February 05, 2008

First Trial Result

11-1 for the defense. I won!

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January 14, 2008

Little Known Legal Maxims

Blogus et billabae horae non mixerae est.

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January 18, 2007

Wrongful Death

For the last week, the big news here in Sacramento has been the stupid "Hold Your Wee for a Wii" contest at KDND FM, in which one of the participants died. Now, the case has been taken by Sacramento's pre-eminent plaintiff's firm. I know these guys and trust me when I say they mean big money. But it's a perfect plaintiff's case too. Just look at these facts:

Nearly 40 minutes before kicking off the contest, the "Morning Rave" hosts discussed the dangers of water poisoning. One DJ mentioned he had once drunk two gallons of water.

"Can't you get water poisoning and, like, die?" asked another host.

"Your body is 98 percent water," a co-host responded. "Why can't you take in as much water as you want?"

Someone in the background was heard asking about "that poor kid in college," apparently referring to Matthew Carrington, who died in 2005 after an all-night fraternity hazing.

"That's what I was thinking," a host responded.

"Yeah, well, he was doing other things," someone else said.

About two hours into the contest, a woman who identified herself as Eva called the show. She warned the hosts that "those people that are drinking all that water can get sick and possibly die from water intoxication."

One host replied that "we're aware of that." Another said the contestants had signed releases, "so we're not responsible."

"And if they get to the point where they have to throw up, then they're going to throw up and they're out of the contest before they die, so that's good, right?" one host said. One of the hosts then asked a DJ stationed in the kitchen with the contestants, "Is anybody dying in there?"

"We got a guy who's just about to die," he said.

"Make sure he signs the release," the host replied.

I know what you're thinking. Hey, she signed a release. But with that fact pattern, I don't think the assumption of the risk defense will hold water.

So to speak.

Anyways dude, if I just had a referral fee on that lawsuit, I could probably retire now.

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August 28, 2006

And Greta Van Susternerneren Wept

So big surprise here . . . John Mark Karr's DNA did not match. I guess it's back to Aruba for Greta.

And I suppose the only mystery left in the JBR case is why Boulder's DA didn't just wait until the tests came back before they spent all that money - only to find out what everybody with a brain and two ears already knew.

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July 14, 2006

A Lawyer Joke

A lawyer died and found herself before St. Peter. St. Peter flipped thru his book for several minutes, then turned to the lawyer and smiled. "Sorry to keep you waiting, but there's a small problem with you. I can't decide if you belong in heaven or in hell--so I'll let you decide. I'll send you to hell for 12 hours, then to heaven for 12 hours, and you get to decide where you go. OK?"

"That's fair," the lawyer said. "When do I go?"

"Right now," St. Peter answered and he snapped his fingers.

The lawyer blinked once, twice, three times. She was standing on the porch of a beautiful clubhouse, an immaculate golf course before her. Someone cleared his throat behind her, and she turned to see her favorite law school professor, the senior partner who mentored her, and the partner who recruited her standing behind her! "Welcome to Hell," the partner said and she thrust a golf bag at her. "C'mon. We got just enough time to grab some beer before we tee off."

She wasn't the worlds best golfer when alive, and she wasn't much better while dead, but she still got a hole in one! Afterward, during dinner in the clubhouse, a tall, handsome man in a bespoke suit joined them. "I'm Satan," he said by way of introduction and he started telling dirty jokes.

Too soon, however, Satan suddenly snapped his fingers...

...and she found herself on a cloud, wearing a white robe. Obviously, she was in Heaven, and she was bored. Bored bored bored.

There's no golf in heaven. No food or wine or dirty jokes, and there sure as hell weren't any of her old friends there. Before long, she found herself talking with God about...not much. God had a bit of a holier-than-thou attitude and, quite frankly, He was dull.

Soon enough...or not, as far as the lawyer was concerned...God snapped His fingers, and she found herself facing St. Peter again. "Well, my dear? Made up your mind?"

"I have," she said formally. "I want to go to Hell."

St. Peter looked disappointed. "I'm sorry to hear that, my dear." Snap!

