell, basically consists of petty corruption and fraud, including charging personal expenses to your City credit card as well as double-billing your travel expenses by obtaining cash advances for them and then, instead of paying for the expenses with the advance, charging these expenses to the City credit card.

At least that's what I gather from this opinion, in which Justice Flier (properly) upholds the convictions of the former mayor of Copton (Omar Bradley), a former city councilman (Amen Rahh), and the former city manager (John Johnson).

What's perhaps most amazing about this case is how little it took to corrupt these people. Each of these people stole something around $15,000 or so during their tenure as an elected official. Amazing.

I wonder if that's indicative of how easy it is to bribe public officials -- or at least officials like these -- as well. I figure that if you're willing to steal, you're willing to be bribed. I'd have never guessed that bribes could be in such small amounts and yet be effective. Who knew?!

People v. Stanley (Cal. Supreme Ct. - Aug. 24, 2006)

There are many reasons not to visit Oakland. Raiders fans being only one of them.

The first ten pages of this opinion, which discuss Darren Stanley's violent crime spree in that fine city during Christmas 1988 (and the three weeks thereafter), add yet another reason. Not a place, or time, that I'd want to be in Oakland.

P.S. - I especially like the last sentence of the second paragraph of the California Supreme Court's opinion: "We affirm the convictions and judgment of death but order defendant’s determinate sentence reduced by two years." In other words: "I've got some good news and I've got some bad news. The bad news is that, yes, we're indeed going to kill you while you're in prison. But the good news is that you're going to get out of prison two years early." Hurray!

People v. Lewis & Oliver (Cal. Supreme Ct. - Aug. 24, 2006)

It's a simple message. But nonetheless one worth mention:

Don't enter into a bigamous marriage, repeatedly commit domestic violence upon your "wife", terrorize her after she leaves you once she discovers that you're already married to someone else, and then assault a church during services and shoot and kill several of her family members worshiping therein.

Oh, and don't help your friend do so either. Because if you do, you'll both be sentenced to death. And the California Supreme Court will affirm both of your sentences in a unanimous opinion that spans 127 pages.

Assaulting a church during services in order to kill your ex-wife's family because she left you once she discovered you were a bigamist. Wow. You're pretty much begging for the death penalty, no?

M2 Software v. Madacy Entertainment (9th Cir. - Aug. 21, 2006)

Here's another reason to put your stock market investments into a blind trust once you become a judge. That way, you won't have to deal with motions such as these. And the resulting implicit (or even explicit) attacks on your actual or apparent partiality.

Judge Pregerson doesn't recuse himself, and I think he's right that his failure to do so doesn't justify recalling the mandate. Still, it would probably have been better if the problem had never arisen in the first place.

Moreover, as this case amply demonstrates, you often aren't aware of a recusal problem until after you've written the opinion and/or participated on the panel. Yet another reason to avoid potential conflicts at the outset.

Blind trusts. Learn it. Live it. Be it.

Thompson v. County of Los Angeles (Cal. App. Ct. - Aug. 22, 2006)

The County of Los Angeles wins this case at trial, and Justice Doi Todd affirms the judgment. I don't see anything wrong with that.

The facts of the case are nonetheless a tiny bit disturbing. Here's what happens:

"On February 8, 1991, appellant tried to steal two cars. . . . Shortly thereafter, Los Angeles County Sheriff’s Deputy Patrick Cleary responded to an attempted robbery and car theft call at a 7–Eleven store in Downey. When he arrived at the store, he saw appellant run through a nearby alley and then climb over a block wall. Once Deputy Cleary had positioned himself at one end of the alley and some neighborhood youth [!] at the other end to contain appellant, he called for backup. Sheriff’s Deputy Ken Lawrence, a dog handler, and Sergeant Robert Devot were among those who responded to Deputy Cleary’s call. They learned that appellant was a carjacking suspect on parole and that he had a prior weapons-related offense, but they did not receive any information to establish that he was armed or had injured anyone at this particular time. The deputies announced via both car loudspeakers and a helicopter that a dog would be deployed. At that point, appellant was under a car in a carport, hiding from the police. Approximately 15 minutes after the announcement—and 30 to 40 minutes after appellant had climbed over the block wall—the deputies began using a search dog.

The dog made its way to the carport where appellant had been hiding for 30 minutes, and Deputy Lawrence deployed the dog into that area attached to a 60-foot leash. When the dog first barked at appellant, he did not move. A few moments later, appellant heard a voice, the dog stopped barking and lights shone on the carport area. Appellant heard a voice over a loudspeaker directing him to come out from under the car with his hands in the open. As he started to comply, the dog bit appellant’s leg. Appellant screamed 'get him off.'

