This is a copy of a blog post from the University of North Carolina Law Library. This timely information about Pacer should be widely distributed. Please follow the link at the end of the paragraph below:
“The University of North Carolina Law Library has published a blog post to help people seeking information formerly available on PACER, but now removed, to understand the process for obtaining removed information. Thanks to the hard work of Law Library Graduate Assistant, Kate Dickson, and Reference Librarian, Jonathan Rountree, the blog post details procedures for requesting removed information we obtained from the various clerks of court for the courts affected by the removal as well as information about material still available on commercial databases like Lexis, Westlaw, and Bloomberg. The blog post is available at http://blogs.law.unc.edu/library/2014/09/04/what-happened-to-the-information-removed-from-pacer/. “
Yesterday on September 28, a week to the day after Georgia executed Troy Davis, the United States Supreme Court denied an application to stay Manuel Valle’s death sentence. Later the same day, Florida executed Valle after he had spent 33 years on death row. In his dissent from the denial of the stay, Justice Breyer argued that Valle’s execution would be excessively cruel (“I have little doubt about the cruelty of so long a period of incarceration under sentence of death”) and lacks utilitarian purpose (“It is difficult to imagine how an execution following so long a period of incarceration could add significantly to that punishment’s deterrent value”). He also critiqued a society that would demand his execution on retributivist grounds:
I would focus upon the ‘moral sensibility’ of a community that finds in the death sentence an appropriate public reaction to a terrible crime. And, I would ask how often that community’s sense of retribution would forcefully insist upon a death that comes only several decades after the crime was committed.
Justice Breyer is not the only jurist on the High Court to voice his opposition to capital punishment recently. On September 15, Justice Ginsburg spoke in San Francisco at University of California Hastings College of the Law. In her talk, Justice Ginsburg stated “I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand, but that’s not likely to be an opportunity for me.” She was alluding to Furman v. Georgia (1972) 408 U.S. 238, the case that temporarily halted capital punishment in America.
Despite criticism by these justices, Field Poll results released today demonstrate that a solid majority of Californian voters favor capital punishment. The poll shows that 68% of Californians are in favor of keeping the death penalty. These are, in fact, higher than the national average. According to Gallup polls, 64% of Americans are in favor of the death penalty. While support for the death penalty is gradually waning, it appears that neither Californians nor Americans in general are ready to end the practice.
California Penal Code section 15 permits death as a punishment for a crime. Several resources at the Alameda County Law Library discuss California’s death penalty law such as chapter 54 of CEB’s California Criminal Law: Procedure and Practice and volume 3, section XVI of Witkin’s California Criminal Law, 3d. In addition, the Library has numerous titles that discuss the capital punishment policy. These resources are shelved on the second floor in the KF 9227 call number area.
Oh, that Scalia. The originalist has once again coined an original term. You may recall that this past January, while at a speaking engagement at the University of California, Hastings College of the Law, Justice Scalia quipped that Chicago deep dish pizza is not truly pizza, but “tomato pie or something.” This time, however, the erudite justice offered his neologism in a more formal setting, in his dissent to yesterday’s ruling in Montana v. Wyoming (2011) __ U.S. __, __. Scalia refers to the people of Wyoming as “Wyomans.” In a footnote, he explains: “The dictionary-approved term is ‘Wyomingite,’ which is also the name of a type of lava, see Webster’s New International Dictionary 2961 (2d ed. 1957). I believe the people of Wyoming deserve better.”
Unlike Scalia, the rest of us are best advised not to offer novel words in court. In fact, determining the meaning of existing words presents a challenge in itself. It’s not uncommon for patrons at the Alameda County Law Library to scour the codes for a statutory definition or read case after case to find a judicial interpretation. In addition to the primary authorities, two useful tools for finding the legal meaning of a word are Black’s Law Dictionary and Words and Phrases. If the secondary sources fail also, it may simply be that no legal definition is available. In such cases, it’s often acceptable to look to non-legal resources for guidance.
