Patterico's Pontifications

5/1/2004

Patterico Forces Amendment to High-Profile Ninth Circuit Opinion

Filed under: Court Decisions — Patterico @ 9:43 pm

Patterico has gotten results once again. This time, he has forced an amendment to a high-profile Ninth Circuit opinion.

Regular readers will recall that the Ninth Circuit filed an opinion on April 19, 2004 striking down a California “Three Strikes” sentence as unconstitutional. That same day, I observed on this blog that the court had made a fundamental error regarding the maximum potential sentence for a felony conviction for petty theft with a prior. I also noted that the panel had criticized the parties and the sentencing court for supposedly having gotten this point wrong — although, in fact, it was the panel that had gotten it wrong.

The following morning, my post about the Ninth Circuit’s errors was linked on Howard Bashman’s invaluable “How Appealing” blog. Within hours, the post got multiple hits from the federal courts — including from the Supreme Court of the United States. (I have to tell you, it’s pretty cool to see that on your Site Meter!)

On April 27, 2004, the Ninth Circuit panel quietly amended its opinion to conform to Patterico’s criticisms. (See the extended entry for details.)

I can’t claim to be the first blogger who ever prompted a change to a published federal appellate decision. That honor belongs to Howard Bashman, for an error noted in this post regarding a faulty citation in a Fifth Circuit opinion. (The correction was noted in this post.) I may be the second such blogger, but I’m clearly not the first.

However, when Bashman noted the error, the Fifth Circuit judge who had authored the opinion graciously wrote Bashman to thank him for having caught the error. I have received no such e-mail. So, if I have any claim to a “first,” it may be that I am the first blogger who ever prompted a change to a published federal appellate decision where the author of the opinion didn’t bother to thank the blogger for the correction. (Perhaps that is due to the acerbic manner in which I pointed out the error — although I doubt it.)

Don’t mention it, guys. Oh, that’s right — you didn’t.

The details regarding the error are available in the extended entry below.

P.S. A correspondent writes to ask whether the word “forced” in the title of the post is the right word. Technically, no — of course. If the judges from the Ninth Circuit panel had wished to leave this blatant error on the books, they certainly could have done so. I recognize this.

Then why did I use the word “forced”? The word is consistent with the sort of mock chest-beating tone that I sometimes generally adopt when I discuss the power and influence that I like to pretend this blog wields. (Examples here and here.) (My wife continually reminds me that this tone — which I intend as ironic and humorous — is difficult to distinguish from a truly arrogant and self-aggrandizing tone. She’s right — but usually, I just can’t help myself.)

UPDATE: Thanks to Howard Bashman for linking to this post. I hope new visitors will overlook the faux self-congratulatory tone of the post, and bookmark the site!

UPDATE x2: Thanks also to Glenn Reynolds for linking to this! There’s nothing like having thousands of people reading one of your more obnoxious posts to make you think: hmm, maybe my wife is right — maybe I should tone it down.

Anyway, I hope you all enjoy the site.

Extended Entry

Here are the details of the correction. As I noted in my original post, the panel erroneously observed:

Were the court to strike one of [the defendant's] priors, his maximum sentence for the instant offense would have been “twice the term otherwise provided as punishment for the current felony conviction,” § 667(e)(1), or two years in prison. See § 666 (petty theft with a prior theft-related conviction punishable by one year in county jail or state prison).

(All emphasis in this post is mine.)

As I noted in my post, the maximum sentence for a felony petty theft offense is in fact three years in state prisonnot one year. This is a function of Penal Code section 18, which provides that such felonies are

punishable by imprisonment in any of the state prisons for 16 months, or two or three years . . .

The amended opinion amends the above quotation to reflect the fact that the maximum sentence is three years — just as I said. Also, the opinion now contains a reference to Penal Code section 18 — the very section I cited:

Were the court to strike one of [the defendant's] priors, his maximum sentence for the instant offense would have been “twice the term otherwise provided as punishment for the current felony conviction,” § 667(e)(1), or six years in prison. See §§ 18, 666.

