Case o' The Week: Ninth Takes Pot-Shot at Marijuana Conviction -- Stever, Brady, and Sixth Amendment Right to Present a Defense

The Oregon FPD earns an important victory this week in a great case illustrating the interplay of Brady and the Sixth Amendment right to present a defense. United States v. Stever,__ F.3d __, No. 09-30004, 2010 WL 1757926 (9th Cir. May 4, 2010), decision available here.

Players: Big win by D. Or. AFPDs Bryan Lessley and Tonia Moro.

Facts: Officers discovered a 7,000-plant marijuana grow on rural property on which Stever lived. Id. at *1. Some of the plants were found on adjoining Forest Service land, along with gear to support the grow. Id. Two Hispanic men fled when the officers arrived, leaving behind guns, a phone, an alien ID card, and a wallet that had Stever’s business card and Stever’s mother’s cell number. Id. Stever told the police that he had hired one of the fleeing aliens to work on a generator. Id.

Before trial, Stever moved for discovery on Mexican drug trafficking organizations (DTOs) growing marijuana in Eastern Oregon. Id. The government refused, and the district court refused to compel disclosure. Id. at *2. Moreover, the court prohibited the defense from arguing that it was actually a Mexican DTO that was (solely) responsible. Id. Stever was convicted.

Issue(s): “Stever sought to defend on the ground that the marijuana growing operation found on an isolated corner of his mother’s 400-acre property was the work of one of the Mexican drug trafficking organizations . . . that had recently infiltrated Oregon. He was prevented from doing so by two district court rulings, the first denying him discovery related to the operations of DTOs and the second declaring that defense off-limits. We consider whether these rulings violated Rule 16 of the Federal Rules of Criminal Procedure, Stever’s rights under Brady v. Maryland, . . . and Stever’s Sixth Amendment right to make a defense.” Id. at *1.

Held: 1.Discovery: “The district court’s conclusion was illogical. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” FED. R. EVID. 401 (emphasis added). The requested evidence, if it existed, tended to show that a Mexican DTO planted the marijuana. It also tended to make it more probable that Stever was not involved, as there would then be an alternative explanation for the grow that would not entail the consent, much less the participation, of any of the Stevers.” Id. at *4.

2. Sixth Amendment / Right to Present a Defense: “Having denied Stever the opportunity to explore this discovery avenue, the district court declared a range of defense theories off-limits, without considering in any detail the available evidence it was excluding. [I]ts reason for doing so—that any such evidence was necessarily irrelevant—was deeply flawed. Stever was not only prevented from putting on evidence important to his defense . . . ; he was prevented from making his defense at all. We must conclude that Stever’s Sixth Amendment rights were violated.” Id. at *7

Of Note: One of many notable aspects of Judge Berzon’s excellent opinion is her systematic rebuttal of the government’s discovery arguments. For example, she rejects the government’s whine that evidence of the Mexican DTOs may have simply meant that Stever conspired with the Hispanic men. Id. at *4. That conclusion is “certainly possible,” she concedes, but “Stever correctly argues that his guilt is less likely with Mexican DTO involvement than without it . . . . “ Id. at *4. That’s great language – Brady doesn’t only apply to evidence capable of one, exonerating interpretation. If evidence is material and makes guilt less likely, that’s enough to trigger Brady.

How to Use: Constitutionalize! That mantra, drilled into us by our instructors in training seminars, is borne out in Stever. Judge Berzon observes that the case would have simply been remanded if this was just discovery error, but the combination of Brady error and the restraints on the Sixth Amendment right to present a defense meant the conviction is reversed. Stever is a textbook example of how to preserve and constitutionalize trial objections to win on appeal.

For Further Reading: Stever was right: pot is now a common sight, nestled among the desert sagebrush. (photo above right). See, “Remote Oregon Counties Gearing Up for Another Busy Pot-Growing Season”, article available here.


Image of marijuana among Oregon sagebrush fromhttp://media.oregonlive.com/news_impact/photo/potplantsjpeg-896953f1c878b685.jpeg

Image of the Hon. Marsha Berzon from http://blog.law.uark.edu/wp-content/uploads/2007/08/judge_marsha_berzon.jpg


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

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Case o' The Week: Ninth Skeptical of Alien Encounter - Leal-Del Carmen, Mat Wits, and Discovery

"The most famous definition of 'chutzpah' is, of course, itself law-themed: chutzpah is when a man kills both his parents and begs the court for mercy because he’s an orphan.

