Should Appellate Judges Urge Government Attorneys To Confess Error?

A few weeks ago, Above the Law had a long post celebrating this Ninth Circuit oral argument, in which the en banc panel tears apart a government lawyer attempting to defend a dubious conviction won by an assistant U.S. Attorney in San Diego. During the prosecutor’s rebuttal closing argument, he went on a long tangent questioning whether the defendant had brought on any luggage on his trip, despite the apparent lack of any evidence one way or another on whether the defendant had brought luggage. The three-judge panel nonetheless upheld the conviction (here’s a good post from Shaun Martin questioning it), and the en banc court was clearly outraged.

Apparently the aggressive questioning was effective: Yesterday, the United States confessed error and asked the en banc court to summarily reverse the conviction and remand the case to the district court.

Given the drubbing that the government attorney received at argument, this is not entirely surprising. At argument, Chief Judge Kozinski kept pushing the government lawyer for a concession as to various aspects of the case. He later escalated to urging the government to confess error. Finally, Kozinski also repeatedly instructed the government attorney to go back to his office and play the video of the argument for his colleagues so that they could reflect on whether they were doing a bad job of training junior prosecutors. (Chief Judge Kozinski was not the only one doing these things at argument, but it would be fair to describe him as a leader.) You can watch the video to get the idea.

This treatment was apparently quite effective. But I have to say, I am not certain this behavior at oral argument is appropriate for a judge. That’s not to dispute that prosecutorial misconduct is a real problem which judges can and should harshly criticize. But I think that it would probably be better for the administration of justice if judges wrote opinions reversing erroneous convictions rather than taking out their frustration at oral argument.

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 (here’s one very well done example). 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.