Appellate Law & Practice

Selya on Blogging

The Boston Globe reports that US District Court Judge Nancy Gertner has been a contributor to Slate.  Judge Selya, who is known for his constant use of big words in cases that send poor people to jail says this:

I think it would be a great strain on me to be careful not to say anything that could come back and make it seem like I prejudged a matter when it actually came before me,

But, here is the problem: Do judges really have to make an effort to appear not to be biased, when everyone knows where their sympathies lie?  Wouldn’t it be better to have a nice stream of  consciousness from every judge, so we could know if they are predisposed to rule a certain way.

Tnx. HA, SL&P.

Why not more about the Second Circuit’s censorship?

I am somewhat surprised to see that there has not been too much blogosopheric coverage of the Second Circuit’s failed attempt to redact details of Higazy v. Millenium Hotel and Resorts, in which the government conceded that an FBI agent coerced a false confession from the plaintiff.  At a minimum, the Second's Actions would seem to raise many First Amendment issues.  I can't seem to find anything on VC.

Truth be told, many Americans think that coerced confessions (true or false) are a good thing. They think that it is is “activist” to require the exclusion of such confessions from jury trials, thinking that a jury can determine for itself whether a confession is true or not. Some would even go so far as to hold that details of how a confession is extracted are inadmissible if the government says that it doesn’t want a jury to know them. Moreover, in a “national security” context, a false confession might serve a useful purpose. (Obviously the actual useful purpose of a false confession would be secret, but that isn’t the point.)

But why are not more First Amendment types angry about the Second Circuit’s redaction and subsequent fruitless phone call to Howard Bashman who has become a hero of the First Amendment by posting the full decision? Doesn’t the public have an interested in knowing the methods used to extract confessions (true or false) from individuals?  “Wait A Second” speculates the Second Circuit’s behavior is a "Everything is different after 9/11” approach. Under this approach Arabs that hate America have been deemed to modify our constitution via violent acts. Is this what happened?  It gets worse: the Second Circuit, itself has held that even in civil trials there is a First Amendment right to discovery materials that serve are necessary to the judicial process.  The Second uses the concept of a "judicial document" (which is different than a "judicial record") to describe documents that are subject to disclosure U.S. v. Amodeo, 44 F.3d 141 (2d Cir. 1995).  It wote:

While we think that it is proper for a district court, after weighing competing interests, to edit and redact a judicial document in order to allow access to appropriate portions of the document, we consider it improper for the district court to delegate its authority to do so. It is not apparent here whether the district court merely accepted the representations of the Court Officer with regard to the matters claimed to be inappropriate for release or made its own determination. What is clear is that the court released Exhibit A exactly as edited and redacted by the Court Officer and without making any written findings of its own.

It seems to us that the district court should make its own redactions, supported by specific findings, after a careful review of all claims for and against access. See In re New York Times Co. , 834 F.2d 1152, 1154 (2d Cir. 1987), cert . denied , 485 U.S. 977 (1988).  Such findings would provide us with a basis for effective review in the event of a future appeal.  See Press- Enterprise Co. v. Superior Court , 464 U.S. 501, 510 (1984).  The findings may be sealed to the extent that their articulation reveals information that should not be disclosed.  United States v. Haller , 837 F.2d 84, 88 (2d Cir. 1988).

So, there you have it.  Fact-finding is needed in the Second Circuit when the underlying document is at relevant to the judicial process.  Any assertion of a privilege by the government must be supported by facts and factual findings.  This didn't happen.  In fact, Mr. Bashman told ABA Journal that the Second offered no good reason for the redactions.  In fact, the statements were not even made by the government, but rather by the plaintiff.  Bashman wrote:

No one from the 2nd Circuit has attempted to explain to me the so-called security concerns--which as far as I can tell based on my own analysis apparently arise from certain statements attributed to Mr. Higazy in the opinion's factual recitation--that led the 2nd Circuit to remove the opinion from its Web site after the opinion had been posted there for all to see and access.

Now, in notes attached to the redaction, the Second seems to say that the defendant (a government employee) coerced a confession.  Does that mean that it is no longer relevant to the judicial proceedings?  Doubtful.  Since this matter will be headed back to the District Court, the government’s concession on the confession will be relevant to, at the very least, determining damages.  Likewise, the Second Circuit, in determining that the government employee was not entitled to qualified immunity seems to have actually used the government employee’s behavior as a means to determine that he wasn’t entitled to qualified immunity. But, maybe I am wrong.  Maybe there is some justification for this.  The Second doesn’t give it.  The Second’s failed attempt at suppression of the facts seems to indicate that they think they must accept the government’s assertions about what is or is not a judicial document at face value.   [An alert reader has suggested that the government could be trying to argue not a “law enforcement privilege” but an “orderly conduct of foreign relations” privilege.  However, no such evidentiary privilege exists.]