  But there’s another legal chutzpah story. A man goes to a lawyer and asks: 'How much do you charge for legal advice?'

  'A thousand dollars for three questions.'

 'Wow! Isn’t that kind of expensive?'

 'Yes, it is. What’s your third question?'

  Chutzpah."

        Chief Judge Alex Kozinski and Eugene Volokh, Lawsuit, Shmawsuit, 103 Yale Law Journal 463 (1993), available here.  

   The federal government of the United States has thoughtfully provided these authors with a third example of this useful term. United States v. Leal-Del Carmen, 2012 WL 4040253 (9th Cir. Set. 14, 2012), decision available here.

Players: Decision by CJ Kozinski, joined by Judges Reinhardt and W. Fletcher. Big victory for San Diego Ass’t Defender Harini Raghupathi.  

Facts: Leal-Del Carmen was one of twelve undocumented aliens found hiding near the border. Id. at *1. (At least) four aliens were interviewed; three identified Leal-Del Carmen as the smuggler. Id. The fourth alien told agents – three times – that Leal Del-Carmen had not given orders to the group. Id. Before Leal Del-Carmen was appointed counsel this exonerating witness was deported. The three inculpatory alien witnesses were kept in the U.S.. Id. 

The district court refused to dismiss the indictment, refused to admit the video of the exculpatory witness’s statement, and refused to give a missing witness instruction. Id. 

Leal-Del Carmen was charged with alien smuggling, and the jury deliberated over two days before delivering a split verdict. Id. at *2.    

Issue(s): “May the government deport an illegal alien who can provide exculpatory evidence for a criminal defendant before counsel for that defendant has ever been appointed? We believe the answer is self-evident, as the government recognized in an earlier case where it moved to vacate a conviction after it deported witnesses whose testimony would have exculpated defendant.” Id. at *1.

Held: “The government’s wrongful deportation of a witness with exculpatory evidence, coupled with the district court’s evidentiary errors, deprived Leal Del-Carmen of a fair trial and his constitutional right to present a defense. This right includes, at a minimum, the right to put before a jury evidence that might influence the determination of guilt. Because we’ve found a violation of the right to present a defense, we must reverse the guilty verdict unless the government convinces us the error was harmless beyond a reasonable doubt. We’re not convinced.” Id. at *8 (internal citation and quotations omitted).

Of Note: The Chief’s palpable frustration stems from settled law on the removal of exculpatory material witnesses. Id. at *1. So sharp is this frustration that Chief Judge Kozinski characterizes a government argument as “close to the classic definition of chutzpah.” Id. at *7.

Beyond the sheer enjoyment of a good Kozinski opinion, however, the case is worth a close read for important holdings on discovery. That great 2010 Stever opinion figures prominently in the CJ’s analysis -- Leal-Del Carmen joins Stever in the Ninth’s line of admirable law on the Sixth Amendment right to present a defense. See generally here.

How to Use: Do you think it odd that the border agents interviewed only four of these alien witnesses – but (allegedly) not the eight others in the group? The Ninth does too. Id. at *1 n.3 (“We find it suspicious that the government would interview some of the witnesses but not the others.”) 

Happily, the government is now ordered to give all statements of all witnesses, or sworn declarations from the agents explaining what really happened, and declarations describing what interview notes or recordings have been discarded or destroyed. Id. The orders of footnote three are a welcome template for attacks on cherry-picked interviews -- a template that would convert nicely to a proposed order in district court.  

                                               

For Further Reading: The progressive Fourth Circuit (?!?) is ahead of the Ninth in the correct interpretation of the important “acceptance of responsibility” guideline, USSG § 3E1.1. The Ninth has unfortunately held that the government can withhold the third point (designed to protect trial resources) if a defendant pleads guilty and preserves an appeal. 

We’re on the wrong side of a 2-1 circuit split, but three jurists have just invited a petition for rehearing en banc. United States v. Vanegas-Ortiz No. 12-10135 (9th Cir. Sept. 7, 2012) (mem.), available here: 

OBJECT when a client pleads to preserve an appeal and is denied a reduction of the third offense level for acceptance. For a history of this issue in the Ninth, see collection of blogs here. 

