U.S. v. Preston (9th Cir. - May 12, 2014)

Last year, the day the original panel opinion came out, I said that I thought the dissent by Judge Noonan was nothing short of a masterpiece.  Even though Judge Farris (joined by Judge Bybee) had authored what was a facially plausible way of affirming the conviction, Judge Noonan's dissent really struck me as a powerful -- and ultimately persuasive -- rejoinder.  Indeed, one that persuaded me that the defendant might actually be innocent of the alleged offense.

One of the audiences of a dissent is history.  Another is one's colleagues.  Particularly on the Ninth Circuit, which (unlike some other circuits) has a robust en banc practice.

Proof of the power of Judge Noonan's dissent comes from this en banc decision.  Which agrees with the result reached by Judge Noonan.  Unanimously.  11-0. 

Judges Graber and Gould write concurring opinions that express various points, both of which articulate a slightly different analysis than the majority opinion.  But on the whole, everyone agrees that the confession here -- extracted from a mentally disabled teenager -- was involuntary, and that the conviction must thus be reversed.

Of course, obtaining a unanimous result was a lot easier once the ten judges drawn for the en banc panel included not only the panel dissenter (Judge Noonan), but also not a single Republican appointee.

Still.  Barring a bizarre draw, I think this one was coming out the way it did anyway.

Due in no small part to the power of Judge Noonan's original dissent.

P.S. - Before this opinion, I didn't recall seeing the Ninth Circuit refer to the professional status of counsel for the parties, as it does here when it refers to counsel for the defendant as "Professor Keith Swisher."  (Prof. Swisher does indeed teach at Arizona Summit Law School, and was formerly a clerk for Judge Canby.)