Moreover, in the original opinion, the panel went on to say in a footnote (footnote 4):

The parties and the sentencing court appear to have erroneously believed that Ramirez’s sentence would be six years if the court struck one of his priors. This was likely based upon an incorrect application of § 667(a)(1), which provides for a five-year sentence enhancement for a person presently convicted of a serious felony who has previously been convicted of a serious felony. However, Ramirez would have been ineligible for this enhancement because petty theft with a prior theft-related offense is not a “serious” felony under § 1192.7.

In my post, I observed that this footnote was completely off base, as the court was incorrectly speculating as to the reasons that the parties got the maximum sentence wrong — although they hadn’t, because the maximum is indeed six years. The amended opinion omits former footnote 4 entirely.

In my post, I also noted that the panel opinion started its intrajurisdictional analysis (Part IV.B) with a reference to the incorrect maximum sentence:

First, it is worth noting that but for the Three Strikes enhancement, Ramirez would have been subject to a maximum sentence of one year in prison or county jail for his petty theft with a prior theft-related conviction. § 666.

I observed that assertions that are “worth noting” in a published opinion are worth double-checking to make sure you’re right — especially when you know that the opinion will be closely scrutinized.

The amended opinion corrects this quote (again with a reference to Penal Code section 18) to state:

First, it is worth noting that but for the Three Strikes enhancement, Ramirez would have been subject to a maximum sentence of one year in county jail or up to three years in prison for his petty theft with a prior theft-related conviction. §§ 18, 666.

I regret that the other problems I noted with the opinion were not corrected. These, however, were not blatant factual errors, but rather analytical errors that are not as objectively and demonstrably incorrect as the errors I have just discussed. Nevertheless, I firmly believe that these analytical errors are every bit as mistaken as the panel’s errors regarding the maximum sentence. Unfortunately, due to Bill Lockyer’s decision to abandon any further appeals in this case, we will never see these analytical errors corrected.

24 Responses to “Patterico Forces Amendment to High-Profile Ninth Circuit Opinion”

  1. :-) Very cool — congrats!

    PG (712b8c)

  2. Well, if you got a hit from SCOTUS, is it not possible the Supremes may be looking to grab the case of their own accord? Not an expert on Supreme Court procedures, but I would be surprised if they don’t have the power to summarily reverse a decision they disapprove of even if Lockyer doesn’t take it up. Or maybe I’m totally off base.

    Trapeze (54752b)

  3. If last term taught us anything, it’s that we can’t necessarily count on this Supreme Court to reverse bad decisions. I think Lockyer’s decision not to appeal the case further was based in part on a calculation that an appeal could result in a bad decision from the Supreme Court. After all, the facts of this case are pretty sympathetic for the defendant. If presented with this appeal, the squishy middle at the Supreme Court could stretch the law to uphold the decision.

    Also, I wouldn’t read too much into one guy from the Supreme Court looking at my site. Who knows if it was a Justice, a clerk, or a janitor? It was probably a curious law clerk taking a break from his or her backbreaking schedule of research and writing.

    Patterico (f7b3e5)

  4. Gee, I wonder why you weren’t thanked like Bashman. Perhaps, because Bashman wasn’t so rude about it all. Go compare your post to Bashman’s and I think you will see why. . . . .

    Jarvis (not Jeff) (3cb6e4)

  5. Well, there’s enough rudeness to go around.

    I fully acknowledge that I was not polite when I noted this error the first time.

    I made it clear that my annoyance stemmed from the haughty attitude of the panel judges, who had rudely assumed that the parties were wrong about the maximum sentence — without even asking the parties their reasons for their position.

    And you, Jarvis-not-Jeff, were rude to me in a comment to my first post, when you mocked me for supposedly not noticing Lockyer’s refusal to settle the case. (In fact, I had noticed this, and had suggested that the case be settled by the party with authority — the San Bernardino D.A.) Twelve of your thirteen question marks in that comment were designed to drive home how wrong I was — even though I wasn’t.

    It’s bad enough to be rude, but it’s worse to be both rude and wrong — a distinction you share with the panel judges.

    Patterico (f7b3e5)

  6. It is to your credit that you caught the error, but it is to the panel’s credit that they acknowledged it. The Ninth Circuit judges are usually eager to correct obvious errors. I once received an order with a clearly incorrect rationale for the ruling. I called the motions attorney and it was corrected by the panel that day, and I got an apology from the motions attorney!

