In re United States, a wild mandamus opinion decided 1/12 and revised today, arose out of the murder prosecution for the death of nineteen illegal aliens being smuggled in a truck trailer near Victoria, Texas. One of the defendants was attempting to show selective prosecution and sought discovery of the Justice Department death penalty charging practices under United States v. Armstrong, 417 U.S. 456 (1996). The district court ruled that the defendant had made a sufficient showing for discovery; after being dissatisfied with several rounds of responses, the district court ruled that it was going to sanction the prosecution by granting an instruction that the prosecution had failed to follow a “lawful” order of the court about its charging practices. Noting that one instance where mandamus is allowed is where there is threatened instruction error that cannot be corrected because of double jeopardy, the Fifth Circuit granted mandamus.
There’s a detailed account of the district court’s angry handling of the prosecution’s responses to the government. This included ordering that the prosecution obtain a letter signed by the Attorney General that privilege was being asserted.
The prosecution’s failure to follow blue book rules for capitalizing the word “court” also seems to have irked the district court: “Judge Gilmore further used this opportunity to excoriate the Government for its lack of decorum, and also for its incorrect capitalization as mandated by The Bluebook. See, e.g., Dec. 29, 2004, Order at 5 n.1 (“In addition to capitalizing ‘Court’ when naming any court in full or when referring to the U.S. Supreme Court, practitioners should also capitalize ‘Court’ in a court document when referring to the court that will be receiving that document.” The Bluebook: A Uniform System of Citation P. 6(a) at 17 (Columbia Law Review Ass’n et al. eds., 17th ed. 2000)”)”
Post edited to correct a misdirected link.