Appellate Law & Practice

Capital Odds and ends (including Saddam hanging)

• Video of the hanging of Saddam can be found here.  Anyone who favors the death penalty, or the procedure applied in this case should watch this and share it with your children.  If you can’t stand to watch it or you won’t show it to your children, you need to re-evaluate your position.  US lawyers approved of the procedure and authorized the hand-over of Saddam.  (Crafting it to avoid the jurisdiction of American courts, see here, and cooperating in the bending of Iraqi law. )  Hopefully, this will encourage the videotaping and dissemination of future executions in the US, so that they can be shown in schools so we can have an honest discussion about the merits of the death penalty.   (The CNN video, with less graphic content is here.)
  
• And speaking of the death penalty, the Texas Attorney General’s letterhead (which came from a letter they sent in a death penalty case) includes the following notices: they are an equal opportunity employer, and their paper is recycled.  Remember: 1) recycled paper; and 2) equal opportunity employer.

Update: For your convenience, below the fold, I selected two images from the Library of Congress repository of public domain photos depicting executions that were 1) not in combat; and 2) under the jurisdiction of the United States and undertaken pursuant to some form of judicial process.  Therefore, there are no deaths in wars, lynchings, or criminal acts are included.

Fourth Circuit knocks teeth out of RLUIPA

Is the title of a post at DotD.  I guess some opinions need to wait until after Christmas to come out!

• SWVA Law blog comments here. 
• The ACLU's amicus brief can be found here.

CA1: how not to toll an employment discrimination case

Rivera-Huertas v. Commonwealth of PR, No. 06-1764 (unpublished).  This is a 1983/Title VII/sexual discrimination case.  There are some interesting issues presented (such as how the plaintiff’s sexual orientation might have been an issue).    However, the courts disposed of it on statute of limitations grants, because under 42 U.S.C. § 2000e-5(e), “Title VII requires that a charge ‘shall be filed [with the EEOC] within one hundred and eighty days after the alleged unlawful employment practice occurred, ‘ or within 300 days if the person aggrieved ‘initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice.’”  The court rejects the idea that the complained-of activities were continuing, and that other means to toll the statute were not raised below.

CA1: no vacation of arbitration

Vital Basics v. Vertrue Incorporated, No. 05-2741 refuses to vacate the decision of an arbitration panel.  Initially Vital Basics had sought vacation in the bankruptcy court, and the bankruptcy court confirmed the award.  The District Court affirmed.  Essentially this comes down to whether the courts are going to second-guess an interpretation of a contract between two parties of seemingly equal bargaining power.  For predictable reasons, they don’t.

By the way, searching in Google using the following search terms yields a bunch of hits which indicate when the First will vacate an arbitration decision.

site:appellate.typepad.com arbitration

First Circuit to be closed on Tuesday

In honor of President Ford.

So, you can all go outside and play.

CA1: another BIA screwup

Ticoalu v. Gonzales, 05-1620 remands the BIA's after a denial of a motion to reopen after the petitioner presented new evidence, including an order by another IJ granting asylum to his brother.  The petitioner is an Indonesian Christian, and the petitioner had submitted newspaper articles regarding violence on his island (and some other islands), so this also needs to be addressed on remand.

Not surprisingly, the BIA screwed things up and did not even attempt to address the fact that a contrary result was reached by another IJ.  What the heck were they thinking?

CA1: How little Booker matters

US v. Gobbi, 06-1643.  The facts sound like something out of a modern gangster movie.  Although convicted of distribution of cocaine, the defendant argues that there was insufficient evidence that he attempted to constructively possessed cocaine.  The prosecution requested, and the jury was instructed on three theories:  a standard attempt formulation, aiding and abetting, or Pinkerton liability.  The First looks at the "aiding and abetting" theory and applies the facts, finding that the three elements exist:

(1) that the underlying offense was committed by a principal;
(2) that the defendant consciously shared the principal's knowledge; and
(3) that he willfully associated himself in some way with the crime and willfully participated in it as he would in something he wished to bring about.

United States v. Keene, 341 F.3d 78, 84 (1st Cir. 2003)

Character evidence (in the form of a conversation regarding "drug protection" rather than "drug purchase").  However, the First explains that the drug conspiracy was so broad that this evidence was simply relevant to a different part of the conspiracy.  Likewise, it wasn't unduly prejudicial. 

