Appellate Law & Practice

CA10: Daubert in criminal proceedings

White Collar Crime Prof Blog points to US v. Nacchio, No. 07-1311.  This is an insider trading case, but it is also a very good one for anyone that had to deal with scientific evidence.  Strangely, the Washington Legal Foundation supported the defendant in a criminal case.  I wonder why.  Oh yeah, he is rich. 

There are some ironies.  The District Court chided the government for writing 63 pages in opposing proffered expert testimony, because it said it should obviously be excluded.  The Tenth says it should have been admitted.  Why do judges say things like this?

The court differentiates between Fed. R. Crim. P. 16(b)(1)(C) and Fed. R. Civ. P. 26(a)(2)(B)(I), and explains the greater burden that the parties have in civil cases have to disclose the basis for expert reports.  Of course, this kind of decision will probably enable the government to use more of that silly “cop as expert” testimony used to put the lower classes in jail.

Whatever the case, the Tenth says a lot about what District Courts must do when faced with a Daubert challenge.  (Sexy issues dealing with the government's program to violate the FISA are not seriously dealt with.)

And, agreeing with me, the Tenth says, “Armchair economics is not the way to decide complex securities cases.” Is this a diss on Posner?  I think it is.  Posner has taken it upon himself to trash experts (as a matter of law) so that they can never testify again in the Seventh without making specific findings himself.  In a later post, WCCPB says that this "reaffirms that principle and emphasizes that included in the right to present a defense is the right to explain that defense to the jury."

By now you should know (if you don't, you are a bad lawyer, lack detail orientation, and should be disbarred) that the Supreme Court in Melendez-Diaz v. Massachusetts, 07-591 (police "lab" reports and Crawford).

SL&P comments here.

The 10th Circuit in Oliver

Decision of the Day reported on Committee on the Conduct of Attorneys v. Oliver, 07-4097 (10th Cir.,  Dec. 18, 2007).  In this case, ex-Judge Cassell "filed a sealed complaint referring Oliver for professional disciplin because Oliver had missed deadlines and violated court orders in twenty-seven cases."  For those of you that don't have first-hand knowledge of the inner workings of any court, many judges usually look down upon counsel, expecting them to not only comply with every order in the way they expect, but also expecting them to supply facts that they would expect.  And those are the good judges.  Truth be told, this is probably human.  We all like to feel superior and lawyers are no exception.  Lawyers bash for being "bad" each other like there is no tomorrow.  Law clerks, the kind that have no experience, seem to delight in saying how they would do a better job than any lawyer regardless of the facts, law, resources, or clients.  (Yes folks, sometimes there are bad facts, bad law, limited resources, and just plain uncooperative clients. Oh by the way, witnesses (including cops) lie, too.)               

Divided Tenth Invalidates Oklahoma’s Ban on Recognizing Same Sex Adoptions

So says DotD.  I am trying to think of something humorous to say about this headline, as everyone seems to acknowledge that “same sex couples who have adopted elsewhere are not exactly clamoring to move to Oklahoma.“ All that comes to mind is the musical Oklahoma and Brokeback Mountain, and those are fictitious tales.  But come on folks, what kind of person spends all day thinking of how to prevent qualified gay people from adopting kids that need parents? 

Also, as a practical matter, it has been observed that Oklahoma has the second highest divorce rate, after Nevada.  Therefore, if there are gay people that are adopting in Oklahoma, they probably have a more stable relationship than straight married people.  So, let me make it clear to all the “family” values types. Wouldn’t you rather have mature, stable, gay people (that have been screened for the maturity and stability by the government) adopting and raising kids, then the large numbers of people that got married just because the girl happened to get knocked up? Quite frankly, adoption (gay is straight) is a much more involved process than copulation, and anyone that begins (much less completes) the process is pretty darn sure they want to raise a child.

The case is Finstuen v. Crutcher, 06-6213 (10^th Cir., Aug. 3, 2007).

10th splits on whether timing on appeal is jurisdictional

DotD points to a case from the 10^th Circuit, Alva v. Teen Help, 04-4012 (10th Cir., Nov. 24, 2006). It contains an extensive discussion of District Court drop boxes and how notices of appeal become untimely.

What is particularly strange about this case is that the Tenth notes that timing isn’t jurisdiction. The court wrote:

We specifically directed the parties to discuss   Eberhart v.  United   States, 546 U.S. 12, 126 S.Ct. 403 (2005), and Kontrick v. Ryan, 540 U.S. 443 (2004), two recent Supreme Court cases suggesting time prescription rules are sometimes mistakenly regarded as jurisdictional.

(Strangely, the court didn’t ask the parties the split between itself and these two other Supreme Court cases: Arbuagh v. Y& H (2006) (“time prescriptions, however emphatic, 'are not properly typed ‘jurisdictional.’”) and   Scarborough v. Principi, 541 U.   S. 401, 414 (2004) (perfection of EAJA claim not jurisdictional requirement)).

Essentially, the court holds that because neither of the cases applies for because they didn't involve civil appeals.  This seems to indicate a split between the 10^th and the SCOTUS, but maybe reasonable minds may differ.

The victorious defendants are, apparently, one of those “camps” for “troubled teens” in Somoa, that, well, are accused of not treating the teens right.

CA10: IJ is an idiot for finding that Chinese man wasn’t Christian enough

Thanks to DoTD, we learn now see that IJs are in some sort of bizarre race to see who can be the absolute worst fact-finder.  The petitioner is pro se.  He is a Chinese Christian.  But, according to the IJ he wasn’t Christian enough. 

The case is:  Yong Tin Yan v. Gonzales, 05-9564 (10th Cir., Mar. 2, 2006).

CA10(12.02.04)

True v. Commissioner, Nos. 02-9010, 02-9011, 02-9012, affirms the Tax Court's decision.