That's Me

Doing some research this week, I stumbled across a lengthy opinion from earlier this year in which a federal trial court ripped its appellate court for something I've complained about before - bending over backwards to ensure a Government victory on appeal, even in situations where the court won't extend the same benefit to the defense.

The case is US v. Ingram, out of the Northern District of Iowa, which is in the Eleventh Circuit. Written by Judge Bennett, it came after the case was remanded from the Eleventh Circuit to give the Government another chance to prove the defendant had a prior conviction that greatly increased his sentence. It was, in Judge Bennett's words, a "second bite at the apple," given based on an issue not even raised by the Government in its appeal. The opinion, which came out on May 11, 2009, is a fun read if you want to see a judicial underling take a swipe at his superiors.

But I want to highlight one particular facet of Judge Bennett's opinion. He catalogs not only the error he thinks the Eleventh Circuit made in this case, but those made in nearly a dozen others - all in the Government's favor - that were later overturned by the Supreme Court. In other words, the Eleventh looks an awful lot like the much derided Ninth Circuit, except the Eleventh sides with the "good" guys, so none of the usual court haters give a shit.

Anyway, in footnote 6, Judge Bennett laments, after noting the hundreds of defendants convicted in the wake of a major immigration raid on evidence that we now know was insufficient:

This example is just the top of the iceberg of the effect that the repeated erroneous decisions by this appellate court have had on the length of defendants' sentences. Who speaks for the defendants who are serving thousands of extra years of unjustified incarceration?

Why, I do, Judge Bennett. So do my colleagues in public defender offices and CJA panel members across the country. And you have, too, thank you very much. Hopefully someone else is listening.