Tuesday, September 8, 2009

Dead Cat Bounce

The Seventh Circuit has spoken and . . . we lost.

Almost exactly ten months (10 months!!) after my argument, the 7th finally got around to issuing the opinion. I figured that because they had kept it so long, that the news was not going to be favorable, but I continued to hold out hope that we might win at least a partial victory on the sentencing issue. I am a little miffed at the way the court handled one of the issues, basically side-stepping our argument and ruling on a much narrower point of law than, I continue to believe, was at issue, but nothing in the opinion was dramatically unexpected.

For all the worry some people have over criminal convictions being overturned on appeal, the reality is that that the appellate courts rarely reverse the trial court. And - and again, in contrast to the T.V.-inspired idea that most non-attorneys have of the criminal process - cases simply do not get reversed on "a technicality." If you hear that a criminal conviction got reversed, it is a good bet that either the court, the prosecuting attorney, or the police
really screwed something up. The law is malleable, which is its strength, but also its weakness. If the judges want to rule in a particular way, there is almost always a credible argument that they can make which will allow them to do it.

So while I am disappointed, I am not surprised by the court's decision. Only good point is that my colleague at The Firm who took over as the attorney of record will have to take care of procedural hassle that is required to close out the representation. That is the ticket - come in, dazzle the audience, and then make your grand exit before you have to slop out the elephant cages.

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