It would be hard to write with a straight that there are any judges on the 2d Circuit who are particularly sympathetic to the issues facing a criminal defendant, though some are more sensitive than others.  But this doesn’t mean that a gem isn’t produced every once in a while, that serves as a reminder that a lack of sympathy isn’t the same as a lack of intellectual integrity. 

One such gem was produced in 1993, with Judge Jon O. Newman’s Madison Lecture. Beyond “Reasonable Doubt“, 68 N.Y.U. L. Rev. 979, 983 (1993).  This was a watershed moment, when no less than the then-Chief Judge of the Second Circuit openly acknowledged that “beyond a reasonable doubt” had been reduced to a meaningless mantra, without any cognizable definition.  We’re no closer to having a real definition today.

Judge Newman is now in senior status, as he’s been for more than 10 years, but he proved yesterday that he can still swing the bat.  In U.S. v. Huezo, he’s hit it out of the park again in a concurrence, joined by the other two panel judges, to address another troubling bit of federal rubric that has lost purpose and meaning.  His opinion begins on page 22 of the decision.

I write separately, however, to take issue with one argument advanced by the
Government.  Although that argument accurately states a proposition that has
often been repeated in the case law of this Court, I believe the proposition and
a related formulation of it are incorrect, entered federal jurisprudence
improvidently, have been routinely repeated without consideration of their
infirmity, and should be discarded.

Judge Newman then scrutinizes the oft-stated rule that once a conspiracy is shown, “evidence sufficient to link another defendant to it need not be overwhelming.”  The favored phraseology, however, is that “only slight evidence is needed to link another defendant with it.” 

Judge Newman’s opinion rejects the repeated use of this phrase, the rationale having long since been forgotten, to restate that proof of every element of an offense must be proven beyond a reasonable doubt.  There is no “slight evidence” exception for conspiracies, distinct from the rules for all other elements. 

His point was that the “slight evidence” language had been turned into a quantitative rule, used by the government over and over to contend that they need only proffer a small quantity of evidence to sweep additional defendants into the web of their claimed conspiracy.  Repeated often enough, this became the application of the law.  In Huezo, Judge Newman sought to put a stop to this misapplication.

The process by which the “slight evidence” standard insinuated itself into federal court decisions, which in this instance was detailed with exceptional clarity by Judge Newman, results in one of my ongoing themes, where courts “remember the rubric but forget the rationale.”  Indeed, this was just discussed with regard to the misapplication of Molineux’s common scheme or plan, and presents one of the most intractable problems in the law.

As for the Huezo decision itself, I wish I could be so upbeat.  After trial, Southern District Judge Samuel Conti  granted a motion for acquittal, the basis being that no rational juror could have concluded that the defendant was guilty by proof beyond a reasonable doubt that Huezo possessed the requisite knowledge and intent to commit the crime of money laundering and conspiracy to commit money laundering.  On appeal, Judge Sonya Sotomayor agreed with Judge Conti, and dissented on the merits.

So here how the stats work out:  Two judges, Walker and Newman, hold that a rational juror could convict on the evidence.  Two judges, Sotomayor and Conti, think not.  One judge, Conti, actually heard the evidence.  Three judges, Walker, Newman and Sotomayor, did not.  Result: reversed and conviction reinstated.

What gives me pause is not merely the lack of deference in a close call to the trial judge, but the fact that the four judges who considered the question of whether a rational juror could convict split 50-50.  Does that not imply that the two judges who would hold that no rational juror could convict on this evidence are irrational? 

Or more pointedly, given our fidelity to the burden of beyond a reasonable doubt, the fact that two judges out of four conclude that the evidence could not meet that burden should compel a conclusion that the evidence was inadequate to suffice.  If it can’t muster a unanimous appellate panel to reverse the trial judge’s decision, the evidence just couldn’t have been all that great.  Under the rule of lenity, and with due deference to the fellow who had to sit through the evidence, that ought to be enough to state that this conviction shouldn’t stand.

Yet it does.  So Huezo turns out to be a pretty darn good decision, except for Huezo.

H/T Doug Berman, who just happened to have been Judge Newman’s law clerk about the time of the Madison Lecture.