Ninth Circuit More Receptive Than Angry Alsup

It’s not saying much that San Francisco federal prosecutors’ arguments in a big gang case got a better reception before a three-judge Ninth Circuit panel Thursday than they did this summer from U.S. District Judge William Alsup.

At a withering July hearing, Alsup pulled up about two invectives short of a full-out conniption as he harangued prosecutors for violating his ruling to turn over discovery material under a protective order — and suggesting he sanction them by precluding the death penalty against some of the gaggle of defendants. He called that tactic “slippery,” and said the prosecutors “thumb their nose” at the court, were “hiding the ball,” making a “bogus argument,” engaging in “gamesmanship,” being “frivolous,” and “inviting the court to make an error.” He later ordered that any witnesses whose names weren’t turned over in advance — something the government said would jeopardize snitches’ lives — would be excluded from the case. The stakes in the case have risen since then: Now two defendants, Emil Fort and Edgar Diaz, face execution.

The appellate panel Monday was much gentler: Ninth Circuit Judges William Fletcher, Susan Graber and Richard Tallman focused their attention on a relatively narrow piece of the evidentiary rules, and seemed disinclined to completely back Alsup’s protective order without reservation.

That was good news for the U.S. attorney’s office, which had six or so lawyers in the audience, presumably for moral support. “We believe the protective order is a clear abuse of discretion,” Erika Frick, the assistant U.S. attorney arguing the case, told the panel. She didn’t get a completely smooth reception, though.

“I was quite struck by Judge Alsup saying ‘I’m stuck between a rock and a hard spot,’” said Fletcher, alluding to the rough situation the trial judge faces if the government gets its way: Many witness names would not be disclosed until just before a person was set to take the stand, which would force the judge to grant mid-trial continuances for the defense to investigate the witnesses. And Tallman seemed troubled that the government did little to help Alsup draft a protective order to solve the witness problem. “Why didn’t the government participate in the drafting of the protective order?” he asked Frick. “It seems that the court was all but begging for the government’s help.”

Tallman and Graber, though, seemed to have bigger issues with the defendants’ main arguments, which were presented by Jones Day partner Martha Boersch (solo Michael Satris offered a separate argument asking the panel to preclude execution). They were concerned about ambiguity in whether the evidence rules apply to material produced only by federal agents or also to state and local agents — in this case police — who were working on the federal case. Tallman also mentioned that the government had submitted large amounts of evidence in camera to persuade the panel, something that seemed to bother the defense.

“We’ve never seen it,” Boersch said. “We would dispute it if we could.”

In the end, the judges seemed inclined to send the matter back to Alsup, but with guidance that would likely support the government’s argument that evidence rules allow it to keep the heretofore undisclosed state investigators’ reports private until just before trial.

That, Frick argued, is a necessity for the prosecutors. “We’ve given them as much discovery as we possibly can,” she said. Fletcher corrected her: “You’ve given them as much discovery as you want.”

Justin Scheck


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