The Ninth Circuit didn't publish anything today. Or yesterday. So I thought I'd write something lengthy -- and somewhat digressive -- about an opinion that it rendered on Friday. Something about which I had an initial reaction when it was published and I then thought about on and off over the weekend.
But I'll start off with an observation.
One of the downsides of writing commentary about published opinions is that you're necessarily going to offend people. Maybe that's not the case were one to simply write gushing prose about how each and every opinion ever rendered is absolutely wonderful. But that'd both be boring as well as not particularly helpful to anyone.
By contrast, whenever you take sides, the losing party -- as well as anyone who agrees with them -- may well take offense. Particularly when you express your agreement with one side or the other strongly. As I occasionally (but by no means always) do.
The result is a non-trivial amount of hate mail. Generally from lawyers and litigants. More often from the latter, as litigants tend to take their cases extremely personally. But occasionally the former as well. Sometimes lawyers have really strong positions about the merits of their case. A view that is sometimes quite different from the view that might be reached by a neutral outside observer. So when confronted by the latter, the former sometimes feels aggrieved. Really, really, really aggrieved.
Not always, of course. Some attorneys and litigants send e-mails that are quite informed and polite. I appreciate those. It occasionally gives me additional insight into the dynamics of the case. It doesn't always change my opinion, of course. But it's additional information, and that's often good.
But it'd be quite an exaggeration to say that everyone is calm and dispassionate. It would put things mildly to say that people occasionally have strong -- and strongly articulated -- views about my take on particular cases.
It's not just lawyers, litigants, and interested observers who occasionally get hacked off, however. A substantial downside of taking positions on particular opinions is that, on occasion, an expression of disagreement with that opinion may evoke a reaction by its author. Understandably so. When someone publicly disagrees with you, you can react in one of two ways. You can view the disagreement as part of a (potentially) vibrant and productive debate. Or you can perceive the views of the dissenter as utter crap written by an ignorant hack. Sometimes both.
I take some solace in the belief -- one which I readily concede may be erroneous (either generally or in particular cases) -- that the reaction of judges tends to fall into the former category. Judges not only author a ton of different opinions, but also tend to have quite healthy egos. When someone outside the system says the judge got something wrong, hey, that's part of the process. Happens every day. No big deal. A reaction with which I'm eminently familiar on the academic side. We write law review articles all the time that other academics then trash. That's the way things work. Better to be noticed and then slammed than not to be noticed at all. That's the theory, anyway.
So why this lengthy introduction?
Well, initially, because it in part sets up one of the exceptions to the rule. Despite the healthy egos of those involved, when something becomes "personal," people occasionally get riled up. There's a fine line between an intellectual critique and a personal slam. Moreover, that line is almost exclusively in the eye of the beholder. What's honestly intended by the author as entirely conceptual comments on a published opinion may nonetheless be perceived by the recipient as a personal attack. That's a result that is, quite unfortunately, unavoidable. It's the nature of the beast. Whenever someone perceives comments to be about not just the opinion, but also about the person who wrote it, tempers sometimes flare.
Why bother saying that? Well, for one thing, merely as an expression of what's in fact true. It describes one of the consequences of making almost a decade now of comments on literally thousands of different opinions.
But it also has a more discrete purpose. Because I'm about to make some personal observations about one particular author of one particular opinion. Chief Judge Kozinski. So before I did so, I wanted to get out at the outset that what follows may not be viewed especially kindly.
With this caveat. As regular readers may know, I'm generally a big fan of AK. Always have been. I first met him in law school during one of his "recruiting" poker games, got to interact with his chambers more during my clerkship (since my judge, Judge Reinhardt, and he were -- and are -- both buds and did various things together), and have often interacted with the Chief since then. Moreover, on the merits, I not only like the way the guy writes, but also very much appreciate his take on things. Judge K's not a guy you can invariably predict. He has -- as everyone knows -- a distinct judicial philosophy and ideology. But he's not an ideologue. He can surprise you. I like that. That makes for more interesting opinions than some other judges -- on both sides of the spectrum -- whose opinions can instantly (and accurately) be predicted based purely on ideology. When someone gives you surprising results on occasion, that tends to suggest that "reason" may be motivating them to a substantial degree. That's good. I'm a big fan of that. And Judge Kozinski fits that bill.
