Ever want to see the appellate equivalent of torture porn? Here’s a video that’s making the rounds of an oral argument from the Ninth Circuit in a case called Baca v. Adams:

Skip ahead to 16:03, and be sure to watch all the way to the end. Otherwise, you’ll miss the part where Judge Kozinski stops flogging the poor lawyer and actually starts flaying him alive. It’s as brutal a thing as I’ve ever seen in a courtroom.

And yet, we might be able to turn it into a teachable moment. My buddy, Kyle McNew, shared this video on Facebook along with a few thoughts. One of them is a question that he’s been asking himself: “Self, is there anything the dude from the AG’s office could have done to avoid that, short of just not standing up to argue at all?”

Let’s take a careful look at the video and try to answer Kyle’s question. Out of empathy for said dude from the AG’s office, we won’t use his name. We’ll just call him “Counsel.”

Background

This is an appeal from the denial of a habeas petition, so it’s pretty far outside my wheelhouse. To simplify things for our exercise (and because I don’t understand the nuances of habeas law), let’s say that the government sent a bad man to jail for first-degree murder on the basis of false testimony–specifically, false testimony from a jailhouse informant and a prosecutor to the effect that the informant did not receive any benefit for his testimony in the case. Let’s say that both the California Court of Appeal and the district court concluded that this testimony was false. Let’s also say that the State had other strong evidence. For purposes of our exercise, we will assume that Counsel had useful arguments to make on appeal about prejudice, harmless error, and deference to state courts.

(This summary is what I gleaned from the argument; it might not be totally accurate. I’m interested in the appellate lessons from the argument, not the underlying facts of the case. Scott Greenfield has a good discussion of the substance of the case from a criminal law perspective here: http://blog.simplejustice.us/2015/01/24/not-in-my-court-they-dont/)

With those assumptions, we can pick out a few spots where Counsel could have saved himself some pain:

Before Argument

We have to acknowledge at the outset that the real problem here is one of strategy, not execution. The State made a tremendously bad call by fighting to hold onto a conviction that it obtained on the basis of false testimony. It doesn’t matter if they had clever technical or jurisdictional arguments for preserving the result. The whole endeavor was morally abhorrent. In my experience, if you try to use a clever, technical argument to make a court do something obviously unjust, the court will punish you. Maybe the AG’s missed the forest for the trees, or maybe it fell victim to some sort of bureaucratic inertia that drove it to keep defending its result. But whatever happened, any error that we pick out below flows from this fundamental mistake of judgment.

 16:03

Counsel starts his argument by saying that “[a] number of things happened that should have not happened, and we’re not here to defend them.” That invites Judge Fletcher to probe the extent of that concession, and he immediately asks if Counsel concedes that the prosecutor lied below. Counsel tries to defend the prosecutor; while he’s forced to acknowledge that the prosecutor testified untruthfully, Counsel suggests that he may have been confused and that’s “not clear” that he lied.

No! Don’t do it! Don’t poke the bear. Don’t challenge Judge Fletcher right out of the box. And don’t burn your credibility on a point that you can’t–and don’t have to–win. Of course the prosecutor lied (at least, on this record and for purposes of this appeal). Admit it, but explain that it’s irrelevant because the question in the case is harmless error/prejudice. Counsel gets to that point eventually, at around 17:12, but he manages to annoy panel on the way.

17:53

Judge Fletcher asks if the court should go ahead on the assumption that the prosecutor lied, as the California Court of Appeal found. Counsel unhelpfully clarifies that the Court of Appeal used the word “fantasy.”

Here we go again. For purposes of this appeal, the prosecutor lied. Give up the point and get out of there. By this point, Counsel has burned two minutes and an awful lot of argument time to little effect.

18:09

Judge Kozinski asks if the prosecutor has been prosecuted for perjury. Counsel says that he hasn’t. Why not? Counsel doesn’t know, and Judge Kozinski explains that he has to “doubt the sincerity of the State” when it says that this was all a big mistake. Judge Kozinski suggests that the first thing to do in a situation like this normally would be to prosecute the witness for perjury.

Counsel challenges Judge Kozinski’s premise that perjury occurred. Judge Wardlaw promptly smacks him with the record, reminding him that the state Court of Appeal determined that it had. Counsel agrees. He tries to push back, but it’s too late–Judge Kozinski asks about the lawyer who put on all the false evidence. Turns out he wasn’t disciplined. Judge Kozinski asks why not, and what message that sends young prosecutors. Counsel tells Judge Kozinski that, “when this matter wraps up,” he intends to speak with the new district attorney in Riverside and alert him to the severe criticism that his office has received from the magistrate judge. Judge Kozinski asks why he can’t do that right now. Counsel admits that nothing prevents him from bringing it to the DA’s attention immediately.

