Metropolitan News-Enterprise


Wednesday, May 22, 2019


Page 1


Ninth Circuit Bars Judge Real From Case, Finds He Applied Wrong Burden of Proof

On 22 Previous Occasions, Appeals Court Has Directed That, On Remand Case Go to Some Other District Court Judge


By a MetNews Staff Writer


Reversal of an order yesterday by the Ninth U.S. Circuit Court of Appeals was accompanied by instructions that, on remand, the case not be returned to District Court Senior Judge Manuel L. Real of the Central District of California—marking the 23rd time in the past 10 years that circumstances were deemed so unusual as to bar Real from conducting further proceedings.

The instructions come in a memorandum opinion by a three-judge panel comprised of Circuit Judges Jacqueline H. Nguyen and John B. Owens, joined by District Court Judge Michael M. Baylson of the Eastern District of Pennsylvania, sitting by designation.

Their opinion reverses Real’s order revoking the conditional release of Christopher McGrath, who was civilly committed as insane, based on his trespassing at Los Angeles International Airport.

Burden of Proof

The opinion says:

“The parties agree that, under 18 U.S.C. § 4243(d), McGrath bore the burden to prove ‘by a preponderance of the evidence’ that ‘his release would not create a substantial risk of bodily injury to another person or serious damage of property of another due to a present mental disease or defect.’” The district court erred by applying a heightened burden of proof requiring that McGrath ‘guarantee to the Court that he’s not a danger.’ Accordingly, we remand for the district court to apply the correct preponderance standard in the first instance….

“In addition, we instruct the Chief Judge of the Central District of California to reassign this case to a different district judge on remand because ‘reassignment is advisable to preserve the appearance of justice.’ ”

Real, 95, has been in office since Nov. 3, 1966, and was chief judge from 1982-93. He was publicly reprimanded by the Ninth Circuit in 2006 in connection with an abuse of powers in a bankruptcy case.

History of Case

McGrath was charged on April 23, 2013, with one count of entering an airport area in violation of security requirements. According to the affidavit of an FBI agent:

“When asked when and how he got onto the airfield, MCGRATH stated that he had climbed over a fence the night before (March 19, 2013), and had spent the night behind a trash bin….

“MCGRATH described the plane he planned on boarding  as having ‘a kangaroo’ on the tail.    He said that his plan was to  try to board a plane going to Australia by asking the pilot’s  permission.”

Real on July 30, 2013, found that McGrath was incompetent to stand trial.

On July 8, 2014, the defendant pled not guilty by reason of insanity; Real ordered on Sept. 2 that he be committed to a federal medical facility in Missouri; he was conditionally released, under an order by Real, on Jan. 6, 2016, under the supervision of the United States Probation Office.

McGrath was arrested July 19, 2017, and charged with violating his conditions of supervision. Real’s order revoking the conditional release was made on May 16, 2018.

The case is United States v. McGrath, 18-50158.

An April 9, 2015 Associated Press report provides additional background:

“Eight times between April 2012 and March 2013, police caught McGrath after he got over the fence at LAX on a mission to board a flight. In an affidavit, FBI special agent David Gates said McGrath demonstrated how he used his travel bag to protect himself from the barbed wire.

“He never was armed but twice reached the stairs leading to jets, once with a bunch of bananas he hoped a pilot would accept in return for a ride to Australia. It wasn’t clear from police reports whether the planes were empty or full. Another time he hid for hours, later telling the FBI he had spent the night behind a trash bin before an airport employee discovered him.

“McGrath’s repeated break-ins helped airport police address vulnerabilities: They trimmed a tree branch he had used to get over the fence.

“When McGrath kept returning following short stints in local jail, LAX police turned to federal prosecutors.”


Copyright 2019, Metropolitan News Company