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June 2006
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Immigration Guidelines?

This morning's New York Times reports disparities in the rate at which immigration judges grant asylum to immigrants seeking to remain in the United States. The report reminds me of complaints about disparities in federal criminal sentencing years ago.

One Miami judge denied asylum in almost 97 percent of cases in which applicants were represented by counsel. By contrast, one New York jurist granted asylum in almost 91 percent of cases. An applicant from Afghanistan or Myanmar has a far greater chance of being granted asylum than does an applicant from El Salvador.

The results are disturbing. Just last November, Seventh Circuit Judge Richard Posner opined that the handling of asylum cases has "fallen below the minimum standards of legal justice." In January, Attorney General Alberto Gonzalez called for a comprehensive review of the immigration court system.

Whatever the outcome of this review, let's hope the result is not another set of guidelines. The federal sentencing guidelines have transformed federal criminal work into a bizarre calculus worthy of Jeremy Bentham, where something like utility is human affairs is calculated with pen and paper. The result has been a boon to appellate lawyers, and a nightmare for clients, many of whom are now whisked off to prison because Congress insists.

Check Out New Blog Page

My Westlaw salesman, Jeff Manfredonia, is a genius. He could probably talk me into purchasing shares of the Brooklyn Bridge.

He tells me my law firm's web site is the first in Connecticut to have a blog embedded within it. I do not know whether I am merely the first to do so under the aegis of Westlaw, or whether it is, in fact, the first. I seem to recall not long ago reading about another lawyer who created a blog page months ago.

In any case, here it is. Comments?

Baron Von Chatignystein

I confess wonder and awe at the recent decision of the Judicial Council of the Second Circuit. They have cleared United States District Court Judge Robert N. Chatigny of all wrongdoing, and they have even blessed his faulty memory.

Chatigny is chief judge of the District of Connecticut. He presided over a piece of Intense litigation about whether a convicted serial killer named Michael Ross could waive the right to habeas petitions filed on his behalf and simply submit to death. Ross had private counsel, T. R. Paulding, Jr., to advocate for his right to chart his own destiny.

The criminal defense bar rallied to save the man's life: Opposition to the death penalty trumped any sense of Ross' autonomy and dignity. Lawyers knew best.

But the courts rejected every effort to compel Ross to litigate claims chosen for him by his lawyers. On the eve of death, Chatigny stepped in and in a sua sponte telephone conference threatened to have Paulding's law license if something were not done to derail the execution.

A puzzled member of the Attorney General's Office asked the judge whether he had a bias in the case.

No, none, the judge said.

It was later learned that the judge had represented Ross, filing an application for permission to file an amicus brief on Ross' behalf for the Connecticut Criminal Defense Lawyers Association in 1992. He never filed the brief, but did have communication with the client and was copied on pleadings in the case for some time. Apparently, the judge simply forgot about all that. Even more remarkably, the Second Circuit panel reviewing Chatigny's conduct accepted failed recollection as an excuse in this case. No appearance of impropriety if the judge simply forgets.Chatigny Cleared, Long Live The King

Chatigny runs an inquisitorial courtroom. He is an active judge who thinks he knows better than the litigants and their counsel. Well before the Ross case, his tendency to step in and to try to take control of a case was evident on the civil side. Lawyers statewide whisper about it.

Now the Second Circuit has endorsed this activism, and rather than trim the judge's sails, the council has all but encouraged him to play king of the courtroom.

Perhaps it was too much to expect the judicial branch to police itself here. I mean did we really expect judges to discipline one of their own for grabbing the reigns of power in a case?  As the circuit panel wrote, judges aren't mere umpires; they get to impose their vision of the interests of justice.

I am not buying the Platonic fiction that the robe-wearing caste has some inside vision of the good, true and beautiful. In my view, they have a hard enough time calling simple balls and strikes. But I am mere flesh and blood in the form of a trial lawyer. 

