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9th Circuit September 2013 News

Mandatory Sex Offender Lie Detector Tests Implicate 5th Amendment

Richard Bahr Jr. is a registered sex offender. As part of the terms of his release following a prison stint for third degree rape, he was required to adhere to "full disclosure" lie detector tests. Disclose he did, including admissions of sexual contact with minors while he was minor, as well as after reaching the age of majority. In another part of the program, he admitted in a workbook that he had sexually abused 18 children.

When he was later convicted of possession of child pornography, all of these admissions, as well as testimony from his mother regarding past sexual misconduct, was admitted.

Hawaii Same-Sex Marriage Case on Hold Pending Legislative Action

The battle for marriage equality in the State of Hawaii has been taken out of the Ninth Circuit's hands (for now) and placed into the hands of a special legislative session.

Now, instead of a court debating the nuances of Hawaii's truly unique marriage amendment, parties fronting the heavy cost of litigation, and appeals raging on for years, same-sex marriage could come to the Aloha State as soon as late October, unless the heavily Democratic state legislature fails to act.

Coulda, Woulda: Minor Distinction Means Major Reversal

Will the third trial be a charm for the State of California?

Earlier this month, the Ninth Circuit reversed the conviction of La Carl Martez Dow for second-degree robbery, granting habeas corpus due to prosecutorial misconduct and an erroneous standard applied by the other courts.

Dow allegedly robbed a convenience store clerk, who later had a particularly unreliable memory about the suspect. He mentioned a facial scar, however, and picked Dow out of a photo and in-person lineup. At that line-up, the defendant's attorney requested that Dow be allowed to cover up his scar, and that the other participants also wear a bandage in the same area, because only Dow had a facial scar.

Sandbagging, Summation, and A Bench-Slapping: Just Admit the Error!

Judge Gilman: Alright, then why didn't you raise this [lack-of-luggage] argument in your
first argument on summation?

Assistant U.S. Attorney, Steve Miller: Because I don't believe that I needed to.

Judge Gilman: Aren't you sandbagging a bit -- to wait for rebuttal?

Miller: Yes I was.

Right there, during the last oral argument, the government admitted to sandbagging and making an argument on rebuttal that was based on evidence not presented at trial. The panel's dissent quoted a common-sense proposition (and a case that seems to have disappeared off of the Internet. Link rot is a common problem, it seems.): "[A] prosecutor cannot use rebuttal to put forth new arguments, but is restricted to responding to the points made by the defense counsel in closing argument."

9th Hears Oral Arguments in Gay Juror Batson Challenge Case

It's looking more and more likely that the Ninth Circuit will extend Batson v. Kentucky, preventing parties from striking potential jurors on the basis of their sexual orientation.

Back in late July, we covered the pending case of Smithkline Beecham Corporation v. Abbott Laboratories, a pharmaceutical dispute over HIV drugs. During voir dire, one of the prospective jurors, a male, repeatedly used a masculine pronoun to refer to his significant other. He was later removed using a  peremptory challenge, with Abbot Laboratories providing no reason for the removal, and denying that it had anything to do with his sexual orientation.

Impersonating Suspect on Cell Phone Not Covered by Consent

Clever cop -- but a bit too clever.

Andres Lopez-Cruz was driving along in San Diego county when he was pulled over by Border Patrol agents for "driving suspiciously." In the back seat were two cell phones, which he granted consent for the agents to search. One of the phones rang during the search, and was answered by one of the agents, who pretended to be Lopez-Cruz, without ever saying as much.

The caller asked, "How many did you pick up?" Agent Soto answered, "None." Another call came through, and this time a woman, asked "How did it go?" The officer responded, in Spanish, "I didn't pick up anybody. There was too many Border Patrol in the area." She then provided an address where two men, who later admitted being in the country illegally, were staying.

Lopez-Cruz was charged with conspiracy to pick up undocumented immigrants, but prosecuting the case will be a bit difficult, now that most of the evidence has been excluded by the Ninth Circuit.

Bonds' Obstruction Conviction Upheld for Rambling Truthful Answer

When does a truthful statement amount to obstruction of justice? How about this colloquy, between a prosecutor and baseball not-Hall of Famer Barry Bonds:

Prosecutor: Did Greg [Anderson] ever give you anything that required a syringe to inject yourself with?

Bonds: I've only had one doctor touch me. And that's my only personal doctor. Greg, like I said, we don't get into each others' personal lives. We're friends, but I don't -- we don't sit around and talk baseball, because he knows I don't want -- don't come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we'll be good friends, you come around talking about baseball, you go on. I don't talk about his business. You know what I mean?

3rd Time Not a Charm for Abercrombie; Loses 3rd Hijab Case

Umme-Hani Khan worked at Abercrombie & Fitch's Hollister-branded store in San Mateo, California, for approximately five months. She was an "impact associate," which meant her primary duties were in the stockroom. According to a press release by the Equal Employment Opportunity Commission, she was initially asked to match the colors of her hijab, or headscarf, to Hollister colors, which she did. In February 2010, however, she was fired for violating the company's "Look Policy," after the company changed course and ordered her to stop wearing her religiously required headscarf, which she refused to do.

As District Court Judge Yvonne Gonzalez Rogers succinctly stated, "It is undisputed that Khan was terminated 'for non-compliance with the company's Look Policy.' Khan's only violation of the Look Policy was the headscarf."

Important Decision for Free Speech in Academia

He may get nothing out of this case, but former Washington State University tenured professor David Demers' wrangling with the school over free speech and retaliation has set a legal precedent that could protect similarly situated professors, and lead to damages, for future acts that are hostile to protected speech.

Demers circulated a controversial proposal to reform the university's communications department, and wrote a book that was spoke critically of the university. He claims that, in retaliation for his speech, his evaluations plummeted, and his standing at the university, and reputation as an academic, suffered as a result.

The Ninth Circuit, while extending qualified immunity to WSU because of the lack of clarity in the law, held that the U.S. Supreme Court's decision in Garcetti v. Ceballos doesn't apply in academia, and that professors' speech on matters of public concern is protected under Pickering v. Board of Education.

California's Only Oyster Cannery Denied Relief; May Face Closure

There is only one place in the Golden State than harvests oysters, and soon, there may be none. Shucks.

Kevin Lunny and his family purchased the state's only oyster farm, then known as Johnson's, and renamed it Drakes Bay in 2005. At the time of the purchase, they knew about the possibility of the lease of federal land expiring seven years later.

Time's up, and that notice of possible closure was a major part of the majority's holding in denying a preliminary injunction.

Ban Stands: No Foie Gras, Duck Force Feeding in Cal

Foie gras. It's a delicacy made from fattened duck liver. Typically, the preparation begins with a specially-bred hybrid duck, the Mulard, which is fed copiously for weeks, then, near the end of its life, force fed even more food through a tube.

Some might call force-feeding beyond satiation animal cruelty. Others call it tasty. Either way, it is now illegal in California, thanks to a pair of laws,  Cal. Health & Safety Code §§ 25981 and 25982. One bars the force-feeding of ducks for liver-fattening purposes in California, the other bars the sale of products made as a "result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size."