There's a lot of good stuff in today's Ninth Circuit opinion. It reverses a murder conviction on multiple grounds, and also expresses a particular view about the particular conduct of the U.S. Attorney's Office here. Plus there's a concurrence and a dissent, the last of which relates to the decision by the panel to reassign the case to a different judge on remand.
All that's worth reading. Including but not limited to important holdings therein about Daubert and the scope of "profile" evidence in a criminal trial.
But I only want to talk about one thing, and even with respect to that, only briefly. Because on that point, I think I can help.
The panel reverses the Mr. Well's conviction on evidentiary grounds and remands for a new trial. But Wells spent a half-dozen pages of his brief arguing that the evidence against him was insufficient to establish guilt. With respect to that issue, the panel says:
"We do not discuss Wells’ challenge to the sufficiency of
the evidence, as we explicitly do not vacate the conviction
on the basis of insufficiency of evidence and therefore do not
risk offending the Double Jeopardy Clause in remanding for a new trial. See Burks v. United States, 437 U.S. 1, 15 (1978)
(“[R]eversal for trial error, as distinguished from evidentiary
insufficiency, does not constitute a decision to the effect that
the government has failed to prove its case[;] it implies
nothing with respect to the guilt or innocence of the
defendant.”)."
But I thought that we did address such insufficiency claims on appeal, even if the panel reverses the opinion on other grounds. If only as a matter of circuit precedent.
For example, here's what the Ninth Circuit said with respect to that procedure in U.S. v. Bishop:
"Ordinarily, our resolution of Bishop's Batson claim in his favor would end our inquiry -- for reasons of judicial economy we would not address additional claims of error. In this instance, however, Bishop claims that the evidence presented in his [] trial was legally insufficient to support his convictions . . . . As we have made clear in previous cases, "the existence of other grounds for reversal does not avoid the necessity of reviewing the sufficiency of the evidence." [quoting Ninth Circuit and out-of-circuit cases] The reason for this exception to our general rule is obvious: the defendant who successfully challenges a conviction for insufficiency of the evidence is entitled not only to a reversal of his conviction but also to an order directing the district court to enter a judgment of acquittal with respect to that conviction. Under such circumstances, the double jeopardy clause bars the government from retrying the defendant on the charge underlying the conviction. [Citation] Because of this bar to retrial, we reaffirm our longstanding rule and turn now to the insufficiency claim before us."
That same rule seems to have been applied not only before Bishop (as the cases cited therein identify), but also thereafter. See, e.g., U.S. v. Wigglesworth.
So it seems to me that the panel has to -- and should -- decide the insufficiency claim as well.
Now, I'm not at all sure that Mr. Wells is right that the evidence against him is insufficient. It looks to me like a rational trier of fact might reasonably find him guilty. (Even though I readily concede that finding guilt beyond a reasonable doubt is far from axiomatic.)
But if Mr. Wells is right that the evidence against him was insufficient, he shouldn't have to undergo a second trial. And the (very limited) expediency of ignoring this issue now doesn't seem worth it.
So I'd go ahead and add a page or two to this already-lengthy opinion that articulates a holding with respect to this issue. 'Cause I think that's required.
As well as a good idea.
