Craig Smith's Blog
Covering Santa Barbara Law and Media
Like A Wet Blanket
More Cycling Dirt. Wednesday, June 28, 2006. Apparently I'm not the only one who was troubled by the latest allegations against Lance Armstrong. Lance himself was doing something of a media blitz on Monday denying the allegations. I caught his interview on ESPN's "Outside the Lines." He was very firm and positive in his denial of ever having used performance enhancing drugs. He also emphasized the fact that he won the binding arbitration over whether he was entitled to a $5 million bonus for winning his sixth Tour de France. But his entitlement to the bonus would not have turned on whether the testimony of Betsy Andreu was true. That she heard him admit to having used performance enhancing drugs before being diagnosed with cancer and starting his record run of Tour de France victories. The issue in the arbitration was whether he cheated to win any of his six victories up to that point, not whether he had ever cheated at anytime in his career. Of course, cheating at anytime in his career would diminish the esteem that so many of us hold him in. The public is not likely to want to distinguish between having cheated prior to being diagnosed but never having cheated since being cured. What makes the Andreus so credible is their status as innocent bystanders. They have no lawsuits of their own against Armstrong and had nothing to gain from the case in which they testified. They were subpoenaed and answered questions under oath. Lance was never able to explain why Betsy Andreu, would accuse him. Her husband, Frankie Andreu, since retiring from cycling has served as a TV commentator on broadcasts of the Tour de France in recent years. I've seen him interview Lance on numerous occasions and there was never a hint of friction or animosity between the two former teammates. The other guest on the "Outside the Lines" broadcast, Brian Alexander a writer for Outside magazine, said the other shoe is yet to drop on the Lance Armstrong story.
Something like the other shoe dropped on the disgraced former teammate of Armstrong, Tyler Hamilton. The Spanish newspaper El Pais has run a story claiming that Hamilton was billed by a doctor for treatment that allegedly included blood transfusions and banned performance-enhancing drugs. Hamilton has denied the allegation. Hamilton won a gold medal at the 2004 Olympics then failed a test for blood doping. However, because authorities mistakenly froze the backup sample of blood he was allowed to keep his medal. However, the international governing body of cycling subsequently suspended Hamilton from competition for two years. The day Hamilton's suspension was announced, April 18, 2005, was the same day Armstrong announced his retirement from competitive cycling. My guess is that was no coincidence. Armstrong wanted to make sure that his former teammate's being drummed out of cycling wasn't the biggest story in the cycling world that day.
Why the Latest Accusations Against Lance Armstrong Are So Troubling. Sat. June 24, 2006. Let me start out by saying that I've been an avid cyclist for nearly 20 years. I even raced bicycles at the lowest levels of the amateur ranks for a few years and I still make it a point to ride my road bike every other day. Lance Armstrong is one of my heroes. Thus, I've been dismissive of all the reports that have surfaced over the years alleging that the seven time winner of the Tour de France used performance enhancing drugs. The accusers have usually had axes to grind or books to sell and most of the allegations have come by way of France which is notoriously provincial about its cycling champions. However, the latest revelation about Lance gives me pause because the person making it is the wife of one of Lance's most loyal former teammates on the U.S. Postal Service cycling team, Frankie Andreu. Armstrong had an insurance policy with SCA Promotions which guaranteed to pay Armstrong $5 million if he succeeded in winning his sixth Tour de France, which he did in 2004. SCA refused to pay off claiming that Armstrong had cheated. Armstrong sued and the case went to arbitration in Texas. Called as a witness during the arbitration hearings, Betsy Andreu testified that back in 1996 while Armstrong was in the hospital recovering from surgery to remove testicular cancer had spread to his brain, she overheard Armstrong tell a doctor he had used the blood-boosting hormone EPO and other drugs. Husband Frankie, corroborated her account. Armstrong has called the allegations "stale, unfounded and untrue." The arbitration panel ruled for Armstrong and awarded him $7.5 million. Betsy Andreu never went public with her statements, rather the arbitration testimony was leaked. Armstrong's doctor has contradicted her testimony saying that in multiple doctor-patient interviews, Armstrong never admitted taking performance-enhancing drugs. Velo News, which is the bible of the American Cycling community, quotes Armstrong as saying that Betsy Andreu has a personal grudge against him. Although we are never told what the source of that grudge might be. Other U.S. media sources such as the Voice of America, have led their coverage of this story with the denial and have gone into very little detail. The New York Times ran a very brief item on it. Not surprisingly, the most comprehensive coverage comes from the French paper that broke the story, Le Monde. Given the fact that all of us are so invested in the saga of Lance Armstrong, it will be a huge story if it is ever proven that he cheated. In the past when accusations were made I've always considered the source and dismissed them. But sometimes, considering the source cuts both ways. Man I hope this isn't true.
The Beginning of the End? Friday, June 16, 2006. For you music trivia fans, "The Beginning of the End" is the name of the one-hit-wonder group that put out the early '70's club hit "Funky Nassau." Today it could also describe the impact of Thursday's U.S. Supreme Court ruling in the case of Hudson v. Michigan on the exclusionary rule. I was interviewed by our local TV station, KEYT, and asked to give some legal analysis on the decision. In that case when the police arrived at the suspect's residence to execute a search warrant, they announced their presence, but waited only three to five seconds before turning the knob of the unlocked front door and entering the suspect's home. What they were supposed to do was wait some reasonable period of time, more like, 20 to 30 seconds to give the occupant a chance to let them in before entering through an unlocked door or forcing open a locked door. Once inside, large quantities of drugs were found, including cocaine rocks in the suspect's pocket. A loaded gun was lodged between the cushion and armrest of the chair in which he was sitting. The Michigan trial court granted the motion to suppress the evidence relying on the legal rule that evidence seized in violation of the Fourth Amendment prohibition on unreasonable searches must be suppressed or excluded. Giving the occupant of a residence a reasonable opportunity to answer the door before having a posse of police barge in on him, is part of what makes a search reasonable. After all, when anyone rings your doorbell, whether it be the Fuller Brush man, the Jehovah's Witnesses or even the police, most of us would like to look out the window or through the peephole to verify that whoever is at the door is who they say they are. After all, burglar's and thieves never knock and say "I'm here to rob you." They always claim to be someone else. It's a common sense rule that protects both the occupant and the unannounced intruder who might be greeted by the baseball bat kept beside the door or a firearm in the hands of the occupant because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. Of course, if the police have reason to believe that the suspect may destroy evidence or react violently in response to the knock and announcement, its okay for them to dispense with knocking and announcing. But the Michigan police never made the claim that such circumstances were likely in this case. Scalia acknowledges that the rule was broken here but says even if the police had waited the 30 seconds before entering they would have found what they found anyway so no harm no foul. However, as the Breyer dissent noted, the Court destroys the strongest legal incentive to comply with the Constitution's knock and announce requirement. Scalia seems to say that enforcing the knock and announce rule by suppressing evidence would only encourage people to claim that its been violated and would lead to only more litigation. Since when is that a reason not to obey the law? As articles reporting this decision have noted, had Sandra Day O'Connor still been on the court rather than her replacement, Samuel A. Alito Jr., the decision may have gone the other way. At this point, Anthony M. Kennedy, is the only justice standing in the way of having five votes to totally eliminate the exclusionary rule.
How About A Bagel With That Restraining Order? Friday, June 9, 2006. One candidate was a respected judge with more than 20 years on the bench who was rated exceptionally well qualified by the bar association. The other candidate wasn't even practicing law but rather spent her time running a bagel shop. So who did Los Angeles County voters in their infinite wisdom elect to the bench this past Tuesday? The bagel boiler, giving new meaning to the term "no brainer." Lynn Diane Olson challenged and defeated Judge Dzintra Janavs in her bid to be reelected to the L.A. County Superior Court. Although eligible to pratice law, Olson has only actively practiced seven out of the last 16 years. Rather she has been spending her time running Manhattan Bread & Bagel in Manhattan Beach. So how can someone who is barely a lawyer defeat a sitting judge? I don't have any answers, only guesses. Perhaps it was the $100,000 of her own money that Olson spent on the campaign compared to the $42,000 that Janavs raised in actual contributions as reported by the L.A. Times. Or maybe in these xenophobic anti-immigration times in which we live people are unwilling to vote for someone whose name they can't pronounce. (Janavs is of Latvian descent.) Whatever the reason, the fact that the L.A. Times endorsed Janavs didn't make any difference. According to the Times article Olson ran a very aggressive campaign including sending out over 50,000 e-mails to democratic voters. (Apparently she's a spammer as well.) All I know for sure is that the result is an outrage. When someone whose not interested enough in the law to practice or work in a law related position is now going to be deciding the disputes of thousands of people who come before her every year I say look out. The outcome is likely to be as disastrous as me suddenly trying to crank out bagels for the masses. A person ought to have a better reason to challenge a sitting judge other than the judge's party affiliation. The bottom line is that L.A. County voters have traded in an experienced and fair judge for a legal lightweight. Let's at least hope that the bagels in the courtroom are decent.
News Director Gone. Details at 11? Wednesday, May 31, 2006. I was out for a Tuesday evening stroll when I ran into an acquaintance who works at our local ABC affilliate, KEYT. I was shocked to learn that long-time anchor and news director Paul Vercammen has been fired. Why? I don't know. It may have something to do with the embarrassment surrounding the revelation that KEYT was among those stations accused of airing video news releases or promotional videos as news stories, without disclosing the fact that the pieces were paid for by the manufacturers of the products being featured. Whatever the reason, it is a sudden and regrettable ending to the reign of a staple of the Santa Barbara media scene. A true "local boy" Paul graduated from Santa Barbara High School and after attending USC, got one of his first jobs as a reporter at KEYT. He left in 1991 to go to CNN where he was a familiar face to viewers reporting on both business and entertainment news. He returned to KEYT in 2003 as news director where he apparently was until Tuesday. He was identified as still being the news director and quoted as recently as last Saturday in the Santa Barbara News-Press article about the video news release dust up. Anyway, that's my best guess as to what the story behind all of this is. Whatever the reason, I'm sorry to see Paul go.
This Is What Gives Journalists A Bad Name. Thursday, May 25, 2006. I used to be a regular viewer of The Abrams Report but lately I have a hard time watching the show I once appeared as a guest on. Instead of acting like a journalist for MSNBC, host Dan Abrams has been acting more like a publicist for the defense in the Duke rape case. Wednesday he was calling for the district attorney to drop the charges against the Duke lacrosse players who are accused of raping a stripper who came to entertain at a team party. Sure, Dan cites plenty of exonerating evidence. Of course all that evidence has been provided to him by the defense attorneys in the case, who I would hardly expect to be passing on any of the incriminating evidence that may be found in the 1300 pages of police reports on the accusation. One of his panelist, former Denver DA Norm Early asked "why do we take everything the defense says as gospel?" Of course Abrams would have us believe that there is no other side to this story. But as a country lawyer once argued "no matter how thin you pour a pancake there's always two sides to it." Of course the reason we're only getting one side to this story is because the district attorney, unlike the defense, is unwilling to try his case in the media. Which is exactly the way it should be. If there is incriminating evidence, it should be introduced at the trial and not on The Abrams Report. As I've said here before, I believe in trying cases in the courtroom, not in the press.
Of course, if Dan was really interested in considering the other side of the story he should have read Lynne Duke's article that appeared in Wednesday's Washington Post. Among other things in the article she cites a court document that says that after the lacrosse party, a physician and a forensic nurse examined the woman at the Duke University Hospital emergency room and found "signs, symptoms and injuries consistent with being raped and sexually assaulted vaginally and anally," I guess the defense attorneys neglected to pass that tidbit of evidence on to Abrams. Nor does Dan mention the report that as the women fled the house, a neighbor reportedly heard one of the men shout: "Hey bitch, thank your grandpa for my nice cotton shirt." True, those kind of racial statements don't prove the defendants are guilty of rape, but they surely will be embarrassing when they come out in the trial not only to the defendants but to Duke University as well. And of course Abrams is a graduate of Duke. Look, these cases are tough for the prosecution to win even in the best of circumstances. The victims are often, but not always, guilty of poor judgment. But that doesn't mean you throw in the towel simply because it may be a difficult case to prosecute. Even if the defendants are acquitted it figures to be a hollow victory for them. Drunken parties with strippers seldom end with the participants bathed in a flattering light. The defendants may walk free but forever branded as bigots and mysoginists. No wonder the defense team is using Abrams, and whoever else is willing, to lobby for a dismissal prior to trial. Its truly a no win situation for the defendants and the university as well as the alleged victim. As the Post article points out, much of the mainstream media has been subtly if not overtly trying to portray her as a prostitute. To the extent they do so, they further perpetuate the historical script of demeaning black women when they are the victims of sexual abuse. Guilty or innocent? I don't know. Unlike Abrams I can wait until the verdict to find out. I do know that whatever the outcome, its going to be ugly.
This Is What Gives Lawyers A Bad Name. Thursday, May 18, 2006. Count me among those who's a sucker for swag. You know, the freebies or giveaways that have some company's logo or emblem on them that are given away as promotional items. I schlepp my law books to class in my Lexis© bag that I got for free. I sip my coffee out of my Westlaw© travel mug. And boy, do I go to town when I head for the ballpark. Free hats, beach towels, tote bags. Tote bags! Aren't those for women only? San Diego attorney Alfred Rava doesn't think they should be. Rava has sued the Los Angeles Angels of Anaheim over their Mother's Day giveaway of tote bags to female fans claiming that it violates California's Civil Rights Act. Count me among those lawyers who believe that Rava is misusing the act. The civil rights act, known as the "Unruh Act" (Civ.Code sec. 51 et seq.) was enacted in the 1960's to prohibit discrimination by business establishments. In the past the act has been used to successfully sue banks who refused to make mortgage loans to African-Americans, a physician who refused to treat African Americans and landlords who discriminated on the basis of race. But Rava is using this law to sue because he's honked off that a woman who shows up at a ball game gets a free tote bag and he doesn't? What else is going on here? It couldn't be the actual damages because how much could those tote bags and hats cost anyways? Of course, sweetening the pot for a plaintiff like Rava who represents himself are the statutory damages of $4,000 per violation of the Act as well as the possibility of an award of attorney's fees which are offered by the act. This isn't the first time that Rava, who's been an attorney less than 10 years, has sued under the Unruh Act. He's sued bars over letting women in free on "Ladies Night" (in 2003 several bar owners settled his suit by paying him $125,000) and the San Diego City Ballet for offering discount tickets to young families who wouldn't otherwise attend the ballet. Technically all these things may be a violation of the Act but just because you can do something doesn't mean that you should do it. Doesn't this guy have any judgment? Or heart?
