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December 2005
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February 2006

Really Cool Quiz

This is a lot of fun.  Just trust me.  Please answer the below three questions and then follow the link to the story linked to below:

1) A bat and a ball cost $1.10 in total. The bat costs $1 more than the ball. How much does the ball cost?

2) If it takes five machines five minutes to make five widgets, how long would it take 100 machines to make 100 widgets?

3) In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half the lake?

Here's the related news story; here's the scientific study.


Sadoski v. Mosley: Foxes Guarding the Hen House

Sadoski v. Mosley (here) is the only case I've seen where everyone involved seems morally blameworthy - the defense lawyer, the prosecutor, the state trial judge, and the federal trial and appellate judges.  It is, as they say, that bad.  Here's what happened...

A criminal defendant was charged with attempted theft.  The trial court had the discretion to sentence the defendant as a misdemeanant or felon.  The trial court, based on what he read in the pre-sentening report, sentenced the defendant as a misdemeanant.

Unknown to the judge, because it wasn't in the pre-sentencing report, was this: When the case against her was pending, the defendant was arrested for a drug offense.  If the judge had known of the defendant's recent arrest, he would have sentenced the defendant as a felon. The defense lawyer did not inform the judge of the recent arrest, though he should have.

The client's recent arrest was not privileged information. Moreover, a defense lawyer owes a duty of candor to the trial court. This duty requires the defense lawyer to prevent the trial court from relying on material omissions.  A defense lawyer need not volunteer information, but he must not knowingly allow the trial court to rely on mistaken impressions and material omissions. The omission of the arrest from the pre-sentencing report was material, and the defense lawyer knew the judge would sentence the defendant based on that material omission.  The defense lawyer thus violated his duty of candor to the court. 

What did the judge do?  Contrary to clearly-established state law, the trial court re-opened the defendant's case and re-sentenced her as a felon.  It was not a close call that the judge lacked the authority to do this.  Yet he did it anyway.  This was unethical.

What did the prosecutor do?  The prosecutor went right along with the judge's unethical act, never "seeking justice," but instead, seeking a longer sentence.  The prosecutor never entered into a joint objection to the judges act, and thus violated his oath to enforce the law.

The defendant sued the trial judge for re-opening her sentence since the judge lacked jurisdiction over her case.  Judges enjoy absolute immunity from suit for acts undertaken within their jurisdiction.  But here, the judge did not have jurisdiction, as clearly-established state law denied the judge jurisdiction to re-open cases where the defendant received the benefit of mistakes like the trial court made.  Thus, under established law, the judge could be sued.

Yet the federal district court hearing the case dismissed on absolute immunity grounds.  The federal appellate court affirmed the judgment in a very short opinion.  The panel's opinion should not have been published, as its reasoning is rather embarrassing.  Here is the panel's analysis on the absolute immunity issue (cites omitted):

Although judges usually are immune from suits for damages based on their judicial conduct, a judge who acts “in the ‘clear absence of all jurisdiction’ ” is not entitled to absolute immunity.  Sadoski contends that Judge Mosley acted in the clear absence of all jurisdiction when he modified her sentence to extend the term of her incarceration. We disagree.

Judge Mosley retained subject matter jurisdiction over Sadoski’s conviction for attempted theft after she began serving her sentence. Under Nevada law, Judge Mosley had jurisdiction to modify Sadoski’s sentence, even after she had begun serving it, if the sentence was “based on mistaken assumptions about a defendant’s criminal record which work[ed] to the defendant’s extreme detriment.”  Here, however, the mistaken assumption on which Judge Mosley relied did not work to Sadoski’s detriment, but to the State’s.

Let's pause here for a moment.  Didn't the panel just recognize that the trial court only retained jurisdiction over cases involving "mistaken assumptions about a defendant’s criminal record which worked to the defendant’s extreme detriment."  Clearly the mistake did not work to the defendant's detriment.  And so, the judge must have acted outside of his jurisdiction.  Right?  Right?  Wrong:

Accordingly, as the Nevada Supreme Court later ruled, Judge Mosley did not have jurisdiction to extend the term of Sadoski’s incarceration. Because we are reviewing a district court’s order pursuant to Fed. R. Civ. P. 12(b)(6), we credit Sadoski’s allegation that Judge Mosley knew the limits of his jurisdiction when he modified Sadoski’s sentence. But the United States Supreme Court has stated clearly that “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority . . . .”  Although we assume for purposes here that Judge Mosley acted in excess of his jurisdiction when he modified Sadoski’s sentence to impose a longer term of incarceration, we conclude that he did not act in the clear absence of all jurisdiction.

