Yellow Ribbons and the First Amendment, Continued . . .

The Burlingame City Council voted last night.

Read about their meeting here.


The council voted unanimously to "adopt" the yellow ribbons already placed on city lightpoles and trees and ordered city officials to place yellow ribbons on city property during "Yellow Ribbon Week" later this month.


In advising the City Council, the city attorney, Larry Anderson, said that the ribbons are not a "political expression" and "the city has the ability to express itself through decorations and symbols."


Wow, this is really bad. The city attorney couldn't tell the City Council, and the 200 emotional war supporters in the audience, that permitting only yellow ribbons is patently unconstitutional. He probably knows the constitutional outcome is either: (a) the ribbons are removed, and then replaced with city-purchased ribbons, or replaced at the direction of the city; or (b) the ribbons stay, but any protester or ideologue can put up any other symbol on those trees and lightpoles. It would take courage, and a profound belief in the principles of the Constitution, to give the audience those two options.

Instead, the city attorney says the ribbons are "not a political expression." The distinction does not change the outcome. The First Amendment applies to any "viewpoint," not just "political" viewpoints. Brown holds that spontaneous expressions of patriotism are "viewpoints" within the First Amendment. The ribbons are meant to support American troops, and supporting American troops, but not anyone else, is the essence of patriotism. E.g., my nation, my people before all others. Repackaging the ribbons as a "prayer" for the "safety" of American troops does not change their patriotic character. At bottom, the yellow ribbons can never be a prayer for anything other than American victory or for anyone other than American troops; those who disagree with that patriotic sentiment are restrained from speaking. That is plainly unconstitutional.


Further, the city attorney argues that the city has "adopted" the yellow ribbons already placed, so they do not have to be removed. Again, there is no constitutional footing for this argument. This is not government speech because the government did not direct or fund the speech. More importantly, if the government not only allows gives certain speakers access to an otherwise non-public forum, but then "adopts" their speech in that forum, there is a strong argument that the forum has been "opened" all speech. Although "[t]he government does not create a public forum by inaction or by permitting limited discourse," it does create a public forum where it "intentionally open[s] a nontraditional forum for public discourse.” See Cornelius, 473 U.S. at 802. The government's intent is reflected by "the policy and practice of the government, the nature of the property and its compatibility with expressive activity, and whether the forum was designed and dedicated to expressive activities[.]” Children of the Rosary v. City of Phoenix, 154 F.3d 972, 976 (9th Cir. 1998).

Lightpoles are "compatible" with public speech, and the city passed the ordinance because there were too many expressive messages posted there. Further, they line the sidewalks of the city, which are classic public forums. See id. Now the lightpoles are being used to spread the government's message and the message of private citizens of support for the war and American troops. They are using lightpoles precisely because they are so public, visible and uniquely effective for spreading a symbolic message. Dedicating the forum to that purpose intentionally opens it to public discourse, and invites others to respond and dissent from the patriotic message. Sounds like a public forum to me now. I'd be curious to see if anyone is prosecuted under the ordinance; their defense will be the First Amendment.


Lastly, and briefly, the city is funding a "Yellow Ribbon Week," and its officials will put yellow ribbons on everything. That's pure government speech. The city can constitutionally direct its officials to purchase and fly yellow ribbons.

Yellow Ribbons and "Government Speech": The Controversy in Burlingame, California:

Facts: The mother of an American solider fighting in Iraq is wrapping Burlingame's lightpoles with yellow ribbons. A city ordinance, however, prohibits posting any "sign" on a city-owned lightpole. The mayor of Burlingame has permitted the yellow ribbons, much to the chagrin of Seth Yatovitz. Yatovitz, who is not a resident of Burlingame, emailed the mayor demanding that he enforce the ordinance and take down the ribbons. Unsurprisingly, the mayor refused, and he has invited Yatovitz to a city council meeting to discuss the situation. Reportedly, the city may pass a resolution similar to the one South San Francisco passed declaring itself a "Yellow Ribbon City," ordering "the display of yellow ribbons at all municipal buildings and sites and further encourag[ing] its citizens and businesses to display yellow ribbons and fly the American flag until the conflict in Iraq is concluded."


A constitutional showdown is brewing here. Yellow ribbons are permitted, but any other message, whether pro-war, anti-war, or simply an advertisement, is proscribed. First Amendment values are at stake, and so the Captain must take sides in this one . . .


Captain's Take: Whatever your view on yellow ribbons, the city is poised to act unconstitutionally. The regulation must be reasonable and promote the purposes of the ordinance. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985). Although the city's lightpoles are non-public property, the city cannot condition access to a non-public forum on the viewpoint of the speaker. Id. A closer question is whether this is permissible government speech, since the government may spend its money to espouse its own viewpoint on its own property. Accordingly, the city will argue the exception for yellow ribbons is "reasonable" because the ordinance is intended to prevent visual blight and the ribbons are aesthetically pleasing; the ribbons do not express any political viewpoint, but merely a hope that American troops will come home safe; and the government is permitted to express a patriotic viewpoint through its citizens.



