In a 2-1 decision today, the Ninth Circuit U.S. Court of Appeals said Gov. Arnold Schwarzenegger didn't meet the "some evidence" standard in 2004 when he overtuned parole for a murderer-turned-model prisoner.
Instead, wrote Senior Judge Betty Fletcher, the governor relied on the bare facts of Fred McCullough's 1982 offense: the bludgeoning of a man asleep in his car for money to buy drugs. In 2007, U.S. District Judge Marilyn Hall Patel said that didn't meet the requirement that the governor present "some evidence" that McCullough was still dangerous.
In dissent, Judge Johnnie Rawlinson said Fletcher's decision can't be squared with Ninth Circuit precedent, citing another parole denial case in which a panel said the offense itself could be relied on so long as the denial was based on "factors beyond the minimum elements of the crime." In McCullough's case, Rawlinson noted, the governor cited the "especially heinous" nature of the murder. Under the federal precedents, that should be enough, she wrote.
McCullough, who was released a few years ago pending appeal and, the court notes, has gotten rave reviews from his employer, was represented by Daniel Bookin, a white-collar defense lawyer at O'Melveny & Myers.