    The Ninth Circuit gets a lot of stick in the press, as some of the judges have a unique view of the law. However, most of them take their obligation to be correct extremely seriously, and indeed more seriously than other appellate courts. The state appellate courts, particularly in California and Washington State, will place flagrant legal and factual errors in their opinions and absolutely refuse to alter them once pointed out.

    Cy Borg (d6cdd4)

  7. I’ll agree with you: good on them for at least being willing to correct their errors.

    Patterico (f7b3e5)

  8. Awsome! Keep on ‘em Patterico! Somebody has to…

    Justin Levine (e2e97f)

  9. Another easy example of how complex modern life has become. The IRS doesn’t know its own regs, the LEOs don’t know whats illegal and whats not. The courts don’t know their own laws. Typical.
    Surprised they noticed to correct it, but it doesn’t address the core problem.
    SIX pieces of paper, stickers, tags, to drive down the road? Two licenses and a tag to hunt a duck? Save IRS records for seven years? Hellllloooo??

    robert (4ad5b8)

  10. But yeah, you DID FORCE ‘em! You held them down until they cried “uncle”! You grilled their stomachs! You scattered their s**t in the wind! Way to go! Beattabutta! You ROCK!

    robert (4ad5b8)

  11. Patterrico and the 9th Circuit smack-down
    As the author notes, this isn’t the first time a blogger has caused judges to correct a federal opinion. (That honor belongs to Howard.) But it’s yet another example of the influence of blogs in the legal profession, a Good…

    tins ::: Rick Klau's weblog (5aa475)

  12. Six Pix from SoCal
    Six sites that drew my attention today: Does the Ninth Circuit read Patterico? Maybe. XRLQ takes a poll on your knowledge of human decency. CrimLaw has some advice: “If you steal money from a bank take the dye-pack out before…

    The Southern California Law Blog (f2a7ef)

  13. Patterico Forces Amendment to High-Profile Ninth Circuit Opinion
    It’s always nice to see a blogger be able to do something worthwhile. While I tend to disagree somewhat with Patterico’s politics, I read his blog regularly. So it is with great pleasure I’m able to link to “Patterico Forces…

    JohnHays.net (6ce825)

  14. CHECKING THE 9TH CIRCUIT
    Check this out:Patterico Forces Amendment to High-Profile Ninth Circuit OpinionPretty cool. I think the speed to publication/constantly updated nature of blogs coupled with the fact that the Judges (or more likely clerks) read certain ones makes for a …

    Begging To Differ (150107)

  15. BLOGGER GETS 9TH CIRCUT TO CONCEDE ERROR, AMEND OPINION
    This is wicked cool. Way to go, Patterico!…

    The Spoons Experience (5ac6f4)

  16. Around the blogosphere
    You never know what you might find on the blogosphere. Here’s some examples: Patterico tells of forcing an amendment to a Circuit Court decision. Grow a new tooth? bastardsword has the details. You think YOUR day was bad? Look what…

    democrats give conservatives indigestion (02c0b8)

  17. Like Omega 3 to Cholesterol
    Y’know, the same thing happened to me a couple of months back — except with my post, instead of forcing an amendment to a high-profile Ninth Circuit opinion, I was able to convince Oliver Willis to give up deviled eggs…

    protein wisdom (3dbf9a)

  18. Blawgers Making a Difference . . .
    Thanks to Glenn Reynolds of InstaPundit for this pointer: A blogger has pointed out an error in a judicial opinion and gotten the Ninth Circuit to amend the opinion to correct the error. Interestingly, this isn’t the first time that’s…

    Benefitsblog (d17a0c)

  19. Submitted for Your Approval
    First off…&nbsp any spambots reading this should immediately go here, here, here, and here.&nbsp Die spambots, die!&nbsp And now…&nbsp here are all the links submitted by members of the Watcher’s Council for this week’s vote. Council links:This Is …

    Watcher of Weasels (07c6c2)

  20. a good point about writing
    Patterico writes just like I do: incisive and witty with enormously clever word-play. Thoughtful, yet exciting to read. He, in fact, may be the second best writer on the web, after me of course. And certainly, a few oblivious dolts will misread the h…

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  21. Tuesday, 05-04-2004
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  23. Watcher Council Update
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