Criminal Appeal

Cal. Supreme Court Activity.

No conference Thanksgiving week.

The prior week, the Court granted review, but deferred briefing, in People v. Ochoa, no. S128417, which presented both Blakely and Crawford issues.

The court also granted review, but deferred briefing, in In re Cortinas, S127439, in which the Court of Appeal had reversed an order granting habeas relief in connection with a parole suitability hearing. Briefing is deferred pending In re Dannanberg, S111029 which was argued on Nov. 4.

Finally, the Court also granted OSC's in two capital habeas proceedings: In re Bolden, S099231 and In re Valdez, S107508.

Blogging will be light until we move into our new house. We're vacating the old house tomorrow and the computer is already packed away in the basement of the new house. Unpacking will be late next week, when the floors are done and we can actually move in. In the meantime, keep checking back for Criminal Appeal news and opinion summaries. I will have sporadic access to a computer in the evenings. (No blogging from work.)

Sixth Turns Twenty.  "Sixth Appellate District Marks 20-Year Anniversary," says the press release. The court started with three justices, but is now allotted seven (only six seats are currently filled).

Case Summary Highlights. Today's (Monday's) cases are summarized at Criminal Appeal II (Opinions):

First published California case analyzing Prop. 36 sentencing post-Blakely.

Ninth Circuit rejects 8th Amendment claim for petty thief serving 3 strikes sentence.

Interesting civil en banc decision from the 9th Circuit on excusable neglect in late filing of NOA.

(I've also been summarizing Cal. Court of Appeal opinions from October. I'll be mixing in the earlier cases with the current cases. For quick distinsuishing of the old from the new, the older cases will have dates in red.)

Blawgs. You might have noticed that I'm often slow to update the blogs listed in the side bar. This is part intentional and part I-barely-have-time-to-post-and-the-side-bar-gets-the-shaft.

Anyway, here are a few new blawgs and blawgs with which I've recently re-acquainted myself.

Appellate Law & Practice "This blog is devoted to appellate law and will provide case summaries and links to articles on appellate advocacy." ALP has six bloggers and each has his or her own beat: "BH" covers the Ninth Circuit and "Sunshine Docket" covers the Cal. Supreme Court.

Crime & Federalism, which covers "Criminal law, white collar crime, federalism, the Commerce Clause, enumerated powers, separation of powers, actions brought under 42 U.S.C. section 1983, government misconduct."

The Legal Reader: "A daily dose of links to interesting legal news and Other Fancy Stuff, live from San Francisco."

White Collar Crime Prof Blog is the blawg of Prof. Peter J. Henning of Wayne State Univ. Law School and Prof. Ellen S. Podgor of Georgia State Univ. College of Law.

The Shout: Opinions on Everything, which is the blog of Jennifer Granick, who directs the public interest law and technology clinic at Stanford Law School's Center for Internet and Society. She's a (former?) criminal defense lawyer who represented Kevin Poulsen and at one time worked at the State P.D.

DUIblog: Bad Drunk Driving Laws and the New Prohibition, which is the DUI blawg of California attorney Lawrence Taylor.

"Should the Ninth Circuit be divided?" That's the title of this past week's debate at the LegalAffairs Debate Club.

The debaters: "Jennifer Spreng, a bankruptcy attorney in Owensboro, Kentucky, served as a clerk for Ninth Circuit Judge Andrew J. Kleinfeld and has published two law review articles analyzing Ninth Circuit administration issues. Carl Tobias is the Williams Professor at the University of Richmond School of Law."

California Opinions. I've summarized California opinions form the last 10 days of September (except the Blakely opinions, which are already available elsewhere on the web). Start here (Nov. 11) to look back at late-September California criminal cases.

Berman on Gonzales. Doug Sentencing-Law-and-Policy Berman reflects this morning on AG-nominee Alberto Gonzales and sentencing issues, particularly the death penalty.

Alberto Gonzales: 

• Go to TalkLeft to read the thoughts of a former very high-ranking official of the Justice Department (under Clinton) (and TalkLeft reader).
• Read Gonzales' Memo to the president regarding the application of Geneva Convention to the Taliban Al Qaeda.
• Listen to NPR stories on the nomination, as linked to in this post at How Appealing.
• From FindLaw, read an article entitled "White House Counsel Alberto Gonzales's Texas Execution Memos: How They Reflect on the President, And May Affect Gonzales's Supreme Court Chances."

