Coincidentally, as California is drenched in much-needed rain, the Ninth Circuit issues an opinion that reflects the reality that you don't always need a weatherman to know which way the wind blows.
The Ninth Circuit issued an opinion back in 2012 written by Judge Randy Smith involving a case in which an AUSA made a new claim in closing argument in order to "sandbag" the defendant, who was never given the chance to respond to this argument. The Ninth Circuit, in a split opinion, held that what the AUSA did was proper.
I said that I was pretty sure that Judge Smith was wrong. Last year, the Ninth Circuit took the case en banc. When it did so, I said: "We'll see what the en banc panel looks like. But I'd predict a reversal regardless."
We then got the en banc panel. The US Attorney's Office must have been happy when it learned that Judge Smith -- the author of the panel decision -- was on the panel. There's one vote.
But that's about it. Eight of the other ten judges drawn for the panel were Democratic appointees. And the other two Republican appointees (Judges Kozinski and Clifton) are hardly a prosecutor's dream. Especially the former. Who's been known to be -- shall be say -- more than a tiny bit critical of prosecutorial ethics on occasion.
Then the en banc oral argument happens. Which you're free to watch if you've got an extra hour. An effort that may well be worthwhile if you've ever felt yourself on the hot seat at oral argument. Ouch. Blistering. I had to occasionally look away as the en banc panel interrogated the AUSA defending the government's acts below. It was that devastating.
Clearly, I wasn't the only one who could read the tea leaves. Three weeks later, the Ninth Circuit received a motion from the U.S. Attorney's Office to "Summarily Reverse the Conviction, Vacate the Sentence and Remand to the District Court." Which, today, the Ninth Circuit did.
The U.S. Attorney's motion stated that "she and several senior attorneys in her office had reviewed the video of the en banc oral argument and reconsidered the closing arguments made in the district court. They thereafter concluded that 'no reference should have been made to luggage in rebuttal argument.' The United States Attorney’s Office also stated that it planned to 'use the video of the [en banc] argument as a training tool to reinforce the principle that all Assistant U.S. Attorneys must be aware of the rules pertaining to closing argument and must make every effort to stay well within these rules." Hence the decision to basically fold and confess error.
The Ninth Circuit appreciates this confession. Judge Wardlaw writes a brief opinion that relays the facts and, on behalf of the court, "commends" the U.S. Attorney -- by name -- for confessing error, and that then reverses the conviction and remands as requested by the U.S. Attorney. Everyone on the panel joins this opinion. Except for Judge Smith. Who concurs in the result only.
I appreciate the confession of error as well. It was the right thing to do.
Though, to be ruthlessly honest, the Ninth Circuit may be giving the U.S. Attorney's Office a little more credit than credit is due.
I'd have been extraordinarily impressed with the U.S. Attorney if she had confessed error before the case got to the panel. I'd have been tolerably impressed if the U.S. Attorney had confessed error once the case had been taken en banc.
But none of that transpired. Rather, the U.S. Attorney only confessed error after it (1) saw the panel drawn for the en banc court, and (2) got totally creamed at oral argument.
At that point, it confessed error. Now, maybe that was because the U.S. Attorney suddenly realized that its position was wrong. Long after two rounds of briefing in which she strenuously argued that what her office did was right.
But let me be a bit more cynical. In a situation in which cynicism is, in my view, fairly justified.
Why did the U.S. Attorney confess error? Because she knew she was going to lose. Knew it. Perhaps more critically, not only would she lose, but she was almost certainly staring down the barrel of an opinion that would slam the propriety of her Office's conduct. Hard.
It's only at that point that the U.S. Attorney relents. Basically to save herself and her office from critique.
I'm not saying that's a bad thing. It isn't. But when the Ninth Circuit "commends" the U.S. Attorney, that commendation should be perhaps tempered by the circumstances under which this concession was made.
Because -- as the U.S. Attorney or any sentencing judge well knows -- a mea culpa means a lot more when you turn yourself in sua sponte than when you say it in an attempt to save yourself at sentencing.
P.S. - I also thought that the U.S. Attorney's claim that she was going to use the video of the en banc oral argument "as a training tool" in her office to be artfully worded. I have no doubt whatsoever that she's more than sincere in this regard. But you could use the facts of this case in one of two ways. First, you could tell your AUSAs that they better not sandbag defendants because it'd be ethically wrong. Alternatively, a U.S. Attorney could tell her subordinates that they better not sandbag defendants because, if they do, they'll be ruthlessly attacked by the Ninth Circuit. Then show them the video. The underlying message of these two different approaches are pretty darn distinct. Which one do you think the U.S. Attorney intends to deliver?