Meanwhile, Deputy Lawrence could not see the dog once it had entered the carport; he first saw it again when appellant, seated, was fighting with the dog—trying to pull the dog’s muzzle off of his leg and punching the dog in the head. The dog continued to bite down on appellant’s leg and also bit his hand when he tried to remove the dog by grabbing and pulling on its jaw. Both Deputy Lawrence and Sergeant Devot yelled at appellant to stop fighting the dog, but appellant continued to struggle with the dog, eventually grabbing and twisting its collar, choking the dog.

At that point, Deputy Lawrence began striking appellant with his flashlight, hitting appellant’s left arm, shoulder and leg in order to stop him from fighting the dog. Sergeant Devot also used his flashlight to strike appellant once. When appellant still had not released the dog, Sergeant Devot grabbed appellant’s arm while Deputy Lawrence grabbed the dog’s collar and pulled the dog off. Deputy Lawrence kicked appellant’s
upper body while pulling the dog away and both he and Sergeant Devot were ultimately able to restrain appellant.

Sergeant Devot and Deputy Cleary then handcuffed appellant. Appellant lost consciousness intermittently, waking up at one point in a patrol car and at another point in an ambulance. He regained full consciousness at Los Angeles County U.S.C. Medical Center, where he remained for the next four days. He sustained a large laceration to his lower left leg and backside as a result of the dog bite, as well as dog bites on his hands. He also sustained a blunt force trauma to his lower right leg. After his release from the hospital, he was confined to the jail hospital for another month. He also suffered an infection that required daily care for several months. Longer term, appellant lost some control over his left foot, had significant tissue loss and suffered from prominent deformities and scar tissue that negatively affected his mobility."

I was on board for releasing the dog. But I was a bummed when the dog bit the guy as he was following the police's instructions to get out from under the car. And could understand why the guy instinctively -- but obviously wrongly -- tried to fight the dog that was currently chomping on his body. Then, of course, came the multiple blows of the heavy flashlight, by both Deputy Lawrence and Sergeant Devot. Which gotta hurt. Then there's Deputy Lawrence's final kick on the guy's torso while the dog's being pulled away. Nice.

I understand why everything went down as it did. Still, that's an awful lot of injury for a dude that's just trying to get out from under the car to give himself up.

Doesn't seem right.

People v. Alonzo (Cal. Ct. App. - Aug. 21, 2006)

This is an incredibly short opinion that tops out at a mere seven paragraphs. In which Justice Yegan holds that a wallet with decorative metal spikes on the outside can constitute "metal knuckles" (e.g., brass knuckles) prohibited by Section 12020.

Watch out, all you ex-punk rockers out there. Those spiked collars and wristbands -- one of which I'm happy to say I still possess (a gift from Tallie Gray, if I recall) -- might potentially qualify as well.

Take that, Johnny Rotten.

People v. Rogers (Cal. Supreme Ct. - Aug. 21, 2006)

Something old, something new. First, the old. The California Supreme Court unanimously affirms a death sentence, and does so in an opinion that spans 111 pages. Been there, done that. Second, the new. The death sentence here was imposed against David Keith Rogers, who was a Kern County Sheriff's deputy who murdered two prostitutes in Bakersfield -- 20-year-old Janine Benintende in January 1986 and 15-year-old Tracie Clark on February 8, 1987.

There seems utterly no reason why Rogers killed these women. And that's not something -- committing cold blooded murders of multiple women -- that I want my Sheriff's deputies doing, thank you very much.

Amy G. v. M.W. (Cal. Ct. App. - Aug. 17, 2006)

Wow. Talk about messed up.

Father is married to Amy. Father has an extramarital affair with Kim, who is married to (but separated from) Steven. Father impregnates Kim. Kim hides her pregnancy from her family and friends moves to Virginia, where she has her child with Father, Nathan. Kim takes care of Nathan for a month, but then Father flys to Virginia, where he meets with Kim in a hotel lobby. Father presents Kim with documents -- which Kim signs while sitting in Father's limousine (!) -- that state that Kim agrees to give sole custody of Nathan to Father, to waive visitation, and to consent to Nathan's adoption by Amy. Kim then hands Nathan -- and all of Nathan's clothes, formula, diapers, and toys -- to Father, and Father returns them all to California that evening. And, since 2003, Nathan, who is now three years old, has lived with Father and Amy.

I shan't even attempt to describe the various lawsuits that shortly arise therefrom. Let's just say that Amy, Father, Kim and Steven are each parties to multiple actions in which Father, Amy, and Kim (but not Steven) are trying to assert some degree of parentage over Nathan.

Which is a mess. Justice Klein's opinion discusses various tough issues, including standing, joinder, presumed parentage, and other doctrines. But, in the end, we're still left with a mess. How'd you like to be Nathan? Or even Kim, or Father, or Amy?

This is a no-win situation for everyone. Yuk.

