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March 12, 2009

Two different Posnerian views of federal prosecutorial behavior

The Seventh Circuit handed down a set of interesting criminal law opinions today, and two different panel opinions (both of which are authored by Judge Richard Posner) provide two quite different perspectives on the modern work of federal prosecutors and judicial responses thereto.

First, consider US v. Farinella, No. 08-1839 (7th Cir. March 12, 2009) (available here), in which the panel reverses a conviction for misbranding food for insufficient evidence.  In so doing, Judge Posner delivers these and other sharp comments about the work of federal prosecutors:

But since there was insufficient evidence, why did the jury convict? Perhaps because of a series of improper statements by prosecutor... [and] additional improprieties, not acknowledged and for the most part not even discussed by the government in its brief....

We asked the government’s lawyer at argument what an appropriate sanction for the prosecutor’s misconduct might be ... [given] 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.

Since we are directing an acquittal on all counts, the sentencing issues are academic and we do not address them, beyond expressing our surprise that the government would complain about the leniency of the sentence for a crime it had failed to prove.

Now consider US v. Richardson, No. 08-1243 (7th Cir. March 12, 2009) (available here), in which the panel refuses to upset the prosecution's refusal to move for a reduced sentence based on cooperation unless he drops his appeal.

He concedes that a waiver of the right to appeal — the concession the government insisted on — is valid; it is little different from a defendant’s agreeing to plead guilty, which entails a waiver of his right to a trial, and to an appeal if he loses at the trial.  The question is whether making the waiver a condition of the government’s agreeing to file a motion for a reduction of sentence can be said to be “rationally related to any legitimate Government end.”  The answer is yes....

The defendant wanted a lower sentence; the government wanted him to accept the sentence rather than challenge it on appeal.  That was a reasonable condition.

I am not really troubled by the outcome in either case, but I still found it somewhat jarring and notable that Judge Posner was so aggressive and vocal in assailing the strategic choices of federal prosecutors in Farinella but also passive and accepting of the strategic choices of federal prosecutors in Richardson.

March 12, 2009 at 11:50 AM | Permalink


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Why'd you alter the quote in Farinella? Judge Posner specifically named the prosecutor: Juliet Sorenson. If a prosecutor commits such misconduct that a panel of appellate judges feel the need to name her, I don't see why her name should be censored.

Posted by: Guest poster | Mar 12, 2009 12:00:09 PM

and notable that Judge Posner was so aggressive and vocal in assailing the strategic choices of federal prosecutors in Farinella but also passive and accepting of the strategic choices of federal prosecutors in Richardson

The "strategic choices" in Farinella were illegal, while the "strategic choices" in Richardson were not. The "Posnerian" view is apparently that convicting a defendant based on innuendo and misrepresentation is grounds for reversal, while a form of plea bargaining authorized by the Supreme Court is not. What an idiosyncratic view of the world...

Posted by: ab | Mar 12, 2009 1:06:36 PM

In fact, AB, the form of plea bargaining approved in Richardson has never been approved by the Supreme Court AND I personally view plea deals requiring waiver appellate rights to be void as against public policy. That said, note that I am not asserting the Posner's views in these cases was "idiosyncratic" --- by definition they are not, as he is writing for a panel of judges --- rather I just found "it somewhat jarring and notable" that in two opinions released on the same day Posner added lots of (gratuitous?) anti-prosecutor dicta in one case, while failing to even to question prosecutorial choices in another.

Part of my broader point/concern is the tendency of judges to adopt a "bad apple" theory of prosecutorial misconduct and seek to regular prosecutors by just calling them out in cases where they identify a line bing crossed. I tend to take a much more structural view, seeing prosecutoral behavior (both approved and disapproved) as a product of judicial tendencies to trust all kinds of government lawyers too much in all settings. (And that's why, Guest poster, I left out the name of the prosecutor that Posner goes after in Farinella -- I am inclined to view her as the product of a troubled system in which prosecutors have far too much unregulated power, not a unique trouble-maker in her own right.)

Posted by: Doug B. | Mar 12, 2009 1:36:15 PM

Thanks for the clarification. I'll have to read the cases Judge Posner cites in Richardson to see how much he's extrapolating. And I apologize if I mischaracterized your post.

That said, I think the distinction between the two cases is plainly that Judge Posner (and the panel) views the conduct in the first case as illegal and obviously so and the conduct in the second case as legal, and the court was more comfortable calling out illegal conduct than second-guessing legal decisions.

