Posted 3:00 PM by Howard Bashman

From the Harvard Law School Parody 2005, "Finding Nemo Contributorily Negligent," at which the following song parody was performed to the tune of "I will survive":

SONG: "I'M LARRY TRIBE"

Written by Jamie Auslander, Jeremy Blachman, Taylor Dasher, Andi Friedman, Rebecca Ingber, and Justin Shanes.

PROF. LARRY TRIBE
At first I was afraid
I was petrified
I had nothing new to write
I thought my muse had died
But then I opened up a book
And copied down the words I saw
My fatal flaw
And who would know I broke the law?

For nineteen years
I wasn't caught
I made a killing on my books
Assigned in every class I taught
It would have never been revealed
The Weekly Standard wouldn't see
I would still be at the top,
If not for stupid Ogletree.

ALL
He studied math, he studied law
And he's the most prolific scholar
That the whole world ever saw
He's drafted foreign constitutions
He's the president of Spain
In the book they say he copied
He thanked Clinton aide Ron Klain

Because he's Tribe
He's Larry Tribe
He's not just Harvard's best professor
He's the smartest man alive
No matter what the rumors say
He is the Marshall of today
Because he's Tribe
He's Larry Tribe! (hey hey)

PROF. LARRY TRIBE
When the students choose their bundles they all beg for me
For who else here mixes Con Law
With pornography
And oh I spent so many years
Defending sodomy and choice
Penumbral rights
I took on all the liberal fights

Bush versus Gore,
That one I blew
My dreams of Justice Tribe are gone
Professor Tribe will have to do
It's been my dream since I could sit
To wear the robe that's black and long
But those old ladies in Miami
Got the whole election wrong

ALL
He's ten feet tall
He learned to fly
And though he'll never be a justice
He's never gonna die
He is the Sultan of Sudan
He is the closer for the Sox
And the legal fees he charges
Make him richer than Fort Knox

He's Jesus Christ
He's Larry Tribe
Not just Harvard's best professor
But the smartest man alive
He's got forty-one degrees
He speaks fluent Japanese
He's Larry Tribe
He's Larry Tribe
Yeah, yeah.

Posted 8:55 PM by Howard Bashman

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March 04, 2005

COUPLE WHO FEAR DAUGHTER'S MUTILATION WILL GET REHEARING

By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - The 9th U.S. Circuit Court of Appeals announced Thursday that an 11-judge panel will reconsider last August's ruling that denied an Ethiopian couple's application for asylum because they couldn't prove their young daughter would be subjected to female genital mutilation if they are forced to return to their homeland.

In August, a three-judge panel ruled by a 2-1 vote that Almaz Sayoum Abebe and Sisay Mengistu failed to show they had been subjected to past persecution or that had a reasonable fear of future persecution.

Evidence shows that Ethiopian girls are not subjected to the genital mutilation unless their parents approve, Circuit Judge Johnnie B. Rawlinson wrote for the panel.

The husband entered the U.S. in 1990, the wife arrived three years later and they both applied for asylum in 1993.

The husband argued that he feared imprisonment if he returned to Ethiopia because he had been active in a political party opposed to the Communist regime that has reigned since 1991.

The wife testified that she would not allow her daughter, born in the U.S., to be mutilated, as she had been. She said she expected to be ostracized from her family for taking a stand against mutilation.

An immigration judge rejected the couple's asylum applications after concluding their fears were overblown.

Rawlinson said the judge's conclusions were reasonable and entitled to deference.

In dissent, Judge Warren Ferguson faulted the immigration judge for failing to consider the pervasive nature of female genital mutilation in Ethiopia. He said asylum should be granted based on a well-founded fear, even if the couple couldn't prove the child was likely to be forced to undergo the procedure.

The case is Abebe v. Gonzalez, 02-72390.

A majority of the appellate panel's 24 active judges voted Thursday to hold an en banc hearing, but the court does not disclose vote tallies.

Posted 8:50 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
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© 2005 The Daily Journal Corporation.
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Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

March 04, 2005

LITIGATOR'S BANISHMENT WAS GOING TOO FAR, CIRCUIT RULES
Litigator's Banishment Overturned

By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - A federal appeals panel Thursday saved a nationally prominent civil defense specialist from becoming the first lawyer permanently barred from making pro hace vice appearances in a federal district court.

In the case of an Ohio lawyer representing Ford Motor Co. against the victim of a rollover accident, the 9th U.S. Circuit Court of Appeals approved a Montana federal judge's imposition of stiff sanctions for disobeying court orders not to tell the jury that the driver failed to buckle his seatbelt and was drinking before the accident.

But the three-member panel concluded Judge Donald Molloy went too far when he ordered Cleveland attorney Lawrence Sutter never to come back to federal court in Missoula, Mont.

Writing for the panel, Circuit Judge Richard Paez found that Sutter was denied due process because Molloy didn't even put him on notice that the court was considering a lifetime ban.

Thursday's ruling produced a corollary holding that may benefit attorneys sanctioned by federal trial judges: The fact that the parties settled the underlying litigation does not affect either Ford's or Sutter's rights to contest sanctions ordered by Molloy.

