"The government's appellate lawyer told us that the prosecutor's superior would give her a talking-to. We are not impressed by the suggestion."

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It's not everyday you find the courts criticizing a federal prosecutor in a written opinion. Take it away Judge Richard Posner:

Because the government presented insufficient evidence that the defendant engaged in misbranding, he is entitled to be acquitted. But since there was insufficient evidence, why did the jury convict? Perhaps because of a series of improper statements by prosecutor Juliet Sorensen in her rebuttal closing argument, for which the government in its brief (which she signed) belatedly apologizes (belatedly because the government defended the remarks emphatically in the district court). The brief says that "the remarks which drew sustained objections were improper, because they cast the defendant's exercise of his constitutional right to counsel in a negative light."

Indeed they were and they did…. Since we are directing an acquittal on all counts, the sentencing issues are academic and we do not address them, beyond expressing our surprise that the government would complain about the leniency of the sentence for a crime it had failed to prove.

Read the rest of U.S. v. Farinella here (PDF).

[Thanks to Bob Ewing for the tip.]

NEXT: Video Catches Acclaimed DWI Cop in a Lie

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  1. I love Posner. He is by far the most brilliant living judge. Sadly if he were ever nominated to the Supreme Court, his confirmation hearing would look like one of those old tag team wrestling matches where one person beats the snot out of some guy until he gets tired and then slaps the hand of his partner who then proceeds to beat the guy more. That is what the interest groups and the crazies left and right would do to Posner if he ever got nominated. Posner manages to offend both sides of the isle, which means he actually thinks about issues.

  2. If you were innocent, you wouldn’t NEED a lawyer…

  3. Judge Posner uses 52% of his brain.

    You know how much most people use?

    3%

  4. Here are the two statements by the prosecutor that enraged Judge P.:

    “Ladies and gentlemen, don’t let the defendant and his high-paid lawyer buy his way out of this” and “Black and white in our system of justice, ladies and gentlemen. You have to earn justice. You can’t buy it.”

    Are they really that outrageous? The case was actually interesting: the guy bought a million bottles of salad dressing and changed the labels, which read “best when used by June 2003” to “best when used by June 2004”. The FDA said this was misbranding. Posner went on a long rap about there was no evidence to show that the salad dressing actually went bad, or that it made anyone sick.

    Yeah, but aren’t appellate courts supposed to look at the law, not the facts, which is the province of the court of “first impression”? It was a unanimous decision, so I suppose Judge P won that one.

  5. John, I too would like to see someone like Posner on the high bench, and am approximately as sanguine about its likelihood.

  6. Shoulda been you Buchanan

  7. Ladies and gentlemen, don’t let the defendant and his high-paid lawyer buy his way out of this” and “Black and white in our system of justice, ladies and gentlemen. You have to earn justice. You can’t buy it.”

    Yes that is outragous. Like page one of the “how to try a criminal case” rule book is that you can’t comment on the accused assertion of his rights. Every trial lawyer knows that and every prosecutor has wrongly skirted the line. I did when I was an inexperienced prosecutor and I was wrong and got slapped a few times by the judge. The fact that this guy hired a lawyer is not relevent to the case. The judge should have called her out for it and humiliated her in front of the jury for making such a stupid rookie mistake. Either this woman doesn’t know what she is doing or she does and is just a slime bucket or perhaps both.

  8. john is right

  9. Alan

    The FDA does NOT regulate the use of the “Best by” label. That was one of the key points in this opinion. The salad dressing was shelf stable and would have been acceptable to eat for decades.

    If the state wanted to convict him of peddling rotten food, they would have had to rely on other evidence that the “Best by” date. The state did not offer any such evidence.

  10. You have to earn justice.

    Coming from government prosecutor, I find this strangely inapropos.

  11. The FDA said this was misbranding.

    What some bureaucrat said after the fact was that it was misbranding. What was pointed out in that document (and by the bureaucrat at a different point in the testimony) was that there is no statute or FDA regulation that says this guys actions, while scuzzy, are in fact illegal. If the FDA wants to set guidelines for the difference between ‘sell by’ ‘best by’ and ‘expires on’ and when to do so, so be it. But they have not done so, and had not done so at the time of the great re-labelelling.

    Re: Are they really that outrageous?

    What’s ironic on A-V’s and John’s take on this (which I agree with John) is that the conversative blogosphere is somewhat abuzz at the proposition for John Walker Lindh’s lawyer being appointed for a justice position.

    This buzz is of course entirely negative, there’s no of this nonsense about ‘accused rights’ – the lawyer is clearly the scum of the earth for daring to defend a terrorist and has no business working for government nor living in America anymore.

  12. If all of the lawyers worked for the government then everybody would have equal representation.

  13. Somewhat unacquainted with the concept of “conflict of interest”, there, Tofu?

  14. I wonder what a million bottles of salad dressing would look like lined up Hands-Across-America style.

    Oh, wait. I do know: Awesome.

  15. Damnit, don’t follow my link, I linked to the wrong comment. Just look three posts above mine.

  16. What was pointed out in that document (and by the bureaucrat at a different point in the testimony) was that there is no statute or FDA regulation that says this guys actions, while scuzzy, are in fact illegal.

    The relabeling is no more a SCSI act than that of the first label application. The “Best by” date is BS that encourages people to throw away perfectly good food and buy a replacement that they will also throw away.

  17. are in fact illegal.

    whoops that should have been “are in fact *not* illegal”

    I’m still unsure if they were SCSI or IDE.

  18. I can’t even read my own righting, i was write the 1st time.

  19. If all of the lawyers worked for the government then everybody would have equal representation.

    True. Zero = zero.

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