I complimented this opinion by Judge Kozinski -- effusively, I think -- when it first came out in December of 2005. To give you a taste, here's what I wrote in the first paragraph: "What a great opinion. Really, really impressive. The kind of opinion that I wish I could write, but totally can't. Short, persuasive, concise, to the point, and complete. And even a tiny bit funny. Wow."
You might think that, with such a predicate, the opinion couldn't get any better. I certainly did. But we'd both be wrong.
Someone (one of the conservatives) called for an en banc vote, since Judge Kozinski was reversing the death penalty. And didn't win the vote, but four of the "ayes" -- Judges Tallman, O'Scannlain, Kleinfeld, Callahan, and Bea -- dissent from the denial. And Judge Tallman writes the dissent.
And gets crushed by Judge Kozinski. Judge Kozinski amends his opinion to respond to the dissent. And an awesome opinion gets even more powerful. Read the footnotes in this one. To say that Judge Kozinski wins the resulting debate with Judge Tallman is a total understatement. It's like a boxing match between Mike Tyson and me. Ugly. Totally one-sided. A trainwreck of a crush. Avert ye eyes, lest ye be horrified. Yowza.
The only place where I think Judge Kozinski gets it wrong is in footnote 9. Based upon what Juror Z said, I'm pretty confident that he wasn't more pro-death penalty than your average juror. And virtually certain -- and I'd bet you $1000 on this, Alex -- that Judge Kozinski is simply wrong when he writes that "[D]efense counsel declined to object because he was glad to get rid of Juror Z. . . . Defense counsel must have thanked his lucky stars when the prosecutor bumped Z." Maybe -- and this is something different than what Judge Kozinski had in mind -- the failure to object was a case of sandbagging by the defendant. But I actually doubt it. Instead, I think defense counsel wanted Juror Z on the panel and at no time "thanked his lucky stars" due to a belief that the prosecutor had just bounced a pro-prosecution juror.
But, apart than this minor error (of judgment, not of law), this remains a stellar and uniformly fantastic opinion by Judge Kozinski. And one that only got better as a result of the response to the dissent.
Great job, Judge Kozinski. Simply outstanding.
P.S. - Indeed, I'm so proud of Judge Kozinski right now that I'm not going to reveal the various -- fascinating -- things he said to my pregnant wife last week during a reception in Canada. Way to go, my man.
