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The Nightmare of Every Rookie Prosecutor:
Ouch. From Kozinski's majority opinion:
The government concedes the impropriety of many of these statements, but points out that the prosecutors were Special Assistant United States Attorneys on loan from the military. That's no excuse at all; when the United States Attorney endows lawyers with the powers of federal prosecutors, he has a responsibility to properly train and supervise them so as to avoid trampling defendants' rights.
As an aside, it's interesting that Judge Bybee wrote the more pro-defendant opinion (see his partial dissent).
MAM:
Ouch indeed! The nightmare of every lawyer...to have your screw up memorialized for eternity.
8.20.2009 4:23pm
Snaphappy:
Yeah, it stings to be rebuked by the panel. Probably not as much as it stings for the defendant who is sitting in jail because of it. But even so, ouchie.
8.20.2009 4:29pm
wfjag:
So, Professor, why didn't you quote the rest of the paragraph?

Indeed, everyone involved could have done better: The defense attorney should have objected as soon as he saw the prosecutors step out of line. And the respected and experienced district judge should not have tolerated this protracted exhibition of unprofessional conduct.

For military judge advocates, complaint can be made to The Judge Advocate General of their military service, whether for an ethical violation, lack of professionalism, incompetence or lack of preparation, and expect an investigation by experienced trial attorneys and appropriate corrective action. For the deficient civilian defense counsel, the remedy is limited to a complaint to a state bar association and possibly a malpractice suit.

But, what do you do with a federal judge who fails so completely? There's a real "Ouch" for you.
8.20.2009 4:30pm
hattio1:
wow,
Having read all the way through that (well, read and skimmed), I think Bybee has the better of it. It's not a credibility contest because 4 officers, not just two, disagree with his story? That looked suspicious when reading the majority, but then you read the dissent and discover the additional two officers disagree about portions of the story that have NOTHING to do with count 1. I think Kozinski decided to split the baby. That's terrible judging.
8.20.2009 4:31pm
one of many:
Argh, too bad people have learned to bolt computer screens to tables so I cannot through them. Books used to be so much easier.
Surely I am not the only person who finds the abuse of the phrase "no pun intended" (in the dissent) to be offensive. Judge Bybee, if you didn't intend the pun and find puns offensive enough that you have to apologize for one, then write it out of your opinion. If you don't think puns are the lowest form of humor and fell there is no need to apologize for an unintentional pun, then don't apologize for it. If you think the pun was really clever wordplay and want to draw the readers attention to it in case they missed it, then do so directly instead of using a faux apology. The phrase "pun not intended" is for informal discourse, not for formal writing where you can go back change things.
8.20.2009 4:37pm
Leopold Stotch:
I apologize for hijacking the thread, but as someone who doesn't practice criminal law I found this passage interesting:


Harrison claims the jury should not have been instructed that it could infer consciousness of guilt from his flight. Such an instruction is proper only if the evidence supports "a chain of unbroken inferences" from (1) defendant's behavior to flight; (2) flight to consciousness of guilt; (3) consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) consciousness of guilt concerning the crime charged to actual guilt of the crime charged. United
States v. Dixon, 201 F.3d 1223, 1232 (9th Cir. 2000). Courts consider "whether the defendant knew the police suspected him of a particular crime" and "whether the defendant fled immediately after the crime." ....

[5] With respect to count 1, all the necessary inferences were supported. Having struck an officer in the face, Harrison would have been aware that police suspected him of a crime.


Is that really how this is supposed to work? Assuming you're guilty, then you must've been aware that the police suspected you of the crime. Therefore, the jury can consider your flight as evidence upon which to predicate a finding of guilt. Isn't there a sort of, er, circularity to that logic?
8.20.2009 4:38pm
OrinKerr:
So, Professor, why didn't you quote the rest of the paragraph?

Um, because they aren't a rookie prosecutor's nightmare? Having been a Special Assistant U.S. Attorney, I could relate.
8.20.2009 4:39pm
MJH21 (mail):
I did the exact same thing in my first year as a prosecutor: cross-examine a defendant with the old "So four police officers who never saw you before all got together and just decided to frame you for a bag of drugs that they just happened to have on them?!?!?" line. The defense attorney didn't object, but the trial court - in a very kind fashion - said "Mr. X you can't use that line of cross examination, it's improper. Jury please disregard the question and the answer. Try another area of questioning Mr. X."

