Dictum, Judicial Modesty, and Judicial Efficiency:

Last week, I blogged about the Ninth Circuit's reading-material-as-evidence case. Defendant was accused of attempting to seduce a 14-year-old girl. His defense was that he expected all along that the girl was actually an adult (which was indeed the case, though he didn't expect that the adult was an FBI agent) who was pretending to be 14. He thought, he argued, that their exchange was acting out a fantasy, and he was expecting to meet and have sex with an adult woman. The prosecution introduced evidence that the defendant had read explicit stories involving sex with children, in order to show that he really was intending to seduce a 14-year-old.

The defendant raised several arguments: He argued that the evidence was irrelevant, and thus violated Rule 401. He argued that the evidence was an impermissible attempt to infer conduct from past behavior, which violated Rule 404 (and maybe the First Amendment, given that the past behavior involved reading). And he argued that the potential of at least some of the evidence to create unfair prejudice substantially exceeded its probative value, which violated Rule 403. The en banc court rejected his Rule 401 and 404 arguments, but held that the conviction had to be reversed because the trial court had refused to read all the evidence before admitting it, and thus couldn't perform the proper unfair prejudice / probative value balancing required by Rule 403.

Judge McKeown, joined by Judges Pregerson, Kozinski, Thomas, and Berzon, concurred in the judgment, and wrote:

All fifteen judges on the en banc court agree on one undisputed fact and on the single reason to remand this case: the district judge did not read all of the pornographic stories admitted into evidence to weigh their probative value against the potential for unfair prejudice. Nothing more needs to be said.

Instead of simply stopping at deciding the case, the majority goes on at length about whether to overrule Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998), which has nothing to do with the failure to review the evidence [but focuses on the Rule 404 question], and speculates about how the Federal Rules of Evidence might play out on remand. The bulk of the majority's discourse is dicta. See United States v. Henderson, 961 F.2d 880, 882 (9th Cir. 1992) (defining dicta as language that is "unnecessary to [the court's] holding"). Once the case goes back to the district court, we don't know how it will be resolved. Maybe there will be a plea. Or, if there is a retrial, we don't know what evidence the prosecutor will offer or how the district court will rule. Indeed, after this appeal, the prosecution may well reevaluate the need or admissibility of these salacious stories. Nonetheless, the majority offers a far-ranging discourse on Rules 401, 403, and 404, among other matters. The case can be resolved on a simple principle.

I see no reason to go further. Not surprisingly, the breadth of the majority's opinion prompted Judge Kleinfeld's thoughtful concurrence, which expresses concerns that I share.

Here's my question: Even if the majority's discussion of Rules 401 and 404 isn't quite dictum (and I think it's not, for complex reasons), the court could well have disposed of the case by just reversing on Rule 403 grounds without reaching Rules 401 and 404. But then there likely would have been a retrial, and the trial court would have had to face the very same Rule 401 and 404 questions. If the trial court decided those questions the same way, there'd be another appeal on those issues. The panel would have been bound by Shymanovitz, and would have reversed — calling for yet a third trial. Then there would have been another en banc call; if that failed, and the panel decision had stood, then there would be a third trial.

The result would be extra cost and delay, for the defendant, for the prosecution, for the trial court, and for the court of appeals, which would have had to conduct another 15-judge en banc hearing. What's more, consider how this would apply in other cases where there are several unrelated evidentiary issues, and not just two (here, the judge-didn't-read-it issue and the substantive Rule 401/403/404 issues).

Say the trial court makes five decisions, A, B, C, D, and E, and finding any of them to be an error would require a reversal; and say the court of appeals is firmly committed to "simply stopping at deciding" the minimum required to reverse. The defendant is convicted; the government appeals; the appellate court reverses on A. Now there's trial 2, at which the trial court makes B, C, D, and E (since it still thinks those decisions are right). The appellate court reverses on B. Now there's trial 3, at which the trial court makes C, D, and E. The appellate court reverses on C. This goes on until trial 6, at which the court finally retries the case without A, B, C, D, and E. Wouldn't it have been better for the appellate court to decide A, B, C, D, and E at once, so that the defendant, the prosecution, the witnesses, the trial court, and the court of appeals had to deal with only two trials, not six?

