Author: Kyle Graham

2

The Phone Booths in Katz v. United States?

I’ve chipped away at the K2-esque stack of Crim Pro and Torts exams that sit on my desk. Plus, if I grade another examination right now, my margin comments will consist solely of “all work and no play makes Jack a dull boy.” So, notwithstanding my earlier prediction that grading would prevent further posts, I am allowing myself this entry as a reward and respite.

Here, I want to share an (arguably) interesting video with this blog’s readers.  As background, my Criminal Procedure course reader begins with the seminal Katz v. United States case.   The Katz case involved the government’s warrantless eavesdropping on an occupant of a phone booth situated along Sunset Boulevard in Hollywood.  As those of you who teach Crim Pro, or who took this course in law school already know, Katz is the wellspring of the “reasonable expectation of privacy” standard that has become the touchstone for Fourth Amendment analysis.

I use PowerPoints in my classes, and I’ve been searching fruitlessly for good visuals for the Katz v. United States case for some time. Stock photos of 1950s college-age kids stuffing themselves into telephone booths, movie posters for the Colin Farrell vehicle “Phone Booth,” and my simple line drawings don’t really convey the scene quite as well as I would like.

Toward this purpose, while procrastinating from grading examinations today, I came across a website that hosts several scrolling videos of the Sunset Strip in Los Angeles,  circa the mid-1960s.  I thought that one of these videos might show the fateful bank of phone booths, and in any event, continuing my search for same would provide an extremely valid excuse not to grade more exams.

According to the Ninth Circuit’s opinion below in Katz, the bank of three phone booths that Katz used was on the 8200 block of Sunset Boulevard.  And, sure enough, if one scrolls down to the fourth video on the page—the one that’s 2:48 in length—about 49 seconds in, one can see a bank of three phone booths on the 8200 block. (How do I know which block this is?  The Jay Ward studios—home of Bullwinkle the Moose, and featuring a conspicuous Bullwinkle statue in front—were located at 8217 Sunset Boulevard, quite close to the phone booths.)

I don’t know for certain that these are the phone booths involved in Katz (the caption for the video indicates it was recorded in 1967, whereas the facts in Katz took place in 1965; plus, I don’t know whether there was another set of phone booths on the [unfilmed] north side of the street), but they might well be.  Just thought I’d pass it along; even if these aren’t the same phone booths, the video conveys a nice sense of time and place for the case.

1

Back for One (or Two) Last Things—An Offer and a Request

D’oh. I said that my preceding post would be the last for my guest-blogging stint, but I forgot about two things:

1. Criminal Procedure DVD Offer

First, this spring I hope to get around to an oft-delayed project of mine. I teach Criminal Procedure, and in that class I find it useful to show my students video clips of traffic stops, arrests, and other scenes to help illustrate some of the concepts we cover, and to press students about whether the officers’ actions, as shown, were appropriate under the circumstances.

I mostly rely on television shows (both scripted and reality) and YouTube clips for this purpose. These snippets can be entertaining. (My favorite online clip in this genre can be found at http://www.youtube.com/watch?v=lmnUx_wNqRE. I don’t use this clip, however, because I haven’t quite figured out how to tee it up for students, such that it has significant pedagogical value. Perhaps I should introduce it as the world’s worst search incident to arrest?) Yet the available selection leaves some gaps in my repertoire.

So, I plan on doing some filming of my own this year, to put together a more robust set of video clips to show to students. If any of you out there (1) teach Criminal Procedure and (2) would like a free copy of the DVD I hope to put together, please contact me via e-mail. I’ll put your name on a list and send you a copy once it’s done, which hopefully will occur sometime prior to the start of the fall semester.  (Emphasis here on “hopefully.”)

2. Criminal Procedure < 1965 Interview Subjects Wanted

Fifty years ago, Lawrence Ritter responded to the death of Ty Cobb by traveling around the country to collect oral histories from old-time baseball players before they, too, passed along. The resulting work, The Glory of Their Times, remains among my favorite books.

In the same vein, it recently struck me that we are now losing the last generation of criminal-law attorneys who practiced in the pre-Miranda, pre-exclusionary rule, pre-Gideon era. Someone who was 30 years old in 1960—the year before Mapp v. Ohio—is now 81 years of age. While we have a sense as to what the practice of criminal law was like back before the Rights Revolution of the 1960s, it nevertheless might be useful to speak with some of the remaining practitioners from that period to better understand the similarities and differences between that period, and ours. I’m aware of some oral history projects in a similar vein, but none that ask quite the questions I’d like to ask.

