Legal Pad

Medical Event Causes Abrupt End to Capital Case Argument

[Scott Graham]

A frightening moment at the U.S. Court of Appeals for the Ninth Circuit this morning as Deputy Attorney General Bruce Ortega appeared to experience symptoms of a cardiac event during a capital case argument. Ortega was administered oxygen and taken by gurney to an ambulance. He appeared conscious and alert while departing, and a spokeswoman for the AG's office said he's expected to be OK.

Ortega, 50, was nearing the end of rebuttal in a 32-year-old capital case, Walker v. Martel, calmly listing the aggravating circumstances outlined by the California Supreme Court, when he appeared to grow short of breath and asked for a short break. After a drink of water, Ortega told the court he wasn't well and asked to submit the case. "I hate to do this," he apologized.

Two of Ortega's opponents, Douglas Young and Nanci Clarence, hurried across the courtroom to help, with Young helping Ortega lie down. Judges Barry Silverman and Susan Graber summoned medical help, removing their robes and coming down from the bench. At one point Judge Graber had to re-engage the courtroom audio system to tell Judge Ronald Gould, who was appearing by satellite linkup, that the post-argument conference would be delayed until help arrived.

Paramedics, who had been told that Ortega was experiencing chest pain and a rapid pulse, arrived in about 10 minutes and the deputy AG was whisked to an ambulance.

Ortega had been urging the Ninth Circuit to reinstate a death judgment against Marvin Pete Walker, who was convicted in 1980 of murder during the robbery of a San Jose liquor store, plus the separate robbery, beating and sexual assault of a woman in San Jose. U.S. District Judge Saundra Brown Armstrong threw out the convictions and the death sentence in 2011 because Walker had been shackled during trial, and his attorney had failed to object.

Ortega argued that the knee brace Walker wore underneath his clothes was unobtrusive, and that in any event both the guilt and penalty evidence were overwhelming, so the failure to object was not prejudicial. The judges had sounded as if they might agree with Ortega about the guilt phase evidence, but probably not about the penalty phase.

 

Sex, Misstatements and Videotape Lead to Tough Argument

[Scott Graham]

Sometimes oral argument is just an ass-kicking, and there's not much counsel can do but take their lumps.

That was the case Thursday for Robert Miskell, an assistant U.S. attorney from Tucson who was defending Christopher Garcia's 40-year sentence for aggravated child sexual abuse before the Ninth Circuit.

Miskell started off on bad footing. During briefing the government had asserted, and then retracted, that the sentencing judge had watched video recordings of two other victims' statements before tacking on a 10-year enhancement. Miskell had barely uttered "May it please the court" before Judge Andrew Kleinfeld brought up the subject.

"Was there a videotape?" he asked.

"There's a videotape," Miskell started to explain, "but there's no ..."

"Did the government give the videotape to the court?" Kleinfeld asked.

No, Miskell confirmed.

"So the brief said it, but it wasn’t so, and you corrected that?" Kleinfeld said.

"That is correct," said Miskell, who might as well have been sitting in a witness chair.

But the fun was only beginning for him, as Kleinfeld revealed that the Ninth Circuit had discovered another factual error in the briefs.

Arizona AG: Request to Recuse Graber Untimely, Unfounded

[Scott Graham]

The Arizona attorney general's office is defending Judge Susan Graber -- and its most recent death penalty win -- saying there's no reason the judge should recuse herself from the case of murderer Kevin Miles.

The Arizona federal defender moved for Judge Graber's recusal last week, saying the facts of Miles' case bear a strong similarity to the 1974 carjacking murder of Graber's father, Julius. A lay observer would "entertain a significant doubt as to Judge Graber's impartiality," Assistant Public Defender Timothy Gabrielsen wrote.

Assistant Attorney General Jonthan Bass fired back Wednesday, saying the motion was untimely -- coming a month after Graber and another judge denied Miles' petition for habeas corpus -- and unfounded.

"Miles did not move to disqualify Judge Graber until the panel ruled against him on the merits," Bass wrote. "The delay suggests that Miles is misusing the recusal statute for strategic purposes."

There's no authority for a judge's duty to recuse when a close relative has been a victim of a similar crime, Bass added. In any event, the murder of Judge Graber's father occurred "almost 40 years ago, 24 years before she was confirmed to this court" and 14 years before her appointment to the Oregon Supreme Court. "Since assuming the bench, she has ruled impartially in countless murder cases."

