Court: Northern District of California
Appointed: 1980, by Jimmy Carter
Born: Sept. 2, 1938
Law School: Fordham University Law School
Previous Judicial Experience: Oakland-Piedmont Municipal Court, 1976-1980; Hearing Officer, Immigration and Naturalization Service, 1967-1971
U.S. District Judge Marilyn Hall Patel is many things to many people.
To Napster founder Shawn Fanning, she is his company’s executioner.
To Fred Korematsu, jailed during World War II for refusing transfer to a Japanese internment camp, she is the judge who had the guts to restore his honor.
To Glen “Buddy” Nickerson, she’s the person who indicated he may have been wrongly convicted, and the giver of his only days of freedom in 18 years.
To combative attorney Maureen Kallins, she’s a former jailer.
To California’s condemned inmates, she’s the provider of a choice: whether to die by lethal injection rather than inhaling cyanide.
As time goes on, the web that Patel has woven of high-profile rulings keeps growing. She has demonstrated what should be one of the defining characteristics of a federal judge — courage. That is virtually unquestioned.
But hers is a tangled web. Lawyers call Patel complex.
While some fear her, others have seen her be downright motherly in court. She would be considered a classic liberal, but took no quarter in siding with big business in the recording industry’s fight with the now-defunct file sharing company Napster.
A left-leaning, Jimmy Carter-appointed judge, Patel helped bring in a law-and-order Republican to be U.S. attorney.
Though she has a reputation of handing down tough criminal sentences, she freed Nickerson before issuing a final decision on his habeas corpus petition. The�9th U.S. Circuit Court of Appeals almost immediately ordered the convicted double-murderer back into custody.
Time and again, she has sent up controversial rulings to the 9th Circuit. The reversals come as often as they do with any district court judge — maybe more — but they never seem to faze her. Those who have observed Patel for years say she, more than most, has put her lifetime tenure to good use. She will not look over her shoulder, and she has little regard for public opinion.
She is demanding on lawyers, wielding a fearsome intellect and a wit that sometimes snaps like a whip. She can also, some say, be vengeful.
“Anybody who says anything bad about her on the record is crazy,” said one local lawyer.
This comes in the form of a 64-year-old Jewish mother from New York who sports thick-framed glasses and impeccably coiffed black hair.
Patel has total command of her courtroom. She turned arguments over Napster’s business model into great theater for the legions of reporters that lined up outside her courtroom each day, even if they were unfamiliar with the vagaries of secondary and tertiary liability.
In 1998, she succeeded Thelton Henderson as chief judge and went at the job with zeal. When former U.S. Attorney Michael Yamaguchi was shown the door, insiders say Patel was integral in helping find a quality replacement — Robert Mueller III, a Republican who now heads the FBI. After Mueller arrived, the Northern District went from something of a joke to a forum for some of the highest-profile criminal cases in the country.
“She demands that people bring their best forward,” said Nanci Clarence of Clarence & Snell, who said she enjoys appearing before Patel. “If you show up in her courtroom, and you’re a potato, you’re going to get mashed.”
Other lawyers commented on her toughness, giving the impression that Patel’s backbone is made of steel — not that it’s always a good thing.
“Judge Patel gets a strong idea about who’s right and who’s wrong, and comes to that by thinking hard about the issues,” said one local lawyer. “Once she gets there she is tough to move from that view, and powerful in enforcing it.”
When Patel gets interested in an issue, it shows. Unfortunately, the reverse can sometimes also be true. Patel has a reputation for being slow to hand down orders. When the Northern District reenacted its first criminal trial last year, a turn-of-the-century mutiny case, there was a lighthearted joke making the rounds that Patel still had it under submission.
But when they do come down, they can come down with the force of a hammer. In yet another of her groundbreaking decisions — this one declaring computer source code can be protected speech — she was typically incisive:
“Defendants appear to insist that the higher the utility value of speech the less like speech it is. An extension of that argument assumes that once language allows one to actually do something, like play music or make lasagna, the language is no longer speech. The logic of this proposition is dubious at best. Its support in First Amendment law is nonexistent.”
