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Judge Posner Says Expired Salad Dressing is Fine… But Federal Prosecutor Isn’t

Monday, March 16, 2009 4:04 PM - By Kashmir Hill

Posner.jpgHaving your lawyering subjected to the scrutiny of Seventh Circuit Judge Richard Posner is a scary experience. He’s known to be a harsh critic. In a 2001 New Yorker profile, Posner compared his personality to that of his cat: “cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty.”

Assistant U.S. Attorney Juliet Sorensen got a taste of the cruelty in a recent opinion from the Seventh Circuit which dissected her “pattern of improper argumentation… that does no credit to the Justice Department.” The court reversed a conviction for wire fraud and mislabeling food. (A Google search leads us to believe that Sorensen is daughter to legal heavyweight Ted Sorensen, adviser to JFK and a retired Paul Weiss senior partner.)

Juliet Sorensen prosecuted expiration-date entrepreneur Charles Farinella for buying 1.6 million bottles of Henri’s Salad Dressing that were a month away from their “best when purchased by” date. Farinella then slapped on a new date, pushing it back by a year, and resold the dressing to dollar stores for a Tas-tee profit.

“Best when purchased by” is certainly a confusing concept. Posner explores it thoroughly, but admits to not being too hung up on eating foods after those dates run out. In his opinion, he says Sorensen misled the jury by equating the “best by” date with the expiration date, and referring to anything past the “best by” date as “foul, rancid food.”

Posner objected mightily to describing the “shelf stable” Henri’s Dressing in such demeaning terms. Posner then switched metaphors on us in his decision [PDF], saying “the omissions are more interesting than the scanty contents of the government’s threadbare case.” Given all the dressing talk, it seems like the government’s case could have been described as runny, thin, or lacking in flavor… but we digress.

Posner gave Sorensen a thorough dressing-down in his opinion. See Posner’s painful smackdown, after the jump.

Posner says it’s okay to eat those salad dressings that have been sitting in your fridge for years. In fact, you can eat Henri’s Salad Dressing up to a decade after its manufacturing date. There’s more vinegar than oil in Posner’s treatment of Sorensen for leading the jury to think otherwise. From the Seventh Circuit decision [PDF]:

In like vein the prosecutor told the jury that if what the defendant “did was business as usual in the food industry, I suggest we stop going to the store right now and start growing our own food.” That was a veiled reference to the nonexistent issue of safety, which she pressed further when she said that “in spite of all this talk about the quality of the dressing, I don’t see them opening any of these bottles and taking a whiff.” The implication, which has no basis in the evidence, was that the dressing in some of the bottles was rotten. She told the jury that the defendant was indifferent to “safety” and that “the harm caused by the fraud was to public confidence in the safety of the food supply.” (The government repeats this in its brief; there is no basis in the evidence for the remark.) She also called the bottles of salad dressing “truckfulls of nasty, expired salad dressing,” which was another groundless comment about quality and safety.

She said that after the “expiration date” the salad dressing was no longer “fresh” and that the defendant had “had to convert the expired dressing into new, fresh product,” a proposition that is not completely intelligible, but sounds ominous.

Ouch. Unintelligible and misleading. But it gets worse.

In her closing argument the prosecutor 14 times substituted “expiration date” or “expires” for “best when purchased by”—14 further improprieties, which grew to 20 in the government’s main appeal brief by virtue of its using “sell-by date” as a synonym for “expiration date.” We asked the government’s lawyer at argument what an appropriate sanction for the prosecutor’s misconduct might be….

[H]ad the government presented enough evidence to sustain a conviction, we would have reversed the judgment and ordered a new trial on the basis of the prosecutor’s misconduct. That sanction is not available only because the government presented so little evidence that the
defendant is entitled to an acquittal.That does not detract from the gravity of the prosecutor’s misconduct and the need for an appropriate sanction. The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to. We are not impressed by the suggestion.

Perhaps Sorensen’s superior could do something more creative, like forcing her to chug 10 bottles of the “nasty, expired” Henri’s Dressing.

United States v. Farinella [Seventh Circuit of Appeals via How Appealing]

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Posted in: 7th Circuit, Benchslaps, Food, Richard Posner

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