U.S. v. Harrison, No. 08-10391 (8-19-09). Is this a case about "My Fair Constitution?" The defendant -- named Rex Harrison -- thought it would be lovely if he parked somewhere, far away from the cold night air. He did so at a military beach on Oahu. The beach had a curfew, and so the MPs wanted to get him out and possibly back to church on time or at least on the street where he lived. In the ensuing fracas, the defendant either struck the officers, was abusive, and tried to flee; or he was polite and courteous, and was abused himself by the officers. He was, as Kozinski alludes, someone who had "the milk of human kindness by the quart in every vein." Nonetheless, the jury convicted him of two counts of assault on a federal officer under 18 U.S.C. 111(b) (count 1) and 111(a) (count 2). The 9th (Kozinski joined by Callahan) chastise the prosecutors for vouching, implying they knew evidence of guilt, and forcing the defendant to say that government witnesses were lying. All this vouching ran afoul of black-letter law, and was error, egregious error. Indeed, the prosecutors seemed able to have vouched all night as it was a theme. Despite this vouching, the 9th concluded that the error was harmless because there was other circumstantial evidence that backed the MP's version, and that did not make the case fundamentally unfair (the rain of error falls mainly on the plain). Of course, we have grown accustomed to the harmless face. Still, the 9th stresses that the conduct was unbecoming, and that all it wanted was a trial somewhere, far away from the scold of unfairness. That, to the 9th, would be lovely. The 9th did reverse count 2 for an erroneous jury instruction on impeding (111(a)) that did not require an assault as required under U.S. v. Chapman, 528 F.3d 1215 (9th Cir. 2008). Dissenting, Bybee said that he would have reversed count 1 as well. This was a credibility determination between the defendant and the officers, and the prosecutor's actions were outrageous. Bybee's dissent is a good roadmap and discussion of prosecutorial misconduct, especially as it applies to vouching. He is especially good at showing that the questions were more than just vouching but had the effect of making the defendant seem paranoid. Bybee argues that the so-called circumstantial evidence fit into the two versions, and that other evidence was either collateral or not relevant (defendant, for example, was not charged with public intoxication).

Kudos to Peter Wolff of the FPD Office, D. Hawaii, for his efforts on appeal.