Legal Pad

Prosecutors: Liu Will Overturn Death Sentences Just Because

[Cynthia Foster]

Nearly 75% of California's district attorneys oppose the nomination of Berkeley Law Professor Goodwin Liu to the Ninth Circuit. According to SFGate, the main issue is Liu's stance on the death penalty.

In a letter to leaders of the Senate Judiciary Committee, the prosecutors attacked a paper Liu coauthored in 2005 that criticized death penalty decisions by Samuel Alito, then President George W. Bush's nominee for the Supreme Court. 

Among the unenthusiastic are DA Ed Berberian of Marin County and David Paulson of Solano County.

And for more on the letter...

[Cheryl Miller]

The Liu opposition letter was the product of work between various district attorneys and the pro-death penalty Criminal Justice Legal Foundation.

CJLF Legal Director Kent Scheidegger said he wrote a letter to district attorneys asking them to go on record against Liu’s nomination and they responded by writing their own letter (.pdf) of opposition.

Kern County District Attorney Ed Jagels played a leading role in gathering the signatures of 41 other DAs, a spokeswoman for his office said.

Scheidegger said Liu is reminiscent of judicial candidates submitted during the Carter administration.

“We’ve been seeing gradual progress in the Ninth Circuit,” he said. “Then this nomination came along and it’s like we’re right back in those days again.”

The California District Attorneys Association did not take a position on the letter, nor was it involved in drafting it or circulating it for signatures, said CDAA president Gary Lieberstein.

More Fun With Tasers

[Greg Mitchell]

A split Ninth Circuit panel today sided with Seattle officers who'd tased a pregnant woman three times after she refused to sign a speeding ticket that she didn't think she deserved.

Judge Cynthia Holcomb Hall's majority opinion said the officers had done nothing to justify stripping them of qualified immunity.

Just a few months ago, another Ninth Circuit panel OK'd a suit in another traffic-stop tasing case, Bryan v. McPherson. In that one, the court said police overreacted when the agitated driver -– who, through a series of misfortunes, was half-naked and on his second traffic stop of the morning -– started slamming his fists into his own thighs and yelling "gibberish." Judge Kim Wardlaw said that while the tasing officer's "desire to quickly and decisively end an unusual and tense situation is understandable," his means of doing so -- shooting the driver with a taser, causing him to fall to the ground and chip four teeth -- violated the driver's "right to be free from excessive force."

But in Friday's case, Brooks v. Seattle, the tasing was done in "touch, or drive-stun mode," which Hall distinguished from the tasing in Bryan.

The distinction didn't sit well with Judge Martha Berzon, whose dissent begins:

Here is what happened to Malaika Brooks, a pregnant mother, as she was driving her son to school one day: Two, soon three, police officers surrounded her. The officers thought she was speeding in a school zone; she says she was not. Brooks provided her identification when asked, so there was no doubt who she was or where to find her. The officers wrote her a ticket but she refused to sign it. Refusing to sign a speeding ticket was at the time a nonarrestable misdemeanor; now, in Washington, it is not even that. Brooks had no weapons and had not harmed or threatened to harm a soul. Although she had told the officers she was seven months pregnant, they proceeded to use a Taser on her, not once but three times, causing her to scream with pain and leaving burn marks and permanent scars.

Ninth Circuit Ruling on Religious Music In Schools Stands

[Cynthia Foster]

The U.S. Supreme Court deferred to a Ninth Circuit ruling that a school district is allowed to veto a piece of religious music a school intended to play at its graduation ceremonies.

The Ninth Circuit had said that a Washington state school's decision to keep its graduation ceremony secular did not violate the students' rights. SCOTUS agreed and declined to take up the appeal.

You can read more about the case and Ninth Circuit Judge Richard Tallman's ruling at SFGate.

It's Settled: Deal Over Juvenile Strip Search Proceeds Despite Ninth Circuit Ruling

[Dan Levine]

Turns out Contra Contra County settled a jail strip search case just a tad too early.

CoCo agreed to pay $700,000 – plus $800,000 in attorney’s fees – to resolve a lawsuit over strip searches of juveniles. But after they signed the deal, the Ninth Circuit U.S. Court of Appeals sided with San Francisco and struck down an adult strip search case brought by the same plaintiff lawyer, Mark Merin. So CoCo asked Magistrate Judge Joseph Spero for an “expedited” case management conference to discuss the Ninth Circuit’s impact on its case.

Translation: "Let us wiggle out of this thing, dammit!"

But Spero approved the final settlement in Moyle v. Contra Costa County Friday.

