Criminal Appeal

Recent 9th Cir. & Cal. Supreme Court Oral Argument Recordings:

En banc 9th Circuit capital habeas arguments:

• Landrigan v. Schiro, no. 00-99011 (Mar. 24, 2005)
• Summerlin v. Schiro, no. 98-99002 (Mar. 22, 2005)

9th Circuit Booker/Blakely En Banc case:

• United States v. Ameline, 02-30326 (Mar. 24, 2005)

Cal. Supreme Court Blakely Case:

• People v. Black, no. S126182: audio (wax file); video (asx file)

No Criminal Review Grants This Week.  The California Supreme Court granted review in just one criminal case this week, but it was just a "grant and hold" pending the decisions in Black and Towne, the Blakely cases.

Juxtaposition. A couple of weeks ago I had the experience of appearing in superior court one day and the court of appeal the next. Oh, so different ...

	Trial Court	Court of Appeal
The Entrance.	Judge enters court room with robe over shoulder, approaches counsel, tells us what her ruling is going to be and commits us to our positions.	Judges file in already-robed, of course, and call the calendar.
The Client.	Client is in holding cell ("the bullpen") next to courtroom.	Client cannot attend; he is in state prison.
The can.	Gritty and exposed: un-enclosed toilet in the holding cell, sheets of toilet paper on the floor.	Fancy and private: motion detector flush toilets.
The substance.	Hearing goes as judge scripted, but her humanity shines through.	Justices ask few questions. I have one very strong argument relating to prior conviction enhancements that should have received some attention. Although their silence suggested disagreement, no questioning on that very strong issue. No interest in even disabusing me of my notions?
Immediate gratrification?	Judge rules from the bench. We learn client, 10.5 actual years into a 30-to-life sentence, is going home that day or the next.	Decision is taken under submission.
Feelings.	Elated.	Flummoxed.
The Release.	11 p.m. client is released from county jail with no funds, but safely makes it to relative's home.
The opinion.		A week after argument, the court issues unpublished opinion rejecting all significant arguments. The reasoning on the strongest issue is essentially that of the attorney general's, but my most significant points to the contrary are not really addressed.
Still at work.		Petition for rehearing pending. (I might win this one.)

Survey for Appellate Attorneys. The California Supreme Court Advisory Committee on Rules for Publication of Court of Appeal Opinions is reviewing the current standards for publication of Court of Appeal opinions, and they've got some questions for appellate attorneys.

Here are some of the sorts of questions in the survey (and my two-cents):

• Are courts of appeal publishing all opinions that meet the criteria for publication? (I think not. I see expansion of, or significant distinction of, precedent in unpublished opinions.)
• Should unpublished opinions be citable in petitions for review to show a conflict? (Absolutely and the rules already allow for that. Such citation does not constitute citing the unpublished case for precedential reasons and is no different from the Supreme Court taking judicial notice of an unpublished opinion to note prior prosecutorial misconduct (or IAC) of an attorney involved in the current case. (See People v. Hill (1998) 17 Cal.4th 800,  847-848 and fn.9.))
• Should the rules governing partial publication be changed? (Yes. Let's go to the 9th Circuit model of putting the published and unpublished section in separate documents. That way you can pick up (or open a link to) a published slip opinion and know that the whole thing is published without trying to remember "this  opinion is certified for publication with the exception of parts I, II, III, IV, V, VI, VIIE, VIIIB, C, D, E, and IX" (this is a real footnote) as I flip through the opinion. O.k., not a big deal, but wouldn't it be a little easier?)

CALJIC Out? The California Judicial Council is seeking comment on proposed amendments to the rules of court which "would provide for the Judicial Council’s endorsement of the new Judicial Council criminal jury instructions."

This comes as little surprise and, given the labor already put into the new instructions, it will surely pass. The current proposal states that the new instructions will go to the judicial council later this year.

Looks like many of us will have a new book on our shelves next year.

Review Grants. This week the California Supreme Court granted review in four cases, but all had briefing deferred pending other cases. So no new issues to think about.

Tech Difficulties. Sometime in the next week or so the crimblawg.com address will be down for a few days. In the meantime, use: http://scrolling.blogs.com/criminalappeal.

Update: problem solved.