Hot or Not? Two Different Opinions. Tuesday, May 16, 2006. So my 10 year old daughter and I are walking past the window of our local video store when she spots a poster for the movie Shopgirl in the window. She asks me "what is Shopgirl about?" Having seen the movie in the theatre I answer: "Its about a young women who works in a fancy department store and has two men who are pursuing her. One is an older wealthy guy and the other is a young guy who doesn't have any money." Then my daughter adds, "but the younger guy is a lot better looking right?" "What?" I blurt out. But I'm thinking to myself that she's looking at the same poster I am. Whatever she sees in Jason Schwartzman, I sure don't see it. To me he looks like a dweeb and in the movie he dresses like a clown. But to my 10 year old daughter he's easily beating out Steve Martin whose only six years older than I am. How old am I? Let's just say this, on my next birthday you'll probably find me at Denny's ordering the Senior Slam for breakfast. Anyway its probably further proof of my long held theory, a woman can always tell when another women is beautiful, but a man can't tell when another man is handsome. In my opinion, a handsome man is Steve McQueen in Bullet, Richard Roundtree in Shaft or Billy Dee Williams in anything. Of course, my choices reflect the biases of a man my age. After all, McQueen has been dead for over 25 years, Roundtree hasn't had a significant movie role since his cameo in the remake of Shaft and I've appeared more recently on a screen, big or small, than Williams. What women see in Brad Pitt or Colin Farrell sure beats the hell out of me. And then, there's the biggest mystery of all. What does Chris Noth, "Big" on Sex and the City have going for him? Well, at least my daughter and I can agree on one thing, Claire Danes is sure good looking.
The Women Sitting Behind Me Talked A Good Game. Friday, May 12, 2006. I need only the flimsiest of excuses to take a break from grading final exams so I gave into temptation and drove down to Dodger Stadium Thursday to watch the Dodgers play the Houston Astros in a rare mid-week day game. Although I consider myself to be somewhat of a liberal, I am very conservative when it comes to my baseball. Baseball was meant to be played in the daytime not at night. And there is no better place to spend a sunny weekday afternoon than in the ballpark. Once I got to the stadium the first stop was the concession stand. No Dodger Dog and soft drink for me. Now that I'm accustomed to paying $1.50 for a hot dog and Coke at Costco, no way am I going to shell out $11 for the same thing at the ballpark! For $3 more my ballpark snack of choice is garlic fries and a beer. Then its on to take my seat. Its definitely a different crowd on a weekday. I'm glad I'm up on my CPR because the guy on my left is 90 if he's a day. He sure knows his baseball though, and he is very interested when they flash on the scoreboard between innings that the NASDAQ is down by 48 points. I tell him "that figures, we take the afternoon off and the stock market goes in the tank." Behind me are two San Marino type housewives who spend the entire game talking. There ought to be a law that when at a ball game you talk about baseball and not whether Dick will get down with Jane on "Search For Tomorrow." (I know, I stole that line from Gil Scott-Heron but at least I acknowledged it, which is something that Kaavya Viswanathan wouldn't have done.) I mean if you're going to yak and not pay attention to the game, you may as well go to Starbucks where the seats and the beverages are a whole lot cheaper. Sitting in front of me, twins! (Check out the baseball hats they probably got for free at some giveaway. Guess they didn't have any money left after springing for those pricey Dodger Dogs.) And, if you're scoring at home, or just reading this by yourself, the Dodgers lost 4 to 2.
Accused of Being on the Same Page. Friday, May 5, 2006. One of the incidental benefits of living in a small town is that when you read the paper each day, you're likely to know someone whose name is in there. I hit the trifecta last week in an article that appeared in the Santa Barbara News-Press about former Michael Jackson defense attorney Bob Sanger's attempt to recuse Santa Barbara Superior Court Judge George Eskin from hearing a child abuse case that is being prosecuted by Deputy District Attorney Joyce Dudley. The grounds for the recusal? Judge Eskin edited Dudley's latest self-published crime novel "Intoxicating Agent." Joyce is a former law student of mine. Judge Eskin was the first person I ever met in Santa Barbara. Back when he was an assistant DA he interviewed me for the opening in the DA's office that became my first job out of law school. Eskin acknowledges that he copy edited half the book, concentrating on typographical, punctuation and spelling errors and inconsistencies. All for free. A superior court judge as your copy editor? Nice work Joyce! I didn't know judges were available to perform that service. I thought they were all about to collapse under the back-breaking case loads they have to carry. I happen to be in the final stages of editing my own book, "California Contract Law, Cases and Materials." I'm tempted to say had I known about Judge Eskin's free service I would have used him to proof read my manuscript and saved myself the big bucks I paid my own copy editor. But she reads this blog and knows I'd be lying, so I won't say that. And besides, what are the chances of actually getting a judge to read a book on the law?
Why I Will Only Post Pictures of Myself Fully Clothed. Monday, April 24, 2006. Mandatory reading for me every Sunday is the "So Sue Me" item in the Los Angeles Times West Magazine. This week it quotes from the complaint in the L.A. Superior Court case of Mills vs. Metro Entertainment, a lawsuit undoubtedly based on misappropriation of the plaintiff's name and likeness for publicity. In that case plaintiff alleges that she posted pictures of herself on Internet dating sites and that defendants "obtained . . . and posed those photographs . . . on their erotic services web site." Mmm. I wonder how she found out?
The Blake Civil Case; A Sure Thing. Monday, April 10, 2006. There is only one thing I can be sure of today. Sometime before 5 p.m. we will have a ruling on whether Robert Blake's motion for a new trial in his civil case is granted or denied. How can I be so sure? Well, if for any reason the judge were to fail to rule on the motion by 5 p.m. today, he will forever lose the power to do so. California law provides that if the new trial motion is not determined within 60 days of notice of entry of judgment the effect of failure to rule shall be a denial of the motion without further order of the court. This case is too high profile to have the new trial motion decided by default. Blake's attorneys are basing their motion on two grounds; juror misconduct and the argument that the $30 million damage award is excessive. I can say with some confidence that the juror misconduct argument is going nowhere. Jurors can't impeach their own verdicts and that is all Blake's lawyers have to support their motion, the sworn declarations of jurors as to what was said in the jury room. The law wisely tries to protect the sanctity of jury deliberations by precluding from the court's consideration statements of jurors that may reveal their own misconduct. Unless evidence of juror misconduct comes from someone not on the jury, for example, a bailiff overhearing what is said in the deliberation room or a witness who saw a juror visiting the scene of the incident and thus improperly receiving evidence, its simply not competent evidence of juror misconduct. The argument about the damages being excessive is another matter. As I've said here before, $30 million in the circumstances of this case is grossly excessive. So here's my prediction: the judge will exercise his power to grant the motion for new trial subject to the condition that the motion will be denied if the plaintiffs (Bakley's children) consent to a reduction of the damage award. I predict the judge will reduce the award to the single digit millions range. The plaintiffs will accept this reduction rather than go through a retrial. Besides, with Blake having filed for bankruptcy its questionable whether they will ever see a dime anyway.
Happy Anniversary! Wed. April 5, 2006 It was one year ago today that I made my appearance as a guest on MSNBC's The Abrams Report, You know, the show about justice, to talk about the Michael Jackson case. It wasn't the first time I had worked on the Jackson case with reporters from the NBC news organization, but this was the appearance that put me in the steady rotation of talking heads appearing on TV to analyze the case. So, I've been wondering what some of the people I worked with during the trial are doing one year later. Jennifer London was on MSNBC today reporting from Burbank and giving up dates on our west coast storm. Mike Taibbi was also on MSNBC doing a story on a murder in Connecticut that has a wealth and power angle. Former Santa Barbara County Sheriff Jim Thomas, who worked at the trial as an NBC News analyst, is running for his old job, the latest developments in that election campaign are reported on by Santa Maria Times reporter Quintin Cushner, who covered the Jackson trial on a daily basis. The Santa Barbara News-Press' reporter assigned to the case, Dawn Hobbs, has been on a leave of absence presumably working on her book on the Jackson trial that she is co-authoring with Tom Mesereau. Finally, because our local ABC affiliate in Santa Barbara does not have a high definition signal, our cable provider now carries KABC 7 out of Los Angeles, which means I am now able to watch the work of Leslie Miller, one of my favorite reporters from the trial who used my sound bytes as much or more as anyone else in their stories.
So, in case you haven't guessed, I enjoyed my time spent at the Jackson trial. And who knows, I may get to do it again one day. After all, my motto is "an arrest for Michael means a job for Craig!"
Clooney All In A Huff Over Post. Thurs. March 16, 2006. George Clooney is plenty ticked off at Arianna Huffington and rightly so. Clooney says he did not write a blog posted Monday on Huffington's "The Huffington Post" Web site, though he gave her permission to use a compilation of his critiques of the Iraq war from interviews with other sources. "I stand by my statements but I did not write this blog" Clooney said. Huffington claims she and her staff initially compiled a "sample blog" for Clooney from his interview answers because he wasn't sure how a blog worked. She said that after she sent Clooney the sample, a film publicist e-mailed her and approved it, without any changes. Huffington posted the item on her site and represented the posting as having been penned by Clooney rather than reveal the fact it was ghost written. "We based our decision to post on the unambiguous approval we received in writing." So that makes everything okay? Hardly! Readers of this nascent form of "journalism" have a right to know who's writing what. The posting was clearly represented to be something it was not; the thoughts and opinions of George Clooney as authored and written down by him. Rather than try to justify what she did Huffington should just flat out apologize. I can assure you there are no ghost writers on my blog. Can't afford any.
It's Enough to Make Any Housewife Desperate! Wed. March 15, 2006 So the next big court case filled with lurid testimony about sex, domination and total subservience is about to come out of Iowa? I'm talking about the case of Travis Frey, a 33-year-old Iowa father of two, who has been charged with first-degree kidnapping and assaulting his wife three times after allegedly tying her to a bed with a rope. The case is about to go to trial in Council Bluffs and one of the first evidentiary battles is over whether Frey's four-page "Contract of Wifely Expectations" should be admitted into evidence. The contract stipulated that Ruth Frey was to do "anything and everything" her husband wanted. Most people would think that the foregoing term would cover all the bases and leave it at that, but the contract went into details. For instance, the contract required the wife to "be subservient, submissive and totally obedient" and "to do what you are asked, when you are asked, how you are asked" and "perform any and all sexual acts." The contract also has specific terms governing the wife's wardrobe. "You will wear only thigh highs and garters and only thong panties." Of course, pursuant to the express terms of the contract, "panties are always optional and need not be worn." Then there is the term of the contract that is my personal favorite, it prescribes "all skirts no lower than two inches below the knee (unless its for Church)." After all, can't let the other members of the congregation think that the nice couple sitting next to them in the pew are a couple of freaks right? The friend who brought this story to my attention said it was a "great teaching aid." How, I asked. Her reply: "As a cautionary tale for law students: 'Don't accept this client!' As a cautionary tale for women: 'RUN.'" Consider yourself warned.
In Memoriam. Wed. March 8, 2006. My first job right out of law school was as a law clerk in the Santa Barbara County District Attorney's office. I was one of three law clerk's hired by the office that year who made up the class of 1976. So, it was with great shock and sadness that I opened the L.A. Times on Monday morning and learned of the passing of one of my fellow law clerks from that class, Rob Sandoval. Of the three of us who were hired that year, Rob went the furthest and accomplished the most in his legal career, having been appointed a Los Angeles County Superior Court Judge in 2001 after having served as a commissioner in both the Municipal and Superior Court. Rob's appointment was noteworthy because he is credited as being one of the first individuals who was openly gay to be appointed to the bench in California. When I moved to Santa Barbara to take the law clerk job I didn't know anyone in town. Rob and the third law clerk, Marcia Will Strickland, became the first friends I made here. We had all just taken the bar exam and were offered clerking positions in the office until the bar results came out. People in the office referred to the three of us as the "Mod Squad." Back in those days I sported a medium size Afro, Marcia looked very much like the California surfer girl with her long blonde hair and Rob of course had the Latino thing going. Rob and I both passed the bar on our first attempt and were offered positions here as Deputy District Attorneys. Rob was assigned to juvenile and I was assigned to misdemeanors. After six months we swapped assignments. Rob stayed on for another six months then left to accept a position in the L.A. City Attorney's office. His career took off from there. Its been at least 10 years since I last spoke to him. He called me when my judicial profile ran in the L.A. Daily Journal, a legal newspaper, while I was serving as court commissioner in Santa Maria and we had a nice chat. Rob was a fine person and an outstanding judge. His passing further convinces me that only the good die young.
A Funny Thing Happened While Watching the Oscars. Sunday, March 5, 2006. I was sitting on the couch in the living room watching the Academy Awards when all of a sudden an episode of "In Living Color" broke out. I'm referring to the musical number and the winning of the category of best original song by the composers of "It's Hard Out Here for a Pimp" from the movie "Hustle & Flow." The acceptance speech by the winners, Three 6 Mafia, looked like one of the old "In Living Color" Homeboy Shopping Network skits. (BTW, if it is in fact, hard out there for a pimp, isn't that the way it should be?) And the dancers! Casting must only have to have gone a few blocks east on Hollywood Boulevard to round up the pimps, johns and hookers who took over the stage for the musical number. Now, before you dismiss me as just another middle-aged black man who longs for the good old days of Motown, let me say there's plenty of rap music that I enjoy and that I have Kanye West and Naughty By Nature on my iPod. But the idea that "It's Hard Out Here for a Pimp" winning best song at the Oscar's shows you how weak the competition is. Isn't it time to retire this category? I would argue there hasn't been a decent winner of best song since Issac Hayes won for "Shaft" in 1972. As host Jon Stewart pointed out, Three 6 Mafia now has now won more Oscars than Martin Scorcese! There is no justice. BTW, just what country is Queen Latifah queen of?
May It Please The Court? Monday, Feb. 27, 2006. At the very least I'm sure it will please Justice Clarence Thomas and maybe even the other seven members of the U.S. Supreme Court who are male. Parties to cases being heard in the Supreme Court aren't required to attend oral argument, and even when they elect to attend they usually don't attract much attention. But that won't be the case when Vickie Lynn Marshall shows up on the steps of the Supreme Court building to hear her case argued tomorrow morning (Tuesday). Who is Vickie Lynn Marshall? Well, you probably know her better as Anna Nicole Smith, former Playmate of the Year and world-class ditzy blonde. I will resist the temptation to post any gratuitous links to photos of her on the web showing her in various stages of undress. (I don't run that kind of a website although I'm sure it would be far more lucrative than the one I am running.) I will admit to having thoroughly examined her briefs in this matter. But before you start getting your panties all in a bunch, I'm referring to the legal briefs, not the thong style ones. Anyway, the question presented to the court by this case (if anyone really cares) is whether there is a "probate exception" to the usual rule that federal courts have subject matter jurisdiction over bankruptcy matters and cases between citizens of different states where the amount at stake exceeds $75,000. Smith's case involves both. A few years back, Smith, then 26, married 89 year old oil tycoon Howard Marshall. 14 months later he died. Litigation ensued over whether Marshall had left Smith anything in his will. Part of that litigation ended up in federal court. The U.S. Court of Appeals for the 9th Circuit, whose decision is now before the Supreme Court, threw out an award of $88 million in Smith's favor. The appeals court said that the federal district court, the trial court, should not have reviewed Smith's claims related to her late husband's estate, citing the so-called "probate exception." Smith's lawyers will be arguing that there is no probate exception and that the federal trial court properly heard Smith's claims and therefore the $88 million dollar award it found she was due from her husband's estate should be reinstated. Devoted students of civil procedure will be watching this case closely. The rest of us will be more interested in seeing whether Anna Nicole has stuck with that "Trim-Spa" regimen.
