Sunday, March 31, 2019

More Rule 29: "some degree of intellectual rigor is required"

Two unicorns in as many weeks. This one from the First Circuit (with retired Justice Souter sitting by designation on the panel). In United States v. Pothier, the First Circuit reversed the defendant's child-pornography conviction on grounds of insufficient evidence.

As the Court describes the case: "While executing a search warrant, police found in the living room a laptop computer that was not password-protected. Pothier admitted that he owned the laptop, which contained a handful of documents and innocuous chat histories in his name. It also contained child pornography . . . . That was more or less enough for the police and the United States Attorney."

But it wasn't enough for the First Circuit. The Court walks through the evidence in detail, telling us where it falls short (others had access to the computer but weren't investigated) and what the government should have done but didn't (for instance, determine whether the defendant was at home when the pornography was downloaded). The Court emphasizes that, despite the "great deference" given to jury verdicts, when reviewing evidence for sufficiency, "some degree of intellectual rigor is required; a reviewing court should not give credence to 'evidentiary interpretations and illations that are unreasonable, insupportable, or overly speculative.'"

The Court notes that the defendant's decision not to testify or present evidence at trial "likely struck the jury as suspicious"---a point that "might explain the jury's verdict," but "cannot justify the verdict in the face of an insufficiently supported government case."
Finally, the Court rejects the government's handwringing over a ruling in the defendant's favor:

"If Pothier is factually innocent, then he has suffered a great wrong and the guilty person remains free. Conversely, if Pothier is factually guilty, he goes free only because the prosecution failed to gather and present readily accessible evidence. In either event, it is uncharacteristic prosecutorial torpor---not undue judicial rigor---that prevented justice from being done."


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