On Tuesday, I discussed the culmination of a recent case in the Ninth Circuit, United States v. Maloney, in which the en banc court convinced the U.S. attorney to confess error and then issued a published order commending her doing it. I suggested that the court should have just gone ahead and decided the case, and that the government shouldn’t be commended for confessing error so late in the process.
Here is a similar assessment from Professor Shaun Martin:
I appreciate the confession of error as well. It was the right thing to do.
Though, to be ruthlessly honest, the Ninth Circuit may be giving the U.S. Attorney’s Office a little more credit than credit is due.
I’d have been extraordinarily impressed with the U.S. Attorney if she had confessed error before the case got to the panel. I’d have been tolerably impressed if the U.S. Attorney had confessed error once the case had been taken en banc.
But none of that transpired. Rather, the U.S. Attorney only confessed error after it (1) saw the panel drawn for the en banc court, and (2) got totally creamed at oral argument.
At that point, it confessed error. Now, maybe that was because the U.S. Attorney suddenly realized that its position was wrong. Long after two rounds of briefing in which she strenuously argued that what her office did was right.
But let me be a bit more cynical. In a situation in which cynicism is, in my view, fairly justified.
Why did the U.S. Attorney confess error? Because she knew she was going to lose. Knew it. Perhaps more critically, not only would she lose, but she was almost certainly staring down the barrel of an opinion that would slam the propriety of her Office’s conduct. Hard.
It’s only at that point that the U.S. Attorney relents. Basically to save herself and her office from critique.
I’m not saying that’s a bad thing. It isn’t. But when the Ninth Circuit “commends” the U.S. Attorney, that commendation should be perhaps tempered by the circumstances under which this concession was made.
Martin also has this insightful point:
I also thought that the U.S. Attorney’s claim that she was going to use the video of the en banc oral argument “as a training tool” in her office to be artfully worded. I have no doubt whatsoever that she’s more than sincere in this regard. But you could use the facts of this case in one of two ways. First, you could tell your AUSAs that they better not sandbag defendants because it’d be ethically wrong. Alternatively, a U.S. Attorney could tell her subordinates that they better not sandbag defendants because, if they do, they’ll be ruthlessly attacked by the Ninth Circuit. Then show them the video. The underlying message of these two different approaches are pretty darn distinct. Which one do you think the U.S. Attorney intends to deliver?
Meanwhile, Andrew Cohen at the Atlantic acknowledged my complaints, but he ultimately disagreed with my assessment:
The simplest way to compound a mistake in the criminal justice system is to refuse to acknowledge it. And while this mistake should not have occurred in the first place, and while it should have been rectified much earlier in the appellate process, and while this turnaround clearly came under pressure from the courts, at least now we have a result in this case that is worthy of respect.
Finally, in my post Tuesday, I noted that one judge on the en banc panel, Randy Smith, concurred only in the judgment. As many people have reminded me, he wrote the original opinion that the court thought was so indefensible. So there may be some obvious reasons he took a different perspective from the rest of the court.