Judge indicates Mehserle won’t be granted new trial

Dean Johnson previews sentencing of Mehserle.




Dean Johnson talks about Prop 19

ABC7 legal analyst Dean Johnson joins 7Live to talk about the legal ramifications if Prop 19 passes.



Dean Johnson on what to expect from the Supreme Court this year

Today is the First Monday in October. The Supreme Court opens its Fall term today.

The event is historic in that today is the first time that the Court will convene with 3 female Justices sitting.

Court watchers will, for the second term in a row, be watching a new Justice for clues as to her judicial style. But Elena Kagan’s role will be limited this term because her role as Solicitor General has forced her to recuse herself from 25 of the 54 cases on the docket.

There are three cases that will prove to be of particular interest to Californians.

Snyder v. Phelps will be argued this Wednesday. This is a First Amendment case in which followers of the Rev. Fred Phelps showed up at the funeral of Albert Snyder’s son, a Marine who was killed in Iraq. The demonstrators shouted “You’re going to Hell” and a variety of Anti-Gay Epithets (apparently, Snyder’s personal theology holds that the deaths of soldiers in Iraq is God’s punishment for the United States’  tolerance of homosexuality. No, I don’t make this stuff up!) Phelps sued for willful infliction of emotional distress. The Fourth Circuit reversed. As things now stand, Mr. Phelps has to pay Snyder’s court costs and attorney fees.

Schwarzenegger v. Entertainment Merchants’ Association is an appeal from a 9th Circuit decision that struck down California’s ban on the sale and rental of violent video games to minors. California will argue that the Court should extend a 1968 decision that allowed restriction on the sale of sexual materials to minors and hold that distribution of violent materials can likewise be restricted consistent with the First Amendment. Six other states have similar statutes. Every lower court that has examined the issue has rejected the argument that California proposes. The entertainment industry is concerned that, if California’s argument is accepted, a similar ban could be imposed on movies, books and other forms of speech. (Like, for example, kids could be prohibited from seeing Terminator on video.)

In Schwarzenegger v. Plata the Court will decide whether a three judge panel of the District Court had jurisdiction to order prisoner releases to alleviate overcrowding in California prisons.

Will governor grant clemency to Brown?

Dean Johnson on Return of the California Death Penalty

By the close of business on Friday, we should know whether the State of California will be able to resume executions of death row inmates.

In a nutshell, this is the situation: For nearly five years, the death penalty has been under two separate but interrelated injunctions. In 2006, lawyers for death row inmate Michael Morales filed an 11th hour writ seeking to stop Morales’ execution. Federal Judge Jeremy Fogel found that California’s execution procedures violated the Eighth Amendments’ prohibition against cruel and unusual punishment. Fogel found that California’s lethal injection protocol was so sloppy that a slow, excruciating death was a real possibility. Fogel stayed Morales’ execution pending Fogel’s approval of a revised protocol and proposed improvements in the execution facility.

The Department of Corrections revised the protocol, but, in 2007, lawyers for Morales challenged the protocol in Marin County Superior Court, arguing that the CDC had failed to follow the proper procedures for enacting new regulations under the State’s Administrative Procedure Act (APA). That challenge was successful, and the Court issued an injunction .

The Department of Corrections has since followed the requirements of the APA, issuing public notice of the regulations and asking for comments (thousands of comments were received). In short, the stage has long since been set for the next execution.

The new round of litigation began on August 30 when a Riverside County Judge issued a death warrant setting a September 29 execution date for Albert Greenwood Brown.

On August 31, a Marin County Judge ruled that the State Court injunction was still in effect. The Attorney General appealed this decision and, on September 20, the Court of Appeal lifted the injunction, clearing the way for Brown’s execution.

The next day, September 21, CDC official unveiled their new and improved death chamber.

Brown’s lawyers then went to Federal Judge Fogel, arguing that the changes in the CDC’s rules and its remodel of the death chamber were literally window dressing. Brown’s lawyers asked Fogel to stay Brown’s execution for the same reasons that he had stayed Morales’ execution in 2006. Attorney General Brown opposed the stay.*

Fogel is expected to rule on Friday. If Fogel finds the State’s remedial efforts to have been adequate, Albert Brown could be executed shortly after midnight on September 29.

