Appellate Law & Practice

CA9 (en banc): Appeal waivers don’t deprive CTAs of jurisdiction

So says  U.S. v. Castillo (9th Cir. - July 25, 2007) by Bybee, whose name will always be associated with the torture of people by those with pay grades below GS-15.  I never understood why there was confusion about this issue, but some people that there is.  But, it is actually a pretty well-written a coherent opinion. 

The dissent concentrates not on the question of whether a “rule” or statute is jurisdictional, or whether predicate facts can change the nature of a court’s jurisdiction, but rather on whether a guilty plea moots the issue, thereby depriving the court of appeals of jurisdiction.  Tnx Cal. App. Rep.

Another indictment dismissal -- this time for vindictiveness

California Appellate Report has the details of its affirmance by the 9th.  The case is  U.S. v. Jenkins (9th Cir. - July 17, 2007).   I guess this can boil down to this:  It doesn't matter whether charges do not arise out a different nucleus of operative fact[s], in indicting a defendant during trial for, what seems to be exercising the right to go to trial creates a burden on the government to show that their behavior wasn't vindictive.

CA9: The Power of Brady

The Ninth Circuit Blog has a discussion of the en banc decision in United States v. Jernigan, __ F.3d __, No. 05-10086, 2007 WL 1965112 (9th Cir. July 9, 2007). (Decision available here), which is an ode to Brady. In this case, the government loses when an FBI agent (not the US Attorneys office) seems to know of the exculpatory evidence.  Only Judges Bea and O’Scannlain dissent.

CA9: tranfer order reversed on "clearly erroneous" findings -- and AEDPA is okay

Ninth Circuit Blog provides a link to US v. Juvenile Male, No. 06-30587 (7-5-07), which reverses for “clearly erroneous” factual determinations by a District Court judge.  Everyone should read this, as it is a nice guide to getting District Court judges reversed.
The District Court did a number of strange things:

• It stuck to its original method of assuming that a juvenile is guilty for purposes of making a transfer determination, despite an earlier remand saying that it didn't have to – this time it "‘readopted and restated' its original findings of fact" saying that it was, in its discretion making that assumption.
• It found that the defendant had suffered from "no domestic violence" when the record said that he had.  It also left out a lot of things such as "episodes of violence the defendant experienced or witnessed as a child—which included the shooting of his  grandfather in the throat, the shooting of his uncle with a gunshot, and the shooting death of his cousin."
• Further straying from the record, the District Court concluded that the defendant's "social background in many ways [wa]s not markedly different from that of hundreds of other  youngsters who grow up on Montana's Native American reservations, and who never resort to violent and destructive behavior of the sort disclosed by the record in this case.'" This is funny, because the court mentions the record, but none of these things about "social background" appear in the record.
• The District Court also took judicial notice of the BOP's local facilities.  But, the defendant didn't raise that argument.

Also, in the Ninth Circuit, O’Scannlain writes in Crater v. Galaza, that AEDPA is completely unconstitutional.  He drops a footnote about the suspension clause, but since he isn’t taking the issue seriously, it isn’t worth taking what he writes seriously.

This case is somewhat interesting, because it took California more than one try to convict the guy, and a magistrate said the writ should be granted.  He just cities to the Fourth Circuit, and says, well, Congress can change the standards by which habeas relief is granted.  So, this means that Congress can tell Federal Courts not to grant relief based on unconstitutional confinement.  He writes:

We are not persuaded that AEDPA has this effect. Section 2254(d)(1) does not instruct courts to discern or to deny a constitutional violation. Instead, it simply sets additional standards for granting relief in cases where a petitioner has already received an adjudication of his federal claims by another court of competent jurisdiction.

Anyway, it isn’t as if this is any surprise.  The question is how it will fare above or en banc.

On Cop-Experts

The 9th Circuit blog has an interesting post about a predictable “cop as expert” case (United States v. Freeman, __ F.3d __, Slip. Op. 7071 (9th Cir. June 18, 2007), decision available here.)  In this case, like most of them, the 9th Circuit turns a blind eye to the fact that prosecutors are able to put cops (lacking a graduate degree, and usually a college degree) on the stand and have the offer “expert” testimony about “code words” and stuff like that.  But, since the people being prosecuted are poor, it doesn’t really matter if they spend most of their lives in jail on that kind of “evidence.” 

