An en banc panel of the Ninth Circuit dropped one-liners, harsh mockery, and severe realkeeping for a little over an hour, and it’s entirely watchable because it’s so damn funny.

A federal prosecutor in California inserted a “fact” into his rebuttal that wasn’t in the record.

Overzealous prosecutor lies to get a conviction? To channel Ralph Wiggum, “that’s unpossible.” Now I can take off my old defense lawyer hat.

After the trial judge responded to these charges by shrugging his shoulders, the case wound its way to an en banc hearing of the Ninth Circuit, where a bevy of judges (including Chief Judge Alex Kozinski) rips into the government for sandbagging the defense out of a fair trial.

And it’s all on video….

The case arose in 2010, when a guy was stopped by border agents and Skippy the Wonder Dog managed to uncover 112 sealed packages weighing 321.33 pounds (or 146.06 kilograms if you’re Canadian or otherwise a Communist) of marijuana. The defendant claimed he was set up. In the government’s rebuttal closing, the prosecutor, Steve Miller, pulled some Hocus Pocus and started telling the jury about a number of reasons why the defendant’s story couldn’t be believed. That would be par for the course, except none of these “facts” were brought out during the trial itself.

When defense counsel objected, Judge Dana M. Sabraw responded “with the admonition that this is counsel’s argument, it is up to the jury to determine the facts.” Stellar judging. I wish I’d known about the “you can assert whatever you want in closing because it’s ‘up to the jury to determine facts’” rule.

The Ninth Circuit affirmed the conviction.

The en banc panel seems less sure. Seeking Justice has the video. It’s long. If you don’t have time to watch the whole thing, I’ll provide some highlights after the embed.

7:27 — Defense counsel John Lemon explains what he would have said to counter these new facts if he’d been granted a surrebuttal. Setting up the greatest “I’m an old man so I can snark whenever I want” question ever from Judge Pregerson, “What you wanted was a fair trial, is that right?” Can this exchange get better? Sure. After everyone gets done laughing, Chief Judge Kozinski makes a quip that keeps the room going and Judge Pregerson wryly says, “Now that was funny — I have to turn up my hearing aid so tell me what you just said.” After making Kozinski repeat himself, Pregerson stone-cold says, “Oh… I heard that.” Gangsta.

21:18 — Judge Pregerson outlines the argument Lemon should have made in the surreply he was denied. Lemon responds, “Well, I would have liked to have argued that.” The assembled body cackles like they’re watching Louis C.K. on stage and Pregerson says, “I’m missing all your good lines.” Why doesn’t this guy have a reality show?

22:58 — Screw it, we’re going to forget the argument and just have Pregerson and Kozinski tell war stories about the depth of their bromance. Forget a reality show, why don’t Pregerson and Kozinski have a buddy comedy? They can solve crime by arguing the whole time over whether each clue is admissible.

At 90, he really might be getting too old for this s**t.

25:00 — AUSA Bruce Castetter is given the unenviable task of representing the government in the appeal. Pregerson goes nostalgic and hilarious comparing Castetter to President Taft. I can’t make this stuff up.

26:20 — Castetter is asked, “Where’s the trial lawyer?” Castetter jokes that he’s arguing the case instead because “I just lost a bet.” Amazing.

26:50 — Castetter explains that Miller “did not ask the jury to find there was luggage, he did not ask the jury to find there wasn’t luggage. His point wasn’t based on whether there was or wasn’t luggage.” Response from Judge Wardlaw: “Absolutely was!”

29:56 — Castetter is asked if the elaborate ball of BS he’s been forced to spin because he thought Notre Dame had a shot against Alabama last year is “fair.” He says yes. Kozinski decides to get in on the fun and says, “Did you say, ‘Yes, that’s fair’? I’d like to quote it when I write an opinion.” This is where Castetter should just strip, yell “Baba Booey” and run out, and everyone would consider his debt paid in full.

42:16 — Judge Fletcher asks, “Is that the test Hein tells us to apply if Hein is applicable?” After Castetter stares at him like a deer in the headlights, former law professor Fletcher lets Castetter off the hook: “The answer is no.”

42:50 — This really sums up the whole thing.

Castetter: Judge, maybe I’m just spitting in the wind here…
Kozinski: I think so.
Fletcher: Might be.
Kozinski: And notice which way the wind is blowing.

Kozinski also pops open some salt for the wound and points out that there will be a video of this Castetter can show back at the office.

58:20 — Kozinski asks Castetter and Miller to consider confessing error. When Castetter refuses, Kozinski tells Castetter to go back to San Diego, ask his whole office to sit down and watch the video, and seriously consider whether this whole case represents the proper way to conduct a prosecutorial office.

1:01:18 — Castetter complains that he wasn’t prepared to argue a misconduct case. Judge McKeown decides she’s sick and tired of everyone else having the great one-liners and says, “Not great to be sandbagged is what you’re saying.”

Aw snap.

The original panel decision of the Ninth Circuit that the collected judges of this hearing are clearly going to professionally rip to shreds is on the next page….

UPDATE (10/8/2013, 7:30 p.m.): The government has confessed error and filed a motion to summarily reverse the conviction, vacate the sentence, and remand to the district court.


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