Lawyering against destiny

When I was spending a few months over at the Minneapolis City Attorney's office, the big issue in misdemeanor criminal defense was "source code" challenges to the Breathalyzer test in DUI cases. The criminal defense bar was arguing that it needed access to the machine's "source code" so that the results could be attacked with a scientific expert witness. In my view, this was a red herring—what mattered was whether the machine worked, something that could be verified with experiments, and it made no difference what assortment of ones and zeroes lived in its guts. (My understanding of "source code" remains murky.)

Anyhow, the state would have gladly turned over the source code if it had it, but of course it did not. The source code was owned by the maker of the Breathalyzer machines, and that company considered it a trade secret. So it was a perfect issue for the DUI attorneys: they could demand the source code, and when it was not forthcoming, move to exclude the evidence of the breath test as a sanction for failing to produce it.

The issue was raised in one my cases, a case that just so happened to be assigned the judge considered to be very pro-defense: Judge Jack Nordby. From the moment of the judge assignment, I knew my chances of success on the source code motion were slim-to-none. But Judge Nordby set a briefing schedule, and I intended to do my best.

Just a few days later, however—well before my brief was even due—the order came down: motion to suppress granted. I suspected that this was a sort of mistake; that Judge Nordby had issued the same order in the dozens of cases where the source code issue had been raised, and his clerk just threw my case in with the rest of them. But I couldn't presume that the judge had made a mistake like this. So I filed an emergency motion to reconsider, asking for at least a chance to be heard. This led to one of the weirder moments in my legal career: the phone rang, and Judge Nordby was on the line. He was calling to apologize: of course he would vacate the order and allow the briefing to go forward.

Which was nice. But, still, I knew I was going to lose. I'd already seen the order! Nonetheless, I wrote a pretty awesome brief. The one good thing about having seen the order in advance was that I could attack Judge Nordby's reasoning directly—I didn't have to guess at which arguments the judge would find most persuasive. And it turned out that Judge Nordby's order was more or less contradicted by his own treatise on criminal procedure. So I was pretty proud of my little brief.

But, still, I knew I was going to lose.

When the hearing came and Judge Norbdy handed down his ruling, he was very kind, complimented the brief, and said that he had seriously reconsidered his decision. But. He was not changing his ruling.

Which brings me to the Seventh Circuit fiasco known as Motorola Mobility v. AU Optronics, a Richard Posner production.  The story is set forth here, and I urge you to follow the link because it is pretty much unbelievable.

In short: there was a district court order, and it was appealed on an interlocutory basis—this means that the order wasn't "final" and wouldn't usually be appealable, but Motorola argued that it should be appealed right away. That request for interlocutory appeal was heard by a "motions panel" of the Seventh Circuit, which granted the motion to allow the appeal. At the same time, however, the motions panel (in an opinion by Judge Posner) decided the case on the merits, and affirmed the district court's order without allowing any briefing or arguments by anyone on this merits.

This was extraordinary, perhaps unique, and ruffled a lot of feathers. Among the feathers ruffled were those of the eagle in Great Seal of the United States, because the issue decided concerned anti-trust law that affects international business and international relations (somehow—I don't pretend to understand exactly how). So when Motorola filed a petition for rehearing in front of all the Seventh Circuit judges, the U.S. Department of Justice filed an amicus brief stating its view that the decision was wrong.

This led to the second round of nuttiness: Judge Posner issued an order, out of the blue, to the Departments of Commerce and State, asking them to submit their own briefs—even though the Department of Justice is ultimately the legal representative of both agencies. The Solicitor General wrote the court to inform it that the previous brief had been submitted on behalf of the United States, and that no agency-specific briefs would be forthcoming. Judge Posner responded with another singular order, ordering the Solicitor General, personally, to name the specific federal officers who had been consulted in preparing the brief, and the nature of the consultation. He was given a week to do so.

