Ninth Circuit Chides Judge Real for Lack of Decorum

Thursday, June 9, 2011

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Ninth Circuit Chides Judge Real for Lack of Decorum

By SHERRI M. OKAMOTO, Staff Writer

The Ninth U.S. Circuit Court of Appeals yesterday scolded District Judge Manuel L. Real of the Central District of California for behaving injudiciously during the 2006 trial of an alleged member of the Aryan Brotherhood prison gang.

Real, the appellate panel noted, interrupted and admonished defense counsel over a hundred times during the course of a week-long trial, and “many of the judge’s comments and interventions were inconsistent with standards of judicial decorum.” However the justices concluded Real’s conduct did not rise to a level that required reversal of Steve Loren Scott’s conviction and 220-month sentence for violation of the Racketeer Influenced and Corrupt Organizations Act.

Scott was accused of conspiring to conduct the affairs of the Aryan Brotherhood through a pattern of racketeering activity, including the overt acts of murder and drug trafficking. A jury found him guilty of conspiracy to murder three black inmates of a rival prison gang.

On appeal, Scott contended Real committed misconduct by interrupting and directing derogatory comments at defense counsel.

In a per curiam decision by Judges Pamela Ann Rymer, Consuelo M. Callahan, and Sandra S. Ikuta, the appellate panel noted instances in the trial transcript where Real criticized defense counsel for failing to “give th[e] jury [ ] credit for brains,” failing to treat jurors as though they could “count” and “read,” and deliberately wasting the jury’s time.

The appellate panel reasoned that “the majority of the district court’s comments to defense counsel were pursuant to the court’s supervisory role, in that they were aimed at stopping defense counsel from engaging in irrelevant, repetitive, or otherwise improper questioning or editorializing,” and therefore “were within his discretion to ensure the orderly and efficient presentation of evidence and to control the pace of trial.”

Scott also was not prejudiced by Real’s comments since the judge issued “extensive curative instructions,” the panel said, acknowledging that Real had specifically informed the jury he might “admonish a lawyer who out of zeal for the cause does something which is not in keeping with the Rules of Evidence or procedure,” and the jury should “not [ ] draw any inference against a side to whom an admonition of mine may be addressed.”

The panel further rejected Scott’s claims that his confrontation and due process rights were violated by Real’s limitation on cross-examination to prohibit defense counsel from inquiring into the role of race in prisons, because “[t]he questions that the district court prevented defense counsel from asking were simply repetitive or far afield of the issues in the case.”

Scott’s remaining claims based on instructional error and limitations imposed during voir dire and note taking by the jurors during trial were similarly dispensed with.

Carlsbad practitioner Gretchen Fusilier and Assistant U.S. Attorney Anne M. Voigts served as counsel in United States v. Scott, 07-50020.

Real has been rebuked by the Ninth Circuit in several published cases since joining the federal bench in 1966. In a 2007 per curiam decision, he was chastised for refusing to vacate a dismissal of a case for plaintiff’s failure to appear at a hearing after the plaintiff demonstrated that the district court had not provided adequate notice of the hearing. That case was Calderon v. IBEW Local 47, No. 05-56937.

A year before that, he faced a potential impeachment inquiry after he allegedly seized control of a bankruptcy case— In re Canter, 299 F.3d 1150—involving a defendant he knew, then allowed the defendant to live rent-free for years in a house she’d been ordered to vacate.