The controversy over Sutter's conduct arose during his opening argument in the rollover trial.

First, he told the jury that plaintiff Steven Lasar spent the afternoon and early evening "playing pool, visiting some local establishments" before "he made the decision to drive himself home." Later, Sutter said that inside the vehicle, "Lasar was what we call a free-floating body."

Molloy found that these statements expressly violated his pretrial orders not to discuss whether Lasar had been drinking or wearing a seatbelt.

After declaring a mistrial, Molloy ordered Ford and Sutter to pay $67,000 to reimburse the court for its expenses, and he found Sutter in contempt for the comment about "local establishments." Finally, Molloy revoked Sutter's pro hace vice status after concluding that Sutter was dishonest during the contempt proceedings and failed to disclose that he'd once been held in contempt in Ohio.

A Boston attorney representing Lasar, Michael Weisman, said he was pleased with the 9th Circuit's ruling.

He said he didn't really expect the panel to uphold the permanent pro hace vice ban, but that Molloy properly recognized that "Mr. Lasar lost in his day in court because of overzealous advocacy."

"I think Judge Molloy carefully and thoughtfully reviewed Mr. Sutter's conduct, that he provided both Ford and Mr. Sutter with a full and fair opportunity to be heard and reached a fair result," he said. "I think the 9th Circuit decision very carefully thoughtfully affirmed what Judge Molloy did."

Attorneys representing Ford and Sutter maintained that Sutter did nothing wrong in the first place and that the judge went way overboard in punishing him. They noted that Sutter, who has a national practice, has won significant victories defending product liability cases against automakers.

"In this case the judge became the prosecutor, and that's very dangerous," said Theodore J. Boutrous Jr., of Gibson Dunn & Crutcher in Los Angeles. "Mr. Sutter is a terrific trial lawyer, and these orders are extraordinarily unfair."

Sutter could not be reached for comment late Thursday.

Boutrous vowed a further appeal.

Posted 6:10 PM by Howard Bashman

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March 04, 2005

COURT TOSSES ONE OF TWO DEATH VERDICTS
Prosecutor Argued Different Theories In the Same Crime

By Hudson Sangree
Daily Journal Staff Writer
SACRAMENTO - Ruling that a Los Angeles prosecutor acted in bad faith by arguing inconsistent murder theories to two different juries, the California Supreme Court on Thursday tossed out the death sentence of one of two defendants in a grisly murder case.

"We conclude that fundamental fairness does not permit the people, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed," wrote Justice Kathryn Werdegar for the court.

"By doing so, the state necessarily urges conviction or an increase in culpability in one of the cases on a false factual basis, a result inconsistent with the goal of the criminal trial as a search for truth," Werdegar declared.

State and federal appellate courts have taken different views on whether multiple defendants can be tried under different theories in separate trials. A case pending before the U.S. Supreme Court deals with the issue, Stumpf v. Mitchell, 367 F.3d 594 (2004).

In their decision, California's high court justices held that Los Angeles Deputy District Attorney Steven Ipsen violated the due process rights of defendant Peter Sakarias during his 1991 trial by presenting jurors with a different theory of the case than the one he argued to convict accomplice Tauno Waidla in a separate trial.

Sakarias was entitled to habeas relief because of Ipsen's bad faith strategy, according to six of the court's seven justices. In re Sakarias, S082299.

"We agree with Sakarias," wrote Werdegar, "that the prosecutor violated his due process rights by intentionally and without good faith justification arguing inconsistent and irreconcilable factual theories in the two trials, attributing to each petitioner in turn culpable acts that could have been committed by only one person.

"[S]uch manipulation of the evidence for the purpose of pursuing inconsistent theories establishes the prosecutor's bad faith."

Justice Marvin Baxter wrote a separate opinion in which he concurred with the majority in some respects but objected to the court's vacating Sakarias' death sentence based on Ipsen's alleged misconduct.

"In my view, there is no basis for a bad faith determination," Baxter wrote. "Ipsen adhered to the well-established rule against the knowing presentation of false evidence."

Moreover, Baxter said, Sakarias' defense lawyer should have known about the inconsistent theory argued in Waidla's earlier trial, a matter of public record, and taken steps to challenge the prosecution's case.

"Under such circumstances, the People would not generally be required to introduce, in their own case, evidence helpful to the defense," Baxter wrote. "Instead, the prosecution could properly rely on the defense to expose the gaps and weaknesses in its proof. I see no reason why a different rule should apply in Sakarias's case simply because the omitted evidence was earlier presented against Waidla."

Ipsen - president of the Association of Deputy District Attorneys of Los Angeles and a member of the California State Bar Board of Governors - did not return telephone calls seeking comment.

The case began in 1988, when Sakarias and his friend Tauno Waidla, both Estonian defectors from the Russian army, killed Waidla's onetime benefactor, Viivi Piirisild. They attacked the woman in her North Hollywood apartment with a knife and hatchet.

Who delivered a fatal hatchet blow was a key point in the trial of Waidla in 1990 and of Sakarias the following year.