Plenty of Smiles for All of Judge Browning's Children

[Scott Graham]

There were far more smiles than tears at a memorial service for James Browning on Friday. And it seems that's how the former chief judge of the Ninth Circuit would have wanted it.

Speaker after speaker remarked on Browning's warm smile and ability to emphathize, regardless of whether he was talking to a United States senator or a homeless person on the streets of San Francisco's civic center.

"He was the judge who walked the neighborhood every day," said Judge Marsha Berzon, a former clerk of Browning's. "He was essentially friends with everyone on the street."

"He'd always come up to me and say, 'Friend Max!'" Senator Max Baucus of Browning's home state of Montana said in a videotaped statement. "And he meant it."

Browning -- known in his family as Jimmy, according to his nephew William Warden -- served on the Ninth Circuit for 50 years until his death in May at 93. At the San Francisco courthouse named in his honor, he was remembered Friday as a strong leader who invariably put the institution ahead of his personal ego, with the foresight to use information technology to keep the circuit unified.

Judge Reinhardt Calls Electioneering on Chief Judge of Nevada

[Scott Graham]

In a remarkable smackdown by federal court standards, the U.S. Court of Appeals for the Ninth Circuit assumed jurisdiction over a Nevada elections case this week, with one Ninth Circuit judge accusing the chief judge of Nevada of deliberately trying to run out the clock till the Sept. 7 deadline for printing the ballots. 

Chief Judge Robert Jones "has deliberately attempted to avoid entering any order that would allow an appeal before that date," Ninth Circuit Judge Stephen Reinhardt wrote in a concurrence to the Sept. 4 order granting the state's request to get before the appellate court. "His dilatory tactics appear to serve no purpose other than to seek to prevent the state from taking an appeal of his decision before it must print the ballots."

At issue is a 37-year-old law that allows Nevada voters to mark their ballot "none of these candidates." A lawsuit said to be financed by the Republican National Committee was filed in June seeking to invalidate that option, apparently on the theory that it could siphon off anti-Barack Obama votes from Mitt Romney in the presidential election this fall.

According to Reinhardt's concurrence, Jones, an appointee of George W. Bush, assigned the case to himself after the assigned judge withdrew. He then waited three weeks to set a hearing for Aug. 22, despite both sides' request for expedited briefing, according to Reinhardt. Two days later he entered a minute order granting the injunction, but -- with the Sept. 7 deadline for printing ballots looming this week -- had not issued a "reasoned opinion," in Reinhardt's words.

The Ninth Circuit's motions panel, consisting of Reinhardt and Judges Kim McLane Wardlaw and Carlos Bea, stayed the order Tuesday pending appeal and published it today.

Failure to act by the Ninth Circuit, Reinhardt wrote in his concurrence, "would allow the district court to erroneously invalidate Nevada's long-standing election process and to deprive its citizens of their right to participate in presidential elections in the manner that the law prescribes" without review by the Ninth Circuit or the Supreme Court. "Such arrogance and assumption of power by one individual is not acceptable in our judicial system."

[Note: This item has been corrected to reflect that Jones was appointed to the district court by George W. Bush, not the senior George Bush.]

 

Ninth Circuit Offers a Window Into Maui

[Scott Graham]

If you wanted to attend the Ninth Circuit Judicial Conference in Maui earlier this month but were pinching pennies like Senator Charles Grassley, the court is now offering the next best thing: video of the most popular seminars and ceremonies.

Among the highlights are Supreme Court Justice Anthony Kennedy's welcoming remarks to the conference; a conversation between Kennedy, Ninth Circuit Judge Marsha Berzon and three other conference representatives; and Quinn Emanuel partner Kathleen Sullivan's review of the 2011-12 Supreme Court term.

Grassley's severe criticism of the Ninth Circuit for scheduling its conference in Hawaii -- which led to the court postponing next year's conference to 2014 -- was clearly on the minds of conferees. "If the American public knows, and they should know, what we do at this conference, they would be immensely proud," Kennedy told the conference.

"We look forward to seeing you at the next conference in Monterey," said Ninth Circuit Judge Richard Clifton of Hawaii, introducing the last seminar of the conference. "We also look forward to being able to welcome this conference back to our islands at some point in we hope the not-too-distant future."

Recorder's 'At the Podium' Column Now With Video

[Scott Graham]

We're trying something new today with sibling publication The Recorder. We're presenting an edited highlight reel from a Ninth Circuit hearing to accompany today's At the Podium column on the argument.

