Santa Barbara. Lawyer. Official Publication of the Santa Barbara County Bar Association May 2011 Issue 464

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1 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association May 2011 Issue 464

2 FINANCIAL EXPERTISE IN YOUR CORNER. These days, help from a one-on-one relationship with an advocate who knows you and knows where you want to go is more important than ever. A Merrill Lynch Financial Advisor, now with access to the resources of Bank of America, can help you plan, imagine, diversify, rebalance and believe. The Micheel - Gamberdella Group Bruce Micheel, CFP Marc Gamberdella John Spruill, CFP (805) Merrill Lynch Santa Barbara, CA Investing involves risk. Diversification and rebalancing do not assure a profit or protect against loss in declining markets. Merrill Lynch Wealth Management makes available products and services offered by Merrill Lynch, Pierce, Fenner & Smith Incorporated (MLPF&S) and other subsidiaries of Bank of America Corporation. MLPF&S is a registered broker-dealer, member SIPC and a wholly owned subsidiary of Bank of America Corporation. Investment products: Are Not FDIC Insured Are Not Bank Guaranteed May Lose Value 2010 Bank of America Corporation. All rights reserved. 2 Santa Barbara Lawyer

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4 Mack Staton President Mullen & Hanzell LLP 112 East Victoria Street Santa Barbara, CA T: ; F: Catherine Swysen President Elect Sanger & Swysen 125 De La Guerra Street, Ste. 102 Santa Barbara, CA T: ; F: Donna Lewis Secretary Attorney at Law 789 North Ontare Road Santa Barbara, CA T: ; F: Scott Campbell Chief Financial Officer Rogers, Sheffield & Campbell, LLP 427 East Carrillo Street Santa Barbara, CA T: ; F: Lynn Goebel Past President Special Projects Attorney At Law 148 East Carrillo Street, Ste. A Santa Barbara, CA T: ; F: Santa Barbara County Bar Association Officers and Directors William Duval Events Committee Bench & Bar Relations Attorney At Law 1114 State Street, Ste. 240 Santa Barbara, CA T: ; F: Rebecca Eggeman Events Committee Attorney at Law 315 Meigs Road, Ste. A-378 Santa Barbara, CA T: ; F: Herb Fox Bench & Bar Relations Law Office of Herb Fox 15 W. Carrillo Street, Ste. 211 Santa Barbara, CA T: ; F: Jennifer Hanrahan Bench & Bar Attorney At Law 657 Del Parque Drive, Ste. E Santa Barbara, CA T: ; F: Preston Marx MCLE Law Office of Preston A Marx, III 4299 Carpinteria Ave, Ste. 100 Carpinteria, CA T: ; F: Brandi Redman Bench & Bar Awards & Board Development Attorney & Counselor at Law 1021 Laguna Street, Apt. 8 Santa Barbara, CA T: Angela Roach Liaison Awards & Board Development Employee & Labor Relations University of California Santa Barbara 3101 SAASB Santa Barbara, CA (805) telephone Kelly Scott MCLE Santa Barbara Lawyer County Counsel Of Santa Barbara 105 E Anapamu Street, Rm 201 Santa Barbara, CA T: ; F: Lida Sideris Executive Director 15 W. Carrillo Street, Ste. 106 Santa Barbara, CA T: ; F: Santa Barbara Lawyer A Publication of the Santa Barbara County Bar Association 2011 Santa Barbara County Bar Association CONTRIBUTING WRITERS Christine Chambers Laura Dewey Rebecca Eggeman Cami McLaren Robert Sanger Bill Woodard EDITOR Matthew Clarke ASSISTANT EDITORS Catherine J. Swysen Lida Sideris Kelly Scott MOTIONS EDITOR Michael Pasternak VERDICTS & DECISIONS EDITOR Lindsay G. Shinn PHOTO EDITOR Michael Lyons PRINT PRODUCTION Wilson Printing DESIGN Baushke Graphic Arts Matthew Clarke Santa Barbara Lawyer Christman, Kelley & Clarke 831 State Street Santa Barbara, CA T: ; F: Casey Nelson MCLE Special Projects 27 W Anapamu Street, #161 Santa Barbara, CA T: Submit all EDITORIAL matter to with submission in the subject line. Mission Statement Santa Barbara County Bar Association The mission of the Santa Barbara County Bar Association is to preserve the integrity of the legal profession and respect for the law, to advance the professional growth and education of its members, to encourage civility and collegiality among its members, to promote equal access to justice and protect the independence of the legal profession and the judiciary. Submit all MOTIONS matter to Michael Pasternak at Submit all advertising to SBCBA, 15 W. Carrillo Street, Suite 106, Santa Barbara, CA phone , fax Classifieds can be ed to: 4 Santa Barbara Lawyer