The judge talked to me after the trial and explained why it was improper. I was embarrassed and apologized profusely. Very grateful for the lesson from a great judge, because I was not aware it was improper: it's the most intuitive thing that you want to say when a defendant takes the stand and says all of the police were lying. But, yeah, you can't say that.
8.20.2009 4:51pm
ShelbyC:
Well, from a pragmatic perspective, isn't the goal the maximum amount of miscouduct that you can get away with?

So nice work.
8.20.2009 4:54pm
Dave N (mail):
Well, from a pragmatic perspective, isn't the goal the maximum amount of miscouduct that you can get away with?
I'm a prosecutor--and I most assuredly do not consider THAT to be my goal.
8.20.2009 5:08pm
Dave N (mail):
One of Many:

It wasn't a pun, but Judge Kozinski made an interesting literary allusion in his opinion. I wonder who else spotted it (and I confess I had not until a colleague noted it).
8.20.2009 5:10pm
Steve:
Judge Kozinski's opinions are always a pleasure to read, but glibness often comes at the price of detail. In this case, he mentions that one reason to call this harmless error is that the trial judge gave a curative instruction - but he never explains what the curative instruction actually said.

Considering that a number of the relevant Ninth Circuit precedents contain language like "a generic instruction to the effect that only the jury may determine credibility is insufficient to cure," Judge Kozinski would have done well to quote the curative instruction he deemed satisfactory, if only to give future courts guidance on how to handle this particular situation.
8.20.2009 5:11pm
Dave N (mail):
I'll give a hint:

Note the name of the defendant.
8.20.2009 5:12pm
Dave N (mail):
Another hint:

What is his namesake most famous for?
8.20.2009 5:17pm
LTR:
It sounds even worse if you read it out loud Kozinski-style.
8.20.2009 5:19pm
Guest101:

Well, from a pragmatic perspective, isn't the goal the maximum amount of miscouduct that you can get away with?

Reading this opinion I found myself wondering what the logical conclusion of the harmless error doctrine must be. When the evidence against a defendant is strong, why bother with a trial at all? Why not go directly to sentencing, and when the defendant appeals, the court can always say, "Any reasonable jury would have found the defendant guilty, so any violation of the defendant's rights was harmless. Affirmed." Seems much more efficient than having to actually prove a defendant's guilt to a jury in a fair trial.
8.20.2009 5:33pm
Edward Lunny (mail):
" What is his namesake most famous for? " ....Begs the question, was he acting at the time of the altercation or later when being questioned ? was it real, or was it memorex.
8.20.2009 5:37pm
Dave N (mail):
Edward Lunny,

You are warm but Kozinski is being much more specific.
8.20.2009 5:42pm
Hugh59:
I got the allusion. It deals with dairy products.
8.20.2009 5:49pm
CMH:
<blockquote>
The government concedes the impropriety of many of these statements, but points out that the prosecutors were Special Assistant United States Attorneys on loan from the military.
</blockquote>

Would these statements and questions have been proper in a court martial proceeding?
8.20.2009 6:01pm
Chris Newman (mail):
Perhaps the miscreant prosecutors should expiate their sins by serving time on a rainy plain in Spain.
8.20.2009 6:02pm
one of many:
yes David N, there is an allusion there, I'd call it mimicry more than allusion, but that's not offensive. The phrase "pun not intended" when used like this is offensive.

First, there is no reason to change voice, if anything it weakens the argument to switch from making the argument to making an aside about the nature of the argument one is making. There is a place for meta-argument even in judicial opinions, but what purpose does it serve to go from talking about the worth of testimony to talking about how the judge chose his words to talk about the reliability?

Second, while Judge Bybee is a powerful man, he is still a man. The use of the odious phrase makes it even worse, Judge Bybee is telling us that while the wordplay was originally accidental he noticed it and yet still chose to inflict it upon the reader rather than take the effort to remove it. The phrase has a use in speech where one cannot unsay a phrase, or even internet postings where one may not notice the wordplay before posting a comment, but it has no place in formal writing. While his moving fingers may have writ the pun, I am certain he is pious enough has enough wit to figure out how to remove the 3 words of his pun from the opinion before he sent it out - certainly no more difficult than writing "pun not intended". (another literary allusion for you)

Third, the pun just isn't far enough to either extreme to be worthy of an apology or a pointer to those who may have missed it. It is certainly not brilliant wordplay on the use of the legal term prima facia with cosmetic surgery which would warrant a pointer, it's talking about someone's face and using the term "on it's face", hardly subtle. It is also not an offensive stretch of language like "orange you glad I didn't say banana?" for which one has to apologize to the reader for using. It doesn't even fall into the reason Victorians considered the pun the lowest form of humour which would justify an apology for an unintentional pun, it has no sexual innuendo. A mediocre pun which is either (depending on your taste) mildly amusing or barely groan-worthy without that odious phrase.
8.20.2009 6:11pm
Dave N (mail):
one of many,

I tend to agree with your point. Bybee could have not, and, indeed, should have not, used the phrase "pun not intended."

