So, I ask myself, exactly what have the Ninth Circuit and California appellate courts been up to during my sojourn on the East Coast? No good, no doubt. Heartless bastards.
Just kidding. Actually, the more I think about it, the more I'm pretty sure that, in my absence, these courts simply continued to churn out published opinions that -- maybe 90 percent of the time -- I agree with, and even more unpublished opinions that I'd agree with as well if I could somehow find the time to read them all. Sure, maybe the opinions could occasionally reason things out a bit better, or be written more persuasively. But, honestly, I probably find myself smiling and nodding my head in agreement much, much more than I find myself screaming at the computer screen at what I'm reading. It's just that the ten percent or so of cases in which I think someone's made a horrible error -- or the five percent of cases that are really impressive -- make for more interesting reading than the remainder. So those are the ones about which I generally post.
Then there are cases like this one, which are really neither bad nor good, but merely interesting. The panel is Wallace, Rawlinson, and Bybee. Not exactly a dream panel if you're a criminal defendant, eh? No. Not at all. But the first paragraph of Judge Rawlinson's opinion quickly summarizes the panel's decision, which reverses one of the defendant's convictions on the ground that his confession was insufficiently cooberated.
What?! A panel like this reversing a criminal conviction on insufficiency grounds?! When there's been a confession?! You might well ask: What sort of apostasy has suddenly overcome these members of the panel? Since when do they reverse on such grounds? Is the conviction in this case really so egregiously wrong that even these three can unanimously agree to reverse on insufficiency grounds?
Well, maybe. Perhaps. Though the panel also upholds the defendant's other two convictions, and also does so in a manner that slyly (and, honestly, with a fairly lame amount of differentiation from precedent) undercuts Miranda. Check out, for example, how quickly and obliquely the panel talks about the "polygraph" issue -- the central argument in the case, in my view -- at the end of Section A. Plus, I don't think that I'm overly cynical to think that the panel is perhaps more willing to reverse one of the defendant's three convictions here in light of the underlying sentence issued by the district court: concurrent 15-year terms (for child molestation) on each of the three counts. Which means that even with one of the convictions gone, on remand, the panel can be pretty sure that the defendant is likely to receive the exact same -- very long -- sentence. That helps, eh?
P.S. - What took so long on this one?! The opinion deliberately reads like it's a very simple case, and one with obvious answers. And it's a fairly short one: only 13 pages. But the oral argument in this case was all the way back on February 7, 2005, and the opinion issued over nine months later, on November 10, 2005. Not what you typically see in cases like this. Don't see why the opinion took longer to gestate than an entire person.
Welcome back.
