Patterico's Pontifications


Dafydd: 77 Shenanigans

Filed under: Court Decisions,Politics — Dafydd @ 11:29 pm

Hello, folks, it’s me again.

Welcome back, Dafydd.

Did you miss me?

Um… who were you, again?

Ahem. Those of you following the endless kerfuffle over Proposition 77, the on-off-on again ballot measure to take redistricting out of the hands of the pols and plop it into the mits of a gaggle of “Special Masters” (I’m abruptly reminded of the Felix the Cat villain the Master Cylinder, and his sidekick Rock Bottom) will be interested in this newest twist.

Daniel Weintraub posted the following on his excellent Bee-blog California Insider:

Prop. 77 chicken scratch

This amazing document, posted on the Secretary of State’s web site, has become the subject of a legal dissing match between Attorney General Bill Lockyer and supporters of Proposition 77.

Lockyer’s lawyers and spokesman have claimed that the document, which is almost illegible through a series of edits and proofreading remarks scrawled all over it [having written and edited many documents, I had absolutely no difficulty reading it — DaH], is a copy of the initiative circulated by proponents of Prop. 77 to gather signatures for their measure. He’s now citing the mess as another reason why he refuses to write a new title and summary for the version of the initiative that was circulated to voters.

Ted Costa, the chief sponsor of the measure, says the document is not what he circulated. He says he is not sure where the document came from but he insists his group circulated a clean, typewritten copy of its initiative, albeit a slightly different version than the one submitted to Lockyer for review. [Once again calling myself as a witness, I actually read and signed the original petition when it was circulated at my local Ralphs supermarket… and I can guarantee it was a clean, typewritten copy with no holographic edits… because if it had any, I would never have signed it. — DaH]

Anyway, it’s worth taking a peek at the document to see what they are fighting over.

UPDATE: An alert reader (aren’t they all?) points out that all of the initiative meaures have at least a few chicken scratches on them. Indeed, these appear to be marks from the legislative counsel’s office. Some are printing instructions, like spacing for paragraphs, while others are small changes in code sections and other legal matters. Beyond that, the Prop. 77 version also includes handwritten changes that reflect the now famous differences in the versions submitted to the AG and circulated to the voters. It’s still a mystery though, as to who wrote those changes in. Costa says it wasn’t him.

What nobody seems to have figured out yet is that the document with the so-called “chicken scratches,”which comes from the California Secretary of State’s website, is in fact exactly the same as the document posted on the website of Attorney General Bill Lockyer… that is, the printed portion of it is identical to the AG’s version.

But the holographic edits — what Weintraub calls the “chicken scratches” — actually would, when implemented, make this document instead identical to the version available on the website of Ted Costa’s group, Fair Districts Now, which both sides stipulate is the version that was circulated as a petition. (Well, nearly identical; some trivial corrections on the Secretary of State’s version do not appear on either of the other two versions.)

That is, the Secretary of State’s document is actually a set of instructions for turning the Attorney General’s version into the version actually circulated by Fair Disctricts Now.

Let’s pause to ponder that a moment. The hand-edited version contains a few corrections that are not implemented on either “official” version, as I said: for example, in several places, written-out numbers like “twenty-four” are crossed out, and the equivalent numeric version (“24”) is handwritten; also, in several places where a code section is referred to as, e.g., “subdivision (c) (1),” it is hand-corrected to “paragraph (1) of subdivision (c).” But other than these trivialities, all of the differences appear to be covered by the holographic corrections on this document.

On the first page of the Secretary of State’s document is a brief handwritten note, which appears to me — I am not a trained handwriting expert — to be in the same handwriting as the later corrections (for example, the lowercase o in “Prop 77” has an identifiable angle in the two-o’clock position also found in the edits). The note says “Prop 77” at the top of the first page, with “#1072 Jeff to SOS 7-1,” followed by a set of initials; I can only identify the first letter of the initials… it’s a J (for Jeff, I assume — big help). The second letter could be a D or an O.

The three possibilities are: (1) somebody at Fair Districts Now read the AG’s version, realized it differed from the circulated version, and made corrections for the Secretary of State to implement; (2) somebody at the Secretary of State’s office had both documents, noticed the discrepencies, and made the corrections, routing the hand-edited document to his boss; or (3) somebody in Bill Lockyer’s office spotted the differences and wrote corrections, so that the Secretary of State’s office would be able to correct the text.

But in any event, the critical point is that, according to the date handwritten on the edited document, these corrections were in the Secretary of State’s office a full week before the Attorney General filed suit, on July 8th, to remove Prop 77 from the ballot because the version he had did not match the version that was circulated for signatures.

