Thursday, October 10, 2013
Will Baude has this post at The Volokh Conspiracy questioning the wisdom of a panel's berating a prosecutor and urging the prosecutor to confess error, suggesting that opinions reversing convictions are more useful:
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.