I'm very interested in the last part of your comment, though. How should judges (particularly appellate judges) regulate prosecutorial behavior? I think appellate judges are disinclined to criticize legal prosecutorial strategic choices because (1) it's not their job, (2) they're removed from the facts that informed those choices, and (3) such criticisms would probably fall on deaf ears. I don't imagine that U.S. Attorneys in the 6th Circuit care much about Judge Merritt's views on their choice of who to prosecute, what charges to bring and when/how to plea bargain.

On the other hand, when a prosecutor does something plainly illegal, then a judge's criticism is more credible and potent. Even if the conduct is unsanctionable as it was in this case, calling out a prosecutor by name signals that the office has lost credibility in an important way with a court before which it frequently appears.

The difference between a judge saying "I don't like how you run your office" and "I don't trust you to follow the law" is an important one, I think.

Perhaps Judge Posner would have done better to call out the specific office rather than the individual prosecutor.

Then again, I'm not a prosecutor or a judge, so this is all intuitive speculation on my part.

Posted by: ab | Mar 12, 2009 2:06:29 PM

All good points, AB, and I am not sure we disagree on much. That said, I think the law ought to create duties of explanation on prosecutors in a lot more settings --- and I think appellate judges could and should develop such duties and seek to enforcement them. It has been done with respect to jury strikes through the Batson jurisprudence, but that only impacts the tiny number of cases that go to trial. Like Batson, any such duty --- concerning charging/plea decisions or other important discretionary choices subject perhaps to some kind of rigorous reasonableness standard --- will be imperfectly defined and enforced. But, in this way, prosecutors will at least know someone is watching and questioning their choices and the mere threat of outside supervision might help ensure some greater measure of procedural and substantive soundness in discretionary decision-making by prosecutors.

Posted by: Doug B. | Mar 12, 2009 2:15:46 PM

Interesting exchange. Whether or not Judge Posner is right on the merits, I do agree with Prof. Berman's implied position that regulating plea agreements is actually be (more so than some other judicial "regulation") fairly describable as part of the judicial "job". Such regulation is not a matter of controlling prosecutorial discretion, but deciding to what degree *judges* will defer to that discretion.

Generally, plea agreements require the approval of the court. I don't have the rules in front of me for the exact language, but my memory is that judges have a good deal of discretion in refusing to accept plea deals because they are not "in the interest of justice" or some such broad standard. The appellate courts supervise the trial courts and can set policy on how the lower courts make certain discretionary decisions. So, it would not seem improper to me for appellate courts to decide that (1) substantive appeals -- even in plea cases -- are an important, structural part of the criminal justice system that are necessary to maintain the reliability of that system; and (2) prosecutors have such extreme leverage in many plea situations that defendants are in no meaningful position to refuse an appellate waiver; and that therefore, whether under a contract or criminal-law-based theory, (3) the courts should refuse to recognize and approve such provisions in order to promote the orderly and reliable administration of justice and the development of the law, etc.

Of course, the court would have to flesh out that argument, address counter-arguments, etc., but assuming a proper legal/rational argument was made to support such a conclusion, the above action does not strike me as the *kind of* thing that a court should not be doing. Quite the opposite. So I don't think Posner can be gotten off the hook on the grounds that scrutinizing the type of plea agreement in Richardson is "not [his] job." Of course, he may simply be right that there is nothing wrong with courts rubber-stamping/thoughtfully approving such plea deals, but I don't think he can beg off the responsibility to make that determination.

Posted by: Observer | Mar 13, 2009 2:33:18 PM

I am a public sector attorney with criminal experience.

I still do not understand Judge Posner's opinion in Farinella. Presumably (because he never does say), he is conducting some sort of legal sufficiency analysis in which the evidence is interpreted in a light most favorable to the government. Moreover, the statutory definition of misbranding is remarkable in its breadth: "its labeling is false or misleading in any particular." Even in Posner's polemical recitation of the facts, there is some evidence of misleading labeling on the foodstuffs at issue.

I cannot help thinking that this is just a "law and economics" case dressed up like a criminal appeal, and Judge Posner seems to be taking out his caveat emptor philosophical frustration on a zealous prosecutor.

Previous posters: how is the prosecutorial conduct "illegal"? And when is it the appellate duty to publicly shame practitioners who it deems deficient? If Judge Posner had an ethical complaint, he should have filed it with the AUSA's bar.

Posted by: An Old Judge | Mar 17, 2009 4:39:45 PM

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