Metropolitan News-Enterprise


Tuesday, May 4, 2004


Page 1


Ninth Circuit Judge Trott to Take Senior Status


By a MetNews Staff Writer


Ninth U.S. Circuit Court of Appeals Stephen S. Trott will take senior status Dec. 31, the MetNews has learned.

Trott, who turns 65 Dec. 12, recently completed his 16th year on the court,  to which he was appointed by President Reagan. He had previously been appointed by Reagan to positions in the Department of Justice, first as U.S. attorney for the Central District of California, then as head of the Criminal Division, and later as associate attorney general, the No. 3 position in the entire department.

He reportedly turned down the opportunity to be nominated for FBI director, preferring the Ninth Circuit vacancy instead.

A New Jersey native, Trott graduated from Wesleyan University in Connecticut, where he majored in French literature. While at Wesleyan, he and some friends formed the Highwaymen, a folk group whose recordings of “Michael, Row the Boat Ashore” and “Cottonfields” were multimillion sellers.

Trott, who plays banjo and guitar, gave up full-time performing to attend Harvard Law School, but still joins up with the group occasionally. 

He was a Los Angeles deputy district attorney from 1966 until his appointment as U.S. attorney in 1981, including service as chief deputy from 1975 to 1979.

Once appointed to the appeals court, he chose to set up chambers in Boise, Idaho. He has been active in his adopted community, serving as president of the Children’s Home Society of Idaho as well as the Boise Philharmonic Association.

He recently authored the opinion in Barapind v. Enomoto, holding that a person accused of killing a civilian bystander in the course of anti-government activity cannot claim the benefit of the “political offense” exception under an extradition treaty.

The ruling would allow the government to send the onetime leader of a Sikh student movement in the state of Punjab back to India to face charges, including an allegation that he and others invaded a residence shared by several Sikhs who had allegedly collaborated with the government and shot dead the wife of one of them.

Trott’s prosecution background has not always led him to side with the government in criminal cases. Two years ago, he pushed unsuccessfully for a full en banc rehearing after an 11-judge panel voted unanimously to uphold the conviction of Jody Myesha Orso for robbing a postal carrier.

Postal inspectors delayed giving Orso Miranda warnings in order to coerce her into incriminating herself, a three-judge panel held in ruling that the statements should have been suppressed. The en banc panel, however, said that the Mirandized confession was admissible.

Trott’s dissent from the denial of rehearing by the full 28-judge court was joined by eight other judges—all appointees of Democratic presidents. The 11-judge court’s ruling would, Trott said, will stand for the proposition that Miranda may be freely violated in order to soften up a suspect, as long as the only statements to be introduced into evidence come later, after warnings are belatedly given.

Last year, however, he vigorously dissented from a panel ruling in which fellow judges Stephen Reinhardt and A. Wallace Tashima tossed out the conviction of a San Diego man whose home was searched pursuant to a parole condition.

The panel majority said the agents went too far in relying on the parolee’s diminished expectation of privacy, entering his home without any suspicion they would find contraband or evidence of a crime. Once inside, they persuaded him to accompany them to their office and then to confess to a two-year old crime.

Reinhardt said there was a big difference between a reduced expectation of privacy and “an extinguished expectation” of privacy. But Trott called for permitting searches of parolee homes so long as they are not “arbitrary, capricious, or harassing.”

In calling for the statement to be admissible and Raphyal Crawford’s conviction to be upheld, Trott  invoked the name not of the defendant but of Richard Allen Davis, the paroled kidnapper who sexually assaulted and killed 12-year-old Polly Klass in 1993. The Klass killing prompted California voters to adopt the Three Strikes Law, an anti-recidivism statute that has become a model for other states and for the federal government.

“Although it is customary and generally appropriate to decide these issues in abstract and legal terms, I find it useful when deciding whether something is ‘unreasonable’ to have a broader understanding of it,” Trott said.

The disagreement was reminiscent of a 1994 civil rights case in which Trott dissented from a ruling in which Reinhardt and Judge William Norris, who has since retired, concluded that the reasonableness of the use of a biting dog to locate a given suspect is a question of fact which must be resolved by a jury.

The ruling overturned a district judge’s conclusion that the officers in the particular case, Chew v. Gates, were entitled to qualified immunity because the Los Angeles Police Department’s policy on use of trained attack dogs against concealed suspects was constitutional as a matter of law.

Trott called the decision “irreconcilable with the real world of police work and its hazards.” He noted that the plaintiff was a fugitive who had hidden himself in “a place filled with iron and steel implements easily used as weapons.” Reinhardt’s statement that the defendant posed no “apparent” threat to the officer’s safety, Trott said, was “an hallucination.”


Copyright 2004, Metropolitan News Company