The Jury Talks Back


The Ninth Circuit Court of Appeals in all its Glory

Filed under: Uncategorized — WLS @ 11:53 am

Posted by WLS Shipwrecked:

For those of you who are lawyer-types, you’re probably familiar with the reputation of the Ninth Circuit Court of Appeals as one of the loopiest and most liberal of the 13 federal judicial appeals courts. For those of you who are not lawyers, you’ve probably seen references in the news to the crazy things that pass for legal judgments in the Ninth.

Before giving you the benefit of its most recent pearl of wisdom, here are a few factoids about the Court:

The Court hears appeals from 13 different federal district courts in 11 states, as well as appeals from Guam and the Northern Mariana Islands. Nearly 60 million citizens — 20% of the US population — live in the states over which the 9th Circuit has jurisdiction.

There are currently 27 regular appellate judges and 21 senior status judges, though many of the senior judges no longer participate in court activities.

Yesterday, the matter of United States v. Nevils, Judges Richard Paez and T.G. Nelson held in a 2-1 decision that no rational juror could have found beyond a reasonable doubt that a defendant, while asleep on a couch, “possessed” a loaded Tech-9 handgun on his lap, and a .40 caliber pistol at his feet.

LAPD officers chased a suspect into the courtyard of an apartment complex, where, through an open apartment door, they saw deft asleep on a couch with a loaded, chambered semiautomatic Tec 9 on his lap and a loaded, chambered .40 caliber pistol by his leg. On a coffee table one foot from him were baggies full of marijuana and ecstasy, as well as a cell phone and currency. When the officers entered, they startled deft awake, and one officer testified that deft started to grab toward his lap before putting his hands up. When questioned, deft stated “I don’t believe this shit. Those motherfuckers left me sleeping and didn’t wake me.” He was convicted of felon-in-possession under Section 922(g)(1).

At trial, the defendant’s theory — though the defendant didn’t testify to it — was that he arrived at the apartment complex for a baby shower, got drunk and passed out at about 4 or 5 p.m., and was carried to the particular apartment by some female friends, where he remained unconscious until the police woke him at 11:45 p.m. (Now that’s a baby shower.) During this time, the theory went, some unidentified persons placed the drugs, cash, and phone on the table and the loaded guns on deft’s lap and leg — without waking him.

The panel concluded that the fact that deft was asleep when discovered with the guns meant that his actual possession of them (i.e., the guns in contact with his body) was not enough to show that he knew they were there. Further, there was not enough additional evidence for the jury to rely upon. Deft’s gang affiliation, familiarity with the apartment complex, and prior experience with drugs were not enough. Nor was one officer’s testimony that deft reached for his lap upon waking. And Deft’s post-arrest statement was ambiguous and the govt “did not produce evidence sufficient to allow a jury to choose an inculpatory interpretation” of the statement.

An “amazed and disappointed” Judge Bybee dissented, arguing that the record contained “ample circumstantial evidence” for a rational juror to conclude that deft knew he possessed, at the least, the handgun on his lap: it was loaded, one of the officers saw him reach toward his lap when awakened, and he never expressed amazement or surprise about the presence of the guns. Judge Bybee wrote that the majority’s implausible “innocent explanation” for the guns on his body – that the culprits, who deft did not know, “decided it was best to leave their drugs and weaponry” with the sleeping defendant, “and either threw or placed the heavy guns onto his lap and leg (all without waking him) as they rushed to leave” – “taxes credulity.”


  1. And just think that Obama will fill the open seats. What’s scary is that he might still improve it.

    Comment by Kevin Murphy — 11/21/2008 @ 11:59 am

  2. Were I in the jury room, I might have argued that we didn’t know they were there. But I don’t think that no rational juror could believe that he knew they were there.

    Comment by aphrael — 11/21/2008 @ 12:17 pm

  3. Yeah, I could have been (under slightly different circumstances) to buy the “I didn’t know they were there” argument, but saying no rational juror could disagree with the court’s opinion is, frankly, silly.

    Bet the dissenting judge feels the same. :)

    Comment by Scott Jacobs — 11/21/2008 @ 12:31 pm

  4. Could have been persuaded, rather…

    Apparently I’m in need of sleep…

    Comment by Scott Jacobs — 11/21/2008 @ 12:31 pm

  5. Sorry, legal talk tends to lose me. Are you saying that this appellate court overturned a jury’s decision not because of bad evidence, not because of bad legal representation, and not because of any courtroom missteps, but because they just thought the verdict was wrong? How is that legal? Isn’t the entire point of a jury system so that judges appointed by the crown President can’t just arbitrarily rule from the bench?

    Comment by tjwilliams — 11/21/2008 @ 2:04 pm

  6. Something tells me these judges don’t own hand guns. Personally I find it uncomfortable to nap with my gats in the waistband of my pants or in my pockets. What Nevils did is perfectly understandable to a reasonable juror. meh.