A recent Ninth Circuit case forecloses these arguments. In Brown v. California Dept. of Trans., No. 02-15385, slip op. (9th Cir. March 13, 2003), CalTrans regulations permitted American flags, but no other expressive symbols, to be placed on highway overpasses, and, in accordance with the ordinance, anti-war banners placed next to the American flags were taken down. CalTrans argued the restriction was "reasonable" in light of the purpose of the regulation, the American flag did not embody a "viewpoint," and the government itself can espouse its own viewpoint on its property.



The result in Brown obtains here. First, the exception for yellow ribbons is hardly "reasonable." Reasonable exceptions advance the goals of the ordinance. The mayor of Burlingame says the ordinance is intended to reduce visual blight. Yellow ribbons create as much visual blight as pink ribbons embodying breast cancer awareness or red ribbons for AIDS awareness. At best, what reduces "visual blight" is a matter of taste, precisely the type of subjective judgment that cannot be used to determine the right to speak. The Brown Court, too, held that American flags and other banners do not differ since neither advances the goals of reducing distractions to drivers and accidents from falling objects.



Second, the government cannot restrict access to a forum based on the speaker's viewpoint. Like the CalTrans regulation, the Burlingame ordinance ties access to a distinct viewpoint; only yellow ribbons are permitted. Yellow ribbons are a powerful message of support for the war and American forces in Iraq. It is obtuse to suggest they are anything else. They appear only when U.S. troops fight abroad, and all of the speakers described the ribbons as a "prayer" and "hope" for the safe return of American troops. Understanding the ribbons in their political context is proper, for in Brown, the court carefully examined the surrounding context of events and held that placing American flags on overpasses was a spontaneous, patriotic response to September 11th. In context, they embodied one viewpoint: patriotic support for the government. So do the yellow ribbons. That they are merely a "hope" and "prayer" for American troops' safe return does not salvage the ordinance. That is also a particular, political viewpoint, and the community's visceral, patriotic response to the proposal to take them down proves as much. Between 150 and 300 people emailed with messages ranging from offers to patriotically "kick his [Yatovitz's] ass" to death threats. To pretend that the yellow ribbons embody anything other than patriotism is laughable and is a slight to those who love them so passionately.



Third, the city's last refuge is the "government speech" doctrine. The government is permitted to spend money to espouse its own viewpoint on its own property, which the lightpoles concededly are. See generally Rust v. Sullivan, 500 U.S. 173 (1991). Following Rust, the Brown Court held that "elected officials" must "appropriate funds" to engage in protected "government speech" because the "check" on government speech is that officials must answer to the electorate for suppressing any viewpoint. Brown, slip op. at 3708. The city's resolution does not appropriate any funds. Instead, it "orders the display of yellow ribbons at all municipal buildings and sites and further encourages its citizens and businesses to display yellow ribbons and fly the American flag until the conflict in Iraq is concluded[.]" The yellow ribbons are already there; the city will not spend a dime on them, and Rust and Brown do not contemplate "government speech" where it simply "encourages" citizens to speak. Rather, it exists only when the government "spends money" or "hires agents" to espouse its viewpoint. And for good reason, since spending money is the ultimate political risk and the part of governing that creates the most controversy and the most debate. Indeed, Brown squarely holds "[w]e decline to extend the government-funding cases to a situation in which the government has not appropriated any funds toward achieving a policy goal for which it is accountable to the electorate."



Moreover, the city seeks to transform private speech into government speech by "ordering" the city to display ribbons where they are already displayed. This is troubling. First, the government is not subjecting its choice to speak to genuine debate in a deliberative forum; the government must deliberate on all viewpoints before settling on one to fund. In contrast, the mayor observed private speakers, waited to gauge the popularity of their viewpoint, and then moved to "ratify" it by "ordering" the city to engage in speech that has already been performed. The genius of Rust is that the legislature must take a risk and acquire funds to speak before it itself speaks. Once the popular viewpoint has been separated from the unpopular, once everyone knows what views to stay away from, elected officials do not have to seriously entertain any other viewpoint than the popular one. Even unpopular views should get a fair shake in the legislature. Second, money talks. If the city can "fund" a viewpoint by "loaning" its property to the speakers, e.g., saying it's okay to put flyers on lightpoles and calling it a "loan", the government will have a monopoly on public viewpoints. It could "loan" public space to any speaker with an invisible pen-stroke. Since money ("our hard-earned taxpayers' money") would not be at stake, the public would be highly disinterested. The Rust Court purposefully added "funding" as a requirement because money talks. It makes the electorate notice and pay attetion, and so it ensures that there is a robust "check" on government speech.



