Irreconcilable Differences: The Ninth Circuit's Conflicting Case Law Regarding Mutually Exclusive Defenses of Criminal Codefendants

Abstract

This article notes the existence of two mutually contradictory and irreconcilable lines of authority within the federal Ninth Circuit Court of Appeals regarding mutually exclusive defenses in criminal cases: one, reflected in U.S. v. Tootick, that specifically holds that there is no mandatory severance rule for mutually exclusive defenses in the Ninth Circuit; and the other, reflected in cases such as U.S. v. Sherlock, U.S. v. Throckmorton, and U.S. v. Mayfield, holding that there is such a mandatory severance rule. The article traces the evolution of the two lines of authority to discover how and why they evolved, including the origin of the mutually exclusive defenses doctrine in the federal Fifth and Seventh Circuits and its importation to the Ninth. The article concludes by calling for clarification of the issue and suggesting that following Tootick would be more efficient and more in keeping with the United States Supreme Court's 1993 holding in Zafiro v. United States.[NOTE: This article tried to make sense of mutually exclusive defenses within the narrow context of Ninth Circuit case law. It came before a later (2006) article that explored the origins and development of the doctrines of mutually exclusive defenses, mutually antagonistic defenses, irreconcilable defenses, and antagonistic defenses in all the federal circuit courts of appeals and found that the doctrines had tainted origins in every circuit, such that it is impossible to make sense of it in any circuit.]