Judge Posner Says Expired Salad Dressing is Fine… But Federal Prosecutor Isn’t
Having 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]
(67) Comments
Comments
FIRST !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! for the first time too!!!!!!!!!!!
SECOND!!!!! For the Second time!!!!!!!
OUCH, OUCH and OUCH!
she should've been more nervous...maybe she would've prepared more. i could've given her some pointers, i did great in my legal practice oral arguments.
-nervous T-10 1L
soon to be nervous 1L sa
NervousT10--- we don't care that ur T10. It means nothing about whether you're a capable future attorney. Come down from your high horse.
Posner better watch out. All the bitches know I still have a patent on the back hand!
Who's the Posner guy?
5 - not so subtle cornell troll.
-nervous T-10 1L
soon to be nervous 1L sa
EAT THAT ROTTEN BATCH OF GUNK YOU COLUMBIA LAW PIECES OF SHIT!!! CAN'T WAIT TILL MORE OF YOUR ALUMS IN THE DOJ (read: Eric Holder) MAKE UTTER FOOLS OF THEMSELVES AND YOUR OVERRATED LAW SCHOOL.
I have some questions:
Where did she go to law school?
How long has she been out?
MOST IMPORTANTLY: Is she cute?
http://query.nytimes.com/gst/fullpage.html?res=9C00E2D8153EF933A1575BC0A9669C8B63
August 20, 2000
WEDDINGS; Juliet Sorensen, Benjamin Jones
Juliet Suzanne Sorensen, the daughter of Gillian Martin Sorensen and Theodore C. Sorensen of New York, was married yesterday to Benjamin Felt Jones, a son of Barbara W. Jones of Falmouth, Mass., and the late Michael E. Jones. The Rev. Dr. Forrest Church, a Unitarian minister, performed the ceremony at the weekend home of the bride's parents in Pound Ridge, N.Y
The couple graduated from Princeton University, the bride cum laude and the bridegroom summa cum laude.
The bride, 27, will continue to use her name professionally. She is to become a law clerk in September for Judge George A. O'Toole Jr. of the Federal District Court in Boston. She received a law degree from Columbia University and was a Peace Corps volunteer in Tinzouline, Morocco, from 1995 to 1997, working on maternal and child health-care issues.
The bride's father is the senior counsel at the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison and the author of ''Why I Am a Democrat'' (Henry Holt, 1996). He was the special counsel and a speechwriter for President John F. Kennedy; his biography of the late president, ''Kennedy,'' was published in 1965. The bride's mother is the assistant secretary general for external relations at the United Nations.
The bridegroom, 28, is a candidate for a Ph.D. in economics at the Massachusetts Institute of Technology. He was a Rhodes scholar at Oxford University, where he received a master's degree in economics, and later was a special assistant in Washington to Lawrence Summers, then the deputy secretary of the Treasury. His mother is an architectural designer and home builder in Falmouth, as was his father.
The WHOLE POINT of the opinion is that it WASN'T "expired." Come on. Does anyone at ATL have even basic reading comprehension anymore?
Elie, I am just a regular ATL reader (#11 above). The google search was not that hard...
Oops Kash wrote the post...
Thank you 11. You are anything but "regular to me"
10
Ellie... you smell.
Nervous T10, just ignore the Cornell troll...
Holy shit! Rachel Ray lost 34 pounds? I thought she looked good before. Thanks for the info, ATL!
Jessica Simpson is Hot!
Nervous could use a little of that dressing on one of those stolen sanwiches that are in such demand at Michigan.
Make Posner eat it.
I'm confused. If, as Posner suggests, changing the "best by" date is not fraudulent or a violation of federal misbranding law, then why at trial did the defense not file a motion to dismiss or motion in limine to exclude that line of argument and that line of evidence? If defense did not do this, or the defense lost those motions, then how can Posner so viciously fault the prosecutor for making these arguments?
This is ridiculous. It's the defense's job to call her out on shenanigans and show it to the jury. Looks like they didnt do their job.
Posner's an arrogant prick.
Who thinks Posner decided to load both barrels because of the political predelictions and status of Sorenson's family?
"Why I Am A Democrat." So, it takes a whole book to explain...
24 -- Ah, I see, it's political bias. Typical.
Sigh. Link doesn't work (twice). Here's the real one for anyone interested in the decision:
http://www.ca7.uscourts.gov/tmp/LU0XQ7CI.pdf
just do a google image search. it's not complicated
21 - I don't think Posner was saying that changing the "best by" date is OK, but the prosecutor went to such lengths to equate "best by" with "expiration" that the jury only found D guilty because of the misleading prosecutor.
22 - I'm sure the defense tried, but it didn't get through to the jury; that's kinda what the appeals process is for, non?
so wait... Upenn State is #7 this year? how come it's ranked twice? further down in t2?
Err, I think you left out the part where Posner comes up with some ridiculous formula that purportedly accounts for everything that the law should care about.
And then the part where the rest of the 7th Circuit looks at him and says "STFU"
Dressing? I prefer syrup.
This is ridiculous.
Then again at least he didn't try to kill the careers of 1st year associates like Skadden did with its "deferral" option.
NO LAYOFFS TODAY! NO LAYOFFS TODAY!
2 DAYS IN A ROW - RECESSIONS OVER!
There's a few gals in my line of work well past their "use by date" bu they're far from "expired".