Trigger Man. Wednesday, Feb. 15. 2006. Yes, my postings have been few and far between as of late with much personal business to attend to including, but not limited to, being overdue in delivering the updated manuscript of my book. But its time to throw down my two cents worth on VP Dick Cheney's hunting accident. First of all, let's keep things in perspective, more people have died with Ted Kennedy at the wheel than with Dick Cheney's finger on the trigger and let's hope things stay that way. The shame is in the aftermath and not the accident itself. Like Chappaquiddick, the accident didn't get reported to the authorities until the morning after. If there were suspicions about alcohol being a factor we only have the word of the shooter that it wasn't. I didn't trust him as to the presence of WMD's in Iraq so why should I trust him about this? Anybody else, except possibly the President himself, would immediately have been expected to promptly report such a mishap to the proper authorities and expect to promptly answer questions about it. But not Cheney. Nor was the press immediately informed of the accident. Although Cheney promptly informed his boss, Bush deferred to Cheney as to when to go public with it, confirming what many people have long thought, that its Cheney who's been telling Bush how to run the country all along. One could argue that this is just another example of a different standard of justice when it comes to the wealthy and powerful. WMD's will be found in Iraq before any criminal charges will ever be filed against Cheney as a result of this. A civil suit by the injured hunting buddy? Hey, wealthy friends don't sue wealthy friends. Assuming the victim makes a full recovery (and I certainly hope he does) this will all blow over. But in the meantime, its yet another reminder how this administration continues to act as if its above the law.
Best joke I've heard to come out of this. "Of course he didn't have a hunting license, you don't need a license to hunt lawyers out of season in Texas!"
Blake Plays the Bankruptcy Card. Saturday, Feb. 4, 2006. When I last wrote about the verdict in the Robert Blake civil trial I wrapped up by observing that Blake may not have much left in the way of assets to satisfy any judgment entered against him. So it should come as no surprise that yesterday Blake filed for bankruptcy. Not mentioned in either the L.A. Times or the Associated Press articles is the fact that the bankruptcy filing will effectively stay or put on hold any attempt to collect the $30 million dollar verdict of the jury. I would have expected Blake to have made his motion to set aside the jury's verdict by now but that hasn't been necessary as the judge at the civil trial took ill and went out on medical leave soon after the verdict was reached. As a result, the verdict hasn't been formally entered as a judgment triggering the 15 days within which Blake would have to move for a new trial. If collecting on the judgment is a game of poker, Blake's hand is flush. Bankruptcy isn't the only card that he's holding.
Phil's Depo Now on Record! Saturday, Jan. 28, 2006. The judge in the Phil Spector murder trial has finally gotten around to ruling that prosecutors may see portions of a deposition that Spector gave in his lawsuit against his former attorney, Robert Shapiro. Surprise? Hardly. I predicted this outcome back in December. Spector's attorneys argued that the depo was subject to a confidentiality agreement between Shapiro and Spector, but in the absence of a legally recognized privilege, confidentiality agreements can't keep information that might be relevant out of a trial. In ruling that prosecutors could have access to 85 pages of the deposition transcript, the judge stated; "There is not a smoking gun, but there is, in my mind, information that is discoverable." What did the judge mean by "discoverable?" It means that even if the information in the depo might not be relevant and admissible at the murder trial, prosecutors can nevertheless find out or "discover" what material is there if the information appears reasonably calculated to lead to the discovery of admissible evidence. Given that liberal standard its hard to argue that anything is not "discoverable." This is but the latest in a long list of setbacks for Spector as he fights the murder charge. The case is expected to go to trial by May.
Correction to 12/7/05 Post. Tuesday, Jan. 24, 2006.
Unshakable Justice. Friday, Jan. 20, 2006. I know one thing I've done that L.A. County Superior Court Judge George H. Wu hasn't done, shaken Jesse Jackson's hand. Jackson extended his hand to the judge at the conclusion of his testimony in a lawsuit where Jackson has been accused of roughing up conservative black minister Jesse Lee Peterson. The front page of this morning's L.A. Times had a picture of the judge waiving off Jackson who was extending his hand. The story brought to mind an experience I had many years ago when I was prosecuting a burglary case in Santa Barbara Superior Court. A witness I had called was late in arriving. I was in the process of explaining to the judge that I needed a recess until the witness arrived when the doors of the courtroom flew open and the breathless witness came trotting in. An unsophisticated man, he walked up to the witness stand and immediately extended his hand to the judge to shake it. The judge, not wanting to snub the witness in front of the jury graciously shook his hand. Of course, Jesse Jackson should have known better. Shaking a judge's hand in front of the jury is simply not done in the courtroom. Its sort of like the Queen of England. If she wants to shake hands with you she will initiate it. Otherwise, keep your hands to yourself. By the way, newer courtrooms are laid out such that there is no opportunity for this kind of faux pas. Unlike the courtrooms of the past where the witness stand was immediately next to the judge's bench, there is now considerable distance between the bench and the witness stand.
Spending an Evening With a Legend. Thursday, Jan. 19, 2006. Fresh from his appearance before the Senate Judiciary Committee where he testified on behalf on Samuel Alito, Senior U.S. Circuit Judge, Ruggero J. Aldisert addressed a group of law students and members of the local bar who assembled at Santa Barbara College of Law last night. As I've pointed out before, Aldisert has been a resident of Santa Barbara for the last 17 years. Having been a judge at one level or another for 45 of his 86 years Aldisert has a lot to talk about, but of course everyone was most interested in hearing about his experience testifying at last week's confirmation hearings and the inside scoop on his Third Circuit colleague, Samuel Alito. Aldisert thought the questions posed by the committee members on Alito's judicial philosophy were warranted and that Alito responded to them appropriately and adequately. He thought the questions regarding the nominee's failure to have recused himself in a case regarding the Fidelity Fund and the line of inquiry about Alito's membership in the Concerned Alumni of Princeton, were "a waste of time" especially in light of the revelation this past weekend that committee member Ted Kennedy had just resigned from a Harvard Alumni club that excluded women from membership. Aldisert has not only served with Alito on the bench for the last 15 years he has also known Alito since the latter clerked for one of the other judges on the Third Circuit. His description of Alito as a person: "a genteel man," not garrulous, "sharp as a whip and a brilliant legal mind." He assured us that "Sam" is not an ideologue who starts with a result in mind then figures out how to get there. As for Alidert's own view of the concept of stare decisis he follows the approach of the late Harvard Law School Dean, Roscoe Pound, the law must be stable but at the same time, move forward. When Aldisert was asked how he thought he would fare if he himself had been nominated in today's atmosphere he said "I wouldn't have a chance" having written a half-dozen books, over 30 law review articles and having a track record of over 30 years worth of opinions. Aldisert observed that only those who are "odorless and colorless" can be nominated these days. Did he think it was a conflict for him to be testifying on behalf of a judge, who if confirmed, would be reviewing his decisions? Aldisert answered that ever since he was appointed to the Third Circuit in 1968 the ABA has asked him for his input on every district court judge nominated within the Third Circuit, every federal appellate court judge nominated and every nominee to the U.S. Supreme Court and no one ever raised a question about there being a conflict.
Questions from the audience weren't confined to the Alito confirmation. How does Aldisert live in Santa Barbara and still actively participate as a judge of the Third Circuit which is located in Philadelphia? Cameras in the courtroom. When they have oral argument and Aldisert is on the panel, he's hooked up by video from his chambers in Santa Barbara. After the arguments are heard the courtroom in Philadelphia is cleared of all but the judges and his clerks leave his chambers in Santa Barbara leaving the three judges to have their post-argument conference via video. Aldisert's also one of the great name droppers of all-time counting among his close personal friends the late Supreme Court Justices Harry Blackmun (who authored Roe v. Wade) and "Bill" Brennan, the late Pennsylvania Senator Hugh Scott (who supported Aldisert's nomination to the Third Circuit and current Pennsylvania Senator and Chair of the Judiciary Committee, Arlen Spector, whom he first met when Spector was District Attorney of Philadelphia. Must be nice to have friends in high places.
Life After the Jackson Trial, The Old Sheriff Rides Back Into Town. Tuesday, Jan. 10, 2006. Despite the total defeat suffered by the Santa Barbara County DA and Sheriff in the Michael Jackson trial, there was suprisingly little negative fallout from the decision to spend perhaps millions of dollars in prosecuting Jackson. Sure, there was some occasional grumbling about the "waste of taxpayer dollars" but no sustained discussion of it or any hints there would be retribution at the ballot box. Of course, Tom Sneddon had long ago announced his decision not to run for re-election. Sheriff Jim Anderson was nearing the end of his first term in office and there was absolutely no talk of anyone running against him. However, Anderson has proven to be his own worst enemy and is already well on the way to snatching defeat from the jaws of victory. It started last fall when Dawn Hobbs of the Santa Barbara News-Press reported that the Sheriff had withheld from the District Attorney the fact and the results of an investigation where one member of the Sheriff's Council (an influential group of fundraisers for the Sheriff's Department) had verbally assaulted and physically shoved to the ground another member of the council, all of this occurring in the sherrif's headquarters and in the presence of the Sheriff himself. Things swept under the rug have a way of getting bigger and uglier when they are finally uncovered and this was no exception. The offending council member eventually was convicted by plea of disturbing the peace and resigned his position on the council. The attendant fallout resulted in council members taking sides and questions being asked about the finances of the council as well as whether influence in the Sheriff's department was being offered for sale to the wealthier citizens of the county. Ultimately, Anderson disassociated himself from the Sheriff's Council but the damage was done. Inevitably there was talk about Anderson being opposed in the upcoming election. Potential candidates floated their names then soon went away. When one of the Sheriff's command staff appeared willing to run against him, Anderson called him in and not so subtly reminded him of what side his bread was buttered on. That was certainly a mistake from an ethical point of view but it may prove to have been a greater mistake from a tactical point of view. Instead of being opposed by a little-known candidate from within the office, Anderson now finds himself opposed by his predecessor, the very well-known former Sheriff Jim Thomas, who today announced his candidacy. Those of you outside of Santa Barbara County probably know Thomas best as an NBC Legal Analyst during the Michael Jackson trial. Thomas' entry into the race is simply Anderson's worst nightmare. Although everyone agrees that Anderson is a nice guy, there are those within the department who feel that Anderson has been a disappointment as Sheriff. As weaknesses they cite Anderson's desire to micromanage but ultimately being unwilling to make decisions in a timely manner. If Anderson has been wounded and therefore become vulnerable in the past six months all of those wounds have been self-inflicted. Once he found himself in a hole he didn't know enough to stop digging. From Anderson's point of view, indeed from anyone's, there could be no more formidable opponent than Thomas. He was a popular sheriff who left office on his own time table. He has name recognition and knows how to handle himself with the media and in front of the cameras. If you're Anderson what could be worse? I don't know. But if anyone can take a bad situation and make it worse, Anderson has shown that he's the guy.
Alito Hearings, One of the Witnesses is My Neighbor! Monday, Jan. 9, 2006. The Senate confirmation hearings for Samuel Alito begin today and on Thursday of this week seven current and former federal appellate court judges will testify on behalf of Alito. One of those scheduled to speak that day is Senior U.S. Circuit Judge, Ruggero J. Aldisert. A resident of Santa Barbara, Aldisert is a former Chief Judge of the Third Circuit which of course is the court that Alito presently sits on. So what's a judge of the Third Circuit, doing living in California? When Judge Aldisert elected to take "senior" status he realized that he could move his chambers anywhere in the United States. He chose Santa Barbara (which in itself is an indication of what a brilliant man he indeed is!) I met Judge Aldisert not long after he moved here having been introduced by one of the local Superior Court judges whom I worked for at the time. We became friends, and in past years, he's been a guest speaker at classes I've taught at Santa Barbara College of Law. Aldisert's appearance at the hearing can only help Alito's cause. Unlike the other judges scheduled to speak on Alito's behalf, Aldisert was appointed to the Third Circuit by a democratic president and counts among his close friends the late Supreme Court Justice William J. Brennan ("Bill" Brennan as Aldisert likes to refer to him). Given Alito's 1985 Reagan administration job application where he professed disagreement with many decisions of the Warren court, Aldisert's Warren court ties should go a long way to assuage the fears of moderate democrats and others who worry that Alito is an activist conservative ideologue. That's the home=town angle. Today's New York Times has a good primer on what's likely to be asked of Alito in this week's hearings.
The Beginnings of a Juggernaut. Wednesday, Jan. 4, 2006. The Alito confirmation hearings begin on Monday and I'm ready to go out on a limb and make my first prediction of the new year: unless someone catches him in bed with a dead woman or a live man, there is nothing that can stop the confirmation of Alito. He's conservative sure, but with a small "c." Unlike Robert Bork who seemed determined to remake America in his own image (with a billy goat beard to boot) Alito is not a judicial activist. And more importantly, in contrast to Bork, he appears to be genuinely likeable. The confirmation hearings should certainly provide more theater than the John Roberts hearings. But Alito has given every indication that he can handle himself well before the Senate committee and in fact, the committee members may find themselves overmatched and outwitted. He's conservative but not the extremist that some groups have made him out to be. He can disagree without being disagreeable. Sure, he will have some 'splainen to do. Particularly when it comes to his justice department job application and the memos he wrote after he got the job in the Reagan administration, but he should be more than up to the task. Most interesting should be his response to questions about his views on Bush's authorization of warrantless wiretaps. (Look for him to dodge that question on the grounds that the issue may soon come before the court.) Alito will prove middle of the road enough to appease the moderate democrats while at the same time not causing the true liberals to work themselves up into a lather. In fact, by the time its all over, the hearings may be a '60's love in.
My Christmas Wish List Sunday, Dec. 25, 2005. Merry Christmas! There's two words you will never read on George Bush's White House greeting cards. Anyway, here's what I thought Santa should have left under the tree for some of the people who were in the news this past year. After you're done, click here to view my greeting card.
Michael Jackson: Some age appropriate friends.
"Scooter" Libby: An age appropriate nickname.
Phil Spector and Thomas Mesereau: Haircuts.
Jackson jurors Eleanor Cook and Ray Hultman: Some backbone.
Lindsay Lohan: Driving school.
George Bush: Law school.
Michael Brown: Management School.
Samuel Alito: A paper shredder.
Harriet Miers: A paper trail.
Judge Rodney Melville: Cameras in the courtroom.
Gloria Allred: A courtroom without cameras.
Robert Blake: A passing grade on his debtor's exam.