People v. Alvarado (Cal. Ct. App. - Aug. 16, 2006)

Vouching. Don't do it. It'll get you reversed. And, as an aside, it's also fundamentally unfair.

Like here. Here are the first words out of the prosecutor's mouth to begin her rebuttal closing argument:

“I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it.”

That's vouching. It's improper. And, indeed, it got the conviction reversed.

I can understand why the prosecutor said what she did. Or, more accurately, why she thought that it might be okay to say what she did. But she was wrong. Plus, even purely as a tactical matter, the benefits of vouching -- even in a case where you think it might be okay -- are rarely worth the risk of a reversal. So don't do it. And, again, it's also wrong. Convict on the merits. Don't try to convict by getting the jury to take your words for it. Play tough, but also play fair.

That said, while I understand that Business and Professions Code 6086.7 requires that the opinion be referred to the State Bar since the conviction was reversed for prosecutorial misconduct, I also hope -- and very much think -- that the prosecutor won't get in disciplinary trouble for what she did. She made a mistake; indeed, an error of judgment. But she didn't do something worthy of further sanction. At least in my mind.

One final point. Justice Rothschild -- in the majority -- clearly wins the debate with Justice Vogel (in dissent)regarding whether the error was prejudicial. Indeed, in all honesty, I'm frankly stunned -- and yet, ironically, simultaneously not entirely surprised -- by Justice Vogel's view. Justice Vogel thinks there was no prejudice because there was a single eyewitness who testified that he was sure the defendant was the guy. But wholly apart from the many, many reasons elicited at trial why the eyewitness might not be believed (and there's so much on that issue here), to say that the testimony of a single eyewitness allows us to be confident that the defendant did it -- and hence that the jury would have convicted anyway -- so flatly conflicts with all of the modern research and analysis regarding the flaws of eyewitness identifications that I really wonder what Justice Vogel could possibly be thinking. To hear a judge essentially conclude "Oh, well, he was identified by an eyewitness, so we're sure he did it, even though there's no other evidence at all against him" in the modern era is pretty surprising. And yet, sadly, perhaps not surprising at all.

Old habits -- and beliefs -- assuredly die hard.

Seever v. Copley Press (Cal. Ct. App. - Aug. 15, 2006)

Michael Seever worked as the building supervisor for the Daily Breeze, a newspaper in Torrance. By 2001, the Daily Breeze was losing a great deal of money, so some staff members -- including Seever -- were terminated in order to reduce costs. Seever filed suit, claiming that his termination was the result of discrimination based upon, inter alia, age, disability, and family and medical leave.

It was a lengthy, intensive lawsuit. Seever took 20 depositions and propounded 780 document requests. The Daily Breeze -- owned by Copley Press -- made a statutory settlement offer to resolve the suit in return for its agreement to pay over $200,000, plus costs and attorney's fees. Seever rejected the offer.

Big mistake. The case goes to trial, at which point the jury returns a defense verdict on all counts. And Copley Press is awarded over $85,000 in costs, including expert witness fees. And although Justice Woods tinkers a tiny bit with the amount of the cost award, in essence, plaintiff also loses on appeal.

From up $200,000+ (plus fees) to down $80,000+. Yikes. Sometimes it's a good idea to settle, huh?

U.S. v. Hill (9th Cir. - Aug. 11, 2006)

Two things about this case.

First, if recent opinions by the Ninth Circuit are any indication, there has been an explosion in child pornography prosecutions lately. I kid you not when I say that every other Ninth Circuit opinion recently seems to involve a kiddie porn prosecution. It was sufficiently weird to see all these child pornography cases that I actually went back and counted them. There's Hill today. The day before, there was Battershall. Two days before that, there was Ziegler (which I discussed here). And a couple weeks ago there was Romm (which I also discussed, here).

During this period, there were 13 published Ninth Circuit opinions in criminal cases. 4 of the 13 -- over thirty percent -- of these cases involved child pornography prosecutions. And, during the past three days, 3 of the last 8 Ninth Circuit opinions in criminal cases days have been child porn cases.

What's going on here?! Was it NAMBLA week at the Ninth Circuit? Weird.

Second, check out who the trial court judge was in this latest case. None other than our own Alex Kozinski. I guess he (and his clerks) don't have enough work to do on the Ninth Circuit to keep them sufficiently busy, so he's got to troll in the district court for some extracurricular fun. And no, I'm not saying he was deliberately trolling for kiddie porn cases. Get your minds out of the gutter.

P.S. - How'd the case come out, you ask? Well, you'll be happy to know that Judge Kozinski's colleagues on the Ninth Circuit unanimously affirmed his decision below. And even said nice things about him. Shockingly.

