Begging The Question

Thursday, May 27, 2004

Can a Party In a Case Excuse the Court From Following Precedent?
Howard at How Appealing notes the Eighth Circuit decision in United States v. Lippman (10-page .pdf) dealing with a Second Amendment challenge to a conviction for possession of a firearm while subject to a domestic violence restraining order. The court adhered to its precedent that the Second Amendment guarantees only a collective right, and since the defendant couldn't prove that his firearm had something to do with the militia, he lost.

Howard also notes that the concurring judge, Judge Colloton, wrote "It is an interesting question whether a prior panel decision binds a subsequent panel if both parties believe that the precedent is incorrect and decline to invoke it." The case Judge Colloton cites here is United States v. Woods, 364 F.3d 1000 (8th Cir. 2004). There, the issue was whether a defendant qualified for a departure at sentencing. Under established circuit precedent (United States v. Peterson, 276 F.3d 432 (8th Cir. 2002)), he did not, because his crime was a "crime of violence," and the departure was only available to those who committed "non-violent offenses." A circuit split arose over whether those two terms in the Guidelines are mutually exclusive. For any non-lawyers reading this, yes, the argument was that a crime of violence could be non-violent, but to cut short a long discussion, the terms weren't defined as exact opposites.

Anyway, to resolve the circuit split, the Sentencing Commission revised the guideline in question by removing the term "crime of violence." In Woods's case, the district court (and the Government at sentencing) relied on Peterson to say Woods didn't qualify for the departure. On appeal, the Government abandoned its Peterson argument, recognizing that its basic underpinning had since been removed by the Sentencing Commission, and instead argued on other grounds that Woods didn't deserve a departure. In the end, the court sent the matter back to the district court for resentencing without reliance on Peterson.

I don't think this case presents as much of a "conundrum" for Judge Colloton. Certainly there have been no changes to the Second Amendment comparable to the changes to the Guideline after Peterson. (I don't think a letter from John Ashcroft outlining the Government's position on the Second Amendment has quite the same force of law.) The only similarity is that the Government didn't rely on the binding circuit precedent as its only grounds in support of Lippman's conviction. But in the system of intracircuit precedent we have, that can't be enough to allow a panel to disregard binding authority. The earlier Eighth Circuit Second Amendment case binds the Government whether it likes it or not. If it thinks the court's position is so outrageously restrictive, it can always exercise its prosecutorial discretion and not charge folks with gun crimes if it think the law interferes too much with their Second Amendment rights. And sure, the Government is free to argue other reasons for affirming convictions and is free to argue that the collective rights cases are wrongly decided. But just because the Government doesn't deploy the strongest weapon in its arsenal, it can't wish it away in a case like this one. I think Judge Colloton finds a "conundrum" where none exists.



Wednesday, May 26, 2004

Mediocrity Masquerading as Mastery
Sorry for the light posting lately. I'm in my usual end-of-the-month crunch, and I've been trying to avoid making waves with my secretary. Our office has about thirty attorneys, and we are all assigned to one of five secretaries. The secretaries do the edits to our memos once they are in the review stage, make copies of everything for the panel, and take care of other administrivia. All of this can be done on paper and is a well-established system; I'm fully capable of going weeks without needing to talk to my secretary about a job duty. Although I know that my procrastination means that she has to sometimes turn things around in short order, I don't think I've ever asked her to do anything unreasonable or outside the scope of her normal job duties.

Anyway, on Monday, I finished a longish memo I had been struggling with as I pursued an advanced degree in hair-splitting. (The short of that one is that the prisoner has what looks like a rock-solid winner of an argument -- about as perfect an argument as a habeas case will present -- and should probably have 100 months or so shaved off his sentence. The catch: the old procedural default bugaboo. He didn't raise the claim when he should have, and even though the sentence thing establishes prejudice, he can't show "cause" for failing to press this claim earlier. If you don't understand habeas rules, don't worry; it's extraneous to this story. Except that you might think me hard-hearted for not minding that I have to tell a guy, essentially, "You're right, but you still lose.") So, I dropped that case off with my secretary, and then stayed late to (start and) finish my last three May cases. It's unusual for me to be able to do three cases in a day, but for various reasons, it happened Monday. I think my secretary gets here around 7:00; me, closer to 9:30. So, given how early she leaves, probably all four of these cases hit her desk after her day was done.

