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License to Lie


When a criminal defendant testifies and lies through his teeth about the central issue of the case, does an acquittal have collateral estoppel effect through the Double Jeopardy Clause so as to immunize him against prosecution for perjury? The Ninth Circuit said yes today in a 2-1 decision in United States v. Castillo-Basa, No. 05-50768. Expect this case to go further.


Wow. Every time that one thinks that Reinhardt cannot sink further, he comes up with another. And what's almost worse is the piousness of the majority opinion and glib statements such as the government not getting a mulligan.

I'm sure that it must be tempting for the decisionmakers at USDOJ to forego an en banc appeal and proceed straight to the Supreme Court--just to show them the lunacy that passes for jurisprudence at the Ninth sometimes.

And Wardlaw should not escape criticism here either. Yet another "moderate" Clinton judge looking out for criminals.

They should resist that temptation. The Ninth is getting a little better at reining in its rogue panels.

SCOTUS doesn't need to be shown. They know.

I am sure too that a repudiation from the Ninth would probably have more practical effect for future decisions. When the en banc Ninth acts, the Ninth has a bit more skin in the game.

Of course, you never know, there may be 7 more judges on the Ninth who agree with Reinhardt and who make it to the panel.

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