At bottom, this is an unwise course for Burlingame. The city is carving out a politically-popular exception for yellow ribbons while preventing access to the politically unpopular views of the peace movement. The basic principle of the First Amendment is that unpopular viewpoints cannot be suppressed simply because they are unpopular. Even the most unpopular, derelict views are welcome in the debate. There is room on the tree for all of us.

Estrada, Continued . . . Response from a Reader:

I received an interesting response to my post about Miguel Estrada. It is below:

_____________________________________________________________________

Dear Captain Blogg,

Estrada had few, if any, barriers. He came to this country with his quite well-to-do parents -- hardly a Horatio Alger story. And while most Latinos experience discrimination, this is seldom the case with anyone with money. Money buys entrance everywhere. And for getting in the law firm, aside from ability, he undoubtedly has contacts in the Honduras through his parents, and could drum up business.

So support Estrada for any reason you like--but stick to facts, leave fiction to novelists.

Ross Taylor, Tacoma, Wash.
____________________________________________________________________


Thanks for the response, Ross. Always good to hear from the readers.


You are, however, quite wrong. Regrettably, your contribution illustrates the problems facing successful Latinos in America.

First, it is laughable to assert that "Latinos with money" do not experience discrimination. Racists do not differentiate between individuals. A racist would never wonder whether a particular Latino is rich and educated or poor and uneducated because, to her, all Latinos are the same: lazy, dumb, hapless, etc. Latinos are not individuals to racists, Ross. A racist forms her conclusions about someone from a person's skin color, last name, and accent. The rest of the person ---- her character, beliefs, status, talent, merit ---- does not matter. Moreover, even if Estrada's parents were "wealthy" in Honduras (incidentally, a "wealthy" person in Latin America would be quite poor in the U.S.), I don't see how it would change how racists perceive others.


It is, however, quite different to argue that wealthy Latinos are better-off than poor ones. That is indisputable. The barriers to success are certainly less intractable, since wealthy Latinos are more educated and have better opportunities for advancement. They still experience racism, no doubt, but it is less devastating.


Second, you argue that Estrada's "drum[med] up business" through his parent's Honduran connections to gain entrance to his law firm. Wow, where did you come up with this? I cannot find a single reference to this in any news article about Estrada. Estrada represents large, domestic corporations in commercial and criminal matters before the federal courts. It is highly implausible that his parents' unspecified connections in Honduras have anything to do with his representation of high-profile U.S. clients.


Something else about this comment troubles me. The need to seek some other explanation for his success is the old-timey, second-guessing racism that pervades boardrooms and hiring committees around this country. Why would anyone speculate about the reasons for Estrada's success, or attribute it to pie-in-the-sky connections with "wealthy" Hondurans? His resume is out of this world: Harvard Law School, CTA clerk, Supreme Court clerk, AUSA, Solicitor General's Office, etc.
"Did he go to Harvard because of affirmative action?" "Did he ride his parent's connections?" No one would dare ask these questions of a white nominee. Indeed, even the most controversial nominees (Pickering and Owen) didn't face this type of questioning. Only Estrada does, and only because he is Latino. It's absurd.


At bottom, I just don't care if Estrada is "Horatio Alger." He never claimed to be. It only matters if he acknowledges the experience of discrimination that the vast majority of Latinos have endured and does something for the organized Latino community.


I would be less tepid about his nomination if he were active in legal aid for Latinos in his community, sat on some boards, represented (pro bono) some Latinos in immigration proceedings, gave a speech to Spanish-speaking middle-schoolers . . . anything that says, "I recognize the injustice and want to do something about it." I could even deal with his principled opposition to affirmative action if he had made some other, overwhelming contribution to the community.

The problem with Estrada is that he has none of the above.


If I am wrong, someone correct me . . . and keep those replies coming. As you see, I will post them.

Essentialism, the Estrada Nomination and Al Gonzales: Should Latinos Establish a Litmus-Test For Their Judicial Nominees?


Much like African-Americans during the Thomas confirmation fight, Latinos are confronted with a tough choice: do you support Estrada because he will be a superb role model for Latinos in America, or do you oppose him because of his politics and the alleged fact that he does not identify with American Latinos?

A tough question. Below the surface, this is really a question about authenticity. Is there an ideological litmus-test for being "really" Latino? More directly, is there some experience, and necessary set of beliefs you must draw from that experience, that is "essentially" Latino?


The answer resists simple explanations. I'll begin the analysis by contrasting the two schools of thought. If anyone else has a view, please email me, and I will blog your post.


