Monday, July 27, 2020

U.S. v. Bocharnikov (9th Cir. - July 27, 2020)

You might think that this opinion would be the product of a liberal-leaning panel looking to release a criminal defendant at any cost; it's an "illegal search" case, after all, in which "hypertechnical" legal requirements are being used to throw out a confession.

But, if so, you'd be wrong.  It's Judges Bybee and VanDyke, joined by Judge Chhabria (sitting by designation from the Northern District of California).

Judge Chhabria's concurrence might explain in substantial part why a case with such a panel ends up the way it does.  He says (in part):

"I write separately to emphasize that reversal is warranted only because of how this case was presented to us. At no point has the government meaningfully analyzed Bocharnikov’s first encounter with law enforcement to help us determine what sort of violation occurred. . . . And at oral argument, despite suggestions from the bench that the attenuation analysis would be unnecessary if the police had probable cause to arrest Bocharnikov and if his first confession was not coerced, the government declined to adopt that position. In short, the government has disavowed the argument that an attenuation analysis need not be conducted, and left us with little choice but to assume for purposes of this analysis that all four violations took place.

Had the government pressed Bocharnikov on the nature of the first constitutional violation—or itself taken care to identify the violations and the legal consequences that flow from each—I strongly suspect we would have been compelled to rule the other way. . . . To rule in the government’s favor on this appeal would have required us to bend over backwards, doing the government’s work for it. Federal prosecutors should not need that kind of help from the courts, nor should they expect to receive it."

This is a reminder that, a lot of times, there's not much you can do in your briefs or at oral argument to win a difficult case.

Yet, almost always, you can lose (even an easy case) because of 'em.