Legal Pad

No Cameras Allowed in Prop 8 Trial. Unless They Are.

Update:  The Ninth Circuit on Thursday issued a press release saying cameras would be allowed in courts under its jurisdiction on an experimental basis.  Does this mean cameras for the Prop 8 case?  Well, here's the most interesting sentence in the release:

Cases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge.

Walker: Camera-shy, yet so photogenic …

Chief judge for the Northern District? That guy over there on the right.  We'll have more on CalLaw tonight, and our original post is below.

As of today, cameras will not be permitted to televise the federal challenge to Prop 8. But that may change by the time trial starts next month.

Under local and circuit rules, television cameras aren’t allowed into court, said Northern District Chief Judge Vaughn Walker during a final pretrial conference Wednesday. However, the Ninth Circuit conference passed a toothless resolution a couple years ago supporting the concept in civil bench trials, just like the Prop 8 case. Now, the circuit’s governing council is mulling a pilot program to allow it, which “may be considered in the near future,” Walker said.

Later in the day, Legal Pad just happened to be at Seventh and Mission, chatting with Ninth Circuit Chief Judge Alex Kozinski. So we asked whether the circuit might pass the pilot program in time for the Jan. 11 Prop 8 trial. The normally loquacious Kozinski turned a touch furtive. “I really don’t want to comment,” he said.

En banc review of the recent Ninth decision on the case? Follow the jump.

Kozinski is Colorful in Dissent on Death Penalty Case

This morning, the Ninth Circuit moved yet another en banc AEDPA opinion that tops 100 pages. This time eight judges, including conservatives Milan Smith Jr. and Jay Bybee, voted to toss the death sentence against Scott Pinholster. Chief Judge Alex Kozinski leads the three dissenters.

Smith tweaks Kozinski pretty good (“Despite our dissenting colleague’s well-known flair for ‘creative’ writing, it is not appropriate for a federal appellate court to conjure up evidence that does not exist”). And true to form, as creative writing goes Kozinski’s last graf (.pdf) is a sparkler.

“Meanwhile, prison has been good to Pinholster. He sits in his cell reading Machiavelli, Voltaire ‘and all the philosophers,’ drawing pictures to sell over the Internet,” Kozinski wrote. “He enjoys the gravitas, authority and mentoring opportunities that come with being an elder in his prison gang, and has surgery performed on his knees at taxpayer expense. He still stabs people whenever he can, without passion or regret; ‘it was just business,’ he explains. His conscience doesn’t trouble him about the fact that he took the lives of two fellow human beings; he has never expressed the least remorse for his killings. The people of California are entitled to put an end to Pinholster’s paid vacation and insist that the punishment lawfully imposed on him be carried out.”

— Dan Levine
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Prop 8 Foes Attack Expertise of 'Expert' Witnesses

From McGill’s site: Official mascot Marty the Martlet (also not qualified to testify about sociological ramifications of gay marriage).

A truckload (.pdf) of filings (.pdf) went online in the federal challenge to Proposition 8 over the last two days, and some begin to sketch out the evidence which will be in play at the January trial. Our favorite tidbit so far: Prop 8 opponents calling one of the other side’s experts a crackpot (.pdf).

The person in play is Dr. Katherine Young, a professor who agitates against gay marriage from a perch at McGill University in Montreal — an esteemed institution which, in addition to Young, has produced such benefits to society as organized hockey, CIA-financed mind control, and your faithful Legal Pad correspondent (Class of 1997). According to the same-sex marriage side, Prop 8 supporters want to call Young as an expert on what universally constitutes marriage and why.

But, anti-Prop 8 folks note, Young is an expert in … Hinduism.

Ted Olson lists the many, many things she's not an expert in, after the jump.

Getting The Band Back Together: The Reyes Trial Do-Over Starts

The Greg Reyes backdating show returned to Judge Charles Breyer’s courtroom Wednesday afternoon, but as spinoffs go, we’d rather have been watching What’s Happening Now!!

The government has indeed decided to retry Reyes, said Assistant U.S. Attorney Adam Reeves. Yet Justice Department honchos in Washington D.C. are going to honor a request from defense counsel — submitted yesterday — to give the case another look, Reeves said. That could also lead to a narrower superseding indictment, he said, which may shorten the retrial.

“If you may remember,” Reeves said.

Breyer cut him off. “I remember it all,” he said with a tired voice.

Charles Breyer ain’t waitin’ around … after the jump.

Howard Rice Name Partner Has Good Day With Supreme Courts

It was a big day for Jerome Falk Jr. and punitive damages.

The director of Howard, Rice, Nemerovski, Canady, Falk & Rabkin’s litigation department scored wins from the California Supreme Court as well as the U.S. Supreme Court.

Falk represented McKesson in an employment case in which a supervisor at the company made snide remarks and belittled an employee who continually missed work due to diagnosed panic attacks. A Yolo County jury had hit McKesson with more than $3.5 million in compensatory damages and $15 million in punitive damages. In a 5-2 ruling today, the Supreme Court lowered the punitive damages award to $1.9 million.

Also today, the U.S. Supreme Court reportedly rejected Ford Motor Co.’s challenge to punitive damages in an $82.6 million award in an Explorer rollover case. Falk represented the woman, Benetta Buell-Wilson, who was paralyzed from the waist down when she swerved to avoid an object and her 1997 Explorer rolled four and a half times.

