The Brief

[LACurry]

Jane, I don't know if the Washington case has anything to do with Delucchi because I never saw it? Have you seen a link for it somewhere? If so let us know please. Usually the judges name is at the top or on the very last page of motions and briefs

[jane]

Jane, I don't know if the Washington case has anything to do with Delucchi because I never saw it? Have you seen a link for it somewhere? If so let us know please. Usually the judges name is at the top or on the very last page of motions and briefs

My mistake. I thought this one on your list was using an abbreviation for Washington:

People v. Wash (1993)
6 Cal. 4th 215 [24 Cal. Rptr. 2d 421, 861 P.2d 1107]
http://law.justia.com/cases/california/ ... 6/215.html

[LACurry]

Jane, I don't know if the Washington case has anything to do with Delucchi because I never saw it? Have you seen a link for it somewhere? If so let us know please. Usually the judges name is at the top or on the very last page of motions and briefs

My mistake. I thought this one on your list was using an abbreviation for Washington:

People v. Wash (1993)
6 Cal. 4th 215 [24 Cal. Rptr. 2d 421, 861 P.2d 1107]
http://law.justia.com/cases/californiae ... 6/215.html

No, I don't think that is it. The opinion in this one states there was error on the part of the prosecution (actually there was LOTS of error in this case but the defense didn't raise objections or they did not find the error prejudicial), but the judgment was affirmed and not reversed.

I hope someone can come across the Dellucchi reversal somewhere.....or, maybe that was an error on the part of the person that wrote the original article making the claim? As in maybe Delucchi has never been reversed?

[marlene]

Reading a bit further in that article I cited about published v. unpublished opinions, it's pretty obvious that unpublished opinions can be a way to conceal judicial misconduct at the appeals level. Here are a few more paragraphs on pp 71-72.

Discussion of the prevalence of unpublished opinions and problems
associated with them have given rise to a general critical clamor. Criticism
of unpublished dispositions is not new. Indeed, until recently, much of the
writing about these rulings, particularly in the legal community, has been
both normative and highly critical,14 although there have been exceptions.15
Critics, some of whom decry the absence in many cases of full treatment,
including oral argument, and a published opinion,16 point to unpublished
dispositions’ alleged detriments; these include their purported use to avoid
having to spell out the rationale of rulings and to avoid public challenge.
Many statements like these about the need for published opinions in more
(if not all) cases or about the excessive number of unpublished dispositions
are blanket indictments. Although some instances of unpublished
dispositions are offered as “horror stories” in anecdotal support of the
author’s claims, the assertions are not based on a close look at a large
volume of unpublished memorandum dispositions.

Among the critics of courts of appeals’ use of unpublished dispositions
are members of the U.S. Supreme Court. In a dissent from his colleagues’
summary reversal of a Ninth Circuit ruling, Justice Stevens thought “[t]he
brevity of analysis” in the lower court’s “unpublished, noncitable opinion”
(actually a memorandum disposition) “does not justify the Court’s
summary reversal,” and commented that “the Court of Appeals would have
been well advised to discuss the record in greater depth.” He concluded
with the broader complaint that the Court of Appeals’ “decision not to
publish the opinion or permit it to be cited—like the decision to promulgate
a rule spawning a body of secret law—was plainly wrong.”17
Sixth Circuit Chief Judge Boyce Martin recently listed six criticisms of
the use of unpublished dispositions: loss of precedent, sloppy decisions,
lack of uniformity, a lesser likelihood of review by the Supreme Court,
unfairness to litigants, less judicial accountability, and less predictability.18
Consolidating matters somewhat, we can say that the principal criticisms
are that unpublished dispositions create four types of harms: (1) they create
inconsistency in case outcomes, (2) they create the potential for “stealth
jurisprudence,” (3) they may contain sloppy analysis, and (4) people are
unsure about their validity.

If unpublished dispositions do contribute to inconsistency, that
inconsistency certainly can have significant effects, not only on doctrine
but also on particular individuals. This can be seen in a letter to the court
from an attorney about the results reached by two panels in unpublished
memoranda concerning the convictions of two individuals. The
government had used the same theory against both defendants, but one
panel reversed the conviction of one defendant while the other panel
affirmed the second person’s conviction. The lawyer’s frustration was
evident, not only regarding the “anomalous” results “in light of the way the
facts were presented to the jury, as well as the theories and inferences
argued by the government to this Court on appeal,” but also as to the
difficulty of citing an unpublished opinion to support his complaint. He
wrote that the court’s rule precluding citation of a memorandum disposition
“except when it is relevant under doctrines such as the law of the case, res
judicata, or collateral estoppel,” coupled with the Federal Rules, “precludes
argument to the Court by way of a letter such as this,” but he “respectfully
submitt[ed], nonetheless, that the disposition of Mr. Azmanian’s appeal
[was] germane to the result in Mr. Rahimi’s matter as the law of the case.”19

According to this article, unpublished opinions are available on Westlaw or in the Federal Appendix.