Poster of Churchill from http://artofmanliness.com/2009/09/30/motivational-posters-winston-churchill-edition-part-i/

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

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U.S. vs. Struckman, No. 08-30463 (5-4-10) (Berzon joined by Farris and D. Nelson). A neighbor calls about a man jumping a fence and being in a backyard. The police respond, go to the house, and see a man meeting the description: white, black jacket, red backpack. One officer jumped the fence, another smashed the padlock, and the man, complying, says "its my house." Do the police verify? No. They handcuff him, search him, and search the backpack. A weapon and an empty magazine is found. The defendant was a felon in possession. The district court upheld the warrantless search under Terry. After trial, the defendant received a 17-year sentence. The 9th reversed the suppression ruling, suppressed, reversed, and vacated. In a comprehensive opinion, the 9th said that Terry was inapplicable. The backyard was fenced, and next to the house, and so was the curtilage. There was no probable cause for burglary because under the state statute, there was no entry into the house, or burglary tools, or attempt. There might be reasonable suspicion, but probable cause and exigent circumstances are required for a house/curtilage search without a warrant. There was none here for burglary. However, there might be a weak case for probable cause for second-degree trespassing. Even if there was, the government still needed an exigent exception, specifically exigent circumstances (avoiding destruction of evidence, hot pursuit, officer safety, need to prevent escape). None of those existed here. Moreover, the police could have simply asked the defendant his name, and then verified that he indeed lived there. The 9th anticipates the cry about the needs of the police officers, but the 9th stresses that the Fourth Amendment protections are only available if the defendant has standing in a house/curtilage. The defendant had standing here: he was the homeowner standing in the curtilage. The police could have easily determined that he owne the house.

A good opinion and overview of house/curtilage Fourth Amendment warrantless protections.

U.S. vs. Stever, No. 09-30004 (5-4-10) (Berzon with Farris and D. Nelson). This is a paen to repeated discovery requests. Defense counsel wanted evidence that helped the defendant, was Brady, and was part of his defense. What did the defense want? Evidence that Mexican trafficking organizations had recently infiltrated Oregon, and were responsible for the surreptitious planting of 7000+ marijuana plants on defendant's 40 acre tract bordering Forest Service land. It looked pretty bleak for the defendant. He had contact with suspects who fled (leaving behind i.d.), tire tracks that matched his truck, and actions in taking the plot back from a neighbor who had been grazing cattle on it. However, these, and other pieces of circumstantial evidence, could be explained. The suspects had been previously hired to work on a generator; tire tracks matched 50% of the trucks in the area; and there was no direct tie to the defendant. Most important, there was evidence that traffickers were secretly growing marijuana in public and private lands. The defense asked for it, but the government said "no." The court, when asked to compel, said "no," too, and added that the defense could not raise the defense at all. On appeal, the 9th (Berzon writing again...see above) reversed the conviction. The 9th found that the request fell under Brady, and was part of Fed.R.Crim.P. 16, and that the denial of the defense violated due process. The 9th easily found error, and also found prejudice. The evidence was relevant, could be introduced (citing drug experts on traffickers), and was critical. An excellent case, with Crosby, to argue for the right to mount a defense, and to get the relevant evidence from the government.

Congratulations to AFPDs Bryan Lessley and Tonia Moro of FPD Oregon office.

Case o' The Week: A Brady Bombshell -- Kohring and Discovery Nondisclosure

Could there possibly be anything better than a righteous and persuasive Brady / Giglio discovery decision penned by the Honorable Judge Sidney Thomas (right)?

Only an indignant and persuasive discovery dissent, penned by the Honorable Betty Fletcher (below left). United States v. Kohring,__ F.3d __, Slip. Op. at 3433 (9th Cir. Mar. 11, 2011), decision available here.

Players: Big win for D. Wa. AFPD Michael Filipovic. Decision by Judge Sidney Thomas, joined by Judge Tashima, concurrence and dissent by Judge Betty Fletcher.

Facts: Kohring, an Alaskan state legislator, had a series of private taped meetings with oil company executives where money was discussed or exchanged. Slip Op. at 3439. He was charged with several public corruption offenses in federal court. Id. The government’s lead witness was an oil executive named Allen. Id. Some of Allen’s transactions with Kohring culminated during a period of key oil legislation. Kohring was convicted of most of the counts. Id. at 3442.

