Friday, August 13, 2004

Tryin' the Typepad 

For the next few weeks I'll be taking advantage of Typepad's free month trial. Check it out over at http://ichiblog.typepad.com.

Thursday, August 12, 2004

The Supremes (of Cal.) on the S.F. Marriages 

The California Supreme Court has ruled that the Mayor of San Francisco overstepped his authority when he ordered marriage licenses issue to same-sex couples, and the court also invalidated all marriages granted by the mayor. The court's opinion is here, Howard Bashman's link is here, and Volokh weighs in here.

I completely agree with this decision on the merits, but this is an argument for another day. Instead, I want to write about my confusion: Is this a "liberal" or a "conservative" opinion? On the one hand, this opinion shows great fidelity to democratic process: the legislature makes the laws, the executive enforces them, the judiciary interprets them. Plain separation of powers. After all, the national Founders were skeptical of any aggregation of legislative power in the executive, and in this day and age the aggregation of a judicial power in the exective can be just as dangerous since judicial authority has slowly crept into the realm of enacting positive law in non-traditional areas. For these reasons, it seems like a "conservative" opinion based on governmental process.

At the same time, the decision does not answer the question of whether same-sex marriage is mandated by the State Constitution, and specifically designates the court as the one to make that decision (while the legislature could do so, it's decision would not be a constitutional decision, but rather a legislative one, and it's power to do so would be uncontroversial). While judicial review was clearly contemplated on the national level by the Founders, by the early states, and most certainly by California, I think that the trust of courts on broad social matters is largely a liberal idea, if for no other reason than the outcomes of the last century tend to have a liberal bent. Thus, the judiciary insulating itself from another branch of government that could make constitutional interpretations retains its supremacy in this area, a process that many liberals should be very satisfied with in the long run.

Are we then left with a Bush v. Gore kind of feeling where the liberal process wins out and produces a conservative result? If nothing else, it is cases like this that show how focusing on the outcome produces inconsistencies in ideologies. Maybe it doesn't show us anything at all. Maybe I should get back to work on my Law Review junk . . .

There is far more nuance that could be added to this analysis, and, after all, the decision could just be called right or wrong, or rest on pragmatic concerns rather than political ones, but I think it is a useful thought exercise to try to place the decision in our usual ideological boxes.

Wednesday, August 11, 2004

Two Great Discoveries 

Learned about two good things in recent days:

The first is The Rock Station webcasting at and others (see here for more). Heard Rush's "2112" and Chuck Berry's "My Dingaling" in the same hour. Quality.

The second is Spybot - Search and Destroy. Like Ad-Aware, except better.

That is all.

Tuesday, August 10, 2004

Way to Go, Brainiac 

Kobe's accuser has filed suit in federal court against Bryant for sexual assault.

To me, this just seems like she has generated something to impeach herself with when she takes the stand at trial, and rather needlessly at that. The statute of limitations isn't going to run for six years, C.R.S. 13-80-103.7 (2003), so there is no pressing need to proceed before trial. And now a criminal conviction will mean, quite openly, that the accuser will profit civilly via res judicata, which a jury can consider when evaluating her testimony. Way to go, Kobe Accuser.

Ah, Creativity 

Reuters reports here that the Ninth Circuit upheld a ruling allowing a man to be punished for stealing mail be being forced to wear a sign in front of the post office saying "I stole mail. This is my punishment." Link via Bashman.

I approve of this punishment: Even if, as the man claims, this does nothing more than shame him in public, then so be it. Prison does nothing more than subject men to the possibilty of daily anal rape. If I were the authorities, I would have made sure the sign was hand written and that some of the words were misspelled. Go Ninth Circuit!

UPDATE: The opinion can be accessed here. Notable line from the dissent:
There is precious little federal authority on sentences that include shaming components, perhaps indicative of a recognition that whatever legal justification may be marshaled in support of sentences involving public humiliation, they simply have no place in the majesty of an Article III courtroom.
I still think it's cool.

Monday, August 09, 2004

The Next Step? 

This dude writes here about class action lawsuits against the alcohol industry because they "target the children."

I'll only respond by saying that the entertainment industry has been "targeting the children" for years, and probably "caused" innumerable teenage pregnancies, drug addictions, violent deaths, diseases, and other horribles, not to mention the number of fools who have fallen by the wayside trying to be a part of the industry. If they were smart, Hollywood and the music folks would do everything in their power to help the alcohol industry destroy the trial lawyers bringing these suits.

Far fetched, I know. Causation, folks. Causation.

ABA Mulls Restricting Juges from Associating with Certain Groups 

The AP reports here that the American Bar Association is considering a rule that would prevent judges from joining organizations that discriminate against people based on sexual orientation. The rule would reach to organizations like the Boy Scouts and likely any religion that looks disfavorably on homosexuals.

Such a ban would fit in well, since, according to the article, the ABA already prohibits judges from joining clubs that discriminate based on race or sex. This rule would simply be the natural extension of this. However, that doesn't make it right.

