Published: Jan. 6, 2011
Updated: 5:13 p.m.

Where's that 'liberal' 9th Circuit?

By FRANK MICKADEIT
COLUMNIST
THE ORANGE COUNTY REGISTER
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So much for the liberal-leaning, criminal-coddling U.S. Ninth Circuit.
With its ruling Thursday, the much-maligned federal appellate court ratified the trial court's decision to send Mike Carona to jail and upheld the work of a prosecution team that even the trial judge said erred.

The Ninth upheld District Judge Andrew Guilford's decision not to suppress a vital piece of prosecution evidence, and found in the prosecution's favor on another key matter of law, horribly damaging its reputation as the most liberal court in the republic.

The judge who wrote the opinion, Richard R. Clifton, did grow up in Massachusetts and did go to Yale Law School by way of Princeton – criminal-coddling caldrons all. But he must not have gotten the memo. Or perhaps it is because Clifton is actually a clear-eyed jurist who was appointed by a Republican president, George W. Bush – Bush's first appointment to the Ninth, in fact.

Clifton's appointment, in 2003, heralded a mini-shift in the Ninth. When he took the bench, more than 80 percent of the 29-member court had been appointed by Democrats. After Clifton, Bush appointed six more judges to the Ninth. Three of the seats had been held by Democratic appointees, meaning Republican-appointed seats on the Ninth have increased by a net of three since 2003. (Obama has had one appointment confirmed, but that judge replaced another Dem appointee, so, as of now, Obama's impact is a wash.)

Besides Clifton, the two other judges on the Carona panel were Senior Circuit Judge John T. Noonan and Jay S. Bybee. Noonan was appointed by Reagan and as a senior judge is semi-retired. He is not counted among the 29. Like Clifton, Bybee was appointed by W.

In fact, based on Bybee's history, Carona is lucky he's not in a stress position as we speak. Bybee, while working as Assistant Attorney General of the United States, signed the so-called Bybee Memo, a 2002 document that ushered in use of waterboarding, sleep deprivation and other much-maligned interrogation techniques viewed by many as torture.

So is this decision symptomatic of a dramatic shift in the appellate court that took God out of the Pledge of Allegiance? Or is it that Carona simply had the amazing misfortune of having his randomly assigned appeal go to two of the only 10 Republican-appointed judges on the 29-member regular panel, and a senior judge also appointed by a GOPer?
Most surprising to me about Thursday's ruling was that the Ninth actually thought Guilford went too far in chastising the prosecutors.

At trial, Guilford found the U.S. attorneys had violated a rule that generally forbids them from having contact with a party represented by a lawyer. Guilford said that by wiring up Don Haidl and providing him with a phony subpoena to fool Carona, the feds used Haidl as their agent and were thus in violation. But Guilford thought that suppressing the resulting evidence – a tape of Carona trying to get Haidl to lie – was too severe a remedy.

Carona's attorneys wanted the evidence thrown out, of course, which would have effectively dismantled the case. Not only did the Ninth reject that, but said prosecutors Brett Sagel and Ken Julian did nothing wrong in the first place.

The defense had wanted the Ninth to adopt a bright-line rule: if the feds make contact with a represented party, it's a violation, and the evidence gets tossed. Boom. The Ninth could have done that. Instead, it looked at the particulars of this case. The Ninth has found cases where it found prosecutorial violations in such circumstances, but as it noted, it has "more often than not held that specific instances of contact between undercover agents or cooperating witnesses and represented suspects did not violate (the rule)." And it did not find so here.

Beyond this case, the legal significance of this decision is that for the first time, the Ninth has squarely ruled that prosecutors can create phony papers and give them to an informant to use to deke a suspect who is represented by a lawyer. U.S. v. Carona may live on well after the principals are gone.

It should be noted that the Ninth's decision happened to come down on the last day at the Register for the reporter who covered the Carona case gavel to gavel. After 13 years at the paper, Rachanee Srisavasdi becomes communications director at the Asian Pacific American Legal Center, whose mission is to advocate for civil rights and provide legal services for those groups.

Mickadeit writes Mon.-Fri. Contact him at 714-796-4994 or fmickadeit@ocregister.com

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