The nomination this week of Los-Angeles-based Munger, Tolles & Olson attorney Paul Watford to the 9th U.S. Circuit Court of Appeals prompted your blogger to look again at the transcript of a Supreme Court roundtable previewing the 2009 term (Daily Journal subscribers can read it via the paper’s website). At that time, yours truly was the Supreme Court reporter for the Los Angeles Daily Journal and had the job of moderating the conversation.
In his remarks, Watford focused mainly on criminal cases, showing an enthusiasm for that subject area that you might expect from a former federal prosecutor.
Here are some excerpts:
Daily Journal: How will the arrival of Justice Sonia Sotomayor as a replacement for Justice David H. Souter change the dynamic of the court?
Watford: I have reviewed a number of her criminal opinions and I would tend to agree with the commentators who said that she may well turn out to be more conservative than Justice Souter on criminal law issues.
Daily Journal: In the criminal law area, the court has granted two petitions to explore how to define “honest services” fraud as it applies to public officials and private figures. The private figure in question is media tycoon Conrad Black. Weyhrauch v. U.S., 08-1196 and Black v U.S., 08-876.
Watford: I certainly have an interest in it. There’s been a lot of uncertainty about the scope of what crimes can be prosecuted under the honest services statute. I don’t think I ever even had a case where that statute came up. But I know the lower courts have been in disarray on this issue and hopefully the Supreme Court will provide some definitive guidance. It had been well established in the context of public officials who had taken bribes. I think the Conrad Black case is interesting because it’s in a purely private context. It’s certainly a timely opportunity for the court to step in.
Daily Journal: Prosecutorial abuse is the subject up for discussion in Pottawattamie County v. McGhee, 08-1065. The question is whether prosecutors have absolute immunity for conduct that occurred outside the courtroom. In this instance, a prosecutor obtained false testimony during the investigation and then presented it at trial.
Watford: The entire conviction was based on this coerced testimony. It’s very clear that the prosecutors are absolutely immune for anything they did in court. But there’s a big question about what about everything that occurs before you get into the courtroom, which is the key twist in this case. I find the issue fascinating as a former prosecutor.