Ramsey Clark: Some new clothes.
Paris Hilton: Some clothes.
Kingdom of Bahrain: Child Abuse Investigators.
Beth Twitty: Answers
Our Troops in Iraq: A ticket back home.
Dick Cheney: A ticket out of town.
The People of Iraq: Their Country Back.
The People of New Orleans: Their City Back.
My Friends in the Media: The next trial of the century.
My Readers: Peace and prosperity.
Sex, Ties and Videotape. Wednesday, Dec. 21, 2005. One of my friends who attended the hearing called it the sleaziest two days of testimony he ever sat through. (And this guy sat through all of the Michael Jackson trial.) Its the just concluded preliminary hearing of Darnell Riley who is accused of robbery and extortion in the home invasion of Joe Francis, the millionaire producer of the "Girls Gone Wild" tapes. (BTW, I always thought it was just a matter of time before those hard partying Bush daughters showed up on one of those tapes.) At the hearing, Francis described how the defendant surprised him when he returned home from a night of partying by robbing him. Not satisfied with the over $1,000 in cash he took from Francis' home, Riley forced Francis at gunpoint to lie on his stomach and strategically placed a pink implement that can only be purchased at an adult store south of Francis' waist and forced Francis to say how much he enjoyed the infamous crime against nature while he videotaped the whole thing. Riley threatened to put the video on the internet unless Francis paid him over $300,000. The suspect's identity was unknown until Francis former girlfriend, Paris Hilton, tipped Francis and the police off. Riley's lawyer is another former Jackson trial commentator, Ron Richards. Unlike the Jackson trial, cameras were allowed in this courtroom and over the prosecution's objection were permitted to film portions of not only the extortion tape but also about five minutes of raw GGW footage depicting four-way girl-on-girl action that Riley allegedly stole from Francis' home. The only camera crew in the courtroom for the playing of the extortion tape was one from "Dateline NBC." When ABC News and "Inside Edition" realized what they missed they asked NBC if they would share the footage. "No way" was the answer. Finally, a true Dateline exclusive! Although how they will ever use it remains to be seen.
News Flash! Mesereau Compliments Jackson Prosecutor! Tuesday, Dec. 20, 2005. Tom Mesereau's reputation as a formidable defense attorney preceded him into the courtroom in the Michael Jackson trial. After watching him in action during that trial I can say that he lived up to that reputation in every respect. My only problem with him was what an ungracious winner he turned out to be. After he had completely vanquished the prosecution with the jury's verdict of not guilty on all counts he continued for days to go on and on about how the charges were "garbage" and "rubbish." Sure, the prosecution made some mistakes particularly with their decision to charge conspiracy and their handling of the testimony of Debbie Rowe, but the decision to bring the charges in the first place was hardly the outrage that Mesereau made it out to be. Anyone who saw the video of the accuser's initial disclosure to the authorities of the molestation would think there was cause to take the case further. Tom Sneddon if nothing else (and I believe there was a lot else) at least had the courage to do what he felt he had to do. There were two things Sneddon was not in control of, how bad a witness the accuser's mother would be and how good of an advocate Mesereau would be in defending Jackson. Anyway, I was pleasantly surprised at the praise Mesereau recently heaped on Ron Zonen. Mesereau was quoted (as I was) in the recent article in the Santa Barbara News-Press (subscription required) on the Jesse James Hollywood case. Mesereau is quoted as describing Zonen as "an outstanding trial lawyer. He's very well prepared, knows his way around the courtroom. He approaches his cases with responsibility, passion and conviction. As prosecutors go he's one of the best I've seen." Its nice to see Mesereau finally giving some credit where credit is due, even if it took him nearly six months to do it. The fact that Mesereau was able to walk Jackson out of the courtroom a free man in spite of Zonen's compelling closing argument makes Mesereau's accomplishment all the more impressive. BTW, for those of you who are interested in the Hollywood case, Scott Hadly's three-part series of which the quoted article is a part of and started to run in the News-Press on Sunday is the definitive account of the case this far.
Don't Bother Him With The Facts. Saturday, Dec. 17, 2005. Has anyone else noticed that George Bush has been acting more like a judge than a president lately? First, he declared that he believes former House majority leader Tom DeLay is innocent of the money-laundering charges pending against him. Such a proclamation is usually reserved after a trier of fact (namely a judge or a jury) listens to all of the evidence in the case and then makes a decision based on a deliberate consideration of the law and the facts. So what is Bush basing his "not guilty" verdict on? What he's read or heard in the media? Oh wait, a minute, wasn't he just telling NBC's Brian Williams earlier this week that he doesn't have time to read newsmagazines or watch the news on TV? Then it can't be based on anything he read in the paper or saw on TV. Maybe its based on something DeLay told him? Now I'm sure the prosecutor down in Texas would be interested in that. Be careful Mr. President, you might end up being subpoenaed. Then again, maybe its not based on any facts or anything he's read but rather another case of saying, "this is the result I want to see, now find me some evidence to justify it." It worked for him in making the case for going to war in Iraq. Maybe it will work for his old buddy Delay.
Then there was the revelation that Bush had shortly after 9/11 donned his magistrate's robe and authorized the wiretapping of citizen's phones without search warrants. The Fourth Amendment to the Constitution protects us from unlawful searches and seizures which of course includes eavesdropping on our private conversations. No search warrants for wiretaps are to be issued unless someone goes before a judge and describes under oath why they have a strong suspicion that something illegal is going on and that they need to eavesdrop in order to thwart the illegal activity or gather more evidence of it. If there are truly exigent circumstances then a warrant can be dispensed with. No one expects to police to wait outside of a building calmly awaiting the issuance of a warrant while a crime is being committed inside. But no one is saying that was the case here. Which brings me back to the point, if somebody's going to be authorizing the gendarmes to listen in on my conversations or search my home or my office, who do I want making that decision, the guy who says, "this is the result I want, now go out and justify it," or someone who listens to the facts and then decides what the result ought to be? I know what my answer is.
78 and Still Kicking Butt! Tuesday, Dec. 13, 2005. Former U.S. Attorney General Ramsey Clark was a guest on the "Today" show Monday morning. I find it remarkable that a former cabinet member in the Lyndon Johnson administration is still alive let alone still in the headlines 35 years after the Johnson administration vacated the White House. Of course he looked like he was wearing his same clothes from the Johnson administration, an old corduroy coat and a wrinkled button-down collar shirt. However, the sharpness of his mind more than made up for the dullness of his fashion sense. I'm not about to hold the fact that he doesn't have a stylist against him. Personally, I find nothing wrong or unpatriotic about his participation in the defense of Saddam Hussein before an Iraqi court. They way I see it there are two things that the U.S. cannot afford to have happen with Hussein's trial. First, we can't afford to have him found "not guilty." Second, if he is found guilty we can't afford to have the Iraqi people or anyone else in the world for that matter, thinking that he did not get a fair trial. Clark's rare combination of being a former high-ranking U.S. official while at the same time being viewed as "anti-establishment" gives him a certain aura of Baghdad street cred. The only person who would have been better qualified to defend Saddam is the late Johnny Cochran. (Imagine those possibilities.) If Katie Couric is going to be the next anchor of the CBS Evening News she better come up with some better questions then "do you believe he's guilty" or "how can you defend someone who is the butcher of Bahgdad?" If lawyers could only defend those they personally believed to be innocent, there would be few lawyers who could defend anyone. I thought that one of the values those of us in the U.S. were trying to impart to the rest of the world is that we don't trample on people's rights, even those whom the greater number of us may presume to be guilty. As Clark said, "I believe in the presumption of innocence, not only in the law but in life as well." Clark, like every other attorney defending a person accused of a crime, is there to see to it that his client gets all the process that he is due. Let's not call the man a "traitor" for doing his job. If we weren't going to give Sadaam a fair trial, then the soldiers who captured him may as well have executed him on the spot. They correctly and thankfully did not do that. Since we chose to go forward with a trial, let's have it be a fair one and let's give him the best lawyer we can. In this case, that lawyer is clearly Ramsey Clark.
What Part of "No" Didn't She Understand? Thursday, Dec. 8, 2005. I've never been a fan of Gloria Allred. I don't believe that lawyers should try their cases in the media and Allred has tried far more cases in the media than she has ever tried in any courtroom. I saw her in person several times at the Michael Jackson trial and nothing I saw dispelled my conception of her as being the number one worshiper in her own shrine. She was always stand-offish and noticeably unfriendly. On one of the few occasions I was provided with a driver and a car to get me to an early morning interview up in Santa Maria, my driver told me that earlier in the trial he had Allred as a passenger and she became incensed that he didn't recognize her or know who she was. (Hey, not everyone watches cable news 24/7!) So, now that you know where I stand, here's the story. The judge in the Pam Vitale murder case has issued a gag order prohibiting attorneys, witnesses, investigators, court staff and public officials from talking about the case of the 17-year-old accused of killing the wife of prominent Bay Area defense attorney Daniel Horowitz. What was unusual about the order is that the judge specifically included Allred, who represents a potential witness, the defendant's girlfriend. That means that Allred cannot talk about her client, or the facts of the case, with the media. Of course that effectively puts her out of the legal "pundit" business for this trial. Gloria is apparently not content to sit on the legal analyst sidelines and simply represent a witness in this case. She wants to continue to appear as a guest of the Dan Abrams, Nancy Graces and Greta Van Susterens of the world and continue to blab about what will certainly be one of the high-profile cases of 2006. So, what did she do? She hired an attorney to file a motion to seek "clarification" of the gag order. Was she really prohibited from talking about the case as were all the other parties, witnesses and attorneys for parties and witnesses? The answer, which came in an unusually swift and terse order from the court, is yes. Maybe the cable news networks will learn during the Gloria "blackout" that they can get along without her overexposed self-serving persona.
Your Tax Dollars at Work. Wednesday, Dec. 7, 2005. You would think that Congress has plenty to keep it busy. The war in Iraq, the utter lack of response on the part of the federal government to hurricane Katrina and rising oil prices are just a few of the things that easily come to mind should our elected representatives run out of things to do. But what is the House subcommittee on Energy and Commerce going to start looking into today? A "comprehensive review" of the BCS and postseason college football! Yes, that's right, calling the Bowl Championship Series "deeply flawed," the chairman of a congressional committee has called a hearing on the system used to determine college football's national champion. Deeply flawed? Our intelligence that told us that there were WMDs in Iraq is deeply flawed. Social security is deeply flawed. According to the 9-11 Commission, Homeland Security is deeply flawed. College football is not deeply flawed. Look, I like my sports as much as the next guy, maybe even a little more than the next guy, but unless my beloved UCLA Bruins are involved (and trust me, they aren't) I really could care less who is voted the national champion of football. And even if my Bruins were involved and got shafted by a group of ballot counters headed by Katherine Harris and her posse of hanging Chads from Florida, Congress should not waste a minute of its time or a penny of our money investigating it. Have I made my feelings clear?
My Suspicions Are Somewhat Confirmed. Wednesday, Dec. 7, 2005. (Correction: The Monterey Herald whom I originally quoted from has corrected the original article upon which this item was based. The Herald stated that due to an error in court records their article incorrectly stated that Eugene Forte had been declared a vexatious litigant. In fact the motion was denied and he has not been so declared. The following blog item was edited on 1/24/06 to reflect that correction.) Last week I cautioned against taking too seriously the allegations of misconduct leveled against the judge presiding over the Diana Hall disciplinary hearing. Much of what I wrote got picked up by Santa Barbara News-Press columnist Barney Brantingham (subscription required). Over the weekend, the Monterey County Herald ran a lengthy article confirming much of what I suspected. It described those making the allegations as having "personal vendettas" against the Monterey County judicial system. For instance, Crystal Powser, the former court clerk who was involved had previously circulated an e-mail to 47 people in the courthouse alleging that her former fiance, a Monterey County Traffic Court Commissioner, fixed tickets for friends, sent her thousands of love letters by e-mail on court time and had sex with her on numerous occasions in the Salinas and Marina courthouses. That lawsuit was dismissed on Nov. 23rd by a visiting judge.
He's A Rebel All Right! Saturday, Dec. 3, 2005. Phil Spector may be a musical genius but he is proving himself to be a legal dunce. 40 years after Miranda v. Arizona was decided, he didn't know enough to keep his mouth shut when the police showed up at his home in response to the 911 call that a woman had been killed there. (Maybe he hadn't watched enough old episodes of "Baretta?") Miranda requires that before a suspect who is in police custody can be questioned about a crime, he must be advised of his rights to remain silent and to consult with an attorney. But Spector was neither in custody nor being interrogated when he spontaneously stated "I didn't mean to shoot her" within earshot of a police officer. No surprise that his attorney's motion to suppress the statement was denied and the damning admission can be used as evidence against him in his upcoming trial. Spector first retained the well known, longtime "Mr. Fix-it" Robert Shapiro to defend him. But that association quickly went south when Spector fired Shapiro and then filed a lawsuit against Shapiro to get back the $1 million retainer he had paid him. In the course of the suit over the legal fee, Shapiro took Spector's deposition. Not surprisingly the district attorney's office wants access to the transcript of the deposition to see if it contains anything relevant or possibly even incriminating with regard to the murder charge. Spector first claimed the info in the deposition was subject to the attorney-client privilege, but to validly assert that privilege the disclosure must take place while the attorney still represents you, which it did not and there must be an expectation that the information will be kept confidential. Of course the very purpose of taking an opposing party's deposition is to discover information that you can use against them so there could not have been a reasonable expectation that whatever Spector told Shapiro in the depo would stay within the four walls of the conference room. Nevertheless, Spector is claiming he had a separate confidentiality agreement with Shapiro regarding the deposition. Even if that is so, confidentiality agreements are pretty much worthless once you get into the courtroom. Unless there is a legally recognized privilege, such as attorney-client, you can't say "I'd love to answer that question but I've signed a confidentiality agreement that prevents me from doing so." That just won't fly. The judge in the murder case will rule on whether the deposition can be used as evidence and to what extent at the next pre-trial hearing which is scheduled for December 14th.
Are You Ready for Some Football? Thursday, Dec. 1, 2005. I always thought that the Republicans were the party in favor of less government, less intrusion into people's lives, judicial inactivism, laissez-faire, live and let live, get off my back, I got mine I hope you get yours, etc. That's why I was so surprised when Republican Senator Arlen Specter jumped into the dispute between the Philadelphia Eagles and their star wide receiver and world class crybaby, Terrell Owens championing the cause of Owens. Hard to believe, one of the most senior and most respected senators of the party of big business telling big business how to run their business. Oh well, I guess it all depends on whose ox is being gored. For you non-football fans let me bring you up to speed. The athletically gifted and talented Owens had become such a pain in the posterior maximus that his employer, the Philadelphia Eagles, bit the bullet and exercised their rights under the collective bargaining agreement by suspending Owens for four games without pay for "conduct detrimental to the team," and deactivated him with pay for the remainder of the season after the suspension ended. Specter said it was "vindictive and inappropriate" for the Eagles to forbid Owens from playing. Now if they are paying the guy they have the right to play him, bench him, or tell him not to suit up at all. I mean, its their money and their business and this is America right? For whatever reason the thought of them not letting Owens play upset Spector so much that he threatened to play the anti-trust card and drag the NFL before the U.S. Senate. He later backed down on that threat. But the fact that Specter got in such a lather about this makes me wonder, was the Senior Senator from Pennsylvania crossing the border into neighboring New Jersey (Atlantic City to be specific) to place an occasional wager on his home town Eagles? I mean, there has to be a capitalist motive in this somewhere.
