A Scandal in Bohemia: Heads We Win, Tails Unpublished
Doug Berman of Sentencing Law and Policy asks why do defense wins in sentencing appeals often go unpublished? Good question. Let’s get to the bottom of it.
It is bad enough that defendants rarely win major sentencing appeals. It is worse, and quite disturbing, that many circuit courts seem to want to have the rare defense win go unnoticed.
Meanwhile, as evidenced by two big published rulings today by the Tenth Circuit, circuit judges usually make sure that major losses by defendants get the full published treatment.
In US v. Friedman, No. 07-4118 (10th Cir. Feb. 10, 2009) (available here), a defendant has his below-guideline sentence reversed in a published opinion, and in US v. Yanez-Rodriguez, No. 08-2100 (10th Cir. Feb. 10, 2009) (available here), a defendant has his above-guideline sentence affirmed in a published opinion.
Well it can’t be the first and most obvious reason: that courts don’t want to make good precedent for defense lawyers to argue on behalf of their clients in the future. Since judges are neutral and detached magistrates, always making decisions based on the law, this is impossible.
So let’s play Sherlock Holmes, shall we? (“Once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth.”)
To be fair, not all unpublished opinions are defense wins. The others more often than not are the kind where the defendant loses, but the reasoning is so twisted and ridiculous that your average middle school student reading the opinion could point out the logical flaws. Maybe a bright fourth grader; but generally speaking it would take your average seventh grader.
Another possibility is that it’s just random chance. But anyone who spends time reading appellate decisions can tell you that the trend is way above that for random events. There’s a statistically significant sample size, and a result in play, so randomness won’t account for it.
This becomes even more apparent when you take a cursory look at the percentages of defense wins in federal sentencing cases. They are tiny compared to government wins. A random effect would show up, therefore, in an overwhelmingly huge percentage of all unpublished opinions being "wins" for the U.S. Attorney’s Office. Not so. We eliminate chance alone as a possibility.
So we reach our conclusion. Please don’t forget the “no matter how improbable” part of the inductive reasoning axiom. I fear you will instinctively reject the conclusion, but it is inescapable.
Before I spell it out, let me apologize in advance. Not for the use of profanity, although I don’t know that I’ve ever used it before on this blog. No, I apologize because I know that not all of my readers are lawyers, and I’m going to be using some highly technical legal words and phrases in my carefully thought out explanation.
So here goes: the reason that defense wins in federal sentencing guidelines cases so frequently go unpublished is that…
…the appeals courts are full of a bunch of lilly-livered chickenshits.
Wait. That actually sounds frighteningly similar to the first possibility already discarded. Hmmmmmm.
Either way, as Berman said, “quite disturbing”.
