A while ago, I posted about the en banc oral argument in a Ninth Circuit case called U.S. v. Maloney. At a trial in the Southern District of California, the prosecutor had made some arguably improper statements during his closing argument. On appeal a divided panel of the Ninth Circuit nonetheless affirmed the verdict, but the Ninth Circuit granted en banc review. During the oral arguments, the en banc court repeatedly scolded the government attorney, encouraged the government to just “confess error” (i.e., give up), and Chief Judge Alex Kozinski ordered the attorney to watch the recording of the argument in his office so they could reflect on their mistakes.

I questioned whether this was the best way to handle the case:

After all, the judges have the power in this situation. If a lawyer’s view is wrong, they can write an opinion saying that it is wrong. If it is really really wrong, they can write an opinion saying so in strong terms. If it is so wrong as to be sanctionable, they can sanction him, although they would have to explain why they were doing it. But there’s no need to try to bully an attorney into conceding that he is wrong, or to mock him about how the video of the argument is going to look.
Chief Judge Kozinski, in particular, has written several such opinions in the past, harshly (and colorfully) criticizing prosecutorial misconduct. … These kinds of opinions seem like a far better way to handle these cases than berating counsel at oral argument. When judges rule on the case rather than urging the parties to confess error, that means the ultimate decision is reviewable (if the parties seek review). It is published, meaning that others can read and invoke it in future cases. And of course that’s not to say that “anything goes” in the opinion, but the decision has to be explained, and its reasoning is subject to public debate.
I should add that it could well be that the government actually prefers the beratement-plus-confession-of-error situation. It can be embarrassing to have published opinions accusing government attorneys of serious wrongdoing, and confessing error allows the government to avoid that. But that strikes me as further reason to prefer for these cases to be decided on the merits. The public has an interest in evaluating and assessing accusations of prosecutorial misconduct even if the government would prefer to sweep them under the rug.

The government did indeed confess error and ask the court to vacate the conviction, and after a strange wait, the Ninth Circuit has now finally agreed.

So now it is time for me to confess error myself, at least partly. After the argument, I assumed that the court would silently accept the government’s confession of error (and “sweep [the accusations] under the rug”). That did not happen. The court issued a published order describing the conduct and the challenge; it “commend[ed]” U.S. Attorney Laura Duffy for her motion and repeated some well-known quotes about how prosecutors are supposed to do the right thing, not whatever they can get away with. It then accepted the motion. The accusations were publicized rather than hidden.

All that said, this way of disposing of the case still validates some of my original concerns. For all that the judges of the en banc panel scolded the government attorney at argument, the panel opinion never actually says that the conviction met the legal standard for reversal, or even that the trial conduct was improper. (Footnote 2 says that it “could be deemed improper,” but unless I have missed something, there is nothing stronger than that.) There won’t be any review of that question, and there won’t be any precedent if something similar happens again in this circuit or another one.

As for the “commend[ing]” of the U.S. attorney by the court, frankly I find it a little rich. (On Twitter, Andrew Cohen also says “If more prosecutors acted as honorably as Laura Duffy did here we’d have more justice in our criminal justice system.”) The prosecutor himself defended the conduct at trial and on appeal, and the government continued to defend the conduct before and during the en banc proceedings. I think we can plausibly infer that the only reason that the U.S. attorney finally confessed error is because of the court’s severe adverse reaction at argument (not mentioned in the order, by the way).

I fully agree that prosecutors ought to “win fairly,” as the court puts it, and avoid improper convictions. But I am not convinced the government deserves unusual praise for confessing error so late in the process, after discretionary review is granted, and the writing is on the wall.

By the way, Judge N.R. Smith concurred “only in the result” of the Ninth Circuit’s order, not its reasoning. He did not explain why, but maybe I am not the only one who does not think this was the best way to handle the case.