Before You Jump to Conclusions Consider This. Saturday, Nov. 26, 2005. I've posted here before about the California Judicial Performance Commission's inquiry into the allegations against Santa Barbara Superior Court Judge Diana Hall. The hearings were abruptly and mysteriously recessed shortly after all of the evidence had been received. For nearly a week there was no explanation as to why the Commission suddenly suspended the proceedings. Then on Thanksgiving Day, the Santa Barbara News-Press (subscription required) reported that the proceedings were halted by the Commission after it learned that one of the three judges on the fact-finding panel allegedly made crude sexual comments about Hall that gave "an appearance of impropriety." Adding even more intrigue to the story was the revelation that the woman making this allegation, Crystal Powser, a former court clerk, had been invited by one of the judges on the panel, Michael S. Fields of Monterey, down to Ventura where the hearing was being held to join him at his hotel for a tryst. All of the ingredients for a sensational scandal are there, a judge using the opportunity of an out-of-town assignment to rendezvous with a paramour and during the pillow talk he reveals that his mind is already made up about the case he is deciding and ridicules the subject of the inquiry to boot. Yet, if you read the article carefully there are reasons to be skeptical of the allegations of Powser. The first clue that something is amiss is the fact that the declaration claiming wrongdoing was not filed with the Judicial Performance Commission but rather was filed in an unrelated lawsuit against another judge in Monterey County. The Monterey Superior Court took the highly unusual step of issuing a terse press release confirming that the declaration had been filed and saying that no further information could be provided. So what is that about? The News-Press article offered no information about the parties or subject matter of this other lawsuit. Also curious was the fact that the declaration was filed the very next day after the alleged tryst. The Associated Press picked up the story on Friday but perhaps out of wariness of the allegations, offered even fewer details than the News-Press article. What's not included in the print stories can be found by a little investigation on the Internet.
Let's start with what the other lawsuit is about. The case is Forte v. O'Farrell, (Monterey Super. Ct. No. M72599). The plaintiff, Eugene E. Forte alleges that Robert O'Farrell, the supervising civil judge of the Monterey County Superior Court, and other judges of that court, caused him emotional distress and abused his due-process rights. Forte claims O'Farrell violated his rights when the judge had deputies arrest him because Forte announced his intent to disqualify O'Farrell in another civil suit he had filed. Hmmm. So who is Forte? I don't know, but he does have a website called AttorneyBusters.com that "is dedicated to exposing corruption of the American judicial system by corrupt attorneys, judges, judicial officers, public officials and members of the media . . ." Forte represents himself in the lawsuit. I'm not saying that a plaintiff representing himself is always the reflection of a lack of underlying merit, but with 150,000 attorneys actively practicing law in California, there is usually no problem finding a lawyer to take a case that has merit, even where the defendant is powerful and the cause unpopular. One of Forte's recent motions raises more red flags. He's asking that the federal government take charge of the Monterey Superior Court, the California Attorney General's Office, the California Governor's Office, and the Commission on Judicial Performance. That's not something that anyone would ever realistically expect to be granted. Still not skeptical? Then consider Ms. Powter's declaration itself. (Warning, the language is very explicit.) It's crude, sloppily drafted and over-the-top in its descriptions of Ms. Powter's claims. There is a clear inference in the fourth paragraph that Powter and Forte were trying to set Fields up by placing him in a compromising position. The statements attributed to Fields could have been easily fabricated. After all, the substance of the allegations against Hall that are repeated in the declaration had been widely reported for quite some time, and Fields' alleged joking about Hall's female roommate having the last name "Dykeman" is an obvious irony. Finally, many of the things attested to in the declaration are gratuitous having nothing to do with either the disciplinary hearing or the Monterey court case and are included only for their shock value. To be fair, there may be physical evidence in the form of hotel records and restaurant tabs that corroborate some of this. If there are, I'm sure we will hear about them. For now, the Judicial Performance Commission has to treat this like a bomb threat, that is, evacuate the building or in this case, halt the proceedings. In the meantime let's not forget that sometimes the very fact that stories appear in print lends credence to the allegations contained within them. But in this case I'm skeptical. Now that you know what I know, perhaps you will be too.
It Must Be Sweeps Month. Thursday Nov. 24, 2005 I had assumed that most people were tired of hearing about Michael Jackson at this point but I must be wrong. If you need to boost the ratings, you can always count on Michael. How else can one explain the sudden spike in stories about the gloved one in the past two weeks? For starters, there was Diane Dimond promoting her new book "Be Careful Who You Love" last week on a number of shows including "The Abrams Report." I've only read the excerpt from the book that is posted on the web. I understand though from someone who has read the book that while it compiles an abundence of material and information that although obscure was nevertheless in the public domain, there is really no new information in the book. I know that for the die hard Jackson fans there is no one more despised or reviled than Dimond (other than Tom Sneddon). However, in my opinion there few people among the media corps assembled at the trial who were nicer or more pleasant to be around than Diane Dimond. I wish her luck with the book.
On Tuesday of this week,"Good Morning America" led off its 7:30 half-hour with its heavily promoted piece promising tape recordings of "the Michael Jackson you've never heard" or something like that. What was served up was a rehash of the breach of contract lawsuits brought against Jackson by his former unindicted co-conspirators, Marc Schaffel and Dieter Wiesner. These civil suits were a pretext to play two-year-old answering machine tapes where Jackson is heard pleading and begging for his business associates to round up some cash for him. In one of the tapes, a voice that sounds very much like Jackson's is heard making an anti-semitic remark. The ABC correspondent was quick to point out that the anti-semitic tape could not be authenticated. Wasn't it just a year or so ago that heads rolled at CBS News over broadcasting a story based on unauthenticated documents? I guess when its sweeps month the journalistic standards get lowered.
On Wednesday, the Los Angeles Times had a front page profile on Thomas A. Mesereau Jr. Tom Sneddon declined to be interviewed for the Times article but the local ABC affilliate in Santa Barbara, KEYT TV, ran an intereview with Sneddon which it falsely promoted as being "his first interview since the Michael Jackson trial ended." (I guess those interviews he did on the "Today" show and "Paula Zahn Live" the day after the verdict don't count.) I don't know what was more disapppointing, the answers he gave or the lack of meaningful follow-up questions by interviewer C.J. Ward. For example, Ward asked Sneddon, whether he was surprised by Debbie Rowe's testimony. Sneddon responded by saying that nothing about Debbie Rowe surprised him, that she was a "loose cannon." Sneddon should have been asked why he didn't try to impeach her with the inconsistent statements that she gave to the prosecution team and that he referred to in his opening statement. I mean if he knew she was a loose cannon then he should have known that she might do a back flip on him and been prepared for that contingency. Instead Ward asked whether he thought Rowe hurt his case. Amazingly Sneddon said "no." Well, she certainly didn't help the case and you sure don't win cases by calling a string of harmless or innocuous witnesses. In the end that was one of the reasons that the prosecution lost, they called too many witnesses who failed to deliver as promised. By the time they were able to place in front of the jury their single most powerful piece of evidence, the tape of the accuser's disclosure, too much doubt had been raised. Sneddon went on to say that Rowe had "mental problems" and seemed to assume that her mental problems should have been obvious to the jury. However, I was in the courtroom when she testified and she did not come across as a person with mental problems. This is yet another indication that Sneddon assumed that the jury knew what he knew and thought like he thought. He assumed way too much. Finally, Sneddon was asked if he had it to do over again would he have done anything differently? Sneddon said there was one thing he would have changed. However, he refused to say what it was. But that didn't stop KEYT from teasing viewers on Tuesday with the unanswered "what would you do different question" to promo the Wednesday installment of the interview. After all, its sweeps month, right?
Blake Verdict, What Next? Monday, Nov. 21, 2005. Those who are interested in the Robert Blake civil trial (and admittedly, that may be a small number of people) are asking, what happens next? More specifically, will there be a hearing on the $30 million damage award? The answer is there probably will be. Blake can, if he chooses to, make a motion for new trial. Among the grounds that would support a new trial is an excessive damage award. (Cal.Code.Civ.Proc.§ 657) The jury had been specifically instructed that; "[You] must not include in your award any damages to punish or make an example of the defendant. Such damages would be punitive damages, and they cannot be a part of your verdict." When the jurors were interviewed after the verdict one of them stated: "The message we're sending is a deterrent. The majority of us feel Mr. Blake was guilty and there is no price that can be put on the love of a parent." Of course once you talk about sending "messages" that's just another way of saying that you are punishing or making an example of the defendant, which means they didn't follow the judge's instruction on damages. So, the grounds for a new trial are there. As I explained when the verdict was returned, the judge could deny the motion for a new trial on the condition that the plaintiffs agree to accept a reduction in the amount of the award. The reduction is called remittitur. So, at the very least I think we are looking at a reduction of the damage award if not a new trial. So, why wouldn't Blake make a motion for a new trial? Well, he may be out of money and unwilling to incur any more attorney's fees. Damage awards are not self-executing and the onus is on the plaintiffs to move to enforce the judgment by taking steps to execute on it by finding assets to attach or seize. That's not always easy because for starters there is a long list of property and assets that are exempt from execution under California law. Between what is exempt and what Blake may have already transferred to his own children there may not be much left to satisfy a judgment. Of course, the plaintiff's will ultimately get an opportunity to ask Blake about his assets. Can you say "debtor's exam?"
A Staggering Monetary Verdict That Will Not Stand Friday, Nov. 18, 2005 Its not that surprising that a civil jury has found Robert Blake liable for his wife's death. What is totally astounding is the amount of the damage award, $30 million. As I have explained in this space before, none of that amount is punitive damages. In California, punitive damages are not available in wrongful death actions. Damages in wrongful death cases are limited to those necessary to compensate for the loss of society, comfort and support suffered by the survivors of the victim as opposed to punitive damages the purpose of which is to punish or make an example of the defendant. The plaintiffs in this case were Bakley's children. Two of them are adults. Bakley was basically unemployed. As a 40 something woman she perhaps had a life expectancy in the range of another 30 or 35 years. So its hard to imagine how loss of support, society and comfort could average out to around $1 million per year. The next move in the case will undoubtedly be a motion for a new trial. The judge may to grant the motion unless the plaintiffs agree to accept a reduction in the amount of the verdict. The power of the judge to reduce damages is called remittitur which is a limited exception to the sanctity of jury fact-finding. It allows trial judges to reduce damages, but only when the award is grossly excessive. If remittitur is denied or the amount of the verdict is not reduced enough to satisfy Blake, there will undoubtedly be an appeal where the chances of the amount of the verdict being set aside as an impermissible assessment of punitive damages are great. In any event it remains to be seen whether the plaintiffs will be able to collect anything they recover from Blake. Winning a judgment is one thing, enforcing it is quite another. Just ask O.J.
Have Robe, Will Travel. Friday, Nov. 18, 2005 Usually, its the litigants who have to go to the courthouse to have their cases heard. But is there a judge who's willing to go to the scene of the dispute and decide the case on the spot? If the spot we're talking about is the local strip club then yes. Of course, that's precisely what got Los Angeles County Superior Court Judge Kevin A. Ross removed from the bench. It seems Ross appeared in two pilot episodes for a reality show called "Mobile Court," which decided small-claims cases at the scenes of disputes. In one of the episodes an erotic dancer claimed that a security guard had cheated her out of prize money by disqualifying her from a wet T-shirt contest. Ross heard the dispute inside a Los Angeles strip club with "zebra carpet, neon, mirrors, pole" and asked the plaintiff for details of the contest. (It is not known whether the dancer inquired "May it please the court?") The California Commission on Judicial Performance concluded that Ross "marketed himself as a judge in hopes that he then could leave the bench for a more lucrative career in television" and removed him from the bench, making him only the eighth judge to be removed since 1995. There were other transgressions on Ross' part but this was by far the most colorful.
In fact its been a busy week for California's Judicial Performance Commission. Closer to my home the Commission heard the matter of Santa Barbara Superior Court Judge Diana Hall, who faces discipline for, among other things, drunk driving and failing to report a campaign contribution of $20,000 from her same sex lover and roommate. I know Judge Hall and have always gotten along fine with her. I also have a case currently pending before her. (Apparently that's something that Bob Woodward wouldn't have told you had he been in my position, I just did.) Judge Hall is not contesting the truth of the drunk driving charge. Her defense to the failure to report the campaign contribution, her belief that there was no requirement that the contribution be disclosed, appears weak. "Ignorance of the law" is as true as it is trite. Should Hall fear the same fate as Ross if the Commission finds the allegations true? Removal from the bench is the equivalent of the "death penalty" to a judge. Ross had a prior record of discipline, Hall does not. Unless the Commission finds that Hall lied during the course of the proceedings against her I don't see this as being a "death penalty" case. Public censure is the most likely outcome. (Late breaking development: on Thursday, the Judicial Performance Commission suddenly and without explanation, suspended the hearing against Judge Hall.)
Fall Guy? Tuesday, Nov. 15, 2005. The more I learn about "Scooter" Libby, the more puzzled I am by him. Let's start with what he is not accused of. He is not accused of "outing" Valarie Plame or blowing her cover as a CIA agent. He is only accused of lying to the FBI and the grand jury. Some Republican cheerleaders have suggested that the fact that no one has been indicted for "outing" Plame suggests that no such crime was committed. I disagree. As I used to argue to juries, people need a motive to lie, you don't need a motive to tell the truth. If Libby lied he had a reason or purpose for doing so. Most likely to cover up for whomever did out Plame. A Washington Post article that appeared over the weekend persuasively suggests that it was Dick Cheney himself that Libby was covering up for. I don't read tea leaves or crystal balls so we will just have to wait and see if Cheney is ultimately charged with this, although it wouldn't surprise me if he turns out to be the leaker. Libby has been more accustomed to the roll of defender rather than defendant. (He shepherded the pardon of wealthy commodities trader Marc Rich through the Clinton Administration.) According to the special prosecutor's theory, Libby lied to the FBI and to a grand jury, even though he knew investigators had his personal notes and White House phone and visitor logs. That is simply far too sloppy for a savvy Washington lawyer who got his law degree from Columbia. Guys like this don't walk into ambushes. Far more likely that he made a conscious decision to take this bullet for his boss rather than being an innocent victim caught in the cross-fire.