So that's my overall take on the guy. One that's sincerely held.
Now let me get to the caveat. As well as the opinion on Friday that prompts its expression.
We all know that AK's smart, funny, informal, and -- for lack of a better word -- a "character." Love it or hate it, that's him. I can't imagine he'd disagree.
But I'll add one more thing into the mix. Something I also think will (or at least should) be largely undisputed.
Judge Kozinski feels things strongly. He's far from the only judge on the Ninth for whom that could be accurately said. But it's nonetheless true. There are, moreover, particular things about which he is more likely to feel strongly than some other judges.
Since AK likes to make up words (see, e.g., "dissental"), it's probably appropriate to describe one of his attributes accordingly. Judge Kozinski possesses, in my view, a healthy dose of "jusmeanger." He is a keen fan of justice. He can get mean -- really mean -- when he perceives that justice has not been done. An emotion that in part derives from anger at the resulting injustice. Jusmeanger.
I think that's an accurate description of a portion of Judge Kozinski's personality. I'll add one final attribute as well. Judge Kozinski's justmeanger has increased over time. He had a healthy dose of it when he was first on the court. He's got even more of it now.
You see it in oral arguments and in written opinions. My view -- right or wrong -- is that AK has a streak of jusmeanger in him. A mile long.
Lots of that I like. I like justice. I like striving for it. I like not accepting injustice. I too get angry (at least on occasion) when I perceive continuing injustice.
But perhaps, on occasion, Yoda was right. Jusmeanger can potentially lead one astray.
As in this opinion.
Judge Kozinski's opinion takes a particular view of what transpired here. A view that's consistent, in my view, with a jusmeanger philosophy. The AUSA in this otherwise routine border case says that the defendant was an alien who illegally reentered the U.S. The AUSA's almost certainly right. He was found in the U.S. and he's not a citizen. Done deal. True, his parents eventually became citizens, and if that happens when you're a minor (i.e., under 18), you can sometimes obtain derivative citizenship. But that didn't happen. The AUSA knew that the defendant's parents only became citizens when defendant was like 38 or so. So the guy's an alien. Hence his criminal prosecution for illegal reentry after being deported. Relatively straightforward.
The problem, however, arose because the federal public defender here was pretty darn smart. Since it came out in the government's case-in-chief that defendant's parents may have at some point become U.S. citizens, once the government rested, she moved for a judgment of acquittal, arguing it had not been established beyond a reasonable doubt that the defendant was an alien, since his parents might have become citizens before he turned 18. Now, we all know, that wasn't, in fact, the case. He was actually 38. But what matters is the evidence. And there was no evidence introduced about when the parents became naturalized. So, the argument went, the defendant's entitled to an acquittal.
The AUSA didn't anticipate this argument. Most likely because he knew the defendant was in fact 38 when his parents were naturalized, so "of course" he wasn't 18. But now realizing that, yeah, I get it, the AUSA moved to reopen the evidence so he could introduce the parent's naturalization certificate that conclusively showed that, yep, the defendant was way over 18 when his parents finally became citizens.
The district court didn't anticipate the public defender's argument either. He said that he, like the AUSA, was totally surprised by it. So he indeed let the AUSA reopen the evidence and introduce the certificate, and thereafter, the defendant was convicted. Hence the appeal.
The Ninth Circuit ultimately decides that the government brought Hendandez-Meza to trial two days late, thereby violating the Speedy Trial Act. As a result, his conviction gets reversed and remanded. So that's what happens to the conviction here. The district court thought a couple of days got excluded when the parties were close to (or had struck) a plea deal. But it was wrong. Fair enough. Seems right to me.
But it's possible that the speedy trial violation might just merely result in a dismissal of the indictment without prejudice. So the panel goes on to decide whether anything that transpired at trial might result in a dismissal with prejudice. Hence the opinion's lengthy discussion of the naturalization dispute.
