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DID IRS AGENTS GIVE JURORS THE EVIL EYE? Three federal judges might be joining the tax scofflaws on the Internal Revenue Service’s grudge list. Last week, the Ninth Circuit U.S. Court of Appeals threw out a couple’s tax evasion conviction. The reason? IRS agents were glaring at jurors during the trial. Martin and Nanja Rutherford’s attorney argued that IRS agents sat directly behind prosecutors and would often glance at jurors, causing them to fear retribution if they acquitted the pair. Ninth Circuit Judge Stephen Reinhardt — joined by Senior Judge Betty Fletcher and Chief Judge Jane Restani of the Court of International Trade — wrote that defense attorneys had a point. “Several of the agents were key witnesses in the case, and the prosecutor turned around and conversed with the agents during the trial proceedings and trial breaks. At least one juror alleged that a number of the agents regularly glared at her and her fellow jurors,” Reinhardt wrote. “For these reasons, we hold that the district court erred in concluding that the defendant must prove that the individuals involved intended to influence or prejudice the jurors in order for the presumption of prejudice to apply,” the judge added. The case was sent back to U.S. district court in Nevada for reconsideration and possibly a new trial. The ruling didn’t say whether the agents temporarily halted audits to make a courtroom appearance. Regardless, the judges are likely updating their tax records. — Justin M. Norton PARADOX APPEAL Back in January, Ninth Circuit U.S. Court of Appeals Judge William Fletcher wrote a dissent in a police excessive force case that would have made novelist Joseph Heller proud. Now the full court has decided to take another look at the Catch-22 Fletcher described. The Ninth Circuit announced last week it would rehear Smith v. City of Hemet, 04 C.D.O.S. 4961, an opinion Fletcher called “a pretty neat trick” because it protects police from abuse claims. The case involves an excessive force claim by Thomas Smith, who was arrested after his wife called 911 and reported he was abusing her. When police officers arrived, Smith refused to follow commands and was pepper-sprayed and attacked by a police dog before he was arrested. The husband later pleaded guilty to spousal battery and also to resisting arrest, California Penal Code � 148. Then he filed a federal excessive force claim. The paradox came up in the interplay between state and federal law. Because California appeal courts have found that a conviction for resisting arrest includes a finding that police did not use excessive force, U.S. District Judge Virginia Phillips tossed the suit. Her decision was upheld by a split Ninth Circuit panel. Fletcher dissented from a majority opinion signed by Judges Johnnie Rawlinson and Barry Silverman. “The majority is also wrong as a matter of policy. The decision provides a road map that will enable police effectively to eliminate many, perhaps most � excessive force suits,” Fletcher wrote. “Under the majority’s decision, if a police department is concerned that one or more of its officers may have used excessive force, it should press charges under � � 148.” Even the majority called the interplay between the state and federal laws a “quagmire.” — Jeff Chorney THE DOPE ON SCOTLAND The Sacramento legal community was treated to a secret chapter in the life of Third District Court of Appeal Presiding Justice Arthur Scotland, this year’s Sacramento County Bar Association Judge of the Year. Scotland received his award at the bar group’s annual Bench and Bar Reception, held at the swanky Esquire building in downtown Sacramento. Introducing the honoree was Scotland’s co-worker and longtime friend, Justice Ronald Robie, who referenced Scotland’s early career as a former drug enforcement officer with the state Department of Justice. “Can’t you see him selling a lot of dope?” Robie asked the crowd of attendees, which included federal judges, appellate court judges, superior court judges and lawyers. “Buying, not selling!” Scotland roared back. “Anyway, the statute of limitations has run on that.” — Jill Duman REVISIONIST HISTORY Almost a month after ruling for the birth mother in a complicated parental rights case involving two lesbians, San Francisco’s First District Court of Appeal on Wednesday denied rehearing — and made 29 modifications to the opinion. “Six pages with 29 modifications?” said one person familiar with the case, who requested anonymity. “Yeah, that’s on the high end.” He said the petition for rehearing apparently pointed out several irregularities in the facts and procedure of the case. “And this modification appears to clarify those irregularities.” But San Francisco lawyer Jill Hersh, who argued the case on behalf of the losing plaintiff, said she read more into the changes. “The revisions,” she said Friday, “seem to be trying to put the last nails in the coffin in an effort to end this woman’s status as a parent.” In the case, a woman identified only as K.G. sought parental rights to the twin girls her longtime partner, E.G., conceived with eggs donated by K.G. The First District, in a May 11 ruling by Justice Mark Simons, declared E.G. the sole mother. The 29 modifications released Wednesday make minor word changes, but more than half convert the phrase “legal mother” or “legal parent” to simply “parent” or “sole parent.” Hersh, of the Hersh Family Law Practice, thought the modifications were “strange,” but would make for an “interesting” petition for review to the state Supreme Court. “It’s as if they decided,” she said, “to have an in camera hearing to which we were not invited.” The case is K.M. v. E.G., 04 C.D.O.S. 3992. — Mike McKee

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