January 2016 - Alphabetical Disorder

by Justice William W. Bedsworth

One of the more rewarding things about a career on the bench is that it helps you develop confidence. People laugh at your jokes, compliment your wisdom, and just generally make a big deal of you. You end up having to buy larger hats.

And, over time, your confidence in your ability to do the job grows. Which is good because you start out terrified. After all, you’re expected to start out perfect and then improve with experience. That can be daunting.

So it’s good that time provides self-assurance if not sagacity. Part of that process is that you deal with similar issues, variations on a theme, on a daily basis. After you’ve seen the same argument come up over and over again—sometimes wearing fur, sometimes wearing feathers, but basically the same argument—you begin to believe you can handle it.

Better minds than mine might find this boring. But I always greet these occasions warmly. These are old friends, come to reassure me that I’m smarter than last week’s horrific “interference with prospective economic advantage” case made me feel.

They can be tricky; you always have to be careful not to greet your old friend the due process groundhog only to find out it is in fact a snapping, snarling equal protection wolverine. But if you respect the fact the quality of our bar is such that they will rarely go into battle armed only with a groundhog so you have to look closely before petting it, you can reap the full benefits of having learned the taxonomy of the issue the first fifty times you saw it.

There is, however, a variation on this process that should be mentioned. Sometimes arguments go dormant for awhile. Some of the really bad ones are like comets: they have a periodicity and only come around every decade or two.

I had lunch with a colleague last week1 who told me he had just resolved a “novel” issue. He had a pro per argue that because all the jurors in his case had surnames from the last half of the alphabet, he had been denied due process.

I almost spit out my soup.2

“Walker’s Comet!” I exclaimed.

He gave me one of those “No wonder no one eats lunch with you” looks and cocked his head in such a way as to indicate confusion and avoid flying soup at the same time. Remarkable economy of motion (he’s an ex-athlete).

“Walker’s Comet,” I repeated. “Jeez, it must have been twenty years since it passed through the solar system.”

Turns out it was almost twenty-five. I remember it because it prompted a series of jury venire challenges. We called it Walker’s Comet because several of the older judges told us it had been very popular when they were younger, but they hadn’t seen it in a decade or two. We figured if we gave it a name, it would be recognizable next trip through.

We were right. It’s back, and I was positively giddy to learn it had actually returned. My lunch companion on the other hand was doubtless concerned I had—once and for all—taken leave of my senses. He had never heard of Walker’s Comet, he didn’t know what it had to do with his case, and he couldn’t understand why I was so excited about it.

And I couldn’t tell him until the case was resolved. Maybe when he reads this, it will reassure him about my sanity.

William Jefferson Walker was the petitioner/protagonist in Walker v. Goldsmith, 902 F.2d 16 (9th Cir. 1990). As the august personages of the 9th Circuit described it, “Petitioner, an Arizona state prisoner, argues that his Sixth Amendment right to a jury that represents a fair cross-section of the community and his Fourteenth Amendment right to equal protection were violated because the venire pool from which his trial jury was selected did not include those whose surnames began with the letters “W,” “X,” “Y” and “Z.”3

That’s a great argument the first time you see it. On the Groundhog-Wolverine Scale, that’s a Bolivian Red Saber-toothed Panda. That’s one nobody is gonna know what to do with right away.

On style points alone that merits a bronze medal.4

But what makes it truly wonderful is that Walker had both scientific evidence and legal precedent to offer on its behalf. In the immortal words of the great legal philosopher Yakov Smirnov, “What a country!”

The 9th Circuit said: “Walker’s contention that this group is a recognizable and distinct class is based on a survey by Dr. Trevor Weston. Weston claims that those whose surnames begin with the letters S through Z are 50% more likely to develop a condition called ‘alphabetic neurosis’ than are those whose surnames begin with the letters A through R.”

Granted, I speak from an obvious bias where “alphabetic neurosis” is concerned, but I gotta tell you, Dr. Weston, life is not a bowl of cherries for us “Bs” either. I mean, while Simpson and Torres and Urquhart and Villa and Williams and Yurak and Zimmer were throwing spitwads, I had to pay attention. And while we’re on the subject of bias, Dr. Weston, just how objective do you claim to be on this topic?

But forget Dr. Weston. Walker not only found an expert he could quote, he also found precedent. Just three years earlier, the 11th Circuit had dealt with the argument that persons whose surnames begin with the letters M through Z constitute a cognizable class. United States v. Puleo, 817 F.2d 702 (11th Cir. 1987).

Unfortunately for Mr. Walker, the 11th Circuit needed only forty-eight words to trash Ms.5 Puleo’s argument. But let’s not quibble; precedent is precedent.6

Besides, Puleo doesn’t stand alone. This goofy comet came through in slightly different garb in 1968.7 In Krause v. Chartier, 406 F.2d 898 (1st Cir. 1968) a Rhode Island petitioner complained that his entire jury venire was drawn from latent alphabetic neurotics; they were all T-Zs. The court, as had the Puleo court, expressed a fairly clear sense that this probably wasn’t a good idea,8 but also rejected it as a case-determinative mistake. It repudiated Mr. Krause’s complaint, and affirmed the judgment against him. In a paragraph.

So all right, this isn’t a great argument, but it is absolutely terrific craziness. So help me, if Mr. Walker’s argument had won the day, I would have recommended him to any appellate firm in the country. Here’s a guy who really could tailor whole cloth. But all the argument got him was ten years incarcerated in the Arizona desert, and most good firms can manage that without help.

I don’t know if the case my friend told me about will be the only sighting/citing of Walker’s Comet this time around. Strangely enough, it appears to be visible primarily in the skies of the federal courts—perhaps because those folks are more attuned to the music of the spheres than we staties.

But now that I have recorded its appearance for posterity, some judge twenty to twenty-five years hence will be able to greet the argument with a warm smile when it next appears: “Come in, Mr. Groundhog; nice to see you again.”


  1. I do not divulge the names of people kind enough to eat with me. They sacrifice enough just being seen with me without having to suffer the indignity of having their indiscretion published.
  2. Which would have narrowed even further the group of people willing to eat lunch with me.
  3. Note the space between the “Y” and the word “and” does not include a comma. Today’s MCLE tip: the 9th Circuit is not a fan of the Oxford comma. I am. Two tips for the price of one.
  4. Although, since the 9th Circuit rejected it, I guess we have to deduct a little for not sticking the landing.
  5. At last, an instance of the other gender doing something stupid. I was afraid my sex was going to have to fight the craziness battle unaided. As we usually do.
  6. An aphorism that never worked any better for me than it did for Walker.
  7. Note the periodicity here: 1968, 1990, 2015—generally as long as it takes a generation of judges to move on to greener pastures and leave behind judges who consider the argument “novel.”
  8. A lot like the feeling you’re having right now about reading this column.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov. And look for his third book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.