Sometimes oral argument is just an ass-kicking, and there's not much counsel can do but take their lumps.
That was the case Thursday for Robert Miskell, an assistant U.S. attorney from Tucson who was defending Christopher Garcia's 40-year sentence for aggravated child sexual abuse before the Ninth Circuit.
Miskell started off on bad footing. During briefing the government had asserted, and then retracted, that the sentencing judge had watched video recordings of two other victims' statements before tacking on a 10-year enhancement. Miskell had barely uttered "May it please the court" before Judge Andrew Kleinfeld brought up the subject.
"Was there a videotape?" he asked.
"There's a videotape," Miskell started to explain, "but there's no ..."
"Did the government give the videotape to the court?" Kleinfeld asked.
No, Miskell confirmed.
"So the brief said it, but it wasn’t so, and you corrected that?" Kleinfeld said.
"That is correct," said Miskell, who might as well have been sitting in a witness chair.
But the fun was only beginning for him, as Kleinfeld revealed that the Ninth Circuit had discovered another factual error in the briefs.
Although the two additional victims also were children, the government had argued that their statements were reliable because they had given them to an experienced forensic examiner. "I looked at the interviews," Kleinfeld said. "On one of them I couldn’t see what the name of the interviewer was, the pages that were furnished to us don’t have it." And on the other, the examiner gave a different name "from the experienced, capable interviewer that the government said conducted the interview."
"Was that also an error by the government?” Kleinfeld asked.
"I have to admit judge, I did not catch the difference between the two interviewers," said Miskell, who came into the case mid-appeal.
Who conducted the interview where the name wasn't furnished? Kleinfeld pressed. "Did the person do it who the government’s brief said did it, or was it somebody else?"
"My understanding was the ones that were identified …" Miskell began.
“'My understanding' sort of doesn’t do it for me after all these other errors to the government’s advantage," Kleinfeld said, maintaining an even, matter-of-fact tone throughout the dressing-down. "I want to know if I can believe the understanding."
Kleinfeld said that while he believed the minors were trying to tell the truth, he found some of the questions leading and some of the answers confused. In the absence of cross-examination, he wasn't sure they carried the "sufficient indicia of reliability" for sentencing enhancements.
"Actually, the standard is 'minimal indicia of reliability,' " Miskell interjected, citing U.S. v. Petty.
He might have been right, but Kleinfeld wasn't in any mood to hear it, quoting the "sufficient" language directly from the sentencing guidelines manual.
"And this was being used for how much of an enhancement?" asked Judge Marsha Berzon. "Arguably a 10-year impact. So you would think that you’d need something pretty reliable, not just a little reliable."
"OK, yes, I agree with that," Miskell conceded.
Miskell made one last try, arguing that the minors had no motivation to lie and had described their abuse in sufficient detail to support the judge's factual findings.
"Was the judge told the truth about who conducted the interviews?" Kleinfeld asked. "I know we were told something that was false about at least the boy’s interview."
"And I apologize for that, your honor," said Miskell.
"Good," Kleinfeld said.