But don’t count on it. One thing that is a certainty in death penalty litigation is that the litigation never ends. When lawyers are fighting to save a man’s life, they fight to the to the end.

A few facts to ponder about the death penalty:

-Californians spend about $100,000,000.00 annually on death penalty litigation and facilities for death row inmates;

-The new death chamber cost taxpayers about $853,000.00. It was constructed with prison labor;

-California has 709 death row inmates, far more than any other state;

-Three of those inmates, Brown, Morales and Mitchell Sims have exhausted their post-conviction remedies. The rest are still in litigation;

-The most common cause of death on death row is old age. Albert Greenwood Brown has been on death row for nearly 28 years;

-Green was convicted of kidnapping, raping and killing Susan Louise Jordan. Susan was 15 years old. After the murder, Brown called Susan’s parents and told them that they would never see their daughter alive again. He directed them to an orange grove where he had disposed of Susan’s body. At the time of the murder, Brown was on parole for having raped a 14-year old girl.

*There are those who see Attorney General Jerry Brown’s push for immediate executions as politically motivated. Brown has previously opposed the death penalty. During his first gubernatorial administration, he appointed Chief Justice Rose Bird, who put a practical halt to executions in California and expressed his personal disapproval of the death penalty. Brown is now involved in a close gubernatorial race. Those of you who have participated in my Strategic Decision Making class and who are of a cynical mindset may see Brown’s move as a manifestation of the Median Voter Theorem similar to that which we discussed in connection with the 2008 national elections. Brown, I am sure, would say that he is merely discharging his duty as California’s chief law enforcement officer.

Dean Johnson on Hewlett-Packard’s Uphill Battle in the Mark Hurd Case

Hewlett-Packard faces an uphill battle in its recently filed lawsuit against former CEO Mark Hurd.

HP hopes to prevent Hurd from accepting a job offer from HP’s competitor, Redwood City-based Oracle. HP has alleged that Hurd’s employment with Oracle would necessarily result in a breach of Hurd’s employment contract and severance agreement with HP. HP contends that Hurd was intimately familiar with HP’s corporate strategy, business plans and technological secrets. In working for Oracle, HP says, Hurd would necessarily use that knowledge to the detriment of his former employer.

We haven’t seen the evidence yet. HP’s allegations may, or may not, be true. But even if they are, HP has a tough row to hoe in court. California has long standing policy against clauses in employment contracts that prevent former employers from practicing their profession after quitting or being discharged. So-called “non compete” clauses are illegal by statute in California. So corporate employment contracts in California generally don’t include a non-compete clause (Hurd’s contract doesn’t have one). And, even if there is a non-compete clause in a California contract, it generally isn’t invoked in litigation.

What corporations commonly will do in order to prevent an employee from working for the competition is to invoke the “trade secrets” portion of the contract-the clauses that prevent a former employer from disclosing confidential information that he might have obtained during the term of his employment. The doctrine is called “inevitable disclosure.” The notion is that a high level employee will “inevitably” disclose the trade secrets of his former employer, or, even unconsciously, use those secrets to his advantage if he goes to work for his former employer’s competition.

California courts thus far have rejected the “inevitable disclosure” doctrine. The leading case is FLIR Systems v. Parrish (2009) 174 Cal. App. 4th 1270. In FLIR Systems, the second district court of appeals said that the practical effect of applying the inevitable discovery doctrine to prevent a former employer from working for the competition was the same as the effect of a non-compete clause: it prevents the employee from practicing his profession. The doctrine was therefore rejected as against public policy.

In its complaint, HP alleges “on information and belief” that Hurd “is violating and will continue to violate his…obligation to.. maintain the confidentiality of HP’s trade secrets and confidential information.” The first test of this allegation, and our first taste of how the case will fare in court may come very soon. HP indicated in its complaint that it intended to file an application for injunctive relief. In order to get the injunction, HP will be required to produce sufficient evidence to show that they are likely to be successful on the merits of the case. We shall see….

Dean Johnson on possible outcomes for Prop 8

Both sides of the Proposition 8 debate have filed their paperwork with the U.S. District Ninth Circuit Court of …


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