Friday, May 30, 2008

U.S. v. Hinkson (9th Cir. - May 30, 2008)

Whoa, Nelly.

(1) It's the exceptional Ninth Circuit case that runs, like this one, over 90 single-spaced pages. It's even rarer for the author of the majority opinion to apologize (!) for such prolixity. See Page 6142 ("We apologize to the reader in advance for the length of the discussion.").

(2) There's a reason for the length. Not because the topic is globally important, since it's definitely not -- it's a fact-specific opinion about a particular conviction of a crazy tax protester who both deserves to be and will be in prison on various counts. Rather, the opinion and dissent are lengthy in part not only precisely because it's a fact-intensive opinion about whether a new trial should have been granted here based upon the perjury of the main prosecution witness, but also because the issue is (in my mind, anyway) an exceedingly close one. I could easily see myself going either way. Both the majority and the dissent make very compelling cases. But, of course, only one of them can be "right".

(3) Perhaps most unusual, at least to me, is the underlying tenor. The majority opinion is written by Judge Willie Fletcher. The dissent is written by Judge McKeown. Judges Fletcher and McKeown agree much more than they disagree. So you'd perhaps expect a very, very deferential and circumspect response to the other's points.

But that's not what you see. At all. If you read the opinions without knowing their authors, based upon the language and arguments employed when responding to the other side, I strongly believe you'd conclude the dispute was between traditional foes. Indeed, take this test: Black out the names in the first page, give the majority opinion and dissent to an informed reader, and given the language employed by the authors, have them guess who wrote each opinion. I'd be stunned if anyone -- anyone -- would guess that the dispute here was between Judges Fletcher and McKeown.

I'm not saying that this reads like, say, a Reinhardt/O'Scannlain fight. Still. It's not what you'd expect.

Let me make clear that I don't believe that Judges Fletcher and McKeown are being affirmatively disrespectful to one another. Far from it. Nor do I believe that colleagues -- or even friends -- can't (or shouldn't) be strong and tough in the language they use in response to a competing view. I was merely surprised to see what I read here. And when even I -- no shrinking violet, let me assure you -- might well have been a fair piece nicer to the other side, that's a telling sign.

(4) Finally, unmentioned in either opinion is the fact that the lower court's decision here was issued by none other than Judge Tallman, who was sitting by designation in Idaho. An interesting fact. And that just adds to the interest level here.

I love opinions that make me think. This one definitely does. In spades.