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A Confession of Error

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Most of our readers will know that a "confession of error" usually means that the government has concluded, or discovered, that its position in a previous filing  --  usually in the lower court  --  was incorrect.

I'm no longer in the government, but I must make a confession of error.

In my comments to a February 2 piece by Kent, Orin Kerr and the Davis Case, I criticized Orin for supporting the defense view that the exclusionary rule applies on the facts Davis presents.  I did so, however, in an unnecessarily nasty tone, saying, "Tony Mauro's puff piece on Orin is to be expected. I know Orin slightly, and his reputation as center-right is overblown. He is to legal conservatism what David Brooks is to conservatism in general, to wit, the 'conservative' liberals most eagerly embrace."  I went on to make a couple more shorter but equally snippy remarks.

In a later comment on the same posting, I partly redeemed myself, saying, "Orin is a plenty nice fellow and...a balanced and fertile intellect."

I ran into Orin tonight and had the chance to talk with him for a few minutes.  I was reminded of what a decent, gracious and good-hearted person he is.  The tone of my February 2 criticism was out of line.  I continue to believe his argument in the Davis case is unavailing and that the Court will disagree with it, but I regret having used an ill-tempered tone in describing him.  He deserved, and deserves, much better, a fact I will remember from now on.


 

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