People may join an organization for many reasons, and probably not very often because of a discriminatory practice it holds. For example, I spent some years in the Boy Scouts (and Cub Scouts before that) without ever thinking about sexual orientation or the Scouts' rules about gays, and I would encourage a child to do so if scouting interested him. I don't think this makes me a bad person, or one that would judge gays extra harshly in court. The same can be said for anyone who plays a round at St. Andrews. I'd go so far as to say the current rules, if they are as strict as the article makes them sound, are unnecessary and restrict too much expressive association.

The point of the proposed rule is not that membership in such an organization would lead a judge to a biased opinion (because any life experience may do so), but, in the view of the proposed rule's proponents, this bias is somehow especially wrong when compared to the normal biases that judges as human beings bring with them every day. However, I don't see any similar reasoning proposed to bar judges who might be predisposed to "discriminate against religion" by finding against the religious in Establishment Clause cases or Free Exercise cases, even though there are groups who might hold such a view (ACLU, I'm looking in your direction), and I'd think that discrimination based on religion is just as invidious as discrimination based on sexual orientation. It seems like invidious discrimination is not what the rule is trying to weed out, just one politically disfavored form.

And, when we are talking about sexual orientation discrimination, it is hard not to talk about religion. Enough religions speak ill of homosexuality that it is quite possible that a great many judges would be affected by this rule because of the way they were raised. To be a judge, people would have to repudiate that single aspect of their religion from their private life, not simply take an oath to be fair and follow the law in their public life. For this reason a rule about belonging to a discriminatory group would simply have too much scope and would unnecessarily burden each person's religious beliefs, even if they vow not to let it affect judicial decisions.

The rule seems designed simply to be outcome determinative, and would sweep far to broadly for my tastes. There are many organizations that advocate for a particular judicial outcome, and the ABA should be cautious before eliminating the benign association with certain groups while leaving unchecked association with groups that strongly advocate for a particular position.

Friday, August 06, 2004

Los Angeles Not-So-Secular? 

After the recent flap about the cross on the Los Angeles County seal and the possible violation of the federal Constitution's Establishment Clause, it may interest readers that the courts, at least downtown at the criminal courts building, swear jurors, bailiffs, and witnesses with the words "so help you God."

Personally, I don't mind, but some may find it a little odd.

Thursday, August 05, 2004

Idiot Sues Dr. Phil 

The AP reports here that a man suffering from bipolar disorder was "told he could watch the taping if he didn't talk to [Dr. Phil] or participate in the program." He has filed suit, claiming a violation of the Americans with Disabilities Act.

This must fail. I'm not the biggest Dr. Phil fan, but I know what the show is about: giving folks "tough love," and having them work out their problems. Never once have I seen anyone with a mental illness seeking professional psychiatric treatment on the show, although more faithful viewers might be able to correct me here. This lawsuit is essentially saying that Dr. Phil shoud be forced to have people with mental illnesses participate in his show. However, this seems impractical as well as dangerous--

First, the show would not have the same appeal if it could not be applied to average, everyday people with simple relationship problems. Part of the appeal is that viewers may want to help themselves. Watching Dr. Phil treat mentally ill patients would not have the same effect on the viewing audience. Thus, the purpose of Dr. Phil's show would be undermined.

Second, the show time is limited. To provde help to a mentally ill individual, who may already be seeking other professional help, should require enough time to be able to find the problem and treat it correctly. Dr. Phil, to perform his duty competently, would probably have to communicate with another doctor, which is also not very conducive to the television format. Because only a cursory examination could take place, the likelyhood of giving bad advice seems high, which could, in fact, be harmful to the participant.

This lawsuit would mandate "tough love" for the mentally ill. Unless someone can spin this for me in a plausible way, this looks like a selfish attack on a very sensible rule. [Note: I have no idea if the Dr. Phil show is even a public accomodation, so I have no comment on the technical merits of the case.]

Brady Time 

Gotta fault the AP on this one. The story refers to "potentially exculpatory" evidence that was turned over to the defense today--information that a witness who testified about certain photos that Scott Peterson was viewing could not identify the photos the night before. The judge has reportedly striken her testimony in its entirety.

The problem with the story, and the statements it attributes to the prosecution, is that this information is not "exculpatory." Under Brady v. Maryland and its progeny, the prosecution is required to turn over all potentially exculpatory and impeaching material in its possession and in the possession of any investigating agency. The fact that a witness could not remember something, thus reducing her credibility on the stand, is clearly impeaching evidence, not exculpatory evidence. It does not tend to prove Mr. Peterson innocent; it only undercuts the prosecution's case by undermining a witness. By implying that the prosecution was hiding evidence that tended to prove innocence, this label is very misleading.

Just based on the facts in the story, I believe the judge did the right thing, since this seems like highly relevant impeachment evidence. But students of Brady would do well to keep the distinction in mind, for not all impeaching material is exculpatory material, and may not be Brady material at all depending on the circumstances.

