FEDERAL BAIL HEARINGS & GROUNDHOG DAY: WHO JUDGES THE JUDGES?
Alex Sanchez, the gang intervention leader and Homies Unidos founder who was indicted last June on federal Rico charges, is going back to court at 10 a.m. on Wednesday January 6 for another bail hearing.
It will be his third.
Most criminal cases feature a single bail hearing. From the beginning, however, Alex Sanchez’s situation hasn’t been “most cases.”
(For the back story on the arrest of Alex Sanchez start here and read from the bottom up.)
The hearing will take place in the same federal courtroom with the same federal jurist who presided over the last hearing—namely US District Court Judge Manuel Real.
The new hearing was ordered by the 9th Circuit Court of Appeals, an action that was viewed as both good news and bad news by Sanchez’s supporters and his court-appointed defense attorney, Kerry Bensinger. Good news because there is to be a new hearing at all after Sanchez was denied bail twice in a row. Bad news because the hearing is back with Judge Real, who is the guy who was the most recent and vociferous denier.
In late November, Sanchez attorney Bensinger filed a brief with the 9th Circuit in an effort to get a new hearing by a new judge, contending that with Real his client did not receive anything resembling a legally proper hearing and that Sanchez would be unlikely to receive a fair trial with the controversial judge either.
The government prosecutors subsequently countered with their own brief and everyone waited to see what the 9th-ers would say.
On December 22, the appeals court delivered its ruling. The 9th Circuit panel told Real he would need to set up a new hearing and, delivering a slight whack to the judge’s metaphorical hands, the panel set down some requirements. As Tom Hayden notes, Real was to “accept and consider” evidence “beyond a reasonable doubt” that Sanchez would be a danger to the community if released on bail. He was also to consider the “preponderance of evidence” in deciding whether Sanchez would be a flight risk.
In other words, the 9th Circuit kinda sorta conceded that Real did not do the swellest of jobs with the last hearing, but they were not willing to go so far as to take him off the case.
“I think part of the problem is that, off the bench, everyone likes Judge Real. Off the bench, he’s very charming,” said LA criminal defense attorney Harland Braun when we talked about the matter a few weeks ago. But on the bench, Real is considered by many, Braun among them, to be an irrational tyrant who actively skews proceedings toward whichever side he believes should prevail. “He does things like make faces at the jury during testimony, and signal to the prosecutor when to object. It’s a totally unnatural situation.” (Braun has been up against Real many times over the years and is among those who have been vocal about their opinion that the judge, who will be 86 later this month, should retire, or at the very least, step down to part-time “senior” status, for which he has been eligible since 1985.)
“But really, I blame the 9th Circuit,” said Braun. “They know what’s going on. But they don’t have the guts to do anything about it.”
Whatever the case, Sanchez supporters don’t seem to hold out lots of hope that Judge Real will reverse himself and grant bail. Yet there is much interest as to whether, in order to placate the 9th Circuit, the judge will allow some of the testimony and lines of questioning that he excluded last time Sanchez was in his courtroom.
THE CURIOUS CASE OF THE ACCIDENTAL TRANSFER
To make matters even more perplexing, for a while it looked as if Judge Real was indeed going to be off the case, but not because of the doings of the 9th Circuit.
During the time when Sanchez and company were waiting for the 9th to make up its mind, an odd thing happened: Bensinger unexpectedly received notice on December 9 that Real had been taken off the case and it had been assigned to a new jurist, a Judge Christina Snyder. The order was signed by Judge Snyder on December 2, officially filed two days later.
Sanchez supporters were ecstatic at the news, but Bensinger was also surprised because the only request he had made was through the Court of Appeals, and that was still pending.
Eventually it was learned that an attorney for one of the other 18 defendants named in the federal Rico case of which Sanchez was a part had filed a request for a transfer to Judge Snyder. The attorney applied for the judge swap under a legal protocol known as a “low number request.” It seems this other defendant had been tried in front of Snyder in a nearly identical case in 2006, thus could conceivably qualify for the oddly named low number request (which in state court is called, much more sensibly, a “notice of related case”)—the idea being that a judge who has already tried a defendant for a nearly identical offense has less of a learning curve so therefor can more easily speed things along.
But since this was a RICO case with a zillion other defendants all legally joined at the hip, a transfer of one case meant a transfer of all. Judge Snyder could say yes or no to the request, depending upon her schedule and her take on the matter. It appeared that on December 2, Judge Christina Snyder said yes –and signed the order.
But a few hours after receiving notification of the transfer, Bensinger got a call from the federal prosecutors who said they had talked to Judge Real’s clerk, that Judge Snyder’s signing of the order had been a big silly mistake, and that Real wanted the case back, thank you very much.
Since Bensinger had gotten no official notice of the second judicial switcheroo, he didn’t know what to think. But, a day or two later still, Bensinger did indeed get yet another order, this one signed by Judge Gary Allen Feess, the Chair of the Case Assignment and Management Committee.
(If Judge Feess’s name sounds familiar, he was the fellow who oversaw the LAPD’s Federal Consent decree.)
Feess wrote that United States District Judge Christina Snyder had “inadvertently signed a transfer order…” (How one “inadvertently” signs a transfer order is unclear. But okay.) However, wrote Feess, “…the current case is at such an advanced stage and Judge Real has spent such substantial time and effort on the matter that no judicial economy would be achieved by a transfer at this late date.” The transfer order was thus VACATED (Judge Feess’s caps, not mine) and “…the matter is ORDERED to be returned to Judge Real’s calendar for all further proceedings.”
And so it was.
Onward to January 6.
NOTE: FOR A LESS SANCHEZ-FRIENDLY but always exceptionally informative view of some of these same matters, be sure to check Tom Diaz’s post at Fairly Civil.
OH, AND WHILE WE’RE ON THE SUBJECT OF COURTS AND CASES, THERE IS THE MATTER OF KEVIN COOPER
Without knowing lots more about the case, I don’t have a strong personal opinion on this man’s guilt or innocence, but whatever your view, the issue—which was written up in the LA Times on Sunday by Carol Williams—-makes for troubling reading.