Archive for February, 2006

Last Nominee to Ninth is No Surprise

February 15, 2006

As expected, President Bush has nominated L.A. business lawyer Milan Smith to the Ninth Circuit. Tuesday’s nomination means Bush has put forth nominees for the appeals court’s four open seats. The others are filibustered Idaho ranching and mining lobbyist William Myers, Idaho state court Judge N. Randy Smith, and Ssandra Ikuta, the general counsel for the California Resources Agency — and a former O’Melveny & Myers partner — who was nominated last week.

And Smith’s nomination continues a trend noted on this blog: Bush skipping the federal bench in filling slots on the Ninth.

— Justin Scheck

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Rating the Smoothies in Oakland Mayoral Bid

February 13, 2006

Here’s an interesting take on the Oakland mayor’s race from Jon Eisenberg of Horvitz & Levy, who watched live from Zazoo’s Restaurant as the candidates sparred in front of a TV audience last Friday. Eisenberg has already declared Ron Dellums the winner — for best media training, that is. The retired U.S. congressman used no notes and showed skill with timed remarks in the hour-long debate sponsored by the Alameda County Democratic Lawyers Club.

“He’s a master at it,? Eisenberg said. “Obviously he’s gotten media training, but it doesn’t show,? Eisenberg said.

Judging by Friday’s performance, Eisenberg said West Oakland councilwoman Nancy Nadel hasn’t had media training. It seems City Council President Ignacio de la Fuente has, but apparently he could use some practice. “The bones of his media training were sticking out from the flesh of his presentation,? Eisenberg said. (Which, by the way, is the best quote we’ve heard this month …)

What exactly is media training, you ask? It’s where you’re taught “how to not answer questions, how to interrupt, how to shout over people and still look like a nice guy,? said Eisenberg, who earned his stripes under David Dreyer, a White House communications deputy in the Clinton administration who’s now a principal at a D.C. communications firm.

Eisenberg was told he needed media training for his work on the Terri Schiavo case, and one of the first things he learned there was he needed to trim his moustache and his eyebrows, he said. Eisenberg was also told to be a little more impertinent, which took some getting used to. “I’m an appellate lawyer. When the judge opens his mouth, you shut up, listen, and then answer,? he said.

Dellums’ media training left Eisenberg impressed, but will it pay off with the voters? You be the judge. Watch the mayoral candidates’ debate when it airs on KTOP Channel 10 on Tuesday at 6 p.m., Friday at 8 p.m. or Saturday at 10 a.m. Then come back and leave us a comment here …

— Matthew Hirsch

It Pays (14 Grand) to Have Friends in Far Places

February 13, 2006

As a fundraiser she’s slowed down, but she’s still far from idling.

Two years after Kamala Harris won her job, and two years before any potential re-election, the San Francisco DA is still managing to pull in some decent donations.

She was a big spender in 2003, when she went through an initial election and then a run-off to unseat an incumbent. That year, she raised about $740,000, and burned through nearly $900,000 — almost three times as much as either of her competitors.

By the end of last year, she’d chipped her debt down to something just north of $70,000, thanks in part to the $135,000 that she raised throughout 2005.

Of those donations, $33,555 came in during the last six months of the year. And about $14,000 of that came from donors in Georgia.

That’s a little puzzling, given that Harris is a Bay Area native (albeit one who went to college in Washington, D.C.) in a locally elected office.

So what had Georgia on her mind — and vice versa?

She knows people who know some more people, according to her campaign manager, Jim Stearns. As he tells it, Harris has worked on some policy-type issues with Paul Howard Jr., the district attorney in Georgia’s Fulton County. So when our DA was out on the East Coast at some point last year, Howard and four other people showed her some real southern hospitality they threw her a fundraiser.

“She’s been spending 110 percent of her time working in the San Francisco office, but when she does travel … she’s just been trying to build her network,? Stearns said.

— Pam Smith

Estrich Rolls in to SF to Sell Clinton. And a Book.

February 13, 2006

Five years ago, Susan Estrich pooh-poohed any thought of Hillary Clinton running for the presidency, calling her a “polarizing? woman who had no chance.

Today, Estrich, a professor of law and political science at the University of Southern California Law School, is one of the New York senator’s biggest boosters, traveling the country to talk up Clinton as the Democrat’s last, best hope to win the 2008 national election.

Oh, and also to sell copies of Estrich’s new book, “The Case for Hillary Clinton.?

Estrich was doing both on Monday during a 35-minute speech, followed by a half-hour’s worth of questions, at San Francisco’s Commonwealth Club of California.

She told a friendly audience of about 50 people that she changed her mind about Clinton after deciding that the former first lady had stepped out of husband Bill’s big shadow and developed into a “grownup, mature woman? of moderate politics. In other words, not a far lefty who wouldn’t have a snowball’s chance of winning.

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Putting the Brakes on Bike Class Action

February 13, 2006

Because of their anti-climactic nature, defense verdicts don’t usually get much attention. But when the stakes are high, a defense verdict is a big win. Attorneys at Gordon & Rees and S.F.’s Phillips, Spallas & Angstadt appeared to get such a win last week against nine young bicyclists in Marin County Superior Court.

S.F. plaintiff attorney Mark Webb had sued Wal-Mart, San Rafael bicycle maker Dynacraft BSC, and insurance adjuster Carl Warren & Co. They were accused of marketing bicycles with faulty quick-release mechanisms, causing the front wheels to fall off and kids to smash their faces into the pavement.