The Litmus-Testers: They believe that Latinos are defined by a concrete set of experiences in this country. Latinos have been marginalized politically, socially and economically. Language, culture and race are barriers to full participation in society because, in most people's minds, they are correlated with difference, failure and backwardness. These views push up the costs of remaining "true" to one's language and culture --- allowing them to be a part of your public and professional life only limits opportunities for advancement. At bottom, Latinos have a tough choice: act like yourself, or erase part of yourself while at work, school or public functions where advancement is at stake. The costs of either course are high. On one hand, you can erase your identity, which has high psychological and spiritual costs. On the other hand, you can "remain true" and become associated with the negative attitudes non-Latinos have, or that Latinos reasonably believe others have. This increases the pressure to succeed, causes one to second-guess oneself, and to see every test as an all-or-nothing situation where failure has dire consequences. It is vulnerability and uncertainty that whites cannot experience in the same way, since whiteness is not correlated with failure among other whites.


Given these common experiences, certain conclusions must follow. The "either/or" dichotomy must cease. Affirmative action and other policies of inclusion --- "affirmative access," sensitivity training, multiculturalism --- teach others that "Latino-ness" does not correlate significantly with negative traits. People are often very Latino and very bright, successful, articulate, and very good professionals or artists. Knowing this abstractly is very different from seeing it. Opposing these policies only freezes the negative stereotypes and condemns Latinos to deny their heritage or affirm it but risk their advancement. They don't worry about excluding "fake" Latinos because only a litmus-test designed by outsiders, non-Latinos, is pernicious, not their own.


They hate Estrada because he is Latino, but he "denies" it by working at a big law firm and not working for the betterment of the organized Latino community.


The Anti-Essentialists: They think this is all hogwash. The attempt to form a "litmus test" for Latino-ness reproduces the same stereotyping that limits their opportunities. There can be no "authentic" Latino, except for how a person chooses to identify herself. A litmust-test divides the Latino community between "real" Latinos and "fake" Latinos. The former do not recognize that how much the latter had to sacrifice for their success. Further, anti-essentialists believe there is no single experience that defines Latinos in America. They can agree with affirmative action for limited remedial purposes, but not to foster "diversity," since race has no stable correlation with viewpoint.



Towards an Answer: Each side takes it too far. First, litmus-testers are right that there is a hard "core" of experiences self-identifying Latinos face: the "either/or" dichotomy. Latinos who self-identify as such --- by speaking Spanish, talking about the family back in Mexico, having a Spanish-surname --- must overcome pernicious assumptions about their abilities and character. These are very real limits on opportunity, since the determination of "merit" often turns on the attitude of the decision-maker. Second, and more persuasively, litmus-testers argue that anyone truly connected to the Latino community must try to help other Latinos. Certainly, more is expected of educated, privileged, and powerful Latinos with public exposure. If a nominee has done nothing for her own community, the reasoning goes, then why should they support this nominee?


The anti-essentialists, however, are right that the litmus-test goes too far. It essentializes not only experience but belief. Not only must you, Latino, have certain experiences, but you must also draw a narrow set of lessons from them. Any deviation from the list of approved political beliefs is a betrayal to the community, and makes you a "sell-out." This is unreasonable, and it merely replaces old stereotypes with new ones. After all, so long as someone felt the same pain --- which they always do, whether they deny their culture or publicly embrace it --- and they acknowledge the barriers to success for others with their experience, then who cares what their particular political beliefs are? They'll still get the basic message across: Latinos are better than you may think, and thinking less of us unjustly limits our opportunities.


My Conclusion: Latinos should support judges who: (1) self-identify as Latinos and recognize the barriers Latinos must overcome in this country; (2) have done "something" for the Latino community; and (3) are powerful role models that undermine pernicious stereotypes of Latinos.


(1) Acknowledge the Barriers: Although Latinos should not have some "authenticity" index the community uses to "gatekeep" its membership, it should require its leaders to acknowledge the indisputable, objective barriers to success that Latinos face. Both Estrada and Gonzales have overcome discrimination. It seems to me that both men had to pay the price for being Latino. Even if they do not share the same political philosophy, they are part of the Latino community, dealt with severe discrimination, and overcame it. That is worthy of emulation, whatever their politics.


(2) Latinos must do something for other Latinos. Indeed, Latinos should expect this from any leader. Why should any community support a nominee or leader who does nothing for the community they purport to belong to? This is not a racially-defined community. (Indeed, Latinos are many races.) This is a community of immigrants and children of immigrants who are defined by their distinctive languages, customs, values, and problems. Like any interest group, they reasonably expect their leaders and role models to acknowledge and care about their problems. Estrada and Gonzales may both be lacking in this area. In Estrada's resume, I don't see much besides private sector and government service, nothing geared toward the public interest let alone the Latino community. At least serve on a board, or join a club, or volunteer at a legal aid clinic. He speaks Spanish and could help Spanish-speakers, being such a bright lawyer. There is Ayuda in D.C., a public interest group that provides free legal services to indigent Spanish-speakers. Come on, like one Saturday a month. There is no numerical threshold that a nominee should pass, but, seriously, the lack of even a trivial effort should raise eyebrows.



