Sometimes you can tell who they're talking about even before they tell you.
I'm reading along in this opinion about habeas hearings concerning alleged prosecutorial conduct, and the Ninth Circuit says, yeah, we need a new hearing because the district court erred. Thereafter, the opinion says:
"In his opening brief, Earp requested that, upon remand, we reassign the case to a different judge. In the absence of personal bias, we assign a case to a new judge on remand only in 'unusual circumstances.' [Citation] . . . . We regrettably conclude that the circumstances of this case warrant reassignment."
So I'm thinking: "Hmmm. That's interesting. The Ninth Circuit rarely does that. I wonder what's the scoop."
Judge Tallman's opinion then tells me:
"In its order, the district judge made explicit credibility findings—it found Taylor incredible and Foltz and Milkey credible. On remand, we cannot reasonably expect the district judge to set aside these credibility
findings and reassess the viability of Earp’s claim of prosecutorial misconduct in light of Doshier’s testimony."
At which point I say to myself: "Okay. That seems plausible. I can see the reason for potentially remanding to another judge. Still somewhat unusual, but I can understand the basis for it."
But then Judge Tallman continues:
"Additionally, during the pendency of the original proceedings on remand, we had to intervene and enter an emergency stay in response to the district judge’s refusal to continue the evidentiary hearing in order to allow Earp and the California Department of Corrections time to locate and transport inmate Taylor to Los Angeles to testify. At the next hearing, the district judge was very critical of the request for a stay, notwithstanding the importance our remand order placed on assessing Taylor’s accusation. Under these circumstances, reassignment is necessary to uphold the appearance of justice."
Now I have a different reaction. This is clearly not some ordinary district court judge. This is a judge that the Ninth Circuit doesn't like. And with respect to whom the feelings are fully reciprocal.
Which makes me think only one thing. Judge Real.
At which point I look at the caption. Yep. It's him.
Which also resolves a lingering question that I had about the opinion. I initially understood why reassignment was plausible -- since a judge who has already found someone credible is indeed unlikely to change her mind -- but also thought that it might also be somewhat difficult for a judge in the same district to disagree with his colleague and find uncredible a witness that his cohort expressly found credible. Not impossible, but perhaps hard; perhaps nearly as hard as the original judge changing her mind.
But once you realize it's Judge Real, that concern disappears. I don't think anyone minds disagreeing with that guy. Indeed, at least on the Ninth Circuit, I think it's an affirmative pleasure.
Which, parenthetically, is probably what the Supreme Court often feels when it reverses the Ninth. So this time the shoe's on the other foot.