5 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association May 2011 Issue 464 Articles 7 Judges Denise de Bellefeuille and James Herman Honored As Community Champions for Work with Children s Waiting Rooms and Other Involvements, By Rebecca Eggeman 8 Libya Through the Lens of International Law, By Christine Chambers 10 Santa Barbara Superior Court Dedicates the Deborah Talmadge Children s Room: By Laura Dewey 11 Managing Your Time: Work Smarter not Harder: By Cami McLaren 12 Santa Barbara County Co-Champions Rock State Mock Trial, By Bill Woodard 14 Harmless Error and Enron, By Bob Sanger 22 Lending a Helping Hand to Veterans Sections 20 Verdicts & Decisions Birth Announcement and Cover Photo Credit: Local attorney Renee Nordstrand and Doug Black are pleased to announce the November 3, 2010, birth of their twin daughters, Kate and Lauren. Lauren weighed 5 pounds 14 ounces and was 19 inches long, Kate weighed 7 pounds 3 ounces and was 20 inches long. Mom was huge and uncomfortable at the end of her pregnancy and was very happy to deliver at 38 weeks. Everyone is happy and healthy. Renee Nordstrand, currently a sole practitioner, has been in Santa Barbara for the past 20 years. Her practice, The Law Office of Renee J. Nordstrand, is limited to plaintiff s personal injury and criminal defense. She is past President of Santa Barbara Women s Lawyers and is active with Women s Lawyer s Mentoring Group. Through Santa Barbara Women Lawyers, she initiated and was instrumental in founding the Children s Waiting Room, which recently opened in the Figueroa Courthouse, (see story on page 10 of this magazine). 26 Motions 28 Section Notices 30 Calendar Santa Barbara Women Lawyers Past Presidents: Hon. Colleen Sterne, Hon. Deborah Talmage, Renee Nordstrand, Laura Dewey, Brandi Redman May

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7 Judges Denise de Bellefeuille and James Herman Honored As Community Champions for Work with Children s Waiting Rooms and Other Involvements By Rebecca Eggeman L ocal Santa Barbara Superior Court judges Denise de Bellefeuille and James Herman have been recently honored with the 2011 Community Action Commission Community Champions Award for their significant contributions to the local community, including their instrumental work involved in launching the newly opened Children s Waiting Rooms for the Santa Barbara County Superior Courts. The Community Action Commission (CAC), which operates the Children s Waiting Rooms, is a Santa Barbara County non-profit organization that serves low-income individuals and families through services for children, at-risk families and youth. Two Children s Waiting Rooms have been established in Santa Maria and Santa Barbara. Operated on a free of charge, drop-in basis, the Children s Waiting Rooms offer supervised, child-friendly play environments for children ages 2 ½ to 12 years old whose families have business in the courthouse, such as custody hearings, trials or witness duties. May Legal News The Santa Maria Children s Waiting Room, opened at the Susan Gionfriddo Juvenile Justice Center in January 2011, operates Monday and Thursday mornings, the dependency calendar days. The Santa Barbara Children s Waiting Room, named in honor of retired Court Commissioner Deborah M. Talmage and located at the court building on Figueroa Street, opened its doors in March 2011 and is available five mornings a week. Although the program receives funding for operations, donations such as computers, televisions, books and toys are always welcome. Judges de Bellefeuille and Herman have been credited for being the energy and motivating force behind getting the Children s Waiting Room projects off the ground. Judge Herman saw the need for them after seeing children sitting in his juvenile courtroom during contentious hearings involving adults accused of child abuse, neglect, or abandonment. These kids shouldn t have been in there seeing this, Judge Herman said. After funding was made available, through state-authorized surcharges on court filing fees, a request for proposals for an agency to run the programs was issued. Due to the tough economic times, it was hard to find a community sponsor for the Children s Waiting Rooms, said Judge Herman. After some time, Judge Herman approached CAC and asked its leaders if the agency would consider operating the Children s Waiting Rooms, due to its strong children s services component. CAC, which also runs Santa Barbara County s Head Start programs, responded that it would be honored to do so, according to Judge de Bellefeuille. Getting the Children s Waiting Rooms up and running has been a long time coming. We are grateful to CAC for their involvement, said Judge Herman. Recipients of CAC s Community Champions Award are chosen for the awards based on their significant effect on the welfare of the community and their focus on helping low-income and vulnerable individuals. The committee that selects the honorees consists of CAC Board members, elected officials and representatives of community agencies Denise de Bellefeuille and James Herman and non-profit programs. In many ways, Judges de Bellefeuille and Herman have gone above and beyond their regular jobs to make a profoundly positive effect on the community, said Fran Forman, Executive Director of Community Action Commission. They often step up, when it comes to community issues. Ms. Forman noted that, in addition to spearheading the Children s Waiting Room projects, both judges have been Continued on page 9

