David Lat has a report on a recent talk that Chief Judge Alex Kozinski gave at Yale Law School. It sounds like it was quite an interesting event, as almost all Kozinski events are. And for those readers who remember my post last month about the oral arguments in United States v. Maloney, Lat reports:
I asked Chief Judge Kozinski about one of our favorite oral arguments here at Above the Law — the en banc argument in United States v. Maloney, in which a federal prosecutor got so badly benchslapped that the government ended up confessing error.
I asked the judge whether he had anything to say to critics of the benchslapping like Professor Will Baude, who questioned the propriety of appellate judges urging the government to confess error. Chief Judge Kozinski said:
I say: “Fair enough!” Lat goes on to speculate:
Why such a curt response? It would appear that the judge doesn’t want to suffer the fate of La Shira: because the government’s motion to summarily reverse the conviction is still pending, the case remains active and he cannot comment on it. (This makes me wonder whether the Ninth Circuit might actually chastise the government in writing in the course of granting the motion, instead of just sweeping the possible prosecutorial misconduct under the rug by granting the motion without comment, as Professor Baude assumed.)
I’d be pleased and amused if this turns out to be true, but I confess that I rather doubt it. I suspect that the court will not chastise the government in the course of granting the motion, and I suspect Kozinski’s curt response was because he thought the criticism sufficiently wrongheaded not to be worth responding to.