    Comment by daleyrocks — 11/21/2008 @ 2:08 pm

  7. Presume that the Judges are smart; most people are. This means we have smart people deliberately twisting the truth in order to avoid a trial for this person.

    So what alternative explanations for the Judges’ stated rationale seem likely? If their reasons as given are just a smokescreen – and clearly they are – what’s behind that screen, what else remains?

    Comment by ras — 11/21/2008 @ 2:13 pm

  8. tjwilliams —

    That’s exactly what they did.

    It’s the legal argument of “insufficiency of the evidence.” And its usually the least successful ground for reversing a conviction.

    What it boils down to is a claim that the jury allowed themselves to be swayed by insufficient evidence, or that they allowed their emotions to overcome their rationality.

    The bar is set quite high — the appellate court must review the evidence in the light most favorable to the prosecution (since the jury agreed with the prosecution’s view of the evidence), and to reverse the conviction the court must find that no rational juror, viewing that same evidence, could have determined all the elements of the crime to be present by proof beyond a reasonable doubt.

    That’s really the point being made by the dissenting judge — there was sufficient circumstantial evidence from which a juror could conclude that the defendant knew of the guns in his lap. The presence of that evidence, combined with the fact that all inferences drawn from the evidence should be in favor of the conviction, really makes the decision by the judges unsupportable. The whole idea of an “innocent” explanation should have been irrelevant, because the jury found it to not exist. The question before the court should not have been “Is there another explanation for how the guns got on his lap?”

    Comment by WLS Shipwrecked — 11/21/2008 @ 3:48 pm

  9. The burden of proof on the gov’t is BEYOND a “reasonable doubt” which the appellate justices
    felt was not met.
    Thus, “not guilty.”

    Comment by W. Thehellisthis — 11/21/2008 @ 4:01 pm

  10. the appellate court must review the evidence in the light most favorable to the prosecution

    I don’t see how they could possibly have done that.

    he burden of proof on the gov’t is BEYOND a “reasonable doubt” which the appellate justicesfelt was not met.

    An appeals court is not, generally speaking, empowered to overturn a verdict on the grounds that it beleives the government failed to prove its case beyond a reasonable doubt.

    It *is*, however, allowed to overturn a verdict on the grounds that the government’s case was so thin that no reasonable juror could have believed that it had proven its case beyond a reasonable doubt.

    The distinction is a critically important one.

    Comment by aphrael — 11/21/2008 @ 4:04 pm

  11. aphrael,

    It seems to me that the court is applying an insufficient evidence test and ruled the government did not meet that burden. But there was evidence of guilt, so to rule otherwise means the court has rejected circumstantial evidence as sufficient to show guilt when it comes to gun/drug possession.

    If so, that’s a heavy burden to force the government to meet.

    Comment by DRJ — 11/21/2008 @ 5:14 pm

  12. I’m just trying to imagine what it’s like to be one of those jurors right now. They basically just had two judges call them complete idiots who are not “rational”.

    Comment by tjwilliams — 11/21/2008 @ 5:40 pm

  13. Lurking in the background of this decision may be the court’s sense that Congress and the executive (not to mention the LAPD) are consistently overreaching in enforcing the criminal law against unpopular people. Of course, society has the right to imprison people who deal in illegal substances and run around with illegal guns committing violence. And society also has a right to try to catch people before they actually hurt others by criminalizing possession under some circumstances. But punishments for drug and gun possession crimes have gotten more and more punitive. Possession offenses are generally easy to prove, but they can tend to sweep in the less culpable (they were holding, but they are not generally a dangerous criminal) along with the really bad (they would have committed serious violence or moved serious weight if not caught early). Against this background, the court may feel it needs to hold the line a little bit when it comes to convicting people of possession offenses on very thin, speculative evidence as to knowledge and intent. This may be especially true where everybody knows there is a strong undercurrent in the case of “he’s a gangbanger [or a militia member, or a commune-living hippie], so he’s guilty.”

    Not saying the court is right (and anyway, this is just an outsider’s theory of what background factors may be informing the court’s action), but I do think that sometimes the institutional role of the courts is to provide a brake on, or at least throw a little sand in the gears of, the natural tendency of the political branches to overreach with punitive criminal laws. In the long run, this general tendency in the courts protects liberty.

    Comment by PJ — 11/22/2008 @ 3:46 pm

  14. PJ:

    Lurking in the background of this decision may be the court’s sense that Congress and the executive (not to mention the LAPD) are consistently overreaching in enforcing the criminal law against unpopular people.

    That’s painting with a broad brush. I need something to back this up.

    Comment by DRJ — 11/22/2008 @ 5:37 pm

  15. DRJ – please stop demanding facts when hyperbole will do just as well.

    Everybody knows that the man is trying to keep us down.

    One might ask: If this decision was so noble and correct, why did it need to “lurk in the background”? Why not state it outright?

