CURB AN ACTIVIST COURT

Monday, April 29, 2002 - The Ninth Circuit Court of Appeals, which has a
reputation for being the most reversed court in the country, is at it again.

The U.S. Supreme Court has agreed to review a Ninth Circuit case that
expands the rights of criminal defendants to see almost everything in a
prosecution case before deciding whether to enter a plea agreement.

Defendants have long had the right to be fully informed of evidence that
would help prove innocence, but under certain plea-bargain arrangements
offered in the Southern California federal district, defendants are asked
to waive the right to certain witness-impeachment information.

The case involves a drug-runner arrested while transporting 66 pounds of
marijuana from Mexico. She was offered a chance to greatly reduce her
sentence in trade for a guilty plea that would have avoided an indictment
proceeding and the back-and-forth filing of typical motions. She declined.
When she later pleaded guilty and received a slightly stiffer sentence, her
attorney filed an appeal, contending she was entitled to the earlier offer.

This case could affect federal prosecutors who handle thousands of cases
each year. Because 95 percent of them are handled by plea- bargaining, it
matters whenever the rules of plea bargaining are changed significantly.

A dissenting judge in the Ninth Circuit correctly pointed out that changing
the rules could have two immediate adverse effects. For one, it could
increase the time and resources that must be spent on each case. It also
might force the government to identify reveal the identity of drug informants.

Comments made by justices during oral arguments indicated the court may
find a way to duck a direct ruling on these issues. It might set aside the
Ninth Circuit Court decision on jurisdictional grounds.

Considering the mischief-making potential of the current Ninth Circuit
ruling, that might be a very good thing.