(3) Role Models. Both men could be compelling role models. Estrada came to this country from Hondueas speaking little English and overcame tremendous odds to become a Supreme Court clerk, an Assistant Solicitor General, and a partner at a white-shoe law firm. Gonzales has a similar story, overcoming the odds as a son of migrant workers to become an honors student at Rice, the Harvard Law School, and a partner at Vinson & Elkins. Both of these guys would be terrific role models.


I'm not sure how to add these up. It is basic to acknowledge the intractable barriers to success facing the Latino community. That much is clear. It is also reasonable that a community should support someone who supports it. It is not clear how much Estrada and Gonzales have done this. Moreover, the content of their political philosophies is irrelevant except to the extent that it prescribes acknowledging the tough reality that Latinos have faced. That may tip the balance despite being otherwise good role models. After all, what community wants a role model who doesn't believe that community's story?

--- Captain Blawg

The Outrageous "Outing" of Sexual Assault Victims: A Reply

Background: As you know, the former Dean of the Boalt Hall School of Law resigned amid charges he sexually assaulted a former student. The victim's charges were shocking. The victim allegedly got drunk at a party, and the Dean drove her home where she passed out. The Dean has conceded that the two had an "encounter," although he claims it was "not intercourse" and it was "consensual." She claims that she awoke to find the Dean's "hand in her vagina."


The Problem: Some bloggers have tried to "out" the victim. They have pieced together the limited public information about her (age, activities, bar passage, etc.) and purportedly identified her.


I refuse to link to their despicable blogs because I do not want to participate in the "outing" of this poor person. I write only to protest the perversity of this exercise.


This is outrageously immoral and totally unjustified. It is outright hostility to a victim because she had the temerity to file a legal claim against the person who she claims raped her. What is controversial about that? The outcry over her anonymity (and the coddling of the former Dean) are something more than mere hypocrisy. They are so beyond moral sense that they must be called evil.



The reasons for condemning the victim are completely irrational. For example, one author writes that the victim is a hypocrite because she wants to expose and condemn her alleged attacker without exposing herself to the same scrutiny. What rational person thinks that an alleged rapist is in any moral position to demand anything of his alleged victim? A victim owes the alleged rapist a chance to condemn her? This is not a political debate where one person attacks the other's character without revealing her own identity. Such trivial notions of fairness do not suffice here; a rape has been alleged. It is a crime, and if this were anyone other than a rich, white law professor, these same pundits would be setting up the gallows.


Moreover, a blogger argues that "a smart, discerning public should refuse to be manipulated in such a way. If the court of public opinion is to be the judge in this case, let it make its judgements on the basis of all available information." At bottom, this blogger thinks the public cannot rightfully condemn an alleged perpetrator unless it also knows the victim's identity. This is part of the author's puzzling goal of "mov[ing] forward[] out of the morally crystalline mythography of victimhood and into the realm of complex and contradictory fact." (Whatever that means.)


This argument is twisted and irrational. The author is so incensed at the "mythography of victimhood" that even a person who has suffered literal brutality cannot claim to be a "victim." Rape has been alleged. This is not some hypersensitive reaction to a perceived slight. E.g., someone told me I was ugly, and now I'm suing because it was racist and ageist and it hurt my feelings. Rape is the ultimate physical and emotional violation, and the author's beef with pretend "victimhood" is not only misplaced in this context, it is immoral.

Additionally, the only fact in dispute is whether the victim effectively consented. Indeed, the former Dean admitted that he and the student had a sexual "encounter." I don't know if or where this blogger went to law school, but everyone else learned this on the first day of Criminal Law: intoxication vitiates consent. See MPC sec. 2.11(3). How does "outing" her help us know whether she had been drinking that night, or whether she effectively consented?

More importantly, this suggestion immorally focuses on the victim. "Outing" a victim assumes that there are some "facts" about her (status or past behavior) that will help the public evaluate the seriousness of the crime or her credibility. No set of facts can make rape any less heinous. Really, is any crime any less reprehensible if the victim is promiscuous? How about if she is an otherwise terrible person? A "tease"? What if she was Latina? Or Asian? Or Black? What if she was a party-girl and slept with 28 guys? What if she was a church-girl who slept with 0?


What makes the difference?


