What the First said about Clear Error

Another note on DeCaire v. Mukasey, No. 07-1539 (our coverage here).  Even criminal law practitioners need to read it, because the First has this very important language regarding the “clear error” standard:

We have great concern over the district court's utilization of a theory not advanced by either party to the case. Fairness alone requires that the parties have notice of the theories so that the parties can gear their evidence toward what is at stake. ... Both sides to this litigation were prejudiced by the court's spontaneous introduction of a new theory of justification.

A theory must have a sufficient grounding in the evidence. Otherwise, it is merely speculation. In our view, after reviewing the facts, we are left with the conviction that the theory on which the court resolved the case is speculation not grounded in the evidence. ...We review the district court's factual determinations regarding an employer's intent for clear error. ... Under this standard, reversal is appropriate only if "after careful evaluation of the evidence, we are left with an abiding conviction that . . . [the court's] findings are simply wrong."

Got that?  If a judge rules refuses to suppress evidence on a ground not advanced by the government it can be reversed?   I find it somewhat ironic that one of the greatest rhetorical gifts (alright, one of the few gifts) that the First gives to the defense bar, comes in the wake of a dispute between angry US Marshal.