I just used your comment as a springboard for mentioning the Kozinski "mimicry," which I thought somewhat clever when my colleague noted it.
8.20.2009 6:37pm
ShelbyC:
DaveN, this is other than the obvious Dickins allusion, right? Spill it.
8.20.2009 6:38pm
Dave N (mail):
OK, for those who are wondering what I meant, the defendant in the case is named Rex Harrison (probably by parents who thought it would be "cute" to name him after THE Rex Harrison (why people do this is beyond me).

The actor Rex Harrison is probaboly best known for his role in My Fair Lady, where he played a character named Henry Higgins. In the musical, Harrison sang a song called "I'm an Ordinary Man" that includes this verse:
I'm a very gentle man,
Even-tempered and good-natured
Whom you never hear complain;
Who has the milk of human kindness
By the quart in every vein
Judge Kozinski wrote this paragraph:
The second Rex Harrison is the man of his own telling. This Harrison had only "a couple of beers with dinner." When confronted by the officers, he humbly apologized for trespassing. This Harrison was calm and non-confrontational; he had the milk of human kindness by the quart in every vein. He certainly never hit anyone.
Accidental? I think not. Well played, Judge. Well played.
8.20.2009 6:56pm
Dave N (mail):
Kudos to LTR, Hugh59, and Chris Newman for not only spotting what I saw, but providing clues of their own.
8.20.2009 7:26pm
Mike& (mail):
Orin: What's your opinion on vouching?

As much as I rail against prosecutorial misconduct, vouching has never impressed me as especially bad. It was a counter-intuitive rule to me. I had to learn to spot the vouching issue, as it never stuck out to me.

Maybe I'm missing something, and it really is that bad?
8.20.2009 7:30pm
SamW:
Ouch is right, having been a rookie prosecutor, I can relate but this is funny and horrible at the same time:


Improper questioning was an organizational theme for the prosecutor's entire cross-examination.
8.20.2009 8:12pm
ShelbyC:
:-) I was wondering what the rain in spain comment was about.
8.20.2009 8:12pm
David Schwartz (mail):
Mike&: What legitimate purpose do you think vouching serves?
8.20.2009 9:00pm
OrinKerr:
Mike asks:
Orin: What's your opinion on vouching?

As much as I rail against prosecutorial misconduct, vouching has never impressed me as especially bad. It was a counter-intuitive rule to me. I had to learn to spot the vouching issue, as it never stuck out to me.

Maybe I'm missing something, and it really is that bad?
I pretty much agree. One of the reasons I think it's such an "ouch" is that it's not something that a person would immediately recognize as misconduct, and yet the courts are clear that it's a big no-no. I think it's one of those things that is bad but a person could very innocently do, if that makes sense.
8.20.2009 9:24pm
Cold Warrior:
Thank goodness Judge Bybee never enlisted a detailee to the OLC to write his torture memos. Figurative Trampling = bad. Literal Trampling = o.k.

[Just can't believe it took 30 comments for someone to mention the torture memos. I mean, really, what's blog post commenting coming to when the skeleton in someone's closet isn't mentioned in the first dozen posts?]
8.20.2009 9:52pm
2cents (mail):
The excuse that these were SAUSAs is pretty lame, imho. This conduct would not fly in a court-martial, either.

FWIW, I think Judge Bybee had the better analysis.

As for the vouching, I disagree that it is not that bad. It seems that the testimony or evidence needs to stand on its own. If it is lousy evidence, the vouching would tend to take on more importance than the underlying evidence. If it is strong evidence, it doesn't need any "extra" help. I guess I would try to fit my issue with this in the "box" of the vouching being irrelevant. Someone's office or position does not make their assertion of a fact in question more or less likely to be true. (Though, compare the right of military accused's to present "good soldier" evidence). Bottom line, it is not permitted (or, "what Orin said.").
8.20.2009 9:58pm
Gov98 (mail):
Vouching eh...Vouching does not do much good in my mind. If the evidence is there and the prosecutor vouches well no big it was there. If the evidence is not there and the prosecutor vouches more (in my experience) it diminishes the credibility of the prosecutor.