So, first thing Tuesday, I get an email from her asking if "in the future" I wouldn't hold my cases due that month until I was done with all of them. I know tone is terribly hard to get in an email, but it sounded pretty snippy to me. I wrote back informing her that I finished all those cases Monday, and wouldn't dream of keeping a case any longer than necessary. Frankly, I can't even think why she would think I would do that. It makes absolutely no sense, and it's not something I've ever come close to doing. Since those two fairly terse emails, we haven't had much to say to each other. But note that, without anyone appearing to be in any kind of rush, all four of these cases have been reviewed and are out the door by now.

This isn't the first tense moment we've had. Any time I make a mistake, I get an "in the future" or "from now on" or similar message, as if I'm trying to tear down her entire system instead of simply accidentally putting something on the wrong shelf. And then I get the occasional passive-agressive line like, "Well, (sigh), I guess I could do it differently for you than I do for everybody else..." Rrrggh. I'm not asking you to; I just put it on the wrong shelf. But the one that cheeses me the most is how she constantly bemoans every little task I have for her, as if it was somehow not her job to do it. I'm sure it takes away from reading romance novels while listening to adult-contemporary radio (no kidding: this morning I head "Afternoon Delight") to make copies of that fifty-page district court opinion, but it's her job!

And it's not like I'm some kind of taskmaster. In fact, I give her less work than I could because of all this. For example, our review process includes a thorough review by my supervisor and a once-over from the boss. The secretary inputs all the edits they make, unless a substantial re-working is required. But in the run-of-the-mill case, it's basic proofreading stuff. Anyway, we have a form that travels with the memo through these stages so we can track its progress. If, say, after the secretary gives the memo back to me (once she has generated the panel and put the opinion text into our template), I notice an error, or if I see one after the supervisor's edits are made, I could run it back through the secretary so I can pass a clean copy along to the next reviewer. However, that's dumb and inefficient and wasteful. The supervisor can make her changes right alongside my edit of a "this" to a "thus" or something. But our progress form has spaces for us to send it through the secretary in between rounds of review. So I could, if I wanted to be a jerk about it, make the secretary clean up the memo every time I catch something like that (and the fact that I catch them pretty often proves that my secretary isn't doing any proofreading). She couldn't say it's not her job to do it; it is precisely her job to do it. But I don't want to make her do unnecessary work, and I don't want to deal with her grief over it.

I should say, finally, that the work my secretary does is fine. Perfectly adequate. But most of her work is the kind of stuff you can't do "better," you can just do it or fail to do it. Either you make the required copies, or you miss one, but you can't do it "better" if I stand there going "Good job -- you sure copied the hell out of that thing!" So, after I was here six months, I got a form from the supervisor of the secretarial staff as part of a periodic evaluation she does. I was asked to rate my secretary's performance in a variety of areas, some of which I have no knowledge (for example, it's her supervisor's job to keep track of her time, so I can't really say if my secretary is accurate about taking leave). Anyway, I rated my secretary's work as "satisfactory," which was basically a four out of five. The secretary supervisor called me and asked about it, and I got the impression that she perceived this as a negative review. She asked me if I could suggest anything for my secretary to improve on, and while I should have said "attitude," I said, "Nope, it was all completely satisfactory to me." I wasn't going to rate someone as "excellent" just for meeting the minimum job requirements, and carping about it all the while. There may not be a way for a secretary here to do something above and beyond those requirements. Like I said, it's kind of a pass/fail system. But apparently the secretary supervisor didn't think so, because she acted like no one had ever been called "satisfactory" before. When the next evaluation rolled around, six months later, I got the message. And my secretary got a long line of fives all the way down the page.



Monday, May 24, 2004

Existentialism and Ennui
1. My work here at BTQ is the first result on Google when you search for "Milbarge." My only appearances in the top 100 when searching for my real name are (a) a list of the graduates of my law school class, and (b) a couple of comments I posted on other blogs before we started this one. A very high result when searching for my real name is a registered sex offender who not lives in my home state, not far away, and whose middle and last names are the same as my first and last names. Although that man is black and fifteen years older than me, it's still disconcerting to see.

2. You know it's time to either update your wardrobe or do some laundry when a colleague sees what you're wearing and wonders if you're color-blind.

3. At lunch today I read this very interesting article in The New Atlantis about online dating. I'm not sure I agree with it, but it's an interesting take. I will probably respond in my next love-life update. The reason you haven't seen an update lately is that nothing has happened.





Pick Your Own Punny Title: Drivin' 'n' Cryin' or "Outta the car, longhair!"
Read Justice Scalia's concurrence in Thornton v. United States, issued today (I've been having some trouble reading the pdf, so good luck). Update: here is an html version of the opinion, and a direct link to Scalia's concurrence.