U.S. v. Mohamed (9th Cir. - Aug. 11, 2006)

I can summarize this seventeen-page, single spaced opinion pretty easily. Indeed, in two sentences:

If you're a total loser and petty thief, don't make a phony terrorist threat after 9/11 -- here, the one in 1994 that claimed that terrorists were planning to blow up shopping malls in Los Angeles -- that results in massive public disclocation, all in an absurd attempt to (somehow) curry favor so that hopefully the INS will let you back into the United States. Because if you do, the district court isn't going to follow the sentencing guidelines' recommendation that you get 12-18 months in prison, and will instead depart upward and send you to prison for five full years, and even a liberal majority on the panel in the 9th Circuit will affirm the sentence, since we ain't gonna help out no two-bit fake terrorist wannabe.

See? I just saved you seventeen pages of reading. Consider it an early birthday present.

Now get back to work.

U.S. v. Flatter (9th Cir. - Aug. 9, 2006)

You know the government has done something obviously wrong when a panel that consists of Judges Bybee, Beezer and Tallman unanimously reverses a criminal conviction on the basis of an illegal search.

Which is what happens here.

Andrew Flatter allegedly is a postal worker who (allegedly) steals some (alleged) mail. After a sting operation in which they (allegedly) catch him stealing some mail, the postal inspectors interrogate Flatter. But before they do so, in a classic move, in order to "make sure he doesn't have any weapons" -- yeah, right -- they pat Flatter down. At which point, during the frisk, they feel the missing envelope that they think Flatter stole during the sting (but which they couldn't see on the videotape), seize it, and then introduce it into evidence at Flatter's trial.

But the Ninth Circuit reverses. It's clear that you have to have at least a suspicion that someone's carrying weapons in order to conduct a Terry search. And there was utterly none here. Sure, it would be dangerous if Flatter had some weapons. But that's not enough to justify a search; after all, it would be dangerous if anyone had weapons, so if that's all that was required, there'd be no limits.

You've instead got to have reason -- or at least a reasonable suspicion -- to believe that the person actually has a weapon before you can conduct your (ostensible) search for weapons. Which didn't exist here. Sure, if you've investigating a drug dealer, maybe the fact that he's an (alleged) drug dealer is good enough to justify a frisk, since lots of drug dealers carry weapons. But, last I checked, postal workers who steal mail rarely do so while packing. Hence no legitimate frisk.

Seems like the panel gets this one right.

Comer v. Schiro (9th Cir. - Aug. 10, 2006)

This one's interesting (and short), and something you don't see every day. A published order in which one of judges -- Judge Rymer -- tells her colleagues: "Get off your duff and write the opinion already, this appeal has been going on for years." Whereas the other two members of the panel respond with a paragraph that says, in essence: "Hey, this is a toughie. We're working on it. Leave us alone."

Of course, there's an additional subtext to all of this. It's a death penalty case. And one in which the defendant wants to die. Judge Rymer, not surprisingly, wants the sentence executed. Quickly. By contrast, the other two members of the panel -- Judges Ferguson and Pregerson -- want the exact opposite. Hence the delay.

What's perhaps most interesting is that the spat goes public. That's Judge Rymer's call, of course, since she's almost certainly the one who called for the published order. Still, an interesting dynamic. One that you'll occasionally see when, as here, you have a panel that's addressing a hot-button issue (especially the death penalty) and that contains two hard-core members of one side of the political aisle and one member on the other side.

That said, I think that Judge Rymer's decision will have an effect. Even though the appeal has been pending for many years, I bet you'll now see an opinion on the merits in this case -- and one that, I'm quite confident, will end up finding a violation of constitutional rights -- within the next several months.

Stay tuned.

U.S. v. Ziegler (9th Cir. - Aug. 8, 2006)

I don't know about you. But if I'm Jeffrey Ziegler in this case, I don't know that I would have filed an appeal.

Ziegler downloads kiddie porn on his computer at work, after using searches for "preteen girls" and "underage girls". His employers catch him and turn him over to the FBI. He eventually enters into a plea bargain and, as a result, the (very serious) child pornography charges against him are dismissed in return for his plea of guilty to receipt of obsence materials. He's sentenced to two years of probation and a $1,000 fine.

No jail time. Probation. A $1,000 fine. A conviction merely for "reciept of obscene materials" -- without any reference to kiddie porn. Seems like a pretty good result to me.

But he decides to appeal. But not only does he lose the appeal, but it also results in a published opinion that informs the world that Ziegler accessed kiddie porn. That his conviction wasn't just downloading rancy sex stuff from the internet, but instead involved underage children.

I'd rather do the probation and pay the $1,000 fine, thank you very much. Even if I had won the appeal. Just don't tell the world what I was downloading at work, please.

Not an appeal I would have filed, I think.

People v. Terrell (Cal. Ct. App. - Aug. 8, 2006)

Robbery #1 happens a little after 1:00 a.m. on November 17, 2001. The robber points a gun at the victim's stomach and says "Give me the money." The victim hands over his wallet, and the robber departs.

