- The Washington Times - Monday, October 2, 2006

The U.S. 9th Circuit Court of Appeals in San Francisco has strangely shifting views on freedom of expression. It seems to depend on who expresses what.

In 1999, for example, the court declared “virtual” child pornography a “right.” “The First Amendment,” it said, “prohibits Congress from enacting a statute that makes criminal the generation of fictitious children engaged in imaginary but explicit sexual conduct.”

Last October, however, the court took a far more cramped view of free speech. The murder conviction of Mathew Musladin must be thrown out, it ruled, because the victim’s family sat in the front row of the trial, wearing buttons depicting nothing more than the victim’s photograph. This mute expression, the judges ruled, may have prejudiced the jury and thus violated Musladin’s right to a fair trial. In October, the Supreme Court will hear an appeal.

One wonders how the 9th Circuit might have ruled had the victim’s family worn “virtual” child pornography, instead of a photo of their slain loved one.

Musladin never denied shooting the dead man — twice. He claimed it was self-defense, but the jury didn’t buy it. The circumstances are described in a brief that California Attorney General Bill Lockyer submitted to the Supreme Court.

Musladin and his wife, Pamela, were separated. She was living with her mother and her brother, her new fiance Tom Studer and Garrick, her 3-year-old son by Musladin. On May 13, 1994, Musladin had a scheduled visit with his son. That day, the local district attorney’s office contacted him about not paying child support. He went to his wife’s house with a pistol in his car, got his son, put him in the car and began arguing with his wife.

“Either you sign full custody of Garrick over to me right now, or I will blow both of your [expletive] heads off,” he told her, according to the attorney general’s brief. Then he shoved her to the ground. Tom Studer and Pamela’s brother, Michael Albaugh, came to her assistance.

Musladin grabbed his gun and shot Studer in the back of the shoulder. When Studer tried to crawl under a truck in the garage, Musladin pursued him there and fired again. This time, the bullet ricocheted into Studer’s skull, killing him. Musladin claimed Studer was carrying a gun and Mr. Albaugh a machete, and that he fired to defend himself. The prosecutor presented testimony that Studer and Mr. Albaugh were unarmed. The jury convicted Musladin of murder, and he was sentenced to 32 years to life.

The Antiterrorism and Effective Death Penalty Act of 1996, designed to limit frivolous appeals in federal courts, governs Musladin’s case. A federal court, it says, may not overturn a state court decision unless it “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.”

The problem for Musladin is that the Supreme Court has never “clearly established” or even hinted that something worn by courtroom spectators could deny a defendant a fair trial. Accordingly, the state appeals court let Musladin’s conviction stand. A federal district court declined to overrule the state court, and Musladin’s appeal arrived in the 9th Circuit.

Judge Stephen Reinhardt, a Carter appointee, wrote that court’s opinion overturning Musladin’s conviction. This is the same Judge Reinhardt who has voted over the years for 9th Circuit opinions that claimed doctor-assisted suicide was a constitutional right and — in another take on the freedom of expression — that it is unconstitutional for children to recite the Pledge of Allegiance in public schools.

Lacking a Supreme Court precedent to back up his decision that the Studers’ buttons made Musladin’s conviction unconstitutional, Judge Reinhardt ignored the letter of the law and used a 1990 opinion by the 9th Circuit itself as his justification. That opinion threw out a rape conviction because a few women had attended the trial in question wearing buttons that read, “Women Against Rape.”

In a recent story on the Musladin case, the Los Angeles Times reported the high court reviewed 18 cases from the 9th Circuit last year and reversed 15. But it was only four years ago that the court voted 6-to-3 to uphold the 9th’s Circuit’s ruling that the First Amendment protected “virtual” child porn. That opinion was written by Justice Anthony Kennedy, a Reagan appointee.

If nothing else, the Musladin case should remind voters that the upcoming Senate elections are as much about the direction of the federal courts as they are about the direction of the Congress.

Terence P. Jeffrey is a nationally syndicated columnist.


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