Relatively harsh words from the Ninth Circuit this morning.
The majority -- Judge Wardlaw, joined by Judge Silverman -- believe that there was a plea deal (and that the state breached it). Judge O'Scannlain, dissenting, believes that there was no deal. The three judges are looking at the same documents and the same transcripts, yet come to starkly different conclusions.
Judge O'Scannlain's dissent starts by saying that he "respectfully" disagrees with the majority, and repeats this same word throughout his opinion. Judge Wardlaw's opinion, by contrast, does not use that same word -- or even similar words -- when describing Judge O'Scannlain's dissent. Instead, here's a fairly typical passage from Judge Wardlaw:
"Absurdly, the dissent attaches the very document that the court and
both state and defense counsel identified as the written plea agreement as
purported proof that there was no agreement. The dissent’s analysis reads
like the caption 'This is not a pipe' below Magritte’s famous painting of
a pipe. Even more mystifying, the dissent disregards the entire plea
colloquy, transcript of proceedings, and the written plea agreement itself
to reach this convenient conclusion. The dissent stands alone in its
erroneous conclusion—not even the state disputed the existence of the
plea agreement, until oral argument, and it waived that argument by
failing to raise it in the answering brief."
Tell us what you really feel, Judge Wardlaw! Wow.
You can read for yourself the competing options, which attach the underlying documents and transcripts as exhibits, to see which side you think is right.
But in the Ninth Circuit, it's Judge Wardlaw's view that prevails. And she's not shy about telling everyone that she's darn confident that she -- not Judge O'Scannlain -- is correct.