I wish all opinions were like this.
The majority opinion, written by Chief Judge Kozinski, is concise, witty and fun. It also contains a tone that seems exactly right to me.
Here's how the majority opinion describes the facts:
"This is a tale of two Rex Harrisons. The first is the Harrison of Officers Jenkins and Kirby, two military police officers, who describe a man so drunk he could barely stand straight. A man who reeked of alcohol at a distance of six feet. Who snarled, “I don’t think I should have to give you shit” when asked for his driver’s license. A man who punched Officer Jenkins in the face and told Officer Kirby, “I’m not afraid of you and I’m not afraid of your fucking dog.”
The second Rex Harrison is the man of his own telling. This Harrison had only “a couple of beers with dinner.” When confronted by the officers, he humbly apologized for trespassing. This Harrison was calm and non-confrontational; he had the milk of human kindness by the quart in every vein. He certainly never hit anyone.
The jury must have believed the first story because it convicted Harrison of two counts of assaulting a federal officer. He appeals."
I like it. I'd have liked it even more if Judge Kozinski had managed to work in the tale of a third Rex Harrison, but that's neither here nor there. (POSTSCRIPT - Of course, Judge Kozinski indeed did so, which I'd have realized if I were nearly as big of a fan of showtunes as those in his chambers. Hence the "milk of human kindness by the quart in every vein" line.)
I also liked Judge Kozinski's straightforward discussion of the errors at trial, which I think had exactly the right proportion of measured anger. Here's a sample:
"It’s black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness, [cites], but the prosecutors here did just that. One prosecutor asked: “You’re saying that [they’re] going on the stand, swearing an oath to testify to the truth and then lying . . . ?” He even pitted his own credibility against Harrison’s, asking, “So I’m in the conspiracy against you, is that right?” These were not isolated incidents: Improper questioning was an organizational theme for the prosecutor’s entire cross-examination.
The vouching was similarly patent. The government was entitled to rebut Harrison’s suggestion that Officers Jenkins and Kirby were motivated to lie, but it crossed the line when one prosecutor mentioned during closing that the officers had been promoted “with no adverse action whatsoever” after an internal military investigation. This clearly “suggest[ed] that information not presented to the jury,” but available to the investigators, supported the officers’ testimony. [Cite] And it would be hard to find a clearer case of “placing
the prestige of the government behind a witness,” id., than the prosecutor’s statement that the “[g]overnment stands behind” Officers Jenkins and Kirby.
The government concedes the impropriety of many of these statements, but points out that the prosecutors were Special Assistant United States Attorneys on loan from the military. That’s no excuse at all; when the United States Attorney endows lawyers with the powers of federal prosecutors, he has a responsibility to properly train and supervise them so as to avoid trampling defendants’ rights. Indeed, everyone involved could have done better: The defense attorney should have objected as soon as he saw the prosecutors step out of line. And the respected and experienced district judge should not have tolerated this protracted exhibition of unprofessional conduct."
The only place where I think Judge Kozinski, joined by Judge Callahan, goes astray is in the dispositive section on harmless error. The majority concludes that Harrison was clearly guilty, and hence that the plethora of misconduct didn't matter. But Judge Bybee does an outstanding job of refuting this argument in his dissent. This was a classic credibility contest -- one that we traditionally leave for resolution by a jury, not three judges on the Court of Appeals who weren't present at trial. Judge Bybee's analysis is also perfectly restrained, as he (rightly) admits that Harrison wasn't credible on a number of collateral points but that a reasonable jury might well have nonetheless concluded that his story on the central point was credible (or established reasonable doubt). This is especially the case since Judge Bybee totally wins, in my view, the debate about the physical evidence. Here's the money portion of that discussion from Judge Bybee:
"The physical evidence bearing on this question didn’t amount to a hill of beans. Investigator Sutherland testified that Officer Jenkins had a bruise on his face shortly after the initial encounter with Harrison and he described the bruise as a “7 to 8” on a scale from one to ten; however, Investigator Sutherland took two photographs of Officer Jenkins’s face within hours of the disputed events, neither of which depict any noticeable redness or swelling. [Compare ER 415-16, with DSER 1-3]. Even assuming that Officer Jenkins’s injuries were indeed far more severe than these photos indicate, any such injuries are quite arguably consistent with Harrison’s version of events, in which he claimed that Jenkins initially tackled him and that both of them then hit the ground hard. The majority also relies upon testimony of an injury to Harrison’s
knuckles, but we don’t have any visual evidence indicating the severity of this injury; given the government’s
seeming exaggeration of the injuries to Officer Jenkins’s face, I am not inclined to take this testimony at face value (no pun intended) and the majority shouldn’t either. In any event, while the jury could have found this to be evidence of assault, it also could have accepted Harrison’s claim that any such injury was the incidental result of Jenkins having tackled him. Contrary to the majority’s characterization then, the jury’s determination on count one indeed involved little more than a credibility contest between Harrison on the one hand, and Officers Jenkins and Kirby on the other."
That seemed exactly right to me.
So while I thought that Judge Bybee had the better of the argument, especially given my principled reluctance to resolve credibility contests on appeal, I don't want to lose track of my central point, which is that I thought that both of these opinions were extremely good and exceptionally well-written. Definitely worth a read.