I already have started to identify these practitioners, but here, I ask for your help. If any of you know someone who used to practice criminal law back in the 1950s and early 1960s—be it a prosecutor or defense attorney (or judge)—who wouldn’t mind speaking with me, I would greatly appreciate it if you would e-mail me with their contact information. Better yet, if you are such a person yourself, please feel free to e-mail me directly.

In any event, happy holidays to you all.

6

Hammontree v. Jenner: The Rest of the Story

Schoolhouse Ruins, Metropolis, NV

I recently picked up 120 Torts and Criminal Procedure examinations, which I must grade before the holidays.  In a related story, this will be my last guest-blogger post on the site.  Thanks to Gerard, Frank, and my other hosts for their hospitality, and to the readers of this blog for their patience.  It’s been fun, at least for me.

I’ll wrap up with another Paul Harvey “here’s the rest of the story” narrative, which may be useful to those of you who teach Torts. (The rest of you will probably want to skip this one.)  This entry will discuss Hammontree v. Jenner, a 1971 California Court of Appeal decision.

The Hammontree court rejected the plaintiffs’ contention that strict liability, instead of negligence, should govern a tort suit stemming from a driver’s unanticipated seizure behind the wheel.  Unlike Summers v. Tice, which I discussed in a previous post, Hammontree has not cast a substantial precedential shadow. The appellate opinion is short, and gives little sign that the court considered the issue presented to be especially difficult.

The significance of the Hammontree decision derives from its leadoff spot in Franklin, Rabin & Green’s casebook Tort Law and Alternatives, which I use in my Torts class (I’ve spoken to both the defense attorney at trial in Hammontree and the defense attorney on appeal; both were quite surprised that the case found its way into a textbook.)  The authors leverage the case in a variety of ways, using it to introduce the distinction between strict liability and negligence, along with themes such as legal ethics, the mechanics of a tort case, and the nature of precedent.

Last year, I went down to Los Angeles court archives and dug up copies of the original court filings in Hammontree for the use of my students, and others.   If anyone is interested in these documents (I find it quite helpful to show novice one-L students what a complaint, answer, motion for summary judgment, etc., look like, which goes a long way toward demystifying these documents), I’ve given them to Christopher Robinette over at the TortsProf blog, who kindly has posted them here.

The documents didn’t contain any big surprises, but they did harbor a few facts that may be interesting and useful to those of you who teach the case.  Now that I’ve scared off (or bored to death) 99 percent of this blog’s readers, I’ll explain to the hardy few who remain, after the jump.

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3

On Elevators, Frightened Horses, and Disappearing Types of Tort Claims

The other day, a woman was killed in a horrific elevator accident in New York City.  

Happily, this is a rare occurrence, though one that’s well-represented in Torts casebooks.  Over at Point of Law, Ted Frank has blogged before about the dwindling number of accidents that involve elevators.  In his post, Ted cites to a 1926 New York Times newspaper article, which I subsequently dug up, that relates 87 deaths connected to elevators and elevator shafts in 1925—just in the city of New York!  Somewhat comfortingly, however, only 36 of these people were crushed by elevators.  Forty-seven fell into elevator shafts (which is still somewhat traumatic to me, especially after I watched this scene as an impressionable youth), three were killed when elevators fell, and one “fell through a dumbwaiter” (eep).

I don’t know how many of these elevator-related accidents led to tort suits.  A quick online search, however, suggests that these cases were once pretty common.  These suits appear to have percolated in the 1870s and 1880s, and developed into a well-recognized type of case by the 1890s or the early 1900s, at the latest.

This development paralleled the construction of the first wave of high-rise structures in American cities (the first modern “skyscraper,” the Home Insurance Building in Chicago, was built in 1884).   I don’t know if  there’s a causal connection between the proliferation of high-rises and the development of the elevator-suit case type (after all, any multistory building could claim an elevator, and lots of early cases involved apartment buildings and department stores that clearly were not skyscrapers), but it bears mentioning that Illinois, home of many early skyscrapers, produced a large number of appellate decisions involving elevators during this time period; perhaps appellate courts with discretionary jurisdiction in that state decided that these cases were worth hearing, if only because the construction of more high-rise buildings would mean more elevators, and a greater need for appellate precedent to guide the cases that would result from accidents involving these devices.

