Bybee Takes Aim at Fan of Metal, Meth

Could there be a greater temperamental — and ideological — canyon than the one between Ninth Circuit Judges Stephen Reinhardt and Jay Bybee? The former was being called a liberal activist judge before Bybee was done with law school — and, one would hope, years before Bybee even considered signing the now-infamous 2002 Bush administration torture memo.

Combine those differences with some methamphetamine, heavy metal and murder, and you’ve got the makings of a good case (court .pdf).

In March of 2005, Reinhardt and Bybee found themselves on a three-judge panel — together with Senior Judge Procter Hug Jr. — that heard the case of Roger Smith. He claimed that his guilty plea in the murder of Emmet Konzelman was no good since his supposed accomplice Jacob Edmonds — who pleaded guilty to a lesser charge and testified against Smith — later recanted his testimony.

In his majority opinion, Reinhardt wrote that even though Smith had not exhausted his state claims, a rarely used exception should allow his case to move forward in federal court.

“There is substantial evidence in the record to suggest that Edmonds murdered Mr. Konzelman and that he committed the killing outside of Smith’s presence and without any advance knowledge on Smith’s part that he would engage in any violent conduct or that he possessed a dangerous or deadly weapon,” Reinhardt wrote.

And seven years after the murder, Edmonds — in a notarized letter, no less — supported that statement by saying he was the killer who attacked Konzelman and his wife with a rope and crowbar.

Still, Bybee was unswayed — extremely unswayed — as evidenced by his dissent, which is one of the more entertaining pieces of writing to come out of the Ninth Circuit this year.

“Roger Smith and Jacob Edmonds needed money. Bad. For an Anthrax concert,” he wrote. So the meth-addled pair “burglarized the Konzelmans’ garage to obtain tools.” Bybee then goes into a detailed recitation of the facts of the murder, and his argument of why the case shouldn’t move forward. ”

Edmonds now claims that Smith is innocent. The problem is that Smith was convicted of felony murder” [italics in original].

In short — and that might be misleading, since the dissent is 43 pages long — Bybee wrote that he’s got a bone or two to pick with Reinhardt’s reasoning.

“I disagree with nearly every word the majority has written, including ‘and’ and ‘the.’ My profound disagreement is not limited to the facts, but runs throughout the majority opinion.”

He goes on to say that “the majority infers elaborate conclusions from the tiniest scraps of evidence, building narrow platforms that it leaps between in a complex game of judicial hopscotch. It is difficult enough to trace their path; I cannot join them in it.”

In a footnote, though, Bybee does agree with the majority on one point — about the given name of “Hooter” Bouse, who allegedly drove with Edmonds and Smith to the Konzelman home.

“There is some ambiguity in the record as to whether Mr. Bouse’s first name is “Arlen” or “Marlin,” he wrote. “The district and magistrate judges used the former, and the majority and the state court sentencing transcript use the latter. On this question, at least, I join the majority.”

— Justin Scheck

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