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‘SEA SPONGE’ SABOTAGES SPELL CHECK IN DANSER FILING Spell-checking on his computer is never going to be the same for Santa Cruz solo practitioner Arthur Dudley. In an opening brief to San Francisco’s First District Court of Appeal, a search-and-replace command by Dudley inexplicably inserted the words “sea sponge” instead of the legal term “ sua sponte,” which is Latin for “on its own motion.” “Spell check did not have sua sponte in it,” said Dudley, who, not noticing the error, shipped the brief to court. That left the justices reading � and probably laughing at � such classic statements as: “An appropriate instruction limiting the judge’s criminal liability in such a prosecution must be given sea sponge explaining that certain acts or omissions by themselves are not sufficient to support a conviction.” And: “It is well settled that a trial court must instruct sea sponge on any defense, including a mistake of fact defense.” The sneaky “sea sponge” popped up at least five times. Dudley said he didn’t notice the mistake in People v. Danser, A107853, until his client � William Danser, a former Santa Clara County Superior Court judge seeking reversal of his conviction for fixing traffic tickets � called for an explanation. Dudley corrected the error in his reply brief, telling the court that a “glitch” caused the weird wording and instructing that “where the phrase ‘sea sponge’ is found, this court should insert the phrase ‘sua sponte.’” The faux pas has made Dudley the butt of some mild ribbing around Santa Cruz. Local attorneys, he said, have started calling his unique defense the “sea sponge duty to instruct.” � Mike McKee PROSECUTING ACCOUNTABILITY Prosecutors would have to explain publicly why they agreed to a plea bargain with a defendant accused of a violent sex crime under a bill introduced last week by Sen. Dean Florez, D-Shafter. The bill, SB 1393, was one of three the moderate Democrat rolled out Wednesday to counter what he says are anti-rural provisions in “Jessica’s Law,” the proposed initiative that would ban sex offenders from living within 2,000 feet of a school. That restriction, Florez argued, would push offenders into the Central Valley and other regions where schools and housing are located farther apart. SB 1393 says “it is the intent of the Legislature” that district attorneys prosecute violent sex crimes under tough-sentencing Three Strikes or habitual-offender laws. If a prosecutor agrees to a plea deal instead, he or she would have to explain why “on the record,” according to the bill. The bill doesn’t specify what constitutes an adequate explanation or what penalties, if any, may apply to prosecutors who don’t explain themselves. A spokeswoman for Florez noted the bill had just been introduced and said no further information was available. Calls for comment to the California District Attorneys Association were not returned by press time. Florez’s bill follows weeks of criticism from state Republicans who said Democrats are “soft on crime” for not adopting a legislative version of Jessica’s Law. Democrats say some provisions of the initiative are unenforceable and have supported instead an alternative bill introduced by Assemblyman Mark Leno, D-San Francisco. The bill recently passed out of the Assembly with just one Republican vote. � Cheryl Miller HIGH COURT CULLS COMMENTS ON UNPUBLISHED OPINIONS A state Supreme Court committee may be ready to nudge the judiciary to soften its long-held presumption that most appellate decisions should not be published. The Advisory Committee on Rules for Publication of Court of Appeal Opinions, chaired by Supreme Court Justice Kathryn Mickle Werdegar, asked for comments Thursday on whether the rule that discourages publication should be changed to advocate it if one of nine criteria is met. “The committee concluded that the proposed changes will help courts to focus on the relevant factors in determining whether to publish a particular opinion, while avoiding the publication of large numbers of cases that would not be helpful to the bench and bar,” the panel wrote. Just 8 percent of opinions are currently published, according to the Judicial Council. The committee’s proposal doesn’t make advocates of full publication giddy. Veteran no-citation fighter Michael Schmier appealed to Assembly Speaker Fabian Nunez late Friday to author a bill allowing unlimited publication. The Werdegar committee proposal “does not address the no-citation problem,” the Emeryville attorney said, and no one else in the Legislature will carry the bill. Friday marked the last day for lawmakers to introduce new legislation, and Nunez appeared unlikely to sign on to the bill Friday afternoon. The committee’s proposal does go a step further than a draft 2005 report that only suggested there be factors that don’t determine whether an opinion is published. Based on 20 responses to that report, the committee decided to reconsider the presumption against publication. Interestingly, the committee added one caveat to the nine publication criteria: “Factors such as the workload of the court, or the potential embarrassment of a litigant, lawyer, judge or other person should not affect the determination of whether to publish an opinion.” Opinions on the proposed changes will be accepted through April 28. The committee will ultimately submit its final recommendations on the publication rule to the Supreme Court. � Cheryl Miller

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