Last week, our beloved (now) Fourth Circuit issued an amazing, beautiful, joyous and delicious (yeah I called it delicious) opinion in U. S. v. Bonner.  The gist of the case is this – Bonner was charged in Federal Court in North Carolina with Robbery and related charges.  He was accused of robbing a Subway store not for it’s delicious sandwich meat and fresh baked breads, but for it’s dough (a little humor on a Monday, go with it). Anyway, the testimony at trial was as follows:  subway store gets robbed, the victims call the cops and say we just got robbed and the robbers are driving a pinkish-red Honda Passport. The cops show up and pull over a Honda SUV that is burgundy.  It’s not driven by Bonner.  Bonner is not in the car.  He isn’t anywhere around the car. However, inside the vehicle is some identification belonging to Bonner (along with a lot of crap belonging to a lot of other people).  The subway employees said that one of the people who robbed them was wearing a yankees cap.  The cops found a yankees cap by the dumpster.  DNA showed that Bonner had, at some point in his life, probably been near that cap.  By the way, the victims said the guy in the car did not rob them. But the guy in the car, one Terry Bethea, had some pot on him and some ammunition.

Okay, so the government tries Bonner on this evidence.  Mr. Bonner makes a motion for judgment of acquittal a couple of times during the trial and the District Court reserves. Ultimately, Mr. Bonner is convicted – shocker, I know. But then the DISTRICT COURT GRANTS THE JUDGMENT OF ACQUITTAL AND SAYS THAT THE EVIDENCE OF IDENTIFICATION IS NOT ENOUGH TO PROVE BONNER’S GUILT BEYOND A REASONABLE DOUBT.

Yeah, I fucking all capped that.

It is not surprising that the Government – your government – brought this case on this type of evidence.  You know, the evidence that at some point Mr. Bonner might have worn that cap that someone else, maybe a cousin or friend, then wore while robbing a place. You know, the kind of case where they don’t have a physical description that matches the person accused, nor do they have any physical evidence (money maybe) linking him to the crime.  Who cares, says your government.  Someone committed this crime and it might as well be him. Identification schmidentification.

And so, of course, the Government appeals because hells yeah, this is the Fourth Circuit bitches, and there is no way this type of thing will fly. What? A lack of evidence? Has that ever stopped us before? Pishaw, I say.

Except, um, this is the new and improved Fourth Circuit.

Lest you think I’m getting carried away, I’ve read many other decisions wherein our brothers and sisters at arms have fought and died. It isn’t the best circuit still by a long shot.  For example, while doing research to determine if DUI is a ‘particularly serious crime’ I got excited by a fairly recent 9th Circuit decision that says it isn’t.  The Third Circuit agrees.  Alas, my precious Fourth says it is and I am stuck with that.  However, I digress.

So the Government appeals. And they say “whatever do you mean I need more EVIDENCE than this to convict someone” and guess what the Fourth Circuit does?  Go ahead, guess.


They told the government no way. In fact, while discussing the so-called DNA evidence on the Yankee cap (the government said that Bonner’s DNA was ‘dominant’) the Court said:

Finally, as the gatekeepers of expert testimony, courts must
be careful to avoid the potential pitfalls of junk science.

That’s right, my friends – gatekeepers they are. The Fourth Circuit gives us some great language talking about why this evidence is wholly insufficient, despite the government’s attempts to argue otherwise. They ain’t having it, my friend, and the District Court’s JOA stands.

And, while we can all engage in Obamarage, I, myself, thank him for putting some decent folks on the bench. And while they don’t always go in our favor, they are certainly giving the government the whatfor now and again.