In dramatic Third Circuit argument, prosecutor concedes relief in death penalty case

A helpful reader alerted me to a remarkable Third Circuit oral argument held last week. Or, rather, not held.

The appeal involved a capital habeas case where the district court granted relief based on trial counsel’s ineffective assistance for failing to object to an erroneous reasonable-doubt instruction. (The case is Fisher v. Secretary, 18-9005. Links to the district court opinion here and order here.) The Commonwealth appealed the district court’s ruling to the Third Circuit, the appeal was briefed, and the panel—Judges Restrepo, Bibas, and Porter—granted oral argument. Counsel for the Commonwealth was Montgomery County, Pa., Deputy D.A. Robert Falin.

At the outset of the argument, Judge Restrepo asked (all the quotes here are my transcription from the audio), “Sir, my understanding is you wanted to tell us something?” Prosecutor Falin responded:

I no longer believe that the lower court committed error. I spent the past few days working on the case, reading the briefs, doing research, and as the hours passed the less and less comfortable I became with our position. And it dawned on me that if I, as a career prosecutor, was not feeling good about these arguments, then perhaps it was not appropriate to come and stand before the Court and argue and advocate for them. So I am conceding that, I now believe there was no error below.

After some clarifying questions from the panel, during which Falin at one point apologized for the time the judges had spent preparing for the argument, there was a pause (I envision the judges exchanging wide-eyed glances here), and then Judge Restrepo said, to general laughter, “We’ll be back in two minutes!”

After a pause, the court reconvened. Opposing counsel, Stu Lev of the Federal Community Defender Capital Habeas Unit, thanked the prosecutor for his honesty and integrity, then Judge Restrepo thanked Falin and his office. Judge Restrepo continued:

And please, there’s absolutely no reason to apologize. I thank you for your candor. It’s really in the best tradition of a prosecutor, recognizing that a mistake has been made and moving forward.

Judge Bibas agreed, speaking with feeling:

I think it’s in Berger v. United States, [295 US 78, 88 (1935)], the Supreme Court talked about the prosecutor’s obligation not to be winning cases but to see that justice is done. It’s not easy to come in and confess error. But we don’t reject wisdom when it comes late. And we thank you very much for your candor in bringing this to us.

After Judge Porter agreed with his colleagues, it was over, less then five-and-a-half minutes start to finish.

Dramatic moments in appellate oral arguments are few and far between, by design. This was extraordinary.