Pain. Pain and fire and brimstone and crows picking at her liver and devils with pitchforks and everything you've imagined hell would be, only worse. After just a few hours of excruciating torment, Satan walked by and the lawyer screamed, "What gives? Yesterday it was parties and golf and my old friends, and today it's....it's hell! What the hell is going on here?"

Satan leered down at her. "Haven't you figured it out, my dear? Yesterday we were recruiting you. Today you're an Associate!"

For the really long version, look beneath the fold more...

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June 29, 2006

Hamdan v. Rumsfeld

I think we all understand that the mainstream media cannot be trusted to analyze Supreme Court decisions within even a basic level of competence.

Accordingly, I've printed out all 101 pages of Hamdan v. Rumsfeld, and now that I am home from work, I will attempt to read through it. I may not finish, but even if I only get the highlights, I am confident that I will understand it more thoroughly than the smartest person on staff at USA Today or the L.A. Times could ever hope to.

But for now, I have some Gitmo related questions.

I hear that the ruling does not mean that the U.S. must release the Guantanamo Bay prisoners. (Democrats and foreign types who want us to close the prison are probably disappointed about that.) So, if that means that holding these whatever you want to call them people at Gitmo is okay, then is it only that trying them by military tribunal is not okay?

If so, is the only reason we're insisting on trying them in the first place because that's the only way we can kill them? Otherwise we'd just hold onto them until the end of the war, like we've always done with people we capture on a battlefield.

And if just holding onto them until the end of the war is something that every country has always done in every war, why do some people want us to close down Gitmo? Are people like Carter and Koffi Anon arguing that we don't have the right to hold people we capture on a battlefield?

What do the Gitmo critics want us to do with these prisoners, release them like they were illegal aliens? If so, won't they end up back here again, just like illegal aliens?

Now, if the only reason we are trying these detainees is so we can get the death penalty on them, then we shouldn't be risking the chance that they might be acquitted. I'd rather they just languish in jail until the war is over. And I'm not talking about the Iraq war. As we all know, the "War On Terror" will be going on for a long long time.

If these guys are now "prisoners of war," so be it. I haven't heard of any requirement in international law that a country must unilaterally release prisoners of war before a war is finished. Effectively, these guys probably already have a life sentence. So why bother with a military tribunal at all?

Update: Okay, page three of the decision says, "Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a prison sentence shorter than 10 years . . ."

So again, why do we even need to put him on trial? Can't we just hold onto him indefinitely?

Update 2: This opinion is kicking my ass. I'm at page 27. Someone put some coffee on.

Update 3: Fuck if I'm going to sit here reading this crap on my vacation when I'm a) not getting paid for it, and b) not getting graded for it.

The pool is calling. I'm out.

Oh, here's the USA Today article I cracked on earlier. Not so cocky now, I guess.

Update 4: Check this out:

Hamdan my walkin’ cane
Hamdan my walkin’ cane
Hamdan my walkin’ cane
I’m a gonna catch that midnight train
All my sins they've taken away, taken away

If I die in Gitmo jail
If I die in Gitmo jail
If I die in Gitmo jail
Send my body back C.O.D.
All my sins they've taken away, taken away

Hamdan my book of Koran
Hamdan my book of Koran
Hamdan my book of Koran
I’m gonna get drunk sure as you’re born
All my sins they've taken away, taken away

It just came to me. Make of it what you will. Here's The Knitters' version.

That's why I'm the cool connector... makin' connections between things that maybe... don't need connectin'.

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June 15, 2006

Hudson v. Michigan

Reading some of what passes for journalistic analysis regarding today's Supreme Court decision in Hudson v. Michigan, only reinforces my opinion that 90% of all reporters are idiots.

Check the AP reportage for example:

The Supreme Court ruled Thursday that police armed with a warrant can barge into homes and seize evidence even if they don't knock, a huge government victory that was decided by President Bush's new justices.

The 5-4 ruling signals the court's conservative shift following the departure of moderate Sandra Day O'Connor.

