Would You Like Justice Chin or Door No. 2?

If you were an inmate appealing your criminal conviction to the California Supreme Court, would you like to have Justice Ming Chin participating in the case, or would you rather take your chance on a randomly assigned appellate justice? Oh, and suppose your life depended on the answer?

That was the situation in January, when the Supreme Court notified all litigants that due to Chin’s illness he recently underwent surgery for subdural bleeding the justice would not be able to attend February’s oral argument calendar. Litigants were asked if they would be willing to stipulate that Chin, considered a moderate-to-solid conservative, could listen to tapes of the arguments and participate in the decision. If not, an appellate justice would take his place pro tem, or the case would be continued to the March calendar.

Five of the February cases happened to be death penalty cases. Condemned inmates Richard Boyer and Clifton Perry stipulated to Chin’s participation by tape. But Erik Chatman, Fred Freeman and Johnny Avila did not.

Chatman drew First District Court of Appeal Justice Linda Gemello. Avila drew Justice Barton Gaut of the Fourth District. Their cases will be heard Feb. 14 and 15 in Sacramento.

Then there’s Freeman. This is the much-publicized case where former prosecutor Jack Quatman claims the trial judge advised him to kick Jews off the jury. Supreme Court Justice Carol Corrigan is already recused because she testified at Freeman’s evidentiary hearing last year. When Freeman declined to stipulate to Chin’s absence, Chin bowed out too and the case was continued to March.

Why delay the case if Chin isn’t participating? One could speculate that the vote is close and that Chin’s recusal deprived the court of a majority — so it needed more time before hearing argument. Or perhaps the pro tems assigned to the case — Paul Boland of the Second District and Judith Haller of the Fourth — requested time to think it all over.

The only other litigant who declined to stipulate to Chin’s absence is John B., a man accused of transmitting HIV to his wife. The couple is locked in a discovery dispute where she is seeking the names of all his past sex partners. Rather than recuse, Chin remained on John B. v. Superior Court, and it too was moved to the March calendar. Why didn’t Chin want to give this case up? One possible explanation is that in this case but not the others he’s crafting the majority opinion.

Scott Graham

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