“It’s ironic that I’m on either side in one day,” Falk said.

— Kate Moser

Reinhardt Rules With Eye on the Prop 8 Federal Case?

Here’s another adventure, courtesy of Ninth Circuit Judge Stephen Reinhardt.

Awhile back, in an administrative order, Reinhardt found that a federal public defender was unconstitutionally denied health insurance benefits for his same-sex spouse. Today, the judge decreed that the FPD, Brad Levenson, receive back pay. But in an interesting little wrinkle, this latest missive (.pdf), was issued “for publication.”

According to Ninth Circuit rule 36-5: “An order may be specially designated for publication… and when so published may be used for any purpose for which an opinion may be used.” Clearly, Reinhardt is trying to lay some friendly precedential groundwork for the federal challenge to Prop 8, which is currently before Northern District Chief Judge Vaughn Walker. In his ruling, Reinhardt calls the federal Defense Of Marriage Act — which court administrators had cited to deny Levenson benefits — a violation of due process. Same-sex individuals deserve some form of heightened scrutiny, Reinhardt wrote.

Early X-Mas gift for the gay-marryin' types, after the jump ...

Justices Take Comedic Shots at Bilski Lawyer

The Supremes had a field day with Bilski today, our colleague and IP maven Joe Mullin reports.

This is the huge patent case over whether you can patent so-called business methods. In this case, Bernard Bilski patented a method for hedging commodities. Please.

As Mullin reports, the Justices needled Bilski’s lawyer, Michael Jakes of Finnegan Henderson, Farabow, Garrett & Dunner endlessly about just how ridiculous his client’s patent is.

A selection of our favorite zingers, after the jump:

Ninth Circuit Stands Firm On Reyes Prosecutors' Misconduct

Federal prosecutors just got their second punch in the gut over the Greg Reyes backdating case: the Ninth Circuit has explicitly refused to back away from a finding that the government committed deliberate misconduct during trial.

Reyes’ securities fraud convictions had been the Northern District’s highest-profile success in the war against stock-option backdating, because Reyes had been CEO of Valley darling Brocade. But over the summer an appellate panel threw out those verdicts, finding that AUSAs Tim Crudo and Adam Reeves misled the jury by stating that Brocade finance department didn’t know anything about backdating at the company. In fact, it did.

In the aftermath of that opinion, the government didn’t ask that the court reinstate the convictions. Rather, it just asked that it eliminate any judgment that Reeves and Crudo acted deliberately. This is a big deal in Justice Department-land: a deliberate misconduct finding triggers an investigation from DOJ’s Office of Professional Responsibility, which falls somewhere between root canal and colonoscopy on a federal prosecutor’s list of preferred procedures.

Today, the court issued an amended order, but it only made a factual change; it didn’t strike the word deliberate. A U.S. attorney spokesman didn’t immediately respond to an email, nor did Crudo, who has since returned to a Latham & Watkins partnership.

— Dan Levine

Kozinski Escaping Discipline Over Smut

Looks like the multi-front disciplinary campaign against Ninth Circuit Chief Judge Alex Kozinski is falling silent.

The U.S. Judicial Conference dismissed an appeal by a former top judiciary staffer, in which Kozinski was accused of allegedly breaking federal law when he disabled the court’s Internet monitoring systems back in 2001. The staffer, Ralph Mecham, alleged that former Chief Justice William Rehnquist took a dim view of Kozinski’s actions and said that Kozinski should watch his porn at home.

But the conference found that Mecham’s allegations had been previously examined, and found not worthy of a judicial misconduct finding. And Meecham, the former executive director of the Administrative Office of the Courts, waited too long to file a formal complaint. At the time the chief justice himself didn’t ask for a formal misconduct investigation, and now many of the percipient witnesses — including Rehnquist — have died.

“A full and fair investigation into this aspect of the matter is not possible,” the conference ruled, upholding a decision from the Third Circuit U.S. Court of Appeals, which heard the disciplinary case instead of the Ninth Circuit.

The Third Circuit has already wrung an apology out of Kozinski for making, if not porn, then NSFW images of a tacky and sexual nature, publicly available on a personal web site. Kozinski said he didn’t mean it to be accessible for everyone.

— Dan Levine

Ninth Circuit Judges Duck Out of State Secret Review

Jay Bybee: Well, we know why he’s recused from the rendition case …

Ninth Circuit Judge Jay Bybee isn’t participating in a critical case about the state secrets privilege.

The appeals court decided today to hear en banc a civil lawsuit brought by one of the victims of extraordinary rendition, the practice of kidnapping terror suspects and flying them to foreign prisons. The defendant is a Boeing subsidiary which operated the flights. An earlier Ninth Circuit panel had allowed the suit to proceed, saying it could not be quashed solely on the federal government’s claim that it would jeopardize state secrets.

Bybee, who has come under intense criticism for signing the so-called Torture Memos when he worked in the Ashcroft Justice Department, was recused from the en banc vote. So was Judge Stephen Reinhardt, a liberal leader whose wife works for the ACLU in Los Angeles; the civil liberties group represents the plaintiff. Other judges recused from the case are Margaret McKeown, Ronald Gould, Milan Smith Jr. and Sandra Ikuta. We’re guessing professional ties to Boeing, especially for McKeown and Gould, since they have Seattle roots. Any readers want to fill in the blanks?

— Dan Levine