Then the panel withdrew that bizarre order the next day. Still, the appeal of the appeal went on. Until now. Today, the motions panel changed its mind, and set a briefing schedule on the merits. So it's like none of that stuff ever happened.

But, still, Motorola knows it is going to lose, right?

They've seen the order. So they are going to spend countless hours preparing briefs, spending god knows how much in legal fees, so that Judge Posner can just issue the same order in six months. What's the point? Just this, I guess: there's some lawyering to be done.

UPDATE:

After some extensive lawyering, Judge Posner—surprise!—affirmed the district court's partial summary judgment (again).

This day in drug-using judges

Everything was awesome until one of them died of a cocaine overdose.

Some people do not know when to stop.

When one sees a Detroit Free Press story about a Wayne County, Michigan judge being removed from office, one thinks the story will refer to Judge Wade McCree (see other posts about Judge McCree here, here, here, here, here, and here). But it turns out that Judge McCree is not the only judge in Wayne County to run into problems with the Michigan Supreme Court.

Too old to judge?

There is a movement afoot in New York to remove its constitution's requirement that judges retire at age 70.

Mr. Gillette recently posted about Vermont's "optimistic" forced retirement age of 90. As I said in a comment to that post, my intuition is that judges should probably retire sooner rather than later. Here's my thinking, beyond the obvious arguments about how they may be too old to do the job.

1) New blood. There are plenty of good middle-aged lawyers who are waiting to bring a fresh perspective and energy to the bench. Even in systems where there are judicial "elections," they are generally not highly contested affairs. Age limits are a good practical way to clear the way for better judges.

2) Turnover can be good. Although today's elderly are surely healthier than the elderly of yesterday, old judges are just as susceptible to the dreaded "black robes disease"  as they used to be. This is another reason for new blood. (Although, to be fair, this particular disease often goes away with age rather than worsening.)

3) Generational equity. I think it's kind of pathetic to see rich old people hanging on to these awesome jobs while qualified people in the next generation scrounge for work—or at least soak up all the available work so that the next generation down has to scrounge for work. I think there should be a strong presumption that old judges should step aside to let the next generation take over.

4) Joe Paterno.

Obviously not every 70-year old is financially independent. But if you are a 70-year who was successful enough to become a judge, you should be financially independent. If you aren't, you likely just spent too much money on stupid things and you do not have my sympathy. On the contrary, I condemn you!

It's not just judges who should retire at 70 or thereabout, by the way. All rich people should retire at around 70 if they can, and that should be the societal expectation and the societal pressure. I'm not saying that there should be laws to enforce this, but we should fogey-shame rich people who hang on to their high-paying jobs past the point of reason.

An example in the news recently is E. Gordon Gee, the president of Ohio State. Mr. Gee is a guy who thinks he's a lot cleverer than he really is, so he's constantly getting into trouble for running his mouth off. (This is a sort of corollary to black-robes diseases—these successful academics who never get negative feedback from their underlings on a day-to-day basis start thinking that people are laughing at their offensive and idiotic jokes because they are actually funny, when the truth is that they're laughing because it is part of their jobs.) After Mr. Gee's most recent outburst became public—in which he insulted "those damn Catholics" at Notre Dame, among many others—he got a stern rebuke from the board of trustees at Ohio State. "One more strike and you're out!" they said, effectively.

But Gee is 69-years old. He makes about $2 million a year now, and he's presumably been making seven figures for many years, and six figures for decades. He is the .00001%. He should just retire. More importantly, everybody around him, including the trustees, should be saying to him, "Why don't you just retire? Why are you hanging on to this awesome, high-paying job that some other person could do without embarrassing the entire state?" The regents' threat to fire him the next time he insults an entire ethnic group is pretty empty—there's no way Gee needs the money. Although I guess he'd rather not be embarrassed by being fired, that's the only thing on the line.