In CTIA v. City and County of San Francisco, a trade association is trying to stop the city from forcing cellphone retailers to warn customers about the health risks from RF energy. After suggesting some revisions Judge William Alsup OK'd San Francisco's law last fall.

Andrew McBride and Vince Chabbria brought passion and energy to their arguments -- McBride so much that he spoke over the judges several times, while Chhabria drove one judge to a sarcastic rant .

The full hour-long hearing, which was recorded by the Ninth Circuit, can be viewed at the court's website here. The judges, left to right, are Mary Schroeder, Consuelo Callahan and Edward Korman.

9th Circuit to McKool: Speak Up or Forgo Your Settlement

[Scott Graham]

Last month, McKool Smith settled a malpractice claim brought against it by former NFL football players and asked the Ninth Circuit to remand the players' appeal to district court.

There's just one problem: McKool is joined at the hip with Manatt Phelps & Phillips in the appeal, which was argued a few months ago. On Monday, the appellate court issued a brief order saying it could not dismiss the part of the appeal dealing with McKool while retaining the part with Manatt, which hasn't settled.

"We have jurisdiction to review final judgments and, absent a Rule 54(b) severance, no appeal of the district court’s judgment may be taken by one party while the district court is busy working on another party’s case," states the order, filed by Chief Judge Alex Kozinski and Judges N. Randy Smith and Morgan Christen.

Nonetheless, the judges added, sounding just slightly spurned, "if plaintiffs and McKool prefer to be
bound by their settlement rather than our decision regarding the merits of the appeal, we could decide only the claims against Manatt and remand the case so that the district court can effectuate the settlement between McKool and plaintiffs.

"We will enter such a split disposition only if unequivocally requested by plaintiffs and
McKool before we render our decision," the judges added.

They gave McKool one week to make such a request and one more week for the plaintiffs to file any opposition.

No Slowing Down Berkeley Lab's Accelerator

[Scott Graham]

A laser accelerator capable of producing large amounts of radiation perched above an earthquake fault in a residential area of Berkeley -- what could possibly go wrong?

Not enough to require a full-blow environmental impact statement, the U.S. government argues in defending a proposed addition to the Lawrence Berkeley National Laboratory. A group opposing the plan took its case to the Ninth Circuit on Monday but didn't appear to get very far.

"Why should we presume radiation is going to be released?" Judge Richard Clifton asked Stephan Volker, an Oakland lawyer for an organization called Save Strawberry Canyon. "That seems to be the premise of your question."

Justice Department attorney Allen Brabender, representing the Department of Energy, said there's no chance of radiation being released because the accelerator parts have to be in perfect alignment to produce radiation -- an earthquake or other violent event would automatically shut it down. Plus, the laser will be surrounded nine feet of concrete, three feet of steel and 16 inches of lead to contain radiation from its ordinary use.

There's "no foreseeable risk" that radiation will be released, according to the environmental assessment that was performed, Brabender said.

Although an environmental assessment is less exacting than an environmental impact statement, it was sufficient to comply with the National Environmental Policy Act, or NEPA, he said.

Clifton did note that this year marks the 100th anniversary of the sinking of the Titanic, and "the specter that hangs over this and many of these cases is, 'What happens if things don't happen as expected?"

An accident "could be one reason" for that scenario, Judge A. Wallace Tashima suggested.

Brabender's assured them that the final environmental assessment included "accident analysis."

Volker insisted that rather than rigorous analysis, the Department of Energy looked only at anticipated levels of radiation. "'Anticipated' simply doesn't cut NEPA's mustard," he declared.

'Stolen Valor' Decision Not Sitting Well With Bybee

[Scott Graham]

Last month, the U.S. Supreme Court surprised a lot of observers by striking down the Stolen Valor Act, a federal law that had criminalized false claims about military honors. Part of the surprise was the high court upheld a ruling from the Ninth Circuit, despite a dissent from Judge Jay Bybee, who usually sees eye-to-eye with the high court.

On Friday it sounded as if the surprise still hasn't quite worn off on Bybee. In Brown v. Electronic Arts, a lawyer for football legend Jim Brown was arguing that the video game maker was misleading buyers by using Brown's likeness in the game without authorization.

"We don't think anyone has a First Amendment right to speak in a confusing manner," Ronald Katz told a panel of judges including Bybee.

"Although the court just recently told us that you can lie," Bybee said. "So the likelihood of confusion seems like maybe a possibility under the First Amendment -- if you can lie about things."

"I haven't studied that Medal of Honor case," Katz told him. "But that was a disturbing case."

It's safe to say Katz won't get any argument from Bybee on that point.