    Comment by Apogee — 11/22/2008 @ 6:03 pm

  16. Lurking in the background of this decision may be the court’s sense that Congress and the executive (not to mention the LAPD) are consistently overreaching in enforcing the criminal law against unpopular people.

    That’s painting with a broad brush. I need something to back this up.

    I dunno, I think it speaks for itself… I mean, can’t you tell who he’s talking about?

    He’s talking about those loathsome people we all revile…

    Criminals. :)

    Comment by Scott Jacobs — 11/22/2008 @ 6:26 pm

  17. “Possession offenses are generally easy to prove, but they can tend to sweep in the less culpable (they were holding, but they are not generally a dangerous criminal) along with the really bad (they would have committed serious violence or moved serious weight if not caught early).”

    PJ – So what you are saying is that even though possession is a crime, it’s not REALLY a crime in a lot of cases and the 9th Circuit should feel free to overrule the verdict of the jury in such cases pending the repeal of such silly possession laws. Is that about right?

    Comment by daleyrocks — 11/22/2008 @ 7:56 pm

  18. When people pass out at my house, I usually just draw penises in their faces with a sharpie. I hadn’t thought of putting my guns and dope in their laps. Party on!

    Comment by TomHynes — 11/23/2008 @ 8:40 am

  19. Many posters here have placed loaded guns on the bellies of their friends who passed out from too much dope. Now this would never happen at my house but I imagine it is a common occurance at the homes of left wingers.

    Comment by Alta Bob — 11/23/2008 @ 9:42 pm

  20. I wasn’t saying this is a “noble and correct” ruling, nor necessarily that the courts should consider legislative punishment policy or executive enforcement policies in developing criminal-law doctrine (nor do I have any actual evidence that the court did so here). I just sort of had a suspicion that this might be a factor, either conscious or not, in the court’s reasoning, and I was floating an argument that such a factor might be a legitimate consideration.

    I obviously do not think the courts should just override jury verdicts willy-nilly when they disagree with a criminal statute on policy grounds. But in cases that the courts find to be very close, I think it is interesting to consider whether they must wrestle with the fairly ambiguous “reasonable person” standard within the sealed world of that particular case, or whether, in a narrow zone of cases, they should look to outside presumptions to shape the results. Obviously this is done in other contexts, for example with the rule of lenity. I just wondered if the court might have some sort of tiebreaker in mind here that would lead it constrain the factual predicate for convictions of this type at the margins.

    We can argue about whether this is a “close” case, or whether these facts are, in fact, at the “margins” of convictable behavior. (I can see the view that this is not really that close a case.) But that is a different argument from whether it is ever permissible for a court to employ such a policy-based tiebreaker in difficult/close cases. (Of course, part of the problem with such a “tiebreaker” may be that, if legitimized, it would never be constrained to a “narrow zone of cases,” but would inevitably expand to include any case that pissed off a liberal judge. Touche. On the other hand, many seem to think that that is what has happened in this case anyway…)

    I also agree with Apogee that if this is, in fact, the rationale (or part of the rationale) of the ruling, the court should have the stones to say so. There is no reason a court couldn’t say “this case is very close, bordering on a bare sufficiency of the evidence, and in such borderline cases we find it appropriate to apply a presumption of liberty.” No reason, that is, except it would invite an en banc shit-storm :)

    Then again, maybe the court is not engaged in any such broad flights of fancy, but just took a debatable view of what evidence was sufficient in these circumstances.

    Comment by PJ — 11/24/2008 @ 8:02 am

  21. As for my comment on “overreaching,” I agree with DRJ that that was a bit loose, if not hyperbole. No doubt we incarcerate a higher proportion of our population than almost any other country in the world, and that proportion has risen dramatically in the last 30 or 40 years (total incarceration rising from about 350,000 in 1970 to over 2,000,000 today, much faster than population growth). I also think it is clear that this was not just due to increased enforcement of existing penalties, but had a lot to do with the advent of mandatory minimums and a general increase in available criminal penalties.

    Whether this represents “overreaching,” as opposed to a well-justified and socially beneficial policy, however, is a normative question that would require more justification than I offered. Thus, because the point was not essential, I should have referred to “consistently increasing criminal sanctions” or something more neutral.

    The objectively increasing sanctions is the factor the court might consider. My subjective view that the increase reflects “overreaching” is the reason I think it would be appropriate for the court to consider such a factor as justifying a liberty-protecting tiebreaker in some limited circumstances.

    Comment by PJ — 11/24/2008 @ 8:05 am

  22. Just a quick comment, Judge Bybee is my uncle. I’m glad to see that he still retains his sanity on a court that is so ridiculous.

    Comment by Dr T — 11/24/2008 @ 8:31 pm

  23. Has the State asked for an en banc hearing of this decision?

    This is precisely the type of “justice” that labels the 9th as a “circus”, and with great justification.

    Comment by Another Drew — 11/25/2008 @ 8:46 am

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