In U.S. v. Holbrook, the Fourth Circuit in an opinion by Judge Williams, joined by Judge Duncan with Judge King dissenting, affirmed the conviction of the defendant Agnes Holbrook at a trial following her breach of an earlier plea bargain. Holbrook's counsel argued that this remedy for breach of a plea agreement violated her due process rights and was barred by the Double Jeopardy clause.
Judge King concluded that the government should have been limited to enforcement of the plea agreement. He begins his dissent with these words: "Because the decision of the panel majority disregards precedent and will undermine the fair administration of justice in this Circuit, I write separately to explain my profound disagreement."
Judge King didn't carry the majority of the panel's votes, but he did make history with his phraseology. He declares, with regard to the plea agreement, it is impossible to "construct a silk purse from a sow's ear." Later, he concludes that a prosecutor under the rule espoused by the majority could "have his cake and eat it too." A quick search on WL shows 1244 "cake" opinions, and 136 opinions with silk purses not made into sow's ears, but not one previously with both the cake and the silk purse.
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