October 12, 2004

Keeping the lid on Pandora's Jar - by the Bard of the Short Circuit

Circuit Judge Selya's opinion for the First Circuit panel in United States v. Watson and O'Hearn, No. 04-1913 (1st Cir. October 12, 2004) turns down -rightfully so- a Government interlocutory appeal from a district court's order refusing to grant the Government a trial continuance in a three year old case. Finding that the Appellate Court lacked jurisdiction, Judge Selya refuses to construe 18 U.S.C. § 3731 in a manner "that otherwise would open Pandora's jar, [n.2] ..." Id. at 9.
[n. 2] Although the more common allusion is to "Pandora's box," that usage is apparently erroneous. Zeus, determined to avenge himself on Prometheus, presented this femme fatale to Epimetheus (Prometheus' brother), first arming her with a jar containing all the evils of the world. After Epimetheus foolishly accepted the gift, Pandora proceeded to open the jar, thereby loosing a panoply of torments upon humanity. See R. Warner, Encyclopedia of World Mythology 29-31 (1975). As with so many things in life, however, there is another view. See Edith Hamilton, Mythology 86 (1942).
United States v. Watson and O'Hearn, No. 04-1913 (1st Cir. October 12, 2004), at n. 2 (p. 9). The government through it's own "Executive Branch faux pas de deux" caused the conundrum, by allowing, in fact causing, a necessary witness (Spera) to be deported to Italy. The prosecutor did not realize this until shortly before the scheduled trial (3 years in the making), and requested a continuance to depose the witness in Itlay. The district Court did not oblige, denying the requested continuance.
As said, the denial of the continuance left insufficient time to depose Spera abroad, and so the district court sensibly denied as moot the government's ancillary request for leave to take such a deposition. In its reply brief, the government recasts its argument to focus on this point. It seems to suggest that the district court artfully avoided ruling on its request to depose Spera by couching its decision in terms of the denial of a continuance. Government's Reply Br. at 4. This is empty rhetoric: it was the government that framed the central issue around its perceived need to postpone the trial. Thus, the suggestion that the court, by some thaumaturgical [means magical] feat of legal legerdemain [means sleight of hand, tricks of a stage magician, trickery of any sort, deceit], used the denial of a continuance as a masking device to insulate its exclusion of Spera's testimony from appellate review, is totally unfounded.
Id. at 20-21. This is a good case for the defense to have at hand. And for your vocabulary as well.