Judge Kozinski decides that even though the trial court has discretion to reopen the evidence, that should nonetheless not have transpired here. The AUSA and district court said they were surprised by the claim that defendant might have had derivative citizenship. Judge Kozinski's opinion does a really good job of demonstrating that given the defendant's arguments at trial, no one should have been surprised. So I'm on board for this result.
Mind you, it's often much easier for an outsider to say -- especially in retrospect -- that a particular defense had been "clearly" set up than it is for a contemporaneous participant to come to a similar conclusion in the midst of a trial. Especially when one's mind may potentially be clouded by the underlying knowledge that any such defense would be a crock. When you know that something is demonstrably untrue, it's sometimes harder to pick up on the fact that someone else might be attempting to implicitly claim that the thing's actually true. That's a flaw, to be sure. One that lawyers should be both aware of and used to dealing with. But human nature nonetheless.
But okay. The AUSA and district court should not have been surprised at the defense. So reopening the evidence was an abuse of discretion. I'm fine with this result. So far, so good.
Again, all this is moot anyway, since the panel's already decided to reverse the conviction on the speedy trial ground. But okay. Error on this basis as well.
But it's at this point in the opinion that things start to go sideways. And jusmeanger rears its head.
Because Judge Kozinski doesn't just stop at saying that the AUSA should have been more attentive. Or with making the slam that "[n]o competent prosecutor" would have been surprised. Or even with saying -- without support, in my view -- that "the record is clear that the government was not surprised" by the defense. (Emphasis in original). That factual claim -- essentially, calling the prosecutor a liar -- was based solely on statements by the defense counsel that Judge Kozinski thought made the defense clear. I'm again on board with the concept that the defense likely should have been anticipated. But the truth of that statement doesn't demonstrate that the AUSA was fibbing when he said that he was in fact totally surprised. The two are not the same thing. You can be telling the truth that you were surprised even if your surprise was unreasonable. In fact, here, I find it totally plausible. Especially since the district judge said that he too was surprised. Are they both lying? Or, instead, is it that both of them are in fact telling the truth, but simply should have been more attentive. Seems to me that the latter is exceedingly more likely than the former. Or that the AUSA was lying but the district court was merely mistaken in having the exact same response.
But Judge Kozinski doesn't stop there. He argues that the government should have known that the mother's naturalization certificate was material and turned it over prior to trial, which it didn't. That seems plausible. With the caveat, however, that the defendant almost certainly knew full well that his mother didn't become a citizen until he was 38, two decades after the relevant cutoff date. So I can see why the AUSA might not have thought it was relevant, and hence didn't disclose it. Again, he didn't think it was an actual defense. But okay. He should have nonetheless turned it over. I can get on board for that conclusion as well. As a legal matter, maybe it was, in fact, Rule 16 material.
But Judge Kozinski says not only that it was erroneously not turned over, but that the AUSA might have deliberately refused to comply with his pretrial discovery obligations in an effort to unjustifably convict the defendant. Here's what he says: "The record suggests that the government may have deliberately withheld the naturalization certificate from Hernandez-Meza, perhaps hoping to lock him into a defense he couldn't win." On Judge Kozinski's theory, then, not only was the AUSA lying when he said he didn't realize that the defendant was trying to claim derivative citizenship, but this was his whole plan from the outset. Trick the defendant into claiming he might be a citizen and then, bam, sock him with evidence the AUSA deliberately withheld during discovery.
Judge Kozinski says that he's not making such a finding. That's a factual matter that only the trial court can decide. But the court reaches the inference of deliberate misconduct "from the record as a whole." And if the trial court agrees on remand that that's what in fact transpired -- that "the government willfully withheld the certificate" -- "then it should be precluded from introducing the document at any retrial of Hernandez-Meza, or perhaps even suffer a dismissal of the indictment with prejudice."
Oh, and it doesn't stop there. I was stunned when, at the end of the decision, the panel takes the case away from the district judge on remand, and reassigns it to a different judge. It's true that the district judge didn't necessarily give a ton of reasons for his decision, and perhaps should have. But if that's a basis for reassignment, I'll respectfully suggest that around half of reversals should result in similar reassignments. District court judges during trial don't necessarily articulate at length their reasons. Especially when, as here, they think that something (e.g., surprise) is "obvious" to everyone.