Dissenting justices predicted that police will now feel free to ignore previous court rulings that officers with search warrants must knock and announce themselves or run afoul of the Constitution's Fourth Amendment ban on unreasonable searches.

Justice Antonin Scalia, writing for the majority, said Detroit police acknowledge violating that rule when they called out their presence at a man's door, failed to knock, then went inside* three seconds to five seconds later. The court has endorsed longer waits, of 15 seconds to 20 seconds.**

The errors in that article are too numerous to list. For one thing, the cops in the Hudson case didn't "barge in," they announced themselves first then waited before trying the door, which was unlocked. But more importantly, the Supreme Court never said that police "can barge into homes and seize evidence even if they don't knock."

On the contrary, the Court upheld the knock rule. The Fourth Amendment still requires police executing a search warrant to knock first, announce their presence and provide the occupants a reasonable opportunity to open the door voluntarily. Today's ruling did not change that rule.

What the Court did do is apply the brakes to an out of control "exclusionary rule." Hudson v. Michigan is a quite sensible decision, and not even particularly conservative, in my opinion. I wonder if the AP reporter even read it.

Proponents of an expansive exclusionary rule want it to apply to any evidence obtained in the prosecution of a suspect, whenever the police fail to follow a procedural rule. In other words, some people believe that a judge should throw out all evidence against a defendant whenever the police fuck up, no matter what kind of fuck up it was. As Scalia noted, that would mean a "get-out-of-jail-free card" in many cases. This is what is known in the popular culture as "getting off on a technicality."

So, wouldn't it have been more accurate for the AP to describe today's decision as the Court limiting the ability of criminals to "go free" on "technicalities?"

The Hudson case does not overturn the exclusionary rule. It simply says that if police screw up on their constitutional requirement to knock before serving a search warrant, and the search later turns up a bunch of evidence that proves the dude was guilty as sin, the judge does not have to throw out all the evidence and let the guy go. I think that's totally reasonable. The exclusionary rule still applies when the cops commit more serious constitutional violations, like searching a house without a warrant.

Critics of the Hudson decision will say that without the exclusionary rule police might simply ignore the knock and enter requirement. Maybe so, maybe not. The Court pointed to other means available to punish cops for failing to knock, civil lawsuits and disciplinary measures for instance. Also, the Court pointed out that the knock requirement isn't even a hard and fast rule. Police can legally enter without knocking if they have reason to believe that evidence might be destroyed were they to knock first.

But the main point is that the cure would be much worse than the disease. If we were to let criminals go free just because the police failed to knock even though they had a valid search warrant, there would undoubtedly be crooks walking around who should be behind bars. The Hudson decision prevents this potential miscarriage of justice and restores balance to a small part of Fourth Amendment jurisprudence. Or to put it in Johnny Cochran-ese:

Just 'cuz the cop didn't knock,
don't mean we let the perp walk.
I'm glad the new Court is refusing to expand the exclusionary rule beyond its already unreasonable scope. I just wish that the media would explain the reasoning behind today's decision instead of trying to scare people unnecessarily.

I give the New York Times opinion writer more slack for his wrongheaded piece, because at least that's an editorial. I would be disappointed if I didn't find wrongheadedness in a NYT editorial.

To be fair, some reporters seem to understand the Hudson case better. Two examples of more balanced articles can be found at CNN's site and at The Christian Science Monitor. Although I do have a semantic nit to pick about the Monitor's assertion that the decision is a setback to "privacy rights." While the right to privacy is related to Fourth Amendment freedoms, the two are not identical. As everyone should know by now, the right to privacy is not enumerated in the Constitution, whereas protection from unreasonable searches and seizures is.

* Again, the AP reporter "forgot" to mention that the criminal's door was unlocked.

** Here the AP reporter "forgot" to mention that the standard for deciding how long to wait is based on how long it would take a suspect to flush the evidence. Therefore, a reasonable wait time might be only a couple of seconds, depending on the particular evidence in the case.

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May 03, 2006

Until The King's Pleasure Be Known...

So ZM got life.

I'm no criminal lawyer, but I think there's got to be some way to simplify a jury verdict form that's 42 pages long. That's just insane.

