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Thursday, October 27, 2011

WRONG IS RIGHT

What do you do as an appellate judge when you know the underlying fact on appeal- which was accepted by all parties and the trial judge- is wrong?

If you're Alex Kozinski, you have a little fun. The full coverage by the WSJ is here.

The fact remains that Arias conceded that he violated the order, and defendants didn’t argue otherwise to the district court, which is probably why the district court saw no reason to belabor the point. And this concession amounts to a waiver so that we must deem a violation established for purposes of this appeal even though Arias didn’t actually violate the order.

This raises the unusual question of how we treat a finding of bad faith for a transgression that didn’t actually occur. We conclude that Arias couldn’t have acted in bad faith if he did not, in fact, violate the district court’s order. You can’t have chicken parmesan without chicken; you can’t have an amazing technicolor dreamcoat without a coat; you can’t have ham and eggs if you’re short of ham or eggs. And you can’t have a bad faith violation without a violation.

Kozinski is obviously not from South Florida, because if he was, he would have written "you can't have arroz con pollo without the rice or the chicken..."


The Herald has a big scoop: The State Attorneys are now running the clerk's office!!
Here is a direct quote about how they obtained an a-form in the tragic cases of a Coral Springs police officer arrested for DUI Manslaughter that occurred in the Gables:

As of Wednesday, more than a month after the crash, Coral Gables police declined to release the arrest affidavit, saying it was part of an “open criminal investigation.’’ The Miami Herald was able to obtain the document through the state attorney’s clerk of courts office.

The full article written by Herald reporter Julie Brown is here. Next time you see Ms. Brown, ask her exactly where is the "State attorney's clerk of courts office"? We'd love to know.

Query: Should a reporter for the city's only major news paper have some fundamental understanding of the court system she is covering? Or is that asking too much?
Maybe we'll take a walk down and check with the Miami Herald's NY Times City desk.

See You In Court on our way to the SAO's clerk of courts office, where it's apparently an a-form jamboree.


13 comments:

newer pd said...

Can someone fill me on the famous 2003 Bondsmen wars.

Anonymous said...

We should have a regular spot the typo Herald contest.

CAPTAIN said...

THE CAPTAIN REPORTS:

BREAKING NEWS .... 9TH CIRCUIT FEDERAL COURT ABOLISHED .....
(from the ABA Journal)

You read that correctly. If it is up to a "President" Rick Santorum, the 9th Circuit would be no more.

Some of the other Republican candidates for President have weighed in on their feelings about the federal courts:

Six out of eight candidates for the Republican presidential nomination are backing limits on the federal judiciary, ranging from an end to lifetime tenure to impeachment to curbs on jurisdiction.

The candidates are criticizing the judiciary even though a majority of judges, including those on the Supreme Court, have been appointed by Republican presidents.

Which candidates are shying away from criticism? According to the stories, Mitt Romney hasn’t joined his opponents in far-reaching criticisms. Jon Huntsman has also refrained from attacking federal judges.

In one instance, Romney told a conservative forum in South Carolina he doesn’t want to create a constitutional crisis over abortion. Three candidates took the opposite tack, endorsing legislation seeking to overturn Supreme Court rulings finding a constitutional right to abortion. They are Herman Cain, Michelle Bachmann and Newt Gingrich.

The candidates also tout these ideas:

• Gingrich, Bachmann and Ron Paul back limits on the kinds of cases that can be decided by federal courts. Bachmann and Paul, for example, would like to bar courts from considering cases involving same-sex marriage.

• Rick Perry has endorsed term limits for federal judges, and has floated the idea of allowing Congress to override Supreme Court decisions by a two-thirds vote.

• Rick Santorum would like to abolish the San Francisco-based 9th U.S. Circuit Court of Appeals. Gingrich, on the other hand, suggests the court could be punished through budget cuts.

• Gingrich would consider impeaching judges for their rulings and would subpoena federal judges so they could explain their decisions.

Cap Out ....

Rumpole said...

That ain't no typo. That's writing about a subject with a marked degree of ignorance.

Rumpole said...

They can't do away with e 9th circuit. It's way too amusing.

Anonymous said...

Don't blame the author of the story, blame the editor. Any one person can make a quick/simple mistake, but it takes a real numb-nuts to approve another person's mistake.

Anonymous said...

It's so unreal the number of mistakes, typos that a major American newspaper makes on a daily basis. The editor should be fired.

Anonymous said...

haha. way too funny.

Anonymous said...

Thank God the SAO is now running the Clerk's office. Up till now I had the impression that no one was running it.

Anonymous said...

I could've told you a long time ago that the State Attorney runs the clerk's office.
I try calling a JA for a motion date. The date's in about two-three weeks. (has gotten better - used to be at least 4 weeks)
But...
I get a phone call from the State on Thursday evening telling me they put a case on calendar for the next morning to ask for a continuance for a case that's going to trial on Monday.
Why the discrepancy?

Anonymous said...

Anyone see today's Herald story about Michael Tein, the former federal prosecutor turned defense attorney?

For those of you who know him, was he as big a liar when he was a federal prosecutor as he is now? Maybe he honed his lying and scheming skills while a federal prosecutor.

Anonymous said...

Miami police officer running late to his off-duty job is doing 120 mph down the Turnpike with an FHP patrol car chasing him, lights and sirens. The chase goes on for 7 minutes until he is finally pulled over and taken out of his car at gunpoint.

He was charged with reckless driving.

I guess being a cop is an affirmative defense to fleeing and eluding.

http://www.miamiherald.com/2011/10/28/2477365/miami-officer-arrested-at-gunpoint.html

Anonymous said...

The SAO just thinks it does.