The California Courts sometimes refer to standard dictionaries for help with statutory construction: “When construing the meaning of words in a statute, courts should first look to the plain dictionary meaning of the word unless it has a specific legal definition.” Ceja v. J.R. Wood, Inc. (1987) 196 Cal.App.3d 1372, 1375. Similarly, the Supreme Court of the United States has also found plain meanings of words acceptable where legal definitions are unavailable: “In the absence of a statutory definition, we construe a statutory term in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U.S. 471, 476 (1994). In fact, in some instances, a plain language meaning may even be preferable to a legal definition. The California Legislature enacted such a law that governs the interpretation of contractual terms:
The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed (Code Civ. Proc. § 1644).
So if your search for the legal definition for a statutory or contractual term fails, it could be because the drafters intended no legal meaning.
If you are searching for a legal definition, the Alameda County Law Library has Black’s Law Dictionary (9th ed. 2009). Words and Phrases will be found at the end of Federal Practice Digest or the California Digest. And if all else fails, the library has Webster’s Third New International Dictionary, the more current edition of the dictionary cited by Justice Scalia in Montana v. Wyoming.
Pro pers and young attorneys are often surprised to learn that there are no California Judicial Council forms available to request a continuance for a trial or hearing. The reasoning behind this stems in part from a statutory admonishment to discourage continuances in the Trial Court Delay Reduction Act (Gov. Code, § 68600, et seq.). Pursuant to Government Code section 68607, subdivision (g), judges are required to “[a]dopt and utilize a firm, consistent policy against continuances, to the maximum extent possible and reasonable, in all stages of the litigation.” Accordingly, a party seeking a continuance will have to draft a motion on pleading paper and comply with the rules promulgated by the California Supreme Court and Judicial Council under California Rules of Court, rule 3.1332.
California Rules of Court, rule 3.1332(d)(9) lists among the factors the courts consider in granting such a motion is if all parties have stipulated to the continuance. Given the adversarial nature of judicial proceedings and acrimony that frequently arises, there might be a temptation to spite one’s opponent by refusing to consent to his or her request for a continuance. Consider the following example from the United States District Court for the District of Kansas. Here attorney for the defense, Bryan Erman, requested a continuance because he was expecting his first child shortly before the commencement of the trial. Despite the plaintiff’s counsel’s “lengthy and spirited” opposition to the motion, the judge granted the continuance. In doing so, Judge Eric Melgren congratulated the expectant father and offered this admonishment to the attorneys:
Certainly this judge is convinced of the importance of federal court, but he has always tried not to confuse what he does with who he is, nor to distort the priorities of his day job with his life’s role. Counsel are encouraged to order their priorities similarly.
Another federal judge, William S. Duffey, Jr., suggests that being civil toward one’s opponent can be rewarding in itself: “The incivility and hostility of litigation today not only makes this work more unpleasant, less satisfying, and less fulfilling, but it also serves as a barrier to what we are charged to do—to represent clients in the resolution of disputes by seeking just results.” (On Encouraging Civility in A Life in the Law: Advice for young Lawyers (Duffey & Schneider, edits 2009) p. 59) So before you go to the mattresses over your opponent’s request for a continuance, you might want to consider whether it’s really worth the effort—and make sure that you or your client will not need to request any favors from the other side.
For Alameda County Law Library patrons who are seeking continuances, the library has a number of practice guides that may be useful for pro pers and attorneys. For example, chapter 42 of CEB’s California Civil Procedure Before Trial, 4th ed., discusses the requirements and procedures and includes a sample notice and declaration. And for newer attorneys, the library also has a display of titles offering practical advice for those beginning their careers.
Texas Attorney Jerry Guerinot has made quite a name for himself for his work in capital trials. One blog dubbed him “America’s most lethal attorney.” Mr. Guerinot’s work has even made him known internationally. In 2007, David Rose of the UK newspaper, The Observer, reported that of the 39 capital trials he has tried, 20 of the defendants were sent to death row. These statistics would suggest a lethally efficient prosecutor, befitting of membership in the macabre “Silver Needle Society.” Such would indeed be the case—if Mr. Guerinot were a prosecutor. Mr. Guerinot is a defense attorney.