In fact, my recollection is that courts often do deal with other issues beyond the strict minimum needed to reverse, precisely because such issues are likely to come up again on retrial. I don't recall the cases off the top of my head, but I'm pretty sure that they are not uncommon. Is that approach, which is to say the en banc court's approach, the better one? Is Judge McKeown's approach the better one despite this efficiency concern? Is one better in some situations and the other in other ones, and, if so, where should the line be drawn?

Again, recall that this isn't just about abstractions about the judicial process. Some defendants can handle two trials but would be bankrupted by three. Some who would be bankrupted in any case could at least pay for the lawyer of their choice in the first two trials but have to rely on an overworked appointed public defender in the third trial. In this trial, the witnesses likely wouldn't be much traumatized by having to testify again and again, but in trials with a real child victim they would be traumatized. And of course any money and effort expended by courts, prosecutors, and appointed defense lawyers in extra iterations of this case is money and effort that they'll lack for other cases.

My experience is that judges' thoughts on this issue vary quite a bit. My personal thought is that the COA should ordinarily decide all of the important issues presented on appeal provided that they have been fully litigated (and perhaps that none are jurisdictional, which raises unique issues). In other words, if reversing on the basis of A alone would not allow the trial court to develop a better record with respect to B, or perhaps would not give the trial court a better chance to address the legal merits of B in light of the COA's decision on A, then I think there is indeed usually no point to holding off a decision on B as well.
5.30.2007 7:33pm
Dave N (mail):
It seems to me that the line should be based on the answer to a very simple question after deciding there is a reversible issue: Will any of the other alleged errors occur at the new trial? If the answer is "yes" then that issue should be addressed as well.

However, I must also acknowledge that I am having a difficult time thinking of specific examples where the answer would likely be "no" other than the catch-all "cumulative error."
5.30.2007 7:35pm
Dave N (mail):
Adding to my previous post. If somehow the ruling will foreclose a future trial (based on sufficiency of the evidence, statute of limitations, etc.), then other issues should not be discussed because those discussions are purely advisory in nature.
5.30.2007 7:39pm
Prof. Kerr,

I think you're right, but I think that Judge McKeown's concurrence emphasizes two things that your hypo doesn't discuss: (1) the full court only agreed on how to dispose of one of the several issues in the case, and (2) in Judge McKeown's view, it was not sufficiently clear that any of the other issues would arise on remand.

With those qualifiers, I think she's got it right. If you read the statement without those qualifiers--i.e. an appellate court should always write the narrowest decision possible, at any cost, so long as a majority agrees that the decision is correct--I think it's clearly wrong.
5.30.2007 7:48pm
I'm sure this wasn't intentional, but I chafe a bit at the reference to an "overworked public defender" as code for "low-quality legal representation." Public defenders aren't necessarily any more overworked than other attorneys, and in my experience, they generally do as good a job, or better, as a private attorney. I recently completed a lengthy trial involving seven defendants, six of whom were represented by private attorneys and one by a public defender. The public defender was the third-best out of the nine or so defense attorneys involved in the case-- an excellent bargain for her client.

On an unrelated note, my first instinct in this case would have been to grant the motion to exclude on 401 grounds; the defendant concedes that he has fantasies about underaged girls, so I don't see that the pornographic stories make the prosecutor's version of events any more likely than the defendant's.
5.30.2007 8:14pm
Justin (mail):
Guest101, I think the real danger is using your outlier anecdote to condemn a broken system to continue to fail the people who depend upon that system. And I don't think I need to cite cases describing anecdote after anecdote to go the other. I'll just leave with some links, and one story. A recent experiment by the New Orleans Innocence Project, called A Fighting Chance, occurred where they represented all capital-eligible cases from the point of arrest. During that experiment, in defending 119 cases, the conviction rate dropped from its historic 68% (including mea culpa releases before trial) to 16%.