One interesting tidbit I gathered from the jury verdict (until I got bored and gave up reading it) was that the jury unanimously rejected two of the most often cited arguments against the death penalty in this case, namely

That a sentence of life in prison without the possibility of release . . . will be a more severe punishment . . . than a sentence of death
That the execution . . . will create a martyr for radical Muslim fundamentalists, and to al Qaeda in particular. [see pages 6 and 7]
The jury unanimously refused to buy either argument.

But nine jurors seemed to agree that the touchy-feely rationales of "unstable childhood," "dysfunctional family," "physical and emotional abuse" blah blah blah, were mitigating factors in this case. [id.]

That's disturbing.

So let's say we catch OBL? If he claims a bad childhood would another jury let him off? Even if he killed 3000+ people, was unrepentant, and the jury agrees that life in prison is not the most severe punishment available? Dr. Laura should have sent the jury a copy of her book.

I don't know. I can't say I undersand how the jury came to its decision, and I don't really have time to study all 42 pages of this thing, but something stinks.

Anyways, I don't have a major problem with sticking the guy in jail for the rest of his life. Except for the fact that Amnesty will probably be agitating for his release within about six months. And how much you wanna bet the lefties will be carrying signs with his picture on it during the next anti-war rally. Right along with the free Mumia signs.

And how long do you think it will take for al Zarqawahiri to kidnap another hostage and then demand this guy's release from prison?

Oh well. They say he won't be in the general population, so there's little chance he'll get the shiv. But you know, these things have a way of happening, even when you think they won't. I wouldn't be surprised if ten years from now we hear about ZM's unexpected "suicide." If you know what I mean.

Findlaw link via Dr. Rusty.

[CP: A Western Heart]

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May 02, 2006

This Would Make A Great First Year Torts Question

Okay, issue spotting this bizarre story I see fraud, conversion, IIED, NIED, breach of contract and a good faith purchaser issue. I don't see defamation, but those facts might have been left out of the story. And you have to throw in negligence, whether or not the facts are there, just to get the insurance coverage involved.

Okay, back to the real studying.

Via Old Skool.

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February 10, 2006

So I'm In Law School Because... Why?

Oh yeah, the money Arthur, the money.

Guest blogger Drobbski, at Clareified:

There are basically three types of partners: the successful, the hungry, and the failing. Although their motivations differ, they are all mean in one way, shape, or form.
The successful partner has a book of busines that is way too large to manage, so she is stretched so thin she doesn't have time for family or work.
So she is mean.
The hungry partner doesn't yet have his book of business, and strives to get it. He is more concerned with self-promotion and client development then billable work. He needs associates willing to put in the non-billable time that does the associate no good. He can't get the support he needs.
So he is mean.
The failing partner does not have enough business and efforts to find more fail. He is hoping to hold on a while longer working on other partners' matters, and he is bitter about it. So he is mean.
See? I told you.
Partners are mean.
It's a rule.
P.S. Shelly, I know you're the exception.

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December 31, 2005

2006 Will Be A Tougher Year For California Teens

Starting tomorrow, California teens will be subject to two new laws.

Thanks to the passage of Assembly Bill 646, children can no longer put holes in their heads without parental permission. The measure by Assemblywoman Sharon Runner, R_Lancaster, bans body piercing of a minor without a parent being present or sending notarized consent.
Assembly Bill 1474 Bans new teenage drivers, their first year, from driving between 11 p.m. and 5 a.m. unless accompanied by an adult 25 or older or traveling to school, work or to a medical appointment.
Poor kids. Having to tell your parents before you get your ears pierced or go on a beer run can be quite a hassle. What if they say no?

On the other hand, you can still kill a baby anytime you want without telling anyone, so it's not all bad news for the kids. And really, it's all about the kids ain't it?

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December 18, 2005

Some Thoughts On The End Of Exams

i know what wills are, but what's a trust? i kind of zoned out by the middle of the semester in that class.

On the other hand, i am considering legally changing my name to "the evidence queen."