While the appeal was pending, it was disclosed that Allen was also a witness in the infamous Senator Stevens’ case – and damning information about Allen had not been disclosed in either of the cases. Id. at 3442. Kohring’s case was remanded by the Ninth for a hearing on this evidence: the district court held that while the thousands of pages of nondisclosed evidence was favorable to the defense, Kohring hadn’t been prejudiced by its non-disclosure. Id. at 3444.

Issue(s): “The district court determined the prosecution had failed to disclose favorable evidence to Kohring, but it concluded the government did not violate Brady/Giglio because the newly-disclosed information is not material.” Id. at 3439.

Held: “We agree with the district court that the prosecution suppressed favorable material, but we respectfully disagree with its conclusion as to materiality. We conclude that the newly-disclosed information, when viewed collectively, is material and that the prosecution violated Brady/Giglio. We vacate Kohring’s conviction and remand to the district court for a new trial.” Id.

Of Note: Kohring joins United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010) as a discovery must-read for the defense. It is also a fascinating tale: Allen, the government’s snitch, had allegedly sexually abused minors, then tried to obstruct their testimony, was on meds that made his memory of the events fuzzy, had said to the feds that there was no quid pro quo for the payments to Kohring, varied wildly as to the amounts of payments that had been made, and voluntarily ate a grand’s worth of his FBI handler’s golf fees (which was never reimbursed) – and all of this info was not disclosed before trial!?!

How to Use: There’s too much of value in Kohring to fully report here: highlights follow. Judge Thomas explains how FRE 403 does not defeat the Brady / Giglio claim, in a rare appellate rebuke analyzing that broadly-discretionary rule. Id. at 3449. He explains that impeachment evidence isn’t “cumulative” if it shows different motives to lie, and if it reveals the magnitude of the snitch’s motives. Id. at 3450.

Of greatest importance, he rejects an AUSA's “work product” protection as insulation for Brady / Giglio facts within the work product: those facts must nonetheless be disclosed. Id. at 3456. That language alone is worth a quick discovery letter to your favorite AUSA, demanding a review of e-mails for all Brady / Giglio facts.

The only dark cloud is Judge Thomas’s refusal to dismiss the indictment, for government conduct that was at least “reckless” (and, we suspect, outrageous). Judge Betty Fletcher correctly takes him to task in her dissent, god bless her, and earns an apologetic rejoinder in the majority’s final footnote from her admiring colleagues. Id. at 3455 & n.5

For Further Reading:The prescient Judge Trott warned ‘em way back in ‘96 - time to revisit his classic article. See Hon. Stephen Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L.J. 1381 (1996).



Image of the Honorable Sidney Thomas from http://bloximages.chicago2.vip.townnews.com/billingsgazette.com/content/tncms/assets/editorial/4/cd/3f4/4cd3f488-5c61-11df-b658-001cc4c002e0.image.jpg .

Image of the Honorable Judge Betty Fletcher from http://www.law.umich.edu/multimedia/slideshows/PublishingImages/MootCourt2010/MootCourt5.jpg .



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


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Case o' The Week: Doe, a Discovery Dear - US v. John Doe, Affirmative Defenses, and Discovery

A visiting district judge on a three-judge panel rejects established Ninth precedent and shifts the burden of an affirmative defense onto the defendant.

(Albeit, with a little help from the Supremes . . . .) United States v. John Doe, 2013 WL 363016 (9th Cir. Jan. 31, 2013), decision available here.

Players: Decision by DJ William Smith, joined by Judges Fernandez and Berzon. Hard-fought case (and important discovery win) by ED Cal AFPD Carolyn Wiggin.

Facts: “John Doe,” a resident of Mexico, reached out to the FBI and tried to cooperate about drug cartels, to get his family to the States. Id. at *1. Meetings with an agent took place, though the agent disclaimed authorizing Doe to begin work. Id. at *2.

At the same time, a Fresno police detective investigated a case that – through Doe – netted twelve pounds of meth and five kg of cocaine. Id. at *2. When arrested, Doe immediately told the Fresno detective that he was working for the FBI. Id. The agent confirmed Doe was being “developed” as an informant but was not currently working for the FBI. Id.