Let's pause here again.  How is it that the judge did not act in clear excess of his jurisdiction?  Nevada law clearly states that a trial court retains jurisdiction when he makes "mistaken assumptions about a defendant’s criminal record which worked to the defendant’s extreme detriment."  Again, no such mistake was made.

It could be that there's a legal distinction between acts done merely in excess of one's jurisdiction, and acts done clearly in excess of one's jurisdiction.  It seems to me that when a judge does something that state law explicitly tells him he lacks jurisdiction to do, then the judge clearly acts in excess of his jurisdiction.  Perhaps the Ninth Circuit disagrees, though if they do, it's hard to tell from the conclusory opinion.

More likely, Sadoski v. Mosley is yet another example of foxes guarding the hen house.


"Judge John Roberts' Short Story"

This is old news, but it was interesting to read what noted criminal defense lawyer Milton Hirsch, in the official publication of the National Association of Criminal Defense Lawyers, wrote about then-Judge John Roberts' Fourth Amendment jurisprudence:

No one really believed that a Bush nominee would be sympathetic to individuals claiming violations of the Fourth Amendment. And in each of the above opinions, Judge Roberts sided with law enforcement. But Roberts demonstrated that he writes well, that he is smart, and importantly, is not always going to take the most expansive law enforcement reading of a Fourth Amendment issue.

You can read the full story here.


Random Request

This is indeed a random request, but you never know who's out there... I have a buddy who is looking for the Jan. 16, 1996 issue of Daily Variety Magazine.  It's the George Burns 100th birthday issue.  If you know of a place where I can get a copy, please send me an e-mail or leave a comment.


Houston v. Hill Lives!

Today the Connecticut Court of Appeals, in State v. Silva (here), issued an opinion involving one of co-blogger Norm Pattis' more colorful cases:

The state charged the defendant in an amended information with two counts of interfering with a police officer and two counts of breach of the peace. The first count of interference with a police officer charged that the defendant did so "by saying to [the officer] when requested to produce [her] license, registration and insurance information during a motor vehicle stop, 'F__k you. I ain’t giving you s__t, asshole . . . .'"

What seems to have happened (and I'm not sure, as I haven't discussed the case with Norm) was this... The defendant's brother was injured in a car accident.  When the defendant committed a traffic infraction to find her brother to help out, the police stopped her car and asked for her registration.  That's when the defendant told the officer what she thought of his request for her license and registration.

The police officer did not immediately issue the defendant a ticket.  The defendant, however, never threatened the officer or otherwise prevented him from issuing a ticket.  In other words, the prosecution charged the defendant for conduct solely associated with her speech.

Unfortunately for the defendant, she was convicted after a jury trial.  Properly, the appeals court reversed the conviction on a sufficiency of the evidence rationale.  Since the prosecutor did not present any evidence other than the defendant's constitutionally-protected speech in his case-in-chief for hindering a police officer, the conviction could not stand.

Congrats, Norm!


Paper Trail Saves Man From Prison

I've long been a believer in creating a paper trail for three main reasons.  First, I do not trust human memory - even my own.  I have caught everyone - from dullards to brights - in false memories.  Having something recorded on paper prevents the problems false memories create.  Second, I'm very honest.  I've made a few dopey mistakes in my life, but I don't lie to people.  Thus, establishing a paper trail will only protect me.  Third, I don't trust other people.  If someone is unwilling to put something in writing, then the person does not want to be held to his word.

Every now and then a story will surface about a lawyer or someone else committing true statements to writing.  The most-recent example involved the million-dollar e-mail. - an e-mail wherein a lawyer admitted to firm partners that he had committed malpractice.

What frustrates me about these stories is that lawyers immediately read the stories as having this moral: Don't put anything important in writing.  While I understand the sentiment that one should not create self-damning evidence, I also think that not putting things in writing has a dishonest undertone: It suggests that if something isn't in writing, no one can contradict your story.  That is, the message I take from these warnings is that there won't be an e-mail to prove that you're a liar.

Fortunately, a recent Law.com story has vindicated my controversial viewpoint.  A man was literally spared from prison because he was a) honest and b) he put things in writing

Thomas A. Hagemann of Dallas' Gardere Wynne Sewell convinced a federal jury in Houston recently that Todd Reid, 43, the former trading executive at Duke Energy Corp., did not illegally manipulate the company's gas and power trades from March 2001 to May 2002 to inflate his unit's profits to reward himself and his traders with huge bonuses. U.S. v. Kramer, No. 4:04cr155 (S.D. Texas).

...    

Contrary to the government's theory that Reid and Kramer were trying to hide something from the company, "the vast weight of Reid's e-mails" showed on cross-examination that the former Duke vice president "did his best to make sure that everyone was communicating," Hagemann said. "What I've found is that when you've got the e-mails, people remember lots and lots of things," he said.

You can read the rest of the story here.