8 International Law Libya Through the Lens of International Law By Christine Chambers At the time this article was written, the U.S. and other countries have intervened militarily in Libya in an attempt to support the rebel forces against Colonel Muammar Al-Kaddafi. Irrespective of any U.S. Constitutional questions regarding President Obama intervening in Libya without Congressional approval, there are international law implications when one country invades another. The primary international law considerations with the conflict in Libya are: 1) the legality of international intervention in a civil war, and 2) the possibility of war crimes being committed in Libya. Legality of International Intervention in Libya Every state has a right to territorial sovereignty, and there are only three ways such sovereignty can be broken: self-defense, consent, or Security Council authorization. Therefore, in a civil war when a state has not requested international aid, the only legal means to breach that state s sovereignty is through Security Council authorization. The conflict in Libya is undoubtedly a civil war, and although rebel fighters requested international aid, the government itself did not. Thus, the Security Council must have authorized international intervention, which it did on March 17, 2011, by permitting member states to take all necessary measures to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamhariya, including Benghazi, while excluding an occupation force. 1 Pursuant to Chapter VII of the UN Charter (Articles 41-42, specifically), the Security Council may authorize the use of force in another country as may be necessary to maintain or restore international peace and security. Although the U.S. seems unlikely to provide arms to rebel fighters, the Security Council s broad resolution would allow the U.S. to do so. The resolution passed by a vote of ten to zero with five abstentions. Therefore, U.S. intervention in Libya was legal under international law. Possible War Crimes Being Committed in Libya The Security Council referred the ongoing conflict in Libya to the International Criminal Court (ICC) in its March 17 resolution permitting the use of force, noting that there may be crimes against humanity taking place, although genocide was not referenced. In order for Kaddafi or his soldiers to commit genocide, their intent must have been to destroy, in whole or in part, a national, ethnical, racial or religious group Because Kaddafi s forces have sought to destroy the rebels for political reasons, murder by Kaddafi or anyone on his behalf is not genocide. It could, however, be a crime against humanity, as the Security Council suggested. Crimes against humanity include a number of heinous crimes, such as murder, enslavement, torture, and rape when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. There is no accurate death count at this time, but undoubtedly Libyan civilians have been murdered. Although the law of war allows combatants to kill one another, killing a civilian is a crime against humanity when it is done as part of a widespread or systematic attack against any civilian population. Kaddafi has ordered that protesters be shot, and his soldiers have murdered protestors and mourners innocent civilians. Such actions are definitely crimes against humanity since civilians have been specifically targeted. There have also been allegations of rape, such as the well-publicized case of Eman al-obeidy, the Libyan woman Daniel J De Meyer Financial Advisor Edward Jones ranked Highest in Investor Satisfaction with Full Service Brokerage Firms, Two Years in a Row Visit jdpower.com. 125 E De La Guerra St Ste 101 Santa Barbara, CA Member SIPC 8 Santa Barbara Lawyer