But, maybe the constitution should be changed by the Americans that are empowered to amend to (as opposed to Arabs that violently killed people on 9/11).  Who knows?  Maybe the public will agree with the government: confessions extracted under coercion serve a useful purpose. Maybe the constitution will be amended to suit the government’s needs.  After all coerced confessions do the following: 1) instill respect for the law; 2) separate people of high moral character (that won’t confess under torture) from people of low moral character; 3) might result in information about other people; 4) provide a useful outlet for the frustration of people that would otherwise be bullies that now work for “law enforcement”; 5) allow the listener to create reality, as they are no more “true or false” than the observer is willing to believe in the first place (I don’t know why so-called conservatives don’t take up the banner of post-modernism); and 6) such confessions do not result in any real harm to the republic if a non-American is abused.

For a related story, see our coverage of the DOJ's rationale for not taping confessions, which is, essentially that juries might not like the methods we use to extract them.  Or, in their words, juries should not see or hear the confessions (or judge their propriety) because, in the DOJ's words, “Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants."

Okay, here is the Blog Coverage:

• Patterico's Pontifications ("Was a Passage Omitted from a Recent Second Circuit Opinion for “Security” Reasons — Or to Cover Up Material Embarrassing to the FBI?")
• Psychsound ("A tale of two decisions (or, how the FBI gets you to confess")
• ABA Journal
• Legal Blog Watch
• Public Eye
• Kevin Drum
• Tony Mauro
• Unqualified Offerings
• Free Constitution
• Another Panacea
• Second Hand Conjecture (who argues that because this is at summary judgment, we should not view this as a cover-up).

Stop and Fisking the Drake response

Michael Drake, the chancellor of Irvine writes to set the record straight on why he let Chemerinsky go. 

(Our earlier post here.)

Stop and Fisk below the fold.  (And more Frisking at TaxProfBlog here)

Coverage of that doughnut case.

 Over here we covered B&M Donuts, Inc. v. Honey Dew Associates, No. 06-2100 (6/13/07). To me this was a civil procedure case involving screwed up verdict forms and motions to amend the judgment. But, to people that actually care about franchise law it is much greater, because it involves fees.  At Blue Maumau, there is a lot of coverage, and quotes from counsel. 

Hints for judging moot court events

In the past few years I have had the opportunity to judge moot court events.  Just like voting allows citizens to regress to the time in their life associated with high school gymnasiums, moot court competitions allow people to regress to the time in their lives that they were in law school. Despite the endowments, cocktail parties, and chit-chat with professors, law school is a lot like high school.  Moreover, judging a moot court competition allows you to see all the annoying, back-stabbing, platitude-filled, and desperate law students.  Unlike voting, refreshments are provided.

I have previously said that most moot court events are not realistic.  Students don’t have to plow though an extensive record.  They don’t have to deal with difficult clients.  They also don’t have the opportunity to determine what the panel likes and doesn’t like.  Organized moot court programs don’t teach students to be good appellate advocates, but rather, they teach them to win moot court competitions. And the kicker is that the judges don’t get to read the students briefs.

So, with that in mind, I came up with a few suggestions for judges of moot court competitions.  But, you need to look below the fold for them.

Where the line between "them" and the government lies

Some time ago it came to light the “reason” that U.S. Attorney Paul K. Charlton was “fired” was that he somehow screwed up the FBI’s procedures for (not) taping witnesses.

The Tuscaloosa news reports it like this:

The F.B.I., in documents defending its policy, argued that taping was not always possible, particularly when agents were on the road, and that it was not always appropriate. Psychological tricks like misleading or lying to a suspect in questioning or pretending to show the suspect sympathy might also offend a jury, the agency said.

“Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants,” said one of the once-secret internal Justice Department communications made public as part of the investigation into the dismissals of the United States attorneys.

So, get it straight lay people.  When the FBI tricks one of you into confessing, they are not going to tell a jury of your peers what the tricks were.   After all, juries really don’t have a role in deciding what confessions are credible.  Right?  I am sure that this will all play out in court, but it goes to show that it isn’t people like me who are the real elitists.