Trial: Last Day 

Bad news for me. My trial has ended with a judgment of aquittal for failing to prove an element of the offense, to wit, lack of consent. To elaborate, this case was a sting operation involving a bike. The bicycle was the property of the LAPD. From the time the police spotted the defendant to the time he took the bike, there were no officers in his vicinity (thus, no one to give consent). However, neither of the two officers testified directly that there was no permission to take the bike (although I question the officers' foundation to know this, the hearsay problems, and the practical implications of calling everyone with agency to give consent to the stand).

This element should have been able to have been proven circumstantially: it was a sting operation, the purpose was to get people to take the bike, no officers (the ones who could have given consent) were anywhere near the defendant and thus could not have given any consent, the defendant was arrested for taking the bike. All of these make it unreasonable to believe the defendant had consent to take the bike. Nevertheless, the motion to acquit was granted.

I've felt like throwing up for most of the day now.

Wednesday, August 04, 2004

Trial: Day 2 

The end of voir dire went very slowly. By the end, I was not asking very many questions of the newly seated jurors. This was partially laziness and partially strategy; I didn't want to hold the jury up unduly with long-winded questioning when they had already heard most of my stuff already, but I was also just tired of asking the same stuff. I have no regrets about the jurors chosen.

Once a jury is picked, it feels like a giant weight has been lifted. The beginning of the jury selection is the hardest because you are faced with 35 strangers and there is only one chance to make a first impression. After that, things get a little more familiar, and it is different than speaking in front of an audience.

Began testimony today--two LAPD officers. Almost forgot to get my chart into evidence, but weaseled it in on rebuttal. (The defense began to object, but withdrew the objection. I don't feel bad; she got to draw on it during the start of the defense case, so we're even :) ).

At the close of the case, the defense made a motion to acquit because an element of the charge, lack of permission, was not proved during the prosecution's case. Eep. I think I can win this, but it was a boneheaded thing to do on my part.

Stay tuned . . .

Tuesday, August 03, 2004

Ichi Goes to Trial 

Today, after a long summer waiting, I have begun my first jury trial. The judge is old school, and jury selection is going quickly. We got to our voir dire questions about an hour after the venire was called to the courtroom, which, in my experience at least, is quick. We should have a jury before lunchtime tomorrow.

Jury voir dire is tough: in trial advocacy witness examination role-plays are at least fairly realistic, but juries full of strangers are difficult to duplicate. And, since this is one of the most important parts of trial, the learning curve is quite steep, especially for the prosecution since they must weed out every nut in order to avoid a hung jury (while the defense is looking for the stealth-nut to hang that panel!). It was though, but I think I held my own.

More to come.

One Thing at a Time 

PG over at the De Novo ponders the difficulties with the Supreme Court's Blakely decision here; the decision that required juries, not judges, to determine all facts that could affect sentencing. But one thing that PG worries about, which she shouldn't too much, is the retroactive applicability on habeas corpus.

28 U.S.C. sec. 2254(d)(1), the statute allowing federal habeas corpus of state court decisions, reads as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . . (emphasis added).
Since most criminal convictions come from state courts, 2254(d)(1) would effectively bar retroactive application of Blakely to most prisoners since the rule was not "clearly established . . . by the Supreme Court" at the time of sentencing.

Federal prisoners are a little sticker, as 2254(d)(1) does not apply, and many courts of appeals have held that the Supreme Court's decision in Teague v. Lane instead still applies to federal habeas corpus, which means that generally decisions will not have retroactive application. There are two exceptions: first, if the court declares that certain primary conduct may not be criminalized (i.e., as in Lawrence v. Texas), then a habeas petition may be heard; second, if it involves a watershed rule of criminal procedure. The first Teague exception is clearly out, but at first glance the second one may be in play here. After all, having a jury as a fact-finder certainly would seem like a foundational rule of criminal procedure that would effect the fundamental character of a great many sentencings.

However, just this term in Schriro v. Summerlin, the Court held, applying Teague in an opinion written by Justice Scalia (the author of Blakely), that a decision mandating that a jury do the factfinding of agrivating factors in a death penalty case does not constitute a watershed rule--judicial factfinding did not seriously undermine the factfinding process or seriously diminish accuracy. Based on this ruling, it seems that federal sentencing should be safe from retroactive application of Blakely on habeas corpus.

Thus, because of 2254(d)(1) in state cases, and Summerlin's reasoning applied to the Teague analysis for federal cases, the issue of retroactive application on habeas seems relatively well settled.

But this is just one commentator's opinion.

Sunday, August 01, 2004


Just got back from a buddy's bachelor party in Las Vegas. Since it was my first time, I had a few observations. First, the desert is hot. Second, open containers of alcohol on the street are awesome. Third, the best I can ever hope to do is sit at a table and slowly lose my money over the longest time possible, hopefully while drinking. Sigh.

One of the other guys there placed a bet for a friend who wanted to put $5 on his birthday (19) on the roulette wheel. He gave him enough money for two spins. It only took one. $175 payout. C'est la vie.

The desert is hot.

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