Sunday, September 14, 2008

Case o' The Week: New Ninth Rule Tolerates Meddling -- er, "Involved" -- Trial Judges, U.S. v. Lopez-Martinez

A pretty good panel gives us a pretty disappointing decision, in United States v. Lopez-Martinez, 2008 WL 4149658 (9th Cir. Sept. 10, 2008), decision available here. In Lopez-Martinez, the Ninth decides -- for the first time -- that a trial court who actively suggests questions to attorneys (read, "AUSAs") doesn't abuse the neutral role of the presiding judge.

Players: Decision by Judge McKeown, joined by Judges Tashima and Gould.

Facts: Lopez-Martinez smuggled aliens across the desert into the States. Id. at *1. One alien (who became a lead government witness) testified that when his wife fell ill during the trip, Lopez-Martinez promised to call the Border Patrol for medical assistance. Id. The smuggler didn’t call, abandoned the pair in the desert, and the witness’s wife died. Id. Lopez-Martinez was tried for alien smuggling, conspiracy, and illegal entry. Id.

“The trial judge played an active role in the trial.” Id. *2. [Ed. note: a considerable understatement]. After the government finished a key witness (and before the Rule 29 motion) the judge excused the jury. With defense counsel present the judge offered much (unsolicited) advice to the AUSA on how to prove missing facts and establish “factual underpinnings.” Id.

Issue(s): “Lopez-Martinez now appeals his conviction . . . attacking the actions of the judge.” Id. at *1.

Held: “Although we have not had an opportunity, until now, to directly address the question, our sister circuits have held that there is nothing wrong with a judge suggesting a line of questioning to an attorney.” Id. at *2. “We agree with the reasoning of these courts; it would be disingenuous to condemn the trial judge’s inquiry here, given that it is already well established that the judge may question the witness directly.” Id. at *2.

Of Note: This is all OK, soothes the Ninth, because it turns out that this trial judge was being particularly fair to the defense. When the defense objected to the judge’s coaching of the AUSA, the judge responded that “he was concerned that he could not grant a Rule 29 motion in Lopez-Martinez’s favor without giving the prosecution a chance to meet his concerns.” Id. at *3. The judge also emphasized the seriousness of the charges, and kindly explained that “he did not want to see Lopez-Martinez convicted on accusations unsupported by the evidence.” Id. From these reassurances, the Ninth Circuit gleaned a “clear import” that the judge was trying to shore up any Rule 29 motion in favor of the defendant against appeal, and to ensure that if the defendant was convicted, it was on evidence, not speculation. Id.

What fine luck had Lopez-Martinez, to have such a thoughtful judge presiding over his case!

In the recent Garcia-Aguilar decision, Chief Judge Kozinski described the ten most terrifying words in the English language as, “I’m from the government and I’m here to help you.” 535 F.3d 1021 (9th Cir. 2008), see blog here. Substitute “district court” for “government,” and Judge Kozinski’s insight applies with equal force here.

How to Use: At least in theory, there are some limits to the district court’s role as the government's private trainer. “We are mindful, of course, that in some cases - although not here - the trial judge’s inquiries and suggestions may cross the line and affect the judge's role as an impartial participant in the trial process. A trial judge’s participation can overstep the bounds of propriety and deprive the parties of a fair trial when the record discloses actual bias or leaves the reviewing court with an abiding impression that the judge’s remarks and questioning of witnesses projected to the jury an appearance of advocacy or partiality. The judge’s remarks objected to by Lopez-Martinez were made outside the presence of the jury, and evidenced no bias on the part of the judge.” Id. at *3 (internal ellipses, quotations, and citations omitted).

A key fact here is that the coaching on the Rule 29 was made outside of the presence of the jury – such conduct before a jury may have resulted in a different outcome.

For Further Reading: A trial judge who actively develops facts in anticipation of a Rule 29 motion – instead of neutrally evaluating the government’s evidence at the end of its case – has slid into the European inquisitorial system of justice. Nothing wrong with that – if you’re in Europe.

For a good, old-fashioned take on Rule 29 motions and the American adversarial system of justice (including some plain talk on what the government’s burden really means) revisit United States v. James, 987 F.2d 648 (9th Cir. 1993) (reversing verdict when government forgot to introduce a stipulation of FDIC insurance in a bank robbery case).

Image of Judge McKeown from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Anonymous Anonymous said...

With Gould and Tashima the panel ought not have been labeled a "pretty good panel." Whenever Gould and Tashima are lumped together the government virtually always prevails.

Tuesday, September 16, 2008 5:14:00 PM  

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