It's a nice, sunny day here in San Diego, and that alone is enough to bring a smile to my face. But my smile got a little brighter when I read this introductory paragraph of an opinion by Judge Kozinski:
"It is said that every dog has its day. Unfortunately for Kevin Rangel-Guzman, the drug detection dog at the Otay Mesa Port of Entry was having a fine day on September 5, 2011, when Rangel-Guzman and a friend attempted to reenter the United States. The dog alerted to their vehicle, and Customs and Border Protection officers conducted a search. Officers found 91.4 kilograms of marijuana, hidden in a compartment behind the backseat."
Too funny. Judge Kozinski ends this paragraph by saying "Good dog!" But I liked the introduction even better without it. (Though, to be sure, the dog definitely deserved congratulations. As well as a treat.)
The opinion is also worth noting -- even beyond its humorous introduction -- because it's a great (perfect, really) lesson about what a U.S. Attorney should do when (1) s/he's got a case in front of the Ninth Circuit, (2) in which the AUSA might well have committed misconduct. Especially when that panel contains, amongst others, Judge Kozinski.
Don't fight it. Don't try to say that what the prosecutor did was perfectly fine. Go ahead and confess error. Do more, even. Promise it won't happen again. You can still try to salvage the conviction. But take your lumps and admit that what transpired should not have occurred.
Because only then will you have a chance of getting paragraphs like this one from Judge Kozinski:
"After oral argument before us, the United States Attorney 'concede[d] that [the] cross-examination of defendant was error' and advised us that she 'has instituted—in addition to existing training—a semi-monthly training update for the Criminal Division regarding pre-trial and trial phases . . . in which prosecutorial error may occur.' We commend the United States Attorney for the Southern District of California for her forthrightness and hope that her example will be followed by prosecutors across the circuit."
What's more, look at the result. Conviction affirmed. Harmless error.
Even when you're in your 50s, a lesson that you probably learned as a child still applies:
Saying "Sorry" often goes a long way.