9 International Law who barged into a hotel dining room full of journalists to attempt to tell her story of being gang raped by 15 of Kaddafi s soldiers. 2 Rape is an enumerated crime against humanity when committed as part of a systematic attack. Because government forces committed the rape during the conflict, it was committed as part of a systematic attack on Libyan civilians opposed to Kaddafi. If Ms. Al-Obeidy s allegations were substantiated, it would likely be sufficient to charge her rapists with crimes against humanity. If Kaddafi knew or should have known of any rapes and failed to take action to prevent them, he could be charged for crimes against humanity under the doctrine of command responsibility, pursuant to Article 28 of the Rome Statute. Human Rights Watch has reported that Libyan government forces have begun using land mines in populated areas. 3 The Ottawa Treaty, or Mine Ban Treaty, prohibits a state from using anti-personnel mines. However, Libya has not ratified the Mine Ban Treaty, and there is no other international law prohibiting their use. The ICC has opened an investigation into Kaddafi, members of his family, and his inner circle. Although Libya has not signed or ratified the Rome Statute to make it a party to the ICC, the ICC can investigate a non-state party based on a Security Council request, which is what occurred in Libya s case. If the ICC determines crimes against humanity have been committed, and the ICC indicts Kaddafi, the Court will only have jurisdiction over him if he is arrested in a state that is a party to the Rome Statute because state parties are required under the Statute to cooperate with ICC investigations. It is more likely that Kaddafi would follow in the footsteps of Sudanese President Omar al-bashir, who was indicted by the ICC in 2009 for his role in the genocide in Darfur. Al-Bashir has stayed in Sudan, which does not recognize the ICC, to avoid being transferred to The Hague for trial. Therefore, even if the ICC investigation concludes that Kaddafi or his militia members have committed crimes against humanity, it is quite possible that he would never be brought to justice. Eggeman, continued from page 7 Legal News active participants in Teen Court. Judge Herman has been involved in the newly-formed South Coast Task Force on Youth Violence, Ms. Forman said. Judge de Bellefeuille served as a founding member of C.A.S.A., and was one of the original people involved in the Pro-Youth Coalition. Also receiving the Community Champions Award were Guadalupe Superintendent Hugo Lara and Al Walker of the Lompoc CPA firm, Walker, Wilson & Hughen. The awards ceremony took place on April 14th at the Hotel Corque in Solvang. Rebecca Eggeman is a Santa Barbara-based attorney who focuses her practice on non-profit organizations. Previously, she was a business and real estate transactional attorney at Mullen & Henzell L.L.P., and has served two terms as President of the Santa Barbara Women Lawyers. Trusted Experience. Real Results. Christine Chambers is a 2010 Case Western Reserve University School of Law graduate. Katherine J. Edwards, Esq. Louise A. LaMothe, Esq. En d n o t e s 1 2 h t t p : / / w w w. n y t i m e s. c o m / / 0 3 / 2 7 / w o r l d / middleeast/27tripoli.html?ref=middleeast. 3 To find out more about PMA or view our neutrals profiles, contact us at: OR May