Walker's Got Little Patience

[Dan Levine]

Never a good sign when a judge walks off the bench while a lawyer is in mid-sentence.

Yet, Orrick Herrington & Sutcliffe partner Stephen Bomse should have been too surprised by Chief Judge Vaughn Walker’s exit Tuesday: Walker had been hammering Bomse throughout a hearing on whether groups like the ACLU would have to turn over documents to the proponents of Prop 8.

This discovery mess – which threatens to delay a final Walker ruling on the constitutionality of Prop 8 – commenced in January, when the Ninth Circuit forced Yes on 8 to turn over some of its campaign materials.

Keker Shoots Off Amicus Salute in Fed-a-Pult Case

What to do when a conservative majority on the Ninth Circuit has ruled against you en banc? Get the leader of a veterans group to file an amicus curiae brief painting the conservatives as having denigrated the armed forces! As a bonus, get one of San Francisco’s top attorneys to lend his name to the effort.

John Keker, a Marine veteran and head of Keker & Van Nest, filed the brief today on behalf of William F. Mac Swain, national president of the Korean War Veterans Association. The case is U.S. v. Hinkson, in which the government convicted an Idaho man for initiating a murder-for-hire plot against federal officials. At trial, the main witness against David Hinkson appeared on the stand bedecked with a Purple Heart, which he claimed was a product of service in the Korean War. When the defense tried to challenge the medal, the witness, Elven Joe Swisher, produced a military document which purported to prove its authenticity.

Faced with conflicting evidence in Swisher's personnel file, Ninth Circuit Judge Richard Tallman — who was sitting by designation — let the testimony in, and Hinkson was convicted.

After trial, when the defense supplied an affidavit from an officer calling Swisher's document a forgery — and proving that he never served in Korea or won a medal — Tallman didn't order a new trial. Instead, he sentenced Hinkson to 33 years, which he is serving in a Supermax prison for terrorist suspects.

Liberals on the court went ballistic, but Tallman’s conservative colleagues vindicated his handling of the so-called Fed-a-Pult case en banc. Now Hinkson’s attorney Dennis Riordan is hoping for super en banc review, in which all active judges on the circuit hear the case. This has never before been done, and Keker’s filing is part of the attempt to persuade the court to break new ground.

“What amicus is asking this Court to understand is that its reasoning and language are a slap in the face to veterans and jurors alike,” Keker wrote. “For they imply — at a time when this nation is fighting two wars and losing more soldiers every month — that the average American no longer attaches any significance to a veteran’s wartime service. That proposition is not merely unsubstantiated but unfathomable — profoundly out of step with the true views and sentiments of the citizens who serve on our juries.”

— Dan Levine
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Does This Mean Bybee Goes on Colbert Now?

Looks like the impeachment fire surrounding Ninth Circuit Judge Jay Bybee is going to be deprived a lot of oxygen.

According to Newsweek, a long awaited Justice Department report on the so-called torture memos — which Bybee signed when he worked for the Bush Administration — will say that Bybee and Berkeley Law Professor John Yoo did not commit professional misconduct. Rather, the report concluded that Bybee and Yoo exercised “poor judgment.”

Bybee has been lambasted over his role in approving the memos, and he himself has expressed mixed feelings about his time in the Justice Department, as explored in my profile of the judge last year (free reg. req.). The department’s Office of Professional Responsibility originally recommended that the two lawyers be referred to disciplinary authorities, but longtime career prosecutor David Margolis downgraded that prescription, Newsweek reported.

No predictions from the magazine about when the full report will be released, but if the age-old Washington DC ‘soften the ground’ leaks are any measure (the Post had more details over the weekend), we won’t be waiting too much longer.

— Dan Levine

Who Didn't Get Disciplined For Doing Something Bad Before Joining the Bench? Guess.

Hey, kids! Time to play a round of Name That Ninth Circuit Judge. This episode is brought to you by the court’s judicial discipline authorities, and hosted by Chief Judge Alex Kozinski.

Let’s get right to it: According to an order issued last week, the court can’t punish a judge for misconduct committed before he (or she!) joined the federal bench. In addition, it cannot consider “complainant’s allegation that the Senate would not have confirmed the judge if it knew of the alleged misconduct.”

That’s not all. Wrote Kozinski: “Complainant also alleges that negative press attention attracted by the judge has had ‘a prejudicial effect on the administration of the business of the courts.’ Even assuming that is so, press attention is not ‘conduct’ by a judge.” Case dismissed!

Guess the judge, after the jump