And, let’s face it, people, lots of jurisdictions do tape.  If highway patrol men can carry small tape recorders, so can FBI agents.  Real elitists see jury trials not as the ultimate equalizer of class and education, but rather the capstone of a long period of tricks, class-warfare, and general trickery.  Real elitists don’t let their clients get into positions where they can be tricked by FBI agents.  You can read the documents (from the House JC's server) here, here, and here.

Tnx Injustice Anywhere (and others like Salon). 

And, if that don't float your boat, SexCrimeDefender points to a controversy surrounding  Ron Jeremy's planned visit to Simmons College in which he will talk about that which he knows best.  Apparently, people argue that because he has made a living doing something he isn’t an objective speaker on the issue.    I feel the same way about appellate judges.

The even bigger irony is that if you were born after Watergate you probably know Jeremy for his comedic roles, in which he plays a parody of himself. 

You can tell the First isn't up to anything good.

Why Nieves-Castaño is wrong !

I got a tale here of some judicial activism. No, it isn’t the flashy kind of judicial activism that they talk about in the public-oriented blogopshere. It isn’t even the kind that I hate (where the judges frustrate the intentions of the parties). Instead, it is a more annoying kind where judges use other judicial constructions to get around constitutional problems with the statute. It is nerdy! nerdy! nerdy! 

Here is my point:

The First Circuit improperly imported a doctrine regarding collateral review of state court decisions concerning vagueness to avoid addressing a facial challenge to a statute, substituting intead, a reference to its own decisions regarding as-applied challenges to a similar (yet different) statute!

Keep reading, and if you disagree, pipe up.   Even if you are the kind of person that thinks that  our prison population is too small, you might agree that there is a doctrinal problem in this decision.

Public defenders, sentencing, and, (guess what) class

I am sure that the Blogosphere will be blogging about this op-ed by Judge Morris Hoffman, who conducted an empirical study which analyzed sentences handed out to people represented by public defenders v. privately retained counsel. SL&P already comments here.

University of Michigan’s Original Intent Bonanza!

The saintly folks at the University of Michigan have scanned and uploaded a dumptruck of legal works to the web as part of their Making of America (MOA) project.

This is truly a-freakin’-mazing!

Now, you can read and download treatises that the framers of the constitution and the 14th amendment were reading without actually leaving your office!  No more will you have to breath the poisonous air of the environment or go to the library and risk having to be around law students.  There are many, many books online.  Some, like the ones about slavery and subjugation of women, are of little use to lawyers in most states.  Others are quite relevant to issues before the courts now.  So, for your convenience, I picked a few that might be of use.

• Henry Adams et al., Essays in Anglo-Saxon Law (1876).  Go here. 
• L.J. Bigelow, Bench and Bar: A Complete Digest of the Wit, Humor, Asperities, and Amenities of the Law (1867).  Go here.
• Joseph Chitty, The Law of Nations; Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns. From the French of Monsieur de Vattel (1853).  Go here.
• Luther Stearns Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States of America (1856).  Go here.
• Sherburne Blake Eaton, A Discussion of the Constitutionality of the Act of Congress of March 2, 1867, Authorizing the Seizure of Books and Papers for Alleged Frauds upon the Revenue, Together with a Brief Statement of Certain Objections to the Practical Working of the Law (1874).  Go here.
• Sidney George Fisher, The Law of the Territories (1859).  Go here.
• William Lawrence,  The Law of Claims Against Governments, Including the Mode of Adjusting Them and the Procedure Adopted in Their Investigation. Pub. by order of the Congress of the United States of America (1875). Go here.
• Robert Phillimore, Commentaries Upon International Law (1854).  Go here.
• Furman Sheppard, The Constitutional Text-book: A Practical and Familiar Exposition of the Constitution of the United States, and of Portions of the Public and Administrative Law of the Federal Government (1855).  Go here.
  
• Henry Wheaton, Elements of International Law.  Go here.
• Theodore Dwight Woolsey, Introduction to the Study of International Law, Designed as an Aid in Teaching and in Historical Studies (1871).  Go here.

More on Castaneda-Castillo

Benders Immigration Bulletin provides some commentary on Castaneda-Castillo v. Gonzalez (our coverage here). Of note 1) the swing vote was held by Judge Hug of the 9^th Circuit; 2) Judge Lynch’s views, in the dissent, are viewed as articulating an almost “impossible” standard of review of BIA decisions; and 3) in a likely rehearing en banc, Judge Hug won’t be sitting.uHugsfsHHHHHasdl;kjas;dlkasjdlajla