Thursday, January 06, 2011

U.S. v. Carona (9th Cir. - Jan. 6, 2011)

When I read an opinion, I typically look quickly at the caption and then start in on the text.  I don't look at the district court or the lawyers or the author.  I try to evaluate the argument on the merits, and then go back and see who wrote the thing, who the district court was, etc.

So after I read this opinion, which affirmed the conviction of former Orange County Sheriff Mike Carona, I was surprised to see that the opinion was written by Judge Clifton.  Because I've seen better.

It's not that Judge Clifton necessarily gets this one wrong.  He might be right.  But the issues are close ones.  First, the prosecutor faked a subpoena, used an informant, and recorded the informant talking to Carona -- a recording that was the core basis for Carona's ultimate conviction for witness tampering -- even though the prosecutor knew Carona was represented by counsel.  Rule 2-100 of the California Rules of Professional Conduct generally prohibits communicating with a represented party, either directly or through someone else, and in the Second Circuit, I have no doubt that the conviction would be reversed.  But Judge Clifton holds not only that we don't have to reverse the conviction, but that it's not a violation of Rule 2-100 in the first place.

Again, it's not that you can't make a decent argument for that result.  But Judge Clifton's analysis is extremely one-sided, and is so categorical to not really be persuasive to anyone who's not already convinced he's right.  As to whether it's an ethical violation, for example, the vast majority of Judge Clifton's arguments are also ones against the Rule itself:  that it's okay to trick defendants, that questioning's okay as long as it's not at all coercive, that wrongdoers shouldn't escape justice, etc.  Sure, you can believe all that, and they might also be entirely true.  But then even the basic rule shouldn't exist -- and yet it does.  So at least for me, these claims don't help evaluate what types of contacts are okay and what types of aren't.  They're more results-oriented policy assessments designed to persuade the already-persuaded.  Ditto for the subsequent slams on the exclusionary rule at the "remedy" stage of the opinion (saying that even if there was a violation, the court was fine to totally ignore it).  I mean, okay.  But that's hardly the kind of careful, neutral evaluation I like to see when the Court of Appeals deals with a difficult issue on which reasonable minds could -- and here, given the Second Circuit's opinion, clearly do -- disagree.

Ditto for the second issue -- whether the statutue under which Carona was convicted covers what he did -- albeit somewhat less so.  Carona's got a tolerable argument here.  What Carona did was to tamper with a witness and tell him to lie.  But he got acquitted on that count.  Thing is, he was also charged with a separate count of persuading someone to "withhold" testimony from the grand juy, and the jury convicted him of that one.  Problem:  He clearly never told the dude not to testify.  He just told him to lie.  So Carona says he can't be convicted on this count.

Maybe he's right, maybe he's wrong.  Judge Clifton says that "withholding" testimony can include lying, since that's "withholding" the truth.  (I'm paraphrasing several pages of holding, obviously, but work with me on the shorthand.)  Which is kind of true.  But that means there's monster overlap between the two statutes, and substantially -- or arguably entirely -- makes the more targeted statute meaningless.  We generally don't like to do that, particularly with criminal statutes (rule of lenity, etc.), and especially when there's an alternative meaning that's (1) pretty straightforward -- e.g., that "withholding" means not testifying, which is what our usual sense of the term would mean -- and (2) makes both statutes make sense.

Judge Clifton responds that statutes often overlap because they're written by anal, risk-adverse lawyers.  (My words, obviously:  He uses the phrase "belt-and-suspenders" lawyers, showing just how worried attorneys are about their pants potentially falling down, and by implication, how worried they might be about a statutory gap and hence willing to suffer redundancy.)  Okay, I can buy that.  But there's still something to Carona's argument, and I wish I'd have come away from Judge Clifton's opinion thinking that this point was taken more seriously than it was.  My reaction, as with the first part, was that there was a certain result we want to reach, and we'll say whatever is plausible that will help us get there.  Damn the nuance, full speed ahead.

I don't especially like that, and while some judges routinely do it, it's not Judge Clifton's m.o.  Hence my surprise at the author.

Overall, as you can probably tell, this is not my favorite opinion of the day.  Even though it's the only one -- at least from the Ninth.

It's also, I'm sure, not Carona's.  Who now gets to hang in prison with some of the people he helped put there.  Which -- like administrative segregation -- is far from fun.