Doe was charged federally. At trial he sought a “public authority” instruction that required the government to prove, beyond a reasonable doubt, that Doe did not believe he was acting as an informant. Id. at *3. Relying on the Supreme Court’s decision in Dixon v. United States, 548 U.S. 1 (2006), the district court denied the instruction. Doe was convicted. Id. at *3.

Issue(s): In Dixon, the Supreme Court held that “Congress intended the [defendant] to bear the burden of proving the defense of duress by a preponderance of the evidence.” Id. at *7 (citation omitted) (emphasis added). “The question of whether Dixon applied to affirmative defenses other than duress is a matter of first impression in the Ninth Circuit.” Id. at *7.  

Held: “[L]ike Dixon's duress defense, Doe's common-law affirmative defense of public authority must be proven by a preponderance of the evidence . . . .The district court was therefore correct in applying Dixon to Doe's public authority defense and requiring Doe, and not the government, to bear the burden of proof.” Id. at *8 (internal quotations and citations omitted).

Of Note: Doe does not stand for a “per se rule that the public authority defense must always be proven by the defendant by a preponderance of the evidence.” Id. at *9. The Ninth emphasizes that the question is statute- and case-specific. 

Here, the drug statutes at issue had a “knowingly” mens rea element that the public authority defense could not negate. The outcome might well be different for a specific intent crime. (Though this might be small solace – precious few federal crimes still have specific intent mens rea requirements, and how would public authority work in, for example, a federal assault case that requires specific intent? Maybe “attempt” crimes, with their specific intent mens rea, still give some hope for a Doe distinction).

How to Use: Something’s fishy with this agent. Phone records reveal that Doe called him on the eve of this big drug transaction, and Doe testified that he was working on the sale to help the FBI, yet the agent “didn’t remember” the phone conversation at trial. Before trial, Doe pushed for discovery of all information provided by Doe to the FBI, and all records of communications between Doe and the agent. Id. at *3. The district court denied the request as overbroad. Id. In a terrific discovery decision, the Ninth flatly reverses this ruling. Id. at *12. The Court explains that the discovery requests weren’t overbroad, counters that Doe couldn’t be expected to be more specific than he was in his request, and emphasizes (a la Stever) that evidence is relevant if it has “any tendency to make the existence” of a material fact more or less probable.” Id. at *13. Though not the primary holding, Doe’s discovery discussion is a hidden jewel worthy of heavy citation in discovery litigation.

                                               

For Further Reading: “Prosecutorial practices have contributed to disparities in federal sentencing.” So says the Sentencing Commission in its new Booker report. For a useful summary of the sure-to-be controversial tome, see Prof. Berman’s interesting post here.

Image of “Meet John Doe” movie poster from http://upload.wikimedia.org/wikipedia/commons/thumb/3/38/Poster_-_Meet_John_Doe_01.jpg/220px-Poster_-_Meet_John_Doe_01.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Not Milke-Toast - Milke and Brady / Giglio Violations

Hon. Chief Judge Alex Kozinski

"It's not just fairness to the defendant that calls for an objectively verifiable process for securing confessions and other evidence in criminal cases. We all have a stake in ensuring that our criminal justice system reliably separates the guilty from the innocent. Letting police get away with manufacturing confessions or planting evidence not only risks convicting the innocent but helps the guilty avoid detection and strike again."

United States v. Milke, 2013 WL 979127, *24 (9th Cir. Mar. 14, 2013) (Kozinski, C.J., concurring), decision available here.

Players: Decision by C.J. Kozinski, joined by Judges Farris and Bea.

Debra Milke

Facts: Debra Milke’s male roommate, and a friend of the roommate, were to take Debra’s young son to see Santa. Id. at *1. Instead, the men took the boy to a ravine and fatally shot him. Id. The men confessed, and one implicated the mother, Debra. Id. 
  A veteran Phoenix Police Detective, Armando Saldate, interrogated Debra with no recording and no witness. Id. at *2. Saldate claimed Debra confessed after being Mirandized; Debra countered that she had asked for a lawyer, wasn’t given one, and that she never admitted involvement in the murder. Id. Despite defense subpoenas at trial, there was limited disclosure of Saldate’s (staggering) history of misconduct. Id. *3. 

  Milke was convicted, sentenced to death, and denied state and federal post-conviction relief. Id. at *4. In post-conviction proceedings, Milke discovered and asserted nine documented episodes of Saldate’s deceit or misconduct. Id. at *5 (and Opinion Appendix).

Issue(s): “[ ] Milke argued that her ‘right to a fair trial’ had been compromised by her inability to get access to impeachment evidence in Saldate's personnel file. She asserted that the ‘truthfulness and veracity’ of Saldate were ‘material’ to her case and that, under federal and state law, ‘the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial . . . ..’ Milke argued that she had been denied her constitutional right to cross examine Saldate because the state did not give her access to impeachment evidence in his file. She blamed the trial court for ‘refusing to permit the full impeachment of the interrogating officer.’ . . . [S]he also asserted that the trial court had ‘imped[ed] defense counsel's ability to impeach Saldate.’ The prosecution didn't make the requisite disclosures, and the trial court didn't order the prosecution to do so.” Id. at *4.

Held: “Milke is entitled to habeas relief. We . . . REVERSE the decision of the district court and REMAND with instructions to GRANT a conditional writ of habeas corpus setting aside her convictions and sentences. Prior to issuing the writ, the district court shall order the state to provide Milke's counsel with Saldate's police personnel records covering all of his years of service, including records pertaining to any disciplinary or Internal Affairs investigations and records pertaining to performance evaluations. If the state believes that any of the materials it is ordered to provide are not relevant to Brady or Giglio, it may present them to the district court in camera, and the district court shall review them to determine whether they are relevant to Brady or Giglio, as explicated in our opinion. Defense counsel shall be allowed to see the documents and to argue why each might be Brady or Giglio material.” Id. at *20 (emphases added).

Of Note: Hard to overemphasize the bite of this Brady / Giglio opinion. How serious is the Ninth about these discovery violations? Enough to observe that the state trial judge “grossly misapprehended” the nature and contents of the documents – and then identify her by full name (including her middle initial, just to be clear). Id. at *9. Enough to send its opinion to the Az. USAO and to the DOJ Civil Rights division for possible federal prosecution of Saldate and other state and local officials. Id. at *21. 

   Milke is not just another decision with reheated discovery platitudes and bland assurances that things should improve. Our Chief has penned an attention-getter: Milke joins W.R. Grace and Stever as three discovery must-reads.  

How to Use: Milke is too rich to fully digest here. Here are highlights: 

• Giglio information isn’t just potentially discoverable; “it must be disclosed unilaterally as a matter of constitutional right.” Id. at *7. 

 • Giglio information must be disclosed when it provides a good-faith basis for impeachment – irrelevant whether the witness will deny the impeachment. Id. at *9. 

• Denial of impeachment from Giglio materials violates “meaningful opportunity to present a complete defense” and is a due process violation. Id. at *10. 

• Giglio disclosure representations should (apparently) be made under oath. Id. at *11. 

• Some cases may require court to review Giglio disclosure and not rely on prosecution’s review. Id. at *12. 

• Giglio obligations continue through sentencing. Id. at *16. 

• “The state is charged with the knowledge that there was impeachment material in Saldate’s personnel file.” Id. at *17 (emphasis added).
• Inadvertent nondisclosure is enough for a Brady / Giglio violation. Id. at *19. 

• General availability of impeachment information to defense doesn’t diminish state’s obligation to produce under Brady. Id.   

                                                        

For Further Reading: CJA comrades, your FPD-canaries are gasping in the coal mine -- a prudent time to sniff your post-sequestration air.  For a thoughtful piece of the latest on sequestration’s impact on FPD budgets, see the article in The Atlantic here.  

  As the good Ben Franklin wisely observed, "We must all hang together, or assuredly we shall all hang separately." 

Image of the Hon. CJ Kozinski from http://www.law.columbia.edu/ipimages/stonemootcourt/2012/1_Judges_Robing_Photo_Gallery/5_Robing.jpg

Image of Debra Milke from http://s1.ibtimes.com/sites/www.ibtimes.com/files/styles/v2_article_large/public/2013/03/15/debra-milke.jpg

Image of the canary in a coal mine from http://www.thegatewaypundit.com/2012/06/the-canary-in-the-coal-mine-is-gasping-for-air/canary-in-a-coal-mine/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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