We are never told. Indeed, there is no explanation because rational people agree that it makes no difference. Most people agree that an act is a crime regardless of the status of the victim. Yet, despite the clarity of this moral principle, the application of our own criminal laws often turns on the status of the victim. Crimes against whites are punished more severely than crimes against non-whites. Non-white criminals receive more severe punishments for similar crimes. These disparities reflect a judgment that the punishment depends on the criminal, not the crime. E.g., It was rape, but the sentence depends on who the rapist was and who the victim was. Our blogger, however, takes the more radical position that the nature of the crime itself --- not the severity of the penalty --- turns on the status of the victim. E.g., whether it's rape or not depends on who the victim was. That is nonsense, and not even many bigots would agree.)



Moreover, we know enough about her actions to evaluate her the credibilty of her claim; her status, age, race, educationn, etc., are irrelevant. News reports (some linked above) claim that she: (a) notified her professors immediately; (b) notified the campus Title IX officer; (c) immediately sought counseling and therapy; and (d) for fear of retaliation, waited until she was reasonably beyond professional retaliation before filing her claim. Although largely irrelvant, we also know she is an honors student at a top law school and that she is an adult. Everything about her actions and background bespeaks credibility. What more do you need to know? And why?



Lastly, the victim knows more about destroying victimhood than these bloggers ever will. By maintaining her anonymity, she refused to be defined as a "rape victim." She refused to allow another person to define her. She claims to have been violated, and, consistent with that, she is refusing to allow that tragedy to control her identity and others' perception of her. Ironically, only by remaining anonymous can she forge her own identity. If she is "outed," she becomes what she alleges was done to her --- a victim --- rather than what she chooses to be.


--- Captain Blawg

United States v. Ramirez-Lopez, No. 01-50164, 249 - 306 (9th Cir. Jan. 10, 2003). You can access the opinion here.

Kozinski strikes again!

A brilliant, hilarious, dialogue-style dissent from our favorite judge, Mr. Kozinski. Too bad it won't be Mr. Justice Kozinski. Creative and independent mavericks like him won't get to The Court, where predictability and conservatism are rewarded. (Not the political definition of "conservatism," but the short-pass-and-run-up-the-middle type of conservatism. If Kozinski were a football player, he'd be Terrell Owens: a big play receiver, unsurpassably talented, infuriating and prone to speaking his mind.)

The Background: Federal officers apprehend defendant and fourteen others while they are crossing the U.S.-Mexican border "illegally." Although twelve of defendant's fourteen companions tell the officers that defendant was not their "ring leader," he is still arrested for alien smuggling. Summarily, nine of the fourteen companions are deported. Only five are not deported: Two who said defendant was the ringleader, and three who say he wasn't. So, in sum, there are fourteen witnesses to the crime, and the prosecution keeps two witnesses in custody and deports all but three of the defense witnesses. Fair?

Defenant argues that deportation of nine defense-friendly witnesses --- without being interviewed by defense counsel, keeping track of their whereabouts, etc. --- violates Due Process. See Brady. The trial court rejects this argument. Defendant then makes a lesser request to introduce the officers' notes from their interviews with the nine deported witnesses. The trial court refuses because the notes would be hearsay and "cumulative" of what the three, non-deported witnesses stated. (As if the deportees would have all said the same exact thing. This contradicts the Rashomonprinciple, that fourteen people will remember and perceive an event fourteen different ways.) After some "prosecutorial misconduct" and misleading testimony from an officer on the stand, the trial court still finds that the trial was fair and no fundamental error occurred. The Ninth Circuit affirms.

Kozinski dissents and says that the "United States and the district court failed in their duty to this defendant." Ramirez-Lopez, at 280. He also points out the defense counsel for their "splendid job," noting that they fought "like tigers" for their and preserved a "splendid record for appeal." Id. at 281.

Captain's Take: I won't even bother to try my own hand at explaining the laughable overreaching by the majority. I'll let you read Kozinski's dissent. Two features are particularly awesome. First, Kozinski creates a hilarious dialogue between Ramirez and his attorney. An excerpt:

* * * *
Ramirez-Lopez: Isn’t the jury supposed to have all
the facts?

Lawyer: Not all the facts. Some facts are
cumulative, others are hearsay.
Some facts are both cumulative
and hearsay.

Ramirez-Lopez: Can you say that in plain
English?

Lawyer: No.

Ramirez-Lopez: The jury was supposed to decide
whether I was the guide or not,
right? Don’t you think they might
have had a reasonable doubt if
they’d heard that twelve of the
fourteen guys in my party said it
wasn’t me?

Lawyer: He-he-he! You’d think that only
if you didn’t go to law school.
Lawyers and judges know better.
It makes no difference at all to
the jury whether one witness says
it or a dozen witnesses say it. In
fact, if you put on too many witnesses,
they might get mad at you
and send you to prison just for
wasting their time. So the government
did you a big favor by
removing those nine witnesses
before they could screw up your
case.