The suit garnered substantial press attention, including a prominent story in the Sunday Chronicle which noted that Webb intended to present photographic evidence of “children ranging in age from 7 to 13 with gruesome, debilitating head wounds and gashes on the face.” The Chronicle story also noted that the Consumer Product Safety Commission had previously fined Dynacraft $1.4 million for other defective bike parts (though not the quick-release mechanism).

Webb asked for $8 million in compensatory damages, plus punitive damages. 

But Phillips, Spallas’ Robert Phillips, who represented Wal-Mart, and Gordon & Rees’ Fletcher Alford, who represented Dynacraft and Carl Warren, persuaded the jury after an eight-week trial that the quick-release mechanisms were not defective.

“For us, the evidence that this was a defect was very, very thin,” juror Fred Reppun told the Marin Independent Journal. “It was the consensus pretty much right off.”

— Scott Graham

Would You Like Justice Chin or Door No. 2?

February 10, 2006

If you were an inmate appealing your criminal conviction to the California Supreme Court, would you like to have Justice Ming Chin participating in the case, or would you rather take your chance on a randomly assigned appellate justice? Oh, and suppose your life depended on the answer?

That was the situation in January, when the Supreme Court notified all litigants that due to Chin’s illness he recently underwent surgery for subdural bleeding the justice would not be able to attend February’s oral argument calendar. Litigants were asked if they would be willing to stipulate that Chin, considered a moderate-to-solid conservative, could listen to tapes of the arguments and participate in the decision. If not, an appellate justice would take his place pro tem, or the case would be continued to the March calendar.

Five of the February cases happened to be death penalty cases. Condemned inmates Richard Boyer and Clifton Perry stipulated to Chin’s participation by tape. But Erik Chatman, Fred Freeman and Johnny Avila did not.

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Silent Lawyers and Other Acts of God

February 10, 2006

Ever seen a roomful of attorneys where nobody had anything to say? That will be the protocol March 10-12 at “A Profession for All Seasons? — a silent retreat designed specifically for members of the legal profession. Father Robert Scholla, a former chaplain at Loyola Law School who now lectures in theology at Santa Clara University, will lead the retreat at a Jesuit retreat house in Los Altos. “By prayerfully attending to our hearts, God’s grace can give one’s life and profession new direction, new energy, new meaning,? the brochure states. 

— Scott Graham

Lockyer: Tribal Joyriding Isn’t State’s Problem

February 10, 2006

Native Americans out for a joy ride without a driver’s license or proper registration have nothing to fear — as long as they stay on the roads of Indian reservations.

On Thursday, the state attorney general’s office declared that laws requiring licenses and registration are civil regulatory rules — not criminal violations — and cannot be enforced on tribal lands.

“Driving without a valid license or a current vehicle registration,” Sacramento-based Deputy AG Daniel Stone wrote, “does not, by itself, significantly threaten physical harm to persons or property, or invade the rights of others — in contrast to such behaviors as driving under the influence or reckless driving, which are prohibited by criminal laws.”

The AG’s opinion was requested by Allan McClain, sheriff of Kings County, a Central Valley county in which census figures indicate Native Americans make up only about 1.7 percent of the 143,000 residents. Federal information shows only a presence by the Santa Rosa tribe.

Opinions by the AG’s office are only advisory, but carry great weight with the courts.

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Ninth Retries Facts to Spring Grandma

February 9, 2006

Federal appeals courts usually give state courts a lot of deference when it comes to the facts. But in a “most unusual case,? the Ninth Circuit U.S. Court of Appeals today (politely) took California’s Second District Court of Appeal to task for upholding a conviction based on scanty evidence.

Shirley Ree Smith was sentenced to 15 years to life after a Los Angeles jury essentially found her guilty of fatally shaking her baby grandson, and the Second District upheld her conviction.

Ninth Circuit Judge William Canby Jr., writing for a unanimous panel, called the case a probable miscarriage of justice.

Canby acknowledged that the Antiterrorism and Effective Death Penalty Act, or AEDPA, constrains federal habeas review of state convictions. Then the U.S. Supreme Court’s Jackson v. Virginia, 443 U.S. 307, puts the question thus: When the evidence is examined in a light most favorable to prosecutors, could anyone rational arrive at guilt beyond a reasonable doubt?

In this case, no. “With all due respect,? the Court of Appeal applied Jackson unreasonably, Canby wrote in Smith v. Mitchell. So the Ninth Circuit directed the lower court to grant a writ of habeas corpus.

With none of the typical signs of shaken baby syndrome, and a prosecution theory that suggested the baby had died of an undetectable tear in his brain stem, “There was simply no demonstrable support for shaking as the cause of death.?

— Pam Smith

Choppy Details of Nominee’s Past Emerge

February 9, 2006

Sandra Ikuta, the new Ninth Circuit nominee, is known more for her studious demeanor and knowledge of environmental regulatory law than her expertise in kung fu. But before going to law school, Ikuta was a mover and shaker in martial arts media.

“She’s quiet, she’s a very private person, very family oriented,? said Ninth Circuit Judge Alex Kozinski, for whom Ikuta clerked. Kozinski performed the wedding of Ikuta and her husband, Ed (a martial arts photographer), after her clerkship was over. Ikuta was not “into extreme sports or anything like that,? Kozinski added. But StanIey Blumenfeld, Ikuta’s former law school classmate at UCLA and a partner with her at O’Melveny & Myers said Ikuta’s journalism master’s and experience on publications like Inside Kung Fu helped them push out a tough issue of the UCLA Law Review.

— Justin Scheck