Sometimes you're reversing the district court based upon an error it has committed and you sort of feel good about that. But sometimes you're reversing the district court and feel bad about it -- or at least feel bad if you make the district judge feel bad. No one likes to be reversed, after all.
So the Ninth Circuit reverses Judge Gonzalez (down here in San Diego) today, based upon an Allen charge that she gave that the Ninth Circuit found to be improper, but goes out of its way to try to make Judge Gonzalez feel okay about it. After reversing the conviction, Judge Bybee adds the following footnote to the opinion:
"In reaching this conclusion, we are aware of the conscientious effort that the district court made to avoid a mistrial after a lengthy trial, and we commend the district court for that effort. In this circumstance, as our opinion today makes clear, nothing could have prevented a mistrial."
So you get to redo a very lengthy trial, but don't feel bad about it. Not your fault.