So there is no benefit in vouching, except to the defendant who may get his conviction reversed because of it, so you don't do it.

Not being able to cross "So 4 police officers are lying" is a really dumb judicial rule it's there, it's dumb and lame, and serves no judicial purpose, if there's a good reason for it the defendant can explain it, if not it undermines his story. This is one of those rules that "makes things more fair." But in the end because the jury expects that kind of cross really just ties the prosecutor's hands. (But that's the life, so if you don't like it do all the misconduct you want...don't be a prosecutor ;-) No acquittal ever got reversed for defense misconduct.)
8.20.2009 11:27pm
Cato The Elder (mail) (www):
A pensive man am I,
Of philosophical joys,
Who likes to meditate,
Contemplate,
Far from humanity's, mad inhuman noise...

:-)
8.21.2009 1:04am
emsl (mail):
Former AUSA here. The conduct was truly outrageous and shameful to the DOJ. The appellate attorneys should have confessed error and agreed to retrial rather than defend this turkey. With all due respect to all those whose sensibilities will be affected, there is a reason the saying exists that "Special AUSAa are to AUSAs as the Special Olympics are to the Olympics."
8.21.2009 2:54am
Public_Defender (mail):
No, not the real nightmare. The real nightmare is when the court names the trial lawyers in the opinion.

As to Bybee's sudden sympathy for a criminal defendant, maybe he sees that he might be in that position one day.
8.21.2009 3:25am
Duffy Pratt (mail):
Isn't the nightmare that prosecutors engage in nightmarish conduct, and the worst that comes of it is an appellate judge is a bit snippy on the way to affirming the result of their actions?
8.21.2009 10:51am
ShelbyC:

As much as I rail against prosecutorial misconduct, vouching has never impressed me as especially bad.


Isn't it bad because it implies that all the information that is available to the state, including evidence not available to the jury, indicates that the defendant is guilty?
8.21.2009 11:31am
Nathan_M (mail):

Not being able to cross "So 4 police officers are lying" is a really dumb judicial rule it's there, it's dumb and lame, and serves no judicial purpose, if there's a good reason for it the defendant can explain it, if not it undermines his story. This is one of those rules that "makes things more fair."

I strongly disagree with this, because it implicitly places a burden on the defendant to show why the police officers are lying. In almost every case the defendant cannot prove why a police officer is lying. But the defence is not required to disprove the government's case. The fact the defence cannot show why a police officer is lying is of absolutely no probative value and is potentially highly prejudicial because it invites the jury to reverse the onus of proof.
8.21.2009 8:33pm
David Schwartz (mail):
Not being able to cross "So 4 police officers are lying" is a really dumb judicial rule it's there, it's dumb and lame, and serves no judicial purpose, if there's a good reason for it the defendant can explain it, if not it undermines his story. This is one of those rules that "makes things more fair."
It's not a dumb judicial rule. Asking the defendant something he cannot possibly know is way out of line. The defendant is testifying, and it's perfectly reasonable to ask him what he witnessed. But it makes no sense to ask him about the motivations of others, when there is no possible way he could know them.

If it's a logical consequence of his testimony that four officers must be lying, then it serves no further purpose to ask him if they are. That would be asking him to draw a conclusion. If it's not a logical consequence of his testimony, then there is no foundation to ask him why they are, since they might not be.

It serves no purpose whatsoever, except to accuse or harass.

If you can explain one conceivable legitimate purpose, I'll change my mind. What testimony are you trying to elicit with that question?

You want him to speculate why they're lying? Why would that be admissible? You want him to state that they must by lying when that's an inevitable conclusion of his testimony? Asked and answered. You want to ask him why they're lying when his testimony doesn't require them to be? What's the foundation?

All it does is force the defendant to speculate on the various reasons the police might by lying or mistaken. And he has no direct knowledge of those reasons.

What's the legitimate purpose? Give me any.
8.21.2009 10:14pm
Gov98 (mail):
The purpose is that people have a hard time calling out someone for lying when they know that the other person is telling the truth. It's darn hard, and most people with a normal sense of conscience will not be able to do it. That's it.