[LACurry]

Thanks, Marlene....maybe I can drag my husband to the law library to see if there is some way to find this one. It is at the law school and he does go there all the time, so he might know how to find it.

I do know that we had a civil case, we were sued by a towing company that towed my sons car off private property without our permission. He was 17 but I refused to pay the bill because the vehicle was totalled and they stole all our cd's and belongings....after towing without our permssion. Well, they turned around and sued us. Of course, we fought our case pro se and won. Then the greedy towing company sued us twice in the court of appeals. Of course, we won that too. BUT, the decision was an unpublished decision which both my husband and I thought was very weak. We both saw this as a major roadblock for people that need to know what the laws actually are in that area. I can pull our case up on the docket though....if only we had the name of the case reversed on Delucchi's case, it would make it much easier.

[LACurry]

I find the law fascinating, in reality. I always say I should have gone to law school. At age 53, I probably still could bbut geez, I'd be retired before finishing probably.....lol.

[marlene]

Confidentially, I seriously considered law school to be the natural course after getting my bachelor degree when I went back as a non-traditional student in my late 40s. I decided against it, for 2 reasons. 1st -- I didn't think I could defend someone that I thought was guilty, especially of a horrific crime like rape or murder. I know as a defense lawyer you can choose your cases, but sometimes you are assigned as a public defender. 2nd, I'm too competitive, I thought it was too much of a temptation for it to be about winning, not about justice. So I got a Masters in English instead.

One thing that really annoys me is that defendants are held responsible for everything their counsel does -- when I know from the cases I've reviews that the defendant is pretty much told to shut up and sit down and let the attorney do what he/she is paid to do. Defendant's know nothing about the law, for the most part (except the white collar criminals or the professional criminals) and they wouldn't know if their attorney was doing the right thing or not. It's just ridiculous to me to not consider a point on appeal because the "defendant" didn't make an objection, when the defendant is not the one who was supposed to be making the objections.

And like Scott's brief, it says at one point that Mr. Peterson doesn't challenge that there was evidence presented -- or something to that effect, well I'd like to hear Scott's opinion on that one.

[LACurry]

I agree with what you are saying about Defendant's not knowing the law. I would bet Scott has spent some time reviewing some cases himself, if he is able.

If we believe Dalton's book, he does state that they were about ready to dump Geragos and hire someone different to take over. But, not having any experience with the law, Scott probably didn't know what he was up against and agreed to keep Geragos when he confronted Scott with the info about dumping him.

Because he had never been exposed to the shortcomings with cope and the law, I can easily see how Scott could have looked a bit scared during some of his tv interviews and such. He doesn't look so much as guilty to me in those interviews but looked like he was being interviewed by someone that thought he was guilty. That is the look he had to me, in each and every one. Also, not being guilty could very well have made him naive in even talking to them in the first place. A man that is guilty isn't probably going to go around and setting up interviews to clear his name.

Then we have that info about Scott going to get that deposition to clear his name. I don't think he set that up to pacify Amber to be with her later on but because he just didn't know what to do and he felt the doors closing in on him. He was trying to defend himself against the most incredible lies by the police, his wife has just gone missing, his baby boy is missing as well. He is worried about everyone but himself at the time. I just don't see what all these haters seem to see. It's sad.

[mschulter]

The brief includes this observation: "Mr. Peterson recognizes that in light of the deferential standards of appellate review, there was sufficient evidence from which a jury could have convicted on a malice murder theory. Thus, he is not raising a sufficiency of the evidence argument in this brief. But the fact of the matter is that the evidence against him was entirely circumstantial and depended almost entirely on inferences which were strongly disputed during trial." See p. 250.

[mschulter]

A quick question: might it be helpful, in discussing the appeals process an the brief, to have a forum or sub-forum focusing specifically on the death penalty issues in Scott Peterson's case? This is a rather specialized area of law, and I realize that for many people the issues of innocence or guilt are the main concern. I might add that while my main interest in the case has been in overturning the death penalty, reading the brief and this forum has gotten me very interested in the issue of innocence also.