10 Legal News Santa Barbara Superior Court Dedicates the Deborah Talmadge Children s Room By Laura Dewey Avery happy and excited crowd gathered on April 1, 2011 to celebrate the dedication of the long-awaited children s room at the Figueroa Courthouse. The Superior Court judges unanimously voted to name the room after the County s first female judicial officer, retired Commissioner Deborah Talmage, in recognition of her work improving the lives of the children in our community, as well as her status as Founding Mother of Santa Barbara Women Lawyers (SBWL), the organization that shepherded the project for the past thirteen years. California Women Lawyers (CWL) led the statewide movement for children s waiting rooms in all of the courthouses in California, and the cause was taken up locally by SBWL, and aptly led by former SBWL President Renee Nordstrand. Presiding Judge Brian Hill opened the ceremonies with thanks to the many people who contributed to completing the project, followed by Ms. Nordstrand (who brought her twin baby girls) and the Honorable Deborah Talmage. The speakers told the crowd the story of how the room began with an idea, then worked its way through the system, first finding a location, then finding the money, and finally finding a licensed child care provider, Community Action Commission. Instrumental in causing the dream to come true were Judges James Herman, Denise de Bellefeuille, Jean Dandona, Frank Ochoa, and Commissioner Talmage, as well as senior managing clerk Cynthia Sgobba. Numerous court employees and friends who donated money, toys, books, and their time were: Ammon Hoenigman, Marilyn Metzner, Cesar Ochoa, Chamblin-Landes Construction Inc., Jim Brock, Suzanne Hoenigman, Flota Pritched, Ronnie Ybarra, Liz Jahadhmy and Sigrid Twomey. Past Santa Barbara County Bar President Lynn Goebel and former SBWL President Brandi Redman helped with the completion of this thirteenyear-old project. The dedication ceremony took place on the first anniversary of the retirement of Commissioner Talmage, who expressed her pride in SBWL, which was inspired by her participation in CWL under the encouragement of Justice Joan Dempsey Klein. The organization has brought many improvements to the legal community, both directly and through the SBWL Foundation. Its annual Attorney of the Year Award is also named for Deborah Talmage, of whom SBWL is very proud. Several Past Presidents were on hand for the festivities, and all proceeded to the actual room for the unveiling of the title and to explore the delightful furnishings. In addition to numerous books and toys (many of which were donated by the judges and staff), there are easels for art, princess tents for exploration and play, comfortable furnishings and a flat screen TV. Ms. Dewey is a former SBWL President, current Board Member of SBWL Foundation, and SBWL s Affiliate Governor to California Women Lawyers. See photos of the Deborah Talmadge Children s Room in the centerspread of this magazine. SANTA BARBARA WOMEN LAWYERS JULY FOOD DRIVE Santa Barbara Women Lawyers is partnering with other local legal organizations to organize a July food drive that will assist the Food Bank of Santa Barbara County. Last year, the Food Bank of Santa Barbara County distributed over ten million pounds of food to over 165,000 people in the community. To learn more about where to contribute money or where to make food donations for this worthy cause, contact Santa Barbara Women Lawyers at 10 Santa Barbara Lawyer

11 Legal News Managing Your Time: Work Smarter not Harder By Cami McLaren Do you ever feel if there were just a few more hours in the day, you would still not get everything done? Do you feel like you are rushing and overwhelmed, and everyone else in your firm is the same way? What do you do when you are under a deadline, when you feel you are behind? If you are like most attorneys, you work longer and harder. You come in evenings and weekends and you try to move faster. I have studied the field of time management for some years now. Ever since I began coaching attorneys to have more satisfying, balanced practices and lives, this issue has come up again and again. Regardless of why the attorney hires me for coaching, inevitably our first session is, I am too overwhelmed to think about what I want to do next. I am barely keeping up. Or when hired by the firm manager, often the complaint is, He is not keeping up and we are concerned. So here is the deal: Working harder and faster does not increase productivity. What occurs is that you become overwhelmed. When people feel overwhelmed, they shut down. Can you remember a time when you felt there was just too much to do? Do you recall what that felt like for you? It makes you work less efficiently. I want to offer a couple of foundational time management tools. This is just a starting point, but very important. First, be present to what you are doing. What does that mean? It means do one thing at a time and focus on that one thing. When you put all your energy and attention on the task at hand, you will not only do it better and more efficiently, but faster than if you are distracted and thinking of other things. The idea in managing your time is to become conscious always of the choices you are making. Most people manage their time unconsciously, simply doing what they have always done, repeating what their parents did, or the way they learned to behave in school or from other attorneys in the firm. This leads to the second, closely-related tip. Stop multitasking! Multi-tasking is on some level unconscious. You are working on one thing and another comes to your attention so you start working on that, without asking yourself, what is the best thing to do right now? Begin to notice what you are doing and train yourself to do one thing at a time and see what happens. If you are working on a brief and the phone rings and you are talking to your client while still looking at the brief and an pops up and you begin to read it, you are not doing three things at once. You are failing to do anything. You are partially focused on three different things, which means you are not focused on anything. You will make a mistake on the brief and need to go back and correct it. You will have to ask your client to repeat herself or worse, you will think you understood her and make an error later which you have to correct, which takes more time. Or you will lose trust with her when she realizes you are not listening, which creates more work and uses more time, as you try to rebuild that relationship. Don t take my word for it - try it out. You will see that working on those three things, one at a time takes less time than attempting to do all at once. These are only two of many time management tools I will be exploring when I speak at Santa Barbara College of Law on June 8th. Come out and learn more tools to work smarter and not harder, so that you can feel more in control, more balance, more at peace with your practice and life overall. Cami McLaren is a Certified Professional Performance Coach. She will be speaking on time management. For more infomration contact Jennifer Drury at SBCBA Barbecue SAVE THE DATE! Nestled along the banks of the Mission Creek sits the the charming Santa Barbara Museum of Natural History, and the location of the next SBCBA Barbecue on Friday, June 17th. Hope to see you there! May