Link 1

Link 2

Link 3

Link 4

Link 5
5.30.2007 8:46pm
Bored Lawyer:
Somewhat off-topic, but unless I missed it, the Court of Appeals mandate to the district court is, essentially this:


Rather humorous, no?
5.30.2007 9:02pm
elChato (mail):
I'd be surprised if you couldn't find multiple opinions joined or written by Judge McKeown that do what she criticizes here (decide more than the bare minimum).

If there is more than one important issue in a case, and the court is ordering a retrial, it's not helping anybody for the court of appeal to keep mum about some significant error it finds in the record, even if they could avoid discussing it.
5.30.2007 9:15pm
CLS (mail) (www):
The defendant claims he assumed he was in a role playing game with another adult. The state assumes he meant exactly what he said. Of course all those women (and men) in sex chat services really are 18, blond and horny 24 hours a day.

The defendant says he fantasizes. Assume the porn, which itself appears legal, did involve underaged individuals. But porn is inherently fantasy and in this case it is written fantasy thus no minor's rights were violated in producing it so it would appear to be protected speech. Even if the porn depicted illegal acts but the man is into fantasy then the reading of the porn can also be used to prove his own case.

It might indicate a prediliction to attacking children. It might also indicate a predicliction to fantasize about underage sex and role play the same way. But fantasy does not necessarily lead to actions. Sometimes it may but I would suspect that most rape fantasies never lead to rape. There is a paraphilia, infantalism, which covers individuals who role play being babies. They dress as adult babies and do the whole baby routine. For many it is also sexual. It is weird in my opinion but from the one person I knew who had a desire for that sort of thing none of the people who participate actually want to have sex with babies. The very idea is repulsive to them. They get turned on pretending they are babies. They read stories like this of adult babies.

The point being that fantasy is not necessarily reality. And the same individual who could read fantasies about a certain practice could just as well fantasize that another adult is a underage or a giant baby, or a nun, a nurse, of a naughty schoolboy. That doesn't mean anything other than a strong deserive for fantasy and role playing and can't indicate prediliction to committing an illegal act.
5.30.2007 10:42pm
obviously, I meant Volokh, not Kerr.
5.30.2007 11:06pm

I didn't mean to suggest that the public defender system never fails to provide competent representation to defendants-- of course it does at times, though the same could be said of privately-retained attorneys. I do think it's important to note, though, perhaps because I know some of the ones who fit this description, that public defenders are often competent, dedicated professionals who work an essentially thankless job for far less money than they could make in other areas of practice, all out of a genuine dedication to serving the needs of their indigent clients. While there are obviously some incompetent or apathetic individuals in their ranks-- as there are in most other areas of legal practice-- I think the majority of public defenders deserve a lot more respect and gratitude than they tend to receive both from the public and the legal profession.
5.30.2007 11:47pm
I'm with Guest101 on this one. Public defenders in my state are paid similarly to prosecutors, have investigators at their disposal, and perform far better than the cheapest private attorneys who are the most likely, for example, to fail to investigate a defendant's alibi. The PDs have usually been around enough, or have someone in the same office who has, that they have good knowledge of which judges will give better deals, what a case is worth for plea bargaining, and which stories will play well with juries.

I'd even go further and note that the cliche of "overworked public defender" has seeped so far into legal culture that everyone from law students to the chambers of an appellate court is convinced that a convicted defendant must have received incompetent advice from that poor overmatched public defender. In fact, however, the tactical advantages of the ineffective-assistance-of-counsel claim on appeal simply makes it more likely that every defense lawyer will be accused, usually unfairly, of incompetence.

If you are a defense lawyer who hasn't been accused of incompetence, it's simply because you haven't represented someone who's had time to file for collateral relief from death row.
5.31.2007 2:20am
Public_Defender (mail):
Thanks neilalice and Guest101. There are a few burn-outs, but at least most public defenders have supervisors and an office to watch over their work. You don't get ahead in a PD's office by throwing cases and making bad deals.