Two Guys Who Shot Their Wads. Thursday, Nov. 10, 2005. It seems as though it was just yesterday that George Bush was lecturing all of us on how he had earned political capital in the 2004 election and was going to spend it. Well 53 weeks later its all gone, every last cent of it. So just where did it all go? Certainly the Harriet Miers nomination and the CIA leak investigation sucked a lot of the political green out of Bush's billfold but the biggest drain has been the war in Iraq. As the death toll rises and the options for an acceptable exit strategy dwindle and most importantly, as more and more people realize that they were lied to about the facts that purportedly justified this unnecessary war, more people than ever are fed up with Bush. Its a good thing there is a two-term limit on serving as president because Bush couldn't be elected dog catcher right now let alone win his own party's nomination for another term.
Someone else who quickly squandered his political capital is California Governor Arnold Schwarzenegger. All four of the Gobenator's pet ballot proposals were rejected in Tuesday's election. And unlike Bush, Schwarzenegger wasn't merely playing with the house's money. He spent $7 million of his own cash to support the defeated initiatives. So, $7 million out of his own pocket and nothing to show for it! The day after election day finds the Texas Ranger and the Hollywood action figure in the same place, holding a tin cup and standing in the political bread line. So what's the lesson to be learned here? If you want to wisely spend your political capital, be straight with the people, work with and not against the legislature and don't try to reward a crony with a plum lifetime appointment.
Blake, Ready to Go "Cowboying" Again? Monday, Nov. 7, 2005. The jury in the Robert Blake civil trial could return a verdict as early as today. Blake is being sued by Bonnie Lee Bakley's four children under California's wrongful death statute. Despite the lesser burden of proof, no one who has observed the trial appears to be too sanguine about the plaintiffs' chances of winning. Even if the plaintiff's prevail, I wouldn't be surprised if the damage award is small. Its a vestige of the old common law rule that a tortfeasor was better off killing the victim rather than simply wounding or maiming him. If the victim survived, he could sue for his personal injuries. If he died, his claim for personal injuries died with him. All states have rectified that by enacting statutes providing that personal injury claims "survive" the death of the decedent or by attaching civil liability for wrongful death. The former, "survivorship" actions, can only be brought by the executor of the decedent's estate and any recovery becomes an asset of the estate and distributed to the decedent's heirs after the debts and obligations of the estate are paid. "Wrongful death actions" are brought by the relatives of the decedent (who may be different from the heirs) and damages for loss of comfort, society and support are paid directly to them. (If you're having trouble conceptualizing the difference between "heirs" and "relatives" think of the philandering spouse who executes a will disinheriting his wife and leaving all of his money to his mistress.) The catch is that in California punitive damages cannot be recovered in a wrongful death action which is the only action that has been filed against Blake. "Loss of, society and comfort" which can be compensated for in a wrongful death lawsuit are elusive concepts to quantify even under the best of circumstances. Given an underwhelming case and an unsympathetic victim, don't expect any large damage awards.
Hold Your Fire! Thursday, Nov. 3, 2005 Isn't that what they used to say in the old movies when the good guys were about to unload on the bad guys but at the last minute someone realizes they really aren't the bad guys? That's sort of how I feel after reading yesterday's L.A. Times article on Supreme Court nominee Samuel A. Alito's unexpected supporters. Most impressive of the impressive array of "liberal-leaning judges" who are cited for their respect and admiration of Alito was the late A. Leon Higginbotham who served with Alito on the U.S. Court of Appeals for the Third Circuit. Higginbotham, who at the time was the only African-American judge on the Third Circuit, is quoted as describing Alito as "a wonderful judge and a terrific human being" one without ideology or agenda. Also encouraging was the example of the case of U.S. v Kithcart, 134 F.3d 529 (3rd Cir.1998). Kithcart involved a detention and search where the probable cause to do so amounted to little more than "driving while black." Alito wrote the majority opinion which ruled the detention illegal. That's not a ruling one would normally expect from a former U.S. Attorney. On the other hand, today's Washington Post examines Alito's record in civil rights cases and it definitely appears to be a mixed bag. But, in light of the other names on Bush's short list, Alito appears to be the most moderate and centrist of the bunch. The name on that list I know best, Janice Rogers Brown of the D.C. Circuit Court of Appeals, was formerly on the Supreme Court here in California. I consider myself to be a moderate liberal but from what I see I prefer the white and male Alito to the black and female Brown. So, its probably still too early to jump on the bandwagon for or against Alito but until the Senate confirmation hearings roll around, let's keep our powder dry.
Bigger and Badder. Monday, Oct. 31, 2005. So, how good do you feel about a nominee who some have referred to as the "Little Scalia?" Desperately needing to divert attention from the recent setbacks to his administration, Bush has nominated Judge Samuel A. Alito Jr., to the Supreme Court. "Bigger" in the sense that he is not the lightweight that Harriet Miers was and "badder" because he is a known conservative. And, there's not a damn thing you or I can do about it. This is hardly unexpected. It would have been difficult to find anyone less qualified for the court than Miers even if Bush had tried to do so. I continue to believe that Bush's primary motivation in nominating Miers to begin with was to reward a loyal crony, but the conservative branch of the Republican party wasn't going to let him get away with that, so a highly qualified conservative was inevitable. So what do we know about Alito? He was in favor of deferring to the Pennsylvania legislature when it passed a law requiring a woman to get the consent of her spouse before having an abortion. He also appears to not to have a problem mixing his government with his religion when it comes to allowing religious displays on public property. Realistically, the only thing that could prove difficult as far as his confirmation goes, is the fact that he once ruled on a case involving Vanguard Group despite the fact that he had a significant amount of money invested with them. Conflict of interest usually proves to be the achilles heel in these situations.
BTW, Alito's first stop after the White House was the Capitol Rotunda where he viewed the casket of Rosa Parks which is lying in state there. Now, how likely was he have to done that had he not been nominated?
He's No Ham Sandwich! Saturday, Oct. 29, 2005. Of course I'm referring to the old saying that a good prosecutor can get a grand jury to indict a ham sandwich. Well the grand jury has spoken and the charges are far more serious than simply being in violation of the "no grown man should be called "Scooter" law." I. Lewis Libby, Vice President Cheney's chief of staff, has been indicted on charges of lying to federal investigators and obstructing justice. Four counts that carry the potential of five years each and one count with the potential of 10 years. When will these guys learn that the cover-up is more likely to lead to charges being filed then the underlying crime? Just ask Martha Stewart. This indictment confirms what I have long suspected about the Bush White House, that there is a Nixonesque aspect of this administration. People at high levels of the administration asking each other who don't we like? Who are our enemies? Who can we stick it to? Who can we screw? Without a doubt the answer to those questions was Joseph Wilson and Valerie Plame. Wilson dared to challenge the Bush administration on its justification for the war in Iraq and they were going to do everything in their power to discredit him even if it meant blowing his wife's cover as a CIA agent. Will the other shoe drop? Will Karl Rove be indicted? If he's truly the "architect" as Bush has described him, then I'm sure his fingerprints are all over this set of blueprints.
Having said all of this, I must admit that of all the statements made Friday the one that rang the most hollow was the one issued by Joseph Wilson and read by his lawyer. The one where he says something to the effect that although he'll be speaking out in public, leave his wife out of this as she hasn't sought the limelight. Is this the same Joseph Wilson and Valerie Plame who posed for the rock star style photo that ran in Vanity Fair? She hasn't sought the limelight? Give me a break!
A Parting Gift That Had to Be Returned. Friday, Oct. 28, 2005. Bush's nomination of Harriet Miers to the Supreme Court was the latest example of a president who is rapidly becoming a lamer and lamer duck, rewarding those who have been most loyal to him with a nice parting gift. The most notable examples have been Condoleezza Rice and Alberto Gonzales. Their work inside the White House was rewarded with cabinet level positions when the positions of Secretary of State and Attorney General opened up. Moving up within the executive branch is one thing but moving from the executive branch to the judicial branch is quite another and a lifetime appointment to the Supreme Court is the ultimate parting gift. But, if the gift doesn't fit, the nominee must quit, which is exactly what Miers did in withdrawing her name from consideration. Perhaps Bush had watched "My Fair Lady" too many times and thought he could pull a Henry Higgins, that is, take a commoner and make her presentable to high society. In this case, take an average lawyer and pass her off as a constitutional scholar. But as today's Washington Post reveals, efforts to coach Miers in rehearsals for her upcoming Senate hearings failed miserably. In the end, she was too much of a lightweight to give her handlers any hope that they could pass her off as being Supreme Court material.
So who will Bush nominate now? Personally, I think Miers would have been every bit as conservative as Bush promised she would be but in this age of instant gratification, his conservative base didn't have the patience to wait and find out. Given Miers' paucity of credentials for the job the next nominee will certainly be more qualified and the more qualified the harder it will be for the Democrats to block the nomination. I think the best the liberals can hope for is former Solicitor General Theodore Olson. So far, Bush has been unpredictable in regard to his high court nominees. They only thing we can be certain of is that the parting gifts to those loyal staff members are on hold for now.
Apparently She's No Raconteur. Wednesday, Oct. 26, 2005. So the White House, desperate to salvage the Harriet Miers nomination, is considering having the Supreme Court nominee make a speech. Judging by the speeches she gave 10 years ago, as also reported by today's Washington Post, that's probably not a good idea. For instance, Miers is quoted as saying: "The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women's [sic] right to decide for herself whether she will have an abortion," Hardly a revelation and not even good English, let alone forceful or persuasive oratory. (I could go on quoting her, but I want you to continue reading this post.) And just where did she stand in that debate? Apparently no one knows because, worst of all, the underlying messages of her speeches are so muddled, neither liberals or conservatives can agree on whether what she said was good or bad for their respective positions. The late Abe Fortas was forced to withdraw his own name from consideration for the position of Chief Justice, in part because he had accepted $15,000 for giving a speech. I assure you, no one is going to be paying Harriet Miers that kind of money for giving any speeches and if they do they'll be asking for a refund. If I were Miers I would be extremely careful about making any speeches at this juncture. The only thing worse than being suspected of being a lightweight, is to open your mouth and remove all doubt.
Fatal Subtraction, The New Math? Tuesday, Oct. 25, 2005. One of the oldest running jokes in Hollywood is that "Gone With the Wind" has yet to make any money for MGM according to the studio's accountants. Don't believe that a movie studio would ever make such a claim with regard to a box office blockbuster? Well, the Los Angeles Times reported Monday that the talent agents who represented the creators of the hit TV show "Frasier" have sued Paramount Pictures seeking an accounting of the show's profits. Seems as though the agents, in addition to negotiating the customary upfront fee for their services, were also promised a percentage of back end profits. In other words they were to get additional payments once the show started generating net profits. So with a show that ran for 11 seasons and earned more than $1.5 billion in gross revenues there should be plenty of net profits right? Not according to Paramount. If you believe them, the show never turned a net profit. This is not the new math its the old Hollywood. Paramount litigated and lost a similar suit back in 1988 involving the Eddie Murphy movie "Coming to America." One of the plaintiff's in that case was humorist, Art Buchwald. Part of the reason Paramount lost that case was because the trial judge ruled that Paramount's definition of what constituted "net profit" was unconscionable. The concept of unconscionability permits a court to refuse to enforce a contract if it feels it is unfair. If unequal bargaining power or strength on the part of one of the parties results in contract terms that are unreasonably favorable to that party or unduly harsh on the other party, those terms may be deemed by a court to be unconscionable and therefore unenforceable. I predict that Paramount will end up settling this case. The Buchwald case was never appealed so its holding cannot be cited as precedent in other cases. Newcomers like the Frasier creators who want to establish that Paramount's definition of net profits is unconscionable have to start from scratch. But Paramount can only defend so many of these cases before one of them goes up to an appellate court that will declare the net profit provision unconscionable once and for all. Paramount may have $1.5 billion in gross profits but if you're one of their bean counters, this is one thing they can't afford.
Fashion Felonies and Other High Crimes and Misdemeanors Monday, Oct. 24, 2005. When I was Juvenile Court Judge in Santa Maria, California during the mid-'90s, I had a dress code for all those appearing in my courtroom. No shorts, no bare midriffs, no halter tops. No T-shirts that advertised or promoted alcohol, drugs or tobacco or had images of scantily clad women. I figured if the young people were going to be court house regulars, they at least ought to learn how to dress for the occasion. Your first jurisdictional hearing (the juvenile court equivalent of an arraignment) was not the time to show up in your "Bad Boy" T-shirt. Dress for court the same way you would dress for church was my motto. Perhaps similar thoughts were going through the mind of NBA commissioner David Stern when he mandated a new dress code for players last week. Players will be expected to wear business casual attire whenever they participate in team or league activities, including arriving at games, leaving games and making promotional or other appearances. This instead of the hip-hop/gangsta style wear that is now so fashionable among the cognoscenti of the NBA. I say good riddance! Jackie Robinson, Rosa Parks and Martin Luther King, Jr. were not spat upon, did not go to jail or have the fire hoses turned upon them so that some of the most visible, highly paid and idolized young black men in this country can wear 'do-rags, jeans that fall half-way down their butt and some gaudy medallion. Predictably, the dress code has been met with some resistance. Some players have even had the gall to suggest that they should get a wardrobe stipend if the league is going to dictate their dress. Fortunately, former NBA player and current TV analyst Charles Barkley, as he so often is, has been the voice of reason and fully supports the new rules. So does film director Spike Lee. The fact is that many people, including myself, are uncomfortable with the "thug" image the NBA has begun to take on. In my opinion its part of a larger problem of the break down of social mores in general. I'm talking about people who sit in restaurants and talk loudly on cell phones or spammers who constantly bombard our in boxes with pitches of questionable taste without regard to whether the recipient is your 90 year old grandmother or my 10 year old daughter. So, thank you David Stern. To show my gratitude I'm going to be sure to make it down to L.A. this season to catch at least one Lakers game. By the way, nice suit Commissioner!
And Now, For Something Completely Off-Topic. Saturday, Oct. 22, 2005 I'm writing this post from an altitude of 36,000 feet somewhere over the middle of America. I'm returning from Tampa, Florida where I attended the annual conference of the American Association for Paralegal Education. It was a quick trip because with my original return date of Sunday coinciding with the scheduled landfall of hurricane Wilma, I decided to get out of Florida while the getting was good. However, the highlight of the trip had nothing to do with the conference but rather was seeing the Rolling Stones in concert on Wednesday night at the St. Pete Times Forum in Tampa. Here is a group that hit the American shores in 1964 and are still going strong. Given the comparatively clean cut look of the Beatles and the hard living reputation of the Stones who would have thought that 40 years after the British music invasion we have more Stones still living than Beatles? The Stones still have three of the five original members plus long time member Ron Wood who succeeded Mick Taylor and the late Brian Jones. TV shows such as "I Spy" and "Bewitched" that were the staples of network TV back then are long gone and have been remade into feature length movies. Their original stars have either died or have aged beyond the point where they could convincingly play their original roles but the Stones rock on looking much the same as they did back then. I swear, Mick Jagger has not lost a step. He appears every bit as lithe and energetic as ever. By my count, the Stones only performed two songs that they had recorded prior to 1970; "Sympathy for the Devil" and their encore number, "Satisfaction." The bulk of their concert repertoire comes from the '70s and 80s. They opened the concert with "Start Me Up" and then followed with "Its Only Rock and Roll." One of the best numbers they did was a cover of "Night Time" the old Ray Charles hit which even included a female soul singer wailing "baby! in counterpoint to Mick's lead vocal. Seeing the Stones live in concert is a must for anyone who like me was just reaching their teens when the Stones were coming onto the rock music scene. The fact that they played for two hours straight with no intermission yet barely played any songs from their first six years says volumes about the depth of their catalog. Who knows how many more times they will tour? Based on the strength of their performance Wednesday the answer may well be "as many times as they want!"