12 Legal News Santa Barbara County Co-Champions Rock State Mock Trial Finals By Bill Woodard S anta Barbara County Mock Trial Co-Champions and arch rivals San Marcos and Dos Pueblos were all smiles on Sunday as both teams capped their outstanding seasons by winning medals at the California Mock Trial Championships held in Riverside, California. The tournament brought together thirty-two county champions for the three-day competition. La Reina High School from Ventura County was crowned the champion and will represent California in the National Championships. In an unprecedented showing, Santa Barbara County teams both placed in the top eight in the state, with San Marcos placing 5 th and Dos Pueblos placing 8 th. Both schools went 3-1 after two days of grueling backto-back trials. The San Marcos Royals, with victories over Sonoma, San Francisco, and Tulare counties were a scant three points in one trial short of competing for the championship, while the DP Chargers with victories over Los The Dos Pueblos team members Angeles, Monterey, and San Francisco counties won the eighth place medal their second straight top-eight finish in the state tournament. The state finals are the culmination of a long season of work for the mock trial competitors. The ability level of these students is amazing, said San Marcos teacher coach Luke Ohrn. They work all year long and then challenge themselves at the highest level at the state. It is a testament to their ability that both teams from Santa Barbara did so well. San Marcos senior Ellen Gleason said, Mock trial is an incredibly rewarding experience, and this year in particular, it was great to have the opportunity to represent Santa Barbara so well at the state competition. San Marcos senior Gaby Wildfueur said, State finals was an amazing experience. All of our months of hard work were put to the test once again as we fought trial after trial, and I could not be any more ecstatic with the results. Winning fifth in the state is one of my proudest accomplishments. This was a weekend I will never forget. In early March, for the first time in history, both teams were named county co-champions after they tied in the championship round. After a tiebreaking trial was held two days later, the Royals earned the lone state championship slot. However, last Wednesday, the Chargers learned that they had secured a wildcard slot at the tournament. But the short notice left the team with only two days to prepare. Still, Dos Pueblos co-captain and lead prosecuting attorney Jeff Campbell was elated to learn that his team was headed to Riverside. It was obviously shocking, but also thrilling, said Campbell. It sort of felt like an Oceans 13- type movie going around campus to get everyone back together for one more weekend. The way the team responded shows how much this team means to us all. Having two county teams finish in the top-eight at the state finals is a source of pride for Dos Pueblos co-captain Corinne Ruth. This year s county competition was extremely intense and served to remind all of us of the large amounts of talent possessed by the students of Santa Barbara County, said Ruth. It was a privilege for us to be given the opportunity to go to the state competition alongside a team as talented as San Marcos. I m so proud of how well Santa Barbara County did as a whole at the state level, proving how skilled both teams are. If you d like more information on this topic, please contact Bill Woodard ( or Eric Burrows ( 12 Santa Barbara Lawyer