Welcome, Connecticut, to our new judge, Baron von Chatignystein. His courtroom is a laboratory in which he feels free to do as he pleases with the endorsement of his superiors. I suppose I should be grateful he recuses himself from my cases, but I fear that the message from his case will embolden other judges to experiment broadly with their private conceptions of justice.

I wonder whether the Senate Judiciary Committee consider the case. It should. Or doesn't the Senate care about judicial activism?


Fourth Amendment Violation in Dog Killing Case

In case you were ever wondering under what theory you would sue a police officer for killing your pet:

The Fourth Amendment guards against unreasonable searches and seizures. Graham v. Connor, 490 U.S. 386, 395 (1989). A dog is considered property for Fourth Amendment purposes. Lesher, 12 F.3d at 150-51. “A seizure of property occurs when there is some meaningful interference with a person’s possessory interests in that property” Id. at 150. The question before us is whether this seizure was reasonable under the circumstances.

In Andrews  v.  City of West Branch (here), former police chief Dan Knight was chasing a stray dog.  When he saw a dog that looked like the stray he was chasing, he pulled out his gun and shot the dog.  Unfortunately, he shot the wrong dog.

More disturbing is that the dog he killed was in the owner's backyard when he shot the dog.  Why would Dan Knight open fire into someone's backyard?  In any event, a split panel held that a jury could find him liable under Section 1983.

Here's an interesting fold in the case: The dog's owners are only entitled to the fair market value of their dog, i.e., they aren't entitled to emotional distress damages.  I imagine they could purchase a "replacement" (no dog can ever be fully replaced) dog for, at most, $250.

Why then did the city spend so much money defending this action?  Not only did they likely spend thousands of dollars in legal fees to defend a case with tiny exposure, they will also be required to pay the plaintiff's legal fees - as there is a fee-shifting statute applicable to civil rights cases.

So we have a stupid cop and stupid city officials.  Remind me to stay out of West Branch, Iowa: Home to Dog Killers and Spendthrift Politicians.

Charging People to Comment

This might seem like a whacky idea, so bear with me....

Today, after deleting a dozen-or-so pieces of comment spam, I had this thought: Could I contractually bind comment spammers into paying money for leaving comments?  After all, comment spam is placed as a free form of advertising. (Put aside the issue of whether the spammer would be judgment proof.  I just want to know if I could charge them for leaving spam.) 

Assuming I could craft language that would catch comment spammers (say, by noting that any comments left for a commercial purpose cost money), would such a contract be enforceable?

Covering Up CIA Torture

Make the leak the story.  This is always the tactic people who want wrongdoing to go unpunished take. 

When memos proved that Senate Democrats were deliberately delaying judicial confirmation proceedings in an effort to manipulate the outcome of the pending cases, they made the leak of the memos the story.  "Err, it doesn't matter if what the memos said are true.  What matters is that someone leaked the memos!" Memogate.  Sadly, the strategy worked.

If you'd think that conservatives, burned in Memogate, would have risen above this, you'd be very wrong.  Just look at this post from Mike Rappaport:

We live in a pretty strange world.  There are leaks of national security information, such as the existence of secret prisons in foreign countries, from the CIA and other places.  While some people are hostile to the administration, it is clear that, whether you agree with the Administrator or not, this type of information needs to be kept secret to protect agreements with other governments or for other reasons.  Yet, the Administration has been unable to stop the leaks.

Putting aside Rappaport's spin (they aren't secret prisons, they're gulags, stupid), I'm curious what what is worse: That the CIA is kidnapping American citizens to be tortured, or that someone exposed the illegal acts?

Mike Rappaport, who doesn't seem bothered by the gulags, must have missed this important lesson of childhood: Don't tattle when your sibling misses curfew by fifteen minutes, but do tell your parents about the crack pipe that fell out of her pocket!

Only someone morally blinded by political hackery could consider exposing gulags to be worse than the existence of the gulags.  What a shame.