But, the blog brings it all home when it writes:

For Further Reading: Despite its strong points, Freeman ultimately illustrates the unjust “government expert” exception to FRE 702 – federal courts routinely allow sloppy government “experts” in criminal cases that would never cut it as defense witnesses, or as plaintiff experts in civil cases. For example, imagine a plaintiff’s expert in a federal personal injury case, who wanted to testify about the “true” motivations of a witness that said “he wished to get off the telephone while driving.” This would never be tolerated in a federal civil case, but it happened in Freeman. Id. at 7080-81.

The blog has some comments on how Freeman might be of use, since it has to resort to the ol “Harmless Error” trick to put one of “those people” in jail.

CA9: Anonymous trial and appellate proceedings

DotD points to U.S. v. Doe from the 9th today.  Read the footnotes first.  It explains how a defendant might be able to seal the proceedings from trial through appeal.  It also contains some stuff about notice of supervised release conditions.  DotD condemns the government for letting this proceeding anonymously. He chides the Republinan-appointees deviating from their bias against defendants.  I see the issue as not so clear cut.  Perhaps these appointees wanted to make things easier for a prosecutor, or the so-called “victims.”  In reality, there are a lot of sealed proceedings out there, but usually both sides agree to it, and I suspect that these judges were well-aware of this, and didn’t want to rock the boat.  In this case, there was no trial, and it seems that a condition of the plea was that the government consented to the sealing.

 

But... a party is free to file a motion to unseal the proceedings.

Update: California Blog of Appeal Takes me to task for referring to the victims as “so-called victims.” My problem with using the word “victim” is that it is overused. In this case, it seems like there area real, identifiable, non-consenting victims that were actually victimized by the defendant. In most of the crimes that I read about (and lordy, I read about a lot of crimes) the “victim” either 1) doesn’t feel that “victimized”; or 2) their injury is really quite attenuated from the defendant’s conduct. In this case (based on the plea agreement), it seems that, yes, the “victims” are “victims” but, this seems to be the exception to the rule. Anyway, I have seen the word “victim” thrown around far so much, that it has lost its meaning. Whatever the case, I am sorry that I came off as insensitive in this case.

CA9: Irons v. Carey released

DotD points to the long-awaited decision from the Ninth in Irons v. Carey.  People thought this might hold AEDPA unconstitutional, insofar as it limits the scope of what constitutes “constitutional law” or “clearly established” constitutional law or all that AEDPA-based-crap. 

But, the results are somewhat disappointing.  The grant of the writ is reversed.  But, before you pro-government yahoos (of which there are many that read this blog) start jumping for joy, they should read the concurrences which show why 1) not everything about the constitution is intuitive or democratic; and 2) Noonan’s concurrence includes this language, which sums up my objections to AEDPA:

AEDPA does operate over the whole class of cases of habeas corpus. It does not require a result in any particular case. What it does do is to strike at the center of the judge’s process of reasoning. It shuts the judge off from the judge’s normal sources of law and curbs that use of analogy which is the way the mind of a judge works. In our system of law where precedent prevails and is developed, AEDPA denies the judge the use of circuit precedent, denies development of Supreme Court and circuit precedent, denies the deference due the penumbra and emanations of precedent, and even denies the courts the power to follow the law as now determined by the Supreme Court — the precedent to be applied must have been in existence at the earlier moment when a state decision occurred. A more blinkered concept of law cannot be imagined — law, particularly constitutional law — is treated as what once was the law. The development of doctrine is despised. That despisal is a direct legislative interference in the independence of the judiciary.

But, in the footnotes, the panel begs for en banc rehearing:

Although we requested and received briefing on the constitutionality of the provision of AEDPA that directs federal courts to grant habeas relief to state petitioners only when the state court decision denying relief was “contrary to, or involved an unreasonable application, of clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. 2254(d)(1), we are now persuaded that Duhaime v. Ducharme, 200 F.3d 597 (9th Cir. 2000), answers that question, correctly or not, for the court. A three-judge panel of this court is without authority to overrule a holding of an earlier panel. Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). Only an en banc court has the authority to do so. Id.

CA9: How the government can’t clean up its mess with a perjury charge

US v. Castillo-Basa, No. 05-50768.  This case from the Ninth Appears not to make sense.  Then it makes sense.  Then you realize its sheer elegance.  It involves double jeopardy.  In includes non-lawyerly references to OJ Simpson by a dissent that wants to give the government unlimited bites at the apple.

9th Circuit reduces punitive-damage award against ExxonMobil

Today the Ninth Circuit, in an appeal arising from the Exxon Valdez disaster, reduced a punitive-damage award against ExxonMobil from $4.5 billion to $2.5 billion. In re The Exxon Valdez, No. 04-35182 (9th Cir. Dec. 22, 2006). The opinion is here; the AP's story about the opinion is here.

California Appeal

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