13 Legal News The San Marcos team wearing their medals. Santa Barbara s Leading Business Law Firm Buynak Fauver TRUSTED LEGAL ADVISORS Same Team. New Name. The leading business law firm in Santa Barbara has changed its name to Buynak & Fauver llp. With Michael Fauver joining Tim Buynak as a named partner, the firm reasserts its commitment to serving its clients proactively, practically, and with an eye to innovation long into the future. Legal specialties include: Business, Corporate and Venture Mergers and Acquisitions Estate and Tax Planning Land Use and Real Estate Employment Civil Litigation and Trials Mediations and Arbitrations El Paseo Building, 820 State Street, 4th Floor, Santa Barbara blf03885_sblaw_fnl.indd 1 May /12/11 1:26 PM

14 Criminal Justice Harmless Error and Enron By Robert Sanger The harmless error rule comes up in criminal cases on appeal and where collateral relief is sought. Simply put, if there was legal error in a case (that does not amount to structural error), the reviewing court can decide whether the error requires reversal by determining whether the error was harmless beyond a reasonable doubt. With regard to jury instruction errors, the question is whether the jury would have convicted anyway if they had been instructed properly and whether the reviewing court can say that beyond a reasonable doubt. In California, we see this applied regularly. Quite often in murder cases, particularly those where death was imposed, the California Supreme Court will find a number of errors, but will uphold the conviction or death sentence finding that the error was harmless beyond a reasonable doubt. Of course, many of these same cases are later overturned by the federal courts, but the point is that the doctrine is often applied in our state s jurisprudence. In the recent Enron case involving the conviction of Jeffrey Skilling 1, the United States Supreme Court remanded the case to the Fifth Circuit Court of Appeals to make the determination as to whether the instructional error that they found to have occurred influenced the jurors to the point that the error could not be considered harmless beyond a reasonable doubt. The Fifth Circuit has now rendered an opinion and found that the instructional error was, in fact, harmless. 2 In this month s Criminal Justice column, we will look at the opinion and its ramifications for the harmless error doctrine, and the potential conflict of the judicial application of that doctrine with the Sixth Amendment. The Honest Services Ruling In the Skilling case, the jury was instructed that the defendant could be found guilty of conspiracy based on alternate theories, one of which was that Mr. Skilling had conspired to defraud the public of the honest services of the Board of Directors of Enron. This, in turn, was based on 18 U.S.C that specifically said that wire and mail fraud prosecutions could be based, not just on defrauding a person or entity out of something of value, but on the theory that in some sense, someone was deprived of someone else s honest services. This was roundly criticized as giving federal prosecutors the power to criminally prosecute people for such a wide range of conduct that there was no restriction on their discretion and that there was Robert Sanger no notice to the public of what was prohibited. The mail fraud statute, 18 U.S.C. 1341, prohibits the use of the mails to execute any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises. As such, it extended federal jurisdiction to virtually every kind of fraud prosecuted in state courts as long as the mails were used in the execution of the scheme. Section 1346 was enacted to expand this even further beyond money and property to honest services. In the February, 2010, Criminal Justice column, we wrote about this overreaching statute, and the fact that the United States Supreme Court had granted certiorari in three cases, one of which was United States v. Jeffrey K. Skilling. 3 It turned out that later that term, the Court decided Skilling and the other two cases in a way that did not declare 18 U.S.C unconstitutional in its entirety, but did find it unconstitutional to the extent that the concept of honest services was employed in cases not related directly to bribery or kickbacks. In other words, if there was no bribery or kickback scheme, the jury should not be instructed that they can convict for a deprivation of honest services only. As the Supreme Court analyzed this in Skilling, the defendant had not been charged with bribery or kickbacks and his jury had been instructed on honest services. It was one of the theories of the conspiracy count. Since there was no bribery or kickback allegation, the Court concluded that the case would have to be reversed if the erroneous instruction (that the defendant could be convicted of conspiracy to deprive the investors of the honest services of the Board of Enron) was not so harmless that it would not have affected the guilty verdict on that count and would not have affected the guilty verdicts on the rest of the counts. Continued on page Santa Barbara Lawyer

