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Only in America
1 September, 2009  
Only in America

Jay Bybee … Is he a hopeless judge or do his colleagues just hate him? ... Dominick Dunne RIP … If only court reporters here could have such daring … Pillsbury Flom reports from the land of the free press


imageThe sledging on the Ninth Circuit Court of Appeals makes Ricky Ponting and his boys look lame.

The Niners’ Judge Jay Bybee has been making quite a name for himself.

And not just because he is a person of interest in Attorney General Eric Holder’s investigation into the CIA terrorist interrogators.

Bybee was Assistant Attorney General in the Office of Legal Counsel of the Justice Department when he signed the “anything goes” torture memo to Bush’s then counsel Alberto Gonzales, in January of 2002.

His Honour’s brethren on the Ninth Circuit have been exchanging pleasantries with Bybee that would make a delicate equity jurist blush.

Indeed, matters have gotten quite out of hand with the court’s recent decision in Moore v Czerniak.

Randy Moore made a taped confession to the police to a felony murder that even the state conceded was unconstitutional on two separate grounds.

Randy had been induced by a promise of leniency and his request for counsel made prior to the confession had been ignored.

Inexplicably, Randy’s counsel failed to file a motion to suppress the confession and made a no contest plea thereby guaranteeing Randy would spend 25 years in The Big House (or 300 months, as is the far more comforting nomenclature over here).

imageNot surprisingly, the majority decided this constituted ineffective assistance of counsel, the favored term for a monumental cock-up by a defence lawyer.

Bybee (pic) was the chief dissentient, about whom the majority had this to say:

“We recognize that our dissenting colleague believes that Moore deserves to be convicted, but disregarding the state’s arguments as well as the state court record and findings, and substituting one’s own, is hardly the manner in which federal appellate courts are supposed to determine appeals…

To reach the opposite conclusion, the dissent once again develops its own set of facts and its own arguments – arguments that were never conceived of by the state nor suggested before the state court, the district court, or this court, a set of facts and arguments to which the petitioner has never had an opportunity to respond.”

Not content with these observations, the majority took the extraordinary step of writing a separate appendix solely to specifically address “the facts and theories that our dissenting colleague has created and advanced on behalf of the state”.

And they went on …

“facts and theories not relied on by the state court, not suggested by the state in the district court, and not argued to this court by either party – facts and theories advanced for the first time by an appellate judge, in contravention of all the rules of appellate procedure.”

As the calls for Bybee’s impeachment for the torture memo continue, the poor fellow can find no solace in the warm bosom of his brethren.

* * *

The death of Dominick Dunne, the Vanity Fair celebrity trial writer, reminded me of how such a correspondent could not even exist in Australia.

imageHis saucy accounts of the O.J. Simpson and Claus Von Bulow (seen here) trials would never see the light of day under Australia’s contempt laws, which reduce court reporters (already positioned at near bottom of the journalistic pecking order) to the most mundane accounts of the day’s proceedings – mostly confined to quoting the transcript and concluding, “the trial continues”.

Contrast that to Dunne’s account of the defence’s opening address in the Phil Spector trial in 2007:

“He made a grand, operatic, open-arms gesture and twice shouted, ‘The police had murder on their minds,’ as if the police had made a rush to judgment about Spector. I should hope to God that the police had murder on their minds, with a woman less than an hour dead, shot in the face, bleeding from the mouth, her teeth all over the floor, life over, in a French bergère chair in the foyer of a castle, and an arrogant man in a house full of guns who had to be tasered by police. I think that’s cause for having murder on your mind.”

imageDunne (snap) also gave a marvelous account of his mid-trial meeting with Spector at the urinal replete with Spector’s germaphobia reflected in how he washed his hands.

As most trial lawyers know, the urinal often provides a defining trial moment; the embarrassed silence when cross-examining counsel ends up standing next to the key witness during a break in his vicious questioning; or when opposing counsel stand next to each other urging an end to the misery they are both enduring, following which the case promptly settles.

I’ve always loved the story of the exchange between the two Jeffs, Sher QC and Kennett, side by side at the urinal, mid cross-examination of the Premier in his defamation claim against The Australian:

Kennett: G’day Jeff. Heard about your vineyard – fantastic. Heard it’s up for sale.

Sher: With the bloody money from this verdict you’ll be able to buy it.

Kennett apparently told his counsel Jeremy Ruskin QC that, “we’ve got ‘em on the run”.

Shortly before the jury came back with a “No.”