The Secretary of State had all the necessary corrections in hand to turn the AG’s version into the circulated version a week before the AG filed his lawsuit and nearly three weeks before Judge Gail Ohanesian agreed, on July 21st, to remove the measure from the ballot. Did Lockyer mention at trial that they already had the corrections before he even filed suit? Clearly, somebody took the trouble to go through the two versions line by line and write the corrections that would be necessary to make the AG’s version identical to the circulated version… so why did that somebody not simply make those corrections himself, thus averting the AG’s lawsuit and keeping Prop. 77 on the ballot for voters to decide?

But perhaps I just answered my own question.

But Who Will Guard the Gatekeepers?

Filed under: Blogging Matters — Patterico @ 10:09 pm

It’s inside blogball, to be sure, but Gerard Van Der Leun has a good piece on gatekeepers in the blogosphere (Instapundit being the prime example).

Judges on Soapboxes

Filed under: Civil Liberties,Constitutional Law,Judiciary,Terrorism — Patterico @ 9:23 pm

I’ve had it with judges on soapboxes. Let me belatedly express agreement with Dafydd ab Hugh in his discussion of the sentence given the Millennium Bomber.

Until the judge opened his mouth, I believe that it would have been possible to remain agnostic on whether the sentence was proper. Yes: 22 years for what he planned to do is clearly inadequate. But cooperation on terrorism can be important, and the guy did provide cooperation for a period of time. Most of us commenting on his sentence don’t really know what he might have helped prevent. Even given that he stopped cooperating at some point, the cooperation he did give is probably worth something.

In the abstract, my kneejerk reaction is that the benefit given should be something like a life sentence rather than a death sentence. But apparently our laws aren’t that tough, and he wasn’t facing that much time.

So, depending on various factors, reasonable minds might differ as to what the appropriate sentence should be.

But it’s hard to trust that the judge got it right when the judge feels the need to get up on his soapbox and give a chest-beating diatribe about how the judicial system works, and we don’t need to do what we’re doing at Gitmo:

I would like to convey the message that our system works. We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.

I would suggest that the message to the world from today’s sentencing is that our courts have not abandoned our commitment to the ideals that set our nation apart. We can deal with the threats to our national security without denying the accused fundamental constitutional protections.

Despite the fact that Mr. Ressam is not an American citizen and despite the fact that he entered this country intent upon killing American citizens, he received an effective, vigorous defense, and the opportunity to have his guilt or innocence determined by a jury of 12 ordinary citizens.

Most importantly, all of this occurred in the sunlight of a public trial. There were no secret proceedings, no indefinite detention, no denial of counsel.

The tragedy of September 11th shook our sense of security and made us realize that we, too, are vulnerable to acts of terrorism.

Unfortunately, some believe that this threat renders our Constitution obsolete. This is a Constitution for which men and women have died and continue to die and which has made us a model among nations. If that view is allowed to prevail, the terrorists will have won.

No, judge. If the terrorists are allowed to go free and kill us, then the terrorists will have won.

I understand pride in our criminal justice system and the rule of law. But, judge, the procedures at Gitmo come within our system of laws. The Administration is proceeding according to the law as determined by the Supreme Court.

So we don’t need your moralizing. You give the impression that you are more interested in grandstanding for the elite media than in protecting our country. And, frankly, that very moralizing causes many of us to question whether your sentence was proper.

Finke’s Unserious Diatribe on Kinsley

Filed under: Dog Trainer — Patterico @ 8:50 pm

According to Nikki Finke, Michael Kinsley was no good because he was too much of a leftist:

[L.A. Times editor John] Carroll, just as East Coast–centric as Kinsley, hired him no doubt because of his national rep. But at what cost? The LAT was hemorrhaging conservative subscribers after that Schwarzenegger sexual-harassment probe was published on the eve of the gubernatorial recall election, yet Carroll only fed that anger with red meat in the person of a legendary lefty.

Also according to Nikki Finke, Michael Kinsley was no good because he wasn’t enough of a leftist:

Carroll also overlooked that Los Angeles has long been ground zero for the progressive movement. It probably never occurred to him that he’d disappoint this constituency by hiring Kinsley. That’s because the one-time New Republic and Slate editor brought to the party an old-school liberal penchant for placing witty banter ahead of serious argument. An example is that recent Kinsley-penned LAT commentary downplaying the significance of the so-called Downing Street Memo concerning the timing of the decision to go to war with Iraq and the Bush administration’s distortion of the related WMD intelligence. He had the arrogance and audacity not just to pooh-pooh the memo’s contents but also to poke fun at the progressive movement for pumping up the volume surrounding it. “I don’t buy the fuss. Nevertheless, I am enjoying it, as an encouraging sign of the left’s revival. Developing a paranoid theory and promoting it to the very edge of national respectability takes ideological self-confidence,” Kinsley ridiculed.

Rush Limbaugh couldn’t have been more dismissive.

Although the second quote follows directly on the heels of the first, Finke doesn’t appear to register the contradiction. And the rest of the piece is similarly long on potshots and short on insight.

I didn’t think Kinsley was perfect by any means as editorial and opinion editor. But he pioneered some real innovations at The Times. He deserves better than to be criticized by an unserious piece like this one.

