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Winning the Appeal by Changing the Theory of the Case: Connerly v. California

2014 September 5
by Alex Coolman

How can a court of appeal find an “abuse of discretion” by the trial court, and reverse on appeal, if the court of appeal doesn’t think the trial court did anything wrong?  One way is explained in Connerly v. State of California (C073753), which was published Wednesday by the Third District Court of Appeal.

The wrinkle in Connerly is that when a court sustains a demurrer without leave to amend, the plaintiff may then “propose new facts or theories to show the complaint can be amended to state a cause of action, thereby showing the trial court ‘abused its discretion’ [citation] in not granting leave to amend.”  This rule comes from Code of Civil Procedure section 472c, which lets the new theory be asserted on appeal even if there was no request made in the trial court to amend.  Thus it becomes possible for the Court of Appeal to retroactively find an “abuse of discretion” even when the trial court was never asked to exercise its discretion in the first place.  As the Court of Appeal notes, it’s awkward that the result has to be framed in terms of trial court error when, in reality, the reversal is simply a function of the way the statute operates.



The South Pasadena School Arrests: Is Internet Research and Communication an “Overt Act” in Support of Conspiracy?

2014 August 19
by Alex Coolman

I’m intrigued by today’s announcement of arrests in an alleged conspiracy to commit a school shooting in South Pasadena, which appears to have occurred based in part on monitoring the Internet research activity of the students.   The boys involved in the plan will apparently be charged with conspiracy, which makes me wonder whether a “criminal conspiracy” can be said to exist based solely on matters that people talk about and research on the Internet. The Huffington Post reports that “Police found evidence that the boys were researching rifles, submachine guns, bombs and other explosives, especially propane.”

Conspiracy, in California law, requires both a plan and an “overt act.”  And it doesn’t take much, as one might imagine, to constitute an “overt act.”  But it does require an “act,” not merely a thought.  I do see at least one unpublished California case, People v. Spencer, 2012 WL 3308374, where one of the “overt acts” alleged was performing “computer research” to obtain the address of an individual.  So maybe that’s enough for a conspiracy.

But this case reminds me of two things.  One: the recent case of the New York man who planned to kill and cook his wife, but argued that the entire scheme was an elaborate mental game played out over the Internet.  In that case, and in this, much of the prosecution is based on expression on the Internet and research conducted on the Internet.  Which is a little uncomfortable simply because of the risk that people might be interested in freaky stuff in a purely abstract way and not actually have any intent to do anything illegal.

And, frankly, the other thing this case reminds me of is myself as a teenage kid interested in weird stuff.  Except that I wasn’t doing research on the Internet, I was just flipping through the pages of The Anarchist Cookbook in the UCSD library, reading all kinds of recipes for bombs and booby traps and other nonsense.  I was an honor student, not an anarchist.  I had no intention to hurt anybody or even to try any of the extremely ill-advised schemes in the book, and my actions were not subject to governmental scrutiny because I was reading a book rather than doing Google searches.

I want to think that strange, geeky kids of today should still have the freedom to be interested in strange, geeky things.  But I suppose times are just different now in the wake of Columbine and all the other horrendous incidents that we’ve seen.

Update 9/2/14: These students were ultimately charged only with threats, not with conspiracy.  Which is interesting in light of the considerations described above, but may or may not have anything to do with evidence of overt acts.

Related Posts: What a “Terrorist Threat” Is Not: Anonymously Blogging That You Would “Wouldn’t Mind Murdering” Kids

The 2014 Court Stat Pack: Reversals in Civil versus Criminal Appeals

2014 August 12
by Alex Coolman

Here’s an interesting set of graphs from the just-released 2014 California court statistics report.  The graphs show reversal rates in criminal versus civil appeals in fiscal years 2010-2011 through 2012-2013, where the criminal appellant was the defendant below.  The light gray bar is the percentage affirmed, the medium gray bar is the percentage reversed, and the black gray bars show dismissals.  Three years are shown, but the data is the same in each year: civil appellants obtain reversal more than four times as often as criminal appellants.

civil vs criminal

Gmail for Lawyers? No. The Skillern Case and The End of the Naive Cloud.

2014 August 11

I’ve used gmail in my law practice for years, but that has to change.  The problem, as we learned at the end of July, is that Google collaborates with law enforcement in run-of-the-mill state law criminal prosecutions by scanning and turning over incriminating gmail data.  And that is not a fact that can possibly be reconciled with any reasonable effort to protect client confidentiality over email.

I had subscribed to what one might call the “naive cloud” idea of gmail — i.e., the idea that my gmail was accessible to analysis for Google’s marketing purposes, but that that was the end of it.  Since I’m not handling any cases that involve imminent terrorist threats, I figured the NSA probably wasn’t paying much attention, and I didn’t really mind getting the occasional Google Ad for software, or vacation rentals, or whatever.

The case of John Henry Skillern erases those assumptions.  It is the end, for me anyway, of the naive cloud.