Robbery #2 happens a little after 1:30 a.m. that same day. The robber points a gun at the victim's stomach and says "Give me your money." The victims hands over her wallet and purse. At the same time, a second robber (alongside the first) says to the second victim "Freeze . . . this is a stickup." Victim #2 doesn't believe Robber #2, and so (boldly) says "Show me the weapon." At which point -- and I love this -- Victim #1 says to Victim #2 "Quit being an effin' smartass and give him the money." Robber #2 then pulls out his gun and points it at Victim #2's stomach. Robber #2 gets $160 from Victim #2's pockets and both robbers run off.

Robbery #3 happens between 1:30 a.m. and 2:00 a.m. that same morning. The robber points a gun at the victim's stomach and says "Give me your f***ing wallet." Sounds familiar, no? Except listen to what the victim says this time. He says: "No." The robber repeats his demand. The victim again says: "No." The robber then turns to the woman who's with the victim, points the gun at her, and demands her purse. She gives it up. Then the robber goes back to the victim and twice again demands his wallet, pointing the gun at him each time. To which the victim again consistently responds: "No."

So what does the robber do? After the victim's final refusal, the robber shoots the victim in the chest. The victim -- who was the son of a California state senator -- dies four hours later at the hospital.

Four victims relinquish their money. All live. One refuses. He dies.

Example No. 1000 of the modern day truism: Give it up when you have to. It's only money. It's not worth your life.

People v. Ramirez (Cal. Supreme Ct. - Aug. 7, 2006)

It will suprise no one that the California Supreme Court unanimously upheld the death penalty sentence of Richard Ramirez, a/k/a the Night Stalker. There's no way in the universe the California Supreme Court was going to reverse the death sentence in such a high-profile case. There ain't gonna be a Rose Bird II.

(Not that the Court wasn't correct on the merits, mind you. Just that the merits didn't especially matter.)

Two more things that also weren't at all surprising. (1) The opinion is over 100 pages. That's what you get in these types of cases. Long, long, long. Related to: (2) The automatic appeal alone took over 16 years since the death sentence was imposed -- a full 22-plus years after the first murder. And petitions for certiorari, as well as state and federal habeas proceedings, have not yet even begun.

That's "justice" in death penalty cases. No one -- on either side of the issue -- can be happy with the present state of affairs.

Nobody v. Nobody (Everyone - Aug. 4, 2006)

One (boring) opinion by the California Court of Appeal today, none yesterday, and no opinions by the Ninth Circuit today either.

Heck, if everyone else is gonna take a vacation day, I will too. No post today. Time to hit the pool.

Stark v. Hickman (9th Cir. - Aug. 1, 2006)

Today was a boring day in the Ninth Circuit and California appellate courts. One published opinion from the Ninth Circuit, nothing at all from the California Court of Appeal, and one opinion from the California Supreme Court (which reached a result that I thought was entirely correct). So a sleepy Thursday.

This does give me an opportunity, however, to go back and talk about another case from a couple of days ago, a case that's fairly unremarkable for its legal doctrine -- at least in my view -- but nonetheless evoked in me an emotional response. It's a habeas case involving a second degree murder conviction. (In truth, the defendant was convicted by the jury of first degree murder, but the trial judge found the evidence insufficient to support a first degree murder conviction, so reduced it to second degree.)

Here's what happens. Thomas Stark and Marilyn Stark are married in 1972. They have two kids. After 23 years of marriage, in 1995, Marilyn starts having an affair with Steven Johnson. Which happens. The affair apparently goes on for a while, since in the summer of 1996, Marilyn tells Thomas about the affair, and shortly thereafter, Marilyn moves in with Steven.

Needless to say, these events bum out Thomas. Severely. He lost weight, couldn't sleep, became depressed, wept frequently, and often spoke of committing suicide. Shortly after Marilyn moved in with Steven, Thomas had a couple of confrontations with Steven, and threatened him each time. Obviously, Thomas wants to have his wife back, and can't get over the fact that she's not with him. Irrational, of course. But it happens.

Things go on like this for a while, though apparently without any more confrontations between the two men. Then, in February 1997, Marilyn and Thomas have dinner, apparently to discuss possible reconciliation. But Marilyn decides that's not what she wants at this point, and tells Thomas at the restaurant that she's not going to move back in with him. But when they leave the restaurant, they notice that Steven is following them in his car. Steven somewhat freaks out when Thomas and Marilyn return to the former marital abode, and while he and Marilyn are talking in Thomas' front yard, Thomas comes out of the house with a gun, telling Steve "Leave, little worm." Steve, by contrast, tells Thomas to put the gun down and "fight like a man". But when Thomas will do no such thing, Steve returns to his truck and leaves. (Parenthetically, I think it profoundly unwise to tell someone with a gun to "fight like a man". It's not likely to persuade them, and such a comment may well end up getting you killed. But I guess I'm not really in the head of the gun-toting, or fight-provoking, manly men of this world. Hardly something I'm desperate to change.)