Then it starts getting disturbing.  The First broadly declares that acquitted conduct can still be used to enhance sentences!  Whoopee!  Their analysis is disappointing, since it just refers to pre-Booker caselaw.

An enhancement for obstruction of justice (i.e. that the defendant was stupid enough to testify in contradiction to the government's evidence) is affirmed because the court conducted an independent review of the record, and that the standard is a preponderance of evidence

Cali 3d: If you call us a kangaroo court, we will reverse you

The California Appellate Report points to this case from the California Court of Appeals, Third Division. Just a few of the highlights are:

• The Trial Court referred to the Court of Appeals -- that is, the one that would review this case, as a "kangaroo court.  (Not only is this unethical and pejorative, but for reasons of California law it made various inferences that were substantively incorrect.)"
• The defendant was sentenced to prison for a crime that he was not convicted of.
• Counsel for defendant filed the California equivalent of an Anders brief, and only briefed the issues discovered by an awake law clerk after being asked to.

Since I don't practice in California, I don't really know who the players are and their personalities, but someone sure got bench-slapped, and accused of wasting taxpayer money, and rightly so!

But, this raises the question, how often are similar things happening?  Is this just the tip of the iceberg.  Has this trial judge, who so flippantly disregarded just about everything we hold dear done it before?  Are there judges that are better at concealing their practices?

PrawfsBlawg comments here.  Legal ethics forum comments here.  Volokh comments here.

Comment:  Most of the commentary has centered around the fact that the lower court judge is effectively punished for speaking his mind about the appellate court.  Somewhere along the line, our rules of professional ethics have managed to institutionalize a culture where attorneys and judges are unable or unwilling to criticize politically popular decisions.  Let's face it, we all know that some courts are made up of judges will little or no experience representing the dregs of the country and have a solid record of screwing the poor.  Are we just support to ignore this?  Can we not tell these courts that they need to break from their patterns?

And, let's stop lying about it: judges and lawyers are constantly calling each others names.  They call each other "results oriented," "activist," and "stupid" all the time.  Anyone who claims that they know of a chambers where people don't use these words is mistaken.  

CA1: The clerk was trigger-happy on judgments

Diaz-Reyes v. Fuentes-Ortiz, No. 06-1179.  This case starts out like a garden-variety Puerto Rican political discrimination case.  It gets appealed.  But rather than get to the merits, the First takes a look at the proceedings and notices that the clerk entered a judgment, "pursuant to Fed. R. Civ. P. 58, two weeks after the district court issued the order allowing the defendants' motion to dismiss."  But, "a review of the district court's order reveals that the court did not intend this order to be a final judgment disposing of the litigation. The order stated that the Title VII claims against the Comptroller defendants were dismissed only to the extent that they asserted individual capacity claims."  Moreover, the defendants didn't move to dismiss the claims made against the people in their official capacity, nor did the defendants make such a move.  Therefore, there was no real judgement on such claims, therefore the the First lacks jurisdiction under 28 U.S.C. § 1291. 

CA1: Post Office Title VII returned to sender in light of Burlington Northern

De-Jesus v. Potter, No. 06-1046 (unpublished).  In this Title VII/retaliation claim, what appears to be a mid-level manager at the post office was taken out of the loop regarding where various new employees would be assigned.  She claimed that she was being discriminated against because of her national origins (she is Hispanic, but born in New York, and worked in Puerto Rico).  The First holds that merely being excluded from the management decisions is not enough under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Another the other part of her claim, in which she alleges that derogatory comments about her national origin were made and tolerated also properly failed on summary judgment, because it just was not hostile enough to make out a claim for "hostile environment" discrimination under title VII under Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998).

However, after the plaintiff complained her supervisor, he stopped communicating with her, and started communicating with her subordinates.  After the District Court granted summary judgment, the Supreme Court decided Burlington N. & Santa Fe Ry. Co. v. White, 548 __ U.S. __, 126 S. Ct. 2405 (2006), and the First returns this to sender, so that the District Court can take another crack at the retaliation claim.

I don't know why this opinion was unpublished.  It contains a lot of trivia about the way the post office is organized, and the District Court appears to have gotten something wrong. 

PS:  I know a lot of postal workers read this blog.  I think you are doing a great job.  I would like to suggest that you read the underlying opinion before commenting on it, because there probably are some details relating to how the post office delivers (for me) that go over my head.