Appellate Practice

4th Circuit Footnote Scolds Prosecutors for 'Disrespectful' and 'Uncivil' Language in Pleadings

A federal appeals court has warned prosecutors about the potential consequences of using “disrespectful or uncivil language” toward others in their appellate briefs.

The Richmond, Va.-based 4th U.S. Circuit Court of Appeals, in an opinion last week, said that advocates, including government lawyers, “do themselves a disservice” when their briefs contain intemperate language directed towards the courts, opposing counsel, parties or witnesses in a case.

It cited a brief in the case by federal prosecutors in Alexandria, Va., that it said was replete with such language, including its evident disdain for the district court’s “abrupt handling” of the defendant’s first appeal, its sarcastic reference to the defendant’s previous counsel’s “newfound appreciation for defendant’s mental abilities,” its insinuation that the district court’s concerns “require a belief in the absurd,” and its claim that the defendant is a “charlatan” who is “exploiting his identity as an African-American.”

“The government is reminded that such disrespectful and uncivil language will not be tolerated by this court,” Judge Allyson Kay Duncan wrote for the three-judge panel.

The case involved a man, James Venable, who had been indicted on a charge of possessing a firearm while being a felon. Venable, who is African-American, moved to dismiss the indictment on the grounds that prosecutors allegedly selected him for prosecution because of his race.

When the lower court refused to grant Venable discovery on his selective prosecution claim, he appealed. It was the prosecution’s response to that appeal which raised the appellate court’s ire. But the court affirmed the lower court’s decision, ruling that Venable had failed to carry his burden of producing some evidence to make a credible showing of both discriminatory effect and intent.

Hat tip to the Volokh Conspiracy.

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