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Wednesday Roundup

Sometimes it's better to quit while you're ahead.  Not my words, but the opening sentence in the 1st Circuit's opinion in U.S. v. Sevilla-Oyola.

I had an appeal once for a guy we'll call Jamal.  He'd pled out to kidnapping and rape with a 3-year gun spec, and was sentenced to 13 years.  I had a good argument that the plea had been coerced:  the judge had held a hearing four days before trial where he invited the prosecutor to recount the evidence against Jamal, commented on the strength of that evidence ("you want to go to trial without any explanation for your DNA being there?"), told Jamal that "I certainly think you should consider pleading," and finally promised him a sentence of 13 to 15 years if he pled, as opposed to the 33 years he was facing on conviction.

The problem with the appeal?  Jamal had gotten a very good deal.  In addition to DNA evidence (this was a stranger rape), the incident had begun at bus stop, and the videotape recorded Jamal leading the woman away at gunpoint.  If I succeeded in getting the plea vacated, the State wasn't going to make him a better offer, and there's a decent possibility that he'd be dumb enough to insist on a trial and wind up with a lot longer sentence.  

I told him about this possibility in several letters, but he insisted on pursuing the appeal, so I did.  The 8th District saved him from himself by affirming the case.

Sevilla wasn't so lucky.  He'd appealed a 405-month sentence, and wound up with a 327-month sentence plus a consecutive term of life imprisonment.  If you want to know how that happened, you can read the opinion, but it's not for the faint of heart; with the dissent, it runs an even 50 pages, filled with the intricacies of Federal sentencing procedure.  What I found more interesting was the majority's effort to explain how it had given Sevilla an opportunity to avoid that result.  At oral argument, the court "explicitly asked Sevilla's counsel if Sevilla understood that this appeal could subject him to" a longer sentence, and got counsel's promise to consult with Sevilla to confirm that.  When counsel "filed an unresponsive motion" a few days later, the court "entered a written order again instructing counsel to inquire whether Sevilla wished to pursue the appeal."  Sevilla made the wrong choice.

But it's something to think about; few courts are going to go to those lengths to protect your client.  And my takeaway from this?  Get it in writing.

No-class action.  I've mentioned ridiculous class actions before, my favorite being the one filed by outraged parents against the makers of Grand Theft Auto:  San Andreas.  It wasn't the fact that the video game allowed their sons to practice mayhem on a level that would embarrass Charles Manson; the problem was that it also allowed them -- fade to Marlon Brando in Apocalypse Now, "the horror... the horror..." -- to get an online cheat so they could watch simulated sex scenes.

Well, not many outraged parents:  less than 1/100 of 1% of the people who bought the game opted to join the class.  The judge decertified the class for that reason, as well as the fact that the proposed settlement provided $1 million in attorney fees, but only a total of $30,000 for all the members of the class. 

But that pales in comparison to the class action lawsuit filed against the makers of Pella Windows.  You have a proposal where the class members get only $8.5 million of the $90 settlement.  You have four of the five class members objecting to the settlement, and then being replaced by four others selected by the lead counsel, Illinois lawyer Paul Weiss, who was getting 73% of the $11 million in attorney fees being paid out.  You have Weiss facing a 30-month suspension of his law license for sexual harassment, and needing a quick settlement before the sanction would bar him from receiving attorney fees. 

Oh, one more thing.  The lead plaintiff -- the one who didn't need to be replaced -- was Weiss's father-in-law. 

The 7th Circuit tossed the settlement, branding it "inequitable -- even scandalous."


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