03 August 2004

The 9th Circuit in the 4th

I get out of court about 2:30 and I've not yet eaten. On my way back to the office I stop at a local bar and get a coke and some fish & oysters. After I tell somebody who recognized me as a lawyer that I don't do bankruptcy and recommend another lawyer, I finally sat down to eat.

While I'm eating I hear the semi-drunk guys behind me at the bar start to discuss the 9th Circuit. First, I find out that Scott Peterson is going to be found not guilty because the trial's in the 9th Circuit. Then I learn that the reason O.J. was found not guilty was because of the 9th Circuit. In fact "you can't get convicted of murder in the 9th Circuit unless they want you to." Then, before they returned to the more important discussion of the comparative length of NASCAR pit rows, I finally learned that you can't convict almost anybody out there because of the 9th Circuit.

Now, wait one sec. Lest ye think this is merely a plebeian attitude I point you to part of the Blakely argument Monday in the 4th Circuit:
When discussing possible remedies, McLoughlin suggested that the Fourth Circuit could follow the Ninth Circuit's decision in Ameline. A mild chuckle ran through the crowd at this notion.
O.K. All that said, I have one request. Those of you who are out there writing practicums for those of us that don't have time to do it for ourselves (CLE's, legal magazines, law review articles, etc.) please, please, PUH-leez remember that if I quote a case from the 9th Circuit the reaction above will be played out in court. I know this is wrong. I know it is biased. I know it is dumb. I also know it is true. I need cites from other places - preferably southern or mid-western. Please. In addition to the numerous perfect cases from the west coast, give me a semi-useful cite from the 5th Circuit, or Alabama, or Ohio, or . . .



Anonymous said...

Since the guy who wrote the "torture is legal memo" is on the 9th Circuit do you think that the 9th circuit is no longer good law? (Of course, I think that its approach to Blakely is now in the majority, and the 4th is in the minority.)

Anonymous said...

Even the most "liberal" of appellate courts rubber stamp the overwhelming majority of criminal convictions that come before them. Anyone who says otherwise has no idea what he's talking about. I'm quite sure that criminal lawyers who practice before the 9th Circuit are constantly fuming over the court's cowardice and intellectual dishonesty in rejecting their clients' meritorious appeals.

Ken Lammers said...

Yes, you are absolutely correct. I'm sure of it as well. I also understand that California's 3 strikes law is supposed to be one of the most draconian in the country (to pick one jurisdiction as an example).

However, this is not about rational thought; it's about bias. And the biases around here definitely do not favor anything from the "Left Coast."

123 said...

Well, I won’t say that any reviewing court “rubberstamps” anything. Most of the time decisions made by lower courts are correct statements of the law, or factual decisions are logically consistent possibilities that the record allows. (A better question might be whether the 9th, or any circuit, as a statistical matter reversed district courts that grant the rare habeas. I don’t know.)

What would be disturbing is a court that “rubberstamps” the government’s assertions as to what the “law” and the “constitution” are. The 4th circuit, it seems, has done this more than any other court in recent memory, and it appears to have done so yet again. Indeed, as we saw in Hamdi, was the 4th was unable to even undertake the basis analysis necessary to even independently come to the same conclusion that the government did.

Now granted lots of people love to titter when they are “9th circuit.” Heck, every time someone at a recent ACS meeting said “9th circuit” every girl in the room would giggle. It was quite cute, but in no way was indicative of reality.

Ken has presented has what appears to be a real problem with the bar. If lawyers are judging the merit of an opinion by what appears in the caption then they are not good lawyers. They are not even lawyers. There is no place for this attitude in my country.

Anyway, Bush appointed Mr. TortureMemo to the Ninth Circuit. To my knowledge, nobody on the Fourth Circuit has written such a memo. Therefore, the 4th is a bunch of leftist hippies and should take a clue from the right-thinking 9th.

Tom Lincoln said...

This matter regarding the 9th Circuit seems to be very widespread, whether merited or not. Relying on a case from the 9th usually means it is the only case on point available!