Anyway, after all this, Thomas and Marilyn go into the kitchen, at which point Thomas talks about suicide. Not a good sign. Then, in an even worse sign, 45 minutes later, Steven returns to Thomas' house. At which point Marilyn tells Steven to leave, but Steven starts screaming for Thomas to (you guess it) come out and fight. Eventually, Marilyn persuades Steven to leave. Then Marilyn goes to a bowling alley to find Steven, and when she returns to Thomas' house, Thomas tells her that he has spoken to Steven and that Steven is going to come over to the house and "settle" the matter once and for all. Bad sign.

Sure enough, Steven drives on over. Thomas comes out with his gun, and (predictably) starts calling Steven a "little worm", while Steven continues the refrain that Thomas should drop the gun and "fight like a man." What scintillating discourse. Then, like children, Thomas and Steven start shoving each other. During the shoving, Thomas stumbles, and accidentally fires a shot into the ground. Does the sound of actual gunfire stop things? No way. These are "men". They then go back to shoving. At which point Thomas points the gun at Steven's gut and says "Boom, Boom". Does such an actual threat of death stop the fight? Fuggetaboutit! The shoving match then continues apace.

Well, you can guess what happens next. During the latest -- and final -- round of shoving, the gun goes off again, this time hitting Steven in the stomach.

Sure, the fight's now over. But that's not all. At this point, a neighbor runs into the house to dial 911, which Marilyn has already done. Then Thomas leans over Stevens -- who's now lying on the ground with a gunshot wound to the stomach -- and ponders what to do next. And then, after a little bit of contemplation, pumps three more shots into Stevens as he's lying on the ground. Figuring -- I'm quite confident -- "Screw it. I've shot him already. My life is over. Might as well make sure he's dead."

Then Stevens walks into the house, unloads the gun, and puts it on the counter. And -- and this is what really gets to me -- takes a bunch of pills, apparently in an effort to kill himself. To me, that's incredibly weak. Now, I know, he's not thinking clearly, or rationally, or even coherently, at this point. But taking pills?! You've just killed someone with a gun. If you want to off yourself, shoot yourself in the head. Taking pills at that point is just a totally lame cry for attention and sympathy. Which, lemme tell ya, you ain't gonna get, Mr. Murderer. At least from me. At least have the cajones to finish the job with yourself. Like you darn well made sure you did with your victim.

Now, I admit, this may sound harsh. And, let me tell you, it's not that I don't sympathize -- at some level -- with Thomas (though only so much). He's obviously distraught. He obviously can't think straight. He's been through events that might make even the most sane person act utterly irrationally. And, honestly, I can see why someone might think "Oh well. I'm going to spend the rest of my life in prison anyway. Might as well get my money's worth by making sure the guy is dead." As well as want to -- but not really want to -- kill myself after the stark realization of the consequences what I'd done and began to set in.

Anyway, an interesting story. I'll finish up by noting that, after Steven is shot, when police and firefighters come on to the scene, they find Marilyn cradling Steven's body on the sidewalk. Depressing. And they find Thomas unconscious in a pickup truck, as well as checks that Thomas had written to his children and letters that he had written to his family and friends, all of which presumably constructed after the murder and while Thomas waited for the pills to kick in. Depressing II.

So there's my uplifting story for the afternoon. Reminds me of a case I once worked on. In which a guy, high on crack, enters his ex-girlfriend's 17-floor apartment, tells her he desperately wants her back, and fights with her as she says she doesn't want to reconcile with him. So he drags her to her 17-th floor balony, throws her off, waits 20 seconds or so, and then jumps off himself. Oh, one more thing. She hits the concrete and dies. He hits the hood of a parked car and lives.

But that's a story for another time.

People v. Rubio (Cal. Ct. App. - Aug. 1, 2006)

This is a good opinion by Justice Rushing. Fair, balanced, and reasonably short (13 double-spaced pages). He reverses and remands for a new trial when one of the jurors indisputably had severe problems throughout the trial hearing the evidence and yet was kept on the jury. I thought that Justice Rushing's decision to include the portion of the transcript (at pages 3 to 8 of the opinion) in which the juror discussed her hearing problems with the court -- in which the juror repeatedly couldn't hear what was said even then -- was especially telling. Clearly the right result. As was Justice Rushing's (important) caveat that this shouldn't mean that we dismiss jurors who are having difficulty hearing. That said, when the court-supplied hearing aids don't work and the juror can't hear or understand large (and critical) portion the testimony, you can't leave 'em on the jury.

