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July 5, 2006

Notable little reasonableness opinion from the Ninth Circuit

The Ninth Circuit today in US v. Clark, No. 05-10480 (9th Cir. July 5, 2006) (available here), discusses reasonableness review and a few other issues in a little opinion that serves as a useful recap of the basic post-Booker landscape in the Circuit.  What perhaps makes Clark most interesting is a stinging concurrence by Judge Kozinski rebuking the government attorney's work on appeal.  Here is a taste of this concurrence:

I don't believe that quoting portions of a sentence while leaving out key qualifiers is reasonable conduct for an attorney of this court.  I don't believe that making assertions in a brief regarding disputed factual points, without providing a citation to the record, amounts to reasonable attorney conduct.  I don’' believe that ignoring the context of statements in the record — the timing, circumstances and purpose — amounts to reasonable conduct.  In short, I don't believe that it is appropriate or reasonable for a lawyer to pluck a few words from the middle of a sentence and pretend that they say something very different from what they mean in context. This is true of every lawyer who appears before us, but it goes doubly for lawyers who represent the government in criminal cases.

July 5, 2006 at 01:53 PM | Permalink

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