Convicted, By an All Media Jury. Saturday, Oct. 22, 2005 One of the worst examples of the media jumping to conclusions about someone's guilt comes from the tragic circumstances of the murder of attorney Daniel Horowitz's wife. It started on the Abrams Report on Monday with the quoting of an affidavit that Dan Horowitz had made on June 15, 2005, in support of an application for a restraining order against one of his neighbors. In it, Horowitz laid out the fear he had for his own safety and that of his wife, Pamala Vitale. What Abrams failed to follow-up on though was why Horowitz never had a copy of the Order to Show Cause served on the neighbor and why Horowitz failed to appear in court on the day set for the hearing on the restraining order. On Tuesday, the accusations moved to the Larry King show where the neighbor, Joseph Lynch, was quoted as saying that he didn't need a lawyer before talking to homicide investigators working on the Vitale case because he had nothing to do with her death. King's legal panel that night which included Mark Geragos, Mike Cardoza and Ivan Golde, were nearly laughing as they pooh poohed the idea that the media's prime suspect didn't need a lawyer. Imagine that, three defense attorneys convicting someone quicker than Judge Roy Bean would. The fact that Lynch knew far more about when not to lawyer up than anyone on anybody's legal panel seems to have been substantiated by the fact that on Friday it was a 16 year old neighbor who police arrested and charged with the murder rather than Lynch. Its still early and a lot of questions about this senseless and horrific crime remain unanswered but I hope that somewhere, somebody is writing an apology to Joseph Lynch. Of course, none of this diminishes the loss that Dan Horowitz and his family have suffered.
A Serious and Somber Posting Sunday, Oct. 16, 2005 Saturday evening, the wife of prominent Bay Area criminal defense attorney, Daniel Horowitz, was found dead at their home, the victim of an apparent homicide. I met and worked with Dan at the Michael Jackson trial where we were both legal analysts. Dan Horowitz is a really nice guy and is certainly a dyed in the wool criminal defense attorney committed to shielding the individual from the sometimes awesome power of prosecutors. When I think of "true believer" I think of Dan. Its a cruel irony that someone who is so dedicated to defending those accused of crime has lost his wife apparently to the hands of a murderer. My thoughts and prayers are with Dan and his family.
In Baseball, Its Known as "Selling the Call." Saturday, Oct. 15, 2005. In politics, as in baseball, a person who makes a call that is questioned has two choices: they can either change the call or they can continue to sell it. Umpire Doug Eddings is an example of the former. In Wednesday's game between the Angels and the White Sox, he clearly called batter A.J. Pierzynski out on a third strike. But when Pierzynski ran to first base anyway he raised a doubt in Eddings mind as to whether the catcher had legally caught the ball. Rather than continue to sell his original call that Pierzynski was out, Eddings changed his call and ruled that the ball had been trapped meaning that Pierzynski was a baserunner and could advance to first base. Rather than ending the inning the White Sox were able to send another batter to the plate who, three pitches later, doubled in the game-winning run. Too bad Eddings didn't take a cue from President Bush, who in the face of torrid and continuous criticism from the Right of his nomination of Harriet Miers to the Supreme Court, continues to try to sell the call rather than change it by withdrawing her name from nomination.
The heat generated from the conservative side of the Republican party over the nomination has been so intense that the Bush administration has resorted to suggesting that perhaps sexism is the motive behind the opposition to Miers. Sexism? I don't think so. If the nominee had been Priscilla Owen or Janice Rogers Brown, there would have been no outcry from the conservatives. The criticism from the right is based solely on the fact that Miers has not established her bona fides as a pro-life Christian conservative who is a lead pipe cinch to be the swing vote that will overturn Roe v. Wade. Although Bush has tried to reassure conservatives that he "knows her heart" (wink wink) the Right sees no reason to be put through the anxiety of waiting to see whether or not their worst fears about Miers, that she is David Souter in a skirt, come to pass. Conservatives are in no mood to "wait and see." They want instant gratification. They finally have the votes in the Senate to ram an ultraconservative Supreme Court Justice down the collective throats of the rest of us and Bush is denying them the opportunity to do so. They have spoiled too long for this fight.
So should Democrats and those of us who are pro choice rejoice over the Miers nomination? No one can say for sure whether she will be that swing vote but of all the names that were floated before-hand few, if any, appear more moderate than Miers. If Bush were persuaded to change his call and withdraw her name, any replacement would, without a doubt, be more conservative by several fold. Let's hope that Bush continues to "sell the call."
John Roberts Was Right. A Judge Is Like An Umpire. Thursday, Oct. 13, 2005 October! Time for some playoff baseball. And how about my Los Angeles Angels of Anaheim? True, I haven't attended an Angels game since I was in high school (and I'm not about to confess how long ago that was!) Being born and raised in Los Angeles I know that anyone from Anaheim won't pass as being from L.A. but with my beloved Dodgers joining me on the living room couch for the post-season the Angels are my now my team. After all, when it comes to jumping on bandwagons I can jump on with the best of them. That would include Anaheim Mayor Curt Pringle, who last week ended his season-long boycott of Angel games to attend their first playoff game. Pringle had stayed away from Angel games all season to demonstrate his displeasure with the team's change of name from Anaheim Angels to Los Angeles Angels of Anaheim. The City of Anaheim has sued the Angels over the change and is claiming breach of contract. Already the City has spent over $1 million in attorney's fees and the case isn't scheduled to go to trial until January 9, 2006. So, is the team's name change to Los Angeles Angels of Anaheim a breach of their contract? The contract between the team and the city says that the name of the team shall include "Anaheim," which it does. Anaheim argues that the intention was that no other city's name should be included. But the contract is silent on that point. If it was the intention of the parties that the team could only be known as the "Anaheim Angels" with no other variations they certainly could have written the contract that way. They didn't. It all comes down to the parol evidence rule, a principle of contract law that should be familiar to any first year law student. The rule basically says that where the parties reduce their contract to final written form no one can later claim, "I know the written words in the contract say this, but what we really meant is this." And that pretty much sums up the City's case. I'm tempted to say that this should be a slam dunk for the Angels but there are no slam dunks in the courtroom or, in baseball. After all, the Angels just got robbed in game two of the ALCS against the White Sox. A bad call here and there can kill you.
They Usually Leave the Building Feet First. Monday Oct. 10, 2005 The most interesting thing on Meet the Press Sunday was not the debate between conservatives Patrick Buchanan and Dr. Richard Land over the Harriet Miers nomination but instead was the weekly flashback segment. In it, we were reminded how few and far between vacancies on the Supreme Court can be (there were none during Jimmy Carter's presidency) and that Lyndon Johnson persuaded not just one, but two, sitting justices to step down from the bench in order to allow him to make appointments. The flashback segment recounted how Johnson, who wanted to be the first president to nominate an African-American to the high court, got Justice Tom C. Clark to step down by nominating his son, Ramsey Clark, to the position of Attorney General. In the segment Johnson is heard in a tape-recorded phone call asking the younger Clark "Do you think you could be attorney general with your daddy on the Court?" In an act of paternal selflessness, the elder Clark swore his son in as attorney general and then resigned from the court the same day. Johnson, got his desired appointment and nominated Thurgood Marshall to replace Clark. Of course when Marshall retired from the court in 1991, Bush's daddy nominated Clarence Thomas to succeed him disingenuously proclaiming that Thomas was the most well qualified person for the job and the fact that he was replacing the court's only African-American with another African-American had absolutely nothing to do with the appointment. (I can hear the back room discussion now; "They want a black on the court? We'll give 'em a black! One who is ultra-conservative and is heartless with respect to equal opportunity!")
The Clark story reminded me of how two years earlier Johnson had engineered another resignation from the court. In my third year of law school I had the privilege of taking a seminar from former Supreme Court Justice Arthur J. Golberg. I remember him telling the class "If you ever become a Supreme Court Justice don't let a president talk you into giving up your seat." For that is exactly what Johnson did. He convinced Goldberg to leave his seat on the court to become the Ambassador to the United Nations. Johnson told him it was an opportunity to be remembered as the person who ended the Vietnam War. Well of course the Vietnam War did end but it was long after Goldberg and Johnson were both gone. Johnson filled the Goldberg vacancy on the court with his long-time crony Abe Fortas. Johnson later nominated Fortas to be Chief Justice, but a successful filibuster blocked the nomination. Fortas later resigned as an associate justice in a scandal over his having accepted outside fees.
One of the members of the 1970 "Meet the Press" panel that questioned Clark was Fred Graham, who was a reporter for the New York Times then. Graham asked Clark why his opinions as a justice seemed to differ from those he seemed to hold while attorney general. Clark answered: "[W]hen I got on the Court, why, there's a different viewpoint. There's something behind your chair, you know, that sort of nudges you now and then. And so you get a different view of a situation." Coincidentally, Clark, like Miers, hailed from Dallas. As I write this, the Bush administration is undoubtedly looking into what's behind those chairs in the courtroom.
Lindsay Lohan Fender Bender! Our Team Coverage Starts Now. Friday Oct. 7, 2005 Enough posts about the Harriet Miers nomination. Its time to talk about something that you really care about. And that is . . Lindsay Lohan's bad driving! The L.A. TV stations have covered this story on their local news with the assets and resources that are usually reserved for a natural disaster. "News Chopper 4 is hovering over the scene of the accident!" The L.A. Times has given more coverage to this story, than it has to the Robert Blake civil trial. Believe me, as the father of a 16 year old who recently got his license I can tell you that poor driving by teenagers is hardly news. But again, this is the teenager who inspired what has been Governor Arnold Schwarzenegger's one concrete (but nonetheless dubious) accomplishment, the signing of the anti-paparazzi law. The law, AB 381 which takes effect January 1, 2006, provides that any photographer who commits an assault with the intent to capture any type of visual image, is civilly liable for treble the actual damages (which may very well be nothing) caused by the assault as well as punitive damages. Glad to hear that the streets of West Hollywood and Beverly Hills will be a little safer for the Lindsay Lohans of the world. Also glad to hear that the Beverly Hills and Century City lawyers who represent them are getting some additional legal remedies to pursue. Now that Lohan's Mercedes roadster has been towed away and the glass and metal swept up, can we call off the team coverage?
If This Was Softball, She'd Be a Ringer. Wednesday, Oct. 5, 2005. To the non-sports fans out there "ringer" can mean a teammate who is actually working for the other side. That is what I fear the President has given us with the nomination of Harriet Miers to the Supreme Court. My conservative friends (all two of you) need not fear. Senator Orrin Hatch is quoted in today's New York Times as saying "she is going to basically do what the president thinks she should, and that is be a strict constructionist." She's going to do what the president thinks she should? That statement in and of itself confirms all of my worst fears about her nomination. Just as I prefer to have my church and my state separated, so do I prefer to have a separation between my judicial and executive branches. What Bush has done is succeed in getting a member of the executive branch, his White House Counsel, onto the Supreme Court bench. Why else would he nominate her? She hardly has the illustrious legal and scholarly background we have a right to expect from our Supreme Court Justices. Sure, Louis Brandeis had never been a judge prior to being appointed to the high court, but I can guarantee you, Miers is no Brandeis. She is, from all I can discern, Bush's alter ego. I refuse to believe Bush's most implausible denial of ever talking to Ms. Miers about her personal views on abortion. If that is true, what does that say about Bush? Does he really care so little about this issue to have never discussed it with a close friend and advisor? That's possibly the one thing that's worse than not owning up to having the discussion.
No Experience Necessary! Monday, Oct. 3, 2005. You know this is a great country when a 60 year old woman with no judicial experience can be nominated to the U.S. Supreme Court. It would be an even greater country if the nomination went to someone who actually had prior judicial experience. Maybe I'm just old fashioned, but I do subscribe to that peculiarly mid-20th century notion that people should work their way up through the ranks. That is not the case with the President's appointment of Harriet E. Miers as associate justice of the Supreme Court. What? You've never heard of her? Well, other than John Dean, most people would be hard pressed to name a White House Counsel. Nominating a person who has never been a judge to the high court is not unprecedented. 33 years ago, William Rehnquist was elevated from his position as a Justice Department lawyer to the court. (And we know how he turned out.) I don't doubt the qualifications of a managing partner of a large law firm (which she was) for cracking the whip over the partners and associates to make sure they make their quota of billable hours every month. But that hardly qualifies her to sit on the Supreme Court. Nor does cleaning up the Texas Lottery Commission. I thought these jobs were supposed to be going to the best and the brightest. Instead, is seems like we're getting the dullest but most well-connected. Is there a double standard here? The moderate to centrist justices (e.g. Souter and Stevens) would seem to have the more extensive judicial experience. The conservatives (e.g. Thomas and most likely Roberts who had one and two years respectively of prior judicial experience) do not. Why would a president appoint someone with little or no judicial experience? They answer is, no paper trail! The Republicans learned their lesson well with the Robert Bork confirmation hearings. Having served as a close legal advisor to the President in both a public and private capacity, you can be sure that Bush knows Miers views on the issues that matter most to the rest of us. Given the performance of Roberts before the Judiciary Committee, I'm not optimistic that we will learn a whole lot more about her beyond the little we already do know.
First Monday in October, The Gold Stripes Must Go! Monday, October 3, 2005. Today is the first day of the Supreme Court's new term and already we are on fashion watch. John Roberts will be formally enrobed today as the Chief Justice and he can do a lot to redeem himself with me if he breaks ranks with his two predecessors and declines to don a pimped out robe decorated with some silly adornment in order to set himself apart from the court's eight associate justices. For most of the 19th and 20th centuries all of the Supreme Court Justices wore plain black robes. No stripes on the sleeve, no velvet trim, just basic black. That custom was broken by Chief Justice Warren Burger who felt it was necessary to distinguish himself from the pack by wearing a gold chain at the collar of his robe. The resentment and ridicule that this chain engendered among the other justices is recounted in Woodward and Armstrong's book, The Brethren. Chief Justice Rehnquist took judicial couture to an even more ridiculous level when, after being inspired by a Gilbert & Sullivan play, had four gold stripes sewn on each sleeve. Anything that has setting the Chief Justice apart as its purpose goes against the notion that the Chief Justice is simply the first among equals. In an earlier era on the court one associate justice, when summoned to a meeting by the Chief Justice, reportedly snapped "Tell the Chief Justice he's not my boss!" No, he's not the boss and he certainly isn't the the Lord Chancellor or even the Head Fred. This is the one area where I hope the new Chief Justice shows his conservative (and not gold) stripes.