One more point. Retrial or not, I ain't getting a massage from the defendant, Joe Rubio. It's a family blog, so I shan't retype the first paragraph of the "Statement of the Facts" (on page 2 of the opinion). But read it. YUK! I definitely didn't come in for that, thank you very much. P.S. - Rubio was also convicted of illegal possession of testosterone. Two points: (1) How weird is that? And (2) From the facts of the case, it sounds like Rubio needs a lot less of that stuff, not artificially more.

Witte v. Kaufman (Cal. Ct. App. - Aug. 1, 2006)

Justice Hull only publishes a small fraction of this opinion. But even the stuff that's published is, in my view, a damning indictment of the performance of attorney -- and plaintiff -- Thomas M. Witte. To say that Witte does not come out smelling like a rose, either in the underlying action or on appeal, is an understatement. Sure, he didn't kill anyone, or anything like that. Rather, he acted unprofessionally, and in a manner that I'm sure he's embarassed to have anyone read. Or at least should be.

Not the finest graduate of the McGeorge School of Law.

Standard Fire Ins. Co. v. Spectrum Community Ass'n (Cal. Ct. App. - July 31, 2006)

You've got to love the brevity of the last sentences of each of the first three paragraphs of this opinion by Justice Moore:

Paragraph One, after describing appellee's principal contention on appeal, concludes with: "No dice."

Paragraph Two, after describing appellant's argument, concludes: "We agree."

Paragraph Three, after a brief description of the dispositive issue, concludes: "We reverse and remand."

Thirty-eight pages follow these three brief paragraphs. But the first page really said it all.

People v. Vance (Cal. Ct. App. - July 31, 2006)

Two quick things about this case.

First, what a bummer for Mom. Imagine having your 23-year old son, who's been in treatment for mental illness since he was 17, attacking you with a meat cleaver while screaming "You're a clone, you're not my mother!" Which is what happens to Mrs. Vance here. Downer.

Second, I'm not especially impressed with the quality of justice in Shasta County, at least if this case is any indication. Twenty years after Vance went after his mother with the cleaver, California wanted to put Vance back in the hospital on the grounds that he was a danger to himself or others. At trial, the bailiff put Vance in shackles, which were clearly visible to -- indeed, were commented upon -- by the jurors. Remember: The whole point of the trial is to determine whether the defendant is dangerous to others. When the first thing the jury notices is that the defendant has to be shackled at trial, do you think that might result in, oh, a tiny bit of prejudice as to the ultimate conclusion?

When the defendant's counsel says, "Uh, about this shackle thing, could we please have them taken off?", Judge Halpin responds: "That's not my call. The bailiff determines that. And I'm sure he'll want to keep them on." To which I can only say: "What?!" Judges must have some pretty good stuff to smoke up there in Shasta. Because last I checked, the judge was responsible for ensuring a fair trial, not the bailiff. Plus, there are a dozen cases or so that squarely hold that the judge can't delegate the decision whether to shackle a defendant in front of the jury to someone else. Which is precisely what Judge Halpin did here.

What's perhaps most amazing about this case is that the Attorney General's Office -- led by Paul O’Connor (a Boalt graduate, no less) and Stephen Herndon (from Loyola) -- not only don't confess error, but instead throw up a half-dozen arguments that assert that what transpired was entirely fine. Fortunately, Justice Cantil-Sakauye sees these contentions for what they are, and rightly slaps them down.

You can't shackle someone in front of a jury without a judicial finding that they're dangerous. And you can't abjure your responsibility to ensure a fair trial to the guy sitting beside you just because he carries a gun. He probably didn't go to law school. You did. Which doesn't give you a big advantage in a street fight. But which nonetheless gives you a pretty huge advantage in deciding how best to effectuate justice at trial.

In Re Jonathon M. (Cal. Ct. App. - July 31, 2006)

Ever see an opinion published solely for the purpose of insulting the trial judge below? If not, read this one. It's a perfect example.

The tenor of the opinion is evident from its first paragraph, in which Justice Sims states: "Once again, we are asked to issue a writ commanding San Joaquin County Juvenile Court Judge Barbara A. Kronlund to honor a peremptory challenge filed under Code of Civil Procedure section 170.6 (section 170.6). Once again, we shall issue a writ."

The opinion goes on like that for thirteen pages. All with respect to a writ petition in which the "opposition" to the writ (by Judge Kronlund) states, in its entirety: "Upon further review, Real Party in Interest will not be filing an opposition in this case.”

Think Justice Sims decided to publish a thirteen page opinion in an appeal the respondent conceded because the law regarding this undisputed matter was unclear? Or, instead, because Judge Kronlund has consistently hacked him off?

You be the judge.

