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Friday Musings

The Drug War.  The US Sentencing Commission, like every other government agency, publishes comprehensive reports at the end of the year.  The USSC, in their effort to aid the reading public, also publishes a "Quick Facts" broadsheet about particular offenses.  Here's the one for drug trafficking, which tells us little that surprises.  Crack is no longer A Thing; only 8.1% of Federal cases involve that drug.  It's been greatly surpassed by meth, which comprises a third of all prosecutions.  Whites and blacks are charged with about the same frequency; the heavy lifting is done by Hispanics, who account for over 50% of drug trafficking prosecutions.  The Mexican connection to drugs is on vivid display, and not only by that; the top five districts for trafficking are in the southwest.

Next year's stats should be interesting.  Over sixty percent of drug traffickers received a below-guidelines sentence; much of that came at the request of the government (in other words, the defendant squealed on someone else), but in a quarter it came without that request.  New Attorney General Jeff Sessions had announced a harder DOJ position on drugs -- at least, he did before he became President Trump's punching bag -- so we'll see how that goes.

Karma's a bitch.  The Americans with Disabilities Act (ADA), enacted in 1990, had the salutary intent of improving the lives of the disabled.  Not only did it impose new regulations on businesses, it created a private right to sue.  As a result, as with so many things motivated by good intentions, it has become one of the most abused laws on the books.

That's especially true in California.  Want proof?  The Golden State accounts for 40 percent of all ADA cases in the country, despite having only 12 percent of the disabled population.  Law firms have sprung up to get into the act, canvassing strip malls to find any technical excuse to threaten a business owner with a lawsuit.   One gas station owner was forced to install a shield under a bathroom sink to prevent burns to the legs of someone in a wheelchair, which might have been a good idea, except that the bathroom didn't even have hot water.

And this isn't a side business for the firms:  it's their only business.  They recruit plaintiffs, like Robert McCarthy, who doesn't even live in California but has filed more than 400 disability lawsuits, including 91 in just the past year.  Two law firms accounted for 44% of all ADA lawsuits.

One of the targets for the Mission Law Firm in San Jose was Zlfred's Restaurant in central Fresno, operated by Reza and Fatemah Saniefar and their three children, immigrants from Iran.  The lawsuit forced the restaurant to close, and Reza died before a Federal judge dismissed the lawsuit in March.

I'm not sure how much the Saniefar's learned about American culture, but they certainly learned one thing:  that we are a litigious society.  They sued the law firm, under the civil provisions of the Racketeer Influence and Corrupt Organizations Act.  At least according to this article, they'll have some arguments.

It's all about me, and some filing tips.  Good news!  SCOTUS will begin electronic filing this coming term!  That should make my work much easier.

Uh-huh.  I did have one case where I filed three petitions for certiorari.  An attorney had taken over a case at the point of a second appeal to the Ohio Supreme Court, and decided we were also going to file motions to reopen in both of the earlier appeals, and pursue all of that to the ultimate venue.  (The client had lots of money, and I even got some of it.)  I filed three petitions for certiorari, bluntly informing my colleague that I had a better chance of being appointed to the Supreme Court than we had in getting the Court to accept any of the cases.  I didn't get the appointment, as you may have heard, and we didn't get in.

The more likely response to the announcement would be, "What took you so long?"  The 8th District has had electronic filing for forever, and the Supreme Court has had it for at least a couple of years.  I know it's been at least that long, because in 2014 I filed an appeal and Memorandum in Support of Jurisdiction in the Supreme Court, on the last day due, sending it down by FedEx.  You know how they say if it absolutely, positively has to get there?  Well, not so much.  They attempted delivery at eight in the morning, when the court was closed, and it sat on the truck the remainder of the day.

Good thing to know:  there's something called leave to file a delayed appeal in the Ohio Supreme Court.  I got it in that way (and wound up winning the case).  Another good thing to know:  there's no way to file a brief late.  A few years before that, the Cuyahoga County Prosecutor's Office sent a brief down by FedEx (note a recurring theme) the day it was due.  The truck broke down.  The prosecutor's office filed a motion for leave to file the brief instanter, with the consent of the public defender's office.  No go:  the clerk wouldn't accept it, because there's no provision for it in the rules.

Yet another good thing to know.  To be filed electronically on a particular date in the Supreme Court, the brief has to be submitted by 5:00 PM.  Not so in the 8th; you can submit one up to midnight.  A friend of mine got caught in that, submitting her MISJ to the Supreme Court at 6:09 PM.  She got it in with the delayed memo thing, but I can speak from personal experience when I tell you that getting a call from the Supreme Court clerk's office telling you that they won't accept your pleading because it was filed too late has a pronounced effect on your blood pressure.

One more good thing to know:  if you're filing a brief in one of the districts which doesn't have electronic filing -- and most of them don't -- briefs are considered filed on the date you mailed it to the court.  Not motions, briefs.  

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