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Incompetence Stops Clock on Ineffective Assistance Claim Ninth Circuit U.S. Court of Appeals Judge Alex Kozinski last week wrote his first decision in a California capital case since the state targeted him for meeting with a death row prisoner. The decision goes to a sore spot these days for the California attorney general’s office — the rules regarding habeas corpus review. Kozinski held that, just as the accused can be deemed incompetent to stand trial, they can also be deemed incompetent to proceed with habeas litigation — a decision that effectively stays the execution indefinitely. Oscar Gates killed one and injured another during a 1979 robbery. He now believes that he is not only a beneficiary of the Howard Hughes trust fund, but that Hughes himself told Gates how to cure AIDS using yellow chili peppers. His appellate attorneys have been having a hard time getting Gates to help them with claims that his lawyer was constitutionally ineffective. Kozinski, joined by another conservative, Andrew Kleinfeld, and the liberal Lawrence Karlton, a Sacramento-based district court judge sitting by designation, wrote that Gates should not be forced to exhaust his appeals when he is unable to help his lawyers. “Whether trial counsel were constitutionally ineffective may depend on their interactions with Gates. The more obvious his incompetence at the time, the more likely that they were deficient for failing to recognize it. Unless Gates can offer his side of the story, we can rely only on trial counsel’s version of events,” Kozinski wrote. “We can only speculate what evidence Gates might offer. But that doesn’t detract from the probability that some corroborating evidence within his private knowledge exists. By forcing Gates to proceed notwithstanding his incompetence, the trial court would effectively prevent him from ever presenting that evidence to a federal tribunal.” The case was argued in September. Around the same time, Kozinski visited a death row inmate with whom he had exchanged letters. When prosecutors in Attorney General Bill Lockyer’s office found out, they feared Kozinski was going soft on the death penalty. In an unusual letter to Ninth Circuit Chief Judge Mary Schroeder, the AG’s office asked that Kozinski be barred from hearing capital appeals pending an investigation into whether his actions were proper. Kozinski said the office was acting “crazy.” — Jason Hoppin Tactical Objection Five months after the city of Oakland agreed to pay $11 million to settle a civil suit linked to the “Riders” police scandal, it is once again battling civil rights lawsuits. On Thursday, two suits were filed in connection with the anti-war protests at the Port of Oakland on April 7. Police say they fired rubber bullets, dowels, beanbags and other projectiles at protesters after demonstrators failed to disperse and threw things. The suits claim officers’ actions crossed the line. In Local 10 International Longshore and Warehouse Union v. City of Oakland, C03-2662, 40 plaintiffs, including a union that represents port workers, allege that they were shot at, hit with motorcycles and exposed to tear gas. The suit was filed by a coalition of attorneys led by James Chanin of Berkeley, John Burris of Oakland, and Rachel Lederman of San Francisco. Chanin and Burris represented plaintiffs in the Riders civil suit. Lederman works with the National Lawyers’ Guild, which has represented protesters for many years. Also on Thursday, Coles v. City of Oakland, C03-2961, was filed in federal court. Oakland’s Haddad & Sherwin represent five protesters and one journalist who make similar allegations. Both suits seek court injunctions to prevent the police department from similar conduct. Lawyers in the Local 10 case plan to seek class action certification. While declining to comment on the litigation, City Attorney John Russo said the City Council has been “forward thinking” by appointing an independent panel to probe the incident. The group �� which is dominated by esteemed figures from the Northern California legal community ��will issue findings in a few months. “The City Council has shown great courage by putting this in the hands of an independent panel,” he said, noting that litigants will have access to that information. “It’s not going into the bunker.” — Jahna Berry An Obsession Without End Monterey lawyer Gail Morton met Walter Wagner in 1975 when both were first-year students at Sacramento’s McGeorge School of Law. She has spent the ensuing 28 years trying to get the obsessed man to leave her alone. On June 24, Morton got a little help, when San Jose’s Sixth District Court of Appeal upheld an order prohibiting Wagner from harassing Morton and requiring him to stay at least 100 yards away from her workplace in downtown Monterey. “A reasonable person would wonder about [Wagner's] motives and his state of mind,” Justice Eugene Premo wrote, “and would reasonably fear for her safety.” Justices Conrad Rushing and Franklin Elia concurred. According to the court’s unpublished ruling in Morton v. Wagner, H024187, Wagner’s behavior at McGeorge prompted school officials to provide Morton with a 24-hour security guard until she completed the bar exam in 1978. “He lurked in the hallway of her apartment building, jumped out of the bushes at her, delivered all manner of objects to her by placing them in and about her car, and generally kept her under surveillance,” Premo wrote. “He filed lawsuits to obtain court orders prohibiting her from living with men over the age of 14 and requiring her to read books on sexual reproduction,” he continued. “He was once found on campus wearing a wig and carrying a knife.” Morton eventually secured a court order, Premo noted, permanently preventing Wagner from harassing her. Even so, the court noted, Wagner sporadically popped up over the years, even appearing in courtrooms on days she was scheduled to be there. The latest episode occurred on Nov. 9, 2001, when Wagner showed up in Monterey, where Morton works for a group called Lawyers on Duty, and began inquiring about her around town and contacting her father under the guise of “Zahaenya Wagner.” When arrested by police, Wagner — claiming to be the Hawaiian-based director of the World Botanical Gardens on a mission to develop the “Monterey Bay Terrarium” — had three knives on him and a fourth in his car. He also had a list of all employees at Lawyers on Duty. Morton then got an injunction under a state harassment law — passed by the Legislature in 1978 at the urging of Wagner’s fellow students at McGeorge — to stop Wagner’s stalking. In its ruling, the appeal court noted that Wagner’s recent attempts to contact Morton might not seem threatening. “But viewed in the context of over 20 years of pursuing plaintiff, his fixation on weapons and his ‘implausible’ explanations for his conduct,” Premo wrote, “a reasonable person would fear for her safety in the face of his recent attempts to contact her.” On a Web site for World Botanical Gardens, Wagner says he attended law school for three years, but followed the botanical sciences instead. He claims Hawaiian residency, but in court papers listed a Monterey address. — Mike McKee

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