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Joe Patrice at Above the Law had an unsurprisingly witty take on the lambasting of the federal government by the Ninth Circuit over the government’s misconduct in a drug case last September. We didn’t see it until it was a bit late to share on The Open File, but will do so now since the story has come up again in a recent post by The Volokh Conspiracy (now housed at The Washington Post).

To lighten up your Friday, take a minute to read Patrice’s article, “Who Wants to Watch A Prosecutor Get Bench Slapped En Banc,” here. Here’s a highlight:

42:50 — This really sums up the whole thing.

Castetter: Judge, maybe I’m just spitting in the wind here…
Kozinski: I think so.
Fletcher: Might be.
Kozinski: And notice which way the wind is blowing.

Kozinski also pops open some salt for the wound and points out that there will be a video of this Castetter can show back at the office.

Last month, William Baude at The Volokh Conspiracy reflected on an earlier post in which he asked whether the judges on the Ninth Circuit properly handled the case, since by encouraging the government to concede error, the Court was potentially allowing the prosecutors involved to evade accountability for their wrongdoing:

“There’s no need to try to bully an attorney into conceding that he is wrong, or to mock him about how the video of the argument is going to look…

I should add that it could well be that the government actually prefers the beratement-plus-confession-of-error situation. It can be embarrassing to have published opinions accusing government attorneys of serious wrongdoing, and confessing error allows the government to avoid that. But that strikes me as further reason to prefer for these cases to be decided on the merits. The public has an interest in evaluating and assessing accusations of prosecutorial misconduct even if the government would prefer to sweep them under the rug.”

That’s what could have ended up happening in this case, since the government did concede error following oral argument. Read its motion to vacate here.

However, the Ninth Circuit responded to the motion by issuing a public order that publicized the accusations of misconduct even as it accepted and commended the government’s concession of error. Baude confesses his own error in his recent post for assuming the case would quietly go away once the government admitted fault. But, Baude continues, the government’s concession meant the Court didn’t have to adjudicate the egregiousness of the error itself, validating some of his earlier criticisms:

For all that the judges of the en banc panel scolded the government attorney at argument, the panel opinion never actually says that the conviction met the legal standard for reversal, or even that the trial conduct was improper. (Footnote 2 says that it “could be deemed improper,” but unless I have missed something, there is nothing stronger than that.) There won’t be any review of that question, and there won’t be any precedent if something similar happens again in this circuit or another one.

As for the “commend[ing]” of the U.S. attorney by the court, frankly I find it a little rich. (On Twitter, Andrew Cohen also says “If more prosecutors acted as honorably as Laura Duffy did here we’d have more justice in our criminal justice system.”) The prosecutor himself defended the conduct at trial and on appeal, and the government continued to defend the conduct before and during the en banc proceedings. I think we can plausibly infer that the only reason that the U.S. attorney finally confessed error is because of the court’s severe adverse reaction at argument (not mentioned in the order, by the way).

I fully agree that prosecutors ought to “win fairly,” as the court puts it, and avoid improper convictions. But I am not convinced the government deserves unusual praise for confessing error so late in the process, after discretionary review is granted, and the writing is on the wall.

To read these and other worthwhile points in Baude’s thoughtful post, go here. Add your take on the Ninth Circuit’s handling of this case in the comments section below.


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