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ATTORNEY IS IN THE DARK OVER SECRET DOCUMENTS How do you ask a judge to unseal a document if you don’t know what it is and the original request is under wraps? That’s the position Davis Wright Tremaine lawyer Duffy Carolan found herself in Jan. 17. At the time, criminal defense attorney J. Tony Serra made the sealing request on behalf of his client, Jason Cazares. Cazares and three other men are charged with killing Eddie “Gwen” Araujo, a Newark teen-ager who lived as a woman. Carolan, who represents The Argus and The Oakland Tribune, argued that the actions of Alameda County Superior Court Judge Dennis McLaughlin and Serra violated 2-year-old provisions of the California Rules of Court. The rules are based on a 1999 California Supreme Court decision — NBC ( KNBC-TV) Subsidiary Inc. v. Superior Court — that says attorneys must file a motion and spell out legal justification before a judge can seal part of the court record. “We didn’t have a clue what was going on,” Carolan said. “We didn’t know what we were opposing.” As it turned out, Cazares’ lawyers sent the judge a letter — not a formal motion — asking McLaughlin to seal a letter that led to Cazares’ arrest in November. A co-defendant reportedly wrote a letter from jail to his girlfriend — which was intercepted by Santa Rita jail officials — that detailed the night the victim died. According to The Argus, if it were made public, the letter could taint the defendant’s chance for a fair trial. All of the defendants have pleaded innocent. Carolyn Hagin, who’s trying the case with Serra, declined to comment for this story. McLaughlin unsealed both documents and said the jail letter would become public if it’s introduced in court. The judge acknowledged that he was unaware of the new rules, Carolan said. The judge also went a step further: He required that the attorneys tell the newspapers if they plan to ask the court to bar access to future documents or proceedings. The preliminary hearing for People v. Magidson, 200660-D, is ongoing. — Jahna Berry CHINK IN THE ARMOR At long last, the 9th U.S. Circuit Court of Appeals has thrown the private securities plaintiffs bar a bone. It recently reversed a Los Angeles federal judge’s dismissal of a securities fraud complaint, reminding judges that as long as the plaintiffs lawyers are making progress, shareholders should not be cut off from pursuing their claims. It may be the first time since the court heightened pleading standards in 1999 that it reinstated a claim with a published opinion. “Maybe this is a chink in the armor, so to speak,” said Solomon Cera of Gold, Bennett Cera & Sidener. Cera was referring to the 9th Circuit case In re Silicon Graphics, 183 F.3d 970, which put in place a higher pleading standard than had any other circuit court in the nation — plaintiffs lawyers are required to show the defendants acted with deliberate recklessness. While acknowledging the standard is a difficult hurdle to clear, the court appeared to suggest that lower courts apply a degree of leniency when judging securities fraud complaints. “There is no bright-line rule. Sometimes it is easy to tell, but often it is not,” the court wrote in its per curiam opinion. “In this technical and demanding corner of the law, the drafting of a cognizable complaint can be a matter of trial and error.” Eminence Capital, an institutional investor, sued Aspeon Inc., a maker of point-of-sale software, after the company restated its quarterly earnings in 1999 and 2000, revealing that the company had, contrary to previous statements, actually lost money. In Eminence Capital v. Aspeon, 03 C.D.O.S. 602, the court noted that in three su ccessive pleadings, the plaintiffs alleged different theories in attempting to satisfy U.S. District Judge Alicemarie Stotler. She dismissed the suit in September 2001 — before the recent avalanche of financial scandals — without leave to amend. Stotler said the lawyers had “three bites at the apple.” After Silicon Graphics, the 9th Circuit has not been kind to plaintiffs cases. In July 2001, several 9th Circuit panels heard a slate of securities cases that were expected to clarify Silicon Graphics. Plaintiffs lawyers did not win a single case. — Jason Hoppin ROAD SIGNS After tossing barbs at each other in a discordant opinion about free speech rights along California freeways, a Sacramento appellate panel has suggested legislators now take up the issue. The Third District Court of Appeal decided Sanctity of Human Life Network v. California Highway Patrol, C032534, in favor of the CHP last week. The case came from Sacramento County Superior Court, where anti-abortion activists had unsuccessfully sued to prevent officers from interfering with future protests where people hold signs along freeway overpasses. Previously, the CHP had stopped overpass protesters, saying their antics caused a dangerous situation. Justices George Nicholson and Vance Raye agreed with the trial court and said the CHP can act against future protests if they cause traffic congestion. The justices limited their ruling by deciding only that the CHP can stop a protest if it causes traffic congestion, and did not decide whether such protests are illegal by nature. That wasn’t good enough for Presiding Justice Arthur Scotland, who slammed his colleagues in a pun-filled dissent that is 16 pages longer than the majority. He believes the panel missed an opportunity to protect drivers by declaring freeways are not public forums for debate. “It is inevitable that other individuals . . . will follow suit because . . . the majority essentially invites them to protest on freeway overpasses while the authorities wait to see what effect the protests have on traffic congestion and safety,” Scotland wrote. In response to Scotland, the majority said it was up to politicians to figure it out. “The Legislature has never spoken concerning the issue of expressive activities on freeway overpasses. . . . A specific and narrowly tailored statute would establish California’s public policy in this regard and give the courts a point of reference for application of constitutional principles,” Nicholson wrote. — Jeff Chorney

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