At age 92, Judge Manuel Real is still abusing his power

April 29, 2016

(Reuters) – In 1971, when U.S. District Judge Manuel Real of Los Angeles had been on the court for only about five years, he got into a spat with defense lawyer Victor Sherman over Sherman’s attempt to impeach the government’s only witness against his client James Hibler, who was accused of robbing a postal carrier. In front of the jury, Judge Real taunted Sherman about the rules of procedure. “If you don’t know it Mr. Sherman, I am not here to teach you,” he said.

The 9th Circuit reversed Hibler’s conviction in 1972, holding that the judge was “plainly wrong” to cut off Sherman’s cross examination. This week, history repeated itself. The appeals court vacated the conviction of a Victor Sherman client in a 2013 case Judge Real presided over, this one involving three defendants in a supposed scheme to defraud Medicare by supplying power wheelchairs to patients who didn’t really need them. (Sherman represents physician Sri Wijegunaratne, who was accused of taking kickbacks in exchange for writing medically unjustified prescriptions; the 9th Circuit also vacated the convictions of Wijegunaratne’s two co-defendants.) Now, as back then, the 9th Circuit found that Judge Real tainted the trial with erroneous rulings delivered in an imperious manner.

“Considered collectively, a number of the court’s remarks devastated the defense, projected an appearance of hostility to the defense and went far beyond the court’s supervisory role,” wrote 9th Circuit Judges Harry Pregerson, Kim Wardlaw and Andrew Hurwitz in an unsigned, unpublished opinion. “Further, throughout trial, the district court made numerous erroneous rulings, which one-sidedly accrued to the benefit of the government.”

The 9th Circuit opinion shows that age has not mellowed Judge Real, who was born in 1924 and appointed to the bench in 1966 by President Lyndon Johnson. For much of his long career, the judge has been dogged by controversy and overruled by the 9th Circuit. As the Los Angeles Times reported in 2009, Judge Real’s reversal rate has been as high as 10 times the average for federal judges. The Times found the appeals court removed Real from presiding over remanded cases at least 11 times.

Real was called to testify at a 2006 House Judiciary Committee hearing exploring his alleged misconduct in the handling of a bankruptcy case and related California unlawful detainer action. The House dropped the matter but he was later publicly reprimanded by the 9th Circuit.

Since 2006, according to Westlaw statistics on Judge Real’s record at the 9th Circuit, he has been reversed 87 times. The judge has been affirmed 233 times. His reversal rate in the last 10 years – not counting his 47 partial reversals – is nearly 17 percent. (I calculated the rate by dividing the number of complete reversals by the sum of complete reversals plus complete affirmances.) In 2015, according to the Westlaw report, the judge was reversed 12 times and affirmed 20, an astonishing 37.5 percent reversal rate. Before Wednesday’s decision in the Wijegunaratne case, Judge Real had been reversed in two other cases in 2016, compared to seven affirmances.

Even the government, in its appellate briefing in the Wijegunaratne case, conceded that the judge had directed “occasionally intemperate” comments at Sherman, the defense lawyer. Prosecutors reminded the appeals court that it has not always bounced convictions in trials in which Judge Real has criticized defense lawyers.

In the 9th Circuit’s 2011 decision in U.S. v. Scott, for instance, a three-judge panel said Real’s routine interruptions and criticisms of defense counsel were “inconsistent with the standards of judicial decorum,” but nevertheless upheld the racketeering conviction.

But the panel in the Wijegunaratne case said circumstances were different in the Scott case, in which “most of the court’s injudicious comments were pursuant to its supervisory role, and the evidence against the defendant was overwhelming,” the court said. “Here, by contrast, the court far exceeded the appropriate bounds of its role, and the evidence against appellants, though legally sufficient to convict, was not overwhelming.”

In fact, the 9th Circuit said, the Wijegunaratne record presents one of those “rare and extraordinary” cases in which a trial judge must be replaced on remand to preserve the appearance of justice. When the fraud case is retried, it won’t be before Judge Real.

Defense counsel Sherman, who is on trial this week in another healthcare fraud case against Wijegunaratne, said Real is still retaliating against him for that 1972 appeal. The judge has been harshly critical of him for more than 40 years, Sherman said. “What can you say? That’s his nature,” Sherman told me.

More importantly, though, Sherman asked whether it’s in the public interest for Judge Real to preside over cases only to be reversed so often on appeal. “It’s a waste of taxpayer money,” he said.

Hard to argue with that.

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