I’ll go into a little more detail about the disappearance of tort subspecies like the falling-elevator cases, after the jump.

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3

The Other Face of Torture

Cell Door Detail, Eastern State Penitentiary, Philadelphia, PA

Earlier this week, I discussed a “pleading crime,” misprision of a felony.  Pleading crimes are offenses that parties rely upon to terminate criminal cases by way of plea deals.  Today, prompted by the recent acquittal of a California man on charges that he tortured and murdered a former adult film actress, I’ll talk about another, arguably more troubling class of criminal offenses within the criminal-code “ecosystem”—“charging crimes.”

Charging crimes are offenses that prosecutors commonly rely upon to persuade a defendant that a plea to lesser or other charges is in their best interests.  Charging crimes are often peripheral to the gravamen of a defendant’s misconduct, such that a prosecutor may not insist on convictions on these counts, on top of convictions of the “core” charge or charges.  Nevertheless, charging crimes raise the prospect of a stiffer sentence upon conviction, which gives the defendant an incentive to come to terms with the prosecution, and thus, an incentive for the prosecutor to include these counts in the initial charging mix.

OK, but what does all this have to do with torture?  Well, while I haven’t done much research on the existence of charging crimes within state codes (most of my work on this point involves federal offenses that may amount to charging crimes, like use of fire or explosives in the commission of a federal felony [18 U.S.C. § 844(h)], witness tampering [18 U.S.C. § 1512(a)], and hostage taking [18 U.S.C. § 1203]), I suspect that under California law, torture may represent such an offense.

Here in California, the crime of torture (Penal Code, § 206) occurs when an individual, acting “with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury” on the person of another.  Torture is punishable by a life term in prison (a defendant sentenced to life in California may be eligible for parole in as little as seven years, however).

Torture is broadly worded, such that it’s not that hard to prove; it overlaps with several other crimes; and it carries severe sentencing consequences.  These circumstances make torture susceptible to charging by those prosecutors who may, in the final analysis, care less about what particular crimes a specific defendant is convicted of than about the defendant receiving a particular dollop of custody time. Toward this purpose, the in terrorem effect of a torture count may encourage a defendant charged with this offense to plead guilty to lesser crimes, such as assault, that carry shorter sentences than the torture offense—but enough time to satisfy the prosecution (and judge).  In return, the torture count will be dismissed, and its life term averted.

These situations aren’t merely theoretical.  Recently, in San Jose, two brothers accepted plea deals to lesser charges that carry sentences of (respectively) two to seven and two to eight years in prison, after they were charged with torture for assaulting a former friend whom they suspected of molesting an eight-year-old girl (the stepdaughter of one of the two defendants).  In matters such as these, a torture charge effectively creates a high-stakes game of chicken between the prosecution and the defense, except that the prosecution is driving an 18-wheeler; the defendant, a subcompact.

All this is not to say that defendants charged with torture or related offenses are not accused of serious crimes—they are; nor that these defendants, if convicted, should not be held accountable for their actions—they should be; nor that the torture charges are somehow unsupported by the evidence in these cases—they are, which is the very problem. Instead, the point is simply that by creating such a broad crime that carries such a severe sentence, California voters (torture having been enacted by initiative in 1990) have provided prosecutors with a very substantial bargaining chip, and they can’t be too surprised when, as in the San Jose case, it’s used to win some pots that one might wish had gone unclaimed.

Cellblock, Eastern State Pen.

Cat Statuette, Eastern State Pen.

1

Trivia Time: (Legal) Person of the Year

As Gerard indicated when he introduced me to this blog, he and I were on the Stanford College Bowl team together way-back-when.  I remain amazed by Gerard’s encyclopedic knowledge of Roman emperors. I was merely the go-to guy for pop culture and sports trivia.

In any event, in honor of Time’s unveiling of “The Protester” as its 2011 Person of the Year, consider the following trivia question:

Who is, or was, the only United States judge to be named Man (or Person) of the Year while he (or she) was sitting on the bench?

(And no, one cannot point to Time’s designation, say, of “American Women” as its People of the Year for 1975, and say that this cohort captured many judges; we’re talking about specific individuals here—even though North Carolina Supreme Court Chief Justice Susie Sharp was among the women on the cover of that issue.)

The answer, after the jump.

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2

The Annals of Article Placement

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: January 5, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

Dear Sir or Madam,

Please find attached, for your review and publication consideration, a copy of my recent article, “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.” As you will see, my scholarship sheds light on this heretofore overlooked, but (as I discuss) extremely important, provision.