That's a long tangent. Point is, old rich people should be retiring more to make way for the poor and unemployed young people to fill up the ranks. I think it's morally unacceptable for them not to accept a life of leisure at this point.

Is king of latex a desirable nickname?

Continuing our coverage the misadventures of Michigan circuit court judge Wayne McCree (see here, here, here, and here) we report, thanks to Mlive.com, that Judge McCree's judicial misconduct trial has started.  According to the testimony, Judge McCree when presented with a claim that he impregnated his mistress responded by saying he was the "king of latex."  I assume this means that Judge McCree used condoms and not that he dressed like the gimp in Pulp Fiction.

How many Star Trek references are too many?

Speaking of Mr. Spock, United States District Court for the Central District of California judge Otis Wright issued an 11-page order yesterday with at least 13 references to Star Trek (there may be more, I am not up on all the various TV shows related to the original series).  I have to believe that this is a record for Star Trek allusions in a single order. Maybe this is some sort of weird promotion for the latest Star Trek movie.

Judges pretending to be Jesus.

As Easter dawns, young children will get up and search for candy.  Legally-minded people may ponder the question, can a Wisconsin state court judge play the role of Jesus in a living version of Da Vinci's The Last Supper. One can be forgiven for being surprised to learn that the Wisconsin Supreme Court Judicial Conduct Advisory Committee has answered this question.

No pay in his game either.

Continuing our coverage of Michigan circuit judge Wayne McCree (see here, here, and here) we report, thanks to this United Press International story, that Judge McCree has been suspended without pay over the allegation that he allegedly impregnated a woman who appeared before him as part of a custody dispute.  We covered that story back in December.

The Federal Law Clerk Hiring Plan is Dead

About ten years ago, federal judges (the appellate ones, at least) got together and formulated a "law clerk hiring plan." This "hiring plan" was in response to what was perceived to be an "arms race": judges were hiring clerks sooner and sooner in their law school careers, because each judge had an incentive to snap up the best "talent" as quickly as possible. Thus, back when I was in law school (before the hiring plan was implemented) we started interviewing for clerkships in the fall of our second year—nearly two full years before we would actually report for duty.

The "hiring plan" was an agreement among the federal appellate judges not to interview law students until they were in their third year of law school. At the time, this agreement seemed inherently unstable since it was non-binding and unenforceable. What would happen to a judge who hired a second-year law student? Other than a dirty look or two, nothing.

It took longer than I thought it would, but it appears that the plan is now in the process of coming undone:

Judges have begun hiring earlier and earlier, deciding not to comply with the hiring plan. This has created a race to the bottom, where judges interview (and offer jobs to) applicants with less and less law school experience. One judge memorably proclaimed that he thinks the appropriate time to start recruiting is "at birth."

The final nail in the coffin of the hiring plan came yesterday, when the United States Court of Appeals for the D.C. Circuit, called by some the "second highest court in the land," announced that it was abandoning the hiring plan.

The core flaw in the hiring plan is the notion that a student's performance in the second year of law school will tell the judge something useful about a potential hire's qualifications for the job. The truth, however, is that judges learn 99.9% of what they need to know about potential clerks from their first year grades. All law students, after all, have already been to and graduated from college, so it is not as though second-year law students are lacking an ample paper trail. The ones who excel academically in their first year in law school are the ones who will excel academically in their second and third years. So there just isn't any good reason for judges to wait, except that it apparently "looks bad" to hire students when they've still got two years of law school left. It might make someone wonder, "Hey, if judges can already figure out who the best hires are, what is the point of these last two years of law school?" And these are dangerous thoughts.

One argument in favor of the hiring plan is that, back in those pre-plan days, there was a federal judge foolish enough to hire me. But that particular judge saw the end of the hiring plan coming even before it went into effect:

A cartel's flaw always lies in the fact that the lion's share of monopoly gains flow to those who first break the cartel grip and jump out ahead of their competitors. In this case, the first judge who violates the deal will get to nab the top students from the best schools -- and do so before fellow judges have a shot at them. Each of the previous plans has run aground here, and there's no reason to expect otherwise this time.

