Judging By Marilyn Hall Patel

Northern California’s retired Chief Judge Marilyn Hall Patel told secrets and cracked jokes Friday night to crowd of 200 gathered at the federal courthouse to honor her 32-year career on the federal bench.

Among those secrets, Patel said that hours before halting the 1992 execution of Robert Alton Harris in California over the constitutionality of the use of lethal gas, Patel saw CP Taylor’s play, Good, about a 1930s German academic who advocates compassionate euthanasia and becomes a Nazi.

During the evening, billed as a “Conversation with Judge Patel,” and hosted by the Northern District’s Historical Society, she described cases in which she declared execution by lethal gas cruel and unusual punishment; oversaw the integration of San Francisco’s police and fire departments, declared Napster-style music file sharing illegal and vacated the World War II-era conviction of Japanese-American Fred Korematsu for his defiance of an order to report to an internment camp.

Judge Marilyn Hall Patel
Judge Marilyn Hall Patel

And Patel, questioned by attorney Harold McElhinny of Morrison & Foerster, said she first joined the Alameda County bench as a judge appointed by Gov. Jerry Brown during his first term, when people accused him appointing “the three B’s — blacks, browns and broads,” she said.

California Execution

Patel described herself as “stunned” by the events leading up to her decision in April 1992 to halt the execution of Robert Alton Harris just 52 hours before he was scheduled to die.

Harris was to be the first man executed in California in 25 years, but his lawyers challenged execution by lethal gas as cruel and unusual punishment in violation of the Constitution.  With just two days to review papers and a 90-minute hearing the night before Easter, Patel decided there was a “serious question” requiring further review.  She delayed the execution for at least 10 days to provide a hearing on the issue.

What she did not say at the time, was that she had taken her young son to a stage play as part of a school project just hours before the highly unusual Saturday court hearing.  She said she was stunned to learn the CP Taylor play, “Good,” recounted the story of a 1930s German professor who advocates compassionate euthanasia and becomes a Nazi.

“He was asked to find a humane way to execute people and here I was about to hear this case on execution,” she said.  “I was stunned.  At the end of the play I told my son we need to get out of here.  I don’t want anybody to see us,” she said.

Although she issued a stay for Harris hours later, it did not last.  It was reversed by a 2-1 vote in the 9th U.S. Circuit Court of Appeals and upheld by the U.S. Supreme Court.

But Patel was not done.  She privately viewed recordings of the Harris execution and later determined that California’s method of execution by cyanide gas violated the Eighth Amendment.

She said she later called the 9th Circuit judge who issued the earlier order lifting the stay of execution.  The judge had withdrawn the order only after Harris died. “I said it was the most expedient and self-serving thing I’d ever seen,” she said.

Korematsu

In 1983, Patel famously vacated the conviction of Japanese-American Fred Korematsu.  She found that the military had withheld from Korematsu’s lawyers the findings of the FBI and U.S. Navy that undermined the widely circulated claims that enemy Japanese ships were offshore and received signals from Japanese onshore.

At the time of her landmark opinion she criticized the U.S. Supreme Court’s 1944 affirmance of Korematsu’s conviction saying the opinion, “stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.”

Asked how the courts are doing today in protecting individual liberties, she said it would be better to ask how the government is doing.

“The government could be a little more sensitive to individual rights.  In some respects we are losing the battle for respect of those individual rights,” she warned.  In the audience, was Korematsu’s daughter, Karen Korematsu.

Napster

In 2000, Patel was assigned the recording industry lawsuit against an upstart new company called Napster, which allowed people to upload digital music files and share them freely over the Internet.  She said she had no idea what it was all about, “So I got some advice from my son.”  She and asked her teenage son if he had ever heard of Napster.

“He said he knew what it was.  He said, ‘Mom I think it’s illegal,” Patel said to laughter in the crowd.  “What, that wasn’t in the opinion?” she quipped.

Sentencing

Patel said she believes a judge’s most important job is sentencing criminal defendants.  And she doesn’t have much use for the sentencing guidelines, imposed by Congress and the Sentencing Commission to guide judges on appropriate sentencing ranges.

“They create grids.  But a grid is no way to sentence a human being,” she said.

Patel was the first woman appointed to the federal bench in the Northern District of California.  She was nominated by President Jimmy Carter and served from her confirmation in 1980 to her retirement in 2012.

She served as the first woman chief judge in the district from 1997 to 2004.

She was general counsel for the National Organization for Women at its founding in the 1970s and active in the ACLU.  She said her appointment came because she was a woman in the right place at the right time.

With a history as a lawyer for NOW and the ACLU, “What do you think my chances [of confirmation] would be now?” she asked with a laugh.