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OWNER OR SUCKER? ONLY THE BALL KNOWS FOR SURE After snaring the ball with which Barry Bonds hit his 73rd home run, Alex Popov was pushed to the ground by an excited crowd. That might be expected. What he didn’t expect was to look in his glove and see a different ball — with the word “sucker” written on it. Martin Triano, Alex Popov’s attorney, said he can’t explain how the sucker ball replaced the Bonds ball in Popov’s glove. Just as puzzling is how Patrick Hayashi emerged from the scrum holding the real ball, which has an estimated worth of $1 million. Triano said one of the witnesses in a current court trial to determine the ball’s ownership testified that he saw Hayashi “reach toward Alex’s glove.” He implied that perhaps Hayashi switched them. “We just don’t know,” the plaintiff’s attorney said. Michael Lee, Hayashi’s defense attorney, said he’s heard about the sucker balls at Pacific Bell Park, but laughed off the suggestion that his client switched balls. Lee said Popov’s attorneys “must be desperate” to imply there was a switch. In fact, he said one of his witnesses testified that he saw the sucker early in Popov’s glove. He said his client picked up the Bonds ball as it rolled toward him while he lay on the ground. A Major League Baseball official later awarded it to Hayashi, his attorney said. Triano said he learned that there are crafty people in the park carrying the sucker balls. They’re also called “ball hawks” who scramble after fouls or home runs and use the phony balls as diversion. “They have the marked balls that they throw at the people to distract them, and then like birds of prey pounce on the real ball,” the attorney said. Sometimes the balls are thrown into McCovey Cove as a prank on the kayakers who await a home run, he added. Lee said the balls are also called dork balls and decoys. “It’s a dirty trick and it’s not part of fan culture,” said Lee. “It’s a mean-spirited thing to do.” — Dennis J. Opatrny WILL WE BE TESTED ON THIS? There’s nothing like an oral argument to liven up a day at law school. Students at Golden Gate University School of Law learned that lesson a week ago when four justices from the First District Court of Appeal entertained arguments in a lecture room on campus. A couple of hundred students crowded into the room — many standing along the walls — to hear four cases raising issues of criminal procedure, constitutional law, torts and civil procedure. The throng was dutifully quiet during the proceedings, but broke out into raucous lunchroom-style racket during the two-minute breaks between each case. The idea for the court’s visit originated with Myron Moskovitz, a Golden Gate professor of law who specializes in criminal law, litigation and dispute resolution and property development and real estate law. Moskovitz was teaching at Boalt Hall School of Law in the spring when the 9th U.S. Circuit Court of Appeals held oral arguments on campus. “It was absolutely fascinating,” Moskovitz said. “The students just loved it. It was a great tool for education.” So Moskovitz asked First District Justice Timothy Reardon, who was participating in an appellate advocacy program at Boalt at the time, if he and his fellow justices would consider holding arguments at Golden Gate. Reardon and Justices Laurence Kay, Patricia Sepulveda and Maria Rivera rotated on three-justice panels for the cases. “It was great,” Moskovitz said. “We had to turn students away” because so many showed up. As it turned out, one case — Markowitz v. Hastings College of Law, A096182 — proved of special interest to the students because it raised questions about whether it’s constitutional to charge out-of-state students more tuition to attend California’s public law schools. (Golden Gate is a private, nonprofit school.) Moskovitz said foreign students found the arguments especially interesting. “One of them told me that in Europe judges do not question the lawyers,” he said. “They just let the lawyers speak.” — Mike McKee MORE MEMDISPOS Chief Judge Mary Schroeder predicts the 9th U.S. Circuit Court of Appeals will likely “extend” an experimental program allowing the citation of unpublished opinions in certain circumstances. A rules committee will meet today to consider public comments submitted on the temporary rule, which was enacted in June 2000 and is set to expire Dec. 31. The rule allows lawyers to cite memorandum dispositions, known as “memdispos,” in petitions for rehearing or requests to publish an opinion. But has the rule been invoked often? “Not very much, is the bottom line,” said court clerk Cathy Catterson. According to a court study, since June 2000 there have been 110 requests for publication. Six were granted, and none of those invoked the rule. And of the 37 petitions for rehearing asserting a conflict, just one pointed out conflicts among unpublished memorandums. The debate over the use of unpublished decisions divides lawyers and judges. Most judges favor them to cut down on their workload. Many lawyers oppose them, both on principle and as a practical matter — it’s difficult to explain to a client why attorneys fees resulted in what appears to be cursory treatment by the court. The Eighth Circuit did rule that issuing opinions that could not be cited was beyond the power of the judiciary. The full court later rescinded the opinion. The 9th Circuit is one of the few appellate courts to issue a published opinion on the use of unpublished opinions. In Hart v. Massanari, 266 F.3d 1155, the court upheld its own rule prohibiting their use. Judge Alex Kozinski, one of the court’s most outspoken defenders of the practice, wrote the opinion. The 9th Circuit issues published opinions in only about 15 percent of the cases it decides. Many unpublished opinions, though vetted by judges, are written by law clerks or staff attorneys. Supporters argue that increasing the number of published opinions would place an enormous burden on the judges. Kozinski and Judge Stephen Reinhardt have even suggested that doing so might force the court to begin issuing one-word judgment orders, as some other courts have done. — Jason Hoppin DIFFERING ON THREE STRIKES In a published opinion, a federal judge in Sacramento said the Third District Court of Appeal erred in upholding a Three Strikes case. The 28-page opinion released Oct. 18 by U.S. District Senior Judge Lawrence Karlton is remarkable because the U.S. Supreme Court is scheduled to consider the constitutionality of California’s Three Strikes next month, said Assistant Federal Defender Rachelle Barbour. She represented Richard Martin Duran in Duran v. Castro, S-00-305. A Sacramento trial court judge had sentenced Duran to 25 years to life in prison after he pleaded guilty to possessing a small amount of heroin. Duran was sentenced under Three Strikes because his criminal record included two convictions for kidnapping. The sentencing was upheld in 1999 in a unanimous opinion written by Third District Presiding Justice Arthur Scotland. The state Supreme Court declined to review the case, and then federal Magistrate Judge John Moulds upheld Scotland’s decision. However, Karlton disagreed and chided Scotland and his colleagues for their one-sentence treatment of how the Eighth Amendment might apply to Three Strikes. “Given its terse treatment of petitioner’s Eighth Amendment challenge, it is impossible to say whether the Court of Appeals recognized and endeavored to apply the constitutional limitation on the relevance of recidivism. � Whatever the rationale of the Court of Appeals, its decision was either an outright failure to apply the applicable precedent or an unreasonable application thereof,” Karlton wrote. The deputy attorney general who worked on the case did not return a phone call seeking comment. — Jeff Chorney

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