Oh Well, at Least It Was Nice to See Fred Graham Getting Some Work. Friday, Sept. 30, 2005. On Thursday the Senate confirmed the appointment of John Roberts as Chief Justice of the U.S. Supreme Court and Roberts was sworn in a few hours later. The only good thing that came out of the confirmation debate on the Senate floor was the commentary on Court TV of Fred Graham who was the CBS News correspondent assigned to cover the Court during the Watergate era and is now the Managing Editor of Court TV. IMHO Graham is everything a reporter and a lawyer, which he also happens to be, should be. It was certainly nice to hear his pleasant Tennesee twang once again. Out here on the West coast, my cable company carries infomercials instead of Court TV when Fred is on at 6 a.m. In any event, with Roberts being only 50, I've probably seen the last confirmation of a Chief Justice in my lifetime. I hope I'm wrong, but the mortality tables suggest otherwise.
BTW, what was up with Court TV's graphic that read "Confirmation Battle" that it used on Monday's coverage? "Battle?" What battle? There was some token opposition but it hardly rose to the level of a "battle."
Hopefully, there will be a battle next time around. My skepticism about Roberts has been well documented in this blog, but in the end I had to concede that he should be confirmed because things could have been worse. Undoubtedly they will get worse when Bush names the replacement for Sandra Day O'Connor. Roberts is a conservative. A highly qualified one but a conservative nonetheless. I have a theory about this President; the younger his nominee to the court, the more confident Bush must be in the nominee's conservative pedigree. With Roberts being the youngest person ever to be nominated Chief Justice, you can be sure he is at least as conservative if not more so than William Rehnquist. But in the end, we are only trading one conservative Chief Justice for another and the balance of the court is not disturbed. That is not the case with O'Connor. Anyone that Bush names is highly likely to be to the right of her. My only hope is that if the nominee is a woman, the special interest groups won't give her a pass simply because she is a woman. No more than being an African-American is no guarantee that a nominee will be a liberal or even a centrist (Clarence Thomas being the obvious example) being a woman is no guarantee of moderation either. I would choose a moderate or centrist white guy over a Thomas or Janice Rogers Brown any day. The Supreme Court has already indicated that it is going to hear at least two abortion cases in the upcoming term that starts on Monday. By most counts, there is only a 5 to 4 split to uphold Roe v. Wade. O'Connor's replacement has the potential to change that. So who would I nominate if I were President? Given the names that have been tossed around, Fred Graham would beat any of them. Besides, he could use some more work.
Its Sort of Like Trying to Get a Good Tee Time Wednesday, Sept. 28, 2005. Why do they call it "justice?" Richard Pryor used to say it was because when you would go to court it was, "just us," referring to the fact that in the criminal justice system, it seemed like most of the defendants were black. I'm not about to get into that. But I am quoted in Quintin Cushner's Santa Maria Times article that appeared yesterday on the questions raised by the use of private judges. In it, he explores the pros and cons of the private judging industry, which if you can afford, allows the chance to bypass the backlog that exists at many courts and in effect buy a speedier resolution to your case. Santa Maria court administrator Darrel Parker asks "What does the fact that somebody set up private judging say about the (public) courts system?" After reflecting further on the points raised in the article it strikes me as kind of like golf. There are many excellent public golf courses but that doesn't stop those who can afford it from paying through the nose to join a country club. The amenities are usually a little nicer and you're less likely to be stuck playing behind someone like O.J. who's too busy looking for the real killers to be concentrating on his game.
Searching In Vain for Re-Runs Monday Sept. 26, 2005. About the only thing that's harder to find these days than a good "Baretta" re-run is news about the trial of the Robert Blake civil lawsuit that is currently underway. Civil trials that follow criminal acquittals are the ultimate re-run but the Los Angeles Times has completely ignored this story. My friend, David K. Li, has been covering the trial for the New York Post, but print editions of the Post are hard to come by here in little old Santa Barbara, and articles at nypost.com quickly disappear and go to archive format. The most recent account of the trial that I could find on-line comes from Court TV.
Earlier this year Blake beat murder charges in the death of his wife, Bonnie Lee Bakley. He is now being sued by Bakley's four children, including the four year-old daughter he fathered with her, under California's wrongful death statute. If successful, the wrongful death suit will result in an award of monetary damages to Bakley's dependents and relatives.
So why should a civil wrongful death suit have any chance of succeeding when the criminal case for murder didn't? Three reasons; (1) the burden of proof is not as great. In a civil case the test is merely a preponderance of the evidence or whether it is more likely to be true than not true that Blake was responsible for his wife's death. (2) Unlike a criminal case where a unanimous verdict is required only nine of the twelve jurors have to agree. (3) Blake can't avoid taking the witness stand as he did in the criminal case. In a civil case a defendant has no privilege not to be called as a witness and since he has already been acquitted and cannot be retried criminally, no privilege against self-incrimination. The attorney for the plaintiffs can call Blake to the stand and basically cross-examine him, something that the prosecutors in the criminal case couldn't do. This third factor is the one that will make the biggest difference. Remember the O.J. Simpson civil trial? One of the things O.J. was asked about while testifying was whether he had ever owned a pair of Bruno Magli shoes. Footprints of such shoes were present at the murder scene but no shoes were ever found. O.J. famously declared that he "wouldn't be caught dead wearing those ugly ass shoes." The civil attorneys for the Brown and Goldman families then produced something prosecutors in the criminal case apparently didn't have, a photo of O.J. standing on the sidelines at a football game wearing Bruno Magli shoes and looking very much alive. A world of possibilities is opened up when a defendant takes the witness stand.
More difficult than establishing Blake's liability will be trying to collect any damage award that is imposed. With those "Baretta" re-runs being scarce, Blake is probably not collecting any residual checks that could be attached to satisfy a judgment.
Who Were You Expecting? William O. Douglas? Friday Sept, 23, 2005. Its official. The nomination of John Roberts to be the next Chief Justice of the Supreme Court has made it out of the Judiciary Committee, and now will go on to the full Senate for confirmation. Short of Anita Hill making an encore appearance in Washington, nothing is going to derail the confirmation. Therefore, despite the misgivings I have previously expressed, I say let's confirm him and move on. Its not because what I think this country needs is another Republican white male on the Supreme Court bench. Rather, we are simply not going to get a better nominee out of this President. At least he's not trying to jam the judicial equivalent of John Bolton or Michael Brown down our throats. And for that we should be grateful. If Roberts proves to be intellectually honest, that will be an improvement over his predecessor, the late William Rehnquist. Rehnquist steadfastly maintained that the federal government should not interfere in matters reserved to the states, unless it was to tell Florida when to stop counting their election ballots.
Sure, as a former Reagan staffer, Roberts is suspected of being hostile to civil rights. But then again, who in the Reagan administration was friendly to civil rights? Bush certainly isn't going to be selecting his next Chief Justice from the alumni lists of the Carter or Clinton administrations. At least Roberts doesn't appear to be an ideologue or a "natural law" kook. So, given the inherent limitations of those who could possibly be nominated, Roberts is probably going to be as good as it gets.
Laissez Les Bon Temps Roulez! Wednesday, Sept. 21, 2005. The Los Angeles Times reports that one of the first businesses to reopen in New Orleans is a strip joint. Now that should come as no surprise because with a few folding chairs, a galvanized bucket to chill the beers and a sturdy steel pole, you're in business! Right? And if the dancers happened to lose their clothes to hurricane Katrina, that's not a problem either. The article quotes one patron who paid $50 for a private dance telling the stripper, "Don't touch me. I'm married." (Is that you Bill Clinton?) So what's the legal angle that justifies my taking note of this auspicious opening in this blog? I can't figure one out. But if any cable news producers out there can come up with one and would like me to do a "live hit" from inside the Club Deja Vu in New Orleans, you know how to reach me.
Hollywood Story. Monday, Sept. 19, 2005. In spite of the outcome in the Michael Jackson case, the best attorney in the courtroom wasn't Thomas Mesereau, Jr. It was Senior Deputy District Attorney Ron Zonen. I say that not because he was a former colleague of mine in the Santa Barbara County District Attorney's Office or because we both grew up in the same Los Angeles neighborhood where he was two years ahead of me at Los Angeles High School. I've simply never seen any lawyer who thought faster on his feet, had a better command of the facts of his case or argued his case better to a jury than Zonen.
Apparently I'm not the only one who thinks so because the word is out among the Southern California criminal defense bar where the highest compliment they can pay to a prosecutor is to try to get him removed from their client's case. As reported in the September 16, 2005, Santa Barbara News-Press, Los Angeles area defense attorney James Blatt, who represents accused murder mastermind Jesse James Hollywood, is trying to disqualify Zonen from prosecuting the case against his client. The basis for the recusal motion is that Zonen has provided "technical assistance" to writer/director Nick Cassavetes in his soon to be released movie "Alpha Dog" a drama based on the life of Hollywood. The movie boasts an all star cast including Sharon Stone, Bruce Willis and Justin Timberlake.
Hollywood is alleged to have given the order to kill 15 year old Nicholas Markowitiz presumably to send a message to Markowitz's older brother whom, according to the prosecution's theory, was involved in a dispute with Hollywood over a drug debt. Four other defendants have either plead or been found guilty after trial of being complicit in the five year old murder. Zonen handled those other cases and hence has the most institutional knowledge of the crime among those in the DA's office. Hollywood was "on the lam" all that time and was arrested in Brazil in March of this year. Getting Zonen and the rest of the Santa Barbara DA's office off the case and substituting the California Attorney General's office, who would be the first to admit they don't make their living being trial lawyers, is the best chance Hollywood has of beating the charges.
So, how does a prosecutor get disqualified for being a "technical adviser" on a Hollywood movie about someone named Hollywood? The answer, if there is an answer, lies in the details of California Rule of Professional Conduct 5-120 which prohibits lawyers from making statements which would prejudice a pending case. Given the broad latitude a prosecutor has under the rule to make statements giving information necessary to aid in the apprehension of fugitives its a stretch to think this motion has any chance of succeeding. But if the upside is that you can get the best Deputy DA in town taken off your client's case, its worth a try. The motion to recuse Zonen will be heard in Santa Barbara Superior Court on November 1, 2005.
He's Too Young to Remember Dr. Zhivago! Friday Sept. 16, 2005. You know you are getting old when you go to a major league baseball game and all of the umpires look younger than you do. You also know you are getting old when the President nominates someone younger than you to be Chief Justice of the Supreme Court. And yes, I qualify as old on both counts. Confirmation hearings for John Roberts concluded this week and the one thing he took a position on, I'm suspicious about. That would be his claim that his all-time favorite movie is "Dr. Zhivago". A quick check of imdb.com shows that "Dr. Zhivago" was released in 1965 which means that Judge Roberts was 10 years old when it came out. Isn't that a little young to be enthralled by a slow moving David Lean epic? I confess, I've never seen the movie but I do remember my girlfriend in college had the soundtrack which pretty well confirms my suspicion that it was a "chick flick." Now, I would hardly expect a nominee to name "Showgirls" as his favorite movie (unless he's Clarence Thomas) but if you are going to reach back to the mid- '60s to come up with a title, how about something that was a little more action oriented such as "The Dirty Dozen" or "The Great Escape"? I think the Judiciary Committee should have done more investigation and subpoenaed Roberts rental records from his neighborhood Blockbuster store.
Seriously, I've interviewed with two different Governor's appointment's secretaries for a position on the trial court bench here in California. I was asked for my views on everything from how I would handle repeat drunk drivers to the death penalty. Never for a moment did I think that I could get away with saying "It would be improper for me to comment because such a case might become before me on the bench." (And I'm sure the people who actually got the appointment over me didn't pull that either.) Now, if I have to be interviewed on my views by the Governor's aides before being appointed to the lowly and now defunct municipal court, you know darn well Roberts has been interviewed by the President's posse of screeners and king makers before his name was sent on to the Senate. I'll bet he wasn't pulling that "It would be improper for me to comment" stuff with them. If they know what his answers are aren't the rest of us entitled to know as well? That leaves those memo's he wrote as a Reagan administration staffer as the only thing he can be meaningfully questioned on and of course his position is "I was only advocating the position of my administration."
It was recently reported that the late William Rehnquist wrote a memo when he was a law clerk for the Supreme Court arguing why Plessy v. Ferguson was defensible. He also later advised Barry Goldwater in his opposition to the 1964 Civil Right's Act. Now that's perfectly legitimate because all of us who are lawyers are required to advocate for clients and as long as the client isn't asking us to commit a crime, we have an ethical obligation to argue their position even if we don't personally believe in it. But aren't there staffers in Washington who have the courage to say to their boss, "your position is wrong and here's why?" I'm sure that there are. It's unfortunate though that they don't get nominated when those phat lifetime appointments to the bench come up for grabs.
Where is Tom Sneddon When You Need Him? Wednesday Sept. 14, 2005. Hurricane Katrina not only swept away the City of New Orleans it also swept from the studios and "live hits" of the legal talk shows any discussion of what's going on in Aruba with the Natalee Holloway case. But today on MSNBC's Abrams Report, Natalee's mother, Beth Holloway Twitty, washed back up on shore complaining about how the Aruban authorities, apparently stymied by a lack of evidence, were refusing to prosecute those suspected in her daughter's disappearance. Apparently the Aruban DA is not interested in taking a high profile case to trial without any evidence. Maybe Twitty can persuade Tom Sneddon to move to Aruba and run for DA there after he retires from office here in Santa Barbara.
You Are Now Free to Sign Your Book Deal. Monday Sept. 12, 2005. Its been 90 days since the jury rendered its verdict in the Michael Jackson case so this is the first day jurors can legally sign those lucrative contracts to write books and otherwise profit from fulfilling their civic duty as jurors. Then there is Jackson juror Ray Hultman who I must assume is Swedish because he sure "yumped the gun" in signing his book deal. Exactly when he put his "John Hancock" on the deal I don't know but apparently it was long ago enough to now regret it big time as he is already trying to get out of his publishing contract. I wish someone would ask me about this because for all of my work as a so-called legal analyst in the Jackson case this is a question that is within the sweet spot of my realm of expertise as a professor of Contract law. Its unlawful in California for a juror to agree to receive compensation for discussing cases upon which they served within 90 days of being discharged as a juror. Although Tom Sneddon is highly unlikely to prosecute Hultman or any of the other Jackson jurors because it will look like sour grapes, courts will not enforce contracts that are contrary to the law or the policy of the law. That's right, you heard it here first. Hultman will prevail and be released from this contract and may even be allowed to keep any advance he received as courts not only will refuse to enforce illegal contracts but also refuse to give any relief, even by way of ordering restitution, to any party to such a contract.