See that girl, she knows the F.R.E.,
diggin' the evidence queen!
Oh yeah!

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November 03, 2005

One Liner Of The Day

From the legal world:

. . . the very worse thing about sleep: when you're sleeping, you're not billing!

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October 20, 2005

Things A Law Student Knows

Vibrators are illegal in eight states.

(Hey, i'm a law student. i'm supposed to know all about laws and shit.)

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September 04, 2005

William Rhenchrist, RIP

Another Supreme Court Justice gone, another chance for a lazy blogger to recycle an old post. Remember my Guide to the Supreme Court?

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August 22, 2005

California Handgun Safety Certificate

i took the California Handgun Safety Certificate written test last weekend and passed with flying colors. That means that the State of California has deemed me worthy to purchase a handgun within the next five years if i so choose.

The test is so easy even one of Victor's rats could pass it (assuming that Victor has taught them how to read, as i'm sure he has). But the State of California still got 25 bucks out of me for the privilege of taking the test.

Publicola fisked the test's review booklet and showed how, despite the simplicity of the questions, even an expert can have trouble. This sample question seems to have tripped him up:

Hmmm. They have a self test.

'Safety Rule Number Two is keep
the gun pointed:

A. To the north.
B. In the safest possible direction.
C. Up.
D. Down.'

Well being a Southerner I gotta go with A. . . . we never really trusted those damn yankees . . .

Very funny.

Publicola was also nice enough to answer two questions i posed to him:

if Cali does not have the worst gun laws in the country, who does? and on a related note . . . Are there any decently industrialized nations that recognize the rights of gun owners similar to or better than the US?
You can read his answers here.

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July 02, 2005

The Freaking Idiot's Guide To The Supreme Court

You ever listen to those early morning CSPAN call-in shows? What a bunch of freaking idiots.

It's like this:

Hello? Is this CSPAN?

Well, I liked that Sander Day O'Conner 'cuz she seemed like she was fair and all. And I think Bush needs to pick someone who's not all for the corporate America with all the Halliburton things and stuff.

Or the angry idiots:
She was just another right wing fascist who selected Bush and wants to roll back Medicare and Social Security with all his fascist crony corporate America and Halliburton things and stuff.

The right wing callers are no better:

Bush needs to pick somebody who's a mainstream American, like someone who hates them despicable homosexual things and stuff.
i often wonder why so many neanderthals are watching CSPAN instead of, say, Jerry Springer re-runs or those used car dealer infomercials they show on like eight stations every Saturday morning? i think it's because they have trouble figuring out the remote control and just get stuck on the channel.

In my attempt to remedy the ignorance of these people, i've prepared a pocket guide to the Supreme Court for any such CSPAN watchers who may have made it over to my blog and read this far down the page.

My handy pocket guide contains a picture of each Supreme Court justice, their name, and then a short bio. You can print it out if you'd like and refer to it whenever you want to express an opinion out loud about the Supreme Court. more...

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June 27, 2005

There's Only One Thing To Do...

...repeal the Establishment Clause.


Okay, maybe just Marbury, then.

Read Justice Scalia's dissent in McCreary County v. A.C.L.U., starting at screen page 39. It's too long to excerpt here, while i'm supposed to be working, but it is beautiful and worth the effort to read.

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June 13, 2005

The Jackson Verdict: It Was Just Milk And Cookies

Not guilty on all counts.

Today's big winner: Geraldo.

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June 08, 2005

Legal Update

i've worked in and around the legal profession in the Bay Area, in Los Angeles and now in Sacramento. i'm not yet a lawyer, but i've dealt with them enough to form some rudimentary judgments.

And in my opinion, the Sacramento plaintiff's bar contains a vastly higher percentage of treacherous sons-a-bitches than either of the aforementioned major metropolitan legal communities.

Those fuckin' a-holes better hope i don't end up practicing here when i pass the bar, because i will hold grudges. And i will enjoy kicking their ass.


What i was thinking: "Don't yell at me, muh-fuh. i can count, and i know the Code, do you? Ass-wipe."

What i said: "i'll pass that along to the attorney."

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