Ninth Circuit Reverses Conviction for Failure to Grant Continuance For Last Visit with Dying Son

I write briefly on yesterday's Ninth Circuit decision United States v. Kloehn, 640 F.3d 1123 (9th Cir. 2010). In the case, the defendant was convicted of tax evasion and aiding and abetting. The defendant was the sole defense witness. The key event occurred on the evening of the fifth day of his testimony. The defendant's son suffered a massive seizure and was expected to die in a few days. Kloehn's attorney "requested a two-day continuance to allow Kloehn to see Kevin once more before his death." The prosecutor opposed, saying that the defendant could finish his testimony first and then go see his son. The trial court denied the requested extension. The defendant finished up and then was excused from attendance for the balance of the trial. The Ninth Circuit reversed.

There was a dissent. Basically, the dissent was that, in context, it was just not as bad as the majority perceived and presented in the majority opinion. The dissent concludes its analysis with this:

Insofar as the merits and the "whole record" weigh in this calculation, Gagnon, 470 U.S. at 527, Kloehn was charged with a transparent scam which anyone with an IQ over room temperature would have seen as illegal. The expenses he claimed were spurious, and the tax free laundering back to him was a smoking gun plus a bullet hole in his defense.

Bottom line? Where's the beef? Where's the prejudice? Where's the damage?