Metropolitan News-Enterprise


Friday, July 26, 2013


Page 1


Court Orders Retrial in Lawyer’s Death at Hands of Police

Concurring Panelist Calls Judge Wright’s Conduct in Case ‘Worrisome’


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ordered a new trial in a suit by the mother of a Riverside County attorney against sheriff’s deputies she says killed her son in front of his home in a gated Palm Desert community.

Judge Ronald Gould, writing for the panel, said District Judge Otis D. Wright II of the Central District of California should not have relied on his personal experiences, or weighed conflicting evidence,  in granting judgment as a matter of law in favor of the defendants. The plaintiff, Carole Krechman, was entitled to have all reasonable inferences drawn in her favor, Gould explained, under Rule 50 of the Federal Rules of Civil Procedure.

Gould said it was unnecessary to determine whether a new trial was also called for on grounds of judicial bias, or to reassign the case to another district judge. He expressed confidence Wright will apply the correct standard on remand.

Judge Jacqueline Nguyen concurred in the opinion. Judge N. Randy Smith concurred separately, saying that while he agreed it was unnecessary to consider the claim of bias, Wright’s conduct in the case was “worrisome.”

Appel died in May 2010 in the Indian Ridge community. While some aspects of the struggle are the subject of conflicting testimony, Gould explained, there was evidence that a deputy came to the home,  approached Appel, and determined that he was under some type of stress potentially requiring that he be taken into custody and held for psychiatric evaluation.

When Appel suddenly became combative, the officer called for assistance. There was testimony that it took four officers to subdue him, and that one of the officers placed his knee on Appel’s back—applying more than 100 pounds of pressure—restrain him while he was being handcuffed.

The deputy testified that he removed his knee when it appeared Appel was no longer moving. But that testimony is disputed and therefore should not have been credited for purposes of the motion for judgment, Gould said in a footnote.

The defense contended that Appel died of natural causes, as concluded by its expert, an emergency physician who said the attorney suffered a heart arrhythmia. The plaintiff countered with testimony of two pathologists, including the coroner who examined Appel’s body, who said he died as a result of excessive force.

Wright, in granting the motion, questioned whether the coroner had “really gone to medical school” and said Appel’s high blood pressure readings could only be consistent with a finding of natural death. He also cited his own experiences as a street fighter in concluding that the deputies’ version of the struggle was the only credible one.

The judge overstepped his bounds, Gould said.

“The record suggests that the judge’s personal experience and not the testimony viewed in the light most favorable to Krechman led the court to conclude that ‘everything that the officers did . . .while attempting to get that other hand handcuffed was not excessive and was clearly warranted by the circumstances.’”

The case is Krechman v. County of Riverside, 12-55347.


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