Deconstructing the ABC-Scalia Story

The mainstream media is a generally a purveyor of trash.  Media newsmen and women rarely know about the subjects they report upon. Today ABC News published a story that is especially filthy.  Let's examine this trash line-by-line:

At the historic swearing-in of John Roberts as the 17th chief justice of the United States last September, every member of the Supreme Court, except Antonin Scalia, was in attendance. ABC News has learned that Scalia instead was on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo., during a trip to a legal seminar sponsored by the Federalist Society.

With Professor John Baker, Justice Scalia was actually teaching a two-day course on the separation of powers.  Lawyers attending the course could earn 10 CLE credits.  Perhaps at the very moment  that Chief Justice John Roberts was being sworn in, Scalia was playing tennis.  But he was in Colorado for a good reason - to teach lawyers constitutional law.

Not only did Scalia's absence appear to be a snub of the new chief justice...

Justice Scalia had committed to teaching the course months in advance.  Over 100 lawyers each spent hundreds of dollars to attend the seminar.  How is keeping a commitment a "snub" to anyone?   Indeed, Chief Justice John Roberts' refusal to break a commitment (even if there are bigger, better, and more important things going on) is legend.  Surely someone with Chief Justice Roberts' class would understand.

The story next notes that the course was, according to Stephen Gillers, of "dubious ethical propriety."  Why?  Why is it unethical for Scalia, a former law professor, to co-teach a course on constitutional law?  Of course, Scalia taught in a beautiful location; but CLEs are almost always held in "touristy" places.  Would it have been acceptable for Justice Scalia to have taught in, say, Fargo?

The reporter next plays a favorite trick of those lacking substantive arguments: he acts like Justice Scalia wanted to keep the trip a secret:

At a press conference, almost two weeks later, Scalia was not inclined to tell reporters his whereabouts during Roberts' swearing-in.

Of course, as is plainly evident from the Federalist Society's website, no one kept this trip a secret.  Indeed, it was widely advertised to many peoople lacking power and prestige - including me.

The story next suggests that Jack Ambramoff's long arm might have reached this trip:

One night at the resort, Scalia attended a cocktail reception, sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked.

I'm not sure which firm sponsored the reception, but I do know that  Jack Ambramoff worked for two super-duper large law firms.  Arguing that the cocktail reception was part of widespread corruption is like saying that every reporter for ABC News is as stupid as the author of this story.

Of course, to be fair and balanced, ABC News quotes a legal ethics expert who does not see anything wrong with the trip.  And of course, the reporter, in being fair and balanced, tries to undermine the expert's credibility: 

Ron Rotunda, a law professor at the George Mason School of Law, author of a textbook on legal ethics and who is himself a member of the Federalist Society, finds no problem with the Supreme Court justices attending events sponsored by the organization. "I'm a member of the Federalist Society, the NAACP, and the justices get invited to both, and I think that's a good idea," he said. "The organization doesn't have litigation before the judge and is unlikely to have litigation before the judge."

I'm sure that no legal ethics expert who does not belong to the Federalist Society would have supported Scalia's decision. 

Filled with material omissions, and asking the reader to draw false inferences, this article is absolute filth.  I hope it receives the attention it so rightly deserves.


Where Was Justice Scalia?

ABC news has "broken" the "exclusive" story that Justice Scalia, rather than attending Chief Justice John Roberts' swearing-in ceremony, was goofing off in Colorado.  In truth (and when one is blogging aobut the MSM's Supreme Court reporting, "in truth" is an appropriate qualifier), Justice Scalia had long ago committed teachinga  mini-course on separation of powers.  I was on an e-mail list that started receiving save-the-date notices for this even long before Justice Roberts was nominated.  (Here's the program information - hidden in plain view.)

What ABC News also omits is this: Over 100 people spent hundreds of dollars in program and travel expenses to attend the event.  Should Scalia simply had cancelled the event, basically wronging everyone who had literally spents months planning to attend the event?


Bye, Bye Roe

The Senate Judiciary Committee just voted 10-8 to send Sam Alito to the full Senate for confirmation as United States Supreme Court Justice. Count the days until confirmation, and then multiply by some number less than 20. That's about how long it will take for the Supremes to find a way to reconsider the core holding of Roe v. Wade.

That will be good news to the tens of thousands of anti-abortion protestors who marched in Washington, D.C. yesterday. It will also be good news for all those who clamor to make clear that there is no such thing as a right to privacy in the federal constitution.  The rest of us will sigh and await more government in more ways in our lives.

Should Alito be confirmed and should he actually vote to uphold the core holding of Roe v. Wade, whatever that holding may be, I will eat a copy of this blog.  So bookmark a copy of this posting. And here's to hoping you do not bookmark in vain.