There'll Always Be Posner: Double-header


A great Chicagoan, Ernie Banks, was famous for saying “Let’s play two” – an expression of pure joy about the game of baseball. Another great Chicagoan, Judge Richard Posner, recently came out with a pair of opinions that brought us some joy and reminded us of what good legal reasoning and writing looks like. In both decisions, Judge Posner was on a panel with Chief Judge Easterbrook, so the intellectual lineup behind the opinions was as strong and fearsome as Billy Williams batting after Banks.

Let’s start with United States v. Muoghalu, 2011 WL 5866568 (7th Cir. Nov. 21, 2011), where a pharmacy director appealed from his conviction for extracting kickbacks from a pharmacy company. The basis for the appeal was the government’s failure to produce Brady (exculpatory) material until after trial. The pharmacy company paid Muoghalu $32,000 for 16 speeches he never gave. Muoghalu admitted he had never given such speeches, but claimed they were informal talks. Sadly, he had no documentation or corroboration of any sort. He was the only defense witness at trial. Posner makes it clear that this appeal is going nowhere: “[Muoghalu’s] guilt is so plain that we might stop here; none of the alleged trial errors could have affected the result of the trial, assuming, as courts do when assessing trial error, that the jury was reasonable (no one could predict what an unreasonable jury would do). But we’ll trudge on.” 2011 WL 5865658 at *1.

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