Thursday, December 15, 2005

Brown v. Lambert (9th Cir. - Dec. 8, 2005)

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.

Yes, yes, I know. I've repeatedly complimented Judge Kozinski (see, e.g., here), both on his writing and on his analysis, in the past. So do a lot of other people. But that doesn't mean it's not true. Plus, I'm hardly a (total) whore, and I'm happy to slam him when I think it's appropriate (see, e.g., here and here).

But not here. This one is a great opinion. It's a death penalty case, and Judge Kozinski begins his opinion in a typically breezy (and smile-inducing) fashion with the sentence: "Cal Brown is not a nice man." He then goes on to describe Brown's horrible crimes, and does so in two brief paragraphs that give the reader a fully accurate measure of the man -- and his offenses -- without overdoing it. And, as usual, Judge Kozinski gets in some (entirely appropriate) pop culture references, including a discussion (in footnote 4) of precisely what it means when someone make the contemporary gesture that says "Talk to the hand."

What's most impressive, however, is how quickly and persuasively Judge Kozinski deals with the merits. One really needs to read the opinion to see what I mean. And that's not hard; it's a short one, and tops out at 11 pages. And every page is a masterpiece.

Judge Kozinski holds that Jurors X and Y were properly dismissed for cause based upon their expressed reluctance to impose the death penalty, but that Juror Z was improperly dismissed on those same basis. His analysis is concise, accurate, and ruthlessly persuasive. Yes, one could write a 50 page opinion that says that same thing. But Judge Kozinski's is better. Again, I wish I had his (and his law clerk's) literary talent in this regard.

Finally, what's also striking about Judge Kozinski's opinion is how obviously, obviously right he is -- that the proper resolution is so clear that it even satisfies the strict AEDPA habeas requirements -- alongside the fact that every single court below found the other way. The trial court in Washington, the Washington appellate courts, the state habeas courts, and the federal district court all upheld the exclusion of Juror Z. And yet, in 11 short pages, Judge Kozinski demonstrates that these holdings are uniformly erroneous. And does so in a manner that leaves -- at least for me -- utterly no doubt.

Which not only demonstrates Judge Kozsinki's talents, but also the critical importance of having smart, hard-working, and interested judges on the bench. When you do, you get opinions like this one. Impressive.