Gallery Carre
Marcus: Dodging the Bullet–For Now (John Wirenius)
Aug 23rd, 2008 by Viviane
I wasn’t going to comment on the Second Circuit’s decision reversing Glenn Marcus’ conviction until it was published, and I had read it–which I have now. What strikes me first and foremost is how close a call it was for Marcus–two of the three judges who voted to reverse his conviction did so on the basis of precedent which they admitted was binding on them, because only the full Second Circuit sitting en banc can reverse a decision by a three-judge panel. Judge Sotomayor and Judge Wesley agreed that Marcus should receive the benefit of that precedent–but ended their opinion with a call to “reexamine” it, which, translates to reverse it.
. . .
Thanks to the rules of the Second Circuit, Marcus will, however, have a new trial on both charges (if the Government decides to retry him, as is, I think, highly likely). He is again cloaked in the presumption of innocence. It is notable, however, that but for the rules’ requirement that the entire Court, and not just a three-judge panel, is needed to overrule a prior panel decision, his conviction on the forced labor charge would have been upheld, and Marcus’s retrial would have been on only the trafficking theory. The majority of the court ordered a reversal because they believed they had no power to affirm, due to a prior incorrect decision which they alone could not alter.
Whatever opinion one has of the facts of the case–and, without reading the transcript or better still viewing the trial, I have none–it is clear that for Marcus this was a damned close-run thing. It is, I think the narrowest win Ive seen as an appellate attorney.
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