Perhaps there is an alternative suggestion: Why not try a little honest self-restraint? If a judge needs more information than can be developed in two semesters of law school to make a quality clerkship decision, why not wait as long as needed? If others need less time or information, so be it. There is a name for this alternative proposal: It's called a free market.

You can't quit, you're fired.

Although I am still feeling pretty unsettled about the shooting in Newtown Connecticut on Friday, I assume that our Reader(s)™ want a diversion from the bad news.  Perhaps something from the judges do the darndest things file.

Some people just can't stay out of trouble.

Michigan judge Wade "no shame in my game" McCree is back in the news.  We have previously covered the exploits of Judge McCree here and here.  

Shamed, or at least censured, by his game.

Reader(s)™ may recall this post from April in which we discussed how Wayne County, Michigan Circuit Judge Wade H. McCree told the media "Hot Dog, yep that's me. I've got no shame in my game" upon being shown a picture by the Detroit Free Press of the judge sans shirt that he had given to his bailiff.  The bailiff's husband was not amused.

Judge Jones replies "Oh, it's on." Or something like that.

Unhappy with being told he was a partisan hack, Judge Jones has responded to the drubbing he got from Judge Reinhardt.  You can read the response of Judge Jones here.  Essentially Judge Jones answers Judge Reinhardt's charges by saying that Judge Reinhardt is everything that Judge Reinhardt says Judge Jones is. 

"No, I'm not.  You are." is not the most effective form of argument.  A better approach might have been to explain the delays between being assigned the case and hearing the motion.  Perhaps also with an explanation as to why an additional hearing was scheduled on a date that Judge Jones knew would give the plaintiffs the win they were seeking but would not allow the defendants to appeal.  The best approach, as it often is, would have been for Judge Jones to remind himself that he has lifetime tenure and not respond further.  But, of course, taking the high road is often no fun.

What is going on in Nevada?

Did the Chief Judge of the United States District Court for the District of Nevada try to game the judicial system to make an appeal from one of his order moot?  Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals certainly seems to think so.

Don't be cheap.

This is probably the best advice (NonLegal™) that I can give: being cheap in your dealings with others will come back to haunt you.

Ninth Circuit to Senate: It is your fault.

Back in May, we posted about how the United States Court of Appeals for the Ninth Circuit was not going to let a couple of senators push them around about where the Ninth Circuit decided to have a judicial conference. When the senators asked about the costs associated with having a conference in Maui, the Ninth Circuit told them to buzz off.

Programming Note

Justice Scalia is going to be on the Piers Morgan show tonight.

“Costs for lodging and air travel to attend the conference are comparative to those found at mainland venues.”

The quote is the Ninth Circuit's response to a letter the court received from Senators Charles Grassley and Jeff Sessions inquiring why the Ninth Circuit was hosting its annual judicial conference at a resort on Maui instead of, say, a hotel in Billings, Montana.  The Senators' letter notes that the cost of accommodations on Maui will exceed $700,000 assuming that the conference has as many attendees as the court's 2010 conference.  This matters because the travel and accommodations costs for the judges in the Ninth circuit are paid by the government (which gets its money from taxes).

I guess simply answering that Maui is nicer than Billings would have been undiplomatic.

"Hot Dog, yep that's me. I've got no shame in my game."

Thus spoke Wayne County, Michigan Circuit Judge Wade H. McCree.  What prompted Judge McCree to discuss the lack of shame in his game?  He was asked by Detroit's Fox News affiliate to discuss this picture

Judge barred from courthouse

UPDATE:

Judge Brim pleaded not guilty to the charges, discussed below, in her first appearance. The Sun-Times reports that her alleged tirade was "racial in nature."

ORIGINAL POST 3/13/2012: