Thursday, November 04, 2010

Smith v. Mitchell, No. 04-55831 (10-29-10) (per curiam: Pregerson, Canby and Reed, D.J. D. Nev.). This is a remand (again) from the Supremes asking the 9th to reconsider its holding that, under Jackson, no rational trier of fact could have found the defendant guilty in this shaken baby prosecution. The case had come back twice before. The 9th, this third time, still said that taking all the evidence in the light most favorable to the state, and assuming the jury was rational, the evidence simply didn't prove guilt.
U.S. v. Krane, No. 10-30247 (10-29-10) (Thomas with M. Smith and Ezra, D.J. D. Hi.) This was an interlocutory appeal of a subpoena in this tax fraud case. An investment group that got served (but not charged) was ordered to turn over materials that it asserted were protected by the attorney-client privilege. The court said it was not. Up it went to the 9th, who considered whether the Perlman rule, which allows interlocutory appeals of a disinterested third party custodian of records, still survives after the Supremes decision in Mohawk Industries. The 9th said it does. Mohawk concerns the Cohen rule in collateral interlocutory appeals. Post-judgment appeals are usually sufficient to protect rights and privileges, and Cohen appeals are disfavored in light of other approaches, including contempt. Perlman deals with disinterested third parties, which will cave rather than litigate or be found in contempt. With that distinction made, the 9th then finds the issue is moot (what a disappointment) because the defendants entered a plea.


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