Appeals Panel Blasts Judge but Upholds Drug Dealer’s Sentence : Courts: 9th Circuit assails L.A. jurist for ‘harmful comments’ in comparing defendant to Manuel Noriega.

A federal appeals court criticized controversial Los Angeles Judge A. Andrew Hauk on Thursday for making “harmful and gratuitous comments,” but upheld the conviction of a heroin dealer, whom Hauk compared to former Panamanian dictator Manuel Noriega.

In a 2-1 decision, the U.S. 9th Circuit Court of Appeals in San Francisco sustained the 1990 conviction of Larry D. Milner on charges of conspiracy and possession of heroin with intent to distribute.

Milner and a female companion were arrested at Los Angeles International Airport in 1989 after authorities said they were acting suspiciously and a pound of heroin was found inside the woman’s clothes. The woman pleaded guilty and testified against Milner.

During jury selection, Hauk, referring to a man in a blue blazer leaving the courtroom, told jurors that the man was a U.S. marshal. Hauk said the marshal was present with two other officers for the “security of the jurors, security of the court, security of everybody.”

“The only other solution is using handcuffs and leg irons” on a defendant, Hauk said. But he added that such restraints are used only for individuals such as Noriega, who had been taken into custody three weeks earlier after a massive manhunt during the United States invasion of Panama.

When Milner’s defense lawyer, Terry Amdur, attempted to intervene, Hauk refused to listen to him and said: “I don’t fool around with a lot of gobbly gook.” Amdur moved for a mistrial and Hauk denied the motion.

Milner was convicted and received a sentence of 7 years, 3 months. He appealed the conviction on several grounds, including Hauk’s remarks to the jury.

Judge Jerome Farris, writing for the majority, said Hauk had “cured” his inappropriate comments with a later statement.

Farris noted that before the jury began deliberating, Hauk told jurors “the fact that the defendant may be in custody, of course, does not mean that the defendant committed the offenses charged or any other offense. . . . The fact that a defendant is or is not in custody should not enter into your deliberations in any way.”

Farris, joined by Judge John T. Noonan, said that it was “improper for Judge Hauk to dismiss Mr. Amdur’s concerns as ‘gobbly gook (sic).’ ” Farris also wrote that Hauk improperly suggested that Milner warranted special security.

In a ringing dissent, Circuit Judge Stephen S. Trott said that Hauk’s remarks had been so prejudicial that Milner had been denied a fair trial.

Trott said potential jurors were not questioned regarding their ability to be impartial after learning that Milner was in custody and that security had been increased.

Milner was dressed in civilian clothes, but Trott stressed that the jurors “were explicitly told” by Hauk that he was in custody.

“Moreover, the court singled out and identified the visible security force sitting right behind Milner and told the jury that the persons watching him were United States marshals,” Trott wrote. “Telling jurors that a defendant is in custody because he is a threat to their security is precisely the type of statement that may affect a juror’s judgment. . . . It poses an unacceptable threat to the . . . process.”

Trott said that telling prospective jurors that Milner “was not as bad as Manuel Noriega, and so handcuffs and leg irons were not necessary, only aggravated” Hauk’s earlier comments. “The comparison was tantamount to telling the jurors that a big fish drug trafficker who poses a security threat is held in leg irons and handcuffs, which is untrue, while a little fish drug trafficker can be controlled with a security force sitting right behind.”

Hauk’s attitude in the case “deserves attention,” Trott wrote. “A defendant’s right to a fair trial is not gobbly gook. A trial court’s responsibility to protect a defendant’s right to a fair trial is not gobbly gook. It is difficult to discern exactly what the court meant by ‘gobbly gook,’ which is a term that thus far has not made it into Black’s Law Dictionary.”

Thursday’s opinions reflected only the most recent criticism of Hauk for intemperate remarks from the bench. The 79-year-old jurist has been chastised for making racist and sexist comments.

Milner’s attorney, Amdur, said he planned to ask for a rehearing by the full 9th Circuit.

Amdur said: “I don’t think Judge Hauk consciously made these comments with the attempt to prejudice the jury, but I think that was the effect of it. I’ve had a lot of trials in front of Judge Hauk. I don’t think he’s the kind of man who would do that kind of thing. He just says things, and he doesn’t think about what the impact will be.”