P.S. Finke declares the end of the “Outside the Tent” feature:

One of his few editorial successes, inviting the LAT’s most vocal and more articulate critics to have at the institution they love to hate, proved sadly short-lived.

This is the first I’ve heard of that. I am e-mailing Bob Sipchen to ask whether Finke is right about this.

UPDATE: She’s wrong.

Radley Balko on Jury Nullification

Filed under: Law — Patterico @ 8:11 pm

Radley Balko says of jury nullification: “Not only is this your right as a juror, some would say it’s your obligation.”

And some would say it’s jury misconduct.

In a competent judge’s courtroom, all jurors are asked if they are willing to follow the law, regardless of whether they agree with it. They must answer this question in the affirmative or they cannot sit as jurors. And they must answer this question under oath.

How would you answer that question, Radley Balko? Would you lie under oath to protect what you believe to be your “right” and “obligation” to disregard the law?

UPDATE: I’ll have much more on this in coming days. I see a parallel between nullification and judicial activism. Both are “doing what’s right” at the expense of the law — and as such, both pose a similar peril to the rule of law.

UPDATE x2: In my promised post I will address, among other things, Balko’s statement:

In fact, the Supreme Court has since repeatedly upheld the doctrine of nullification. In 1952, for example, the Court found that “juries are not bound by what seems inescapable logic to judges.” And in 1972, that “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”

“In fact,” that latter quote is not from a Supreme Court case, but from a case decided by the District of Columbia Circuit Court of Appeals. (U.S. v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).) That case contained plenty of warnings concerning the dangers of nullification, and held that juries need not be instructed that they have a power to nullify. The other case, Morissette v. United States, 342 U.S. 246 (1952), does not read to me as an affirmation of juries’ authority to nullify, just a recognition that they have the power to do so (which I don’t dispute). More in my upcoming post, perhaps over the weekend.

UPDATE x3: For those who still don’t get it, let me quote some language from the California Supreme Court:

Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law. As one commentator has noted: “When jurors enter a verdict in contravention of what the law authorizes and requires, they subvert the rule of law and subject citizens–defendants, witnesses, victims, and everyone affected by criminal justice administration– to power based on the subjective predilections of twelve individuals. They affect the rule of men, not law.” (Brown, Jury Nullification Within the Rule of Law, supra, 81 Minn. L.Rev. at pp. 1150-1151, fn. omitted.) A nullifying jury is essentially a lawless jury.

We reaffirm, therefore, the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. A juror who is unable or unwilling to do so is “unable to perform his [or her] duty” as a juror (§ 1089) and may be discharged.

People v. Williams (2001) 25 Cal.4th 441, 463.

Got it?

UPDATE x4: I’ve written Radley to tell him that the 1972 quote is not from a Supreme Court case. Hopefully he will do the right thing and get a correction appended.

In Case Anybody Was Wondering . . .

Filed under: General — Patterico @ 12:28 pm

I am not the Lt. Col. mentioned in this story. Nor he is any relation of mine, as far as I know. (Same goes for Glenn and Amber.)

More One-Sided Coverage of the Documents Non-Issue

Filed under: Dog Trainer,Judiciary — Patterico @ 7:25 am

This morning’s L.A. Times article on the Roberts documents controversy, Struggle Over Access to Roberts’ Memos Intensifies, makes a couple of jaw-dropping assertions. First:

Senate Democrats said they found that assertion [the Bush Administration claim of privilege] unusual, arguing that attorney-client privilege was a legal doctrine covering courts, not Congress.

Really? So if I say something in confidence to my lawyer, Congress can issue a subpoena to my lawyer and force him to disclose it? That’s a new one on me. And what do the legal experts say about that?

We aren’t told. Apparently nobody asked. (Or did they — and just not like the answer?)


The question of how much access Congress should have to executive branch documents is a long-running debate in legal circles, and there is no consensus on whether attorney-client privilege can be invoked for government lawyers.

Whaddya mean there is “no consensus” as to whether attorney-client privilege can be invoked for government lawyers? Why — because Democrats refuse to recognize longstanding principles of law?

I already linked Beldar’s post on this, but perhaps it’s worth quoting his case law:

Courts, commentators, and government lawyers have long recognized a government attorney-client privilege in several contexts. . . Although the attorney-client privilege traditionally has been recognized in the context of private attorney-client relationships, the privilege also functions to protect communications between government attorneys and client agencies or departments, as evidenced by its inclusion in the [Freedom of Information Act], much as it operates to protect attorney-client communications in the private sector.

Attorney-client privilege can be invoked for government lawyers — period. Yet The Times says there is no “consensus” on that question. If the Democrats deny that the world is round, does that mean there is no “consensus” on the issue?

Again, no expert is consulted on this issue in the Times article. Curious.

And so the one-sided coverage continues . . .

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