U.S. District Judge Clarence Brimmer abruptly left the courtroom as the defense attorney began his closing arguments during the November 2008 trial of a Casper man charged with possessing and receiving child pornography.
Brimmer returned a few minutes later, saying his secretary was playing canasta that afternoon and he needed to mail some letters.
A few hours later, the jury reached a guilty verdict for Nathaniel "Ned" Solon, who was sentenced to six years imprisonment at the Leavenworth, Kan., federal penitentiary where he's in "The Hole," or solitary confinement.
Brimmer's behavior was so offensive -- a "structural error" in legal language -- that it warrants the automatic reversal of the verdict, Solon's attorney Megan Hayes wrote in her petition asking the U.S. Supreme Court to hear the concern.
"A judge who signals to a jury that the defense is not worth listening to abandons his or her constitutional role as an impartial adjudicator, thereby compromising the essential function of a criminal trial, namely to determine a defendant's guilt or innocence," Hayes wrote.
She filed the "petition for writ of certiorari" last week, about two months after the Denver-based 10th U.S. Circuit Court of Appeals decided not to rehear the case after three judges issued a 2-1 ruling upholding the guilty verdict.
The dissenting judge wrote Brimmer behaved badly for leaving the courtroom and berating a computer forensics expert who offered the theory a "trojan" virus had infected Solon's computer, leading to the downloading of pornography.
"Instead, the district court instructed the jury that Solon's primary witness was dishonest and that Solon's theory was unworthy of the court's time. It may as well have directed a verdict of guilty," Carlos F. Lucero wrote.
Hayes will cite the split decision, and differing opinions by other circuit courts on similar behavior by judges, to ask the high court to settle the issue that arose from Solon's indictment in January 2007 and subsequent trial.
For the trial, computer forensic researcher Tami Loehrs of Tucson, Ariz., had been hired by the court with an agreed-upon and industry standard fee of $20,000.
Brimmer didn't like her, according to court records.
He berated her for her large bill, called her an "abrasive witness," and told Solon's attorneys not to use "this woman with pretty exalted ideas of her worth,'" according to court documents.
When asked about an aspect of her research during the trial, Loehrs said she stopped because of the concerns over her bills, which prompted Brimmer to tell the jury she lied.
Later, Brimmer walked out of the courtroom.
Friday, Hayes said this is her first petition to the U.S. Supreme Court, which has stringent rules for filing the paperwork.
The high court allows only so many words and pages, and the petitions must adhere to a specific format, she said.
It doesn't accept electronic filings, either, she added.
Because the Supreme Court is about to enter its recess until October, Hayes said she won't know for at least four to eight months whether the court will agree to hear her case.
If it does, she will file more paperwork, as will the government's attorneys, she said.
Hayes and government attorneys will then present oral arguments before the high court -- no witnesses are called -- and the justices will question her and the government.
Some months after that, the Supreme Court will issue its ruling.
By then, Solon will have served most of his sentence at Leavenworth, Hayes said.
"Time is marching on," she said.
Reach Tom Morton at (307) 266-0592, or at firstname.lastname@example.org.