Ramirez-Lopez: I see what you mean. But how
about the notes? Surely the jury
would have gotten a different picture
if they had just seen the notes
of nine guys saying I wasn’t the
guide. That wouldn’t have taken
too long.

Lawyer: Wrong again, Juan! Those notes
were hearsay and in this country
we don’t admit hearsay.

Ramirez-Lopez: How come?

Lawyer: The guys writing down what the
witnesses said could have made a
mistake.

Ramirez-Lopez: You mean, like maybe one of
those twelve guys said, “Juan was
the guide,” and the guy from
Immigration made a mistake and
wrote down, “Juan was not the
guide”?

Lawyer: Exactly.

Ramirez-Lopez: You’re right again, it probably
happened just that way. I bet
those guys from Immigration
wrote down, “Juan wasn’t the
guide,” even when the witnesses
said loud and clear I was the
guide—just to be extra fair to me.

Lawyer: Absolutely, that’s the kind of
guys they are.

Ramirez-Lopez: You’re very lucky to be working
with guys like that.

Lawyer: Amen to that. I thank my lucky
stars every Sunday in church.

Ramirez-Lopez: I feel a lot better now that you’ve
explained it to me. This is really
a pretty good system you have
here. What do you call it?

Lawyer: Due process. We’re very proud of
it.

* * * *

In one passage, Kozinski asks the reader to imagine if this were a corporate fraud case and the corporation had "deported" nine employees who were witnesses to a crime. (Likely "deported" to Bali or some other tropical hideaway.) "Any corporation that tried to pull a stunt like this would quickly find itself indicted for obstruction of justice, and the inculpatory notes would be ordered produced and introduced at trial. I can imagine no other result." Id. at 280.

True enough.

--- Captain

Bradley v. Duncan, No. 01-55290, slip op. (9th Cir. Dec. 24, 2002). Access this opinion at this link.


There are two quite distinct and fascinating themes at play here: first, a man feels misguided pity for a desperate junkie in withdrawal and agrees to buy him cocaine. The police set the whole thing up, from recruiting the junkie in withdrawal and giving him the money to driving him to the drug dealers; second, a sharply divided panel of the Ninth Circuit finds a "due process" violation and highlights the battle over the Ninth Circuit's federalism and habeas jurisprudence. The Supreme Court's shots-across-the-bow in Visciotti and Packer didn't tame anyone on the Ninth.


The Background: Undercover officers found a junkie in withdrawal and asked him to "hook" them up with drugs. The junkie was "pale and shaking, his head kept moving back and forth." He jumps into the car and tells the officers to drive him to an intersection. The officers give him twenty bucks, and he jumps out to approach defendant, Bradley. Bradley, a twice-convicted burlgar, observes that the junkie is in withdrawal --- "pinkish, yellowish, sick . . . he smelled like vomit . . . he was tweaking and twitching[.]" The junkie said, "I'm hurting. I need a fix." He "begged" Bradley for drugs and asked, "Please, please, big man, would you help me out?" Bradley initially refused, but, recognizing this man's sorry state, eventually acquiesced. Bradley looked for drugs at one corner and couldn't find them. He gave up. He returns the money to the junkie. A few minutes later, however, Bradley sees a drug dealer at the liquor store and tells the junkie and officers to meet him there in a few minutes. He meets them, gets the twenty dollars back, and goes to the liquor storefront to get the drugs. When he returns with the cocaine, the officers arrest him, the junkie, and the dealer.

At his first trial, Bradley argues that he was entrapped. The court instructs the jury on the defense of entrapment. The jury is hung, and a mistrial is declared. At his second trial, Bradley's testimony from the first trial is read directly into the record. The prosecution argues that he admitted the crime, and Bradley argues, again, for an instruction on entrapment. One problem: the judge refuses to instruct the jury on entrapment. The prosecution argues that the defendant admitted the crime and has no defense. The jury convicts, and, since this is his third "strike," Bradley gets the statutorily-mandated sentence: twenty-five to life.


Held: Failure to instruct the jury on entrapment is a violation of due process and warrants habeas relief under the AEDPA.


Strategy: A cynical, effective strategy. First, why are tax dollars going to RE-try a casual intermediary in a petty drug deal? This guy's clearly not a dealer. He tried to push the junkie away, but gave in because he felt sorry for him. Sure, that's a dumb and misguided sense of charity, but it's still charity. It's not one of the base, criminal forms of avarice the laws are meant to deter. What are we doing going after this guy? Did they go after him just to get a third strike? Would he have done this if the police hadn't arranged the circumstances and chosen an appropriately desperate junkie to convince him? Unlikely. What a waste of time and money.