29 - Exactly. The defense failed, they lost, end of story. You do the best you can with what you've got and the best man/woman wins. She made the argument and whatever the defense tried to do about it didnt work. My point is, why does the judge have to step in? If the defense doesnt have the common sense to timely object, the judge shouldnt take over to do its job, ESPECIALLY not after the fact. I think 23 and 24 are dead on.
@32 Well Played.
As some of the previous commenters have noticed, Posner's opinion does not convincingly explain why there is nothing wrong with altering the "best by" date. From listening to the oral argument, the answer is apparently that it's OK because: (1) absolutely nothing requires salad dressing manufacturers to attach a "best by" date to begin with, and (2) all the evidence indicates that salad dressing actually has a shelf life of decades, and that the "best by" date is nothing more than a marketing gimmick. If you listening to the oral argument, you'll be much more convinced that the opinion was correct.
http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-1839_002.mp3
I would like to be reimbursed for the time I just wasted skimming this terrible article
I recall Posner's disability case from law school, where he ruled against a woman who had to get her drinking water from the bathroom. This guy is evil in satin. He's Carnegie and Rockefeller except he sends out pinkertons to bust heads just for the fun of it.
Ha Ha, Posner's so frickin' funny.... what a dick. He wasn't paid to argue the case, the defense was. They messed up, end of story.
Posner is an overrated d-bag.
Posner's a douche.
He's my dad
Well that makes you d-bag junior, son.
Posner is an arrogant asshole, but he's a very smart one. If you've never argued a case before him, you don't know what you're missing.
45 - Thanks Dad
44
I've hated Posner ever since reading the Peevyhouse case in 1L contracts. He was a dick then, he's a dick now.
The man has no soul.
Posner is my hero, and the rest of you are clueless. So he takes a strong stand against a wrongful conviction and overreaching prosecutors -- what's so arrogant about that?
This is news?
Agree with 46. Posner is a d-bag, but a very smart one. That's because he didn't go to a shitty law school like Columbia, Ms. Sorensen alma mater.
Nervous T10 has resorted to name-calling. The sign of a true lawyer.
The 7th Circuit is to the 2nd as Chicago-style pizza is to New York-style.
That is to say, inferior.
48 - Unless I missed Posner being on the Oklahoma Supreme Court, I don't see how the Peevyhouse decision can affect your estimation of him.
So alleged arrogance is a sin, but intentionally deceiving a jury on multiple occasions, that's just fine.
Posner may or may not have an inflated ego. If he does, he's hardly the first judge or lawyer to have one.
But the true outrage is this AUSA, regardless of where she went to law school or who her father is. This woman is an absolute disgrace to the profession. Good for Judge Posner for calling her out.
She makes Johnnie Cochran, Lance Ito and Jackie Childs look like Atticus Finch.
Glad to see Posner is one of the good guys who requires attorneys to follow the rules rather than appeal to sentiment by "inadvertent slipups".
Everybody knows Posner is a jerk, no doubt about it, but when a man's liberty is at stake and a willfully ignorant prosecutor sets about to mislead a jury, that prosecutor should be banished from the profession and from all civilized society.
As a customer of the Dollar store in Venice, I am unhappy to hear about this practice of re-labeling goods.
I mean, it if it "best" when purchased by a certain date, then something must be "worse" after that. I would like to know what that something is, please.
4- Pointers from a 1L on 'how to succeed in oral arguments'. Wow. I really hope that was a joke. If not, then I extend my sympathies to the associates who will be babysitting you and your ego during your 1L summer.
Unless I missed it, nowhere does Judge Posner state the standard of review that he is using, nor does he compellingly establish why an outright falsehood on a label is not legally sufficient (which is really the analysis he should have conducted) to sustain the convictions. As for the errors in argument, I did not notice any treatment of the precedent there, either, as that would militate against his favored outcome. As he is fond of upbraiding counsel, he has substituted assertion for argument. Shame on the 7th Circuit.
"48 - Unless I missed Posner being on the Oklahoma Supreme Court."
He was and he did all that before his 23rd birthday and before graduating from HLS.
48= failed contracts
60 - have you actually read the opinion? The point was that the label change was NOT an outright falsehood. Get it together.
62 - duh. He asserts that point, but under legal sufficiency analysis, he is supposed to interpret the evidence in a light most favorable to the government. There was evidence that it was a falsehood. Thanks for your insightful analysis.
I want to sell all my old food to posner. Don't worry, I will put some fresh labels on it all.
Is there anything lower than altering labels so you can make a buck on old food?
I want to sell all my old food to posner. Don't worry, I will put some fresh labels on it all.
Is there anything lower than altering labels so you can make a buck on old food?
I want to sell all my old food to posner. Don't worry, I will put some fresh labels on it all.
Is there anything lower than altering labels so you can make a buck on old food?
The most interesting part of the opinion, in my view, is the sanction for prosecutorial misconduct. Normally, a reversal will send home the message, but that was unavailable since the court reversed the convictions for insufficient evidence.
The court "was not impressed" with the appellate attorney's auggestion that the AUSA's supervisor will give her a "talking to."
So, the sanction is public humiliation. Courts generally omit the name of the offending prosecutor. Posner went out of his way to mention the AUSA by name. She will be in F3d forever.