Again, Counsel is wasting credibility and time on the perjury issue. His expressed intent to speak with the Riverside DA is not very compelling, and it unnecessarily–and unhelpfully–gives him a personal role in the train wreck. About which more later. Neither of these points were worth making, and both drew the panel’s ire.

23:37

After a relatively smooth stretch, Judge Fletcher methodically walks Counsel into an ambush. He gets Counsel to expressly concede that the California Court of Appeal stated a standard for prejudice and applied that standard to the Petitioner’s Napue claim. Judge Fletcher then explains to him that if that’s true, then the state court got the standard wrong. Counsel immediately reverses his position, without explanation, and argues that the state court actually applied the correct standard, without discussing it or apparently even mentioning the standard.

Do you smell that? Those are the smoldering ashes of Counsel’s last ounce of credibility with this panel. Listen to the questions. Think about your answers and their implications, and answer carefully. The inquiry about standards was easy to anticipate, particularly after watching the Appellant’s argument, and it was pretty clear where Judge Fletcher was headed.

 26:15

Judge Wardlaw explains at length why the case seems so fundamentally unfair. Counsel agrees that the prosecutor’s conduct was “improper,” which doesn’t exactly assuage her concerns. Judge Kozinski chimes back in, pointing out that the government’s lack of a response suggests that this is just the way things are done in Riverside; “it’s not a reassuring picture.”

For some reason, Counsel disagrees. This does not sit well with Kozinski, who runs through a counterfactual list of things that would have shown sincerity on the State’s part. Counsel gallantly tries to defend not the prosecutors, but the courts involved, saying that it’s quite clear that they did not “condone” the conduct. Judge Wardlaw explains that it’s actually not that clear, because while the courts acknowledge that the prosecutor lied and bolstered the credibility of another lying witness, they found that it didn’t matter because there was other evidence. That, as she points out, is condoning the conduct.

When prepping for the argument, Counsel should have identified the smallest set of points he needed to establish to win. At argument, he should have gone after those points and nothing else. Tangling with the panel on irrelevancies is not productive.

29:46

And then things get personal. Judge Kozinski points out that Counsel works for the AG, who has prosecutorial authority. He asks if the AG is aware of the situation. It turns out that Counsel has not provided her a report. Judge Kozinski directs Counsel to provide this information to her in the next forty-eight hours. He then asks if an investigation has been conducted, or any other steps taken to show that California does not condone prosecutors getting on the stand and lying to the jury. Counsel says that, other than the criticism from the Court of Appeal, California’s got nothing. Kozinski notes that the Court of Appeal does not work for the AG. Kozinski asks if there is any particular reason why this has not happened.

Counsel then unnecessarily injects himself into the case, explaining that the reason he personally has not conducted an investigation is that he does not believe that the proof shows that the prosecutor who put on the false evidence knew that it was false (even the prosecutor who lied on the stand worked in the same office). This only baits Judge Kozinski to further badger Counsel.

32:01

Judge Fletcher points out that the AG’s office fought “tooth and nail” to keep the sentencing transcript–which evidently showed that the informant and prosecutor were lying–away from the Court of Appeal. Counsel agrees that this “does not look good.” Fletcher clarifies that it looks terrible. Counsel tries to explain why this was nonetheless an appropriate legal position. Judge Wardlaw asks why the Petitioner’s counsel should have had to fight tooth and nail for the transcript. Counsel responds that Petitioner’s counsel had the transcript from the beginning, which is too clever by half and unresponsive to the question. The issue, as Judge Fletcher points out, is whether the Court of Appeal could see that transcript–and that it’s hard to see the AG’s efforts as anything other than an attempt to keep inculpatory evidence away from the Court of Appeal.

Judge Kozinski observes that this “[l]looks sort of bad–and would look terrible in an opinion when we write it up and name names.” He asks Counsel if his name will be in the opinion–that is, if he was involved with the effort to keep the transcript out of the Court of Appeal. He was not. Kozinski asks who was, and gets an answer. Judge Kozinski suggests that that lawyer may be seeing his name in an opinion.

Judge Kozinski then hits the deep issue in this appeal: “Is this the kind of thing you really want to press here?” He gives Counsel a week to talk to his supervisor to see if he can work anything out with opposing counsel that will avoid the need for the Ninth Circuit to decide the case. “Get ahold of the Attorney General, get ahold of your supervisor, and see whether they really want to stick by a conviction that was obtained by lying prosecutors and that was maintained in the Court of Appeal after the Attorney General’s office fought tooth and nail to keep out a transcript that would have shown the perfidy of the prosecutors, and whether having that documented in Fed Third is really going to further the interests of justice in California. Do you understand the question?”

Surely, by that point, he did. If the AG’s office had appreciated the issue earlier, we might have avoided this display.

Finally, careful watchers will note that the argument took place on January 8, and that more than a week has passed. On January 15, the State asked for more time, and the Ninth Circuit gave the AG until January 29 to update the court on the status of discussions.