The real problem I see is with court appointed private counsel who get paid less than plumbers. They also have a fee cap system no plumber would accept (take a case to trial, lose a week's pay). Worse, some judges intentionally appoint lawyers they know won't put up much of a fight (the judges have to keep those dockets moving).

Many court-appointed lawyers routinely go above and beyond for their clients, but a defendant is generally better off getting a lawyer randomly picked from a public defender's office than randomly picked from a court-appoint counsel roster.

Admittedly, if someone had unlimited funds, I could give them the names of a number of private lawyers who would be able to put more resources into their case than I could, but most criminal defendants just don't know how to pick the good names out of the phone book. (Hint, pick one with the smallest Yellow Pages ad, or better yet, no ad at all other than a listing.)
5.31.2007 5:33am
Rodger Lodger (mail):
A poor cousin of this problem is the Appellate Division (New York) habit of writing on one or two issues and then putting in a boiler plate line "we have considered appellant's other arguments and find them without merit". Very unconvincing to me.
5.31.2007 7:28am
Rodger Lodger,

In my experience that is not an uncommon device in federal courts of appeal. I personally do not think that is inherently improper, at least at the federal level, since the parties are not actually entitled to a written decision and they often raise completely meritless or even incoherent issues.
5.31.2007 8:22am
R.L. writes:

A poor cousin of this problem is the Appellate Division (New York) habit of writing on one or two issues and then putting in a boiler plate line "we have considered appellant's other arguments and find them without merit". Very unconvincing to me.

I agree with ATRGeek. This isn't boilerplate. Often, appellants write their briefs with the strategy of throwing everything at the wall and seeing what sticks. If it's not a death penalty case, and if the appellant raises 10 arguments on appeal, of which only 2 or 3 deserve to be taken seriously, then this sort of language is appropriate.

The court needs to be careful about when it trots out that language, and needs to be honest when it says that it has considered the other arguments, but there's no reason for a court to discuss at length an appellant's argument that his trial violated the 18th Amendment of the Constitution because he spotted the other side's counsel at a bar.
5.31.2007 8:33am
Oren (mail):
Considering that the 9th circuit may substantially change between the trials it seems the system is even less efficient than the OP makes it seem.
5.31.2007 10:59am
Matt L. (mail):
I'll chime in on the defense of public defenders -- especially as this was a federal case. When I clerked the federal PDs seemed interchangeable with the AUSAs in terms of talent, creativity, resources, brief quality, etc., and if I were accused of a bread-and-butter federal PD crime (guns, drugs), I would definitely rather have an experienced federal PD than an expensive private lawyer whose focus wasn't on federal crimes.

I realize that this doesn't hold true in many state systems, but in the federal system (and particularly in Philly, where I clerked), the federal public defenders office seems like a hell of a bargain.
5.31.2007 1:00pm
Dave Justus (mail) (www):
I'm not a lawyer, but I can think of one reason to go with the method Judge McKeown states. The secondary issues may not have been adequately discussed or considered by all of the judges. If I was a judge as realized that if the original judge didn't read this stuff the case has to be appealed, I might not think too deeply about the secondary issues or try to make a strong case for them even if I believe that they also might have merit and would justify an appeal. It is already a done deal in my mind, and exploring them further at this stage is a waste of time.
5.31.2007 2:45pm
Justin (mail):
Well, NY, Colorado, and the FDP are exceptions to a rule. Once again, this is no slight on any particular federal defender, but dealing heads on with the gross incompetence of the system as a whole - for 48 states and the District of Columbia - is surely more important than hurting a few people's feelings.
5.31.2007 5:45pm
Public_Defender (mail):
Thanks Justin, now, back to the thread topic.

The real quesion is judgment. Given the case, sometimes it is more efficient to resolve everything, sometimes it is more prudent to address only the bare minimum.

Good attorneys know how to guide a court on this question. Experienced judges can usually figure it out. It just takes good judgment.
5.31.2007 7:21pm