I am prepared to give the Impressive Law Review exclusive publication rights for this piece until January 12, 2012.

Please contact me at your first convenience, should you wish to publish this article.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: January 12, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

This message follows upon my earlier note to you, sent via e-mail on January 5, 2012. As indicated in that e-mail, I had originally planned to make my article available to other journals as of today. However, I appreciate that with the New Year, the Winter Break, and the various college football bowl games on television, you may not have been able to turn to the piece quite yet. Or, perhaps, you did not receive my earlier e-mail; I know how sometimes these messages can get lost in the wires. Accordingly, I am pleased to relate that I will continue to hold my “exclusive” window open for another two weeks, through January 26, 2012.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: January 26, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

I am just about to distribute my article to a variety of other law journals via ExpressO—seriously, my right index finger is hovering above the “submit” button, even as my left hand types this message—but before I do, I want to make absolutely certain that you have (1) received the article; and (2) had an opportunity to review it.

Having not heard from you as yet, I assume the answer to both of these questions is “yes,” but one never knows.  I really think the piece is a good fit for your journal, especially seeing as how your law school is in a coastal state. Accordingly, I am pleased to relate that I will grant one final extension of my “exclusive” window, now holding it open to February 3, 2012.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: February 3, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

Just a friendly reminder that this is the expiration date of my “exclusive” offer!

Regards,

Kyle Graham

P.S. Did you get the gift basket I sent?

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: February 10, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

This letter follows upon my earlier communications. As previously related, I have circulated my article to other journals via ExpressO, such that my “exclusive” offer is no longer in effect. However, I remain open to publication with your journal; please contact me if interested.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: February 21, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

I have just received offers to have my article published by several highly reputable journals that I cannot disclose at this time and which I absolutely, positively did not just make up.  Given this turn of events, I ask that you expedite your consideration of my piece.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: February 29, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

Thank you very much for your letter of February 24, 2012; it is nice to finally hear from you, and to put an autopen signature to your journal’s face.

I admit that I was both surprised and impressed by your diligence in checking with the editorial board of, apparently, every other law journal in the United States and Canada.  Based on your report, I must acknowledge that I may have misconstrued their prior communications to me.  In my defense, how was I to know that an advisement that my article was “under review” was anything less than a binding commitment to publish?  I’m just a law professor, not a rocket scientist, after all.

In any event, I do hope that this little misunderstanding does not affect your continued consideration of my article. I remain eager to see it published in your journal.

I may be in the neighborhood of your institution for a conference within the next few weeks.  If so, I hope you will not mind if I take the liberty of dropping by your office to discuss the potential publication of my piece.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: March 12, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

I write this letter to acknowledge my receipt of a restraining order, apparently taken out by your publication against me.

In response, this letter also serves as a formal withdrawal of my article, “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution” from consideration by your publication.  This is your loss, but I feel that your recent actions leave me no choice in the matter.

Regards,

Kyle Graham

P.S. There was a glaring citation error on page 2340 of your last volume.  Which sucked, by the way.

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: May 26, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

How are you doing? Well, I hope.  How are classes?  Looking forward to that post-graduation clerkship?

I also hope that you realize by now that I was just joking with my last message. If you don’t remember, don’t worry about it. It was nothing important. I simply wanted to “lighten” what I am certain is a laborious review process for you and your staff.

In any event, I write to offer my article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution” for inclusion in your online journal “Supplement.” As you will see, I have modified the introduction and thesis so as to draw a closer connection to the 2013 America’s Cup, such that I believe the piece will be cited frequently in connection with that regatta.

Please contact me at your first convenience, should you wish to publish this article.

Regards,

Kyle Graham

6

Criminal Codes as Ecosystems: The Curious Case of Misprision of a Felony

Mono County Courthouse, Bridgeport, CA

Criminal codes sometimes remind me of ecosystems. Like organisms in an ecosystem, crimes within a code can be connected to one another in interesting and unexpected ways.

I’ll explain this analogy by describing a federal crime that doesn’t get much attention: misprision of a felony (18 U.S.C. § 4). Misprision of a felony occurs when a person, “having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States.”