In his concurrence to Furman v. Georgia (1972) 408 U.S. 238, 309, the decision that briefly ended capital punishment in the United States, Justice Stewart wrote that “death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” If Justice Stewart’s assessment continues to be descriptive of capital punishment in the post-Furman era, then being represented by Mr. Guerinot would be the equivalent of standing under a tree in an electrical storm, with a lightning rod in your hand—and aluminum foil wrapped around your body.
Mr. Guerinot has once again been making headlines. This time it is because the U.S. Supreme Court denied certiorari to Linda Carty, a British citizen on death row for her alleged involvement in a plot to kidnap and murder Joana Rodriguez and to claim Rodriguez’s son as her own. Mr. Guerinot represented Ms. Carty at her 2007 Texas trial. According to a recent New York Times article, during his representation, Mr. Guerinot spoke with Carty for a mere 15 minutes prior to the trial, failed to interview key witnesses, did not advise Carty’s common law husband of his right to claim a marital privilege during his testimony for the prosecution, and did not contact the British Consulate. Ms. Carty’s cause has been taken up by the likes of filmmaker Steve Humphries and socialite-cum-activist Bianca Jagger. Reprieve, an international organization dedicated to ending capital punishment, has even begun an online petition to save Ms. Carty.
But as easy as it is to accuse Mr. Guerinot of incompetence or to make jokes at his expense, at the very least we should appreciate that there are people to represent the condemned. Because of the heavy emotional toll on those who represent defendants in capital cases, few are willing to do so. Whether or not Mr. Guerinot’s representation was imperfect, we should be thankful for his work—and equally thankful that he does not practice in California.
The police raid of Gizmodo editor Jason Chen’s Fremont home after he had reported on the prototype iPhone has given legal analysts much to discuss. From a criminal law point of view, there is the issue of whether Chen had committed a crime. From a Fourth Amendment standpoint, there is the issue of whether the raid and search warrant were legal. And with regard to tort law, there is the issue of whether the San Mateo Police Department is liable for misconduct. Max Fisher of the Atlantic Wire provides an excellent overview of many of the legal issues involved in the case. One of the more interesting issues concerns whether Gizmodo should have been protected by the journalist shield law. Orin Kerr, a blogger for the Volokh Conspiracy, provided a thoughtful discussion on whether the shield law should have applied. But because of the attention that this case has commanded, another situation implicating the journalist shield law might easily be overlooked.
Following an April 10 riot near Virginia’s James Madison University where more than a dozen police officers were injured, police and prosecutors appeared at the student newspaper’s offices with a search warrant and seized more than 900 photographs of the event. What makes this case interesting is that the fact situation mirrors that of a 1971 Bay Area case that made it all the way to the U.S. Supreme Court in Zurcher v. Stanford Daily (1978) 436 U.S. 547. In Zurcher, officers from the Palo Alto police Department searched the student run newspaper pursuant to a warrant, looking for photographic evidence of an earlier riot where several police officers had been injured. The question for the High Court was whether a search warrant could be executed against a party that was not involved in the unlawful acts. The Court answered to the affirmative in a five-three decision.
Perhaps the only significant difference between the situations at James Madison University this year and Stanford University in 1971 is not in the facts, but in the law itself. Following the unpopular Supreme Court decision, Congress passed the Privacy Protection Act of 1980 which shields journalists and newsrooms from government searches. In light of this law, it would be interesting to see how our current Supreme Court would rule on James Madison University case today. In the unlikely event that the case were to make it all the way to the Supreme Court, it would be before a completely different Court: the only member of the Zurcher Court still sitting today is John Paul Stevens who is set to retire at the end of the summer term. Stevens wrote a dissent in the 1978 decision.
You can now download the Merit and Amicus Briefs plus “Questions Presented” and “Argument Transcript” for cases docketed for the October 2009 term. Unscheduled cases include whatever has been filed if anything. http://www.abanet.org/publiced/preview/briefs/