Not that Judge Kozinski is always right. At all. But he's got a way of saying things that's flashy. As well as memorable. And this just in: He pulls punches. Not.
You can read the couple of dozen single-spaced pages that he devotes to his dissent in this one, which responds to an opinion by Judge Randy Smith joined by Judge O'Scannlain. But the following is sufficient to give you a good feel for the thing. As well as, perhaps, to entice you to read it:
"When we take the judicial oath of office, we swear to “administer justice without respect to persons, and do equal right to the poor and to the rich . . . .” 28 U.S.C. § 453. I understand this to mean that we must not merely be impartial, but must appear to be impartial to a disinterested observer. Today we do not live up to this solemn responsibility. Relying on a ground not raised by either party here or in the district court, we refuse to consider petitioner’s serious and, in my opinion, meritorious claims. This is only the latest indignity inflicted on a criminal defendant who, despite having a seventh-grade education, was forced to defend himself at trial; although having the right to a jury, was never told that he had to ask for one; and who was therefore convicted and sentenced to eight years in prison in a bench trial where neither the prosecution nor the judge lifted a finger to bring the accusing witness into court. He’d have had a fairer shake in a tribunal run by marsupials.
I am troubled by the disparate way we treat the parties. Alvarez and the Community both failed to raise legal issues at the proper time and in the proper manner. Alvarez failed to raise his jury trial and confrontation claims by way of a direct appeal within the tribal court; the Community failed to raise an exhaustion defense in district court. The Community committed an additional default by also failing to raise this issue on appeal—something we’ve repeatedly held is an independently sufficient basis for declining to address it. [Cites]
The majority forgives the Community’s double-default but holds Alvarez strictly to his single oversight. I can’t see the justice in this, but it gets worse: Alvarez committed his default when he stood before the Community court without representation. It’s not clear that he was ever advised of a
right to take an appeal. But if he was, it happened months before his trial. After he was convicted and sentenced to eight years in prison, he was not reminded of his right to appeal; he was given no notice-of-appeal form or other guidance about how to take an appeal. He was incarcerated with no ready access to legal materials and faced a 5-day filing deadline—shorter than any I’ve ever heard of.
The Community, by contrast, was at all times represented by competent (and presumably well-compensated) counsel. It was fully aware that failure to exhaust was a plausible defense, and raised three separate exhaustion arguments in the district court (though not the one that my colleagues are so taken with). It then chose not to argue exhaustion at all in its appeal to us.
Confronted with this checkered procedural history, we might hold both parties to their defaults. That would have an appearance of fairness. Or, we could forgive both parties their defaults, which also seems fair. But if we do either of these things, the exhaustion issue drops out, and we must rule on the merits of Alvarez’s petition. The only way to reach the majority’s result here is by excusing the Community’s defaults while holding Alvarez strictly to his—which is just what my colleagues do.
I have read the opinion many times and disagree with pretty much everything in it, including the numerals and punctuation. I explain why in the pages that follow, but first I pose a more basic question: How can a court committed to justice, as our court surely is, reach a result in which the litigant who can afford a lawyer is forgiven its multiple defaults while the poor, uneducated, uncounseled petitioner has his feet held to the fire? I attribute no ill will or improper motive to my excellent colleagues. They are fair, honorable and dedicated jurists who are doing what they earnestly
believe is right. But we see the world very differently. See, e.g., United States v. Pineda-Moreno, 617 F.3d 1120, 1123 (9th Cir. 2010) (Kozinski, C.J., dissenting from denial of rehearing en banc). I can find no justification for showing such solicitude for the overdog while giving the underdog the back of the hand."
The "I disagree with even the punctuation" point perhaps goes a bit too far (as well as is silly). But you get the point.
P.S. - The Ninth Circuit's web site lists the opinion as authored by Milan Smith. But it's actually Randy. Which is not just a "Smith v. Smith" error. The two might actually have come out opposite ways in this one had both been on the panel.