Federal Judiciary

Ninth Divides Over the Validity of the Smell Test

By Robert Loblaw

U.S. v. Jenkins, 06-50049 (9^th Cir., Mar. 4, 2008)

Last July, a divided panel of the Ninth Circuit affirmed a district court decision to dismiss additional criminal charges filed against a defendant who was already on trial on the ground that the new charges reeked of prosecutorial vindictiveness. On two occasions, law enforcement caught defendant Sharon Jenkins crossing the Mexican border with undocumented aliens. Jenkins admitted that she had been paid to transport illegals, but charges were never filed.

Shortly thereafter, Jenkins was riding in a car that was carrying marijuana across the border, and this time, the government charged her with drug smuggling. At trial, Jenkins testified that she was not aware that there were drugs in the car. Instead, she thought the car was carrying illegals, since she had been paid to do that on two prior occasions. While the jury was deliberating, prosecutors filed alien smuggling charges against Jenkins.

Although the government argued that Jenkins? in-court admission strengthened their alien smuggling case enough to file charges, the district court concluded that this explanation did not pass the smell test. Instead, the district court determined that the government was piling on charges to punish Jenkins for going to trial. Because this sort of vindictiveness violates due process, the district court tossed out the new charges. On appeal, a divided panel of the Ninth affirmed.

Today, the Ninth declined en banc review over the dissent of seven judges. The dissenters take particular issue with the district court?s decision to apply a smell test. Judge O?Scannlain writes,

While we have great respect for the intuition of our district judges in many settings, here the so-called “smell test” has no roots in this or any court?s precedent of which we are aware.

Never one to pass up the opportunity to display his wit, Chief Judge Kozinski chimes in with his own analysis on the issue:

A test based on the olfactory apparatus of each district judge, rather than on well-defined and closely cabined legal standards, would give the district courts far too much say over who gets prosecuted and when.

I smell a great law review article: “The Nose Knows: The Common Law Origins of the Smell Test and Its Modern Applications.”

Full post as published by Decision of the Day on March 04, 2008 (boomark / email).