Two different Posnerian views of federal prosecutorial behavior

The Seventh Circuit handed down a set of interesting criminal law opinions today, and two different panel opinions (both of which are authored by Judge Richard Posner) provide two quite different perspectives on the modern work of federal prosecutors and judicial responses thereto.

First, consider US v. Farinella, No. 08-1839 (7th Cir. March 12, 2009) (available here), in which the panel reverses a conviction for misbranding food for insufficient evidence.  In so doing, Judge Posner delivers these and other sharp comments about the work of federal prosecutors:

But since there was insufficient evidence, why did the jury convict? Perhaps because of a series of improper statements by prosecutor… [and] additional improprieties, not acknowledged and for the most part not even discussed by the government in its brief….

We asked the government’s lawyer at argument what an appropriate sanction for the prosecutor’s misconduct might be … [given] the gravity of the prosecutor’s misconduct and the need for an appropriate sanction.  The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to.  We are not impressed by the suggestion.

Since we are directing an acquittal on all counts, the sentencing issues are academic and we do not address them, beyond expressing our surprise that the government would complain about the leniency of the sentence for a crime it had failed to prove.

Now consider US v. Richardson, No. 08-1243 (7th Cir. March 12, 2009) (available here), in which the panel refuses to upset the prosecution’s refusal to move for a reduced sentence based on cooperation unless he drops his appeal.

He concedes that a waiver of the right to appeal — the concession the government insisted on — is valid; it is little different from a defendant’s agreeing to plead guilty, which entails a waiver of his right to a trial, and to an appeal if he loses at the trial.  The question is whether making the waiver a condition of the government’s agreeing to file a motion for a reduction of sentence can be said to be “rationally related to any legitimate Government end.”  The answer is yes….

The defendant wanted a lower sentence; the government wanted him to accept the sentence rather than challenge it on appeal.  That was a reasonable condition.

I am not really troubled by the outcome in either case, but I still found it somewhat jarring and notable that Judge Posner was so aggressive and vocal in assailing the strategic choices of federal prosecutors in Farinella but also passive and accepting of the strategic choices of federal prosecutors in Richardson.