15 May

16 Hon Deborah Talmage, Hon. Harry Loberg Penny Mathison and Ammon Hoenigman in the Princess castles The Deborah Talmadge Children s Room Former County Supervisor Naomi Schwartz, Hon. Deborah Talmage Hon. Brian Hill, Court Executive Officer Gary Blair 16 Santa Barbara Lawyer

17 May Renee de Jong, Hon. Deborah Talmage, former Mayor Sheila Lodge

18 Named a 2010 Southern California Superlawyer! To s 18 Santa Barbara Lawyer

19 Criminal Justice Sanger, continued from page 14 Harmless Error Remanded for Decision by the Fifth Circuit The United States Supreme Court, for some reason, decided to not decide the issue of whether the error was harmless or not. Instead, the Court remanded the case back to the Fifth Circuit for that determination. It is worthy of brief discussion that such a remand does not make doctrinal sense except on the level that, as a matter of expending Supreme Court resources, the Court has the power to shift the burden back to the Circuit. In other words, if the harmless error analysis is based on the state of the record as a matter of law (which it must be, since, the case is not remanded to the trial court for its impressions of the evidence), then why is the Fifth Circuit any better suited to make that determination than the Supreme Court? They are viewing the same record and, presumably, following the same harmless error law. Perhaps there is the thought that the Supreme Court would send it back so they can review the harmless error determination again a second time and see if the Fifth Circuit got it right. In any event, the case was remanded to the Fifth Circuit, and the Fifth Circuit eventually found, on April 6 th of this year, that the instructional error was harmless error. Mr. Skilling s trip through the federal judiciary thus far has been unrewarding. 4 The Circuit found that there were alternative theories by which the jury could have found the defendant guilty of conspiracy and that the jury was not prejudiced by the instruction in finding him guilty on the other counts. To do so, the Fifth Circuit had to come to terms with some of its precedents and overrule one of them. They purported to refine and solidify their jurisprudence of harmless error as they did so. A Constitutional Flaw in the Analysis The problem here is that any reviewing court that tries to make a determination of harmless error on instructional issues is engaging in a highly speculative enterprise. Unless we are talking about an instructional error that is hypertechnical, for instance, a syntactical error, how can a group of three or nine judges or justices decide that it really didn t matter to the jurors? This presumes that judges know what Unless we are talking about an instructional error that is hypertechnical, for instance, a syntactical error, how can a group of three or nine judges or justices decide that it really didn t matter to the jurors? May was and was not important to the jury and really deprives the defendant of his constitutional right to a trial by jury. How many trial judges have sat through all the same evidence and watched the jury leave to deliberate only to find out that the jury did not see the case the same way they did at all? In Skilling, the Fifth Circuit spent a good deal of time discussing the alternative theories that were advanced by the prosecution to support the conspiracy. They went out of their way to say that honest services was only mentioned once by the prosecutor in his argument as to Mr. Skilling, although they admit that it was mentioned several times regarding Mr. Lay, Skilling s co-defendant. The Circuit opinion goes over the strength of the evidence against Mr. Skilling on the alternate theories and remarks that as to some of it, there was only Mr. Skilling s testimony to the contrary. But that is why instructional error of this sort cannot be evaluated for harmless error based on the appellate determination that alternative theories of guilt still would have carried the day. There is simply no way to know that. The idea that the Circuit can impose its judgment that the mere word of the defendant could not have been persuasive or that other evidence carried greater weight is precisely a substitution of judicial determinations in place of the right to have the jury decide. This is contrary to the current trend in Supreme Court Sixth Amendment jurisprudence to the effect that the right to a jury trial in a criminal case, and the defendant has the right to have the jury make all determinations of fact. In United States v. Gaudin, 515 U.S. 506 (1995), the Court held that the judge could not take the determination of materiality away from a jury in a perjury case on the grounds that a defendant had the Sixth Amendment right to have a jury determine each and every element of an offense. Since then, in a series of cases, the Court has reaffirmed this right in other contexts. In Apprendi v. New Jersey, 530 U.S. 466 (2000), it held that, under the Sixth Amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence in excess of the relevant statutory maximum must be found by a jury, not a judge, and must be established beyond a reasonable doubt. The Court also applied Continued on page 21

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