POSTSCRIPT - I received a helpful (and very nice) e-mail from one of the participants in the case, who noted -- correctly -- that the AG's office was technically representing the People of the State of California, not Judge Kronlund, in this writ proceeding. So it was really the People, not Judge Kronlund, who expressly stated that they wouldn't be filing an opposition. Hope that clears things up (or at least makes them more accurate)!

S.B. Beach Properties v. Berti (Cal. Supreme Ct. - July 31, 2006)

This is a nice, short, and (in my view) correct decision by the California Supreme Court, which holds that you can't recover fees on an anti-SLAPP motion if the plaintiff dismisses the lawsuit prior to the filing of your anti-SLAPP motion.

Justice Corrigan writes the opinion for a unanimous court. What's most interesting is the brevity of the opinion, which tops out at nine (double-spaced) pages. Pretty darn short and to the point. Which is both nice and refreshing.

Moreover, to be honest, I thought that most of the opinion was fluff anyway. As I was reading the opinion, I kept saying to myself: "Come on. Get to it. You're just saying total generalities. Actually address the arguments on both sides, not merely puke out platitudes." I thought as I was reading this part that this was going to be a correct, but fairly unreasoned, opinion. Only in the final three or four paragraphs does Justice Corrigan actually engage is substantive analysis. But when she (finally!) does so, it's persuasive.

So it's a short opinion that could have been even shorter. Still, happy to read it.

Harper v. Poway Unified School Dist. (9th Cir. - July 31, 2006)

Pretty interesting when a fairly substantial portion of your dissent entails a block quote from a blawg. As Judge O'Scannlain -- joined by four others -- does here.

Burkle v. Burkle (Cal. Ct. App. - July 28, 2006)

What a banner year it's been in the California Court of Appeal for billionaire Ronald Burkle. First, in January, he lost his bid to keep documents under seal in his wife's divorce action against him. But that was only one of the multiple lawsuits against him by members of his own family. Today, Justice Boland -- along with Cooper and Rubin, each of whom were also on the earlier panel -- hands him another loss, this time reversing a grant of summary judgment to him in the lawsuit filed against Burkle by his daughter.

Both your wife and your daughter are filing lawsuits against you. What a wonderful life. Makes me feel warm and fuzzy all over.

Kepilino v. Gonzales (9th Cir. - July 25, 2006)

Here's a riddle for you: When is a prostitute not a prostitute? Answer: When she's a prostitute in Hawaii.

Makes no sense, you say? Perhaps it will after you read this opinion by Judge Pregerson.

Here's the basic scoop. Young Ok Kepilino is a native and citizen of South Korea who comes to the United States as a visitor for pleasure (!) in 1996. She marries an American citizen and adjusts her status in 1998. But in 1999 she's busted for practicing massage (or, should I say, "massage") without a license and for prostitution, pleads no contest to both charges, and pays a fine of $500. Seems pretty routine. Happens all the time, I'm sure.

But then, in 2002, Kepilino goes to visit her sick mother in South Korea. When she comes back into the U.S. at the Honolulu airport, the Department of Homeland Security says: "Nope. You're inadmissible. Under Section 212(a)(2)(D)(i), because you're an alien who's has engaged in prostitution during the past ten years -- and we know you are, since you were found guilty -- you can't enter the United States. See ya."

I didn't know, by the way, that Section 212 really said that. But, upon reading the statute, indeed it does. Which seems pretty harsh -- after all, being booted out of the country is a lot more harsh than the $500 fine imposed for the actual crime. But there you have it.

Interestingly, however, Kepilino argues that even though she was convicted of prostitution, she didn't in fact engage in prostitution. Which seems like a pretty tough argument to make, right? But Judge Pregerson finds that she's right, and reverses the decision below on this basis.

How could that possibly be, you might ask? Remember the answer to the riddle above? That's why. Because Hawaiian prostitutes aren't prostitutes. Or, perhaps more descriptively, because prostitution in Hawaii isn't necessarily prostitution under Section 212 of the INA. That's because, in Hawaii, a person can be convicted of prostitution based upon the performance of "sexual contact" or "sexual penetration" for a fee, and these terms are defined to include, inter alia, touching people through their clothes (i.e., massaging their nether regions) or engaging in oral sex. (This is a family blog, so I'm not going to get too specific here.) By contrast, the INS has interpreted Section 212 to define prostitution as limited to engaging in actual sexual intercourse; indeed, to engage in the practice repeatedly. None of which Kepilino necessarily did, since the admissible records of her Hawaii prostitution conviction doesn't mention specifically what she did (or whether she did it more than once).

Hence, she may be a prostitute, but she's no prostitute. So she can stay in our great nation. Or at least in Hawaii. Who's official motto, ironically enough, is "Ua mau ke ea o ka aina I ka pono." Which means: "The life of the land is perpetuated in righteousness."

Righteousness indeed.