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Who's the Kangaroo Court Now? A California Judge's Insult to the Court of Appeal, and What the Underlying Case Reveals By SHAUN MARTIN Monday, Jan. 08, 2007

An easy lesson to be gleaned from the California Court of Appeal's recent opinion in People v. Zackery is that it's rarely a good idea to call your boss a kangaroo. Especially when your boss is a fellow judge, on a higher court, who can respond in a published opinion that holds that your insult violates the Code of Judicial Ethics.

But a far more subtle - and important -- lesson to be derived from this case may be that the process of appointed representation for criminal appeals may not be working particularly well.

The Birth of the "Kangaroo": Judge Saiers's Comment

The problem all started when Judge K. Peter Saiers of the Superior Court of San Joaquin County wanted to dismiss one of a defendant's prior convictions -- a "strike" in California's "three strikes" scheme -- in order to obtain a sentence of six years, as part of a plea bargain.

Such dismissals have repeatedly been disapproved by the California appellate courts and held to violate Section 1192.7(a) of the California Penal Code, which generally prohibits plea-bargained dismissals in serious felony cases. When the prosecutor said as much to Judge Saiers, Judge Saiers responded: "Oh, that's right. You can't offend the kangaroos up there in kangaroo court."

When the defendant subsequently appealed his sentence, and the California Court of Appeal reviewed the record, the Justices stumbled across the reference to the "kangaroos up there in kangaroo court." Needless to say, they were less than amused. Indeed, Justice Sims was sufficiently displeased that he wrote a published opinion holding that Judge Saiers violated Canon 1 of the Code of Judicial Ethics by making this comment. Canon 1 provides that "a judge shall uphold the integrity and independence of the judiciary."

Notably, Justice Sims also included at least one line in the opinion that appeared almost purposefully designed to be used by a challenger the next time Judge Saiers might run for reelection, stating that "The truth of the matter is that Judge K. Peter Saiers has wasted taxpayers' dollars."

Reasonable minds might perhaps disagree about precisely to whom Judge Saiers was referring, or whether Justice Sims overreacted to the comment. There's nonetheless little doubt that it's rarely beneficial to use language that appears to compare a superior tribunal to a "kangaroo court" and its residents to marsupials -- especially on the record.

The more troubling substantive aspect of this case, however, is easily overlooked, particularly given the winding procedural path through which the matter eventually came to the attention of the Court of Appeal.

The Importance of the "Kangaroo"

When the defendant decided to appeal his sentence, because he was indigent the Court of Appeal appointed an attorney, William Davies, to represent him. Davies then filed a perfunctory Wende brief on appeal. A Wende brief (which is California's version of a federal Anders brief) summarizes the facts of the case, and declares that counsel for the defendant has reviewed the record and has found not even a single arguable issue in favor of his client.

The filing of a Wende brief by appointed counsel is fairly routine. Wende briefs technically invite the Court of Appeal to conduct its own independent review of the record to ascertain whether any arguable appellate issues exist. However, if counsel for the defendant -- acting as an advocate -- cannot find even a single colorable argument on appeal, rarely does an impartial (and severely overworked) Court of Appeal conclude that such arguments exist. Thus, virtually all Wende briefs result in a decision to summarily affirm the result below.

When the Court of Appeal in Zackery reviewed the record, however, the Court didn't just find one potential argument on behalf of the defendant, it found eight of them - many among them significant and/or obvious. For example, there was a substantial question regarding whether the trial court coerced defendant's eventual guilty plea. Judge Saiers not only told the defendant that he "ha[d] no defense" and that the proposed plea bargain was a "no-brainer," but he also asked the defendant "Do you want to spend the rest of your life in prison?" When the defendant responded negatively, Judge Saiers replied, "Well, then, you should take the four year offer." There were also numerous - and fairly obvious - errors in the sentence, each of which, the Court of Appeal held, separately required reversal.

The Court of Appeal was thus able to identify a plethora of arguments on behalf of the defendant. These arguments were not only colorable, but actually meritorious. Yet, again, not one was identified in the brief submitted by the counsel appointed to represent the defendant on appeal.

The "Kangaroo" May Be The System

How one views this result, depends upon whether one views the glass as half- empty or half-full. One way to view what transpired in is to conclude that it proves that the Court of Appeal takes its obligation seriously, upon receipt of Wende briefs, and often identifies issues that counsel has overlooked.

But another - and probably more plausible - way to interpret the case is to find the Court of Appeal's particular interest in this case as purely derivative of the comment by Judge Saiers that the Court of Appeal was a kangaroo court. That insult may have inspired the Court of Appeal to dig especially carefully through the record both to police the quality of Judge Saiers's work, and prove its own mettle. If so, then absent that random (and ultimately irrelevant) comment, the result of the Wende brief submitted by counsel would have been the same in Zackery as in virtually every other case involving a Wende brief: summary affirmance.

The obvious lesson of Zackery is that trial courts should be hesitant to employ the term "kangaroo court" (or any other slur, of course) to describe their appellate superiors. A more subtle reading of the case, however, may also reveal a far more subtle and important lesson: Appointed criminal appellate counsel may sometimes be far less diligent in reviewing the record and identifying potential arguments to be made, than the adversary system should both prefer and require.


Shaun Martin is a Professor at the University of San Diego School of Law. He blogs about contemporary cases from the Ninth Circuit and California appellate courts at www.calapp.blogspot.com.

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