The guilty man can spin a yarn, but when asked to say point blank that the officer is lying, it's a VERY hard thing to do. You almost never see this in credibility case since it's an improper question, but I have seen in normal life situations where people try to spin a yarn out of there problem, but cannot say the other person is lying. It's because there's a HUGE line there and many are not willing to cross.

HOWEVER, the person confident of the situation will frequently have no time answering the question..."Yes that is what I am saying, if those 4 officers are saying X happened, X did not happen and they are lying."

I myself have on occasions been accused of things and have had no problem saying simple that is not the truth, I know what I have done, and what happened in the situation and it was not that.

The defendant is not being asked to say why the 4 officers are lying. The defendant is just not being allowed (nor defense counsel) to be obtuse of the fact, if the defendant is saying (by logical inference) that the officers are lying then the defendant should have the guts to say the officers are lying. And that's what it comes down to.

It is not Asked and Answered...on cross you are allowed to restate a preposition to see if the testimony is really consistent. That's the purpose of cross many times.

It's psychologically easy to say I perceived the situation differently (as rationalized in the head) it's a LOT harder to call out 4 people who are just doing their job when you know they are not lying it's a LOT harder, so that's what you're doing.
8.21.2009 11:02pm
David M. Nieporent (www):
I strongly disagree with this, because it implicitly places a burden on the defendant to show why the police officers are lying. In almost every case the defendant cannot prove why a police officer is lying. But the defence is not required to disprove the government's case. The fact the defence cannot show why a police officer is lying is of absolutely no probative value and is potentially highly prejudicial because it invites the jury to reverse the onus of proof.
Would it be against the rules to say, "If you didn't do it, then how did your fingerprints get on the murder weapon?" How is that different?
8.21.2009 11:15pm
David Schwartz (mail):
Gov98: How could the defendant possibly know whether or not the police are lying? What special information would he have, other than the facts to which he has already testified, that would let him draw that conclusion? How can he possibly know whether they are lying, mistaken, or perhaps did not even say what the prosecutor claims they said?

It serves no legitimate purpose. If it follows from his prior testimony that they must be lying, then it's asked and answered. No new testimony is being elicited.

If his prior testimony leaves it open that they could be mistaken or otherwise not lying, then how would he know whether they're lying, mistaken, or something else?

There is nothing legitimate that this can possibly solicit. It simply asks the witness to speculate on why the testimony conflicts, when he has no special knowledge in that area.
8.22.2009 8:42am
David Schwartz (mail):
DMN: The different is that "do you have any explanation for how your fingerprints got on the murder weapon" solicits actual testimony from the witness. The defendant might have an alternate explanation for how that happened or he may not. So it, at least arguably, is an attempt to elicit admissible testimony.
8.22.2009 8:44am
Gov98 (mail):
"It serves no legitimate purpose."

Uhh...The legitimate purpose is to assist the trier of fact in reaching a correct and true verdict...that's the purpose and I've explained how it does that, that it may be objectionable is a different point and conceded at least to the ground of established precedent.

There are numerous times when a conflict in testimony may be the result of a mistake there are other times when the testimony difference must be that someone lied, that it can be many times explained by mistake says nothing about the times when it cannot.

Finally, you have far to restricted a view of what Asked and Answered is...

Direct:

Defense Counsel: So the officer hit you having done nothing against him?

Defendant: Yes

Defense Counsel: No further questions.

Prosecutor: So the officer is lying when he said you were drunk and came at him in your car?

Defense Counsel: Objection Asked and answered

Judge Schwartz: Sustained???

(For the moment, yes it is compound and probably argumentative, and improper, BUT Asked and Answered? I think not at all.)

Cross is not designed to elicit new testimony (it's not even supposed to be able to hence outside the scope)...So apparently all cross according to you is either objectionable as asked and answered or outside the scope no?
Because if he already testified to it then its improper?

That is not any law I am familiar with.
8.22.2009 11:39am
Gov98 (mail):
You know, reading the case again, this is one of those cases that just bugs me...Not just because of the misconduct, but because if anything this was really an IAC claim that the judges then decided to throw down the prosecutor for.

In the opinion it seems clear that defense counsel did not object to much of what occurred, if that's the case it seems to me that this is much more IAC than anything else. One can never know if defense counsel felt that tactically it was better to let the prosecutor run on or not, of course again if you don't like it, I suppose don't be a prosecutor, but it just grates.
8.22.2009 12:47pm

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