This crime seems pretty banal; it’s kind of like the algae of the federal criminal code.  You never hear about a complex, multi-agency investigation into misprision of a felony.  But, like algae, misprision of a felony serves very important purposes within its environment. It is what I call a “pleading crime,” used to resolve a wide range of matters in which a federal prosecutor, for one reason or another, either (1) doesn’t want to charge a potential defendant with the “concealed” substantive crime (even though there might be sufficient evidence to charge the person with, and convict them of, this offense), but does want to charge them with a lesser, related crime; or (2) wants to resolve, via a plea bargain, a case in which the substantive crime was originally alleged, but as to which evidentiary problems or other reasons for compromise exist.

Misprision of a felony fills these roles because of its malleable nature (it applies to the concealment of any felony) and because of the sentence that adheres to the crime.  The United States Sentencing Guidelines prescribe a sentence for misprision that’s indexed to, but somewhat below, that of the concealed offense. This placement tees up misprision of a felony as a (to use Ronald Wright and Rodney Engen’s phrase) “landing point” for compromises in plea deals.

Federal charging and plea-bargaining data underscore this crime’s role as a case closer.  In federal criminal cases that terminated by plea between October 2002 and September 2007, misprision of a felony was the most serious charge at the time of initial filing in only around 600 cases (virtually all of which resulted in a guilty plea to the misprision charge, suggesting a pre-filing deal between the prosecution and defense).  Misprision was most serious charge at the time of case termination much more often, claiming this status in more than 2,300 matters.  The almost 1:4 ratio bespeaks the frequent utilization of misprision of a felony as a pleading crime.

And so, just like species in an ecosystem, even the most humble crimes may serve important functions.   Though I’m still searching for the big-picture purposes of crimes such as acting or attempting to modify the weather without proper authorization (15 U.S.C. § 330a);  the misuse of the Swiss Confederation Coat of Arms (18 U.S.C. § 708); use of the United States Army or Air Force as a posse comitatus (18 U.S.C. § 1385); and the transportation of illegal dentures (18 U.S.C. § 1821).

0

Arizona v. Gant and Inventory Searches: A Good Subject of Empirical Study, Or Not

A little while back, I was considering whether to undertake an empirical study into whether law enforcement officers were relying on the inventory-search exception to the warrant requirement more often after the United States Supreme Court’s 2009 decision in Arizona v. Gant, which pared back the search-incident-to-arrest exception to the warrant requirement insofar as it applies to vehicle searches.

Some have suggested that, given the number of exceptions to the warrant requirement that exist, the diminution of one exception will simply lead to the expansion of another. I thought that the post-Gant scenario would provide as good a setting as any to test this hypothesis, especially since it’s been said that officers are relying on the inventory-search exception to the warrant requirement more often in the wake of the Gant decision.

I decided not to perform the study, however, after a casual conversation with a local police officer. After I described the proposed inquiry to him, he said, in essence, “Don’t bother.” When I asked why, he told me that the numbers would almost certainly be skewed by the fact that the post-Gant era has coincided with substantial layoffs at local law enforcement agencies, due to the recession.

These layoffs would affect my results, the officer added, not only because they resulted in fewer officers, but also because (given last-hired, first-fired seniority rules) more recently hired officers were disproportionately affected by these cuts, and more recent additions to the force tend to be more eager than senior officers are to impound vehicles and perform inventory searches on them. And so, if the data reflected fewer inventory searches, or about the same number of searches, these totals might represent the recession-affected demographics of local police departments, as much as anything else.

I don’t know if what the officer told me was correct in every particular, but I thought it was interesting, and worth passing along as another reminder of how empirical studies can sometimes run into unexpected impediments.

5

Professor Graham’s Top Nine Failed Attempts to Increase His SSRN Downloads

9. Offering Justin Bieber $2,500 to rave about latest article on Twitter

8. Frequent integration of trendy words and phrases like “jeggings,” “Winning!” and “Tebowing” into article titles

7. Legally changing my name to “Eddie Murphy” for one month prior to, and following, the posting of each new piece, because if Eddie Murphy were to write a law-review article, that would really be something else

6. Ill-fated promise to students that if I get up to 5,000 total downloads, A+ grades for everyone, unless I don’t like them

5. Offering Charlie Sheen $2,500 to rave about latest article on Twitter

4. Having article titles painted on the sides of the turkeys thrown from the WKRP helicopter pursuant to their Thanksgiving giveaway

3. Extensive unsuccessful efforts to have Oprah name “Why Torts Die” as her Book of the Month

2. “Rick-Rolling” people over from Cass Sunstein’s latest article on SSRN

1. Prominent advertisements that each article is guaranteed to be “100 percent Kardashian-Free”