For an academic conference last year, I went back and read every Ninth Circuit case during the past thrity years that resulted in a reassignment to a district judge on remand. There aren't many of them. And quite a large portion of them are what I call "Judge Real" reassignments; i.e., reassignments that are ordered on the de facto (albeit not de jure) ground that the district judge is crazy.
Not one of them involved a reassignment for anything like the error made here. It's almost as if Judge Kozinski thinks that Judge Anello is as out of control as Judge Real. Which simply ain't the case. By a long shot.
How, if at all, does jusmeanger play into this? I think a lot.
Judge Kozinski cares deeply that the US Attorney's Office play by the rules. That it uphold the high standards of integrity that we rightfully expect from prosecutors. He expects similar performance by attorneys in general. But understandably holds AUSAs to an even higher standard. He also gets angry -- extremely angry -- when he thinks that they have fallen short of this goal.
He's also suspicious. Suspicious of the government. Suspicious of motivations Suspicious of incompetence. Suspicious when something that seems so clearly and utterly obvious to someone of his intellectual caliber is alleged to be not so obvious at all.
Lots of this is good. Many of these attributes I share.
But they can go overboard. They can result in jusmeanger taking over, and clouding one's judgment. And that's what I think transpired here.
Is it possible that the AUSA in this cadse is a lying, unethical, manipulative bastard? Perhaps. That's within the realm of the possible, anyway.
But in my worldview, at least, that's exceptionally -- exceptionally -- unlikely.
This is a seemingly straightforward border case in an overworked judicial district that sees hundreds of identical cases every single week. Border crimes get prosecuted by entry-level AUSAs; in other words, kids fresh out of law school. The AUSA here had been an attorney for less than six years. Hadn't even gotten out of border crimes yet. Was, in short, entirely wet behind the ears.
Do we expect even young AUSAs to know and follow the rules? Of course we do. But there are two very different versions of what went on here. Under the first version, you've got a young kid who's doing a routine case who's inattentive to a possible defense and who's just as surprised as the district judge, a jurist who's been an attorney for four decades and on the state and federal benches for fifteen years. The competing version is that the AUSA instead deliberately withheld evidence and lied about it, all in order to "trap" a defendant who was crystal clearly guilty anyway.
I find the first version eminently likely. So much so that I place the odds of the second as not only insubstantial, but perhaps not worth even mention.
Maybe I read the opinion erroneously. Maybe Judge Kozinski only thinks the "misconduct" version is only 20% likely, rather than 70-80% likely (as the opinion seems to read). Regardless, that's still twenty or more times more likely than I think is plausible. Things simply don't work that way in the real world. At least in my worldview. Which I readily concede may be different than the panel's.
None of this is to say that the values Judge Kozinski expresses aren't important. They are. A ton.
There's just a time and place for jusmeanger. And when it arises in a case like this one, I have the firm sense that it's overboard. Leading, as here, to erroneous results.
So that's my overly long, armchair psychoanalysis of Chief Judge Kozinski and its implications for Ninth Circuit doctrine. Take it for what it's worth.
POSTSCRIPT - A wise reader reminded me of the opportunity to listen to the oral argument. So I went back and did so. It was one of those oral arguments where you just cringe. What Judge Kozinski (along with Judge Wardlaw) said at oral argument was -- not surprisingly -- entirely consistent with what's in the final opinion. As well as, I might add, with much of what I wrote above. Indeed, Judge Kozinski was (to his credit) repeatedly forthright about his feelings and reactions to the case. The AUSA arguing the case in the Ninth Circuit was capable, but was (I think) simply not ready for the attack that came. As a result, he just didn't have good answers to the panel's questions. Which in turn led the panel not only to often be frustrated -- and to express that frustration -- with the answers given, but to also (on Judge Kozinski's part) to expressly question whether the AUSA at oral argument was "in on it". Ouch. So the argument essentially went exactly as I would have expected from the opinion. Perhaps even more so.