Handling his first capital cases, Ipsen argued in Waidla's trial that Waidla was the hatchet man. In the next trial, Ipsen offered jurors a different version of events, pointing to Sakarias as delivering the deadly wound.

Both defendants were eventually convicted and sentenced to death.

The Supreme Court upheld both death sentences on direct appeal in 2000, but in response to habeas petitions, the justices ordered prosecutors to explain why Ipsen had argued inconsistent factual theories at the trials.

The justices also appointed a referee - Los Angeles Superior Court Judge Thomas Willhite - to conduct a fact-finding hearing on Ipsen's alleged misconduct.

During Willhite's investigation, Ipsen contended he had simply forgotten the theory he argued at Waidla's trial by the time he argued the case against Sakarias.

Willhite doubted Ipsen's explanation and concluded in July 2004 that the prosecutor had purposely argued different theories to the two juries to make each defendant look more culpable.

In fact, the weight of the evidence pointed to Waidla wielding the hatchet and striking the blow that probably killed Piirisild, according to the justices.

That means that Sakarias can leave death row but Waidla can't, they said.

"We ... conclude ... that where, as here, the available evidence points clearly to the truth of one theory and the falsity of the other, only the defendant against whom the false theory was used can show constitutionally significant prejudice," Werdegar wrote. "For that reason, we conclude that Sakarias, but not Waidla, is entitled to relief on his petition."

The justices also ruled that Miranda violations could, in some instances, be the basis for a habeas appeal.

Cliff Gardner, a San Francisco attorney appointed by the court to represent Sakarias, said the decision was "right on the money."

"It is an absolute mystery to me why the state defended Ipsen's conduct for so many years," Gardner said. "Prosecutors can't do this."

Sean Kennedy, a deputy federal public defender in Los Angeles who represented Waidla, was on jury duty and couldn't be reached for comment.

Nathan Barankin, a spokesman for Attorney General Bill Lockyer, returned a phone call placed to Deputy Attorney General Michael Keller, who argued the case for the state.

"The bottom line of the decision," said Barankin, "is that DAs will now have to identify a theory for a crime and argue it consistently, even when there are ambiguities in the record."

Posted 11:40 PM by Howard Bashman

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© 2005 The Daily Journal Corporation.
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Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

March 01, 2005

NINTH CIRCUIT DOESN'T FLIP OVER USE OF COIN IN VERDICT
Panel Won't Reverse Verdict Decided by Coin

By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - A federal appeals court didn't exactly tell jurors Monday that it's OK to flip a coin to decide whether to send a guy to prison.

But two out of three judges on a 9th U.S. Circuit Court of Appeals panel said it's too late to undo a conviction when a Los Angeles juror waits years before admitting to flippant decision-making.

Monday's holding in an unpublished opinion drew a dissent from Circuit Judge Stephen Reinhardt, who urged his colleagues to take a tough stand against coin-tossing jurors.

"The right to a verdict based on the evidence and not a coin flip is clearly established in law, though hardly ever vindicated in practice," he wrote. "It should have been vindicated here."

Court records indicate that one juror on a 12-member panel resorted to flipping a coin - twice - before reaching a verdict in Isidro Reyes' 1995 trial for possession of cocaine with intent to sell.

Juror F, as he's identified in court papers, later admitted that he just couldn't decide whether Reyes was guilty or not.

Jurors are supposed to make decisions only on the evidence presented at trial. But appellate courts have historically been reluctant to overturn verdicts based on post-trial discoveries that individual jurors broke rules.

Monday's majority pointed out, for instance, that the U.S. Supreme Court wasn't moved in 1987 by allegations that jurors were drunk during a trial. Tanner v. U.S., 483 U.S. 107. Nor was the nation's high court troubled in 1912 by evidence that jurors reached a verdict as the result of a "bargain." Hyde v. U.S., 225 U.S. 437.

"No Supreme Court authority holds that a defendant has a constitutional right to a new trial when an individual juror bases his decision to vote guilty on an irrational method, such as a coin toss," wrote Circuit Judge Richard Clifton and visiting Eastern Pennsylvania U.S. District Judge Charles Weiner, sitting by assignment.

Reinhardt, however, was not convinced that the 9th Circuit must defer to the Los Angeles appellate court that affirmed Reyes' conviction in 2000.

He acknowledged that out of respect for jury secrecy, the federal government and most states have evidentiary rules that prohibit jurors from providing evidence about the jury's deliberations.

But Reinhardt argued that under California law, which allows testimony about improper jury conduct, Juror F's admission warrants a new trial on due process grounds.

A spokesman for California Attorney General Bill Lockyer said Monday's ruling should not be read as an endorsement of coin-flipping during deliberations.

Nathan Barankin said there's good reason why appellate courts have avoided second-guessing jury verdicts.

"If you look into the subjective considerations that any juror may contemplate, it's hard to know the proper place to draw the line," he said. "Today's it's coin-flipping. Tomorrow, in an extreme example, someone might say there should be intelligence tests."

Reyes' lawyer, Terrence Roden of Los Angeles, did not return a phone message seeking comment.

The case is Reyes v. Seifert, 04-55068.