Skillern is a Houston man who was arrested and charged with possession of child pornography based on Google’s analysis of images that he had apparently sent through gmail.  And while child pornography is obviously a significant and troubling crime, it’s also a fairly run-of-the-mill, low-level crime, not some pressing matter of national security. If Google is happy to turn over data in a case like Skillern’s, there is no reason why it won’t do the same in any other case, whether it’s evidence of a drug transaction, a conspiracy, or any other crime that Google deems worthy of its corporate attention.

"PhotoDNA" analysis of an image. Photo via Techcrunch.

“PhotoDNA” analysis of an image. Photo via Techcrunch.

Some blogs disagree.  Techcrunch claims that Google does not “actively or passively (through automated means) scan users’ email accounts for other types of criminal activity, like planning a robbery, for example.”  To which the obvious response is: “how would we know what Google does?”  And, further, “why wouldn’t Google do this?”

If child porn evidence is worth turning over, why not turn over evidence of murder, or child abuse, and so on? If there’s anything one knows with certainty as a criminal defense attorney, it’s that very few people would protest if Google went ahead and turned over all data of any potentially criminal activity to law enforcement.  The public races into the arms of authority with scarcely a second thought, and would only praise Google for such action, no matter the Orwellian overtones.

Google seems to believe that its approach to this issue is justified by the particularly “awful” and “disgusting” nature of the crime involved here, at least if the comments of Google Chief Legal Officer David Drummond are any indication.  But there is no obvious stopping point to that type of judgment; nobody finds crime, of any sort, to be particularly pleasant.

Therefore it’s time for any lawyers who still are occupying the naive cloud to seek more secure quarters.  Which is a tremendous pain, because I like my gmail, and I use it constantly.  But apparently the government can do exactly the same thing, thanks to Google.

Update: An interesting addendum to this whole thing is the contrast between the pro-surveillance stance of Google/gmail and the strongly anti-surveillance approach that the now-defunct encrypted email service Lavabit took.  Lavabit shut down last year rather than hand over its encryption keys to the government, whereas Google is turning people over to law enforcement without so much as a subpoena issuing.

Update Again: My resolution to this issue, at least for now, is to use make pgp encryption available using Mailvelope.  It’s far from a perfect solution, particularly because it requires a little bit of technical sophistication for folks to use it on their end, but at least it’s an option for sensitive communication.



On the “Homicide” of James Brady: Is it Really “Murder” When the Victim Lives for 33 Years After the Attack?

2014 August 8
by Alex Coolman

I’m intrigued by the report that a “homicide” has been declared in what, to most people’s eyes, would appear to be the death by natural causes of former White House Press Secretary James Brady.  John Hinckley Jr. shot Brady in 1981, and Brady was seriously injured in the attack.  But Brady then lived for more than three additional decades before dying at the age of 73.  Is that really a “homicide”?

In California, this question would seem to be covered by CALCRIM No. 240 on causation, which says that an outcome is “caused” by an act if the outcome is “the direct, natural, and probable consequence of the act and the outcome would not have happened without the act.”  That standard wouldn’t seem to be even arguably met here, but perhaps there are more details to Brady’s medical condition that would make the argument stronger than one might suppose.

California has seen some cases involving murder prosecutions brought long after a crime occurred.  In Strong v. Superior Court (2011) 198 Cal.App.4th 1076, the defendants were convicted of murder 29 years after they shot and paralyzed the victim. Those convictions were overturned, however, based on ex post facto application of an amendment to the law that used to say that the victim had to die within three years and a day of an attack to qualify as “murder.”  (That law, Penal Code section 194, now says that there is a “rebuttable presumption” that a killing was not criminal if the victim dies beyond three years and a day after the “stroke received or the cause of death administered.”  Would be pretty easy to overcome that presumption here, but there still seems to be a lingering question of causation.)

A “Brady Index” for Problematic Police

2014 July 28
by Alex Coolman

Not long after reading about the Registry of Prosecutorial Misconduct, I came across a piece in the San Diego paper noting that the local prosecutor maintains a “Brady Index” file on a handful of police officers who it considers to be untrustworthy or otherwise likely to cause problems on the witness stand.  The list is not public.  However, for the same reason that the Registry of Prosecutorial Misconduct is useful, a public “Brady Index” might not be a bad idea.

Edit: Thanks to Google, I note that the Cato Institute maintains the National Police Misconduct Reporting Project.  The project appears to have some of its information in database form, but only for certain years.  The project’s blog can be searched by city, so it could be a helpful source for defense lawyers.

The Habeas Argument of Hamid Hayat

2014 July 21
Comments Off
by Alex Coolman

What happens when an inexperienced attorney who has never handled a criminal trial ends up defending a man accused of participating in a terrorist training camp in Pakistan?