Second, the prosecutor "sandbagged" the defense here. Id. at 12351, n.4. Entrapment is a balls-to-the-wall defense. In claiming entrapment, a defendant must admit all of the elements of the crime and then claim that police trickery overwhelmed her will and that the criminal design was theirs, not hers. A very risky move, and defense attorneys only use it when there is fairly overwhelming evidence of guilt. The advantage is that a defendant gets to spill all of the "bad news" on direct --- i.e., get out in front of the bad news --- and put the focus on police conduct. If all goes well, the prosecution spends its time playing defense for the police officers, and the jury hates them and says to itself "there, but for the love of Pete, go I." The defense gamble worked in the first trial. The jury hung, unable to decide whether this guy was tricked or was a drug dealer.

The tables, however, turned in the second trial. The former testimony exception to the rule against hearsay applies, and the defendant's entire testimony from the first trial gets read into the record. All of his admissions come in. One problem: the second trial judge doesn't allow the defense of entrapment to go to the jury. Now the defendant can't even make his gamble because the jury is not even allowed to consider the police misconduct.


Captain's Take: The state courts just got it plain wrong. There were plain, egregious errors in the trial court, and the California Court of Appeal affirmed this charade in an obtuse opinion that manages to misapply every body of law it examines. The California Supreme Court similarly missed the mark by denying review and failing to correct this parade of horribles.

The Supreme Court versus The Ninth Circuit: The state courts messed up, and the Ninth Circuit stepped in to right the ship. The problem is that the Supreme Court thinks the Ninth Circuit is stepping in too often and far too much. In Woodford v. Visciotti, 123 S. Ct. 357 (2002), and Early v. Packer, 123 S. Ct. 362 (2002), the Court chastised the Ninth for not following its direction in habeas cases. The Court strictly enforces the "federalist" values behind the AEDPA --- the Anti-Terrorism and Effective Death Penalty Act of 1996 --- which severely restricts the availability of habeas for challenging state court convictions. The Court and Congress believe that the federal government has an utterly limited role in "second guessing" state court convictions, since "federalism" is a one-way street and states have the right-of-way. Accordingly, under the AEDPA, a federal court reviews a state court conviction under a highly deferential standard of review. The conviction will stand unless there is some "objectively unreasonable application of clearly established federal law," or "clear and convincing" evidence of an "unreasonable determination of the facts in light of the evidence presented." See 28 U.S.C.A. sec. 2254(d); see also Mendez v. Small, 298 F.3d 1154 (9th Cir. 2002). A tough road to hoe.

The Ninth Circuit, of course, thinks this is all rubbish. They have continually pushed the envelop and have ignored the restrictive standard of review under the AEDPA and shown little deference to state court judgments. After the Supreme Court's recent warning shots, the Ninth Circuit has found a new strategy for exhaustivey dissecting state court convictions while giving pretend "deference" to state courts as mandated by the AEDPA: just re-package the error as "denial of Due Process." The Bradley Court realizes that a state court's misinterpretation of state law is not a ground for habeas relief. The court, thus, re-packages the errors as "Due Process violations." First, the court cites a trove of California cases to prove-up the egregiousness of the state court's misinterpretation. The court further demonstrates that the state court failed to apply the law of the case doctrine. It concludes that such dramatic errors are "impermissibly arbitrary" and "can amount to a violation of Due Process." Second, the court finds some federal law supporting its constitutional violation theory. Due Process embraces the right to present a meaningful defense and have the jury instructed on that defense. See generally California v. Trombetta, 467 U.S. 479 (1984). The state court did not instruct the jury on the entrapment claim and so violated the Constitution. Now there's a ground for habeas relief.

The elegance of the majority opinion is not lost on the dissenter, Judge Graber. She quite rightly notes that "[the majority is reviewing] de novo questions of state law." Judge Graber also argues that the majority fails to cite a single federal case holding that denial of an entrapment instruction is a due process violation, or even explaining when an entrapment instruction is constitutionally required. After destroying the majority's made-up constitutional violation, and de novo interpretation of state law, she sums up what the majority is really doing: "[w]hat those in the majority seem to be saying is that they consider the evidence sufficient to support an entrapment instruction. This kind of federal oversight of state-court proceedings is precisely what the Supreme Court in Visciotti and Packer has told us not to perform."

True, but the Supreme Court got it wrong. The Ninth Circuit found a constitutional violation where there was one or ought to have been. The defense had one argument --- entrapment --- and denial of an entrapment instruction denies the defense any meaningful opportunity to try their case. To the extent the AEDPA --- itself a contradictory attempt to devolve power to the states on civil rights issues and simultaneously augment federal power on national security, immigration and social welfare issues --- restricts review of cases like these, the Ninth should be aggressive in using whatever attenuated forms of review that remain to challenge atrocious, unjust decisions.

--- Captain