This is what people talk about when they discuss Scalia's brilliance, not dissents designed primarily to ridicule Justice O'Connor or his splenic venting in Lawrence. I don't always agree with Scalia's Fourth Amendment jurisprudence, but it is always thought-provoking. Here, the issue is the extension of the bright-line rule (from Belton) that police can always search the passenger area of a car when an occupant is arrested. Thornton had exited the vehicle -- and thus could not have grabbed a weapon or anything else from the car -- by the time the officer initiated contact. For the one-sentence summary of Scalia's take, Justice O'Connor's concurrence says Scalia argues, "[L]ower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel v. California." Scalia's argument is forceful and well-written, but it will be more persuasive because it is measured in tone.

The Court had granted cert twice on the question presented here without reaching the issue, and I had always assumed that it was simply to extend Belton without much fuss. But now it looks like we might be in for a serious Fourth Amendment shake-up, which would be long overdue in the automobile cases. Five Justices (Scalia, Ginsburg, O'Connor, Stevens, and Souter, the latter two in a dissent) noted that this search didn't have to happen just because the police wanted to do it. Scalia and Ginsburg would have allowed it as a search for evidence of the crime of arrest. O'Connor, oddly, joins the majority opinion (per Rehnquist) except for a footnote noting that, since the parties didn't address it, it would be premature to take Scalia's position...and then says she won't take Scalia's position because the parties didn't address it.

Would these five vote to overrule Belton if they got the chance? No. Scalia says he would "limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." That's pretty broad, because police will always "reasonably" believe that there might be drugs in the car during a drug arrest, or a single stray bullet in a gun arrest, or an empty beer can in a DUI arrest, or whatever. After that, everything is in plain view. The only cases in which it would seem to prevent a search would be something like Atwater, where there is no need to search the car for evidence of a seat belt violation. (And there's always the good old inventory search.) I'll have to do a lot more thinking about these cases and the consequences of Scalia's approach. But I note that at the end of the L^3 "Supreme Court Roundup" on the pledge case, Scott promised a discussion of Thornton and added "zzzzzzzz." I'll admit that I thought the same thing, but if this case turns out to be the beginning of a movement to let us keep our rights when we get into a car, it will be the good kind of sleeper case.





Send Lawyers, Guns, and Money
I was thinking about the recent Fifth Circuit decison in Medellin v. Dretke holding that a death row inmate could not state a claim for relief based on Texas's violations of the consular rights in the Vienna Convention. (see pages 11-13 of the 15-page pdf) The court held that the claim was procedurally defaulted, but also that the Convention creates no individually enforceable right. Note that the Supreme Court has not ruled on the question of individual rights yet (not decided in Breard v. Greene, 523 U.S. 371 (1998), which held that treaty rights, like most constitutional rights, can be defaulted), but the Fifth Circuit rule is that treaties are contracts between nations, and violations of them are remedied through foreign policy, not the courts, see U.S. v. Jiminez-Nava, 243 F.3d 192 (5th Cir. 2001). Note also that the Fifth Circuit was not swayed by a contrary ruling from the International Court of Justice (61-page pdf).

Anyway, I was just thinking that, even though I'm not going to rape and murder (with a shoelace) two teenage girls in a foreign country, like Medellin did, if I were arrested in a foreign country for so much as a traffic ticket, I would be demanding to speak with someone from the American consulate from the get-go. Now, one could say that Medellin's biggest problem (besides being a rapist and murderer) is that he didn't demand a visit from a consular official when he was arrested. Then again, even if he had, there's no guarantee that the cops would have honored his request, because there's certainly no incentive on the State in these cases. (A federal prosecution might be different, but I doubt it.)

I'm not going to pull a George Bush/imperialism/prison abuse double standard argument on you, if you think that's where I'm going. These issues have been present ever since the United States ratified the Convention in 1969. But it's a nice example of how we can expect different and better treatment in foreign countries than we provide some foreign nationals here, because our State Department has the leverage to swing the big stick if another country doesn't let me call the consulate.

I don't really have a further point; it's just interesting to me. All the links above are via How Appealing. And for those of you following this discussion of the articles v. decisions count, that How Appealing post linked to two actual court decisions and only one newspaper article. Further thoughts on that matter later.





An Update on the Basketball Player Injured in a Stampede
A few months ago, I mentioned a high school baketball player injured when fans rushed the court after a game. The kid, Joe Kay, suffered a stroke when the throng crushed him and choked the blood flow to his brain.

Well, via the Duke Basketball Report, the premier sports fan site on the internet, I discover that Mr. Kay is recovering well. Doctors told him he might never speak or walk again, but he recently stood and gave the valedictory speech at his high school graduation. Best of luck to him as he continues his rehabilitation.



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