Ninth Circuit Proposed Local Rule Amendments. Comments are due on Nov. 19, 2004, on the proposed amendments to the Ninth Circuit rules.

No Cal. Supreme Court grants of review in criminal cases this week. Read the order list .

Kozinksi and Thomas Opposing the Split. Read their Wall Street Journal op-ed piece (as reported by How Appealing).

Ninth Circuit Opinions Summarized Through Today.

In the past couple of weeks I've done some catching up on Ninth Circuit opinions.

For opinions in federal criminal appeals from September and October, start with the November 9 entries at Criminal Appeal II (Opinions) and scroll down.

For habeas opinions from September and October, start here and scroll down.

No Booker and Fanfan, yet. Supreme Court decides two other cases today:

Leocal v. Ashcroft, holding that drug driving causing serious bodily injury is not a crime of violence that can lead to deportation of a permanment resident. Read the SCOTUSBlog post on Leocal here.

Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd.

Booker and Fanfan Tomorrow? Possibly. SCOTUSBlog is reporting that "Tomorrow the Court will issue one or more opinions from the eleven arguments in the October sitting."

Splitting the Ninth is the subject of this week's legalaffairs.org Debate Club.

Right to Put on a Defense. In catching up on my opinion reviews, I came across this nugget on harmless error:

U.S. v. Boulware, no. 02-10287 (9th Cir. Sept. 14, 2004).

The district court abused its discretion by excluding evidence of a state-court judgment that directly supported the defense to tax charges and directly contradicted the government’s theory. The state court judgment was relevant and not excludable under the hearsay rule. Interestingly, the 9th Circuit applied the Chapman standard of prejudice because the evidence was crucial and the defendant was denied the right to put on a defense:

the state-court judgment was crucial to Boulware’s defense on the tax counts, and the judgment directly contradicted the government’s theory of the case. The district court’s exclusion of the judgment denied Boulware “a meaningful opportunity to present a complete defense,” Lopez-Alvarez, 970 F.2d at 587-88, and thus violated his due process rights. We must therefore reverse unless the error was harmless beyond a reasonable doubt.

The court, however, rejected sufficiency of the evidence claims as to the tax evasion convictions.

Judge Silverman dissented, concluding that the state court judgment was not relevant.

Three Strikes Law Still Overinclusive!

As I commented over at Patterico's Pontifications (Patterico is a deputy d.a.), the swing in public opinion on Prop. 66 tells us that Californians think the 3 Strikes Law is overinclusive, but, when confronted with the prospect of the release of 26,000 felons, including sex offenders and murderers, they didn't want to fix it the Prop. 66 way. (Of course, that's not really what the initiative would have done, but I guess we're past that now.)

With that in mind, how about: (1) leave the serious & violent felony lists alone (no matter how much I'd like to get 422's off that list); (2) require a current conviction for a serious or violent felony for a 3d strike 25-to-life sentence; (3) allow 2d-strike sentencing (doubling of base term) for any current felony (with one prior serious or violent felony); (4) expressly provide for resentencing for third strikers only (no one need worry that release of 26K inmates is imminent), but no resentencing for third strikers who have prior homicide or sex offense convictions.

While this proposal would be a way-underinclusive fix, it answers a great deal of the concerns expressed about Prop. 66.

I've been flip-flopping all day about whether 3 Strikes can ever be fixed. There was wide popular support for some components of Prop. 66. Can legislators or future initiative writers/backers see that, or can they only see the blur of Jerry and Arnold.

Same President. New Senate. Bush stays. Republicans get slighter bigger majority in Senate; looks like 55-44-1. They need 60 votes to overcome the filibusters of the more extreme nominees.

Read the coverage (excerpts here).

Filibusters an Election Casualty? (The Recorder, subscription req'd):

California Supreme Court Justice Janice Rogers Brown, whom Bush nominated for the D.C. Circuit U.S. Court of Appeals, may be one of the early beneficiaries. Brown, like Bush's nominees to the Ninth Circuit U.S. Court of Appeals, William Myers III and Carolyn Kuhl, is blocked by a filibuster, preventing a full Senate vote.

A momentous election for the United States Courts: (How Appealing)

As matters now stand, it appears certain that President Bush has won reelection, and Republicans appear poised to control a total of 55 seats in the U.S. Senate. At least two Justices serving on the U.S. Supreme Court are likely to retire from the Court before the end of President Bush's second term (the Chief Justice and Sandra Day O'Connor), and more vacancies are always a possibility.