If you said “ineffective assistance of counsel” you’re right, or at least that what the lawyers for Hamid Hayat, led by Dennis Riordan, are arguing in a petition for habeas corpus filed in the district court for the Eastern District of California.  The interesting thing about the case, from my point of view, is the way the habeas argument brings to light all the things that an effective lawyer could have done that would not be apparent from the cold appellate record.  In this case, those things include asking for funding for investigators, travel expenses, and the other tools that would have shown that the government’s story about what Hayat did in Pakistan was very unlikely to be true.  In the absence of that work, and facing serious charges at a time — 2006 — when the mere mention of “terrorism” was an extremely potent prosecutorial tactic, Hayat was a sitting duck.

On the Unconstitutionality of the Death Penalty and the Claim that Inmates are to Blame for Structural Delay

2014 July 16
by Alex Coolman

Today’s federal court ruling that the death penalty is unconstitutional as administered in California points to the extreme delays in the system (averaging more than 25 years) and the arbitrary outcomes in terms of who, if anyone, ever actually gets executed.  (The order is here.)

The response from some quarters, not surprisingly, is that inmates on death row should not be complaining about delays after they themselves have caused those delays by pursuing various forms of post-conviction arguments challenging their conviction and/or sentence.  I think that is a criticism that might seem fair, at least at first blush.  So I just wanted to note what Judge Carney, the author of the order, had to say about it: that “much of the delay in California’s post-conviction review process is created by the State itself,” primarily the delays in appointing counsel, underfunding investigations, delays in evaluating claims, and the generally conclusory nature of the analysis that eventually does get generated by the California Supreme Court in disposing of these cases.

Death penalty cases do not proceed all that quickly in any state, but California is particularly slow.  Reasonable minds may differ on the question of whether that delay renders California’s system unconstitutional.  But it seems clear that the underlying issue is indeed a structural one, and can’t just be chalked up to (and then disregarded because of) the theory that California inmates are particularly enthusiastic about delay.

Related Posts:
Author of Briggs Initiative: CA Death Penalty “Simply Does Not Work”

Saying Hello to the Registry of Prosecutorial Misconduct

2014 July 16
by Alex Coolman

As the New York Times has noted, prosecutorial misconduct is “rampant” in the United States, in part because it is virtually never punished and there is consequently no incentive for prosecutors to avoid it as they climb the career ladder.  But a new project may change that.

The Registry of Prosecutorial Misconduct, a project of the Center for Prosecutor Integrity, is exactly what it sounds like.  And it names names.  So now, even if a reviewing court decides that a given instance of misconduct was harmless, there nevertheless will be a Google-able record of the fact that the misconduct occurred. Which might make a difference downstream, when prosecutors want to get on the bench or make other career changes.

I just hope the CPI has plenty of insurance, because some folks are bound to be outraged by the registry, in spite of the fact that it draws from public information about public officials.

Hat tip: Wrongful Convictions Blog.

Related Posts:

The Context of Judge Kozinski’s Dissent in U.S. v. Olsen
Report: Most Prosecutorial Misconduct Goes Unpunished
People v. Uribe: Prosecutor’s Conduct Was “Grossly Shocking and Outrageous” — But Not Shocking or Outrageous Enough to Warrant Dismissal of the Charges
California Supreme Court Depublishes Appellate Decision That Found “Pervasive Pattern” of Prosecutorial Misconduct

Amado v. Gonzalez: 9th Circuit on Deference in Federal Habeas Review After Harrington

2014 July 15
by Alex Coolman

A split panel of the Ninth Circuit Court of Appeals on Friday published an opinion, Amado v. Gonzalez (11-56420) that wades into the thorny issue of just how much deference is owed to state court analysis in federal habeas review.  Two members of the panel acknowledge that considerable deference is owed to the state analysis, but nevertheless conclude that there are certain situations — such as in this case — where the state court screws things up sufficiently that the bar to relief under the AEDPA does not apply.  The dissent, by contrast, argues that the majority “clearly flouts Supreme Court precedent” by not giving sufficient deference to the state court.

An interesting aspect of the dissent is the following assertion:

I am unable to say that no fairminded jurist could disagree that the state court’s decision was unreasonable, and neither should the majority. . . . I agree with the presumably fairminded district court that the state court did not unreasonably apply Brady.

The implicit idea here (if I am correctly navigating through the multiple layers of negation in that first sentence) is that since the district court didn’t buy the petitioner’s argument then, by definition, there is at least one reasonable judge who agrees with the way the state court handled the claim.  Which is true enough. And yet it doesn’t seem like that fact can or should really mean all that much to an appellate court evaluating habeas petitions since every single argument that they ever hear, whether it involves a bunch of frivolous nonsense or an obvious miscarriage of justice, will be in the same procedural posture.

At any rate, Amado is one of a handful of cases that have come out over the last few years where some members of the Ninth Circuit seem to be trying to sort out exactly how much deference is enough in the post-Harrington v. Richter world.

Related Posts:

Doody v. Ryan: Is Federal Habeas Review Just “a Big, Fat Rubber Stamp”? Is Deference a “Blindfold”?
The Post-Harrington Muddle: “Deference” to Analyses That State Courts Did Not Actually Make





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