Trump’s Lawyers Will Get Away with Facilitating His Anti-Democratic Antics and They Know It

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—predicts that because the lawyer discipline process is broken, President Trump’s lawyers will get away with facilitating his anti-democratic misconduct. Professor Sarat notes that Lawyers Defending American Democracy (LDAD) released a letter calling on bar authorities to investigate and punish members of Trump’s post-election legal team, but he points out that while LDAD can shame those members, it still lacks the ability itself to discipline or disbar.

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California v. Maxwell

Docket: C080890(Third Appellate District)

Opinion Date: December 11, 2020

Judge: Cole Blease

Areas of Law: Constitutional Law, Criminal Law

Anthony Maxwell was convicted by jury of possessing methadone, drug paraphernalia, and on two occasions, possessing heroin with the intent to sell it. The trial court found true several allegations that lengthened the sentence for these offenses, including that defendant had a prior “strike” conviction, served a prior prison term, and committed one of the offenses while out on bail on another offense. The court sentenced defendant to 13 years in prison. On appeal, defendant argued: (1) the trial court wrongly denied his two motions to suppress evidence; (2) the court wrongly instructed the jury about “uncharged offenses” (that is, offenses that were discussed but not charged in this case); and (3) the court wrongly imposed several sentencing enhancements: an “on bail” enhancement - which the court imposed because defendant committed one of the offenses here while out on bail on another offense - and a prior prison term enhancement - which the court imposed because defendant served a prior prison term shortly before he committed the offenses here. After review of the trial court record, the Court of Appeal agreed with defendant in part. A sentencing enhancement for a prior prison term required, among other things, that the prior prison term be based on a felony conviction. "But that was not true of the prior prison term here." The Court found that although defendant served this prison term after being convicted of a felony, that felony conviction was reduced to a misdemeanor under Proposition 47 (the Safe Neighborhoods and Schools Act) before sentencing in this case. The trial court thus had no ground for increasing defendant’s sentence based on his serving this prior prison term. Judgment was modified to address this error, and judgment was affirmed as modified.

Moore v. Super. Ct.

Docket: E074429(Fourth Appellate District)

Opinion Date: December 11, 2020

Judge: Fields

Areas of Law: Constitutional Law, Criminal Law

Petitioner David Moore, Sr., was charged in a felony complaint with driving under the influence of alcohol, causing injury, and with driving with a blood-alcohol content of 0.08 percent or more, causing injury. The complaint further alleged that Moore had a blood-alcohol content of 0.15 percent or more, personally inflicted great bodily injury on one victim, and proximately caused bodily injury to two additional victims. The offenses allegedly occurred on November 22, 2018, when Moore’s vehicle collided with another vehicle, injuring three occupants of the other vehicle. Moore pled not guilty to the charges and denied the enhancement allegations. Before trial, on November 8, 2019, Moore’s counsel orally moved the trial court to hold a “prima facie hearing” to determine whether Moore met the statutory criteria to qualify for pretrial mental health diversion. The trial court denied Moore’s motion on the ground that Vehicle Code section 23640 rendered all felony and misdemeanor DUI defendants ineligible for pretrial mental health diversion under Penal Code section 1001.36. Moore then petitioned the Court of Appeal for a writ of mandate, claiming the trial court’s order was contrary to the plain language of Penal Code section 1001.36, its legislative history, and public policy. The Court of Appeal concluded that the legislative history of Penal Code sections 1001.36 and1001.80 showed that the California Legislature did not intend to make DUI defendants eligible for pretrial mental health diversion under section 1001.36. The Court denied Moore's petition and dissolved the order staying trial court proceedings.

In re Parrish

Docket: B292582A(Second Appellate District)

Opinion Date: December 11, 2020

Judge: Wiley

Areas of Law: Criminal Law

Kaheal Jevon Parrish was sentenced to life in prison without parole for felony murder. Although he was not the shooter, Penal Code section 190.2, subdivision (d) authorized his sentence, because Parrish was a major participant who acted with reckless indifference to human life. On remand from the Supreme Court for reconsideration in light of In re Scoggins (2020) 9 Cal.5th 667, the Court of Appeal denied Parrish's petition for habeas corpus relief under Scoggins, People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522, 610. The court concluded that Parrish was a major participant in the robbery who acted with reckless indifference to human life where he knew about the guns at the robbery, he was at the murder scene from start to finish, he knew his cohorts were not peaceable or cautious, the brevity of the robbery and the speed of the murder arose because Parrish told the gunmen a witness was calling the police, and defendant took no steps to minimize risk at any point.

Russell v. Man

Docket: E072266(Fourth Appellate District)

Opinion Date: December 11, 2020

Judge: Manuel A. Ramirez

Areas of Law: Real Estate & Property Law

Cornel Man was a general contractor. With his wife Victoria, he bought a vacant lot in Big Bear Lake. Raymond and Fenella Russell owned the house next door. A “massive” pine tree stood on the property line between them. The Mans built a house on their property. They should not have been able to; under the city’s development code, almost any house on the property, no matter how configured, would be too close to the tree’s “critical root zone.” The city, however, inspected the property and approved the plans. In the course of the construction, workers digging a trench cut the roots of the tree. As a result, the tree died. The Russells filed this action against the Mans. After a bench trial, the trial court found for the Russells. The major item of the damages it awarded was $219,756.50, representing $73,265.50, which the trial court found to be the value of the tree, trebled pursuant to Civil Code section 3346. The Mans appealed, arguing: (1) Civil Code section 3346 did not apply, because the Mans injured the tree while on their own property, not while trespassing on the Russells’ property; (2) there was insufficient evidence that the Mans acted willfully and maliciously to support an award of treble damages; and (3) the trial court erred in calculating the value of the tree. The Court of Appeal agreed Civil Code section 3346 did not apply, but the Mans remained liable on a negligence theory, and only for untrebled damages. Thus, the Court did not decide the sufficiency of the evidence argument. The Court also concurred the calculation of the tree's value was erroneous and excessive; the Court found the only value supported by he evidence was $37,000. The matter was remanded for the trial court to modify its judgment.